Sidor som bilder

7 Sm. 435.

To be in lien of in

terest and charges.

30 March 1821 § 2. protest, to the time when notice of the protest and demand of payment shall have been given and made as aforesaid: and the amount of such bill, and of the damages payable thereon, as specified in this act, shall be ascertained and determined by the rate of exchange, or value of the money or currency mentioned in such bill, at the time of notice of protest and demand of payment as before mentioned.(v).

Amount to be

regulated by rate of exchange at time of demand.

11 April 1825 § 1. 8 Sm. 471.

9. In suits on the same instrument, bond or note, where several are bound, and in suits against the maker, indorser or indorsers of any note; and in suits on In several suits on any bills of exchange against the drawer, acceptor or any indorser or indorsers the same bill, but thereof, there shall be a taxation and recovery of the attorney and counsel fees, one attorney-fee to taxable by law, in one of the said suits only, at the election of the party plaintiff;

be taxed.

5 April 1849 § 10. P. L. 426. Consideration of recovered back.

and no fees (w) for attorney or counsel shall be allowed or taxed, in any suit or suits brought on the same instrument, bond, note or bill of exchange, against the party or parties thereto, other than in one where the election is made as aforesaid.

10. Whenever any value or amount shall be received as a consideration in the sale, assignment, transfer or negotiation, or in payment of any bill of exchange, draft, check, order, promissory note or other instrument negotiable within this forged bills may be commonwealth, by the holder thereof, from the indorsee or indorsees, or payer or payers of the same, and the signature or signatures of any person or persons represented to be parties thereto, whether as drawer, acceptor or indorser, shall have been forged thereon, and such value or amount, by reason thereof, erroneously given or paid, such indorsee or indorsees, as well as such payer or payers respectively, shall be legally entitled to recover back from the person or persons previously holding or negotiating the same, the value or amount so as aforesaid given or paid by such indorsee or indorsees or payer or payers respectively to such person or persons, together with lawful interest thereon, from the time that demand shall have been made for repayment of the same. (x)






12 March 1789 § 10. 2 Sm. 478.

Kegs to contain

seven pounds each. Penalty for viola




1. Kegs to contain seven pounds each. Penalty of violation.

1. Each and every keg in which biscuit shall be exported from this commonwealth, or herein exposed to sale for exportation, shall contain at least seven pounds of good and merchantable biscuit; and all and every person or persons who shall export biscuit from this commonwealth, or therein expose the same to sale for exportation in any keg or kegs, containing a less quantity and inferior quality of biscuit than is hereby directed, shall forfeit and pay the sum of five shillings for every keg so exported or exposed for sale for exportation, contrary to the meaning and direction of the act.(y)

(v) Damages on a foreign bill, protested for nonpayment, are recoverable at the rate of exchange at the time of presentment, to the drawer for payment, accompanied with notice of protest, and not at the rate at the time when notice of protest was received by the drawer, without a presentment of the bill. Stuart v. Ralston, 2 M. 257. But see Taan v. Le Gaux, 1 Y. 204. Cropper v. Nelson, 3 W. C. C. 125. Damages are not recoverable, if the bill was neither paid nor received in satisfaction of a precedent debt. Chapman v. Steinmetz, 1 Dall. 261. Hazelhurst v. Kean, 4 Y. 19. If remitted at the risk of the debtor here, he is entitled to the damages, and not the foreign creditor. Keppele v. Carr, 4 Dall. 157. The damages allowed by the statute are a compensation for interest, damages and re-exchange; and the holder may recover the amount of the bill and damages, with interest on the whole from the date of protest. Lloyd v. McGarr, 3 P. S. 474, 482.

(w) This applies to the fees of plaintiffs' attorneys only, and not to defendants'. Columbia Bank & Bridge Co. v. Haldeman, 3 Clark 167.

(2) This act was only declaratory of the existing law. Notice of the forgery within a reasonable time after its discovery, and an offer to return the bill, are necessary to the maintenance of an action for the recovery of the consideration paid, unless waived by the defendant, or the bill be shown to possess no value. Roth v. Crissy, 30 P. S. 145. Rick v. Kelly, Ibid. 527. Summers v. Ritchie, Ibid. 147, note. And see Beetem v. Burkholder, 69 P. S. 249. Tradesmen's Bank v. Third National Bank, 66 Ibid. 435. Chambers v. Union Bank, 78 Ibid. 205. Corn Exchange Bank v. Bank of the Republic, Ibid. 233.

