or fourth class in this Commonwealth day of January, 1914. On February 18, | any school district of the second, third, 1913, he gave a bond as required by Sec. 3 of the Act of June 25, 1885, P. L. 187, as modified by the Act of June 6, 1893, P. L. 333, which was approved by the Court of Quarter Sessions of this county, and which, for the purposes of this case, is called the general bond. On August 11, 1913, he gave to the School Board of Pequea Township the bond that is required by Sec. 550 of the School Code, Act of May 18, 1911, P. L. 309, which, for the purposes of this case, is called the special bond. He thereupon was given the school-tax duplicate, and proceeded to, and did, collect the school taxes of Pequea Township, but failed to pay over all of the same to those legally entitled to receive them. The auditors found that the amount which he thus failed to pay over was $1,051.84. The School District of Pequea Township thereupon brought suit against the surety on the special bond, and obtained judgment, upon which they issued execution, but failed to realize anything, as the surety was insolvent. It thereupon entered judgment in this court on the general bond in favor of the Commonwealth for the full amount of it, and obtained this rule to assess the damages, out of said judgment, which it sustained by reason of said H. M. Klugh's failure to pay over to it all the school taxes collected by him. It is conceded that the sureties on the general bond given by H. M. Klugh would be liable for the school taxes which he collected and failed to pay over, if the requirement of the School Code that he give the special bond does not relieve them from that liability. Whether it does relieve them is the only question raised in the present application. Before the passage of the School Code of May 18, 1911, P. L. 309, the general bond given by a tax-collector was liable for school as well as all the other taxes which it was his duty by law to collect. The provisions of the School Code changed the rights, duties or liabilities of the collector, so far as the school tax was concerned, as follows: "Sec. 550. Every person appointed or elected collector of school taxes in "Sec. 554. In all school districts of the second, third, and fourth class, all school-tax collectors shall be paid such commissions or compensation as may be determined by the boards of school directors; such commissions or compensation to be paid by proper orders drawn on the school treasurer, as other accounts are paid by any school district. The total cost of such collection in each district shall be reported annually to the Superintendent of Public Instruction, and shall be published in his report." It will be observed that these sections of the school code take away from the tax-collector the duty of collecting the school tax, and give him the right to do so, after he has qualified as tax-collector. by giving a special bond to the school board. They also provide for the compensation he shall receive for collecting them. In the case of Com. v. Toms, 45 Pa., 408, which we think decides this case, Chief Justice Lowrie said: "Under the general law of his office, the register of wills gives a bond with sureties for the faithful execution of his duties, and for the payment of all moneys received by him for the use of the Commonwealth; | duties covered by that bond, and the and this would seem, at the first glance, sureties in the general bond are not liable to include his duties and receipts, under for those defaults. . . . The rule that the the Collateral Inheritance Tax Laws. sureties in the general bond are not liable passed since the bond was provided for, for the duties covered by the special especially when, as here, the bond was bond, and vice versa, has been affirmed given since those tax laws were passed. in several other cases, and it has been But when we turn to the Act of 22d held that the same result follows where March, 1841, P. L. 99, imposing the the statute prescribing new duties and collection of the collateral inheritance requiring a new bond was passed after taxes on the register, we find that the the general bond was given, and another Legislature did not rely on the general statute made all official bonds liable for official bond of the register as a security duties imposed by subsequent statutes." for the performance of this new duty, Authorities of a number of states are but required a special bond for this pur- cited in the foot-note, which fully suspose, and provided a mode to enforce the tain this. giving of it. It seems to us very plain, therefore, that the general bond is not intended to secure either payment of these collections or the giving of the special bond to secure them. According to it, it is not a duty of the register to collect these taxes until he has filed the special bond required by the act, and therefore his sureties in his official bond are not liable for such collections made by him, though of course he is himself liable." If we substitute "tax-collector" for "register of wills," and "school taxes" for "collateral inheritance taxes," where these words occur in the opinion, we have the present case decided. The fact that the school code says that the special bond shall be given in addition to any bonds a tax-collector now may be required by law to give, does not increase nor diminish the liabilities of the sureties on either bond. The special bond of the register of wills in the case cited is in addition to the other bond he is required by law to give, and the liabilities of the sureties are not changed because that is the fact, nor would the mention of it in the act make any difference. In Throop on Public Officers (edition of 