in opinion on the principal question in the case. Two of the judges are of opinion that after a final decree of distribution among the creditors of an insolvent estate, assigning to each his proper proportion, the administrator de bonis non, &c., cannot maintain an action against the former administrator for the money so decreed to be distributed, but that the creditors may at once take out executions for the sum decreed to them. This view is entertained by Mr. Justice Woodward and myself. Mr. Justice Lowrie and Mr. Justice Knox, entertain the contrary opinion, and hold that the action may be maintained. We are, therefore, unable to reverse the judgment. It stands affirmed by reason of an equal division of the judges. Judgment affirmed. In the Supreme Court of Pennsylvania. LOVERING ET AL. v. THE COMMONWEALTH. (Vol. IV., p. 684, 1856.) A failure to make the affidavit required by the Act of the 4th of March, 1824, (Brightly's Purdon 833,) prior to the appeal of a defendant from the judgment of a justice of the peace for the amount of a shop tax, is fatal, and the appeal will be stricken off on motion. ERROR to the Common Pleas of Philadelphia. In July, 1853, judgment was rendered by a justice of the peace against the defendants (plaintiffs in error) for the amount of shop tax alleged to be due the Commonwealth. The defendants appealed to the Court of Common Pleas, but neglected to make the affidavit required by the Act of Assembly. After the appeal was filed, the Commonwealth entered a rule to show cause why the appeal should not be stricken off. Defendants then asked leave to perfect the record by filing the affidavit required. The Court refused the application, and made the rule to strike off the appeal absolute, whereupon defendants took this writ of error. THE opinion of the Court was delivered by BLACK, J.-This was a judgment before an alderman for the amount of a shop tax assessed upon the defendant below, according to the statute. They were entitled to an appeal if they would make an affidavit that it was not taken for delay. The affidavit was not made, and the Court, on motion, struck off the appeal. We think it was right. Our construction of the act is that it makes a previous affidavit the condition on which the right of appeal depends. We do not see the analogy of this case to Means v. Trout, 16 S. & R. 349, or Louderback v. Boyd, 1 Ashm. 380, near so plainly as the counsel for the plaintiff in error. Judgment affirmed. In the Supreme Court of Pennsylvania. GERMAN'S APPEAL-SIEGFRIED'S ESTATE. (Vol. IV., p. 684, 1856.) Where a debtor assigned a judgment for the purpose, in fact, of securing the payment of a specific debt, although the assignment was absolute on its face, the assignee cannot, by purchasing subsequently to the assignment, other claims against his debtor hold the balance of the assigned judgment to apply to these claims, either against the debtor himself or his subsequent assignees, and this whether the claims were purchased prior or subsequent to the second assignment. ERROR to the Court of Common Pleas of Lehigh County. Thomas P. Hoffman, on the 15th of December, 1854, assigned a judgment obtained by him against Siegfried, for $507 03, to German and Engleman, to secure them from loss on account of their accommodation endorsement of his note for $250. This note was afterwards taken up by German and Engleman. The assignment of the judgment was absolute on its face. On the 23d of December, 1854, Thos. P. Hoffman assigned all his right, title and interest in the judgment to John and James Hoffman, for a valuable consideration. Siegfried's real estate was sold December 16, 1854, under another judgment, the proceeds paid into Court, and a commissioner appointed to report distribution. After paying expenses and prior liens, there remained a balance of $484 03, applicable to Hoffman's judgment. German and Engleman claimed the whole of this balance by virtue of their assignment, and produced before the commissioner claims against Thos. P. Hoffman, purchased by them subsequent to the assignment. The evidence as to whether they were purchased prior or subsequent to the assignment to John and James Hoffman was conflicting. The latter claimed by virtue of the assignment to them the balance after German and Engleman had been paid the $250, to secure which the judgment had been assigned to them. The commissioner reported the testimony to the Court, who decreed that the judgment should be applied first to the payment of the $250, and the balance to John and James Hoffman. R. E. Wright and W. S. Marx, Esqs., for appellants; H. C. Longnecker, Esq., for appellees. The following opinion was delivered by M'CARTNEY, P. J.