213. But all the parties may include in the mortgage any covenant not incon- 28 April 1887 § 1. sistent with the provisions of this act. P. L. 73. Ibid. § 2. 214. Such mortgage shall, except between the parties thereto, take effect and be Other covenants valid only from the time of recording the same in the office of the recorder of deeds may be included. of the proper county, and in case of more than one mortgage, the first recorded Must be recorded. shall have preference and be first paid out of the proceeds of the sale of the prop- First recorded to erty mortgaged. have preference. 215. All such mortgages shall be recorded as aforesaid in the county wherein the Ibid. § 3. chattels actually are at the time of the execution of such mortgages, and the same Where to be shall be recorded and indexed in the books provided for, and in the same manner recorded. as other mortgages, and the several recorders shall be entitled to charge and receive Fees of recorder. like compensation as for recording other mortgages. Ibid. § 4. 216. All such mortgages may be assigned or released by an instrument in writing, signed by the mortgagee or his agent, duly constituted, and recorded in the Assignments and same office as the original mortgage, and such assignment or release shall, except release. as between the parties thereto, take effect and be valid only from the time of recording the same. Ibid. § 5. 217. No such mortgage shall be valid for a longer period than three months after the maturity thereof, unless a statement in writing, signed by the mortgagee Duration of or his agent duly constituted, and acknowledged, and specifying the amount due validity. upon said mortgage, shall be recorded in the office of the recorder of deeds of the county wherein such mortgage is recorded, within the said period of three months, and in case such statement be filed, the said mortgages shall continue valid for How continued. the amount due for a further period of one year from the maturity thereof. Ibid. § 6. Foreclosure. 218. In case the sum received by any such mortgage, or any part thereof, shall remain unpaid after the time specified therein for the payment thereof, it shall be lawful for the mortgagee, or his agent duly constituted, after having given said mortgagor or his legal representative thirty days' notice, either personally or by Public notice to be public advertisement inserted four times, at intervals of one week each, in some given. daily or weekly newspaper published in the county wherein the mortgage is recorded, to cause the said chattels to be sold at public auction, having first given To be sold at not less than ten days' notice of the time and place of such sale, by not less than public auction. ten written or printed, or partly written and partly printed handbills, posted in the most public places in the vicinity; in case the proceeds of sale shall more than Proceeds. repay the debt, or balance, and the cost of the sale, the remainder shall be paid forthwith to the mortgagor, or his agent duly constituted, or to the legal representative of the mortgagor. Ibid. § 7. 219. When the condition of a mortgage of personal property is broken, the mortgagor, or any person lawfully claiming or holding under him, may redeem the same, at any time before the property is sold, by the payment of the debt with Redemption before interest and cost. sale. Ibid. § 8. 220. The recorder of deeds shall, when required, give certified copies of such mortgage, assessments, extensions or satisfactions of the same, in like manner as of Certified copies to mortgages of real estate, and shall receive like fees therefor, and such certificate be evidence. shall be received in evidence the same as the original instruments. Ibid. § 9. close the existence, 221. It shall be the duty of the owner or owners of such property so mortgaged, to disclose to any person or persons, association or corporation, about to purchase such property, the fact of its being so mortgaged, together with the amount of the Mortgagors to dissame, the place of its record and time of its maturity; and any failure to truthfully &c., of mortgages. state the same or any part thereof to a purchaser or purchasers, shall be deemed a Failure. misdemeanor, and upon conviction thereof in the court of quarter sessions of the peace of the proper county, the person or persons so convicted shall be subject to a Penalty on convicfine of not less than one hundred dollars, nor more than the entire amount of the tion. purchase-money received for such property, and an imprisonment of not less than thirty days, nor 'more than one year, either or both, at the discretion of the court trying the same. DEFALCATION. See LANDLORD AND TENANT. 