1892), Sec. 220, it is said: "It is now well settled in this country that, where a statute prescribes that an officer shall, in addition to his general official bond, give a bond conditioned for the performance of duties particularly specified which devolve upon him, the sureties in the special bond are liable only for defaults in the performance of the particular In Com. 2. Perrego, 40 Sup., 320, it is said: "Reading together, then, the act of 1878, the decree entered by the court, already quoted, and the provisions of the rule of court, just cited, it seems to us to be clear that no right to collect the special tax devolved upon Perrego solely by reason of the fact that he had been elected the general tax-collector of Lake Township and had given the bond required by the statute to qualify him to assume the duties of that office. The regularly elected collector may have had the first right to specially qualify himself to collect this special tax. But such right, if not exercised by a compliance with the provisions of the act of 1878 and the decree of the court made in accordance with its rule, would be lost or transferred to the special appointee of the court. The collector could not be compelled to exercise it. No obligation to undertake such special collection was cast on him by the law as part of the duties of the office to which he had been elected." It was held in that case that the sureties on the general bond were not liable. From these authorities it is clear that the sureties on the general bond which H. M. Klugh gave as tax-collector of Pequea Township are liable only for the performance of the duties imposed upon him as tax-collector, by virtue of his office, and not for the performance of such duties as he might assume because he was tax-collector, by complying with the requirement that he give a special bond conditioned for their faithful per formance. The collection of the school (See following case.) Commonwealth v. Klugh, et al. (No. 2.) Tax-collectors-Bond-Judgment. Judgment entered by a school board on the general bond of a tax-collector who collected the school tax should not be stricken off as it covers other taxes though not school taxes. Rule to strike off judgment. C. P. of Lancaster Co. January Term, 1915, No. 134. Antiquity of Maritime Law. The Phoenicians were the first to make long voyages, and the first to arm their vessels for war. They readily availed themselves of the advantages of a marine and thereby soon secured an extensive empire of the sea, a sovereignty they commerce. In time they assumed the long continued to enjoy, during which time they became tyrants of the sea, and exercised piracy. They were the first sea pirates known to history. After the Phoenicians, the Aeginetes, and then the Cretans, assumed dominion of the sea during various epochs, but it remained for the inhabitants of the island of Rhodes to create, digest, and promulgate the first system of maritime laws of which we have any authentic knowledge. So great was the success they attained. their code has always been referred to as the "cradle of maritime law." Never theless, as far back as the reign of King Hammurabi, who was a contemporary of Abraham, 2,250 years before Christ, we find in the Code of Hammurabi numer H. Edgar Sherts and John M. Groff, ous sections which fix the obligations for rule. H. Frank Eshleman, contra. July 3, 1915. Opinion by HASSLER, J. We must discharge this rule. While the school board are not entitled to collect anything from this judgment, it is liable for other taxes received by him, and by striking it off, we would deprive those entitled to receive such taxes from the protection which the bond affords. This we cannot do without notice and giving them an opportunity of being heard. The rule is, therefore, discharged. Rule discharged. (See preceding case.) SUPERIOR COURT OPINIONS. Wednesday, July 21, 1915. By HEAD, J. Buckwalter, appellant . Lancaster & Lititz Turnpike Road Co., affirmed. Colt & Co. v. Diffenbach, appellant, reversed. arising under contracts for boat-building, hire or charter of vessels, transportation of goods for hire, collision, etc., and the principles there laid down are, in many instances, recognized at the present time as the rule of decision. The Persians, and then the Greeks in turn, succeeded the Rhodians as masters of the sea. These two countries maintained large fleets of war vessels. called by the ancients, as a class, “ vessels of force," as distinguished from their merchantmen or "ships of burthen." The great naval battle of Salamis, fought by these countries, in which it is said over fifteen hundred vessels took part. followed by that of Platæa and of Mycale, demonstrated to the Greeks, with the success of their arms, the immeasurable value of sea power. They lost no time, and spared no efforts in the creation of a still greater navy, and adopted measures they deemed judicious in furthering the interests of their merchant marine. Among other things they established a special jurisdiction at Athens, to pass upon maritime trans actions. LANCASTER LAW Review. VOL. XXXII.] FRIDAY, AUG. 13, 1915. [No. 41 Supreme Court. Davis, Appellant, v. Malone. Sci. fa. sur mortgage-Injunction. An injunction will not be allowed to restrain a defendant from prosecuting a writ of sci. fa. sur mortgage, where the questions raised, as to what, if anything, is due on the mortgage, involving the validity of transfers, whether they were absolute or as collateral, and the amounts of consideration and payments, can as well be decided in the scire facias proceedings as in equity, there being no allegation of fraud, accident or mistake. Appeal No. 58 of January Term 1915, by B. F. Davis, plaintiff, from