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value to the defendant, and the rule to the abstract both are taken to evidence show cause why the execution should not the transfer. Shaver's guaranty is also be stayed, must therefore be discharged. so indorsed, and the abstract, assignment Rule discharged.

and guaranty together, as if one instru

ment, evidence his contract, The judgSUPREME COURT.

ment is particularly described, and so is

the court where it is entered : the real Cooper v. Shaver.

debt, date of interest, and plaintiff's costs,

are stated; then follow the assignment to The following indorsement on the abstract of proceedings in a judginent in the Common Pleas. viz.: "I author. Cooper, and Shaver's guaranty of the colize any attorney or prothonotary to enter judgment against me for ihe within amount,"

lection. Hypercriticism would fail to exauthorize the entry of judgment.

clude understanding that Shaver guaranError to the Court of Common Pleas of teed collection of the judgment described Crawford county:

in the abstract, and authorized any attorOn the 8th of December, 1873, Orin

ney or prothonotary to enter judgment Conner entered judgment against H. Con- against him for the amount of that judgnor for $225, and on the rith of January, ment. 1876, assigned in the record this judgment

For present purposes let it be underto J. P. Ames, who on the 20th of Jan- stood that Shaver is not bound to pay uary, 1876, assigned the judgment to Geo.

the money unless it be shown that it could Markham, and on the 24th of April, 1876, not have been collected from the defenthe latter person and one J. C. Looker as- dant in the judgment by due diligence. signed the judgment to Ezra Cooper. The pending question is not one for stay This latter assignment was made on the of execution until Shaver's liability be deback of the prothonotary's abstract. In- termined, nor for an issue to try that ; dorsed on the same abstract appears the but whether the warrant of attorney is following words:

void. "For value received from E. Cooper, I The defendant says truly, that the letter guarantee the collection of the within

of the Act of February 24, 1806, only auamount, waiving all exemption laws, and thorizes the prothonotary to enter judgwithout stay of execution, and I authorize ment wliere judgment is confessed in the any attorney or prothonotary to enter instrument of writing, or where the injudgment against me for the amount. strument contains a warrant for an attorApr., 1876. CLARK SHAVER."

ney at law or other person to confess judgOf the words "Apr., 1876," there ap- ment. But if the warrant authorizes the pears in the original papers to be an at- prothonotary to enter judgment for the tempt at an erasure.

amount named in the instrument, it is Upon this paper E. Cooper procured withi: the spirit of the statute, a chief the entry by an attorney of the court be- object of which was to enable parties to low of a judgment against Clark Shaver dispense with the services of an attorney. for the amount of the original judgment Before the date of the statute it had long upon an ordinary narr., and without the been within the power of attorneys to

| assignments of breaches.

1

confess judgments and cause them to be The defendant asked the court below to entered, as it has been since. strike off the judgment as having been

Attorneys are officers of the court, and entered without authority.

before admission take a prescribed official The rule to strike off the judgment was oath. In the sections of the Act of 1834 made absolute, and judgment stricken off regulating their admission, prescribing

1 at costs of plaintiff.

penalties for misbehavior in office, and deThe plaintiff

' thereupon took a writ of fining their powers and duties, they are error, assigning the striking off of the styled attorneys; but it is plain that word judgment against Shaver as error.

means attorneys at law. The context deDecember 30, 1882. TRUNKEY, J. | finitively fixes the meaning. By law, in

It has not been pretended that title is certain cases, the prothonotary may enter the judgment set forth in the abstract is i judgments, attorneys may confess judgnot vested in Cooper. But the conclusion ments, and the courts are defined having

1 that he has such title is reached only by jurisdiction of such judgments. The proreading the abstract with the assignment. thonotary is an officer of the court, as well Standing alone the assignment would be known to be be such as the judges. void for uncertainty; being indorsed upon

