ÆäÀÌÁö À̹ÌÁö
PDF
ePub

placed in Knight v. Pugh, 4 W. & S., | waived all exemption laws. On the 445; Brown v. Street, 6 W. & S., 221; same date, an execution was issued on Albrecht v. Strimpler, 7 Pa., 476; Gray v. The Bank, 29 Pa., 365." See, also, Holme v. Karsper, 5 Bin., 469. It, therefore, appears to me that, while, under the Act of Assembly, the plaintiff may have been obliged to prove that it gave value for the note before maturity, without notice of fraud, yet, when it has done so by competent evidence, and nothing is shown on the part of the defendant to contravert the facts thus presented, it has made out a case that entitles it to recover. I am accordingly of the opinion that no error was committed in directing the verdict, and that the rule for a new trial should, therefore, be discharged.

the said judgment, to January Term, 1914, No. 7, returnable on the third Monday in January (January 19), 1914. The sheriff made return thereon that, on November 29, 1913, he had levied upon one horse, six sets harness, one market wagon, one Jenny Lind, carriage, two sleighs, hay in mow, one fat hog, tobacco in shed and barn, tobacco lath, four bedroom suits, twelve chairs, parlor suit, tables, carpets, couch, roll-top desk, spring wagon, one dray wagon, cooking utensils, dishes, and all other goods on premises." The fat hog, feed, chickens at tenant house, wood and tobacco lath were claimed by Moses Emenheiser. On December 3, 1913, the defendant filed a petition in the District Court of the United States, asking to be declared a Daniel D. Herr's Executors v. W. S. Krady. voluntary bankrupt, and on the same Execution Bankruptcy-Exempt prop-The sheriff, in his return, states that on day an order was entered to that effect. erty-Loss of lien-Sale on vend. ex. -Return of sheriff.

Rule discharged.

that day he received a notice of the bankruptcy proceedings. While some Where on a fi fa., waiving exemption, a depositions have been taken as to levy is made on personal property and the sheriff makes his return to that effect but does whether or not he had levied upon the not sell before the return day by reason of personal property above enumerated, I notice of defendant's bankruptcy after the levy, do not think this question is an open the lien is not lost and a vend. ex. may be one, as his return states that he made a issued after the return day to sell the prop-levy, and it is conclusive upon that point. erty set aside as exempt in the bankruptcy No application has ever been made to A judgment creditor of a bankrupt waiving set this return aside, and it, therefore, the exemption may sell the exempt property after the bankrupt's final discharge under a levy made by the sheriff before the discharge. Where a sheriff's return of a levy is full and explicit, it is conclusive and cannot be contradicted.

proceedings.

Jan

November Term, 1913, No. 78. uary Term, 1914, No. 7, Ex. Doc. Common Pleas of Lancaster County. Rule to show cause why writ of vend. Rule to show cause why writ of vend.

cr. should not issue.

Harvey B. Lutz, for rule.

H. Frank Eshleman, contra.
July 11, 1914. Opinion by LANDIS,
P. J.

in my judgment, stands at full force. In Park Bros. & Co., Lim., v. Oil City Boiler Works, 204 Pa., 453, Mr. Justice Mitchell, delivering the opinion of the Court, said: "While it is still the law that the sheriff's return is conclusive on the parties and cannot be contradicted, yet modern practice is liberal in allowing inquiry into the actual facts where the return itself is not full or explicit." In Rice v. Groff, 58 Pa., 116, it is said that "the sheriff's return is of such high authority that it cannot be contradicted."

The sheriff made no sale under the writ. No authority nor instruction was On November 29, 1913, a judgment given him by the plaintiffs in the exewas entered in favor of the plaintiffs cution not to pursue his writ. He did and against the defendant, to November not sell because of the notice of the Term, 1913, No. 78, for $8,000.00, con- bankruptcy proceedings. Therefore, on taining a clause whereby the defendant | February 27, 1914, a petition was pre

sented by the plaintiffs to this Court, stating that, as an order had been issued by Redmond Conyngham, Esq., Referee in Bankruptcy, restraining the sheriff from proceedings on the fi. fa., the property under levy having been claimed by the bankrupt as his exemption of $300.00, but not appraised, and that since, however, the appraisement had been made and filed and confirmed on January 26, 1914, they prayed the Court for leave to issue a writ of vend. exponas to sell the articles specifically enumerated in the petition as having been thus set aside. Thereupon, this rule was granted, returnable on the first Monday in March, 1914. It was not heard at the March Argument Court, but this was as much the fault of the defendant as of the plaintiffs, and did not, therefore, militate against the plaintiffs' rights.

