No appeal from the judgment of justices and alderman shall be allowed unless the party appealing shall pay all costs accrued before said justice or alderman, except where the parties reside in the county and the appellant makes oath that he or she is unable to pay said costs. An alderman or justice has a right to issue execution, where the same is demanded, at any time after the rendition and entry of judgment. The costs of execution, where execution has been issued, are part of the costs which must be paid before an appeal is allowed. Appeal by defendant from judgment of alderman. Rule to show cause why appeal should not be stricken off. August 13th, 1881. LIVINGSTON, P. J. Suit was brought by plaintiff against defendant before A. F. Donnelly, an alderman in and for the city of Lancaster, on February 16, 1881. Plaintiff's claim was for work and labor, the demand for $61.56. A hearing was had on February 21, 1881, and judgment reserved. On February 24, 1881, judgment was entered in favor of plaintiff for $50.71 and costs of suit. On February 28, 1881, execution was issued by the alderman, and on March 1, 1881, the defendant appealed from the judgment of the alderman, and entered bail properly for future costs, at the same time paying all the costs which had accrued up to the time of the rendition of judgment ($2.72), and refusing to pay the costs of the issuing of the execution, 87 cents. And the question now raised is, was he in law bound at the time of taking his appeal, to pay the costs of the execution which was issued before the expiration of the twenty days allowed by law for taking an appeal, and must the appeal be now stricken off by reason of his failure to pay those costs? After a full examination of the various Acts of the General Assembly of this Commonwealth, relative to the duties and powers of justices of the peace and aldermen in civil cases, we have been unable to find any law prohibiting the issuing of an execution at any time the same may be demanded after the rendition and entry of judgment in cases like the one now before the Court. The issuing of the execution however does not prevent the taking of an appeal within the twenty days allowed by law in ordinary cases. -the law, in reference to appeals, being in this respect much like that which relates to stay of execution, and the construction which has been given to the 6th section of the Act of 1810, permits any defendant to obtain a stay of execution within twenty days after the judgment, although in the interval an execution has actually issued, and this, whether the judgment has been obtained by default or on hearing, and whether the suit was instituted by capias or summons; Stiles v. Powers, 1 Ash. 407. The Supreme Court of Pennsylvania has held that "if an execution be immediately issued upon a judgment of a justice, and the money be made by a sale of defendant's personal property, it is then too late to enter bail for stay of execution, or to enter an appeal by the defendant, although the twenty days allowed by the sixth section of the Act of 1810, have not expired, and the purchaser of the property has a legal right thereto: Patterson v. Peironnet, 7 Watts 337. The right of the justice to issue execution immediately on demand, after the entry of judgment in case like the present, having been established, the Acts of Assembly relating to payment of costs on appeal from the judgment of justices and aldermen, require that no appeal shall be allowed unless the party appealing shall pay all costs accrued before the alderman or justice, unless the appellant shall make oath that he, or she is unable to pay said costs, where the parties reside in this county. The alderman having as we have seen, a right to issue the execution in this case at the time it was issued, and the costs thereof being part of the costs accrued before him, those costs not having been paid at the time of taking the appeal, as is admitted, and as it appears by the transcript, requires us, under the law, to make the rule absolute and strike off the appeal. Rule made absolute and appeal strick en off. L's executor sold certain real estate, and under the provisions of the will, secured $1.700 of the purchase money by mortgage on the land, for the use of testator's widow during life. The will directed that after the widow's death this sum, among others, should be paid to the executor, and by him distributed among testator's children. Three attachment executions were issued to attach the share of one of the children; the two first were served upon the owners of the land as garnishees,-L's executor being dead and letters wi h the will annexed not then being granted; the third, upon L's administrator d. b. n. c. t. a. HELD, that the attachments will bind the fund in the order of their service. HELD, also, that the fund must be distributed in the hands of the administratrix with the will annex.d, subject to the rights of the attaching creditors. FUTHEY, P. J.