() The mode of recovery of this forfeiture to be as other debts of the same amount: the other sections have been repealed.










[blocks in formation]

25. Judgment for defendant not to bar other suits on the same bond.

26. How judgment to be entered.

27. Judgment for commonwealth, not to be a lien, except in certain cases.

28. Judgment for plaintiff to be a lien.

28 May 1715 § 1. 1 Sm. 90.

29. Scire facias may issue for subsequent breaches. 30. Effect of judgment.

31. Sureties may pay into court the penalty and costs.

32. Certain defects in official bonds cured.

I. Of the assignment of bonds.

1. All bonds, specialties and notes in writing, made or to be made, and signed by any person or persons, whereby such person or persons is or are obliged or doth Bonds to be assign- or shall promise to pay to any other person or persons, his, her or their order or assigns, any sum or sums of money, mentioned in such bonds, specialties, note or notes, may by the person or persons to whom the same is or are made payable, be assigned, indorsed and made over to such person or persons as shall think fit to accept thereof.(z)


Ibid. § 2. Assignees may again assign.

Ibid. § 3.

Assignees may sue in their own


Ibid. § 4.

Judgment to be

rendered as in other cases.

Ibid. § 5.

And execution to

issue thereon.

Ibid. § 7. Not to legalize

bonds otherwise prohibited.

Ibid. § 8.

Ibid. § 9.

Assignor not to release after assignment.

2. The person or persons to whom such bonds, specialties or notes are or shall be assigned, indorsed or made over, their factors, agents, executors or assigns, may, at his, her or their pleasure, again assign, indorse and make over the same, and so toties quoties.

3. It shall and may be lawful for the person or persons to whom the said bonds, specialties or notes are assigned, indorsed or made over as aforesaid, in his, her or their own name or names, (a) to commence and prosecute his, her or their actions at law, for recovery of the money mentioned in such bonds, specialties or notes, or so much thereof as shall appear to be due at the time of such assignment,(b) in like manner as the person or persons to whom the same was or were made payable might or could have done. (c)

4. In every such action, the plaintiff or plaintiffs shall recover his, her or their damages and costs of suit; and if such plaintiff or plaintiffs shall be nonsuited or a verdict be given against him, her or them, the defendant or defendants shall recover his, her or their costs against the plaintiff or plaintiffs.

5. Every such plaintiff or plaintiffs, defendant or defendants, respectively recovering, may sue out execution for such damages and costs, in the like manner as is usual for damages and costs in other cases.

6. No person or persons shall have power, by virtue of this act, to make, issue or give out any bonds, specialties or notes, by themselves or servants, than such as they might have made, issued and given out, if this act had never been made. 7. All assignments made of bonds and specialties shall be under hand and seal, before two or more credible witnesses.

8. Provided, That it shall not be in the power of the assignors, after assignment made as aforesaid, to release any of the debts or sums of money really due by the said bonds, specialties or notes.

(z) A corporation bond, payable to an obligee, named, or his assigns, is assignable under this act. Bunting v. Camden and Atlantic Railroad Co., 81 P. S. 254. But a corporation bond, payable to bearer, is a negotiable instrument, upon which the holder may sue in his own name, irrespective of the statute. Carr v. Le Fevre, 27 P. S. 413. Kerr v. Corry, 14 W. N. C.


(a) The object of this act was to enable an assignee to maintain an action in his own name. Wheeler v. Hughes, 1 Dall. 27. Gourdon v. Insurance Co., 1 Binn. 433 n. Bury v. Hartman, 4 S. & R. 177. Faull v. Tinsman, 36 P. S. 108. He takes subject to all the equities existing between the parties at the time of the assignment. Wheeler v. Hughes, 1 Dall. 28. Inglis v. Inglis, 2 Ibid. 49. Rundle v. Ettwein, 2 Y. 23. Gourdon v. Insurance Co., 1 Binn. 433 n. Baring v. Shippen, 2 Ibid. 165. Solomon v. Kimmel, 5 Ibid. 232. Bury v. Hartman, 4 S. & R. 177. Mann v. Dungan, 11 Ibid. 75. Frantz v. Brown, 17 Ibid. 287. Frantz v. Brown, 1 P. & W. 257. Houk v. Foley, 2 Ibid. 245. Northampton Bank v. Balliet, 8 W. & S. 318. And to payments made to the assignor before notice of the assignment. Bury v. Hartman, 4 S. & R. 175. Brindle v. McIlvaine, 9 Ibid. 74. Hodgdon v. Naglee, 5 W. & S. 217. Pellman v. Hart, 1 P. S. 266. McFarlane v. Griffith, 4 W. C. C. 585. But if the assignee, when about to take the assignment, call upon the obligee to inquire whether the whole money is due, and take the bond in consequence of his representations, or of his silence as to any defence, he will be protected. Carnes v. Field, 2 Y. 541. Gourdon v. Insurance Co., 1 Binn. 433 n. Solomon v. Kimmel, 5 Ibid. 234. Lewis v. Reeder, 9 S. & R. 197. McMullen v. Wenner, 16 Ibid. 18. Elliott v. Callen, 1 P. & W.