The answer filed by the defendant asserts that, on the return of the levy, the writ expired, and the levy was then lost; and, further, that the plaintiffs should have secured from the District Court of the United States an order restraining the sheriff and continuing the lien, as that Court alone and not the Referee in Bankruptcy had power to make the original order. I, however, cannot see how the plaintiffs were interested in securing a restraining order. They wished to collect their debt, and had issued an execution in this Court to accomplish that object. The defendant, or his trustee, was the party to make, and the party that evidently did make, such an application before the Referee. That the defendant was discharged, as was stated in the supplemental answer, on April 1, 1914, pending the disposition of this rule, can surely make no change in the situation of the parties concerned. If the sheriff, in pursuance of his writ, took the defendant's personal property into constructive custody on the same, could that right be lost and the plaintiff's interests being jeopardized because the sheriff, on his own responsibility, did not proceed promptly to a sale of the said property before the return day of the fi. fa.? The defendant's own act in becoming a voluntary bankrupt interfered with the sheriff's effecting a

sale. The restraining order obtained at his instance prevented the sheriff from executing the writ of execution until the setting aside of the claim for exemption. But no proceedings to set aside the exemption were had until after the return day of, the writ, and, under the claim. made by the defendant, he had only to secure a postponement of the appraisement until after that time in order to escape from all liability on account of the levy. It would surely be a strange miscarriage of justice if the plaintiffs' right, without any concurrent act on their part, could thus be lost. In Gillespie v. Keating, 180 Pa., 150, and in many other cases, it is held that “an execution creditor who places his writ in the hands of the sheriff with instructions to make the money upon it, and who does not countermand or modify his instructions, or in any way interfere with the execution of the writ, does not lose his lien by the delay of the sheriff in making the sale." Nor is the lien lost and a sale prevented because no sale has been had before the return day. In Beale v. Commonwealth, 7 W., 183, Gibson, C. J., said: "The goods, however, remain in his custody and power to sell them notwithstanding, and it is necessary that the debtor be at liberty to redeem them without waiting for a venditioni exponas, which gives the officer no new authority, but compels him to use at all events that which he already has. It is text law that a sheriff may sell on a fieri facias after the return of his writ."

Whether or not, when the property seized is subject to the waiver of exemption laws, it can afterwards be sold in the State Court, has been determined. Thus, in Collyer on Bankruptcy, 8th ed., p. 148, the text-writer says: So where property claimed to be exempt is attached in a State Court, such property may be held under the attachment until it is determined in bankruptcy proceedings what part of the attached property has passed to the trustee, freed from the claim from exemption, and the Court may not restrain the suit in which the property was attached, nor determine whether such property was within a

waiver contract which is the object of the suit. Prior to Bardes v. Bank, 178 U. S., 524, it was thought, in some districts, that the still more general power conferred on Courts of Bankruptcy to 'determine controversies' gave the Federal Courts jurisdiction to pass on the validity of liens on the exempt property; that case, however, clearly negatived such a view." In Ralty Co. v. Gioshio, reported in 27 Am. Bank. Rep., 58 (affirmed in 50 Sup., 185), Shafer, J., of Allegheny County, held that "a discharge in bankruptcy takes away all personal liability for the debt discharged, but does not affect liens acquired against particular property before the discharge, so that a levy upon property exempt in bankruptcy, made after bankrupt's adjudication, but prior to his discharge, under a judgment entered on a warrant of attorney containing a waiver of exemptions, is not affected by the discharge"; and Criswell, P. J., of Venango County, in Gilmore & Co. v. Smith, 15 Dist. Rep., 347, that "a judgment creditor of a bankrupt, who holds a waiver by him of the benefit of the state exemption laws, may sell the exempt property after the bankrupt's final discharge under a levy made by the sheriff before final discharge." In First National Bank of Sayre v. Bartlett, 35 Sup., 593, it was decided that "a judgment creditor of a bankrupt who holds a waiver by him of the benefits of the state exemption laws, may have the sheriff levy upon and sell the exempt goods of the bankrupt at any time before his final discharge." See, also, Sharp . Woolslare, 25 Sup., 251; Adair 2. Decker, 34 Sup., 153; Zumpfe v. Schultz, 35 Sup., 106.