-The object of the attachment, and service is to warn the garnishee not to pay the money to the legatee; not to warn him to hold it as against the administrator charged with the settlement of the estate. Case stated in which Elizabeth Detwiler, administratrix d. b. n. c. t. a. of Isaac Longenecker, deceased, is plaintiff, and Harrison Grubb and John Grubb are defendants. The facts appear sufficiently in the opinion of the Court. chase money on the land, by mortgage for the use of the testator's widow during her life. The will directs that after the death of the widow this sum of $1700, and another sum of $300, shall be paid to the executor, and that certain real and personal property shall be sold by him, and the moneys arising from all these sources be distributed by the executor among the testator's nine children. The widow is now deceased and the administrator d. b. n. c. t. a of Isaac Longenecker asks judgment against the owners of the lands thus sold, for the sum of $1,700 in their hands. Three attachment executions have been issued on judgments against Nathan Longenecker, one of the children of Isaac Longenecker, in two of which the owners of the lands on which the mortgage rests were made garnishees, and the share of Nathan Longenecker in the $1,700 attached in their hands, the executor of Isaac Longenecker being then deceased and there being no distribution; and in the other, issued subsequently and since the substitution, the administratrix, &c., of Isaac Longenecker was made garnishee and the share attached in her hands. The plaintiff in the attachment execution first issued, and served on the own Monaghan & Bro. for plaintiff, claimed that the money should be distributed in the hands of the plaintiff, Longeneckers of the land, intervenes and objects to er's administratrix. Wm. B. Waddell, for defendants. Wm. M. Hayes, for first attachment creditor, claimed that the money due the defendant in the attachment should be paid to the attaching creditors, to the amount of their claims, by the defendants in this suit, the owners of the land, citing: Brady v. Grant, 1 Jones 361; Baldy v. Brady, 3 Harris 103; Gochenauer's Ex'rs v. Hostetter, 6 Harris 414; Becker's Estate, 2 YORK LEGAL RECORD 47. Abraham Wanger, for last attaching creditor. Sept. 12, 1881. FUTHEY, P. J. Jacob Kulp, executor of Isaac Longenecker, deceased, sold certain real estate of the testator by virtue of his will, and, under its provisions, secured $1,700 of the pur the share of Nathan Longenecker in the $1,700 being paid to the administratrix, alleging that it is bound by his attachment, and that the debtor must pay the money directly to him. The Act of Assembly of July 27, 1842, relating to Foreign Attachments, enables creditors to attach "any interest which any person or persons may have in the real or personal estate of any decedent whether by will or otherwise...... . . in the hands or possession of the executor or administrator, or in whose hands or possession soever the same may be, as fully and effectually as in other cases;" and the Act of April 13, 1843, applies the provisions of this act to attachment executions. We are of opinion that, under these acts, and the subsequent Act of April 10, 1849, the share of Nathan Longenecker was attachable, either in the hands of the owners of the lands on which the mortgage rests, or of the executor or administrator; and that, in the distribution of that share, the attaching creditors are entitled to be paid according to the date of the service of the respective attachments, whether such service was upon the debtor, or the personal representative of the decedent. (Gochenauer's Ex'rs v. Hostetter, 6 Harris 414.) But in whose hands should the distribution be made? The will directs the moneys secured by the mortgage, and in which the moneys attached are included, to be paid to the executor. He is to collect the moneys and make distribution. We think the better and simpler practice will be for the administratrix to receive the moneys directed to be paid, so that the administration account may exhibit the whole estate, and let the distribution be made in her hands to those entitled thereto. The payment of the moneys to the administratrix will not relieve them from the hold of the attachments served upon the debtor. They will still remain attached. These attachments were served at a time when there was no legal representative, and the moneys attached will pass into the hands of the administratrix bound by the attachment, just as if served upon her. The moneys being paid to the administratrix with notice or knowle'ge of the attachments served upon the debtor, they remain subject to the lien of the attachment in her hands. The object of the attachment, and its service, is to warn the garnishee not to pay over the money to the legatee; not to warn him to hold it as against the administrator charged with the settlement of the estate. The right of the attaching creditor is only the right of the defendant whose interest he attaches, and the defendant's interest is only in so much of the decedent's estate as may be left after the settlement of his estate. Any other course than a payment to the representative "would embarrass the settlement of estates and tend to dislocate the whole machinery of the law applicable to that subject." (Becker's Estate, in the Orphans' Court of York County, YORK LEGAL RECORD of May 26, 1881, and Lancaster