note on the strength of Keener's name, knowing him to be responsible. Even if this be so, appellant would not be relieved unless some fraud was practiced upon him. It is not pretended there was any collusion between Keener and Miller. The appellant knew when he signed the note that he was becoming bail for Miller. He knew the latter expected to raise money upon the note. If he had read the note he would have seen that Keener was the payee. This of itself was sufficient to put the appellant upon inquiry. It is true the note of Keener to his own order was regular, and might have passed from hand to hand without comment. But when Miller took such a note to appellant and asked him to become bail for him (Miller) upon it, the case is widely different. As before stated, the object of the transaction was to enable Miller to get the money from some one. From whom could he get it but Keener? The note was payable to his order, and could not be used without his endorsement. A man of ordinary intelligence could not have been deceived by Keener's name appearing on the note as maker. In any event there was such an irregularity as to put appellant upon inquiry. If he had made such inquiry he would have ascertained the truth, that Miller was to get the money from Keener, and that he (appellant) was becoming bail for Miller to Keener. That the appellant was an illiterate man and understood the English language imperfectly does not affect the case in the absence of any fraud practiced upon him. No one is bound to sign an instrument which he does not understand. If, how ever, he does sign it without asking to have it read or explained to him, he is bound by it: Thoroughgood's case, 17 P. F. S. 389. The Courts have gone far enough in relieving men of their obligations upon the plea of ignorance. The appellant intended to become bail for Miller. He might have known if he had asked the question, that the money was to come from Keener. This would have made it clear that the signature of the latter as maker was a blunder. We find no error in this record. Township Supervisors-Powers of-It is within the general powers of township supervisors to contract for the erection of a township bridge in place of one destroyed by a freshet. One who contracts with supervisors to build such bridge is not bound to inquire of the taxpayers whether they owe road taxes and whether they desire to pay them by work on the proposed bridge.Orland Township v. Martin, 14 Pittsburgh Legal Journal, 127. Affidavit of Defence--Sufficiency of-In passing on the sufficiency of an affi davit of defence, the material averments of fact therein must be accepted as trueJohn Ecoff et al. v. R. Gillespie, 14 Pittsburgh Legal Journal, 127. Replevin-Distress-Where a party claims title to goods under a sale upon a distraint for rent, he must prove affirmatively that the necessary legal notice of the distress was given to the tenant, and that the sale was duly advertised. The presumption that preliminary steps taken by a public officer in doing an act have been regular must be limited to his acts as an officer; it does not apply to his precedent acts done as an agent and it is incumbent upon the party asserting them to prove they were done.-Murphy v. Times Printing Association et al., 12 Luzurne Legal Register, 365. Satisfaction upon old mortgages.—The court has no power to decree the satisfaction of an old mortgage except upon proof either that the mortgage has been paid or that there has been sufficient lapse of time to raise a legal presumption of payment.-In the matter of the Petition of J. M. Broomall for the satisfaction of an old Mortgage.-1 Weekly Reporter 548. YORK LEGAL RECORD. and upon attempting to enter was forbid den to do so. Some abortive efforts at a No. 39 reconciliation were made which ended in a written missive making a peremptory demand for restoration to his married rights and winding up with the threat that if he could not be restored peaceably he would enter forcibly. This was followed by his arrest and binding over to keep the peace. Delaware County Commonwealth v. Springer. Husband and Wife-Right of wife to exclude her husband from her house. When a wife, who owns the house she lives in, forcibly prevents her husband from entering, he has no remedy except divorce. A husband will be required to give security to keep the peace when the wife testifies that she is afraid of bodily injury in case he succeeds in affecting a threatened entry to her house, the title to which she holds in her own name and from which she has excluded him. Surety of the peace in which Mrs. S. M. Springer was plaintiff and her husband George F. Springer, the defendant. her own name. The wife positively swears that she is in mortal dread of personal violence if he should attempt to forcibly enter her house and claims the protection of the law by requiring him to find sureties of the peace. The single question is, can a wife exclude her husband from the right to eat at her table, ride in her carriage, and sleep in her bed? While the relation of husband and wife continues in its normal condition and there is no rupture of those relations, or separation between the parties, it is admitted the husband possesses all those privileges. It appeared by the testimony taken on the hearing that while the defendant was absent on a gunning trip the plaintiff locked the house against him and on his return refused him admittance. That the plaintiff held the title to the real estate in The defendant endeavored to enter the house and, failing in that, sent a letter to the plaintiff which closed with the words, "I will give you until the first day of January next to complyif not settled by then I will take posses-ciety and enjoyment of her property, we sion peacefully if I can, forcibly if I must." The plaintiff then had him arrested and bound over by the Justice to keep the peace. November 5, 1883. CLAYTON, P. J.The wife of the defendant makes oath that he has threatened to forcibly break into her dwelling house. That she has separated from him and does not desire to cohabit with him. That the house in which she lives is her own separate property in which he has no interest