In the instrument signed by Shaver, the

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meaning of the words, “I authorize my and whether there had been irregularities attorney or prothonotary to enter judg- in the procedure for the amendment is a ment against me,” is determined by the matter of no concern in the execution.context, keeping in view the laws which the alleged irregularities were prior to define in what courts judgments may be the final hearing and adjudication in the confessed or entered, and what officers appellate court, and if it be conceded that may confess or enter them. The word the court below erred in making the attorney as certainly means an officer of amendment, the time for its correction the court as does prothonotary, and the was at or before that hearing; the decree, warrant authorizes any attorney of the as affirmed, is valid until vacated by the Court of Common Pleas of Pennsylvania to confess judgment, or the prothonotary The bill was against Joseph Church and of any such court to enter judgment, as Charlotte, his wife, for a decree that they clearly as if written in so many words. convey to the plaintiffs certain undivided The word confess is not used, but the pro- interests in a tract of land, in accordance thonotary is authorized to enter judgment, with an alleged trust created before and which indicates that the attorney shall at the time the legal title to the land was reach the same end by the proper means vested in said Charlotte. Joseph Church in performance of his duties.

was a necessary party, and it appears that The judgment entered April 14, 1882, he was an active party in contesting the is reversed, and the judgment confessed plaintiff's demand. The result was a deby virtue of the warrant of attorney, en- cree that Charlotte Church held the legal tered December 13, 1877, is reinstated. title to the land ; that the defendants

should convey said interests to the equitChurch's Appeal.

able owners thereof, and that the defendThe court below may amend its record after a certiorari ants pay the costs. has issued to remove it to the Supreme Court.

The Act of 1842 provides that no perWhen an attachment would lie agaiust a party for nonperformance of a decree in equity, it is also the proper son shall be arrested or imprisoned on any remedy to enforce the payment ofthe costs. In such a case it is not contravention of the Act of July 12th, 1842. civil process issued in any proceeding for

Appeal from the decree of the Court of the recovery of money due upon a judg. Common Pleas of Luzurne county. ment or decree founded upon contract, or

A bill filed against Charlotte due upon any contract, or for the recovery Church and Joseph Church, her husband, of damages for the non-performance of a to have the former declared a trustee as contract. This suit was not for the reto certain land. The husband had no covery of money, but for the enforcement interest. A decree was entered in favor of a trust, and, therefore without the of the plaintiffs, with costs, from which statute. It may be that the trust grew an appeal to the Supreme Court was taken out of a contract, and that the suit was by the defendants. After the certiorari akin to a proceeding for specific perforinhad gone out, and before the return day, ance, yet it is not within the spirit of the the decree was amended by the court be- statute, for breaches of duty by trustees low, and, being certified in this shape, are excepted out of its operation : Chew's was affirmed by the Supreme Court.-Appeal, 44 Pa. St. 247. The record was in due time remitted to Where the decree against a party is the Common Pleas, about a year after, the founded upon his tort, or upon his breach costs not being paid, an order for an at- of duty as a trustee, tlie costs imposed tachment for contempt was duly made upon him follow his wrongful acts. In against Joseph Church. His wife had an action for recovery of money founded died some time previously. This order upon a contract, the costs are of the same was the subject of the assignment of error. nature, and the defendant is not liable to

May 7, 1883. TRUNKEY,J.-From the arrest for either debt or cost : Pierce z'. final decree the respondents appealed, and Scott; 40 Legal Intell. 320. But where filed the certiorari in the Court of Com- the party is liable to arrest to enforce the mon Pleas on March 1oth, 1877. After- payment of money, or the performance wards and before the return day of the of a specific thing, he is, also, for the writ, said decree was amended in the costs taxed against him in the judgment court below, and the record, setting forth or decree. the decree as amended, was certified and The order awarding an attachment is returned. That is the decree which was affirmed, and appeal dismissed, at the affirmed and remitted for enforcement, costs of appellant.

was

VOL. IV.

No. 28

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YORK LEGAL RECORD. All these reports were duly presented

to the grand jury for their approval by THURSDAY, SEPTEMBER 13, 1883.

the counsel representing them at April QUARTER SESSIONS.

Sessions, 1883, and, after hearing testimo

ny and the counsel interested, the grand Q. S. of

Lancaster County. jury on April 19, 1883, returned to the Bridge in Rapho and West Hempfield Twps. Court the report of the re-viewers “ap

proved," and the reports of the viewers Bridges--Reports of Views--Grand

and re-re-viewers "not approved.” Jury. The action of the Grand Jury upon the reports of view.

