Weekly Notes of Cases. VOL. III.] THURSDAY, MARCH 1, 1877. [No. 22. Supreme Court. Jan. '75, 203. Maule et al. v. Stokes et al. Legal tender-Old ground-rent payable in "current silver money of the United States"-Tender of silver dimes insufficient. A ground-rent created in 1806 was payable in "current silver money of the United States." In 1875 the tenant tendered an instalment of the rent in silver dimes: was in force, providing for a gold and silver coinage from eagles down to half dimes, each and all to be a legal-tender for debts of any amount whatever. Matters so continued until the Act of 18th June, 1837 (Id., p. 152), when the weight of the silver coins was slightly altered, but the new coins down to half dimes were again declared legal tenders in payment of debts for any amount. This so remained until the 21st of February, 1853 Jan. 19, 1877. (with the exception of the passage of an intermediate Act of March 3d, 1851, authorizing the coinage of three cent pieces, not to be a legal tender for more than thirty cents), when an Act of Congress was passed, the first section again changing the weight of the silver coins of the denomination of half dollars and less, the second section of which declared that silver coins issued in conformity with the first section, should be legal tender in payment of debts not exceeding five dollars (Act 21 Feb. 1853, Brightly's Dig. Laws U. S., 152, pl. 13). It is under this last Act that the difficulty, if any, arises. If these silver coins, coined by the United States at the Mint thereof, and put in general circulation from that place under the Act of February 21st, 1853, are not "current silver money of the United States," what are they? The silver dollars with the exception of the new trade-dollar, which is not a legal tender, have disappeared, there being a profit in recoining them into the smaller coins. The result is that the half dollar and smaller coins issued under the Act of Februrary 21st, 1853, are not only the "current" but they are the only "silver money of the United States," and if we cannot pay in them we must pay in gold. Held, that the tender was insufficient, it being payable only in silver money of the United States which at the time of payment is a legal tender for the amount of the rent. Error to the Common Pleas No. 2, of Philadelphia County. Covenant by Stokes et al. against Harrison et al. to recover two instalments of ground-rent, due January 1 and July 1, 1875, under a certain ground-rent deed made by James Pemberton and wife to the defendants, dated Dec. 3, 1806, "Reserving a yearly ground-rent of $100 current silver money of the United States, payable half yearly." Returns of nihil habet, posting and advertising, were made by the sheriff. The terretenant, Maule, filed an affidavit of defence setting forth that he had tendered to the plaintiffs, upon their demand for payment, the amount of the instalment due January 1, 1875, with interest thereon to the time of the tender, and the amount of the instalment due July 1, 1875, on the day it became due, both in "current silver money of the United States," which (in order to raise fairly the real question between the litigants) the affidavit admitted "was in silver coins, coined at the Mint of the United States, of the denomination of one dime each, and that many of said coins were so coined since the 21st day of February, 1853. " John G. Johnson, for defendants in error. We submit that the tender was insufficient. (1) The contract was to pay in dollars, not in dimes. (2) The tendered dimes were not money. We contend that the grantor stipulated for something which should be "money," and that silver dimes, by the Act of 12th February, 1873, c. 131, § 15, are declared not to be within that category. * The legal tender Acts are inapplicable to this contract, because of its being one for coined money, and by these Acts debts payable in one species of The terre-tenant obtained a rule to show cause coined money are solvable in any coins which are why the money tendered should not be paid into legal tenders. There is no unreversed case, howCourt, which was discharged (2 WEEKLY NOTES, ever, which holds that a debt solvable in coined 332), and a rule taken by plaintiff's for judgmoney may be paid in such silver coins as, beyond ment for want of a sufficient affidavit of defence, was made absolute. The defendants took this writ of error, assigning for error the entry of said judgment. N. H. Sharpless, for plaintiffs in error. At the time of the creation of the ground-rent in this case, the United States Statute of April 2, 1792 (Brightly's Dig. Laws U. S. p. 151, pl. 1) $5 in amount, have never been monetized by any of the Acts which provided for their issue. Much is made, by the defendant, of the word The provisions of § 15, Act 12 February, 1873, are embraced in sect. 3586 Rev. Stat. U. S., which reads as be a legal tender at their nominal value for any amouut not exceeding five dollars in any one payment." follows: "The silver coins of the United States shall "current," but the construction he places upon | William S. Allen & Co. for materials furnished it denies any force to the quality of "money" for the construction of eleven houses under an also stipulated for. Had the deed called for dol- entire contract with Fonrose Millett, the owner. lars "current silver," there might be room for his The houses were in two blocks, one of five and contention; but it went far beyond that require- the other of six houses. The houses in each ment. So long as the silver tendered was block adjoined each other, but the blocks were "money," the covenantee agreed to take it, but separated by a large intervening space of ground. no longer. Claimants filed a separate lien against each house. Annexed to each claim was a bill of