decree of C. P. of Lancaster County, setting in equity, sustaining the demurrer and dismissing the bill against John E. Malone, et. al. defendants. Affirmed. The purpose of the bill was to restrain the defendants from prosecuting a sci. fa. sur mortgage. (For opinion of the Court below, HASSLER, J., sustaining the demurrer, see ante page 163.) On appeal the plaintiff assigned as error the action of the court below in holding (1) that the plaintiff has an adequate, complete, and convenient remedy at law; (2) that this is not a proper case for equitable interference; (3) that it had no jurisdiction under the facts stated in the bill; (4) in sustaining the demurrer and dismissing the bill (5) in entering a decree sustaining the demurrer and dismissing the bill, as follows: "We, therefore, hold that this is not a case for equitable interference, and that we have no jurisdiction to grant the relief prayed for by the complainant in his bill. We, therefore, sustain the demurrer and dismiss the bill at plaintiffs' costs." C. Eugene Montgomery and Coyle & Keller, for appellants. The test is whether the legal remedy is adequate, not merely whether there. is a legal remedy. Appeal of Brush Electric Co., 114 Pa., 574. Boyce v. Grundy, 3 Ret., 216. Pennsylvania Co. v. Franklin Ins. Co., 181 Pa., 40. There are other claimants besides Malone and the matter is so involved and complicated that the legal remedy is inadequate. A bill in equity may stand solely on the ground that it is the most convenient remedy. Kirkpatrick v. McDonald, 11 Pa., 387. Appeal of Brush Electric Co., 114 Pa., 574. Warner v. McMullen, 131 Pa., 370. Conemaugh Gas Co v. Jackson Farm Gas Co., 186 Pa., 443. 80. Corbet v. Fuel Supply Co., 21 Super., The following cases clearly establish that under the equitable principle of subrogation the bank, and through it the plaintiff Davis, is entitled to the collateral transferred to Fowkes as security for his endorsement of the note. 71. 64 Martin's Est., I Pears., 37. Rice's Appeal, 79 Pa., 168. Hartranft's Estate, 153 Pa., 530. mortgage satisfied of record, and equity The plaintiff is entitled to have this has jurisdiction to investigate the allegations of the bill, and decree a satisfaction of the mortgage. 38. Johnson v. DeCamp, 3 Luz. L. Obs., Steigerwalt v. Smeych, 9 Sup., 363. Equity has jurisdiction to avoid a multiplicity of suits. Steigerwalt v. Smeych, 9 Super., 363. Bank v. Bank, 172 Pa., 427. Johnson v. Price, 172 Pa., 427. The bill is not multifarious. Where the object of the bill is single, though different defendants have separate interests in questions arising out of the single object, the bill is not multifarious. Buldes v. Henniges, 7 Kulp, 143. Macready v. Hart, 20 L. J., 149. Freeman v. Stein, 34 L. J., 96. Sprukes v. Jones, 4 Lack. L. J., 85. Philadelphia v. City Gas Works Trustees, 12 W. N. C., 477. Neither is there any merit in the final ground of demurrer, alleging a misjoinder of parties defendant. Whoever will be affected by a decree in the plaintiff's favor whether directly or indirectly is a proper party defendant, although no specific relief is asked as against such person, provided there is a prayer for general relief. Gilkeson v. Thompson, 210 Pa., 355. 139. John M. Groff, John E. Malone and Joseph W. Kenworthy, for appellee. The only question raised by the bill was whether there was any thing due on the mortgage. The real object of the bill was to stay all further proceedings in the suit begun. by the issuing of the scire facias by appellee in which suit neither Anderson, Groff or Fowkes was a party nor did any one of them seek to intervene. The other grounds set forth in the demurrer and which are argued by the appellant in his paper-book need not be considered as the appellee is entirely satisfied that the Court below is right in dismissing the bill on the ground that whatever defense he has set forth in the bill could readily be taken advantage of by him in the stay on the scire facias. July 3, 1915. Opinion by MR. JUSTICE POTTER. This bill in equity was filed by plaintiff to restrain the defendant from prosecuting a writ of scire facias upon a mortgage on certain real estate, the title to which had become vested in appellant, subject to the said mortgage. The writ of scire facias was issued September 20, 1913, an affidavit of defense was filed, and it was not until July 14, 1914, that this bill was filed to restrain further proceedings. The court below sustained a demurrer to the bill, and dismissed it, upon the ground that the remedy of the plaintiff in the action at law, was adequate and complete. It is difficult to see. why this is not the case. The real issue to be determined is, whether anything is due upon the mortgage, and if so, how much. This can certainly be ascertained in the suit at law. The jurisdiction of equity to restrain actions at law in any proper case, is unquestionable, but in this instance we can see no reason to invoke its exercise. Every defense alleged in the bill may be presented in the action upon the scire facias. Plaintiff in that action must show title to the mortgage. Want of consideration when the mortgage was given, or its subsequent assignment as collateral, and the payment of the debt to secure which it was assigned, may be shown by proper evidence on the part of the defendant in the pending suit at law. There is no allegation in the bill, of fraud, accident or mistake. as anything is disclosed by the record, the court below was entirely right in holding that the case is not one for equitable interference. ruled, the decree of the court below, disThe assignments of error are overmissing the bill, is affirmed, and this appeal is dismissed at the cost of appellant. |