the forum - volume 8, issue 3

Volume 8 Issue 1

12-1903

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THE FORUM.VoL VIII DECEMBER, 1903 No. 3

Published Monthly by the Students of

THE DICKINSON SCHOOL OF LAW,CARLISLE, PA.

EDITORS.

E. C. AMERMAN, (Chairman).

C. W. FLYNN J. MALCOLM GILLESPIE H. F. LAUB JAS. P. HEDGES E. W. EHLER

BUSINESS MANAGERS.PAUL WILLIS, (Chairman).

J. HOWARD JACOBS W. C. SMITH CHAS. HASSERTFRANK P. BARNHART ADDISON M. BOWMAN

Subscription, $1.25 per Annum Payable in Advance.

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Address all Communications to

THE FORUM, CARLISLE, PA.

CAMPUS NOTES.

The students of the Preparatory School,the College and Law School of Dickinson,had a monstrous street parade, followed bya bonfire on the campus, on the eveningof November 26th, to celebrate our footballvictory over Lafayette, at Easton. Thestreet parade was headed by the LawSchool band, which gained a reputationfor itself by producing the sweet strains of" Hiawatha" with sufficient harmony forrecognition.

The first of a series of six informal danceswas held by the Comus Club, in ArmoryHall, Saturday evening, December 5tb.The affair was highly successful.

CLASS NOTES.

Magrady, '06, entertained several friendsduring tile week of Teachers' County In-stitute.

Park, '05, returned to his home, at Mon-roeton, on the 10th, on account of illness,and will remain there until after theChristmas holidays.

Kaufman, M. D., '05, went home onDecember 8th, on account of sickness. Hewill not return until next term.

Lanard, '04, spent December 11th, 12thand 13th at Cornell University.

Prickett, '04, witnessed the Pennsylva-nia-Cornell game on Franklin field, Phil-adelphia, on Thanksgiving.

Fleitz, '04, and Hillyer, '04, took in theDickinson-Lafayette game, at Easton, onThanksgiving.

Laub, '06, and F. B. MacAlee, '06, tookthe preliminary examination before the Su-preme Court board of examiners at Harris-burg, on December 8th and 9th.

Marching to the time of a melodious tinhorn and a kettle drum, the students ofthe Law School paraded T. J. E. Yocumup and down the main streets of the town,on the evening of December 1st, in celebra-tion of his alleged wedding in Wilming-ton, Del., on Thanksgiving Day. Thecrowd called in vain for "Mrs Youum,"after which T. J. E. acquired the pro-nounced distinction of being the only stu-dent who ever delivered an oration off the

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cannon on "the square." His later featof climbing down a lamppost was equallyenjoyable, and "The Man from Piedmont"was returned to his home with a full ap-preciation of the regards of his fellow stu-dents.

FRATERNITY NOTES.

An informal banquet was held by DeltaChi fraternity, in Mrs. Monyer's parlors,on the evening of November 27th. Theguests of honor were Professors Weakleyand Hutton.

Theta Lambda Phi installed a chapterof their fraternity at Cornell Universityrecently. Thomas P. Lanard, '04, ofHolmes chapter, the high priest of thefraternity, conducted the ceremonies.

ALUMNI NOTES.

Herman M. Sypherd, '00, and D. M.Kline, '01, of Freeland, paid a short visitin town on December 9th. They were ontheir way to West Virginia.

Charles E. Daniel, '98, is building up alucrative practice in Scranton.

D. Edward Long, '00, is establishingoffices in Chambersburg.

Clarence F. Albertson, '03, who success-fully passed the Supreme Court examina-tions in New Jersey recently, has formeda partnership with G. Arthur Bolte, 100,in Atlantic City.

J. D. Crary, ex-'03, is president of astreet railway company in Seattle, Wash-ington.

P. M. Graul, '01, of Lehighton, wit-nessed the Lafayette-Dickinson game atEaston, November 26th. A male heir re-cently added happiness to his home.

Paul A. A. Core,'03, cashier in theUnitedStates revenue office at Pittsburg, visitedhis friends at Carlisle, November 30th andDecember 1st.

LeRoy B. C. Delaney, '03, of Pittsburg,was in town on Thanksgiving Day. Heexpects to settle shortly in New Mexico.

A. B. Mclntire, '02, is practicing law inWest Virginia.

James J. Logan, ex-'04, is a member ofthe firm of Logan & Logan, attorneys-at-law, 5 East Market street, York, Pa. LastAugust he had his first homicide case, andsecured a verdict of "not guilty" for hisclient.

H. T. Vastine, '03 ; Walter Bishop, '03;G. S. Mowry, '03 ; Harvey A. Gross, '03;Edison B. Williamson, '03; H. RobertMays, '02, and Samuel Kaufman, '03, tookthe final examination before the SupremeCourt Board of Examiners, at Harrisburg,December 8th and 9th, after which they allvisited their friends at Carlisle.

Chas. H. Drumheller, '03, of Harrisburg,is confined to his home through'illness.

J. B. Ebbert, '03; H. A. Gross, '03, andE. B. Williamson, '03, rep.ently took theseven days' examination for admission tothe York County Bar.

W. W. Johnston, '01", at present locatedin Scranton, was in town callingon friendson December 14. Mr. Johnston is one ofthe most successful young men recentlygraduated from the school. He has a lu-crative law practice, and is engaged invarious business enterprises prominent inthe coal regions.

MOOT COURT.

HOLT vs. WRENN.

Assumpsit-Implied warranty of quality-Latent defects - "Caveat emptor" de-fined.

STATEMENT OF THE CASE.

Plaintiff was poisoned by beer which hebought from the defendant, a tavern-keeper, who in turn had bought it fromthe brewer. The poison which the beercontained, owing to defective brewing,could have been detected only by a skill-ful chemist. This action is brought on animplied warranty that the beer was fit todrink, and that defendant is liable for theinjury plaintiff sustained.

GILrLESPIE for the plaintiff.In contracts for provisions it is always

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implied that they are wholesome. Osgoodv. Lewis, 2 Har. & G. (Md.) 495; Wrightv. Hart, 17 Wend. (N. Y.) 267; Hoe v.Sanborn, 21 N. Y. 552; Jones v. Murray,3 T. B. Mon. (Ky.) 83; Moore v. MeKin-ley, 5 Cal. 471; Getty v. Rountree, 2Chand. (Wis.) 28; Giroux v. Stedman,145 Mass. 439; also note to Reynolds v.Palmer, 21 Fed. Rep. 453.

Where food is sold by a dealer for do-mestic consumption there is an impliedwarranty that it is good and wholesome.Lukens v. Frenind, 27 Kan. 664.

Cooic for the defendant.In the absence'of fraud there is no war-

ranty of the quality, and the buyer takesat his own risk. Am. & Eng. Ency. ofLaw, Vol. 15, p. 1218.

Where a manufacturer puts out hisgoods to a dealer or middleman who buysto sell, in the absence of an agreement orwarranty by the seller, the buyer takes athis own risk. Harrisou v. Sharkey, 34 Pa.236; Huston v. Cook, 153 Pa. 43.

OPINION OF THE COURT.

It is frequently stated that a vendor im-pliedly warrants the merchantability ofgoods to a purchaser who has no opportu-nity to examine them. The limit, if any,to which this warranty extends, however,is doubtful.

The difference between the civil andcommon law in relation to implied war-ran ties upon the sales of personal propertywas vast. Indeed, the two were in directopposition to each other. The civil lawapproved the maxim caveat venditor,while the common law adhered to the rule(aveat emptor.

The latter principle was adopted by, andis the one followed in, the United States.Let the buyer beware. Beware of what ?That, in the sales of personal property,there are the implied warranties that thething sold exists and is capable of beingtransferred; tha't the vendor has a goodand valid title thereto; that the seller wvilldeliver the exact 4uantity of the commod-ity sold, is undoubted. Hence, we findthat both the civil law and the commonlaw, (notwithstanding the difference sug-gested by the maxims) are in accord in re-spect to the existence, title, and quantityof the thing sold. As to the implied war-ranties of quality, they differ, and, in theabsence of fraud, the general rule of thecommon law is that there is no impliedwarranty of the quality of the goods sold ;the buyer is deemed to purchase at his ownrisk. But however strict the common law

is it recognized the fact that where a ven-dee relies upon the skill and judgment ofthe vendor to make for or deliver to himarticles fit for the use to which they areto be put, the law will imply a warrantyupon the part of the vendor that he hasdone his duty and has made or furnishedarticles adapted to the purpose for whichthey were ordered. Jones v. Just, 3 Q. B.197; Randall v. Newson, 2 Q. B. D. 102.Whether this wartanty extends to defectsnot discoverable is doubtful. Our courtshave drawn a distinction between sales bya dealer and sales by a manufacturer.Thus they hold that the manufacturerwarrants against all defects, whether dis-coverable or not. Rodgers v. Stiles, 11Ohio St. 48. While the dealeris liable onlyfor defects which are discoverable by ex-amination. White v. Oakes, 88 Me. 367.Whether the distinction is justifiable ornot is doubtful. The reason assigned forthe same is that the manufacturer hadgreater opportunity to obviate and detectthese defects. While it may have somebearing on the tort-liability of the dealer,it certainly does not follow that he basimpliedly promised less. There were cer-tain sales, however, which imposed ex-ceptional liability on the seller. Black-stone says that in contracts for provisionsit is always implied that they are whole-some, and that if they are not wholesomethe vendor is liable. 3 Black Coin. 165.

The English cases, however, support therule that at common law there is no im-plied warranty of quality, fitness or whole-someness in the sale of provisions, evenwhen sold by the dealer for immediate do-mestic use. The only case we have beenable to find in the United States support-ing this doctrine is Emerson v. Bigelow,10 Mass. 197, in which Justice Sewall re-marks that there is nothing to be inferredin the sale of provisions which may notbe inferred to alike purpose inothercases.But here, as in the case of a manufacturerand dealer, our courts have drawn anotherdistinction as to the liability of a personwho sells to another for the purpose of re-sale, and the person who sells direct to theconsumer. In the former case it is heldthat there is no implied warranty ofsoundness or wholesomeness arising fromthe sale of food provisions to a dealer ormiddleman who buys on the market, not

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for consumption, but for sale to others.Cannon v. Young, 19 Penna. 2.39. Whilein the latter it is held that in all sales offood provisions by a retail dealer for im-mediate domestic use there is an impliedwarranty of fitness and wholesomeness forconsumlption. McNaughtonv. Joy, 1 V.N. C. 470, and cases cited ill Vol. 15 (2dEd.) Am. & Eug. Enc. of Law, 1238. Fromthe above cited cases we deduce the prin-ciples that ordinarily, in sales of personalproperty, the manufacturer and not thedealer is liable for latent defects, but thatin the case of provisions it is the dealer ormiddleman and not the producer who isliable. (In England the Sale of GoodsAct, 1893, makes manufacturer and dealeralike liable.)

We are, therefore, of the opinion that inthe sale of provisions for immediate con-sumption there is an implied warranty ofwholesomeness, and further, that the de-fendant, Wrenn, in the case at bar is liablein assumpsit on his implied warranty.

WILLIS, J.

OPINION OF THE SUPREME COURT.

Wrenn, a tavern keeper, bought beerfrom a brewery, and sold some of it toHolt, a customer. The beer had beenmade poisonous in the process of brewing,and Holt became sick in consequence ofdrinking it. This is assumpsit for thedamages.