particulars to the amount of $3022.40, at the end of which was an averment of the following character :— Jan. 29. THE COURT. The words in this ground-rent deed mean such current silver money of the United States as will, at the time of the tender, lawfully pay a sum of one hundred dollars, the amount of the rent reserved. The reservation was of money, not of specific pieces, and therefore the contract could not mean that which was not competent money, at the will of the debtor, to pay the debt. Dimes were not competent money at the will of the debtor to pay a debt of this sum at the time of the tenders. fore were not good. The tenders there PER CURIAM. Judgment affirmed. WILLIAMS, J., absent. [The above decision practically overrules that of the Court of Common Pleas No. 4, in Kohler v. Parrish, 2 WEEKLY NOTES, 488, in which it was held that a mortgage created in 1846, for the payment of $5000 in lawful silver money of the United States, could be paid in silver half dollars. For a table of the Acts of Congress regulating the The materials, etc., mentioned in the foregoing bill of particulars were furnished for and used about the joint construction as well of the building mentione in the annexed lien, as of ten buildings; three of which are adjoining buildings, situate on the south side of Diamond Street, commencing at the distance of 36 feet 5 inches east of Third Street. Two of which adjoin the herein described building to the south, and five of which are adjoining buildings, situate on the east side of Third Street, commencing at the distance of 212 feet 3 inches south of Diamond Street; and of all of which the said Fonrose Millett is the owner or reputed owner and contractor; and against all of whic's buildings a lien is filed to the present June Term, 1872, of this Court; and the annexed lien is filed for an equally apportioned pro rata of the above sum of $3022.40. Writs of scire facias were issued on each claim, and the cases were tried together. On the trial (before MITCHELL, J) claimant's book of values of gold and silver coins, see Morris v. Ban-original entries was offered in evidence, containing eroft, 1 WEEKLY NOTES, 223.] July '75, 47 to 49, 97 to 104. the following entry : Fonrose Millett's houses on Third Street below Diamond and Diamond below Third. Then followed the items set forth in the bill Jan. 12, 1877. of particulars. Defendant objected to the book because the entries did not designate the precise materials furnished to each house. Objection overruled. Exception. The defendant waived. any question on the facts of the case, but requested the Court to charge, "that, as each claim filed does not designate the specific materials furnished on the credit of the house described in the scire facias, the verdict must be for the defendant." The Court declined so to charge, and directed the jury to find for the plaintiff. Millett v. Allen. Mechanic's lien-Materials furnished indis criminately to several houses under an entire contract-Right to apportion amount due on each house, and file separate liens therefor Houses situated in different blocks-Evidence-Book entries—Admissibility in evidence when not designating the materials furnished to each house. Where materials are furnished indiscriminately for a number of houses, under an entire contract, the material man has the right to apportion the amount due on each house and to file separate liens therefor. Whether the right of apportionment exists where the houses do not adjoin but are situated in different blocks, not decided. On the trial of a scire facias upon a separate apportioned lien, claimant's book of original entries, containing entries of the items furnished to all the buildings without designating the precise materials furnished to each building, is admissible in evidence. Verdict and judgment for plaintiff in each case for the amount of the respective claims. Defendaut took this writ, assigning for error the admission of the book account and the refusal of the Court to charge as requested. David W. Sellers and William A. Manderson, for plaintiff in error. The "kind and amount materials furnished" to each house are not set forth. This makes the claim incurably defective. Act of June 16, 1836, Purd. Dig. 1032, pl. 43. In cases in which the same owner is erecting Error to the Common Pleas No. 2, of Phila- several houses, the material man must furnish au delphia County. apportioned claim under the Acts authorizing Scire facias sur mechanic's claims filed by such claims. Purd. Dig. 1033, pl. 41, 42, 43. Taylor v. Montgomery, 8 Harris, 445. In the case of Davis v. Farr (1 Har. 168), the adjoining houses belonged to separate owners and Judgment note— Warrant of attorney to confess no joint claims could be filed. George W. Thorn (with whom was Bowers), contra. The Acts authorizing joint liens are not imperative, and notwithstanding these statutes the material man may still file separate claims whether the buildings are contiguous or not. Pennock v. Hoover, 5 Rawle, 313. In the present case a joint lien could not have been filed, for the reason that an intervening space which was not annexed to either block of buildings separates them from each other. This is well settled. Chambers v. Yarnall, 3 H. 265. Fitzpatrick v. Allen, 2 WEEKLY NOTES, 265. The question then recurs: Where materials are furnished indiscriminately, under one contract, to two or more buildings which do not adjoin, in what form is the mechanic to obtain the benefit of the statutes which authorize a claim to be filed for materials which are furnished for or about the erection of every building? It is evident that he must file a several claim against each building, and designate the amount which he claims on each, as, under the decisions, he can have no other. See, on this point Davis v. Farr, 