And, on April 24, 1883, on motion of ers, re-viewers and re-re-viewers of a bridge determines the proceedings. Hence, when one of the reports is

E. D. North, Esq., a rule was grazted to proved by that body, the Court has no right to set aside their action, unless for irregularity or want of jurisdiction

show cause why the action of the grand in the Grand Jury.

jury on the above reports should not be Bridge view, re-view and re-re-viewers. set aside and annulled, and the reports be

Rule granted April 24, 1883, to show referred to another grand jury. cause why the action of the grand jury, Section 35 of the Act of 13th of June, on the reports made on the several views, 1836, relative to roads, highways and should not be set aside.

bridges, declares that : “When a river, August 18, 1883. LIVINGSTON, P.J.- creek or rivulet, over which it may be At November Sessions, 1881, a petition necessary to erect a bridge, crosses a pubwas presented to the Court and viewers lic road or highway, and the erecting of were appointed to view a site for a bridge such bridge requires more expense than over "Big Chickies Creek,” between the it is reasonable that one or two adjoining townships of Rapho and West Hempfield, townships should bear, the Court having on the road leading from Silver Spring jurisdiction as aforesaid shall, on the reto Mount Joy, in Lancaster county. The presentation of the supervisors, or on the viewers reported in favor of a bridge, fix- petition of any of the inhabitants of the ed its location, and viewed and reported respective townships, order a view in the the changes necessary to be made in the manner provided for in the case of roads : said road to make the proper connection and if, on the report of viewers, it shall with such bridge. This report was con- appear to the Court, grand jury and comfirmed nisi January 16, 1882.

missioners of the county, that such bridge On April 17, 1882, a petition for a re- is necessary, and would be too expensive view was filed and presented and re

for such township or townships, it shall viewers were appointed. They reported be entered on record as a county bridge.'' in favor of a bridge also, but fixed its lo

Section 37 of the same Act declares cation at a point different from that report that: “Viewers of the site of a bridge, ed by the viewers, making no change in appointed as aforesaid, shall have authorithe road. Their report was confirmed

ty by virtue of their appointment to renisi August 21, 1882.

port also whether any change in the And, on November 20, 1882, a petition course or bed of the road to be connected was filed and presented, and re-re-viewers therewith will be necessary in order to were appointed, who reported also in fa- the erection of such bridge at the most vor of the erection of a bridge, and adopt- suitable place, or at the least expense, or ed the location reported by the first view in the best manner; and the same being ers, making the changes in said road approved by a majority of the commisnecessary to connect it with such bridge sioners of the county, and also by the when erected. Their report was con

Court, such road shall be altered acfirmed nisi January 15, 1883.

cordingly.” And, by the same Act, the Court is authorized to appoint re-viewers.

SUPREME COURT. etc., etc. Here three views were had, and three

City of Scranton v. Hill. reports made and submitted to the grand The plaintiff, while walking along the highway upon a

dark night, turned aside for the purpose of taking a foot jury, all favoring the erection of a bridge, path

which led through private property, and, by reason but one of them locating it at one point,

ded edge of a culvert and su:tained severe injury thereby.

It was in evidence that he was familiar with the condition the other two at a different point: the of the place, having habitually travelled that way about

fifteen years; and that, if he had not attempted to leave grand jury could approve but one report,

the street, the accident would not have occurred. HELD

that the municipality was not liable. one location or cite, and they after inves

Error to the Court of Common Pleas of tigation and hearing evidence, approved

Lackawanna county. the report of the re-viewers, as we have stated. Why should their action be set May 7, 1883 STERRETT, J.-The aside ? No testimony has been taken or plaintiff below was severely injured by presented, showing that they behaved falling from the end of the culvert conimproperly, or exceeded their jurisdiction structed under and across Main street, in passing upon these reports.

in the city of Scranton, and terminating

somewhat abruptly several feet beyond In the Pequea Bridge case, 18 Sm.427,

the northwesterly line of the street. From the Supreme Court says; It is evident that

a point on the same side of the street, a the Legislature intended that these three

short distance beyond the culvert, a foot bodies, the Court, grand jury and commissioners of this county, shall act as checks path diverged in the direction of plaintiff's

home. According to the uncontradicted upon each other in the necessary expen

evidence in the case, including his own diture of public money in the erection of county bridges. When either of them, testimony, he intentionally left the street therefore, have put their disapprobation

with the view of taking the path and fol

lowing it homeward; but, by mistake, he on record the proceeding falls.