1. In what cases set-off to be allowed. Plaintiff 2. Effect of tender. to have judgment for the residue. If the plaintiff 3. Defendant may have execution on certificate in be overpaid, defendant to have a certificate of the his favor, without scire facias. amount due to him. 1705 § 1. 1 Sm. 49. In what cases set 1. If two or more dealing together be indebted to each other(e) upon bonds, (g) bills, bargains, promises, accounts or the like, and one of them commence an off to be allowed. action() in any court of this province, if the defendant(i) cannot gainsay the deed, bargain or assumption upon which he is sued, it shall be lawful for such defendant to plead payment(k) of all or part of the debt or sum demanded, and give any bond, bill, receipt, account or bargain() in evidence; and if it shall appear that the defendant hath fully paid or satisfied the debt or sum demanded, the jury shall find for the defendant, and judgment shall be entered, that the plaintiff shall take nothing by his writ, and shall pay the costs. And if it shall appear that any part of the sum demanded be paid, then so much as is found to be paid shall be defalked, and the plaintiff shall have judgment for the residue only, with costs of suit. But if it appear to the jury that the plaintiff is overpaid, (m) then they shall give in their verdict for the defendant, and withal certify Plaintiff to have judgment for the residue. (e) The demands must be due in the same right. Darroch's Executors v. Hay's Administrators, 2 Y. 208. Potter v. Burd, 4 W. 15. Stuart v. Commonwealth, 8 W. 75. Trunick v. Gilchrist, 32 Sm. 160. Thus, a defendant sued in a joint action by several plaintiffs, cannot set off a debt due to him by one of them. Archer v. Dunn, 2 W. & S. 327. But a codefendant may set off his separate debt, if no superior equity of a third person intervene. Childerston v. Hammon, 9 S. & R. 68. Stewart v. Coulter, 12 Ibid. 252, 446. Crist v. Brindle, 2 R. 121. Krause v. Beitel, 3 Ibid. 199. Tustin v. Cameron, 5 Wh. 380. Solliday v. Bissey, 12 P. S. 347-9. And one of several partners, sued for a separate debt, may set off a debt due by the plaintiff to the firm, if such set-off be made with the express assent of the other partners. Wrenshall v. Cook, 7 W. 464. Craig v. Henderson, 2 P. S. 261. It is not essential to a set-off, that the defendant should be able to sue for the demand in his own name. Murray v. Williamson, 3 Binn. 135. Rider v. Johnson, 20 P. S. 192. But it must belong to the defendant, before the plaintiff commences his action. Stewart v. United States Insurance Co., 9 W. 126. Huling v. Hugg, 1 W. & S. 418. Pennell v. Grubb, 13 P. S. 554. Smith v. Ewer, 22 Ibid. 116. Speers v. Sterrett, 29 Ibid. 192. And see Robinson v. Beall, 3 Y. 267. Cramond v. Bank of the United States, 1 Binn. 64. Waln v. Hewes, 5 S. & R. 468. McDowell v. Tyson, 14 Ibid. 300. Debts due by a decedent, in his lifetime, to defendant, may be set off against debts due by defendant to the deceased. Murray v. Williamson, 3 Binn. 135. Beaver v. Beaver, 23 P. S. 167. See also Darroch's Executors v. Hay's Administrators, 2 Y. 208. Wolfersberger v. Bucher, 10 S. & R. 10. Crist v. Brindle, 2 R. 121. Potter v. Burd, 4 W. 15. Stuart v. Commonwealth, 8 Ibid. 74. Light v. Leininger, 8 P. S. 403. (g) An obligee cannot defalcate against the assignee of an assignee, a claim which he holds against the first assignee. Blair v. Mathiott, 46 P. S. 262. Downey v. Tharp, 63 Ibid. 322. (h) Set-off cannot be pleaded in any action on a tort, whether in trespass or case, or replevin, when the avowry is for rent. Heck v. Shener, 4 S. & R. 257. Anderson v. Reynolds, 14 Ibid. 439. Beyer v. Fenstermacher, 2 Wh. 95. Peterson v. Haight, 3 Ibid. 150; s. c. 2 M. 250. Phillips v. Monges, 4 Wh. 226. Fairman v. Fluck, 5 W. 516. Ashton v. Clapier, Bright. 