I am, therefore, of the opinion that the levy of the execution issued by the plaintiffs on their judgment remained upon the goods seized by virtue thereof by the sheriff, and that, as to such of them as were set aside as part of the debtor's exemption, the sheriff should proceed to make sale thereof for the benefit of the plaintiffs.

[blocks in formation]

February Term, 1913, No. 18. C. P. of Lancaster County.

Rule for judgment for defendant n. o. v.

T. Roberts Appel, Appel & Appel and Walter E. Greenwood, for defendant and rule.

E. M. Gilbert, contra.

July 11, 1914. Opinion by HASSLER, J.

The defendant asks us to enter judgment in his favor n. o. v., and bases this request on the reason that the plaintiff depended on a custom of the trade to recover, and there is not sufficient proof of such custom to establish it. We think the defendant is mistaken in this.

The plaintiff's claim is composed of three items, the third one of which is for services in purchasing supplies for and supervising the construction of a building that the defendant was having erected. This is the only one about which there is any dispute. As to it the statement says: "The supplies and labor for the construction of the whole building amounted to $1,451.53, exclusive of carpenter work; and for the buying of said supplies and materials, and having general supervision of the erection of said building, he has charged the defendant the sum of $145.15, which charge of ten per cent is the customary and usual price charged for work by contractors for the supervision of buildings of this character." The statement that this is the usual and customary charge

For these reasons, the rule is made does not place the plaintiff's right to absolute.

Rule made absolute.

recover on the existence of a custom, but it is equivalent to saying that it is

February Term, 1914, No. 30. C. P.

a proper and reasonable charge because
it is usual and customary. It is a state-of Lancaster County.
ment of a claim on a quantum meruit.

If the testimony failed to show that the charge was proper and such as the services were reasonably worth, the defendant could not recover, no matter what the customary charge of contractors for such service is. The plaintiff proved by his own testimony, and that of three other witnesses, that the services were worth the amount claimed, and that it was the usual charge made in the trade for them, and we submitted the question to the jury whether the testimony showed that the services were worth the amount charged or claimed or not, and the jury found that it did.

In Leavenworth v. Rothwell, I W. N., 587, the declaration was in the usual form except that the quantum meruit count was omitted. At the trial it was testified to by the plaintiff that he had done work of certain value, and there is no further evidence of the alleged services. The defendant asked the Court to charge that the plaintiff could not recover, as the declaration contained no quantum meruit count, and there was no proper evidence of the value of the services. It was held that this was not error, there being some evidence of the work and its value, and it was proper to give the case to the jury. In our case, the statement does contain a claim on what is equivalent to a quantum meruit. The testimony supported it, and the jury believed the testimony. We are, therefore, of the opinion that the plaintiff is entitled to his verdict, and discharge the rule to show cause why judgment should not be entered for the defendant n. o. V.

[merged small][ocr errors][merged small][merged small][merged small]

Rule for judgment for want of a sufficient affidavit of defense.

W. U. Hensel, for rule.
Coyle & Keller, contra.

July 11, 1914. Opinion by HASsler, J. In this case the plaintiff seeks to recover upon a replevin bond. The statement alleges that on November 20, 1913, C. B. Hertzler, one of the defendants, issued a writ of replevin to December Term, 1913, No. 35, and through it obtained possession of three horses then in the possession of A. R. Gumaer. The bond he gave was signed by himself, F. L. Heiser and H. S. Kissinger, the two other defendants. It is in the sum of $3,000, and contains this condition:

Now the condition of this obligation is such that if the said C. B. Hertzler fails to maintain his title to such goods or chattels, he shall pay to the party thereunto entitled the value of said goods and chattels, and all legal costs, fees and damages which the defendant or other persons to whom such goods or chattels so replevied belong, may sustain by reason of the issuance of such writ of replevin. Then this obligation to be void and of non-effect. Otherwise to be and remain in full force and virtue."