whatever except such as the law bestows upon him as her husband. He, upon the other hand, alleges that he left his home temporarily upon a gunning excursion, with no intention of permanently separating from his wife. That upon his return in about a week or ten days he found the doors shut against him, However unwilling he may be to such a summary divorce from his wife's bed and board, and the comforts of her so can see no way to ensure him those rights and comforts by force. The right may exist but the remedy is by making himself agreeable to her rather than by resorting to force and arms. He perhaps may use actual force as between him and her so long as he does not injure her person, destroy her property or break the public peace. The latter is of paramount. importance and must be preserved regardless of the consequences to mere private rights. The difficulty here presented did not. exist at common law: it has grown out of the Married Woman's Act. If she is strong enough to turn her husband out of her house or, after he has voluntary left it, she can successfully bar the doors against him so securely as to require actual force and a breach of the public peace to effect an entrance, I am inclined to the opinion that his only remedy is to seek another home, invite her to share it with him, and upon refusal subject her to the pains and penalties of wilful desertion. In such case he could either refuse to contribute to her support, and preserve his right of courtesy in her estate by denying her a lawful divorce, or, if he desired it, he could successfully break the bonds of matrimony and seek a more congenial wife. In the Commonwealth v. McGolrick reported in 1 Del. Co. Rep. 446, we held the husband to keep the peace in a somewhat similar case. To attempt to break into her house by force would result in a forcible resistance by her, her friends, mercenaries and coadjutors. No personal valor of his could overcome such troops. This would require an accumulation of additional forces, munitions and muniments of war upon his part, ending in riot and bloodshed requiring peradventure the interference of the militia, army and navy of the Commonwealth. The dreadful consequences of matrimonial infelicity to the Old City of Troy admonishes us to nip the germ of strife in the bud by holding the husband to keep the peace and be of good behavior. The same question has recently arisen in England in another form. In that case the wife sought relief in Equity and the Chancellor interfered by injunction restraining the husband from entering his wifes house. The case is now up for review before the House of Lords, and a final decision is awaited by the profession with more than ordinary in terest. Let the defendant enter his own recognizance with surety in three hundred dollars to keep the peace, &c., and pay the costs. Record Liens--Omission of Initial Letter in Defendant's Name-Effect of. The omission of the middle initial of a defendant's name, in a mechanic's lien, will postpone the lien to others correctly entered with the initial. Distribution of proceeds of a sheriff's sale under lev. fa. sur. mort., No. 12, August Term, 1883. October 29, 1883. FUTHEY, P. J.—If we take the liens as they stand upon the records, with the facts agreed upon by the parties to this controversy, the mortgage of Stott is entitled to priority in the distribution. The land was conveyed by Stott to Reuben H. Irwin, and his mortgage taken at the time of the conveyance for $220, of which $120 was for purchase money of the land conveyed, and the mortgage was recorded three days after its acknowledgment. The mechanic's lien of Ash, which claims precedence, was entered against Reuben Irwin. Had this lien been entered against Reuben H. Irwin, which was the correct name of the owner of the land, it would, in the distribution, have taken precedence of so much of the mortgage of Stott as was not for purchase money. It was not entered, however, against Reuben H. Irwin, but against Reuben Irwin. The middle letter of the came nowhere appears, either on the lien, the record of it, or the index. The authorities hold that where a lien is thus defectively entered, while it may be, and generally is, good as between the parties, the omission of the middle letter of the defendant's name is fatal to the lien as against purchasers and lien creditors, unless they have actual notice. (Wood v. Reynolds, 7 W. & S. 406; Esther Hutchinson's Appeal, 11 Nor. 186; King v. King & Miller, 2 Ches. Co. Rep. 47; Perkins & Miller v. Nichols, Ib. 88; Trickett on Liens, sec. 55, 230, 231.) While in mechanics' liens, critical ac curacy is not always required and considerable latitude is allowed, yet there must be such convenient certainty as will give notice to persons interested. In Knabb's Appeal, 10 Barr, 186, the correct name of the owner appeared, both in the title of the claim and in the annexed bill, but the initial letter of the middle name was omittad in the body of the claim. It was held that this discrepancy was immaterial, the record being sufficiently certain in giving the correct name in the title and bill. In the case we are considering, as we have said, the correct name nowhere appears, and we see no reason, in the point here presented, for a distinction between mechanics' liens and judgments. It is claimed, however, on behalf of the mechanics' lien, that the debt of Stott was created before the entry of that lien and that therefore he did not rely on the record in making the loan. We do not see that this makes any difference. When Stott took the mortgage, the record contained no notice of the liens. True, he took it, so far as that portion of it not for purchase money is concerned, subject to any mechanic's lien which might exist by Act of Assembly, and which might be preserved and continued beyond the six months by filing and entering of record a lien, as provided for by the act. But at the expiration of the six months, a search would have failed to show any such lien against the defendant, and Stott had a right to conclude that the property, which he may have supposed free from lien when he made the loan, was, in fact, free, and never had been