1 H. 167. Harper v. Keely, 5 H. 234. A book of original entries charging for materials delivered to two or more buildings would be good evidence against one. This has been everyday practice. Jan. 22. THE COURT. The book account was evidence of the items in the account, and was admissible. The right to apportion as between even different owners, where the account is joint and furnished to the same contractor for all the buildings indiscriminately, and to file separate liens therefor, is settled in Davis v. Farr (1 Harris, 167), and Harper v. Keely (5 Harris, 234). The assignments of error do not raise the question whether the eleven buildings for which the bill was furnished were situate in different blocks. We see no error in the record, and no bill of exceptions was taken as to the alleged blocks. The same judgment to be entered in each case, eleven cases. PER CURIAM. Judgment affirmed. WILLIAMS, J., absent. [See Rush v. Bank, 2 WEEKLY NOTES, 263; Armbrust v. Galloway, Id. 585; Moore v. Hotel Co., ante, 289.] judgment-Joint warrant attached to a joint and several obligation-Effect of the death of one of the obligors—Judgment against the survivor-Modification of English law by Pennsylvania legislation. $832. MEADVILLE, PA., Dec. 6th, 1873. Six months after date, for value received, we, or either of us, promise to pay to Miss Jane Tallant, or order, eight hundred and thirty-two dollars, with interest, money borrowed, and in case of default of payment at maturity, an additional five per cent. for the Attorney's fees for collection of the same. And we empower any Attorney of Record in this Commonwealth, or elswhere, to appear for us and confess judgment against us for the above sum, together with the 5 per cent. additional, with costs of suit, release of errors, and without stay of execution; and for value received do waive the right and benefit of any law of this or any State exempting property, real or personal, from sale, and if levy be made on laud, do also waive the right of inquisition, and consent to the condemnation thereof, with full liberty to sell the same on fi. fa., with release of errors thereon. The words "either of us" interlined before signing. Due June 6th, 1874. (The italics represent the writing in the note, the rest being printed.) Gray died in April, 1874. Afterwards judgment was entered upon the note against Croasdell and Sacket as survivors. Croasdell obtained a rule to show cause why it should not be stricken off for the reason judgment was a joint power, and, after the death "that the power to confess of judgment against Croasdell and Sacket, or of Gray, did not authorize the entry or confession either of them, as survivors.” low refused to strike off the judgment. CroasThis rule was discharged, and the Court bedell took this writ, assigning for error such refusal. 1 Trou. & Ha. Pr. 401. Raw v. Alderson, 7 Taunt. 453. It makes no difference that the note is several. This point is expressly decided in H. L. Richmond & Son, for plaintiff in error. | departure from its true intent to construe the The note and the power to confess judgment, warrant to be several as well as joint. But though embodied in one paper, are separate and treating it as joint, as the plaintiff did, we are distinct instruments. And the power being joint not disposed to follow the English case of Gee v. only, the death of Gray worked its revocation, Lane (15 East, 592). The theory of judgments and there was no authority for entering judg- according to the English law, has been so greatly ment against the two who survived or either of changed in Pennsylvania by legislation, it will not them. do to follow English precedents too implicitly. The Act of 21st March, 1772, required the day of the month and year to be noted by the person signing judgments, and gave them effect only from that time, contrary to the custom by which By they related to the first day of the term. of several joint obligors, copartners, promissors, the Act of 6th April, 1830, judgment against one etc., shall not bar suit against those not served, nor shall amicable confessions bar. By the Act of August 2, 1842, § 6, judgments against defendants at different times are made valid, and a scire last entry. And by the Act of 11th April, 1848, facias issued to revive them as of the day of the $5, a judgment recovered against one of several copartners, joint and several obligors, etc., without a plea in abatement, shall not bar a subse Gee v. Lane, 15 East, 592. If the makers of this note had intended the power to be several, they would have said so by interlining the words "or either of us" in it also. But not having done so, there is no better established principle than that the intention of the donor of a power must be strictly followed. Tiffany & Bullard on Trusts, &c., 370. Thomas Roddy (J. B. Brawley with him), contra. The obligation given by defendants, together with the warrant, is one instrument, and must be so construed. Such is evidently the intent of the parties, elsequent suit against others not parties; and by the why should "either of us" have been interlined. Wherever there is the slightest indication of intention to create a severalty, it is permitted to alter the legal result; and it is the duty of the Court to give effect to every instrument according to its intent, however inartificially it may be drawn. Besore et al. v. Potter, 12 S. & R. 164. Taking the instrument in its entirety, we may fill in the ellipses, and fairly arrive at its true intent. Geddis et al. v. Hawks, 10 S. & R. 38. Klapp v. Kleckner, 3 W. & S. 519. Nov. 24. THE COURT. The warrant of attorney in this case was treated as joint by the plaintiff, and judgment entered against the two survivors. The obligation, however, was joint and several, and the warrant of attorney a part