481. Sterner v. Abbott, 13 W. N. C. 209. Ah! v. Rhoads, 84 P. S. 319. Or in ejectment. Blackburn v. Markle, 12 S. & R. 144. Or in a penal action. Bank of Chambersburg v. Commonwealth, 2 Gr. 384. Lebanon Bank v. Karmany, 98 P. S. 65. But although set-off is not allowable in replevin, on an avowry for rent in arrear, yet the tenant may deduct from the rent due to the landlord, any damage he may have sustained by the landlord's breach of a covenant in the same lease, relating to the demised premises, and constituting part of the consideration for the rent. Gray v. Wilson, 4 W. 39. Fairman v. Fluck, 5 Ibid. 516. Beyer v. Fenstermacher, 2 Wh. 95. Peterson v. Haight, 3 Ibid. 153. Phillips v. Monges, 4 Ibid. 228. Such right, however, is confined to the damage sustained during the portion of the term to which the avowry applies, and cannot be extended to damages sustained during a preceding quarter. Warner v. Caulk, 3 Wh. 193. (i) The defendant alone is entitled to plead a setoff there can be no set-off against a set-off. Ulrich v. Berger, 4 W. & S. 19. Gable v. Parry, 13 P. S. 181. (k) The plea of "set-off" is improper, under our statute, and is only warranted by long practice. Coulter v. Repplier, 15 P. S. 211-12. And there is this difference between the plea of payment with notice of defalcation, and that of payment with leave to give an equitable defence in evidence, that under the former, the defendant may recover a balance against the plaintiff, whilst under the latter, he can only have a general verdict. King v. Diehl, 9 S. & R. 409. Anderson's Executors v. Long, 10 Ibid. 62. No other plea than payment is necessary to let in a set-off. Balsbaugh v. Frazer, 19 P. S. 95. Calvin v. McClure, 17 S. & R. 385. (1) Unliquidated cross-demands arising out of a distinct contract may be set off under our statute. Primer v. Kuhn, 1 Dall. 452. Hubler v. Tamney, 5 W. 51. Nickle v. Baldwin, 4 W. & S. 290. Herring v. Adams, 5 Ibid. 459. Phillips v. Lawrence, 6 Ibid. 150. Carman v. Franklin Fire Insurance Co., Ibid. 155. Thomas v. Shoemaker, Ibid. 179. Ellmaker v. Franklin Fire Insurance Co., Ibid. 439. Speers v. Sterrett, 29 P. S. 192. Hunt v. Gilmore, 59 Ibid. 450. Sewing Machine Co. v. Saylor, 86 Ibid. 287. (m) The plaintiff may suffer a nonsuit, notwithstanding a plea of set-off. McCredy v. Fey, 7 W. 496. Gilmore v. Reed, 76 P. S. 462. The pendency of a suit to recover the claim offered to be set off, is no objection to its being used for that purpose. Stroh v. Ulrich, 1 W. & S. 57. Filbert v. Hawk, 8 W. 444. Bell v. Cowgell, 1 Ash. 8. Gilmore v. Reed, 76 P. S. 462. The set-off is in the nature of a cross-action, and it may be withdrawn from the consideration of the jury. Muirhead v. Kirkpatrick, 5 W. & S. 506. But there must be clear proof that it was so withdrawn, to make it evidence a second time in another proceeding. Muirhead v. Kirkpatrick, 2 P. S. 425. And since mutual debts do not extinguish each other, the statute of limitations may be replied to a plea of set-off. Jacks v. Moore, 1 Y. 391. Hinkley v. Walters, 8 W. 260; s. c. 9 Ibid. 179. Gilmore v. Reed, 76 P. S. 462. to the court how much they find the plaintiff to be indebted or in arrear to the 1705 § 1. 1 Sm. 49. defendant, more than will answer the debt or sum demanded, and the sum or sums If the plaintiff be so certified shall be recorded with the verdict, and shall be deemed as a debt of overpaid, defendrecord;(n) [and if the plaintiff refuse to pay the same, the defendant for recovery ant to have a certhereof shall have a scire facias against the plaintiff in the said action, and have tificate of the execution for the same, with the costs of that action.](0) amount due to him. Ibid. § 2. 2. Provided, That in all cases where a tender shall be made, and full payment offered by discount or otherwise, in such specie as the party by contract or agreement ought to do, and the party to whom such tender shall be made doth refuse Effect of tender. the same, and yet afterwards will sue for the debt or goods so tendered, the plaintiff shall not recover any cost in such suit. (p) P. L. 587. 3. In all cases where, by the verdict of a jury, any debt or damages shall have 12 April 1848 § 12. been found or certified in favor of the defendant, he shall be entitled to judgment and execution, in like manner as if the verdict were in favor of the plaintiff; and Defendant may the defendant need not resort to scire facias, as required by the act of 1705, for have execution, defalcation. (9) without scire facias. DEFAULT. See ACTIONS PERSONAL; ACTIONS REAL; PRACTICE. DEFAULTING PUBLIC OFFICERS. See ATTORNEY-GENERAL; PUBLIC ACCOUNTS. 1. Common pleas of Dauphin county to have jurisdiction of suits against defaulting public officers, and their sureties. How process to be served. 2. Transcripts of judgments may be transferred to other counties, in order to create a lien. 3. Treasurer and auditor-general to bring suits against defaulters. 4. Auditor-general and treasurer to examine cases of alleged defaulters, and if nothing be due the state, suits to be discontinued. 