subject to liens other than that to himself. He had a right to rely upon the records, which when he took the mortgage, contained no notice of lien, subject simply to the evidence they might thereafter, in proper time, exhibit, that there was a statutory lien, which, in fact, preceded the mortgage. The records thereafter furnishing no evidence as would be notice to, or affect, a lien creditor, and there being no evidence of notice to Stott at the time of filing the mechanics' lien, he had a right to rely on the records as they stood when he made his loan, and to rest in the belief that he had a first lien, and to take no steps for his greater security. The moneys in the hands of the sheriff will be distributed and paid out as folfollows: To Rachel J. Stott, executrix of Joseph W. Stott, amount due on judgment sur mortgage and interest, To Thos. A. Ash, balance, C. P. of Total, Smythe v. Morgan. $278.12 20.56 $298.68 Luzurne County Certiorari--Justice of the Peace--Short Summons. A summons issued on the 23d, returnable on the 27th of the month, and was returned served on the 23d by leaving a copy at the dwelling house of the defendant in presence of another: HELD, that upon this state of the record this issuing of a short summons was irregular. September 17, 1883. RICE, P. J.-The summons in this case issued on April 23, 1883, and was returnable on April 27, 1883. There is nothing on the face on the transcript, nor in the precept, to indicate that the defendant below was a non-resident of the county. Indeed, the return to the summons indicates the contrary. It reads as follows: "Served the within summons the 23d day of April, 1883, by leaving a copy at the dwelling house of the defendant, James Smythe, in the presence of Mrs. C. M. Steele." Clearly, this was not a case for a short summons, and, therefore, the proceedings must be reversed. Ferris v. Leidler, 5 Phila. 529. If the defendant below was, in fact, a nonresident of the county, it should have appeared either on the transcript or the precept. We also suggest that the return itself does not follow the statute as strictly as it should. The proceedings were reversed and set aside. SUPREME COURT. Johnson's Appeal. An absolute transfer of a man's property in trust for the payment of his debts will be regarded as an assignment under the Act of 1836 without regard to the particular form of conveyance, but a mortgage in trust to pay off certain notes at the time to which the creditors had extended the time of payment is not an assignment., of 1846, without regard to the particular form of conveyance. But it must be an assignment or transfer of property. Judgments confessed to secure creditors are not such preferences as are avoided by the Act of 1843, although an assignment for creditors was intended and was short Appeal from Court of Common Pleas ly afterwards executed: Blakey's Appeal, of Montgomery county. 7 Barr 449. May 21, 1883. PAXSON, J.-The court below held that the mortgage in the controversy was not an assignment for the benefit of creditors within the meaning of the Act of June 14th, 1836, entitled "An Act relating to assignees for the benefit of creditors and other trustees." The court further ruled that it had no jurisdiction to distribute the money realized upon the mortgage from a sale of the mortgaged premises, but that the distribution must be made in Philadelphia where the trustee resides. If we concede the first proposition to be correct the second follows logically. We have therefore presented the single question whether the mortgage was in effect an assignment under the Act of 1836. The recent case of Wallace & Krebs vs. Wainwright & Co., 6 Norris 263, coutains much of the learning upon this branch of the law, and it would be useless to repeat what was there said, or to again review the authorities there referred to. In Wallace & Krebs the debtor assigned a number of judgments to his attorneys in payment of the creditors of the assignor, naming them. There was an implied trust, and that the assignment came within the Act of 1836. The principle to be deduced from the authorities is, that the form of the transaction is not material; the law cannot be evaded "by any sham departure from the general form of assignments:" Fallon's Appeal 5 Wright 235; hence an absolute transfer of a man's property in trust for the payment of his debts, must be regarded as an assignment within the Act We are of opinion that the mortgage in this case was not an assignment for creditors under the Act of 1836. That it was not intended as such by either the mortgagors or the mortgagee is too plain for argument. Nor has any of the creditors intended to be benefitted thereby ever treated it as such. The facts connected with it briefly stated, are, that Main Brothers, residents of Montgomery Co., becoming embarrassed in 1875, obtained an extension of twenty-four months from their creditors, and in order to secure their liabilities thus extended, executed estate to the appellant as trustee. the mortgage in question upon their real consideration of the mortgage was the extension, and had the extended paper been paid at maturity the condition of the mortgage would have been performed, and the mortgagors entitled to have satisfaction entered of record. The There is no room here for an allegation that the mortgage was intended as an evasion of the Act of 1836. It was a security for the creditors precisely as if the mortgagors had given indorsed paper or other personal security to procure an extension. Moreover, the mortgage was not an absolute transfer of any thing; it was a mere pledge of security. In this it lacks one of the essential features of assignments under the Act of 1836. For in all the instruments which have been held to be assignments for creditors there has been in some form an absolute transfer of the property. The assignor parted with all his title and control thereof, save alone the right to have any surplus re-conveyed to him that might remain after the payment of his debts. We are of opinion that the learned judge below ruled this case upon correct principles. The decree is affirmed and the appeal dismissed at the cost of the appellant. |