There was no express warranty byWrenn that the beer was free from poison.The case does not find that there was animplied contract (as distinguished from aquasi-contract) that the beer was sound.We cannot assume, therefore, that therewas.

Nor, would it have been proper to sub-mit to the jury to say whether there wassuch implied warranty. When A goes toa grocer's and buys a slice of ham, the jurywould not, from that fact alone, be au-thorized to say that A understood, andthat the grocer knew that A understood,that he, the grocer, was warranting, un-conditionally, the freedom of the ham fromtrichina3 or other noisome defects. Norwould it, when A bought ice cream at asaloon, or beer at a restaurant. The ven-dee might possibly assume that the vendorwas tacitly assuring him that the articlewas not known by the former to have anysuch defect, and that he had made reason-

able efforts to find out whether it had. Itwould surprise the ordinary buyer orsellerto hear that the former wat impliedlypromising to be responsible for any seri-ous defects, whether they were, with theutmost diligence, discoverable by himor not. An implied promise is an actual,not a fictitious promise. A promise couldas safely be implied, in every case in whichany one sold to another, any article, withknowledge that the buyer expected it tohave any given qualities.

It is not necessary to inquire whetherwhen beer, ham, ice cream, or anythingelse is asked for by tile buyerand somethingis tendered by the seller, in response, thereis a condition annexed to the tender andacceptance, that the article is of the classasked for. If it is not, the buyer wouldnot need to accept, and if he accepted inignorance of the discrepancy between thething asked and the thing tendered, hecould return the article, and escape payingfor it; or even having used it before dis-covering the discrepancy, if he obtainedno advantage from it, could escape payingfor it, or having paid for it, could recoverthe money back.

It would revolutionize the law of sales tohold that when the vendor knows that thevendee is expecting the article which heis buying to have certain qualities, thevendor impliedly affirms that it has thesequalities, and it cannot matter whetherthe article is a food or drink, or an articleto wear, or any other article. No vendeewill willingly buy, for the price of goodbutter, a pound of rancid butter. But, itwould startle the students of the commonlaw to learn that persistence in selling apound of butter to a buyer of this kindwould be a tacit promise or affirmation bythe seller that the butter was sweet. Fromthe payment of the price of a good articleand from knowledge of the buyer's ex-pectation to get a good article, no, war-ranty thatthe article tendered is good canbe implied. If there is no implied affiraf-ation of sweetness of the butter, in the saleof it with knowledge that the buyer thinkhe is getting sweet butter, and would nottake it otherwise, how could there be im-plied an affirmation of any other quality;(e. g., freedom from unwholesome ingre-dients), from the knowledge that the buyeris expecting to get butter free from suchingredients ?

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The question before us is, not whetherthere is an implied actual warranty, butwhether the courts will inventa warrantyfor the purpose of making the seller liablefor the unwholesomeness of the food.Afore particularly, the question is, whetherthe courts will invent the warranty, notthat the vendor does not know of any un-wholesomeness; not that he has madedue effort to discover any unwholesome-ness, and has found none, but that the ar-ticle is in fact sound, despite so latent anunsoundness that with the utmost careand skill it could not be discovered

Such a warranty has, so far as we havediscovered, not yet been thrust on a ven-dor by the law of Pennsylvania. Whyshould we thrust it on him ?

The ordinary retail dealer in articles offood, can in fact know but little con-cerning theirqualities. He buys his hams,e. g., from a wholesaler, in a distant city.The utmost that can be expected of himis to usb care in selecting a reputablewholesale dealer. He cannot be expectedto have a microscopic examination madeof every slice he sells for the detection oftrichinve, or other defects. He is not anexpert; the buyer knows that he is not anexpert, and that he has been compelled totrust to the judgment and good faith ofparties who have earlier dealt with thehams. Somebody has to take the risk ofdefects existing despite reasonable effortsto detect them. The consumer has not themeans of finding them out, but he has near-ly as good means as the small retail dealer.If he has taken a risk in buying, so has theretailer. Why should the latter cast theloss back from himself upon another, whois equally free from negligence or anyblamable default?

Is it suggested that the retailer mayhave his action over against the wholesaler?But this is by no means clear. There aredecisions that confine the implied war-ranty to cases in which the sale is to theconsumer; and deny it in cases of sale tothe retailer, though it is known that he isgoing to sell it to the consumer. But, evenif the law allowed to the retailer recourseto his vendor, the vendor might be pecu-niarily irresponsible.

It might be reasonable to hold that theburden of showing reasonable care to dis-cover the defects in articles of food should

be on the retailer, and that he should beassumed to warrant that he had exercisedsuch care without discovering the defects.But the case before us does not call for anyopinion upon this question.

Sundry dicta appear from time to timeto the effect that there is an implied war-ranty by the vender to the consumer, ofthe wholesomeness of foods sold to thelatter. In some of the cases there wasfraud, or knowledge of the defect. Thecases, if there are any, which really decidethat, without respect to good faith, orcare,or diligence of investigation, the vendor offood articles to the consumer, warrantstheir soundness, are very few. The prin-ciple has been rejected in Sheffer v. Wil-loughby, 163 Ill. 518, where a restaurateursold a poisonous oyster stew. Bucking-ham v. Water Co., 142 Pa. 221, denies theliability of the water company to its con-sumers, for furnishing typhoid-fever-pro-ducing water, in the absence of negli-gence. The drinker of water should be asmuch protected from poison, as the drinkerof beer, and a warranty of the soundnessof beer should no more be implied thanthat of the soundness of water. While, inthe case last cited the action was trespass,it was assumed that there was no liabilityat all, except for negligence. Indeed, ifthe law creates the duty of furnishingsound edibles and potables, it cannot wellmatter whether this duty is enforcedthrough the concept of a contract or of atort.

Many retailers are persons of smallmeans and limited education and ability.It seems unreasonable to say to their neigh-bors, who know theirlimitations, that theyshall be liable for any damages that flowfron' the unsoundness of articles sold bythem, though the highest care of men ofthat class could not have detected that un-soundness. When a buyer goes to thestore of such a person he well knows thatthat person has but poor means of discov-ering latent defects in the articles in whichhe deals, and he should kniow that he him-self must take a risk, as well as the retailer,that he is unwittingly buying an unfitarticle. Enough to require of retailersthat they exercise the largest diligencepracticable to men in their position inlearning the qualities of the articles soldby them, that they sell nothing of whose

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soundness, after the exercise of this dili-

gence, they have any suspicion, and that

they make it reasonably clear that they

have exercised this diligence and goodfaith. It would be absurd to charge the

retailer with the heavy responsibility with

which the plaintiff seeks to charge him,without giving him an effectual claim to

indemnification from the remoter dealerfrom whom he bought.

If the consumer does not wish to takeany risks that things bought for food shall

be unwholesome, let him expressly stipu-late for the warranty, and refrain frombuying from the retailer who refuses to en-ter into such a warranty. We are notwilling to put on the retailer the necessityof answering for defects which are undis-coverable to his utmost diligence and care,unless he takes the pains to exact from his

customer an explicit exoneration.We have not considered the bearing of

the Act of May 4th, 1889, 2 P. & L. 4266,upon the question involved. Whether thecourt can take judicial notice that beer isan article "used wholly or in part forfood," it is not now necessary to decide.

Judgment reversed.

JACOB FOLEY vs. HENRY BROCK.

Contracts-Position of arbiters-Provisionfor bringing suit within a specified time.

STATEMENT OF THE CASE.

The parties made a contract for the erec-tion by the former of a house for the latter.The contract provided that all disputes asto meaning of the contract, or as to per-formance of the contract, should be de-cided by three persons named; and thateach would release to the other all claims,or defalcations, or set-off arising out of thecontract, except. such as these arbitersshould determine to be valid. The workwas done, but, as Brock thought, imper-fectly, and he refused to pay the contractprice, claiming a reduction of $1,000 (theprice was $5,800). The arbiters decidedthat the work was done according to con-tract and that Foley was to have the con-tract price. The suit was brought in 18months after Brock's refusal to pay. Thecontract said that should either sue, hemust sue within six months after the causeof action arose.

SETZEt for plaintiff.When parties contract that all disputes

shall be settled by an arbiter, his decisionshall be final. Monongahela NavigationCo. v.Fenlon, 4 W. & S. 205.

When either party refuses to performaccording to the arbiter's award the otherparty may sue for breach of the contract.Preston v. Whitcomb, 11 Vt. 47; Grey v.Reed, 65 Vt. 178 ; Zuckv. McClure, 98 Pa.541; Howard v. Daly, 61 N. Y. 362.

A contractor is discharged when one ofthe parties breaks an obligation which itimposes, and he may remove all liabilitiesunder it. Vale on Pa. Law, Vol. 329.

WOLF for defendant.Contract was entire, and plaintiff cannot

claim benefit of some of its provisions andrepudiate others. 37 Pa. 201 ; 112 Pa. 442;17 S. & R. 45.

A limit may be placed upon the timewithin which suit may be brought. Bar-ber Asphalt Paving Co. v. Erie, 203 Pa.120; 130 Pa. 170.

OPINION OF THE COURT.

By the terms of the contract betweenplaintiff and defendant what was to bedecided by the arbiters ?

First. All disputes as to the meaningof the contract.

Second. All disputes as to performance.Third. The validity of all claims, de-

falcations or set-off arising out of the con-tract. The contract further stipulated that"should either sue he must sue within sixmonths after the cause of action arose."The plaintiff sues to recover the contractprice. Defense is, a failure to sue withinthe term agreed upon. The law looks withfavor on the settlement by arbitration ofcertain kinds of disputes; however, in ouropinion, if plaintiff could not limit hisright to sue to a period short of that pro-vided by our statute of limitations, hecould not insert a condition to that effectin his contract, provide for an arbiter todetermine as to whether or not such con-dition was valid and thus do indirectly,through an arbiter, what he might not dodirectly. Under this view a material ques-tion for our consideration is: May theplaintiff so limit his right to sue? In

Whitmore v. House Insurance Co., 148 Pa.405, the Insurance Co. stipulated in theirpolicy that insured should give notice ofany loss within (30) thirty days from fire,or forfeit his right of action, and this washeld a valid condition. Contracts of com-mon carriers also usually contain provisionsimilar, and such provisions are also held

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valid. We, therefore, decide this stipula-tion, limiting plaintiff's right to sue to sixmonths after the cause of action arose, tobe valid. Having so decided, the questionremains- is the interpretation of thatclause for the arbiters or for this court? Isthis not a dispute arising out of the mean-ing of the contract? When did the causeof action arise? Who is to say but the ar-biters? If plaintiff is allowed to recoverin this action will the arbiters have de-cided as to the validity or invalidity of anyalleged defalcation on the part of plain-tiff? Certainly not. It might be said thatwhen these contracting parties used thewords, "should either sue, he must suewithin six months," they contemplatedthe bringing of an action at law. But tieinstrument must be construed as a wholeand with reference to the intention of theparties when it was made; and their inten-tion, so construed, undoubtedly was toavoid litigation, costs and delays incidentto actions at law. We therefore refuse to putany other forced construction on the con-tract. The plaintiff does not allege thathe has made any attempt to have thesearbiters, his chosen tribunal, decide thisdispute, but in the face of this stipulation,which he is as much bound to affirm asany other clause in the article, he seeks arecovery in an action at law. In Reynoldset al., Exrs. v. Caldwell, 51 Pa. 298, thecontract provided that all disputes betweenthe parties and relative thereto should bedecided by an arbiter named, whose de-cision should be final, and the partieswaived any right of an action at, law. Thecourt held that even the misconduct of thearbiter would not deprive defendants of aright secured to them by the contract, viz:a right of exemption from liability to anysuit upon it, and if the arbiter undertookto act and fraudulently injured plaintiff,he had a remedy by action against theguilty agent, but not by suit on the con-tract. It was also said that "it is of primeimportance that parties shall be heldto their contracts. If permitted to cutthemselves loose from an onerous stipula-tion, because it may be inconvenient toperform it, there can be no certainty inagreements." Also in the MonongahelaNavigation Co. v. Fenton, 4 W. & S. 205,the agreement to submit did not containany express waiver of the right to sue at

law for a breach of the contract, It onlydeclared that in any dispute between thecontractor and the company the decisionof the engineer should be obligatory andconclusive, without further recourse or ap-peal; yet it was held that no action by oneparty against the other would lie for abreach of the agreement; that the only re-sort was to the appointed tribunal.