Bar of July 9, 1881.) We are not unmindful of the cases cited on behalf of the first attaching creditor, where, the estate being settled showing a balance sufficient to pay debts, the creditor was allowed to recover judgment on the attachment directly against the debtor holding the moneys of the estate. The case stated, however, on which our judgment must be based, does not inform us of the condition of the estate, although it was stated at bar on the argument; and in accordance with what we believe to be the better practice, we will direct judgment to be entered on the case stated in favor of the plaintiff. SUPREME COURT. Contract Hunter v. Moul. Collateral Security change of Securities. The mere acceptance from a debtor of h's own note, or the note of a third person, in case of an ante cedent indebtedness, is not a payment of indebted ness. In the absence of a special agreement, it must be considered as a conditional payment or as collateral security. One not a party to a note, but who has caused it to be drawn or endorsed or delivered over to a third person as a security, or has guaranteed the payment, is not entitled to notice of dishonor of it, but in an action on the original liability he may show in defense any injury he has actually sustained by the laches of the transferee. The fact that the collaterals were changed for other securities which were ultimately found worthless, change the liability unless it is further shown that a loss resulted to the owner of the collaterals by reason of such exchange. A creditor has a right to retain all unpaid securi ties until he obtains satisfaction of the debt due him. Error to the Court of Common Pleas of York County. The Referee's report, containing all the facts of the case, will be found in Moul v. Hunter, YORK LEGAL RECORD 157. The Court below filed no opinion, but dismissed the exceptions and confirmed the report. The assignments of error related to such dismissal, and the confirmation of the report and entry of judgment there on. Cochran & Hay for plaintiff in error. In addition to the authorities given in Moulv. Hunter, supra, the following were cited: The defendant below was injured by the arrangement betwen the plaintiff and Camp & Randall: Southwick v. Sax, 9 Ward 122. The defendant was entitled to notice of dishonor of the Camp & Randall note: Chamberlain v. Delarive, 2 Wilson 355. John M. Young for defendant in error. Hunter's liability was not discharged by the Camp & Randall note: Weakly v. Bell, 9 Watts 280. Daniels on Negotiable Instruments, 88 1271-1278. This undertaking was binding on Hunter until the debt was paid: Mahone v. Keener, Wright 107. Moul was guilty of negligence in this matter, and is therefore not liable for the failure of Camp & Randall to pay the drafts: 2 Parsons on Bills and Notes 184. Laurence v. McCalmont, 2 Howard 726. October 3, 1881. MERCUR, J. This judgment was entered on the report of a referee. The important facts found by him are substantially these: Hunter was indebted on book account to Moul in the sum of some eleven or twelve hundred dollars. On being asked for payment, he replied he had no money, but had the promise of a note of $900 from Camp & Randall, payable in four months, and that he would give that to Moul to get discounted and use the money. The latter answered that he did not want the note, but that Hunter should get it discounted and give him the money. To this Hunter replied he was a stranger, and could not get it discounted, but that Moul should take the note and get it discounted, and he, Hunter, would stand for it and see it was paid. Moul assented to this. The note was made payable to him and sent to him. It was not indorsed by J-Vol. II. Hunter. Moul had it discounted at bank and received the proceeds. When it matured it was protested for non-payment and taken up by the defendant in error. In lieu thereof, and soon thereafter, he took from Camp & Randall their two drafts of $450 each, payable at twenty and thirty days respectively, and wrote Hunter informing him of the fact, but rereived no answer. The draft first falling due was paid at maturity, the other was protested for non-payment, and Moul wrote Hunter informing him thereof. This draft remained in the hands of the Treating it as no defendant in error. payment, he seeks to recover of the plaintiff in error, on the original account a sum equal to the amount of the draft. The contention is whether the circumstances under which the defendant in error took the note, or his subsequent action in relation thereto, compelled him to apply it as a payment on the account against the plaintiff in error. There was no express agreement to accept the note as payment nor to give time for the The referee payment of the account. found the note was not taken by the defendant in error, as absolute payment of so much of the indebtedness of the plaintiff in error, and technically not as collateral security therefor, but inasmuch as paper so held has been called collateral by the courts, he treats it as such. He further found the defendant was guilty of no negligence in failing to collect the note, and that he did not so convert it to his own use as to bar his right to