pledge, assignment, transfer, conveyance or incumbrance shall not have been entered, issued, commenced, made or recorded, and, in the case of personal property exclusive possession be not given at or about the time of the creation of the debt, or if the transaction shall not have been made in the usual and ordinary course of the business of such insolvent. But nothing herein contained shall in any manner affect any judgment, payment, pledge, assignment, transfer, conveyance or incumbrance taken in good faith, without such knowledge or intention, when a debt is created or about to be created, if entered, made or recorded, and in the case of personal property exclusive possession be given at or about that time." As stated in the opinion of the Court in Clark's assigned estate "these sections do not take away the preference of the creditor unless the insolvent or creditor do something forbidden therein." In order to defeat the preference under the first section, it is necessary that there should be an intent on the part of the insolvent to give an unfair advantage or preference to a creditor and until this appears the section does not operate. It is only when the insolvent procures, suffers or permits any of the things stated therein with a view to giving a preference to any creditor that the section applies unless he did something from which it can be inferred that he intended to give a preference to a creditor, this section will not defeat or take away a preference arising by operation of law. Under Section 2 the insolvent must procure, suffer or permit with a view to give a preference to a creditor and in addition thereto there must be collusion on the part of the creditor and the burden of showing that there was an intent on the part of the insolvent to give a preference was on the part of the exceptant; and although a judgment was entered and execution issued within less than four months from the date of the assignment and if the record and testimony does not show that the insolvent was not in any way interested in having the judgment entered and had no knowl edge of the execution, he did nothing in order to give the execution creditor a preference and the creditor would come within the exceptions of Sections I and 2 of the Act and is entitled to preference obtained by reason of his own diligence. Where an execution is issued after the deed of assignment has been recorded, the execution creditor must have known of the insolvency of the assignor and he would not come within the exceptions relating to preference under Sections I and 2 of the Act of 1901, P. L., 404, and preference would be taken from him him through the operation of said sections of said Act. We do not find that these questions. on similarly stated facts have been passed upon by the appellate courts of this state and the auditor has, therefore, followed the conclusions of Judge Porter in Clark's Assigned Estate, Common Pleas of Lawrence County, of Judge Gillan in Wild's Estate, Common Pleas of Franklin County, and of Judge Hassler in Lauman v. Heisey. "Where a judgment creditor issues execution before an assignment is made by the debtor for benefit of creditors, the writ will be stayed upon application of the assignee, and upon distribution of the fund realized by the assignee the execution upon the judgment will first be paid out of the fund realized from the sale of personalty, unless it be shown that there was an intent on the part of the assignor to give a preference to the judgment creditor. The burden of showing that there was an intent on the part of the assignor or insolvent to give a preference rests upon him who attacks the alleged preference, unless the note upon which judgment was entered was given at or about the time of the making of the assignment. No intent to give a preference is shown where a note was given November 24, 1906, payable six months after date. Judgment entered thereon June 4, 1907, same day execution issued and an assignment made for benefit of creditors, August 27, 1907.” Clark's Assigned Estate, 38 Pa. Co. Ct. Reports, page 227. "Where judgment creditors issue execution before an assignment is made by the debtor for benefit of creditors, the writs will be stayed, and upon distribution of the fund realized by the assignee the executions upon the judgments will first be paid out of the fund realized from the sale of the personalty, unless it be shown that there was an intent on the part of the assignor to prefer the judgment creditors. Those who would set aside the preference must show some positive act on the part of the debtor by which it appears that he meant to give a preference or that the obligations were signed and the execution suffered, procured or permitted with a view to give a preference." Wild's Estate, 39 Pa. Co. Ct. Reports, page 577. "Whether an assignment was made under the Act of 1901 or by prior law, an execution subsequently issued against the assignor's personal property should be set aside." Lauman v. Heisey, 29 Lanc. Law Review, page 341. Exceptions were filed to the auditor's allowance of the claim of Frank K. Lefever as a preferred claim. September 20, 1913. Opinion by LANLIS, P. J. We do not think it necessary to set forth the facts upon which the exceptions are based, because the learned Auditor has, in his report, fully explained them. He has also, at considerable length, discussed the questions of law and has satisfactorily settled them. We concur in his conclusions, and, dismissing the exceptions, absolutely confirm his report. Exceptions dismissed, and report of Auditor absolutely confirmed. Wright vs. Farmers and Breeders Mutual A writ of certiorari from the judgment of a magistrate will be quashed where the affidavit was made and the recognizance taken judge, the prothonotary or the magistrate before