In the present action, plaintiff, alleginga breach of the contract on part of defend-ant, seeks to recover on on implied con-tract in an action at law, and without thearbiters having passed on the allegedbreach. Applying the doctrine of theforegoing cases as we see it, our opinion isthat plaintiff must resort to the arbitersfor a decision of the question in dispute,at least as a condition precedent to thebringing of ai action at law.

Judgment is therefore directed in favorof defendant.

P. L. TYLER, J.OPINION OF THE SUPREMtE COURT.

One of the provisions of the contract isthat if either party should sue, he shouldsue within six months after the causeof action arose. The cause of action,Brock's refusal to pay, arose eighteenmonths before the suit was brought. Theaction is therefore too late if the courtswill enforce this sort of a stipulation.

The question is, not whether, if theparties make such an agreement, and it isbroken, an action for damages will beentertained, but whether the court willspecifically enforce it. The damageswould, probably in every case, equal thesum recovered in any suit. It would beidle to allow a recovery by A against B, andthen allow B to sue for damages equal tothe amount he paid to A in satisfaction ofA's judgment. A foolish circuity is pre-vented by the court's refusing to entertainthe suit which has been brought in viola-tion of the contract.

A more serious question is whether acontract limiting the term for suingshould be held valid. That it is valid hasbeen too often decided to justify our treatingthe question as still open. Barber AsphaltPaving Co. v. Erie, 203 Pa. 120.

The arbitration provided for was simplyto ascertain any defalcations, set-offs ordamages, and not the meaning of theclause concerning the inception of the suit

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within six months, nor when the right ofaction accrued. The arbitration has beenhad, and the latter question has not beensubmitted to the arbitrators. Even if, ac-cording to the terms of the agreement tosubmit, this question might have beensubmitted, the parties have waived thesubmission.

The parties have agreed to submit andhave accordingly submitted the allegedimperfectnessof the plaintiff's compliancewith the contract, to the three arbitrators.They have decided that it was not imper-fect. The cases are clear that after sucha stipulation, the parties cannot, usually,resort to a suit before submitting the dis-pute according to its terms. A fortiori,if they have submitted the controversy,neither can maintain a suit which im-pliedly affirms the inaccuracy of the de-

cision. Garven v. Pierson, 166 Pa. 258;English v. Wilmerding School District,165 Pa. 21.

The points agitated having been welldecided by the learned court below thejudgment is affirmed.

JOHN ISLIP vs. REBECCA TARIFFand SUSAN JOLIFF

Spceific performance-Power of marriedwoman to contract-Equity jurisdictionextends to the parties to the contractonly.

STATEMENT OF THE CASE.

Defendant, co-tenants of a house, onApril 12, 1902, agreed in writing to conveyit'on August 1, 1902, to plaintiff for $3000,of which each was to recieve one-half.

Through both women were married,only Susan Joliff separately acknowledgedthe contract. Rebecca Tariff changed her-mind, and when the money was tenderedon August 1, 1902, by Islip, declined toreceive it, or to make the deed, allegingthat she was not bound because Mrs.Joliff was not.

The latter was willing to make the deed,but Islip refused it until both defendantsshould unite in its execution.

Mrs. Joliff's husband was unwilling toexecute the deed, but Rebecca Tariff's waswilling.

Bill in equity to compel the executionof the deed by both the defendants.

FLYNN and JAME]S for plaintiff.The act of 1901, P. L. 67, removes the

necessity of a separate acknowledgmentby a married woman.

Upon a bill for specific performance,where defendant has placed it out of hispower to perform the contract, the defend-ant is nevertheless liable for damages andsuch damages may be ascertained inequity. Macguire v. Henty, 163 Pa. 381;Fitzpatrick v. Enaland, 4 D. R. 187;Clark v. Martin, 49 Pa. 289.

HoucK and AmERmAN for defendants.A married woman may not mortgage or

convey her real property unless her hus-band joins in such mortgage or convey-ance. Act of June 28th, 1893, P. & L.,Vol. 1, 2887.

Bills for specific performance will notbe inforced in equity where the contract issuch that specific performance would bea nulity. Pom. Eq. Jur., Vol. 3, 1405;also note page 1.50. Fisher v. Worrall, 5W. &S. 486; Weller v. Weyland, 2 Gr. 103.

OPINION O" THE COURT.

Two interpretations are put upon thesefacts by counsel for plaintiff and defend-ants. The plaintiff's claiming that thefacts do not state whether or not the hus-bands joined in the contract of sale, andthat, therefore, they have a right to pre-sume that they did.

If it can be assumed from the followingclause in the facts: "Though both womenwere married, only Susan Joliff separatelyacknowledged the contract," that bothhusbands executed the contract of sale,the fact that only Susan Joliff acknowl-edged separately, would not under act of1901, invalidate the contract, for that actremoves the necessity of a seperate ac-knowledgment by the wife. If this canbe assumed, then specific performancecould be granted to compel parties to exe-cute the deed under their contract, but Webelieve such is not the correct interpreta-tion of the facts.

The facts are that Rebecca Tariff refusedto make the deed, alleging she was notbound because Mrs. Joliff was not. Whydid Mrs. Tariff allege this?

If both husbands had joined in theexecutory contract of sale it must be ad-mitted that Mrs. Tariff would not havealleged this. She evidently knew thatMrs.Joliff's husband had not joined inthe executory contract and refused to doso, as later on the facts say, he refused tojoin in the execution of the deed. Fromthis view of the facts it is clear that the

THE FORUM

husbands were not parties to the contractof sale and hence the plaintiff's interpre-tation of the facts is erroneous.

We will therefore proceed under the in-terpretation of the facts that the husbandswere not parties to the executory contract.

This is a bill in equity to compel execu-tion of the deed by both defendants, whenthe husband of one of'defendants refusesto join in the execution.

Act of June 8th, 1893, provides as fol-lows: "Hereafter amarried woman shallhave the same right and power as an un-married person to acquire, etc., * * "but she may not mortgage or convey herreal estate, unless her husband joins in suchmortgage or conveyance."

Mrs. Joliff's husband is unwilling toexecute the deed, we know of no meansby which to enforce him to so execute,and if deed should be executed by Mrs.Joliff and Mrs. Tariff aud the husband ofone, it will not be valid against bothparties, and the decree for which theplaintiffs ask, that is, "to compel the exe-cution of the deed by both the defend-ants," will not lie when contract is suchthat specific performance would be anullity.

In Weller v. Weyaud, 2 Grant 103, it isheld that a vendee is not entitled tospecific performance where the wife re-fuses to sign.

The same principle is laid down inFisher v. Worrell, 5 W. & S. 486; Clark v.Sierer, 7 Watts 107, and Riesy's Appeal,73 Pa. 486.

We think the same principle applieswhere it is the husband who refuses tosign. Bill is dismissed.

PRICKETT, J.

OPINION OF THE SUPERIOR COURT.The act of Feb. 24th, 1770, P. & L. 1537,

was passed to regulate the practice in theexercise of the already existing power ofmarried women to convey their estates inland. It provided for a joint executionand delivery by husband and wife of adeed for the wife's property, the separateexamination of the wife as to her volun-tary action and the official certificate ofthat fact by the officer taking the ac-knowledgment. The joinder of the hus-band is made necessary, not merely to barhis right of curtesy, as the joinder of thewife in the husband's deeds is necessary

to bar her right of dower, but in orderthat the deed may not be absolutely void.Peck v. Ward, 18 Pa. 506; Selp v. Camp-bell, 19 Pa. 361.

The acts of April 11, 1848, June 3, 1887,and June 8, 1893, "put an end to the hus-band's common law present estate in hiswife's land" but they made no change inthe method of conveyance of her land asdirected by the act of 1770. Bingler v.Bowman, 194 Pa. 212. The purpose ofrequiring the husband's joinder in thedeed was to prevent the wife from sellingher land without her husband's consent.Here, Mr. Joliff refuses to join his wife inthe execution of a deed, and as he doesnot appear to have been a party to theoriginal contract, a decree of specific per-formance as against Alrs. Joliff would beto order the axecution of an instrumentworthless to transfer any estate.

Before April 4, 1901, it is clear that theunacknowledged contract of a marriedwoman for the sale of her land was notbinding upon her, whether her husbandwas a party to such contract or not.Bigler v. Bowman, supra. The object ofrequiring her separate examination andacknowledgment was to prevent her beingcoerced by her husband to make a saleagainst her will. On April 4, 1901, an actwas passed, providing that "acknowledg-ments of any married woman of anydeeds, mortgages, or other instruments re-quired by law to be acknowledged, shallbe taken in the same manner and form asthough said married woman were femesole, etc." Now a married woman'sexecutory contract to convey her landshad always been an "instrument requiredby law to be acknowledged." A directapplication of the language of the actforces the conclusion that such contract isstill required to be acknowledged thoughthe separate examination is dispensedwith.

In the case of men or femes sole, theirdeeds are valid without any acknowledg-ment, the customary acknowledgmentbeing simply a preliminary to recording.A fortiori, no acknowledgment of their in-formal contracts to sell is necessary. Butin the case of married women the act of1770 has made the acknowledgment of thedeed by both husband and wife an in-dispensable requisite to the validity of the

58 THE FORUM

deed. It is then asked, "Is such an ac-knowledgment of the contract to conveyequally essential?" So long as the legis-lature recognized the danger of the coer-cion of the wife by the husband, it is clearthat specific performance of a contract tosell her land would not be decreed unlessshe had declared that such contract wasvoluntary, for otherwise the coercion of

the husband would simply be directed tosecuring her contract to convey and thepurpose of the act of 1770 would be de-feated. But by the act of 1901 the legis-lature has impliedly stated that the dan-

ger of husbands coercing their wives is athing of the past.