5. Judgment to be entered in default of affidavit of defence and plea. Cases to have preference on the trial list. 6. Interest to be recovered against defendants. 8. Act of 1845 extended to all defaulters. 10. Proceedings in suits by the commonwealth. Affidavits of defence. of suits against 1. It shall be lawful to commence and prosecute to final judgment and execu- 16 April 1845 § 12. tion, in the court of common pleas of Dauphin county, (r) suits against any and P. L. 535. all persons who are or may hereafter be officers of any description whatsoever common pleas of within this commonwealth, appointed by the governor [or by the board of canal Dauphin county to commissioners], or elected by either house of the legislature, or by both houses in have jurisdiction joint ballot,(s) and who shall become defaulters in not paying over or accounting defaulting public for money in their hands, due and belonging to the commonwealth, and against officers and their their sureties, in the same manner, and with like effect, as if the said defaulting persons and officers and their sureties were residents of the said county of Dauphin; and for this purpose, all necessary writs of summons, writs of fieri facias, writs of fieri facias with clause of attachment, to attach debts owing and stocks, as practised in other cases, and writs of venditioni exponas, and alias and pluries writs of the same kind, may issue from the said court into any county, and at the same time, if deemed necessary, into the several counties of this commonwealth, there sureties. to be transmitted by mail to the sheriff or coroner, as the case may require, whose How process to be duty it shall be to execute the same, and make return thereof in the same manner served. as is now practised in relation to testatum writs. 2. In all cases where judgments may be obtained in said county of Dauphin, Ibid. § 13. under the provisions of this act, certified transcripts of the docket-entries thereof Transcripts of may be entered, at the instance of the state treasurer, in the court of common judgments may be pleas of any other county or counties, wherein he believes any such defendants transferred to other counties, in may own real estate, and the same shall, from the date of such entry, be a lien order to create a upon the real estate of the defendants situate in such county or counties, in the lien. same manner and with like effect as if the said real estate were situate in the to be entered. (n) There cannot be a certificate against the commonwealth. Commonwealth v. Matlack, 4 Dall. 303. See Reeside v. Walker, 11 How. 272. Nor against persons suing in a representative capacity, so as to charge them personally. Beale v. Coon, 2 W. 183. There may be a certificate of a balance in favor of the defendant, in an action of covenant. Vicary v. Moore, 2 W. 451. (0) See infra 3. See also Blackburn v. Markle, 12 S. & R. 143. How satisfaction (p) The tender must be pleaded and the money brought into court. Sheredine v. Gaul, 2 Dall. 190. Seibert v. Kline, 1 P. S. 38. With costs to that time. Harvey v. Hackley, 6 W. 264. (q) The act 9 April 1849, § 18, excepted cases pending. P. L. 1005. (r) See Moore's Appeal, 10 P. S. 436. (s) Extended to suits by the commonwealth against counties, corporations and persons whatsoever, by act 7 April 1862, infra 10. P. L. 535. 16 April 1945 § 18. county of Dauphin; and as soon as the amount of such judgment shall be paid, the state treasurer shall cause satisfaction to be entered thereon, on the payment of all costs by the defendants. Ibid. § 14. Treasurer and auditor-general to bring suits against defaulters. 21 April 1846 § 1. P. L. 413. Auditor-general and treasurer to examine cases of alleged defaulters, and if nothing be due the state, suits to be discontinued. Ibid. § 4. Judgment to be of athidavit of defence and plea. 3. The state treasurer and auditor-general are hereby authorized and required,(t) and as often hereafter as any defalcation of any officer as aforesaid may occur, to commence suits in the said court of common pleas of the county of Dauphin, in the manner prescribed in the preceding sections of this act, against all such officers who may appear from the records of their departments, to be defaulters, in failing to pay over to the treasury of this commonwealth, and their sureties, all or any sums of money in their hands, due and belonging to the commonwealth, and shall prosecute each and all of said suits, with the utmost despatch, to final judgment and execution: Provided, That suits shall not be commenced in cases where the auditor-general and state treasurer shall designate the said parties as being insolvent. 