a notary public instead of before a "Where property has been levied upon Certiorari-Affidavit and Recognizance. under an execution, and the defendant in the execution, a farmer, makes an assignment for the benefit of creditors under the Insolvent Act of June 4, 1901, P. L., 404, upon the petition of the assignee, the execution will be vacated and set aside without prejudice to the plaintiff's rights as to whatever preferences he may be entitled to under the Act of 1901 upon distribution by the assignee." Hillegas v. Strunk, 3 Berks County Law Journal, 180. Therefore, from the foregoing facts and conclusions of law, we allow the amount due Frank K. Lefever on judgment on which execution was issueddebt, interest and costs amounting to $546.34-as a preferred claim. The claims of Alfred Mowrer for labor, amounting to $22.20, and of Joseph Miller, amounting to $36.50, for labor, are allowed as preferred claims. The claim of Frank L. Minnich is allowed as a common claim and not as a preferred claim. All other claims presented are allowed as common claims. The estate is insolvent and the dividend on com who heard the case, as required by the Acts Lancaster Co. June Term, 1913, No. 123. J. R. Kinzer and Chas. IV. Eaby, for plaintiff and motion. Chas. G. Baker, contra. September 20, 1913. Opinion. by HASSLER, J. The motion to quash the writ of certiorari in this case alleges, among other things, that the affidavit upon which the writ was issued was made and the recognizance taken before a notary public and not before a judge of this Court, the prothonotary, or the magistrate who heard the case. The Act of 20 March, 1810, Sec. 22, 5 Smith Laws, 171, provides that an affi davit should be made and recognizance taken before a judge of the Court of Common Pleas. The Act of 3 February, 1817, Sec. 1, 6 Smith Laws, 398, provides that it may be done before the prothonotary, and the Act of 22 May, 1895, Sec. 1, P. L., 100, provides it may be done before the magistrate who tried the case. In Wesley v. Sharpe, 19 Sup., 600, it is decided that affidavits made and recognizances taken before any officer other than those mentioned in these acts of assembly are void. In Dorsey v. Wasson, 18 L. L. R., 375: Miller v. Trumpore, 8 Kulp, 459; Blitha v. Shipowski, 3 Pa. Just. L. R., 81, motions to quash writs of certiorari were sustained where the affidavits were made and the recognizance taken before officers other than those mentioned in these acts of assembly. As the affidavit in this case. was made before a notary public and not before one of the officers mentioned in the acts of assembly we must sustain the motion to quash the certiorari. Motion sustained and certiorari quashed. The lien of a judgment against the land of the debtor bound thereby will not be affected by his subsequent discharge in bankruptcy. Failure to revive a judgment within five years after its original entry will not affect its lien, except as to subsequent purchasers and intervening encumbrances. Upon a sci, fa, to revive a judgment after the expiration of five years and after the discharge of the defendant in bankruptcy, the lien will be restricted to the land originally bound thereby. Rule for judgment for want of sufficient affidavit of defense to sci. fa. to revive judgment. C. P. of Lehigh County. January Term, 1913, No. 28. January 6, 1913. Opinion by TREXLER, J. Plaintiff recovered judgment before a justice on December 18, 1902, and by transcript duly filed February 3, 1903, obtained a lien against defendant's real estate. The judgment so entered was not revived within five years. Plaintiff now seeks to recover it, and the defendant introduces the defense that she was discharged in bankruptcy of all debts that were provable September 13, 1904. It is admitted that no personal judgment can be obtained against the defendant, and the effort is made to take her real estate for the satisfaction of the debt, the real estate being subject to the lien of the transcript under its entry of February 3, 1903. It was decided in Aurand's Appeal, 34 Pa., 151, that the lien of a judgment, though not revived within five years, continues against the land of the debtor, and that the restraint of the lien of a judgment to a period of five years operates only in favor of purchasers from the debtor and judgment creditors, but is without limit against everyone else: Ziegler v. Schall, 209 Pa., 526, and cases cited. A discharge under the national bankruptcy law does not cancel the debt; it destroys the remedy. It is personal to the debtor, and a valid lien is not affected thereby: 2 Pepper and Lewis's Digest of Decisions, Secs. 2025 and 2029. Conceding that the plaintiff's lien did not expire, he has the right to proceed against the property bound by the lien. His remedy must, however, be confined to the property bound. If we allow a general judgment of revival to be entered, the other property of the defendent, if any she has, will be bound, and her personal property will be liable to be taken in execution. It is true that such execution might be stayed upon application, but we prefer that the matter be determined without further proceedings. Ralph D. Schatz, for plaintiff and for We, therefore, make the order accordmotion. tra. M. C. Henninger, for defendant, con ingly. Now, January 6, 1913, rule for judgment for want of sufficient affidavit of defense is made absolute, the lien of the judgment to be restricted to the follow- | work, and we are now enjoying the benefits thereof, although many seem to be too obtuse to fully appreciate or recognize it. ing property: [Here follows a description of the property bound by the lien of the original judgment.] Legal Miscellany. Our Nation's Birth. AND THE GOLDEN RULE FOR THE PERPETUATION OF NATIONAL LIFE. Men upon the rostrum would lead the people to believe