Графични страници
PDF файл
ePub

note on the strength of Keener's name, to come from Keener. This would have knowing him to be responsible. Even if made it clear that the signature of the latthis be so, appellant would not be reliev- ter as maker was a blunder. ed unless some fraud was practiced upon We find no error in this record. him. It is not pretended there was any

Judgment affirmed. collusion between Keener and Miller. The appellant knew when he signed the note that he was becoming bail for Miller.

Township Supervisors Powers of—He knew the latter expected to raise It is within the general powers of townmoney upon the note. If he had read the

ship supervisors to contract for the erecnote he would have seen that Keener was tion of a township bridge in place of one the payee. This of itself was sufficient to

destroyed by a freshet. put the appellant upon inquiry. It is true

One who contracts with supervisors to the note of Keener to his own order was

build such bridge is not bound to inquire regular, and might have passed from hand of the taxpayers whether they owe road to hand without comment. But when

taxes and whether they desire to pay Miller took such a note to appellant and

them by work on the proposed bridge.asked him to become bail for him (Miller)

Orland Township v. Martin, 14 Pittsupon it, the case is widely different. As

burgh Legal Journal, 127. before stated, the object of the transaction was to enable Miller to get the money

Affidavit of Defence--Sufficiency offrom some one. From whom could he

In passing on the sufficiency of an afiget it but Keener ? The note was paya of fact therein must be accepted as true

davit of defence, the material averments ble to his order, and could not be used without his endorsement. A man of or John Ecoff et al. v. R. Gillespie, 14 Pittsdinary intelligence could not have been burgh Legal Journal, 127. deceived by Keener's name appearing on

Replevin--Distress—Where a party the note as maker. In any event there claims title to goods under a sale upon a was such an irregularity as to put appel- distraint for rent, he must prove affirmalant upon inquiry. If he had made such tively that the necessary legal notice of inquiry he would have ascertained the the distress was given to the tenant, and truth, that Miller was to get the money

that the sale was duly advertised. from Keener, and that he (appellant) was The presumption that preliminary steps becoming bail for Miller to Keener. taken by a public officer in doing an act That the appellant was an illiterate man

have been regular must be limited to his and understood the English language im- acts as an officer; it does not apply to perfectly does not affect the case in the his precedent acts done as an agent and absence of any fraud practiced upon him. it is incumbent upon the party asserting No one is bound to sign an instrument them to prove they were done.—Murphy which he does not understand. If, how- v. Times Printing Association et al., 12 ever, he does sign it without asking to Luzurne Legal Register, 365.

, have it read or explained to him, he is Satisfaction upon old mortgages. — The bound by it: Thoroughgood's case, 17 P. court has no power to decree the satisF. S. 389.

The Courts have gone far faction of an old mortgage except upon enough in relieving men of their obliga- proof either that the mortgage has been tions upon the plea of ignorance. The paid or that there has been sufficient lapse

of time to raise a legal presumption of appellant intended to become bail for

payment.-In the matter of the Petition of Miller. He might have known if he had J. M. Broomall for the satisfaction of an asked the question, that the money was old Mortgage.-1 Weekly Reporter 548.

VOL. IV.

No. 39

YORK LEGAL RECORD. | and upon attempting to enter was forbid

den to do so. Some abortive efforts at a THURSDAY, NOVEMBER 29, 1883.

reconciliation were made which ended in

a written missive making a peremptory QUARTER SESSIONS.

demand for restoration to his married Q. S. of

Delaware County rights and winding up with the threat that Commonwealth v. Springer.

if he could not be restored peaceably he

would enter forcibly. This was followed Husband and Wife-Right of wife to ex

by his arrest and binding over to keep the clude her husband from her house.

peace. When a wife, who owns the house she lives in, forcibly prevents her husband from «utering, he has no remedy The wife positively swears that she is except divorce.

in mortal dread of personal violence if he A husband will be required to give security to keep the peace when the wise testifies that she is afraid of bodily should attempt to forcibly enter her house injury in case he succeeds in affecting a threatened entry to her house, the title to which she holds in her own name and claims the protection of the law by and from which she has excluded him.

requiring him to find sureties of the Surety of the peace in which Mrs. S.

peace. M. Springer was plaintiff and her husband George F. Springer, the defendant.