On December 4, 1913, more than seventy-two hours after the sheriff had taken possession of the horses and delivered them to the plaintiff, he discontinued his replevin proceedings, thus failing to maintain his title, and having failed to pay the plaintiff in this case, or his assignee, the value of said horses, and all legal costs, fees, and damages which he had sustained by the issuance of said writ of replevin, there was a breach of the bond, and the plaintiff here is entitled to recover.

In the statement, the plaintiff alleges that the value of the horses was $500, and that he incurred legitimate costs and fees to the amount of $200, making a total claim of $700.

Three affidavits of defense have been filed: one by C. B. Hertzler on March

21, 1914; another by F. L. Heiser and H. S. Kissinger on June 13, 1914, and the supplemental affidavit of defense by all of them of June 13, 1914. All are in time to prevent judgment, and if they, or any of them, contain a legal defense, the plaintiff is not entitled to judgment, for want of a sufficient affidavit of defense.

In them it is denied that the three horses were worth $500, and averred that they were only worth $225, and that the legitimate costs and expenses incurred were but $25. It is further alleged that the defendants have a setoff to this claim to the amount of $241. This set-off is the amount of damages, claimed to be due from the plaintiff because of a breach of a contract involving the horses for which the writ of replevin was issued. It is set forth with all the particularity required in such cases. That such a claim is a set-off in an

action on a bond is well settled in a

number of cases. See Plunket v. Sauer, 101 Pa., 356; Balsley v. Hoffman, 13 Pa., 603; Lierz v. Morris, 19 Sup., 73; North German Lloyd Steamship Co. v. Wood, 18 Sup., 488; Haines, Jones & Cadbury . Young, 13 Sup., 303; Callaghan v. Callaghan, 185 Pa., 273. The defendants allege that they know, are informed, believe, and expect to be able to prove all of these allegations at the trial, and we must accept them as true in this proceeding. As they constitute a sufficient defense to plaintiff's claim, we dismiss the rule to show cause why judgment should not be entered for the plaintiff for want of a sufficient affidavit of defense.

Legal Miscellany.

Legal v. Business Career.

"Many lawyers become attached to some of their clients and a strong feeling of friendship springs up. While this is but human, it is impractical. Very seldom such friendship is mutual and reciprocal. In most cases the clients will abuse it, and the lawyers will lose both clients and his friends. Better be aloof from them. Do your work honestly and get paid fairly, and don't make allowances for friendship. If you do anything for friendship, do it for nothing. Don't do things by halves.

"Try to get your fee before you render your services, or, at the latest, immediately after your services are over. If you wait, you will lose both your client and your fee.

promises. They will promise you golden "Don't put too much faith in client's mountains as long as they need you. When your services are over you will be forgotten, if you don't insist on the promises being kept; if you do insist, you will not only realize nothing, but you will also incur the animosity of your client, and you must expect severe criticism and defamation of character in the bargain. grates."

Remember, clients are in

He is decidedly cynical in his observations on the judiciary:

ably a valuable asset to a lawyer, but "A knowledge of law is unquestionwithout a knowledge of the judges it is a dull tool. You will be more successful if you learn the whims and idiosyncrasies of the judges before whom you appear, and you will be more successful if you know the judges themselves. It is better to know the judge than the law."

To the army of enthusiastic students who are knocking for admission to the Bar, his answer to the query, “What shall a lawver do to be successful?" is certainly discouraging.

"Let him," he says, "give up the law and betake himself to any other occupation. Let him be industrious and devote half as much of his energies as he devoted to law, and you can depend on re-it that he will become a better and hapHe pier man in half the time that it took him to become a lawyer."

Mr. Morris Salem, of the New York Bar, in the Medico Legal Journal, gives some advice to his fellow-lawyers garding their dealings with clients.

writes:

« ÀÌÀü°è¼Ó »