4. In all suits brought by the commonwealth, or which may hereafter be brought against any defaulting officer, or his sureties, in pursuance of the act passed the 16th day of April 1845, entitled "An act to increase the revenue, and diminish the legislative expenses of the commonwealth," it is hereby declared, that the auditorgeneral and state treasurer have full power to examine all such cases; and if, upon full examination, said officers shall be satisfied that there is nothing due the commonwealth, in any such case, then said officers may discontinue the suit or suits in such case; and the examination by said officers shall be carefully made, at any time, on the request of any person sued as aforesaid; and in case of the discontinuance of any such suit, a statement of the evidence which authorized such discontinuance, shall be filed in the office of said auditor-general. 5. In all suits hereafter brought in any court, under the provisions of this act. or the act to which this is supplementary, the attorney officiating for the commonentered in default Wealth, shall file a declaration along with the præcipe, and judgments shall be entered therein, and the sums be liquidated by the respective prothonotaries, as aforesaid, immediately after thirty days from the return of the writ, in each case, unless, before that time, the defendants shall have filed an affidavit of defence,(u) and shall have put the cause to issue, as is directed in the 2d section of this act, in suits heretofore brought; and all causes so put to issue, shall be put down for trial at the next succeeding court of common pleas, in each county, and shall, until the same are tried or ended, be placed on the trial list, and have the prefer Cases to have preference on the trial list. Ibid. § 9. Interest to be recovered against defendants. 16 April 1845 $ 18. P. L. 536. List of defaulters to be annually communicated to the legislature. 21 April 1957 § 8. P. L. 266. Act of 1845 extended to all defaulters. 19 April 1858 § 1. P. L. 333. Attorney-general to bring suits. 7 April 1862 § 1. P. L. 304. Proceedings in suits by the commonwealth. Affidavits of defence. ence over all other causes. 6. In all suits brought, or which may be brought by the commonwealth, under authority of law, against any defaulting officer or his sureties, interest shall be allowed and computed in favor of the commonwealth, from the time the public money sued for came to the hands, or should have been in the hands of such officers. 7. It shall be the duty of the state treasurer, annually hereafter, within ten days after the meeting of the legislature, to report to the senate and house of representatives, the names of all persons who are then defaulters to the commonwealth, together with the nature and amount of such default; and the state treasurer shall also communicate to the attorney-general, the names and residence of all defaulters, with the amount of their defalcation. 8. The several provisions of the 12th section of the act of 16th April 1845, entitled "An act to increase the revenues and diminish the legislative expenses of the commonwealth," and of the 4th section of the act of the 21st April 1846, entitled "A supplement to the law relating to defaulting public officers," are hereby extended to all suits against defaulting public officers, or their sureties, within this commonwealth. 9. In all cases where money has been collected, or shall hereafter be collected by any agent or attorney of the commonwealth of Pennsylvania, and has not been, or shall not hereafter be duly paid over to said commonwealth, the attorney-general is hereby authorized to commence an action against said attorney or agent, to enforce the payment of the same, in the court of common pleas of Dauphin county, and may proceed to final judgment and execution in the same manner, and with like effect, as is now allowed by law against defaulting public officers. 10. The several provisions of the 12th section of the act of 16th April 1845, entitled "An act to increase the revenues and diminish the legislative expenses of the commonwealth," and of the 4th section of the act of the 21st April 1846. entitled "A supplement to the law relating to defaulting public officers," are hereby extended to all suits by the commonwealth against counties, corporations, and persons whatsoever; and the said 4th section of the said act of the 21st April 1846, shall be so construed as to require that the affidavit of defence shall set forth specifically the nature and character of the defence: Provided, That a county shall not be required to file an affidavit of defence. (v) (t) See infra 9. (u) The affidavit must be specific: infra 10. See Telegraph Co. v. Commonwealth, 3 Brewst. 