In Glidden v. Struples, 52 Pa. 400, it issaid: "A married woman has no capacityto contract for the sale of her real estateor to convey it, except in the statutorymode conferring the power." But at thedate of this case her contracts in general

were void, and of course the act of 1770would not help her if she failed to complywith its requirements. By the acts of1887 and 1893, however, her contractualpower is made general, the formality re-

quired in her deeds being expressly pre-served as an exception. It may, therefore,be argued that since the act of 1770 governsmerely the form of the execution of herdeed, and since her separate examinationis no longer required, there is no presentreason why specific performance shouldnot be decreed against a woman whosehusband has joined in her contract, or who

(as does Mr. Tariff here) expresses his will-ingness to join in her deed. Cessante ra-tione legis, cessat ipsa lex.

Of course, parol evidence of the hus-band's consent to the wife's execution of adeed can be no substitute for his signatureto the deed, as required by the statute.

Glidden v. Struples, supra. But this ob-jection does not apply to her contract toconvey. We are of the opinion, therefore,that if the complainant desires it, he mayhave a decree of specific performance asagainst Mrs. Tariff, upon the tender of$1,500. Were not the proportionate inter-

ests of the defendants in the land in ques-tion disclosed by the record, we could not

make this decree. We are not, however,confronted by this difficulty.

Notwithstanding the foregoing conclu-sion, since the complainant appears unwill-

ing to accept any relief less than the deedof both defendants, the judgment of thelower court is affirmed.

Judgment affirmed.

COLEMAN vs. FIRANKLIN BANK.

Duty of a drawer of a check to know thepayee-Liability of a bank for paymentof a fraudulently indorsed check-Effectof negligence of the drawer.

STATEMENT OF THE CASE.

Louis Ferguson, representing himself tobe John Wanamaker, went to A. 3. Cole-

man for a loan of money, giving the occu-pation and residence of John Wanamakeras his own. Coleman, upon investigation,found John Wanamaker to be a prosper-ous and responsible merchant of Philadel-phia. Having never seen John Wana-maker nor his picture, Coleman handsFerguson a check for $1,000, payable to theorder of John Wanamaker, whom he sup-posed Ferguson to be. Fergusonendorsesthe check in the name of John Wani-maker, and sells it to one Hamilton, whohas it cashed at the defendant (Franklin)Bank. The drawee (Coleman) brings thisaction to compel the bank to credit himwith the amount of the check.

HASSERT and McDoNATD for plaintiff.A depositor has the right to assume,

when checks are returned to him by thebank, that it has ascertained the genuine-ness of the indorsements. Shipmen v.Bank, 12 L. R. A. 791.

Money paid out on a forged indorsementof a depositor's check cannot, in the ab-sence of negligence on the part of the de-positor, be charged against him. Am. &Eng. Ency. of Law, p. 1077.

If a bank pay a check upon which thename of the payer is forged, the depositormay recover money so paid. Morgan v.Bank, 11 N. Y. 404; Bank v. Green, 3Penny. 456.

CAREY and SipES for the defendant.Where one is induced by fraud to make

a check to another, who is acting underanassumed name, and the check is indorsedin the assumed name, the maker is held tointend to deal with the person with whomhe isactually dealing; and payment by thebank, on the indorsement of the assumedname, is a good payment. States v.Bankof Montrose, 17 Sup. 256; Trust Co. v.Bank, 196 Pa. 230.

Where the forgery can be traced to thefault or negligence of the drawer, he can-not fix the liability for his default upon the

THE FORUM 59

bank, but must bear the loss himself.Trust Co. v. Midland, 117 Mass. 448.

OPINION OF THE COURT.

We think the question to be decidedhere is whether or not Coleman was guiltyof negligence, when he gave Fergusonthe check. True, Coleman satisfied him-self that John Wanamaker was all right,but was it his duty to satisfy himself thatFerguson was all right? We think it was.If Coleman, upon investigation, hadfound out that the person asking for thecheck was not John Wanamaker, it isquite certain that the check would neverhave been given.

But Coleman did part with the check.Now, to whom did he give it, to Wana-maker or to Ferguson? He certainly, inthe eyes of the law, gave the check to theperson before him, namely, Ferguson. Itis a perverted statement to say that thecheck was John Wanamaker's, and thatnone other was entitled to receive pay-ment. As a matter of fact John Wana-maker was not entitled to it; nobody wasentitled to it; it should not have beengiven. It was no fault of the defendant'sthat it was given; it was not-as we willshow below-the defendant's fault that itwas paid; and consequently the defendantcannot be held liable for its payment.Land Title & Trust Co. v. Bank, 196 Pa230 ; Iron City Nat. Bank v. Fort Pitt, 159Pa. 47.

Furthermore, as a matter of right theplaintiff cannot recover. He intended togive Ferguson the $1,000-and if he hadhad in his possession that amount ofmoney it is reasonable to suppose that hewould have given him the money insteadof the check. Why then say that thedefendant bank should be made to ac-count for the fault or misfortune of theplaintiff?

Did the plaintiff give this check ratherthan the money, because he was suspiciousof Ferguson? If so, then too, he cannotrecover, as he gave to one, whom hedared not trust, the means of perpetratinga fraud upon others.

On the other hand was the defendantbank negligent or in any way at fault?We cannot see that it was. The fact thatHamilton was a bona fide purchaser forvalue-it is presumed he was--certainlymakes it unnecessary for the bank to go be-

hind Hamilton's indorsement, unless ithad, or should have had, knowledge offraud. There is nothing here to showthat Hamilton's part of the transactionwas not entirely square and above board.Emporio Nat. Bank v. Shortwell, 35 Kan.360; Maloney v. Clark & Co., 6 Kan. 82;Robertson v. Coleman, 141 Mass. 231.

Judgment for the defendant.BARNHART, P. J.

OPINION OF THE SUPREME COURT.Ferguson, calling himself John Wana-

maker, and giving for his occupation andresidence those of John Wanamaker, thewell known merchant, but not otherwiserepresenting himself to be him, obtainedthe check from Coleman, payable to JohnWanamaker. Ferguson, in substance, rep-resented himself to be the John Wana-maker, as the jury might well find, forFerguson's assumption of this name andhis declaration that his residence and hisbusiness were what those of Wanamakerwere, could not well be otherwise inter-preted by Coleman. Coleman's check was,hence, obtained by a gross fraud. Never-theless, he intended the man before him toreceive the $1,000, and he inserted in it thename John Wanamaker, in order that thisman might obtain it. He intended, ofcourse, that this man should indorse thecheck in the name, "John Wanamaker,"since otherwise he could not obtain themoney from the bank. When the check,being thus indorsed, the bank paid it, itdid precisely what Coleman intended itto do. Why then should it not be allowedto withhold a similar amount of Coleman'sdeposit?

If, the check being presented, it had in-sisted on knowing whether the presentingparty was the party intended by Coleman,what could it have done? It might havesent Ferguson with a messenger to Cole-man, and inquired of him whether theformer was the payee intended. And whatinformation would it have received? Thejury would have been warranted in infer-ring that it would have received from Cole-man a statement corresponding with thefact, viz : that the bearer (Ferguson) wasthe intended payee. How can it besaid, then, that the bank's negligenceought to make it bear the loss, when, hadit been diligent, it would have received adirection to pay to Ferguson and the losswould have fallen on Coleman?

THE VO.RUM

If, after giving the check, Coleman be-gan to suspect that his payee was not JohnWanamaker, what was his duty ? Plainly,to hasten to his bank and countermandthe check. This he did not do, and theonly inference permissible is that he hadnot begun to suspect that he had been im-posed upon. It is clear, therefore, that aninquiry from him by the bank would haveresulted in the repetition of his commandin the check, viz: to pay the money to thepayee. If he had suspected, and still tookno steps to stop the payment of the check,he would have been negligent, and hisnegligence ought to precludd his recoveryfrom the bank, which, but for it, wouldnot have paid the check. Land Title Co.v. Nat. Bank, 196 Pa. 230. In a note to50 L. R. A. 75, the doctrine is well stated"that the drawer of a check, draft or billof exchange who delivers it toan impostor,supposing him to be the person whosename he has assumed, must, as againstthe drawee or a bona fide holder, bear theloss, where the impostor obtains paymentof or negotiates the same." Cf. Barrewsv. Western Union Telegraph Co., 58 L. R.An. 433 (Minn.)

We have considered the case as if it in-volved the presentment of the check toand the reception of payment from, thebank by the payee himself. The rele-vant principle is the same, though in factthe payee sold the check to Hamilton, andHamilton received the money from thebank. Hamilton, .as a bona fide holder,would be protected in buying it as fully asthe bank in paying it, and though had thecheck been countermanded before pay-ment, he could not have compelled thebank to pay it; he could have compelledColeman as its drawer to pay it. The bankhas done for Coleman what he would thushave otherwise been compellable to do.He cannot, therefore, recover the moneyfrom thebank. Theopinionof the learnedcourt below judiciously disposes of all thequestions involved, and its judgment isaffirmed.

TONEY vs. LAPSLEY.

Irespass- When propertly is acquired inanimals ferce naturme- What plaintiffmust show to recover for conversion qfsame-Act of May 25, 1887.

STATEMENT OF THE CASE.Toney, gunning, shot a wild goose and

disabled it so that it descended graduallyto a field a quarter of a mile from whereToney stood when lhe fired. Lapsley wasin the road within twenty feet of thepoint at which the goose fell and capturedit. Toney coining up demanded it as hisbird. Lapsley refused to give it up. Thisis trespass for the conversion of the goose.

REESER for the plaintiff.The possession necessary to acquire

right of property in animals ferce naturcadoes not mean actual bodily seizure, butwounding or ensnaring an animal so as toprevent its escape is sufficient. Pierson v.Post, 3 Cai. (N. Y.) 175; Am. & EnglishEncy. of Law; Vol. 2, page 342.

Wild animals when reclaimed and re-duced to possession become the subject oflarceny. 4 Black Com. 294; Haywood v.State, 41 Ark. 479; Harvey v. Coin., 23Grant. (Va.)

During the existence of a qualified prop-erty in animals ferce naturcp it is underthe protection of the law, and every in-vasion of it is redressible. Goff v. Kitts,15 Wend. 550.

RENO for the defendant.The plaintiff must show either title or

right to possession. If he fails he cannotrecover in conversion. Castor v. MeShaf-fer, 48 Pa. 437, vide Bigelow in Torts underconversion.

This he has not done, as pursuit alonevests no property or right in the hunts-man, even when accompanied by wound-ing. 8 L. R. A. 448 (notes); Wallis v.Meare, 3 Binney 546.

The pursuer must have wounded theanimal so as to have brought it within hispower and control. Pierson v. Post, 3Cal. 175.

OPINION OF THE COURT.

The question submitted for determina-tion is, whether the plaintiff by shootingand disabling a wild goose and going intoimmediate pursuit, in the manner allegedin the statement of facts, acquired such aright'to or property in, the bird as willsustain an action against defendant forcapturing and refusing to deliver it on de-mand.

It is admitted that a wild goose is ananimal ferce naturce and that property insuch animals is acquired by occupancy or

THE VORUM 61

possession only. These admissionslimit thediscussion to the question what actsamount to possession, as applied to ac-quiring a right to wild animals.

The elements necessary for possessionare: "That a man must stand in a certainphysical relation to the object and to therest of the world and must have a certainintent." Holmes on Common Law.

Almost all the jurists in general juris-prudence agree, that the animal musthave been brought within the power ofthe pursuer, before the property in theanimal vests. Actual bodily seizure maynot in all cases be requisite; but all concurin declaring that mere pursuit, withoutbringing the animal within the power ordominion of the gunner, is not sufficient.The possession must be so far establishedthat the animal cannot escape.