24. Decker v. Eisenhauer, Ibid. 476. Houk v. Foley, 2 Ibid. 245. Henniss v. Page, 3 Wh. 275. Buchanan v. Wurtz, 5 W. 151. But he must be an assignee for value; a creditor who takes an assignment of a mortgage as security for a pre-existing debt, will not be protected. Burns v. Ashton, 4 Brewst. 151. The assignee of an assignee is subject to the same rule. Metzgar v. Metzyar, 1 R. 227. The equity, however, which will affect an assignee for value only extends to want of consideration and defalcation, and not to collateral agreements between the parties. Davis v. Barr, 9 S. & R. 141. Frantz v. Brown, 1 P. & W. 260. Northampton Bank v. Balliet, 8 W. & S. 318. Beckley v. Eckert, 3 P. S. 294. Nor to secret equities residing in strangers. Mott v. Clark, 9 P. S. 399. Wetherill's Appeal, 3 Gr. 281. And an equitable assignee of a bond given by an innocent purchaser will be protected against an unrecorded mortgage. Burke v. Allen, 3 Y. 351. A covenant of guaranty, indorsed on a bond, does not pass by an assignment of it. Beckley v. Eckert, 3 P. S. 292. Mc Doal v. Yeomans, 8 W. 361. The covenant implied from the assignment of a bond is not a guarantee, but that the assignee should receive the money from the obligor to his own use, and if the obligee should receive it, then that the assignor would be answerable over for it. Cummings v. Lynn, 1 Dall. 449. Lloyd v. McNamara, 19 P. S.


(b) The assignee of a specialty may recover, not only the amount due at the date of assignment, but what accrued subsequently, before suit brought. Franz v. Morgan, 6 Phila. 8.

(c) This act has no application to a suit brought in the name of the assignor, for the use of the assignee. Philadelphia v. Lockhardt, 73 P. S. 211.

II. State and corporation bonds.

P. L. 47.

bearer inay be ex

9. Bonds which have been or which may be issued by the state of Pennsylvania, 2 May 1879 § 1. or by any county, city, municipal authority or corporation therein, payable to bearer, may, at the option and at the expense of the holder thereof, be returned, Bonds payable to and new registered bonds of the same, or of a larger, denomination, to the aggre- banged for regisgate amount thereof, be issued, payable at the same time and place as the bonds tered bonds. so retired, to the order of the holder of said registered bonds, and be transferrible only in the presence of the register, transfer-agent, clerk, or other person duly How transferrible. authorized by such state, county, city, municipal authority or corporation to keep the transfer book and make such exchanges and transfers; which book of transfers the parties or corporations issuing such bonds are hereby required to keep;

and for the interest due or to become due on the bonds so retired as aforesaid, it Interest certifishall be lawful for the obligors to issue interest certificates, at the same rate of cates. interest, due at the same time and place as the original coupons corresponding with the denominations of the registered bonds, and payable to the order of the holder of said registered bond. (d)

10. It shall further be lawful for any corporate body as aforesaid, which shall 1 May 1873 § 2. issue or may have issued coupon bond or bonds payable to bearer, to register any

P. L. 87.

such original bond or bonds in the name of the holder thereof, and upon his or her Original bonds request, and at his or her expense, and stamp or print in large type, or write upon may be registered. the face thereof, that the same will only be paid to the order of the registered holder thereof; and from and after such stamping, printing or writing, such bonds shall only be transferrible in the manner provided for in the first section of this

act, unless the holder shall make them payable to bearer by a properly attested Effect thereof. assignment to that effect; such bond shall continue subject to successive registrations, limitations or transfers to bearer, at the option of each holder; and the word registered, stamped, printed or written upon the coupon of such bonds, shall be legal notice that they are no longer payable to bearer, but to the order of the party in whose name the bond to which the coupon is attached, shall be registered, unless the last assignment thereon, duly executed, shall be to the bearer, in which event the coupon shall be payable as in other cases of coupon bonds to bearer.