517. (v) See tit. " Public Accounts." DEFAULTING WITNESSES. See EVIDENCE; WITNESSES. DEFEASANCES. See DEEDS AND MORTGAGES. 1. Who may practise dentistry. 2. Board of examiners. DENTISTS. 13. Violation a misdemeanor. Penalty. 14. Who may practise dentistry or assume the 3. Duties of the board. Examination of appli- title of doctor of dental surgery. Physicians may cants. Notice. Certificates. Registry. 4. Copies to be evidence. extract teeth. 15. Dental practice defined. Students. 16. Fee for indorsement of diploma. Qualification to be ascertained before indorsement. 17. Fee upon examination. 18. Indorsement when graduate intends practising in a foreign country. Fee. 19. Violation of act. 20. Who are exempt from provisions of act. 21. Diplomas subsequent to 20 September 1883, not to be recorded unless indorsed. 22. Repealing clause. L. 39. 1. It shall be unlawful for any person, except regularly authorized physicians 17 April 1876 § 1. and surgeons, to engage in the practice of dentistry in the state of Pennsylvania, unless said person has graduated and received a diploma from the faculty of a Who may practise reputable institution, where this specialty is taught, and chartered under the dentistry. authority of some one of the United States, or of a foreign government, acknowledged as such, or shall have obtained a certificate from a board of examiners duly appointed and authorized by the provisions of this act to issue such certificate. Ibid. § 2. Board of ex 2. The board of examiners shall consist of six practitioners of dentistry who are of acknowledged ability in the profession. Said board shall be elected by the Pennsylvania State Dental Society, at their next annual meeting, as follows: Two aminers. shall be elected for one year, two for two years, and two for three years; and each year thereafter two shall be elected to serve for three years, or until their successors are elected. The said board shall have power to fill all vacancies for unexpired terms, and they shall be responsible to said State Dental Society for their acts. 3. It shall be the duty of this board Ibid. § 3. Duties of the I. To meet annually at the time and place of meeting of the Pennsylvania State Dental Society, and at such other time and place as the said board shall agree board. upon, to conduct the examination of applicants. They shall also meet for the Examination of same purpose, at the call of any four members of said board, at such time and applicants. place as may be designated. Thirty days' notice must be given of the meetings, Notice. by advertising in at least three periodicals, one of them being a dental journal, and all published within this state. II. To grant a certificate of ability to practise dentistry, which certificate shall Certificates. be signed by said board and stamped with a suitable seal, to all applicants who undergo a satisfactory examination, and who receive at least four affirmative votes. III. To keep a book in which shall be registered the names and the qualifica- Registry. tions of such, as far as practicable, of all persons who have been granted certificates of ability to practise dentistry under the provisions of this act. 4. The book so kept shall be a book of record, and a transcript from it, certified to by the officer who has it in keeping, with the seal of said board of examiners, Copy to be evishall be evidence in any court of this state. Ibid. § 4. dence. Ibid. § 5. Quorum. Ibid. § 6. 5. Four members of this board shall constitute a quorum for the transaction of business; and should a quorum not be present on any day appointed for their meeting, those present may adjourn, from day to day, until a quorum is present. 6. Any person who shall, in violation of this act, practise dentistry in the state of Pennsylvania, shall be liable to indictment in the court of quarter sessions of Penalty for violathe proper county, and on conviction, shall be fined not less than fifty or more tion of the act. than two hundred dollars: Provided, That any person so convicted shall not be entitled to any fee for services rendered, and if a fee shall have been paid, the |