that the American constitution is an "outgrown," antiquated affair and a fossil of the Pliocene age. If old, it is ever new in spirit power and beneficence. It is idle prattling to speak disparagingly of the great American Magna Charta. Solid mentality never fails to recognize the vigor and virtue of the momentous work of the immortal convention of 1787. The constitution was the work of giants and not of weaklings, and its theories and principles are as true, logical and correct to-day as they were when promulgated by that patriotic, educated and illustrious convention. The document bears the signatures of 40 distinguished statesmen. They were all commanding figures in the nation-even oracles. They did not do as many thoughtless critics of the present day, sniff their governmental ideas, as they run, from every popular and frenzied breeze. They went to foundation-stones -to Aristotle, Montesquieu, the English system, the Netherlands, to Rome, France and Switzerland; and after selecting the good from all, filled up the vacant places with the best thought and experience of the American people; thought which had been vitalized and humanized by the hardships and terrors of a desperate war. These heroes were not hair-brained bunglers, but were adepts in political government, and with the greatest painstaking care they produced a marvelous system of government, and with all their foresight they still builded better than they knew. Fortune smiled on their Men reckless of speech now tell us that the forty men who drafted the constitution were plutocrats and not democrats; that they were not fitted for governmental work because possessed of intellect and property. Perhaps men of the backwoods schools, of slight education and of great poverty, and not men of collegiate education and of official experience should have been selected to draft the constitution. If so, it would have been indeed an outgrown constitution," and would, out of necessity, have been reconstructed from beginning to end years ago. On the other hand, the work of skilled men has endured, and must endure for ages upon ages. 66 George Washington was President of that historic convention. What could have been more appropriate and fitting? He surely fought his way to glory and was ordained to hold the highest position in the constitutional convention. Why should not the father of his country be trusted to help make its organic law? We do not have to ask the critics of the constitution who Madison, Franklin, Hamilton, Pinckney, Wilson, Read, Bedford, Bassett, Dickinson, and their coadjutors were, or whether they were competent to make the supreme law for the American nation. Time and history. record the truth, any opinion of presentday radicalism to the contrary notwithstanding. The wailing cry goes up that propertyholders made the constitution, when it should have been drafted (in that day of land abundance) by men who were too effeminate and shiftless to own or acquire anything. In this age of great progress who do we select to hold important office or to take a seat in a constitutional convention? Do we not appoint men of brains, intelligence, character and prominence? Please tell us why such were not the very proper persons to hold like positions one hundred and twenty-five years ago? Mollycoddles, simpletons and slaves were wholly unfit for any such position. It is self disparagement to condemn others for acting precisely as we do ourselves. But, it is said, the constitution is "anti-democratic." It is not a pure democratic law, never was intended to be, and never should by amendment be tortured into such. No sensible, informed man should even so desire or advocate it. Perhaps the great men of 1787 were property-holders (so much. more to their credit); but if so, they made a constitution protecting the property of the plutocrat and the democrat, and also the life and liberty (slaves excepted) of both rich and poor. If the life and liberty of those in poverty were protected, what more could they have protected? Surely no rational man could claim protection for that which he did not own. Republican government cannot take the property from one and give it to another; genuine orthodox socialism might. If we believe in the latter, let us show our true colors and tear down the old constitution. If we believe in republican representative rule, let us loyally rally around and protect the most illustrious constitution ever known to civilized man. -George A. Talley, in Chicago Legal News. Sermon on Stones. Sam Buckalew was lone policeman in a little town in Tennessee. His main duties were to look out for trouble in the negro part of the town down by the creek, especially on Saturday nights. Came one night a general fight in the bottom, after a dance in a cabin. The engagement, starting inside, grew too large to be accommodated in doors and continued outside. Rocks were handy and the fracas extended. Same Buckalew heard it all from a safe distance, but made no attempt to drive the enemy across the Yalu. The justice of the peace called Sam to account next day. "Why look here, Tom Keel-you-all's honor, I mean," Sam Buckalew protested. "Them rocks was flyin' near as thick as wheat beards. Maybe they wasn't aimin' to hit me, but don't you-all know rocks ain't got no eyes?" Woman's Rights. [A Washington judge has ruled that a wife has the right to go through her husband's pockets.-News dispatch.] Little dollar in my pocket, Ere I lay me down to sleep, You are near the danger line. You will feel a tender touch. Mustn't have a word to say. O. C. ADJUDICATIONS. Wednesday, November 26, 1913. Henry K. Shiffer, Manheim Borough. Lillie S. Groff, East Hempfield. Catharine Fry, Ephrata Borough. Catharine Stauffer, Rapho Township. John M. Mallen, Marietta Borough. David Huber, West Lampeter Twp. |