In Pierson v. Post, 3 Caines (N. Y.)175, Justice Thompson ruled, "The pos-session necessary to acquire a right ofproperty in animalsferce naturce does notmean actual bodily seizure, but woundingan animal so as to prevent its escape issufficient."

The civil law contained the same prin-ciples. But it was a question in theRoman law, whether an animal feranature belonged to him that had woundedit so that it might easily be taken. Thecivilians at first differed on the question,but finally came to the conclusion thatthe property in the wounded wild animalshould vest in the pursuer. As far backas in Young v. Hichens, 6 Queen's Bench,606, we find it held that, "he that pur-sues or wounds a wild beast is not therebyproprietor unless he has brought it in hispower, as if he had killed or wounded it todeath or otherwise given the effectualcause, whereby it cannot use its motivefreedom." "Property can be acquired inanimals ferce naturce, by occupancy only;and that in order to constitute such anoccupancy it is sufficient if the animal isdeprived of his natural liberty, by wound-ing, so that he is brought within thepower and control of the pursuer." Busterv. Newkirk, 20 Johnson (N. Y.) 75, also 2Kent's Comm. 349.

In all these citations it appears that astrong probability of complete capture isenough to give a right of possessionagainst a party preventing the capture.

"The law in this country with regard toproperty in wild animals is in league withthat of England, except that which ischanged by statutory regulations," and asthere are no such enactments in thisState, the cases cited must govern the oneat bar. Rexroth v. Coon, 15 R. I. 35, 37,23 At. 37.

Applying then these principles to ourcase, we are of opinion, from a fair inter-pretation of facts, that Toney can recoverin this action, having mortally woundedthe goose, given immediate pursuit andhaving had the animal within his powerof capture, as it does appear almost cer-tain, that having the right to possession,he would have gained actual possessionbut for the wrongful act of Lapsley.

It might be well to state, that there is adistinction between wounding an animalso as to prevent its escape, and a disablingof it. In the latter case there might bepresented an opportunity of escape; butafter a careful analysis of facts we construethe term disable, in view of the circum-stances, as meaning mortally wounding.

Whether the owner of the field in whichthe goose fell acquired any property in thebird we are not called upon to discuss;but we dismiss the question by declaringthat, as to him, Toney would have a betterclaim than Lapsley.

We, therefore, are determined to placepossession of animals ferce natura' in theone first seeing, disabling and pursuing,so as to deprive them of their naturalliberty and subject them to the control oftheir pursuer, and should thereby afford abasis of an action against one interferingwith such right of possession.

Judgment is accordingly entered forplaintiff. McNEALX, J.

OPINION OF THE SUPREME COURT.

By the act of May 25th, 1887, P. &. L.Dig. Prac. 97, the distinctions betweenactions ex delicto were abolished, and tres-pass, trover and case were amalgamatedinto the common form of trespass. How-ever, the change was one relating to pro-cedure only, and so we are still dependentupon the law as it was to determinewhether an action will lie under the formof trespass to remedy the wrong formerlyfalling under the above heads. The pre-sent action corresponds to what was form-erly trover and conversion of personal

62 THE FORUM

property, and it is necessary, therefore, todetermine what are the requisites for suchform of action, According to all the au-thorities, the requisites are two-(l), theplaintiff must show property, absolute orspecial in himself; (2), he must show awrongful conversion by the defendant.Brightly's Ed. Troubat and Haly's Prac-tice, See. 1561. We may dispense with adiscussion of the latter of these points, forit is admitted by the statement of factsthat if the first point is established, therewas a conversion, a demand by the plain-tiff and refusal to deliver by the defend-ant. Jacoby v. Taussat, 6 S. & R. 300.The question, in short, then, is whether ornot the plaintiff had property, either ab-solute or special, in the wild goose shot,the subject matter of the alleged conver-sion. The general principles of law rela-tive to the acquisition of property rights inwild animals have been very accuratelyand lucidly expounded by the learnedcourt below, and any further discussion byus would be the work of supererogation.The only doubt that may be expressed isas to the application of thelaw to thefactsadmitted. To acquire property in a wildanimal it must be reduced to possession;mere pursuit or wounding of the animalis not sufficient. Possession is defined as"the physical control which belongs ofright to unqualified ownership; the hav-ing a thing in such a manner as to excludethe control of other persons; that deten-tion of or dominion over a thing by oneperson which precludes others from theadverse physical occupancy of or dominionover it." Century Dict. Although nothaving actual or manual possession of thegoose after the firing of the shot, may itnot reasonably be said the animal wasthen within the control of the hunter?The natural protection of a bird is itsability to fly. If deprived of this function,not being of a ferocious nature, would itnot then be under the dominion of theperson disabling it? "But the differencebetween the power over the object whichis sufficient for possession, and that whichis not, is clearly one of degree only, andthe line may be drawn at different placesat different times." Holmes' CommonLaw, p. 217. Verily, one who had simplywounded a lion or bear sufficient to im-pede locomotion could hardly be said to

be in possession, legally or actually, of thewounded animal. We are disposed toagree with the application of the law tothe facts as interpreted by the learnedcourt below. By disabling the goose theplaintiff effectually gained dominion overit, and conversely the defendant's "captur-ing" the bird is to mean he merely pickedit up in its disabled and helpless condition.In law, therefore, it may be said the plain-tiff had possession of the animal from thepoint of time immediately following thefiring of the shot. This possession wasdisturbed by the defendant, the plaintiff'sproperty right denied, and the appropri-ate remedy is trover. It is unnecessary todiscuss the rights of the owner of theground upon which the bird fell, for what-ever remedy he may have, it is not for theconversion of personal property to whichhe never had title. The question of titleis solely between plaintiff and defendant,and we think the plaintiff shows the betterright.

Judgment affirmed.

JOSEPH TEMPLE vs. ABRAMCORNLER.

Landlord and tenant-Liability of land-lord to repair on his own promise-Rem-edies of tenant in such case-Tenant can-no t recover for injuries received by breachof such promise in an action of tort, theaction must be in contract-Contributorynegligence on tenant's part. will bar re-covery.

STATEMENT OF THE CASE.

Cornier rented a house for three years toTemple, agreeing to repair a stairway,which was visibly weak. Nothing beingdone for six months after the possessionwas taken by Temple, he reminded Corn-ler of his promise, and demanded that heshould perform. Cornler denied makingthe promise, but said he would repair.Six more months ran by without repair,when the wife of Temple, coming downthe stairs, they fell in, and she was dan-gerously hurt. This is an action of tres-pass.

SIPES for plaintiff.The landlord is liable to his tenant for

an injury flowing from a failure to keepthe building in a proper state of repair.

THE FORUM 63

The landlord may render himself liablefor repairs by an agreement to that effect.

PARK for defendant.The agreement of the landlord to repair

does not avail where the lessee knows ofthe defects at time of letting. Caveatemptor applies to this kind of contract.Wein v. Simpson, 2 Phila. 158.

If tenant continues to use premises,knowing the defective condition, and isinjured, his contributory negligence willbar a recovery. Akerly v. White, 58Hun. 362.

OPINION OF THE COURT.

It is a general rule that where there isno warranty implied in the letting ofpremises that they are reasonably fit foruse. The lessee takes an estate in thepremises hired, and takes the risk of thequality of the premises, in the absence ofan express or implied warranty by thelessor, or of deceit. A lessee, therefore,if he is injured, by reason of the un-safe condition of the premises hired, can-not maintain an action against the lessor,in the absence of warranty or of misrepre-sentation.

The plaintiff admits the general rule,but contends that this case is taken out ofit, because, at the time of the letting, thedefendant agreed to repair and put in asafe condition the stairway, which wasvisibly weak, the unsafe condition ofwhich caused the injury. The contractrelied on was a loose one; it fixed no timewithin which the repairs were to be made.But, if we assume that the contract was tomake the repairs within a reasonable time,then the jury would bejustified to say thatthe defendant had not performed it withina reasonable time.

We then come to another question,whether for such a breach the plaintiff canmaintain an action of tort to recover forpersonal injuries to his wife by reason ofthe defective condition of the stairway.The cases are numerous and confusing asto the dividing line between actions arisingout of a contract and those arising out ofa tort. There are many cases where a manmay have his election to bring either ac-tion. Where the cause of action arisesmerely from a breach of promise, the ac-tion is in contract.

The action of tort has for its foundationthe negligence of the defendant, and thismeans more than a mere breach of prom-ise, otherwise the failure to meet a note, or

any other promise to pay money, wouldsustain an action of tort for the negligence,and thus the promiser would be madeliable for all cousequential damages arisingfrom such failure. As a general rule, theremust be some active negligence or mis-feasance to support tort. There must besome breach of duty distinct from breachof contract. In the case at bar, the utmostshown against the defendant is that therewas unreasonable delay on his part in per-forming an executory contract. As wesee, he is not liable by reason of the rela-tion of lessor and lessee, but his liability,if any, must rest solely upon a breach ofcontract. If the defendanthad performedthe work contemplated by his contractunskillfully and negligently, he would beliable to an action in tort. Such was thecase in Gill v. Middleton, 105 Mass. 477;Ashley v. Root, 4 Allen 504. There is nowarranty implied in the letting of an un-furnished house or tenement that it isreasonably fit for use. Doupe v. Genin,45 N. Y. 119; Dutton v. Gerish, 9 Cush.89.

We think the rule of caveat emptorwould apply in the absence of any war-ranty expressed or implied, the buyertakes the risk of quality upon himself.Height v. Bacon, 126 Mass. 10; Wein vSimpson, 2 Phila. 158.

The rule does not apply to cases of fraud.:Neither does it apply to the sale or deliv-ery of dangerous or noxious articles. It isheld that where a man delivers an articlewhich he knows to be dangerous or noxiousto another person, without notice of itsnature or qualities, he is liable for an in-jury which may reasonably be contem-plated as likely to result, and which does,in fact, result therefrom to that person orany other who is not himself at fault.Wellington v. Drumer Kerosene Co., 104Mass. 64.

In the case at bar all parties knew of itsdanger, that the defendant did not concealhis knowledge that the tenement wasotherwise, in order to induce the lessee tohire and occupy it.

When a house is infected with small-pox the danger to life is from a cause thatcannot be discovered by the tenant fromany examination he may make. Springguns might be set in traps, orother contri-vances might exist which would injure

THE FORUM

the most careful occupant. If the landlordknew of such, it might be held to be hisduty to give information to the tenant.Such traps or contrivances are not merelya want of repair, they are, in a sense,active agencies of mischief, which no ten-ant would expect to find even in a decayedand ruinous tenement. But, as we hadstated before, without undertaking to de-termine the limits of this exception to thegeneral rule, we think the case at bar isnot within this exception.

Buildings are let in all sorts of condi-tions, and the law is unreasonably strict inexempting the landlord from liability forinjuries arising from defects when there isno warranty and no actual deceit.

The plaintiff, therefore, has no right togo to the jury upon the questions of war-ranty and deceit, and there is no evidenceof any warranty that the stairs were safe,or of any deceit or misrepresentation onthe part of the defendant. An action oftort will not lie for the total failure of thelandlord to repair, according to his agree-ment. Schick v. Fleischhauer, 26 N. Y.210.