recover of the plaintiff in error. The mere acceptance from a debtor of his own note, or the note of a third person, in case of an antecedent indebtedness, is not a payment of the indebtedness. In the absence of a special agreement, it must be considered as a conditional payment or as collateral security. The debtor continues liable for his own debt in the event of a failure of payment of the note thus given or transferred: Leas et al. v. James, 10 S. & R. 307; Maginn v. Holmes, 2 Watts 821; Weakly v. Bell et al., 9 Id. 273; M'Intyre v. Kennedy et al., 5 Casey 448; Brown et al. v. Scott, 1 P. F. S. 357; Logue v. Waring & Company, 4 Norris 244. When the transfer of a note is a conditional payment, it is necessary to in quire what the true condition was, and if not fulfilled by the person accepting it, what injury, if any, has resulted from the breach. The cases are not in harmony, as to the effect of a failure to present the note of a third person and give notice of its dishonor when no injury therefrom has resulted to the debtor. We shall not attempt to review them, but refer to some which we think correctly rule this case. Great regard must be had for the character of the transaction. If the debtor indorse the note, a more stringent rule prevails as to notice than if he transferred it by delivery only. When the guarantee is absolute, that a specific act shall be done by another, it was said in Vinal v. Richardson, 13 Allen 521, demand and notice need not be averred, although the want of them may be a defense on the ground of negligence to the extent of the resulting injury. One who has merely guaranteed it, but whose name is not on the bill or note, is not in general entitled to notice of nonpayment. Chitty on Bills, 498. So on page 441, it is further said in general it the bill or note be given as collateral security and the party delivering it were no party to it, either by indorsing or transferring it by delivery when payable to bearer, but merely caused it to be drawn. or indorsed or delivered over by a third person as security, or has merely guaranteed the payment, it has been considered that he is not within the custom of merchants an indorser or party to it, so as to be absolutely entitled to strict regular notice, nor discharged from his liabilities by the neglect of the holder to give him such notice unless he can show by express evidence, or by inference, that he has actually sustained loss or damage. by the omission. The reason is, when a person d delivers over a bill to another without indorsing it, he does not subject himself to the obligations of the law merchant, and cannot be sued on the bill. As he does not subject himself to the ohligation he is not entitled to the advantages. If he can prove he has sustained damages, then he is discharged only to the extent of such actual damages. Id. The guarantor of a note does not stand in the same situation as parties to it. His obligation is in the nature of an insurance of the debt, and there is no need of ! the same proof to charge him as if he was an endorser. The necessity of demand in order to charge the indorser of a bill is solely grounded on the custom of merchants, and applies only to actions against the indorser on the bill itself. It does not apply when the guarantor is not an indorser: Gibbs v. Cannon, 9 S & R. 201; Overton v. Treacy, 14 S. & R. 311; M'Lughan v. Bovard, 4 Watts 308. The law is clearly stated in 2d Parsons. on Bills, 184, where it is said if paper be transferred by delivery only as security for pre-existing debt, and it is dishonored while in the hands of the transferee, it affects in no way the debt it was intended to secure. The original liability remains what it was, and upon dishonor of the paper, it is not even necessary to give him notice thereof as an indorser. but the debtor may show in defense any injury he has sustained by the actual laches of the creditor. Nor does the fact that the collaterals were exchanged for other securities which were ultimately found worthless, change the liability unless it is further shown that a loss resulted to the owner of the collaterals by reason of such exchange: Girard Fire and Marine Insurance Co. v. Marr, 10 Wright, 504. The name of the plaintiff in error was neither in or on the note. It was not payable to bearer. He was in no sense a party to it. With a view that the proceeds when paid should discharge an amount of his indebtedness equal thereto, he caused it to be made payable to his creditor and put into his hands. Through no fault of that creditor it was not paid. It is not shown that it could, at any time. have been collected of the makers. The acceptance from the makers of their two drafts was no payment, but did result in the payment of one-half the amount. Having sustained no loss or damage by any act of his creditor, the plaintiff in error has no just cause of complaint at being still held liable for his indebtedness. The creditor was not obliged to give up the unpaid draft before bringing this suit. It is not shown to be of any value, but if valuable he has a right to retain all the securities in his hands until he obtains satisfaction of the debt due him. Judgment affirmed. |