of it, and a mere continuation of the instrument before the signatures. It would scarcely be a 3d section, the death of one of the defendants the wide departure of our law from the English shall not discharge his estate. Looking then to rules affecting judgments, and also to the fact that the Prothonotary may, under the Act of 1806, enter judgment on a bond and warrant of attorney without the intervention of an attorney and confession of the judgment, we must treat this case as one to be governed by the intent of the warrant rather than by English decisions. PER CURIAM. Judgment aflirmed. WILLIAMS and MERCUR, JJ., absent. general applies for a writ of quo warranto, she is enti- | defendant should be legally adjudged guilty of the tled to it without a previous rule to show cause; aliter as to a private relator. Error to the Common Pleas of Butler County Quo warranto issued at the relation of the attorney general against the defendant, George Walter, requiring him to show by what warrant he claimed to use, exercise, and enjoy the office of high sheriff of Butler County. The suggestion of the attorney-general charged that defendant was a candidate for the office in 1875; that he was returned as elected thereto at the general election held in November of that year; and that while he was a candidate for said office he was wilfully and corruptly guilty of bribery, fraud, and the wilful violation of the election laws of this Commonwealth." The suggestion then proceeded to charge specific vio lations of the election laws, and the further offence of perjury in taking the oath of office Upon the filing of this suggestion, the Court below entered a rule on respondent to show cause why a writ of quo warranto should not issue. An answer was filed by the respondent in which the charges set forth in the information were specifically denied. crimes charged in the information before proceedings can be instituted to remove him from office, of Attorney for Commonwealth do direct the and therefore discharge the rule, but at request writ to issue pro forma as of date of rule to show cause, and do enter judgment quashing the writ." The Act of 14 June, 1836 (Purd. Dig. 1206, pl. 2), provides that writs of quo warranto may issue in case any person shall usurp, intrude into or unlawfully hold or exercise any office, or in such office shall have done, suffered or omitted to case any person duly elected or appointed to any do any act or thing whereby a forfeiture of his office shall by law be created. of Constitution cover this case, the latter declaring This act and the first clause of Art. VIII. § 9 the offences and penalty, the former the remedy. But if the opinion of the Court below be corthe issuing of the writ, and that the offender may rect, that a prior conviction is necessary before then be removed by the Governor, either the After argument, the Court below (BREDIN, P. J.) delivered an opinion, holding, that the mischief intended to be remedied by Articles VII. and VIII. of the Constitution was that, before its adoption, the Governor could only remove an officer for misbehavior in office, or upon convic-attorney-general will be divested of his prerogation of an infamous crime, and it had been held that bribery was not an infamous crime; that to remedy this, the seventh article of the Constitution required the officer to take an oath that he had not committed bribery, and provided that if he should be convicted of having sworn falsely, he should be guilty of perjury, and be disqualified from holding office; that perjury being an infamous crime, the Governor could, upon a convietion under this article, remove the officer from office; that the ninth section of Article VIII.* was intended only to extend the disqualification to hold office to unsuccessful as well as successful candidates, who should commit bribery, but was not intended to dispense with the necessity of a conviction before an incumbent could be deprived of office. The Court, therefore, entered the following decree May 6, 1876 : "After hearing, the Court is of opinion that * Art. VIII., § 9 of the Constitution, is as follows: "Any person who shall, while a candidate for office, be guilty of bribery, fraud or wilful violation of any election law, shall be forever disqualified from holding any office of trust or profit in this Commonwealth, and any person convicted of wilful violation of the election laws, shall, in addition to any penalties provided by law, be deprived of the right of suffrage, absolutely, for a term of four years." their offices, as it would then belong to the tive of inquiring by what authority officers hold Quarter Sessions and Governor, or else two trials and two condemnations are necessary for the same offence. The latter method cannot be the one intended, as it would involve too closely a contested race between the term of office and the proceedings at law. Is then conviction an essential prerequisite in proceedings by quo warranto? Quo warranto is proceeding at law, and the fact of defendant's right to office is triable by a jury. Conviction is unnecessary to give jurisdiction. Commonwealth v. Alien et al, 20 Sm. 465. It certainly was not essential at common law, and it is not required by the Act of 1836, regulating such proceedings. Does the Constitution require it? Only if the word "adjudged" be interpolated before "guilty," in the first clause of If this be necessary, why should "convicted" be used in the second clause? The word guilty is there used in its ordinary, popular sense, or else why was the phraseology of the last clause changed? The latter embraces a larger class of individuals. sec. 9. Defendant's constitutional rights in the case are simply trial by due process of law, and this an information in the nature of a quo warranto affords |