Ibid. § 3.

11. It shall be lawful for the holder or holders of any such coupon bonds or bond, payable to bearer, to stamp, print or write on the face thereof, "Payable to Transfers by inindorsed holder,” and to indorse thereon, "pay to the order of -," signing his, dorsement.

her or their names thereto, in the presence of some officer authorized to take the acknowledgment of deeds, who shall attest the same under his hand and seal, and said bond, thereafter, shall only be payable to the legal holder thereof, or the legal representative of such holder; such bond or bonds shall continue subject to successive transfers in the same manner, and with like force and effect, by the person thus legally holding the same; and the holder of such bond may stamp, print or write on the coupons thereof, "Indorsed;" and such stamping, printing or writing on the face and coupons of such bond, shall be notice that they are no longer payable to bearer, but to the indorsed holder, or, order, or the legal representatives thereof, unless the last indorsement shall be to bearer, when they shall be payable as other coupon bonds to bearer.

Ibid. § 4.

12. Registrations made, or to be made, of such bonds, in the manner herein provided, or in such other manner as may have been adopted between the makers and Certain registraholders thereof, shall be valid; and the provisions of this act shall not be construed tions to be valid. as repealing special enactments in regard to the transfer of bonds of any corpora- Special provisions tion, nor shall the transfer of any bond or bonds in the manner herein provided not to be affected. impair any security, or the lien of any mortgage, which may have been given to secure the payment thereof, or the rights, duties and powers of any trustee in relation thereto.

III. Actions on bonds to secure the performance of agreements.

P. L. 638.

13. In all actions which shall be brought in any court of record of this common- 14 June 1836 § 1. wealth, upon any bond, or for any penal sum for the non-performance of any covenant or written agreement, the plaintiff shall assign in his declaration, replica- Breaches to be tion or otherwise, upon the record, all and singular the breaches of such covenant assigned. or agreement, for which damages shall have accrued, at and before the time of the writ sued out, and thereupon he shall have judgment(e) for the amount of such bond or penalty, in due course of law, and execution thereof, for such damages as shall be assessed for the breaches of such covenant or agreement, assigned as aforesaid, with costs of suit, and no more.(g)

(d) This is an amendment of the act 1 May 1873, P. L. 87. It contains a proviso, that nothing lawfully dne under the original act shall be thereby invalidated. See tit. "Municipal Corporations." (e) Judgment by default, under this act, is inter

locutory only. O'Neal v. O'Neal, 4 W. & S. 130-1. An omission to enter the cautionary judgment will not prejudice; it may be amended on error. Carman v. Noble, 9 P. S. 366.

(4) A bond payable by instalments is within the

14 June 1836 § 2. P. L. 638.

Judgment and execution.

On subsequent breaches, scire facias to issue.

Ibid. § 3.

14. In case of any subsequent breach of such covenant or agreement, (h) it shall be lawful for the plaintiff in such judgment, by a writ of scire facias thereon, setting forth such breaches, to assess against the defendant, his heirs, executors, administrators or assigns, such further damages as he shall have sustained by reason of such subsequent breach, and thereupon, he shall have judgment and execution for such damages, with costs of suit, and for no more; and the plaintiff may proceed in like manner, as often as a breach shall occur subsequently to any such proceeding.

15. If the defendant in any such judgment shall, before execution executed, pay Stay of execution into the court where such action shall have been brought, the damages assessed as aforesaid, together with the costs, a stay of execution of the said judgment shall be entered on the record.

to be entered, on payment of damages.

Ibid. § 4.

Payment of dam

16. If the defendant in such judgment shall pay, upon an execution issued thereon, the damages assessed as aforesaid, together with the costs of suit, and the ages on execution, costs of such execution, such payment shall be entered upon record, and the body, goods and real estate of such defendant shall thereupon be discharged from such execution.

to be entered on record.

Ibid. § 5. Judgment to

17. Provided, That judgments obtained upon any bond, for any penalty as aforesaid, shall remain as a further security(i) for such damages as the plaintiff, his remain as further executors or administrators, shall sustain, by any further breach of any covenant or agreement as aforesaid.


