is heavily encumbered, the above return can yet | with waiver of exemption; the sheriff, therefore, be truly made. The sheriff's return cannot be contradicted by the parties to the suit. G. Junkin, on the same side. The Act of 1836 does not repeal the old practice, but gives one a chance to jump when the time is short. Where a fi. fa. has been issued and returned "nulla bona," "record evidence is furnished that the defendant has not estate in the county, being evidence of a higher nature than the mere suggestion of the plaintiff. In such a case the old practice obtains, and no suggestion is necessary. Boyer v. Kimber, supra. Mitchell, in reply. received the writ endorsed "Exemption waived.' A sale, under all the executions, was advertised of all the defendant's property. On the day before the sale the counsel for the plaintiff in judgment No. 2 ordered the writ stayed, and at the same time defendant claimed the exemption. The sheriff sold, distributing to Bowman the proceeds of the sale, except the three hundred dollars, which Bowman now claims to apply to the balance of his executions. J. Quincy Hunsicker, for the rule. The defendant cannot waive the exemption in favor of a junior execution-creditor; where such waiver is made it enures to the benefit of all exe cutions levied upon the same property in the Garrett's App., 8 Cas. 160. Collins Rockafellow & Co.'s Ap., 11 Id. 83. Bowyer's App., 9 H. 210. The question for decision in Boyer v. Kimber was, Is it necessary to file a suggestion notwith-order of time. standing a return of "nulla bona;" the question here is, the record showing that the defendant had real estate in the county, which very real estate had been accepted as security for the debt sued on, is not that sufficient to contradict the return of "nulla bona." Bowman v. Tagg [No. 2]. Execution Effect of staying writ of-Waiver of exemption-Whether, where exemption has been waived upon an execution which is subsequently stayed, other execution-creditors are entitled to have benefits of the waiver-Practice. Rule to show cause why appraisement should not be set aside, and exemption disallowed. The facts, as set forth in an affidavit of the plaintiff, and substantially agreed upon by the other parties in interest, were as follows: Three judgments were entered against the defendant Tagg, a resident of Montgomery County: (1) at the suit of Bowman; (2) at the suit of Weeks; and (3) also at the suit of Bowman. No. I was in the Common Pleas No. 2, of Philadelphia; Nos. 2 and 3 in the Common Pleas of Montgomery County. Pittman's App., 12 Wr. 320. The order to stay the writ after levy did not destroy its lien, and could not be allowed to affect the rights of third parties. M'Laughlin v. M'Laughlin, 5 Weekly Notes, 575. The defendant's claim of exemption was made too late, and, though he made it the instant the writ containing the waiver was stayed, yet it must be remembered that the waiver was his own act, and he is estopped from alleging it as an excuse for his laches. Dieffenderfer v. Fisher, 3 Gr. 30. E. Coppée Mitchell, contra. The case of M'Laughlin v. M’Laughlin (supra) was a fi. fa. against real estate, and was decided by the Court upon its general equity power to prevent a technical objection from divesting a bona fide purchaser of his title. The Court will not say that the defendant, who claimed his exemption the very instant that he was entitled to it, was guilty of laches. The writ on which the waiver existed was stayed, and remained so at the time of the sale. Whether it could be revived for any purpose before the return day is not important here. The fact was that the sheriff did not sell under this writ; there was, therefore, no waiver existing at the time of the sale, and nothing to deprive defendant of the benefit of the exemption. Nov. 19, 1878. Rule discharged. C. P. No. 2. Matthews v. Green. C. A. V. Oct. 1878. A testatum fi. fa., returnable on the first Monand placed day of October, was issued on No. 1, in the hands of the sheriff; on the same day, but later, a fi. fa. on No. 2 was likewise placed in the Pleading-Demurrer-Effect of-Admission of hands of the sheriff, and still later on No. 3. These latter were, under the practice in Montgomery County, returnable on the first Monday of December. The executions were all against personal property. No. 2 was a judgment confessed all facts properly pleaded-Set-off-Whether a defendant can claim a partial set-off in one action, and the remainder of his set-off in another action- Waiver. Sur demurrer to replication. Nov. 2, 1878. Flemming v. Reading R. R. Co. Practice Demurrer after plea filed-Leave of Court, when not granted. Assumpsit on promissory note. Defendant | C. P. No. 2. pleaded that the note was one of several given for 199 soda fountains, purchased by him from plaintiff; that the fountains were inferior to the grade warranted, and that, at the time of the purchase, plaintiff covenanted to protect defendant from competition in the sale of the fountains (a patented article), which covenant had been broken, to the damage of the defendant, which he claimed to set off. To this the plaintiff replied, that in an action previously brought by him against the defendant upon one of the same series of notes, the defendant had given evidence of the same set-off, and had been allowed for it by the jury; the replication then proceeded to set out a written statement submitted by the defendant to the jury in the said former action, which appeared to be the basis of the verdict. To this replication defendant demurred. The statement set forth in the replication as having been the basis of the verdict, shows that the set-off proved in the former action was failure of consideration and breach of covenant as to a part only of the soda fountains. The set-off as to the rest of the fountains was intended to be, and was, in fact, withdrawn from the consideration of the jury, and reserved for defence against the subsequent suits on the other notes. Hannis, contra. The whole matter of set-off was before the jury in the former action. Even if part of it was intended to be withdrawn from the jury, that cannot be done; a defendant cannot split up a set-off any more than a plaintiff can divide his cause of action. C. A. V. Rule to rescind leave to withdraw plea and file demurrer. Case