In the case at bar the plaintiff had tworemedies-() the remedy of a tenant forbreach of landlord's agreement to repair,is either for himself to make the repairs atthe cost of the landlord, and recoup hisdamages in an action by the landlord forrent, or to bring an action ex-contractu torecover such damages which he has sus-tained thereby; or (2) where the landlordis under an agreement to repair, and failsto do so, and the premises in consequencethereof become untenantable, the tenantmay abandon the premises without lia-bility for further rent. Brolasky v. Loth,5 Phila. 81; 19 L. I. 117.

The plaintiff in this case cannot recoverfor the personal injuries of his wife, whenshe herself was guilty of contributory neg-ligence. Where the facts are admitted andundisputed, several conclusions follow :

(1). The plaintiff's wife was the pro-ducing agent whose act caused the injury.She well knew the fact that the stairwaywas visibly weak.

(2). The plaintiff's wife had at least asgood, and, indeed, better opportunities forknowing the condition of those stairs.

(3). That the defendantwas notifiedbythe plaintiff of its condition, and it follows

from that, that plaintiff's wife knew same.(4). The plaintiff admits that he knew

the condition of those stairs, and they werein a dangerous condition, and for whichhe owed a duty to his wife to so notify herof the danger. If he failed in so doing, heneglected his duty, with obvious careless-ness, and was, therefore, responsible forthe results. Oil City Gas Co. v. Robinson,99 Pa. 1 ; Mitchell v. Stuart, 187 Penna.217.

A tenant who has knowledge of a de-fective condition of the premises is guiltyof contributory negligence in using or oc-cupying them without repair, and is,therefore, not entitled to recover for inju-ries sustained. Hahn v. Roach, 7 North.Co. 21; P. & L. Digest of Dec., 17983-318.

Damages for personal injuries to the ten-ant, resulting from the failure of the land-lord to repair, are deemed too remoteand consequential, and not in contempla-tion with the parties, and therefore notrecoverable. Kabus v. Frost, 50 N. Y. 74(Sup.) Spellman v. Beningan, 36 (Hun.)174.

In no case shall the tenant be allowed torecover for personal injuries when he him-self was guilty of contributory negligence.Mitchell v. Stewart, 187 Pa. 217.

In Coal Co. v. Jones, 86 Penna. 432, Mr.Justice Mercur held to prove contributorynegligence evidence is admissible that thedeceased, at the time of the accident, wasin a position which he himself hadwarned others to avoid as dangerous.In Russell v. Hutchins, 15 W. N. C. 482,the court held it was contributory neg-ligence for a boy of 18 years of age to gointo a known dangerous place to workagainst the advice of his father, but at thesolicitation of the pit boss.

In Fairview Coal Co. v. Biddle, 18 W.N. C. 108, and in Township of Crescent v.Anderson, 114 Pa. 643, held that one whoknows, or, by ordinary care, may know,of a defect in a highway, and voluntarilyundertakes to test it, when it could beavoided, cannot recover against the muni-cipal authorities for losses incurred throughsuch defect.

The cases that are most similar to thepresent one in their facts and circum-stances are the following, which hold that,although the landlord is liable if thepremises are so constructed or in such a

THE FORUM 65

condition at the date of the lease that theircontinued use by the tenant must resultto the injury of a third person, yet thelandlord is not liable where the tenant hasbeen negligent in the use of the premises,for not making repairs necessary to abatethe same. Krauss v. Brua, 107 Pa. 85;Somes's Appeal, 6 W. N. C. 441; Tow v.Roberts, 108 Pa. 489.

If the jury believe that the defendant'swife had knowledge of the condition ofthe stairs, and with such knowledge stillwent on and used said stairs, such wascontributory negligence, and there cannotbe any recovery for her personal injuries.

D. E. KAUFMAN, J.

OPINION OF THE SUPREME COURT.

Cornler orally agreed to repair the stair-way. He did not do so within the nexttwelve months. That he broke his con-tract need hardly be said, and that for thebreach he is liable to the plaintiff is just asclear.

But Temple's action is not ex contractu.The duty to repair did not exist independ-ently of the contract, and no tort of Tem-ple has occurred. He has not omittedsomething which he should, without con-tract, have done. He has not done some-thing which he ought not to have done, nordone something which he might have orought to have done, in a negligent manner.If guilt he has itis that of pure non-feasanceof his contractual duty. He is liable,therefore, only for the breach of contract.If this breach can be turned into a tort,the breach of any contract can, with equalpropriety, be treated as a tort, e. g., pot topay a debt; not to deliver goods one hascontracted to sell. Many breaches ofcontract involve injury either to propertyor person. The fact that a personal hurthas been occasioned by the non-feasance ofCornler does not make the omission a tort.Hahn v. Roach, 7 North. 21.

But the hurt was not, in a proper sense,caused by the condition of the stairs. Itwould have been, had that condition beenunknown to Temple and his wife. Butthey knew of their condition. The act ofMrs. Temple in venturing upon them wasthe true cause of the damage. When oneman consciously gives the negligence oromission of another a chance to hurt him,by his own act or omission, he so far con-tributes to the result as to preclude him-

self from making the other liable to himfor the consequences. 34 L. R. A. 824. Heis bound to refrain from an act that mayenhance the damages that may followfrom the other's default Cf. Town v. Arm-strong, 75 Mich. 580; Hahn v. Roach, 7North. 21: Cook v. Soule, 56 N. Y. 420 ;Kampinsky v. Hallo, 52; N.Y. 265.

Is it asked, was Temple bound to refrainfrom the use of the stairs? The learnedcourt below has well answered. Templemight have repaired the stairs, and eitherset off the cost against the rent, or suedfor its recovery upon the lessor's covenant.Possibly, if access to the upper portion ofthe house was possible by means of thesestairs only, he could have treated himselfas evicted, and withdrawn from the prem-ises altogether, or contented himself withthe occupancy of the down-stairs portionof the house rent free. He had a right tocontinue to use the stairs, but only at hisown risk. For ensuing harm he could notobtain compensation from Cornler.

The various aspects of the problem be-fore the court have been so well consideredby it that further discussion by us is un-necessary.

Judgment affirmed.

REBECCA THROOP vs. WM. ANDJANE LE COMPTE.

Trusts-Act of April 18, 1853, against accu-mulation of rents and profits discussedand interpreted-Trustee may not payprincipal of trust fund over to lawfulrepresentatives of settler until all priorlimitations have completely failed, andespecially where the intention of settlerwould be defeated.

STATEMENT OF THE CASE.

Sarah Atlee, a widow, to whom dowerhad been assigned, assigned her right tothe annual payments to X, in trust, to in-vest them, pay the interest to her daugh-ter, Rebecca Throop, for life; then, to payover the principal to any child of Rebecca,if any should survive her. If no childrenshould survive her, then to pay the princi-pal over to herself, Sarah Atlee, shouldshe be alive, or, if dead, to her lawful rep-resentatives and heirs. Sarah Atlee hasdied. Rebecca has married and had adaughter, Salome. Salome has died. Mrs.Atlee has a brother and sister, Win. and

THI FORUM

Jane LeCompte, who still survive. Thetrustee desires to pay the fund over to Re-becca Throop. Case stated to determinewhether she or the LeComptes are en-titled.

LouRu IuR for plaintiff.

There is no violation of the doctrineagainst perpetuities, where there is nopossibility that the estate could be tied upfor a longer period than a life or lives inbeing and twenty-one years afterwards.Philips' Estate, 93 Pa. 45.

The next of kin of a person are ascer-tainable at any period, either during hislifetime or after his death, which may benamed for the vestingof an estate. Supra,93 Pa. 45.

The intention of the deed is the govern-ing rule of construction, though it requiresformal words of limitation to make an es-tate of inheritance. Supra, 93 Pa. 45;Rillyer v. Miller, 10 Barr 326; Brown v.Williamson, 36 Pa. 338.

SDiITH for defendant.The trust is in violation of the Act of

Assembly of Ap-ril 18, 1853, entitled "AnAct to regulate accumulations." Vol. Il.,Peffer & Lewis Dig., Col. 4055.

Future estates limited on a life estate,which are not sure to take effect in pos-session within twenty-one years and theusual fraction, after the determination ofthe life estate, are void in their creation.Davenport v. Harris, 3 Grant 164; Philips'Appeal, 93 Pa. 45; Mitcheson's Estate, 11W. N. C. 547.

OPINION OF THE COURT.

The contention of counsel, for both plain-tiff and defendant in this case, seems to bewhether or not the doctrine of act April18, 1853, entitled "An Act regulating accu-mulations of trusts estates," applies, but,after careful consideration, we cannot seethe applicability of said statute to case un-der contemplation.

Act April 18, 1853, provides, "No personshall settle or dispose of any real or per-sonal propeity * * * in such mannerthat rents, issues, or profits shall whollyor partially be accumulated for any longerterm than life or lives of any such grantor* * * and term of twenty-one years

after death of such grantor," etc.The original grantor, Sarah Atlee, made

assignment of her dower right to a trustee,with provision that interest of said assign-ment should go to her daughter, Rebecca,for life, and at death of Rebecca, to pay theprincipal to surviving child of Rebecca.No denial will be made to fact that SarahAtlee had perfect legal right to accumu-

late such dower right during her life, noris it contrary to Act April 18, 1853.

Was any attempt made to accumulatesaid fund longer than twenty-one years orduring minority of person to take? Wecannot see any such provision. Thelimitof accumulation must cease within statu-tory period. The moment Sarah Atleeshall die, annual payments derived fromher dower interest must cease coming intohands of trustee, and he is to hold princi-pal accumulated up to this time, pay theinterest to Rebecca Throop, for life, andthe principal to her child, if any, at herdeath.

The reversion of the principal to SarahAtlee, upon contingency of RebeccaThroop's death, without leaving to survivea living child, can never occur, for SarahAtlee has since died.

Certainly, the payment of the life inter-est to Rebecca does not conflict with stat-ute prohibiting accumulations.

We are inclined to believe, that becauseof nature of trust estate in hands of trustee,is an active trust, and as such should bedecided according to laws governing trusts.Where a special duty is to be performed bythe trustee in respect to the estate, such asto collect rents and profits or sell the es-tate, etc., the trust is called active. Tied-eman's Real Prop., p. 468; Williams' Ap-peal, 83 Pa. 377; Watson's Appeal, 125 Pa.340.

Being such active trust, the duty oftrustee to the trust estate is such that hemust retain legal title, in order to performhis duties, and the courts will not executethe trust. Watson's Appeal, 125 Pa. 340.

Salome, daughter of Rebecca, and towhom, according to assignment, estatewould have gone on death of her mother,is dead ; but Rebecca Throop is still living,and until her death the child named asbeneficiary can not be determined. Noparticular child was named, and any childof Rebecca surviving her will take princi-pal in hands of trustee.

We, therefore, believe conclusion of rea-soning to be that trustee shall retain prin-cipal and pay interest on same to RebeccaThroop until her death; then, if there beno child surviving at her death, the prin-cipal will be distributed according to in-testate laws.

JOSEPH E. FLEiTZ, J.

THE FORUM 6-

OPINION OF THE SUPREME COURT.