turned off the street too soon, before he That, where a report of viewers re- had crossed the culvert and reached the commending a bridge was referred to a point where the path commenced, and

a grand jury, who approved it, the action of was thus led to the end of the culvert from the grand jury was set aside for irregu- which he fell. If he had not purposely larity, and the report referred to another gone beyond the line of the street, or had grand jury who reported “no bridge,” not turned off quite so soon, it is very the proceeding was set at an end, and re- evident he would have encountered no ferring the report to another grand jury danger. The unfortunate accident which was error. The dissatisfied parties should befell him resulted not from the want of have commenced anew. As there has

proper guards for the protection of those been no legal or reasonable ground shown passing and re-passing along the street, for annulling or setting aside the action of but solely from the fact that he had de

termined to leave and did leave the street the grand jury on the above reports, we need not discuss the propriety or legality

for the purpose above stated. In answer

to a question on cross-examination, the of referring such reports, where the ac

plaintiff himself says he would not have tion of the grand jury, as to them, has fallen if he had not turned off the street. been annulled or set aside, to another

It cannot be doubted that if he had ingrand jury. The rule inust be discharged, tended to keep within the lines of the and the action of the grand jury and their street and proceed thereon in the directreturn to the Court be permitted to stand.

tion he was going before he turned off Rule discharged.

to the left, he would have passed the cul

con

vert in safety and without being exposed without the limits of the highway when to any danger. The testimony is suscep- the accident occurred.” It was therefore tible of no other rational conclusion. It error to submit a question of fact of which follows, therefore, that in purposely leav- there was no evidence. The third, fifth, ing the public highway as he did he took seventh and eighth specifications of error upon himself the risk of every danger do not call for special notice. They are that beset his path; at least the city owed not sustained. The principle stated in him no duty of protection in his voluntary that portion of the charge covered by the effort not to follow the street, but to leave sixth assignment is perhaps unobjectionit in search of the foot path, through pri- able in the abstract; but it had no applicavate property, over which the municipal | tion to the facts of the case under considauthorities had no control whatever. Ineration, and was calculated to mislead the first point submitted by the defend the jury. ant below the court was requested to The first assignment of error being decharge as follows: “It being the undis- cisive of the case, we have deemed it unputed testimony in this case that the plain- necessary to elaborate the points involved tiff left the public street of his own accord, in the other specifications. for the purpose of entering upon a

Judgment reversed. foot path without the limit of the highway, that he did so for his own

COMMON PLEAS. venience, having full knowledge of the condition of the highway at that point | C. P. of

Chester County. and its connection with the foot path,

Perkins & Miller v. Nichols. that he did so at his own peril, and he

The omission of the middle letter in the name of a decannot recover." There was no conflict fendant, in the entry of a judgment, is fatal to the lien as

against subsequent judgment creditors, not having actual of testimony as to either of the allegations notice, and whose judgments are properly entered. of fact embodied in this proposition. I judgments, the fact that the initial is inserted in the index

Where the middle letter is omitted from each of two They were each clearly and conclusively

of the later judgment will not give it priority over the established by the testimony of the plain- King v. Miller, 2 Chester Co. R., 45, cited with approval. tiff himself and other witnesses. Nor can

Exception to return of sheriff, (Fi. Fa. there be any doubt as to the correctness

No. 90, October Term, 1882.) of the legal conclusions drawn therefrom.

The facts appear by the opinion of the We think, therefore, that the learned

Court. judge erred in submitting the facts to the jury, and in not affirming the points as

August 20, 1883. FUTHEY, P.J. The presented, without any qualification or

real estate of Jos. S. Nichols, of expression of doubt as to the correctness

Coatesville, was sold at sheriff's sale on a of the facts therein stated. The proposi- judgment held by Perkins & Miller. The tion was fatal to the defence, and conclu- property was purchased by them, and sive of the plaintiff's right to recover upon

their receipt taken by the sheriff for the the evidence before the court and jury. purchase money, as first lien creditors enFor reasons already suggested, the second

titled to receive the same. Their right to and fourth assignments of error are also thus receipt for the purchase moneys besustained. The undisputed evidence is ing disputed by Frederick A. Bickel, the that the end of the culvert from which the

next judgment creditor, the matter was

referred to an auditor, to whose report explaintiff below fell was several feet beyond ceptions have been filed. the limits of the street. There was no

appears that the judgment of Perkins testimony from which the jury could have & Miller was entered by the prothonotary found that the plaintiff had not passed on a bond and warrant of attorney to con

other

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