The single question is, can a wife exIt appeared by the testimony taken on

clude her husband from the right to eat the hearing that while the defendant was

at her table, ride in her carriage, and absent on a gunning trip the plaintiff lock- sleep in her bed? While the relation of ed the house against him and on his re

husband and wife continues in its normal turn refused him admittance. That the condition and there is no rupture of those plaintiff held the title to the real estate in relations, or separation between the parher own nanie. The defendant endeavor- ties, it is admitted the husband possesses ed to enter the house and, failing in that,

all those privileges. sent a letter to the plaintiff which closed However unwilling he may be to such with the words, “I will give you until a summary divorce from his wife's bed the first day of January next to comply- and board, and the comforts of her soif not settled by then I will take posses- ciety and enjoyment of her property, we sion peacefully if I can, forcibly if I can see no way to ensure him those rights must." The plaintiff then had him ar- and comforts by force. The right may rested and bound over by the Justice to exist but the remedy is by making himkeep the peace.

self agreeable to her rather than by reNovember 5, 1883. CLAYTON, P. J.-sorting to force and arms.

He perhaps The wife of the defendant makes oath may use actual force as between him and that he has threatened to forcibly break her so long as he does not injure her perinto her dwelling house. That she has son, destroy her property or break the separated from him and does not desire public peace. The latter is of paramount to cohabit with him. That the house in importance and must be preserved rewhich she lives is her own separate pro- gardless of the consequences to mere perty in which he has no interest what- private rights. ever except such as the law bestows upon The difficulty here presented did not him as her husband.

exist at common law : it has grown out He, upon the other hand, alleges that of the Married Woman's Act. If she is he left his home temporarily upon a gun- strong enough to turn her husband out of ning excursion, with no intention of per- her house or, after he has voluntary left manently separating from his wife. That it, she can successfully bar the doors upon his return in about a week or ten against him so securely as to require actdays be found the doors shut against him, ual force and a breach of the public

C. P. of

peace to effect an entrance, I am inclined

COMMON PLEAS. to the opinion that his only remedy is to

Chester County seek another home, invite her to share it with him, and upon refusal subject her to

Stott v. Irwin. the pains and penalties of wilful deser- Record Liens--Omission of Initial Lettion. In such case he could either refuse ter in Defendant's NameEffect of. to contribute to her support, and preserve

The omission of the middle initial of a defendant's his right of courtesy in her estate by name, in a mechanic's lien, will postpone the lien to

others correctly entered with the initial. denying her a lawful divorce, or, if he desired it, he could successfully break the

Distribution of proceeds of a sheriff's bonds of matrimony and seek a more con

sale under lev. fa. sur. mort., No. 12, Augenial wife.

gust Term, 1883. In the Commonwealth v. McGolrick October 29, 1883. FUTHEY, P. J.-If reported in 1 Del. Co. Rep. 446, we held we take the liens as they stand upon the the husband to keep the peace in a some

records, with the facts agreed upon by the what similar case. To attempt to break parties to this controversy, the mortgage into her house by force would result in a of Stott is entitled to priority in the disforcible resistance by her, her friends, tribution. mercenaries and coadjutors. No person- The land was conveyed by Stott to al valor of his could overcome such Reuben H. Irwin, and his mortgage taken troops. This would require an accumu

at the time of the conveyance for $220, of lation of additional forces, munitions and which $120 was for purchase money of muniments of war upon his part, ending the land conveyed, and the mortgage was in riot and bloodshed requiring peradven- recorded three days after its acknowledg. ture the interference of the militia, army ment. The mechanic's lien of Ash, which and navy of the Commonwealth. The claims precedence, was entered against dreadful consequences of matrimonial in- Reuben Irwin.