The question presented by the facts ofthis case has been strangely misappre-hended. Sarah Atlee was entitled to sumsof money, payable at stated intervals.These she conveyed to a trustee in trust toinvest them. They made the corpus ofthe trust fund. There was no direction toaccumulate the interest arising from thisfund. On the contrary, it was to be paid,the whole of it, to Sarah Atlee's daughter,Rebecca Throop. The learning upon thestatute against accumulation has, there-fore, been rather prodigally wasted.

The question is, who, under Mrs. Atlee'sassignment, is entitled to the principal ofthe fund? If Rebecca Throop is, there is,apparently, no longer any purpose for thetrust to subserve, since it was evidentlyframed for the purpose of securing theprincipal to some other than Mrs. Throop,in certain eventualities.

The interest is to be paid to Mrs. Throopduring her life. After her death the prin-cipal is to be paid to any surviving child ;if there is no such child, to Sarah Atlee; ifSarah Atlee is dead, to her lawful repre-sentatives and heirs.

The only child of Mrs. Throop has died,but no facts make it proper toassume thatother children may not be born and maynot survive her. Hence, the object of thetrust has not been accomplished.

Mrs. Atlee is dead. After the death ofMrs. Throop, then, the fund is to pass toany surviving daughter, or, if none, to therepresentatives of Mrs. Atlee. Mrs.Throopis now the representative of Mrs. Atlee,but it is clear that the representatives in-tended, were those that would be such, atthe death of Mrs. Throop.

There are two reasons for not permittingthe money to be paid over to Mrs. Throop.She may have a child to survive her, whowould be entitled to the fund. If she hasnot, some one else than Mrs. Throop willbe entitled-viz : the persons who at herdeath will be the representatives of Mrs.Atlee. Cf. Jacobson's Estate, 6 Forum 14.

As the trustee is to keep the fund invest-ed, it should not be paid over to Mrs.Throop. Were there no trust, it shouldnot be paid to a life tenant who does nottender security for its forthcoming at herdeath.

Appeal dismissed.

. WILLIAMS vs. FARQUAHAR.

.,jectment- Sale of unseated land fortaxes-Act of 11farch 13, 1815-Return qftax collector on unseatcd land-Act (fApril 2!, 1856.

STATEMENT OF THE CASE.

A. B., County Treasurer of CumberlandCounty, sold at public sale, and conveyedby treasurer's deed, seven acres of land inMead township, assessed to William H.Farquahar (seated lands), to George N.Williams, in fee simple, under an act, en-titled "An Act to reduce the State debtand to incorporate the Pennsylvania R. R.Co.," passed the 29th day of April, 1844,for the sumn of SI0.00. The assessor didnot make his return on or before the 1stday of February, as required by the act of18.58, entitled "An Act relative to the saleof lands for the non-payment of taxes,"but made his return on the 28th day ofFebruary. The defendant, William H.Farquahar, knowing of this mistake in thereturn, has continued in possession of theland ever since the sale by the countytreasurer, and has permitted his two yearsof redemption to run out, without makingany effort to recover the title to the land.The plaintiff brings this action of eject-ment to recover the possession of saidland. Sale was made bytreasurerin June,1898.

WILLIS for plaintiff.

Cited Act of April 29, 1844, P. &L., Vol.IT, p. 4615. The statute was directoryonly as to time. Gearhart v. Dixon, 1 Pa.224 ; MeElliney v. Com., 22 Pa. 367; BigBlack Creek Co. v. Com., 94 Pa. 455; Par-sons v. Womberg, 130 Md. 561.

Statutes imposing public duties and fix-ing time of perfornmance are generally di-rectory. Little Beaver Twp. School Di-rectors' Election, 165 Pa. 233.

The sale passes a good title, notwith-standing irregularities antecedent to thejudgment, unless the owner has a good de-fence, which he has had no day in courtto assert. Scranton v. Miller, 2 Luz. Z. T.111.

The title is perfect after five years haveelapsed without action being brought.Parish v. Stevens, 3 S. & R. 296.

WILCOX for defendant.

Cited Act of 1858, P. & L., Vol. II, p.4622. The action is barred by the statute,as no claim was entered for more than fiveyears. Bobbv. Bowen, 9 Pa. 71 ; Sheik v.McElroy, 20 Pa. 25.

68 THE FORUM

The limitation commences from the dayof the sale. Bobb v. Bowen, supra.

The limitation will not avail the ownerof a tax title who has not taken possessionnor paid taxes, as against one who is inactual possession. Hale v. Rittenhouse, 19Pa. 305.

OPINION OF THE COURT.

The question in this case is, whetherthe plaintiff obtained a good title by thetax sale, upon which he could recover inthis action of ejectment. In theopinion ofthe court he did not.

The act of 1858, P. & L. vol. 2, p. 4622,requires that the returns from the collectorof taxes on unseated lands, and from ex-onerations required to be made in pursu-ance of the several provisions of the Act ofAssembly, approved April 22,1856, entitled"An Act relative to the sale of land forthe non-payment of taxes," sfall be goodand valid if made on or before the 1stday of February, in each and every year,instead of the first day of January as re-quired by that act.

This act of 1858 does not repeal act of1856 but simply extends the time onemonth. The act of 18.56 provides that re-turns made after January 1st shall not bereceived or be a lien upon real estate and thesame would apply to the act of 1858, as thestatute was mandatory and must be fol-lowed as to time, and if by accident orfrom other cause this duty had been ad-mitted it may be performed in a reason-able time thereafter, but no such accidentor other cause was shown here, there-

fore, the return should have been madepromptly on February 1st.

The statute of limitations passed April3, 1804, P. & L., vol. 2, p. 4638, which pro-vides no action for recovery of said landsshall lie unless the. same be broughtwithin five years after the sale of theland, as aforesaid, does not apply as thecases make a distinction between anaction by the original owner of the landand the purchaser at the tax sale. Thereis a line of cases in Parish v. Stephen, 3S. & R. 297; Bobb v. Bowen, 9 Pa. 71;Johnston v. Jackson, 70 Pa. 165, holdingthat the owner of the land cannot bringaction after the five years are elapsed asprovided by act of 1804, but here theoriginal owner as defendant was in pos-session of the land and could only be dis-possessed by force of a better title if any-

thing was predicated of the sale of 1898, asdivesting that title and reducing the occu-pants to the position of mere intruders;we have seen that sale had not that effect.it being for want of requisites withouteffect. The holder of the title to the land,by the tax sale, may bring an action atany time, but lie must show that all therequisites of a valid sale have been com-

plied with. This is the rule laid down inBigen v. Karns, 4 W. & S. 137; Hole v.Rittenhouse, 19 Pa. 305, and 57 Pa. 13, ac-cording to the acts and decision laid downjudgment must be for defendant, as salewas made on an illegal return.

Praintiff non-suited.LOURIMER, J.

OPINION OF THE SUPREME COURT.

The authority to sell unseated land fortaxes assessed upon it is conferred by theAct of March 13th, 1815. 2 P. & L. 4625.Such sales are to be made for taxes thatshall have "remained due and unpaid forthe space of one year before." The modeof making them is prescribed with someparticularity.

The 2d section of the Act of April 21,1856, 2 P. & L. 4622, requires tax collectorsto make their returns of collections oftaxes on unseated land on or before the 1stof January in each year, and declares that"if not so made * * * such returnsshall not thereafter be received, nor shallsuch taxes be a lien on real estate." As-sessors and collectors, and their bail, are,however, liable for not making the returnswithin the tine. The 3d section of thesame act requires collectors, claiming ex-onerations, to return such exonerations onor before the 1st of January in each year.The commissioners are forbidden to grantany exonerations after that time, and thecounty treasurer is directed not "to sellany lands which shall have been returnedand taxes exonerated, after thesaid time."The Act of February 23d, 1858, 2 P. & ,.4622, enacts that the "returns for the col-lection of taxes on unseated lands and forexonerations" "shall be good and valid, ifmade on or before" the 1st of February, ineach year, instead of the 1st of January.

It is the intention of these acts to condi-tion the power of the county treasurer tosell unseated land, upon the return of thetaxes for collection, on or before the 1stday of February. If they are not then re-

THE FORUM 69

turned, no subsequent exoneration of thecollector is permissible, and the tax notbeing a lien on the land, the collector, orhis bail, is personally liable. The require-ment concerning the time of the return ismandatory. Vandermark v. Phillips, 116Pa. 199.

The 2d section of the Act of 1856, ex-pressly refers to unseated land only. The3dsection concerns any taxes whatever, andforbids the sale of "any lands" which shallhave been returned, and taxes exonerated.It was understood in Vandermark v. Phil-lips, 116 Pa. 199, that "any lands" em-braced "seated" lards.

It is the duty of the tax collector to col-lect taxes levied on seated land by distress,if possible. If he can find no goods any-where, he may seek and obtain an eN-oneration. but he must do this on or beforeFebruary 1st of the year following that inwhich the tax is assessed. If he returnsthe tax after that date, and obtains an ex-oneratiob, it is "not" lawful * * * forthe county treasurer to sell any lands. Ifhe returns the tax after that date, butdoes not apply for or obtain an exonera-tion, the treasurer must a fortiori beequally powerless to sell the land. Itwould be absurd to hold the land dis-charged when the collector is also dis-charged, and to refuse to hold it dischargedwhile he is liable.

As the treasurer was prohibited by the3d section of the Act of 1856 from sellingthe land, the attempted sale was void, andFarquahar was neither bound to, nor ableto, redeem. His title had not been evenprovisionally divested.

The fiveyears' limitation of the 3d sec-tion of the Act of A.pril 3d, 1804, is a lim-itation upon the former owner and notupon the purchaser at the tax sale. Thepurchaser can bring suit at any time, un-less a twenty-one years' adverse possessionof the former owner has intervened. Mc-Reynolds v. Longenberger, 57 Pa. 13;Bigler v. Karns, 4 W. & S. 137; Rupert v.Velps, 7 Super 209; Cuttle v. Brockway,24 Pa. 147; Alexander v. Bush, 46 Pa. 62;Lackawanna Iron Co. v. Fales, 55 Pa. 90.

Judgment affirmed.

WM. TILLER vs. SARAH TILLER.

Confession of judgment-Effect of failureto record assignment of judgment-Riqhtsq of attachment-execution creditors.

STATEMENT OF THE CASE.

A was the owner of a house and lot andcontracts debts for groceries to B. Shortlyafterwards she confesses a judgment to C,her son. H loans money to C and takesan assignment of the judgment of Cagainst A as collateral security but doesnot enter the assignment at the time. E,a judgment creditor of C, issues an at-tachment of execution against C and at-taches this judgment. This judgment ofE is for a pre-existing debt. F loansmoney to C without any actual notice ofthe assignment and attachment of thejudgment against A except what mightbe presumed from the record of the attach-ment and takes an assignment of the judg-ment and enters his assignment. ThenH enters his assignment on record.F issues an execution and on this thehouse and lot of A is sold and the moneyis in court for distribution. B alleges thatthe judgment given by A is fraudulent.Question: In either case, who will beentitled to the proceeds of the sale?

HELLER for Ballentine.Creditors are entitled to be paid as their

claims accrue, and a debtor has no moreright to postpone payment for his own ad-vantage than to defeat it altogether, and apurpose to hinder and delay a creditor isfradulent, although debtor may honestlyintend to ultimately make payment of allhis debts. Am. & Eng. Eue. Law, vol.14, p. 244.