—The transfer of property by the act of the party is conditioned by his consent, expressed by appropriate testimony. The voluntary assignment of a judgment is not limited by any technical terms of conveyance, and hence matter in pais may be annexed by way of evidence to matter of record to evince the purpose, limits and other stipulated incidents of the transfer. In the principal case the conceded purpose of the first assignment was to secure the assignees to the extent of two hundred and fifty dollars, the amount of their endorsement. The assignment limited to this sum by agreement is sought to be extended by the operation of law, to secure other liabilities of the assignor that afterwards came into the hands of the first assignees. The transfer of a judgment, like that of any other chose in action, derives its effect from equitable rather than from legal principles. Equity seeks out the intention of parties, and gives effect to that intention, except when a fixed rule of law intervenes to impose a technical operation upon their acts and words. Whence can a legal extension be derived to the agreement of the parties to the first assignment? Is it from viewing the assigned judgment as a security in the nature of a pledge or mortgage? In the absence of agreement, a pledge does not secure subsequent advances by the pledgee Story on Bailments, § 304, &c., and the right to tack a mortgage was grounded on the rule that equity will not destroy an estate subsisting at law, until all equitable demands are satisfied: Brace v. Duchess of Marlb., 2 P. Wms. 491. On this ground also, an heir, in England, could not redeem without paying the ancestor's bond held by the mortgagee, and yet the assignee of the heir could redeem upon payment of the mortgage only, as could also a subsequent encumbrancer and specialty creditor: Coleman v. Hinch, 1 P. Wms. 776; Fonb. Equity, B. 3, ch. 1, §§ 9, 10, 11. The reason given by Lord Thurlow, why a mortgagee, even in England, can tack his bond to his mortgage, is to prevent a circuity of suits. It is solely a matter of arrangement, for in natural justice the right has no foundation: Fonb. Equity, ut supra. Hence it does not obtain against a subsequent purchaser, with or without notice. In Pennsylvania a mortgage is not extended, by operation of law, to other debts than those comprised in the agreement, and this suggests the principle of the decision in the present case. Whether the first assignment be viewed as a pledge, or as in the nature of a mortgage, the subsequent assignees would be entitled in equity to redeem upon payment of the $250 note. John and James Hoffman are therefore entitled to the judgment of Thomas P. Hoffman v. Jesse Siegfried, after deducting the $250, for the security of which it was assigned. Decree accordingly. From this decree German and Engleman took this appeal. The opinion of the Court was delivered by KNOX, J.-The reasons given by the learned president of the Common Pleas, for the decree which was made below, are entirely satisfactory. The legal title to the judgment of Hoffman v. Siegfried, passed by the assignment to the appellants, but as to all except the sum of two hundred and fifty dollars, they held the title as trustees. It was not a sale of the judgment, but a transfer for a specific purpose. When two hundred and fifty dollars of the judgment was paid to the appellants, or applied to the payment of the note which they had endorsed, the residue was the property of the assignor or of his subsequent assignee. The notes which the appellants purchased against Hoffman gave them no right to receive the whole of the money distributed to the judgment in question, whether purchased before or subsequent to the second assignment. Decree affirmed at the costs of the appellants. In the Supreme Court of Pennsylvania. WILLIAMS ET AL. v. MULLAN. RANDOLPH'S APPEAL. (Vol. IV., p. 692, 1856.) 1. R. sold and conveyed several lots of ground to M. upon ground-rent. At the time of the conveyance there existed a mortgage upon these and other lots given by R. himself, but the sale was to be clear of encumbrance. The property was sold at sheriff's sale under a mechanics' claim filed against M. At the sale, R. gave notice that the property about to be sold was subject to the mortgage, and himself became the purchaser. Held, that R. was not debarred from coming in upon the fund arising from the sale, for claims which he owned, either by having neglected to discharge his mortgage, or by having given the notice at the sheriff's sale. APPEAL from the District Court of Philadelphia. Appeal by E. T. Randolph from the decree of distribution of the fund arising from the sheriff's sale of the real estate of James Mullan. On the 20th of September, 1852, Randolph conveyed to Mullan sundry lots of ground, reserving ground-rent. At the time of the conveyance there was a mortgage for $6800 given by Randolph on these and other lots. The deeds contained the usual covenant on the part of the grantor for quiet enjoyment. Mullan built upon the lots and the properties were sold at sheriff's sale under proceedings upon a mechanics' claim. At the sale, Randolph by his agent gave notice that the property about to be sold was subject to a mortgage of $6800. Randolph himself was the purchaser. The proceeds were paid into court, and an auditor appointed to distribute the fund, which, after deducting costs VOL. I.-22 |