Reuben Irwin. Had this lien been enfelicity to the Old City of Troy admon- tered against Reuben H. Irwin, which ishes us to nip the germ of strife in the was the correct name of the owner of the bud by holding the husband to keep the land, it would, in the distribution, have peace and be of good behavior.

taken precedence of so much of the mortThe same question has recently arisen gage of Stott as was not for purchase in England in another form.

In that money.

It was not entered, however, case the wife sought relief in Equity and against Reuben H. Irwin, but against the Chancellor interfered by injunction Reuben Irwin. The middle letter of the restraining the husband from entering came nowhere appears, either on the lien, his wifes house. The case is now up the record of it, or the index. The aufor review before the House of Lords, thorities hold that where a lien is thus deand a final decision is awaited by the fectively entered, while it may be, and profession with more than ordinary in- generally is, good as between the parties, terest.

the omission of the middle letter of the Let the defendant enter his own recog- defendant's name is fatal to the lien as nizance with surety in three hundred against purchasers and lien creditors, undollars to keep the peace, &c., and pay less they have actual notice. (Wood v. the costs.

Reynolds, 7 W. & S. 406; Esther Hutchinson's Appeal, i 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 consid- to Stott at the time of filing the mecherable latitude is allowed, yet there must anics' lien, he had a right to rely on the be such convenient certainty as will give records as they stood when he made his notice to persons interested. In Knabb's loan, and to rest in the belief that he had Appeal, 10 Barr, 186, the correct name of a first lien, and to take no steps for his the owner appeared, both in the title of greater security. the claim and in the annexed bill, but the

The moneys in the hands of the sheriff initial letter of the middle name was omit- will be distributed and paid out as foltad in the body of the claim. It was held

follows : that this discrepancy was immaterial, the To Rachel J. Stott, executrix of record being sufficiently certain iu giving

Joseph W. Stott, amount due the correct name in the title and bill. In on judgment sur mortgage the case we are considering, as we have

and interest,

$278.12 said, the correct name nowhere appears,

To Thos. A. Ash, balance,

20.56 and we see no reason, in the point here

Total,

$298.68 presented, for a distinction between mechanics' liens and judgments.

C. P. of

Luzurne County It is claimed, however, on behalf of the

Smythe v. Morgan. mechanics' lien, that the debt of Stott was created before the entry of that lien and

Certiorari---Justice of the Peace--Short that therefore he did not rely on the re- Summons. cord in making the loan. We do not see A summons issued on the 23d, returnable on the 27th of that this makes any difference. When

the month, and was returned served on the 23d by leaving

a copy at the dwelling house of the defendant in pres. Stott took the mortgage, the record con- ence of another: Held, that upon this state of the record tained no notice of the liens. True, he this issuing of a short summons was irregular, took it, so far as that portion of it not for September 17, 1883. RICE, P.J.-The purchase money is concerned, subject to summons in this case issued on April 23, any mechanic's lien which might exist 1883, and was returnable on April 27,

, by Act of Assembly, and which might be 1883. There is nothing on the face on the preserved and continued beyond the six transcript, nor in the precept, to indicate months by filing and entering of record a that the defendant below was a non-resilien, as provided for by the act.

But at

dent of the county. Indeed, the return to the expiration of the six nionths, a search the summons indicates the contrary. It would have failed to show any such lien reads as follows: "Served the within against the defendant, and Stott had a summons the 23d day of April, 1883, by right to conclude that the property, which leaving a copy at the dwelling house of he may have supposed free from lien the defendant, James Smythe, in the preswhen he made the loan, was, in fact, free, ence of Mrs. C. M. Steele." Clearly, this and never had been subject to liens other was not a case for a short summons, and, than that to himself. He had a right to therefore, the proceedings must be reversrely upon the records, which when he ed. Ferris v. Leidler, 5 Phila. 529. If took the mortgage, contained no notice the defendant below was, in fact, a nonof lien, subject simply to the evidence they resident of the county, it should have apmight thereafter, in proper time, exhibit, peared either on the transcript or the prethat there was a statutory lien, which, in cept. We also suggest that the return fact, preceded the mortgage.

itself does not follow the statute as cords thereafter furnishing no evidence as strictly as it should. would be notice to, or affect, a lien credi- The proceedings were reversed and set tor, and there being no evidence of notice aside.