A person taking a confession of judg-ment from a failing debtor, must, whencalled upon by creditors, satisfactorilyshow the consideration on which it isfounded, and by a failure to do so, it maybe inferred that the judgment was with-out consideration and fraudulent. Ditch-burn v. Jermyn & Glenwood Co. Opera-tive Association, 13 Pa. C. C. R.-p. 1.

REESER for Fearne.The statute 13 Eliz. c. 5 does not operate

to defeat any estate or interest conveyedupon good consideration and bona fide toany person not having at- time of suchconveyance notice of fraud. Tiffany onSales, p. 125.

A purchaser parting with value uponfaith of vendor's possession and ownershipof property, acquires not only the legalbut an equitable title superior to that of acreditor. Gudley v. Wynant, 23 How. U.

70 THE FORUM

S. 501; Jones v. Simpson, 116 U. S. 609;Scott v. Hilager, 14 Pa. 238.

Property iii hands of an assignee, undera valid assignment, cannot be attached.Colby v. Coats, 6 Cash. (Mass) 553; Am. &Eng. Enc. Law, vol. 3, p. 212.

The right of creditors of a fraudulentvendor to avoid a sale cannot be exercisedagainst one, who, without notice of thefraudhas in good faith purchased the prop-erty from the fraudulent vendee. Bean v.Smith, 2 Mason (U. S.) 252; Fletcher v.Peck, 6 Cranch (U. S.) 133; Simms v.M1orse, 4 Hughs (U. S.) 579; Freiburg v.Dreyfus, 135 (U. 8.) 478.

OPINION OF THE COURT.

The court here is asked to determine therespective rights of the parties in this caseto the distribution of the proceeds of thesale of property under an execution bythe sheriff, which sum has been paid intocourt by him.

B claims priority, alleging that the con-fession ofjudgment by A to C was madewith the intent and purpose to hinder,delay, and defraud A's creditors, and isas against him void and of no effect. Bis a simple contract creditor. Prior to theact of 1897, a simple contract creditor hadno standing or rights in law to demand anissue to try the bona fides of a judgmentconfessed by his debtor. Young v. Sailer,11 W. N. C. 282; Ludlow v. Dutton, 1Phila. R. 226. Nor had he any rights inequity, it being said, "A rule of procedurewhich allowed any prowling creditor, be-fore his claim was definitely establishedby judgment, and without reference to thecharacter of his demand, to file a bill* * *.* to impeach transfers or to in-terfere with the business affairs of thealleged debtor, would manifestly be sus-ceptible of the grossest abuse." Artman v.Giles App., 155 Pa. 417. This disabilitywas removed by the act of July 9, 1897,above referred to, which gives the cred-itor of the person or party against whomsuch judgment has been confessed, theright to apply by petition and contest thevalidity of any judgment so confessed,provided the creditor applying for suchrule has reason to believe such judgmentis invalid and fraudulent, &c. Has B es-tablished fraud? Fraud is not presumed-it is a matter to be proved, and must beproved by the party who alleges it. Thereis no evidence before the court of the insol-vency of A or that she wasin failing circu m-stances at the time this judgment was

given, and it is admitted also that thejudg-ment was in payment of an actual existingdebt due by A. The law is clearly definedand laid down that to impeach the pay-merit or security of an actual debt thereshould be evidence tending to show either:first, some other benefit or advantage tothe debtor beyond the discharge of hisobligation; or, secondly, some other bene-fit to the creditor beyond mere paymentof his debt. The rights of debtors andcreditors in this regard are very fully re-viewed in the case of Warner v. Zierfuss,162 Pa. 360, and it is unnecessary to dwellon them at this time,-suffice to say thatafter a careful consideration and applica-tion of the principles therein contained tothe evidence adduced, we are irresistiblydrawn to the conclusion that B's conten-tion cannot be supported. He stands in theposition of a simple contract creditor, andpossesses the rights of a simple contractcreditor only.

As appears from the facts, C assignedhis judgment v. A to H1. It is not dis-puted but that this assignment was regu-lar and was made for a valid and sufficientconsideration, but E, the attachment-execution creditor of C, contends that heshould have priority over H in the dis-tribution of the proceeds of this sale be-causehehad neither actual norconstructivenotice of the assignment of this judgmentby C to H; that H, as against him, wasbound to record his assignment and havethe same appear of record, and that by hisfailure to do so he is postponed in hisrights to E. It is an early and wellrecognized principle that the object ofspreading an instrument on a public recordis to give constructive notice of its con-tents to all mankind, and the legislature,by means of recording acts from time totime has provided means for the accom-plishment of this purpose. But these actswere passed for the protection of bona fidepurchasers and subsequent assignees forvalue,-to protect them from the perpe-tration of fraud and imposition by thosehaving the evidences of ownership, andalthough such recording is discretionaryunder the acts, yet, if by reason of thefailure, as in this case, of an assignee torecord his assignment, the assignor isenabled to perpetrate a fraud on a subse-quent innocent purchaser for value, who,

THE FORUM 71

by the exercise of proper diligence, couldnot otherwise know of the prior assign-ment, it is clear that the prior assigneewould be postponed, on the well estab-lished principle, that unless there has beensupineness on the other side, negligencein the enjoyment of property, or theexercise of a right, is cause of redress inequity and at law. This principle isdrawn in part from the legal maxim thata man is bound to enjoy his property soas to do no injury to another which canbe prevented, and in recognition of thejustice of the same, it has been held inseveral cases that the assignee of a judg-ment, * * * who fails to have his as-signment noted on the record, will bepostponed to a subsequent assignee of thejudgment for value, and without notice.Fisher v. Knox, 1. H. 622; Sharp v.Hutchison, I Kulp 409, and cases thereincited. Is then, E a bona fide purchaserfor value within the meaning of the re-cording acts? E's debt has already beenincurred, the consideration has been paid,he has surrendered no security, he is notparting with anything on the strength ofhis execution and is receiving nothing,-hehas done no act which will leave him in aworse position than before. See 24 Am. &Eng. Enc. Law, p. 138, and casescited. Not being a purchaser for valueand within the protection of the record-ing acts, E is regarded as acquiring suchrights only as his debtor had,-he claimsunder but not through him. He can ac-quire no greater right than was vested inthe latter at the time the writ was servedupon the garnishee. By the assignment,the equitable title and right to the moneyrepresented by the judgment vests in theassignee,-all that can be seized in execu-tion is the right which remains in theassignor, and this is nothing more thanthe mere naked legal title subject to theequitable interest of the assignee. Thisprinciple is laid down in the case ofJarecki M'f'g Co. v. Hart Bros, 5 Pa. Sup.Ct. 424, and it extends to the rights of allpersons interested in the fund at the timethe attaching creditor seeks to appropriateit, whether as joint owners, co-partners, orassignees of the debtor, and the attachingcreditors right is subordinate to all bonafide claims existing before the writ isserved, as above stated. See also Pelman

v. Hart, 1 Pa. 263; Noble v. Thompson OilCo., 79 Pa. 354.

As to the right of priority of E over F.By the attachment-execution, E becameentitled to whatever funds due to C afterthe satisfaction of H's claim. E's rightsbecame fixed and vested by the service ofthe process, and C could not by his ownacts afterwards affect or partially divestthem. C could not by assignment to Fconfer better rights on his assignee thanhe himself possessed.

It is therefore decreed, that the fund inhand shall be applied to the satisfactionof the claims, 1st, of H.; 2nd, of E; 3rd, ofF, and 4th, to B. HEDGES, J.

OPINION OF THE SUPREME COURT.

Ballentine is a creditor of Tiller, withoutjudgment. That, prior to the At of July9th, 1897, (3 P. & L, 359), he could not haveintervened to set aside the judgment ofSarah Tiller, or to arrest its execution, andthe distribution of the money produced bythe execution sale, sufficiently appears inArtman v. Giles, 155 Pa. 417. That actprovides for the arrest of an execution ona judgment where bad faith, with respectto creditors of the defendant therein, isalleged, and for a distribution of the pro-ceeds of sale among honest judgments tothe exclusion of dishonest ones. Thoughseveral courts have denounced this act asunconstitutional, its agreement with theConstitution of Pennsylvania must be ac-cepted, since Page v. Suspender Co., 191Pa. 511.

Ballentine, however, has not proceededunder this act. He has not attempted toinquire into the bonafides of the judgmentprior to the issue of a fi fa, nor pending afifa. The sheriff's sale has taken place,and he, for the first time, intervenes, inorder to demand a share in the fund pro-duced by the sale. The object of the actof 1897 is to prevent a judicial sale on animpeachable judgment, not to enable acreditor without lien or judgment, to takea portion of the proceeds. It was errortherefore for the learned court below toallot to Ballentine any portion of the fund.

The fund was produced by the fi faissued on the judgment. The ownershipof this judgment is claimed by three per-sons; by John Hope, in virtue of an as-signment to him byWm. Tiller; by Jacob

72 THE FORUM

Emory, who has attached it for a debtowed by Win. Tiller, and by IsaiahFearne, to whom Win. Tiller has made asecond assignment of the judgment.

Hope, the first assignee, took the judg-ment as security for a loan synchronouslymade. He was, therefore, a bona fidepurcha:ser of it. He ought to have causedthe assignment to be docketed with thejudgment in order to apprize others whomight contemplate buying it from, or lend-ing upon it to, the same assignor, Tiller,that it was no longer in Tiller's disposi-tive power.

In ignorance of the assignment to Hope,Emory attached it in execution. If thisgave him the status of a purchaser forvalue, the prior assignment would be, asto him, void. We follow Judge Endlich,in Bechtel v. Lauer Brewing Co., 21 Pa.C. C. 449, in holding that he did not gainthis status, and that the prior assignmentremained valid as to him.

Fearne subsequently lends money toTiller and the judgment is simultaneouslyassigned by the latter to him. He is apurchaser for value; and, as such, wouldhave a better right to the judgment thanHope, did the contract concern themalone. Fisher v. Knox, 13 Pa. 622; Camp-bell's Appeal, 29 Pa 401; Fraley's Appeal,76 Pa.42; 10 P. & L. Dig. Decisions, 165.2.

But, had there been no assignment toHope, would Fearne be entitled to themoney in preference to Emory? It is not

necessar, that the attaching creditorshould take any particular measures toinform others that he has attached. Whena fi fa reaches the sheriff's hands, thewhole world is affected by it. A bonafidepurchaser, subsequently, of a chattel fromthe defendant, could buy subject to thelien of thefifa. A purchaser of A's claimagainst B, would take it subject to a priorexecution attachment of it by a creditorof A, whether he knew of the attachmentor not. Were the law otherwise, the at-taching creditor could always be thwartedby the defendant's finding some bona fidepurchaser for value.

The facts of the case, therefore, exhibitthese relations of the parties. The assign-ment to Hope is good, as respects theEmory attachment; and the Emory at-tachment is good, as respects the Fearneassignment, but the Hope assignmentwould be bad, as respects the Fearne as-signment. The result must be, that theHope assignment will prevail. In com-petition among liens, when A's is betterthan B's, and B's better than C's, A's isentitled to be first paid, though A's is in-ferior to C's. 1 Liens, 297. The sameprinciple is the key to the problem be-fore us.

The decree of the learned court belowmust be so far modified as to give anyresidue, after satisfying Hope, Emory andFearne, in the order of their names, to thedefendant in thejudgment.

Modified judgment affirmed.