14 June 1836 § 6. P. L. 639.

to be sued.

IV. Actions on official bonds.(k)

18. Every bond and obligation which shall be given to the commonwealth by any public officer, or by any person appointed under authority of law to execute How official bonds any public trust; also, every bond which shall be given by any executor, administrator, guardian, committee, assignee, receiver or trustee, with intent, in every of the said cases, to secure the faithful execution of the respective offices, employment or trust, and for the use of all such persons, and bodies politic and corporate, as may be affected by the official acts or neglect of such officer or person, may be sued and prosecuted in the manner following, to wit:(1)

Of the writ.

Joinder of parties.

Others may become parties.

Defendants may

19. I. The writ shall in such case be issued in the name of the commonwealth, and the names of the persons by whom the same shall be sued out, shall be suggested as plaintiffs therein, and such persons shall be liable for the costs of the suit, in like manner as plaintiffs in other cases.

20. II. If two or more persons having several interests, shall join in suing such writ, it shall be lawful for them to declare separately thereon, and set forth in their declarations, (m) respectively, the breaches of the condition of such bond or obligation, which shall have been made to their particular injury, or they may join in declaration thereon, and afterwards, in their replications or otherwise, according to the course of practice in like cases, set forth upon the record the breaches of the condition aforesaid.

21. III. It shall be lawful for any other person to whom a cause of action shall have accrued on such bond or obligation, at any time before judgment, upon a suggestion filed with leave of the court, to be made a party plaintiff in such writ, and thereupon he may declare and set forth the breaches of condition of such bond or obligation, to his particular injury as aforesaid. (n)

22. IV. The obligors, in any such bond or obligation, may plead performance plead performance. of the condition thereof, so far as it respects the person by whom such writ was sued, or any of them, and if such fact be confessed or found, such persons shall be debarred of their actions upon that writ.

Where several join, separate issues may be taken.

23. V. If several persons shall join as aforesaid in any such writ, and if issues be taken by them separately from each other, against the defendants, it shall be lawful for them to have a separate trial thereof, or, at their election, such issues may be tried at the same time, and if they be issues in fact, by one and the same jury.

act, when sued by writ. Longstreth v. Gray, 1 W. 60. Skidmore v. Bradford, 4 P. S. 300. But judgments entered on warrants of attorney have never been considered as within the statute. Skidmore v. Bradford, 4 P. S. 296. Reynolds v. Lowry, 6 Ibid. 465. Bank of Chester v. Ralston, 7 Ibid. 482. Harger v. Washington County, 12 Ibid. 253. Chambers v. Harger, 18 Ibid. 15. McCann v. Farley, 26 Ibid. 173. Jones v. Dilworth, 63 Ibid. 447. Montelius v. Montelius, Bright. 79.

(h) There can be but one judgment; if subsequent breaches occur, the remedy is by scire facias. Duffy v. Lytle, 5 W. 120. Adams v. Bush, Ibid. 289. (i) See Vogel v. Hughes, 2 M. 379.

(k) See "Banks," 33. And Farmers' Bank v. Boyer, 16 S. & R. 48. Greenfield v. Yeates, 2 R. 158. Commonwealth v. Laub, 1 W. & S. 263. Myers v. Commonwealth, 2 Ibid. 60. McCaraher v. Commonwealth, 5 Ibid. 21, 27. Shunk v. Miller, 5 P. S. 250.

Helling's Executors v. Directors of the Poor, 15 Ibid. 409. Armstrong v. United States, Pet. C. C. 47. United States v. Howell, 4 W. C. C. 620.

(1) See Clarke v. Potter County, i P. S. 159. Maguire's Estate, 4 W. N. C. 15.

(m) As to the care necessary in framing declarations under this act, see Wampler v. Shissler, 1 W. & S. 371. The particular breach for which redress is sought should be set out with certainty and precision. Commonwealth v. Pray, 1 Phila. 58. If two breaches be alleged in one count, it is bad on special demurrer. Ibid. And so of an omission to assert a right of action

in the commonwealth. Ibid.

(n) The pendency of a former suit on a sheriff's official bond, is a bar to a subsequent action on the same instrument; the party must proceed in the mode prescribed by this act. Commonwealth v. Straub, 35 P. S. 137. Commonwealth v. Cope, 45 Ibid. 161.

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