[ocr errors]

The re

certain notes at the time to which the creditors had ex

7 Barr 449.

SUPREME COURT.

of 1846, without regard to the particular form of conveyance.

But it must be an Johnson's Appeal.

assignment or transfer of property. Judg

ments confessed to secure creditors are An absolute transfer of a man's property in trust for the payment of his debts will be regarded as an assign- not such preferences as are avoided by ment under the Act of 1836 without regard to the particular form of conveyavce, but a mortgage in trust to pay off the Act of 1843, although an assignment tended the time of payment is not an assignment. , for creditors was intended and was short

Appeal from Court of Common Pleas ly afterwards executed: Blakey's Appeal, of Montgomery county. May 21, 1883. Paxson, J.-The court

We are of opinion that the mortgage in below held that the mortgage in the con

this case was not an assignment for creditroversy was not an assignment for the tors under the Act of 1836. That it was

not intended as such by either the mortbenefit of creditors within the meaning of the Act of June 14th, 1836, entitled “An gagors or the mortgagee is too plain for Act relating to assignees for the benefit argument. Nor has any of the creditors

intended to be benefitted thereby ever of creditors and other trustees.” The court further ruled that it had no jurisdic- treated it as such. The facts connected tion to distribute the money realized upon

with it briefly stated, are, that Main

Brothers, residents of Montgomery Co., the mortgage from a sale of the mortgaged premises, but that the distribution becoming embarrassed in 1875, obtained must be made in Philadelphia where the

an extension of twenty-four months from

their creditors, and in order to secure • trustee resides.

their liabilities thus extended, executed If we concede the first proposition to be correct the second follows logically. estate to the appellant as trustee.

the mortgage in question upon their real

The We have therefore presented the single consideration of the mortgage was the question whether the mortgage was in extension, and had the extended paper effect an assignment under the Act of been paid at maturity the condition of the 1836.

mortgage would have been performed,

and the mortgagors entitled to have satisThe recent case of Wallace & Krebs vs.

faction entered of record. Wainwright & Co., 6 Norris 263, con- There is no room here for an allegation tains much of the learning upon this that the niortgage was intended as an branch of the law, and it would be use

evasion of the Act of 1836. It was a seless to repeat what was there said, or to curity for the creditors precisely as if the

mortgagors had given indorsed paper or again review the authorities there referred

other personal security to procure an exto. In Wallace & Krebs the debtor as- tension. Moreover, the mortgage was signed a number of judgments to his at- not an absolute transfer of any thing; it torneys in payment of the creditors of the was a mere pledge of security.

In this it lacks one of the essential feaassignor, naming them. There was an

tures of assignments under the Act of implied trust, and that the assignment 1836.

1836. For in all the instruments which came within the Act of 1836.

have been held to be assignments for credThe principle to be deduced from the

itors there has been in some form an absolute transfer of the property.

The asauthorities is, that the form of the trans

signor parted with all his title and control action is not material ; the law cannot be

thereof, save alone the right to have any evaded "by any sham departure from the surplus re-conveyed to him that might regeneral form of assignments :" Fallon's main after the payment of his debts. Appeal 5 Wright 235; hence an abso- We are of opinion that the learned lute transfer of a man's property in trust judge below ruled this case upon correct

principles. for the payment of his debts, must be re- The decree is affirmed and the appeal garded as an assignment within the Act dismissed at the cost of the appellant.

« ПредишнаНапред »