for negligence; plea, not guilty. On the call of the case for trial, defendant, with leave of the Court, withdrew the plea of not guilty, and filed a demurrer, plaintiff objecting. Plaintiff then took this rule. Dougherty, for the rule. Demurrer is a preliminary. It cannot properly come after a plea. Having made his election defendant should abide by it. Haldeman v. Martin, 10 Barr, 369. T. Hart, Jr., contra. This is in the discretion of the Court. Payran v. McWilliams, 9 W. & S. 154. The Amendment Act provides for the alterateration of a plea or defence at or before the trial. THE COURT. While we have no doubt of the of a plea and the filing of a demurrer, yet power of the Court to permit the withdrawal such a course is contrary to the regular course of pleading and should not be permitted to the prejudice of the plaintiff. An examination of the causes of demurrer assigned in this case shows that some of the defects alleged in the We think, under the circumstances of this case, narr. probably would be cured by a verdict. the length of time after plea filed, and the actual call for trial, that the plaintiff was entitled to the benefit of the chance of a verdict to cure all curable defects; leaving to the defendant his motion in arrest of judgment for vital and incurable defects. The leave to withdraw the plea and file a demurrer was therefore improvidently granted and is rescinded Rule absolute. Oral opinion by MITCHELL, J. Nov. 2, 1878. THE COURT. The real points of controversy here are, whether the defendant has already had the benefit of the whole set-off in a former action; or if not, whether he has lost his right now by having set up a part of it before. But we do not think the case is in position to raise the precise points for adjudication. The demurrer admits all the facts properly pleaded in the replication, and the replication is that C. P. No. 3. the set-off now pleaded is the same identical set-off previously set up in the former suit. It is true the replication goes on to set out the evidences of identity, and from that the defendant asks us to say that the alleged identity does not exist. But that portion of the replication cannot be considered as any proper part of the legal pleading-certainly not sufficiently so to be allowed to negative the formal averment of identity. In order, therefore, to put himself in a position to deny the identity of set-off thus pleaded, the defendant has leave to withdraw his demurrer. Oral opinion by MITCHELL, J. Oct. 1878. Brolasky v. Furey. Affidavit of defence-Ground-rent falling due after the date of a deed conveying away the property-An affidavit setting forth that the property was "sold and conveyed" but silent as to the delivery of the deed is not sufficient. Rule for judgment for want of a sufficient affidavit of defence. Action brought against a former owner of land for arrears of ground-rent accrued while the land was in his possession. Plaintiff filed a statement which showed that two half-yearly payments of ground-rent were due, one on July 1, 1877, the other on January 1, 1878. The affidavit of defendant set forth, inter alia, "That on September 26, 1877, he sold and conveyed the said premises to one W. H. Soley by deed of that date duly recorded, and before the six months' ground-rent fell due January 1, 1878, for which plaintiff sues, so that deponent should not justly be charged with more than onehalf yearly payment, due July 1, 1877.' Lucas Hirst, for the rule. The deed from defendant to Soley bears date September 26, 1877, but it was not acknowledged until February 14, 1878, and, there being no allegation of any delivery prior to that date, the property was presumably in defendant's possession up to that time. In such case defendant was clearly liable. Conrad v. Smith, 35 Leg. Int. 144; S. C., 5 WEEKLY NOTES, 402. Rule absolute. C. P. No. 4. Rule to show cause why the return of service of writ should not be set aside. Act of 13 Apr. 1868, P. L. 898. C. Gibbons (with him C. Gibbons, Jr.), contra, cited the same cases, and also— Grubb v. Lancaster Manufacturing Co., I WEEKLY C. A. V. November 9, 1878. THE COURT. The writ was served personally in the city of Philadelphia upon the President of the Lehigh Boom Company, John Brown. Mr. Brown resides at Easton, Northampton County, Pa. The office of the Company is at White Haven, Luzerne County. The Company was incorporated by an Act of Assembly approved April 13, 1868 (P. L. 898), for the purpose of erecting booms in the river Lehigh, between Port Jenkins, in Luzerne County, and Dam No. 3, in Carbon County, with power to collect tolls, borrow money for their works, and in general to enjoy all the rights and privileges of a corporation. The Company has no office or agency in Philadelphia. The general question therefore raised by the present rule is whether a suit may be commenced in this county against a corporation whose works and whose office are situated in another county, by serving the summons upon the president of the corporation, who is found in this county. Oct. 26, 1878. Lehigh Coal and Navigation Company v. Lehigh Boom Company. Practice-Process-Corporations-Service of The Act of 13th of June, 1836 (P. L. 572; writ on officer of corporation-Service on cor- Brightly's Purdon, 286), is a general Act, which poration by its officer is good when made any-provides a method for the commencement of all where in the State and within the jurisdiction actions. The first forty sections relate to the of the court issuing the writ-Act of June 13, commencement of actions against natural per1836, § 42—Brobst v. The Bank, 5 W. & S. sons. The 41st section enacts "that every cor379-Syllabus criticized. poration, aggregate or sole, shall be amenable to answer upon a writ of summons as aforesaid, and in the case of a corporation aggregate, except Case. The Lehigh Boom Company was in-counties and townships, service thereof shall be corporated by a special Act of Assembly of April other principal officer, or on the cashier, treasdeemed sufficient if made upon the president or 13, 1868 (P. L. 898), for the purpose of erecting booms in the river Lehigh, in Luzerne and urer, secretary, or chief clerk of such corporaCarbon Counties, with powers "to sue and be tion, in the manner hereinbefore provided.” sued, plead and be impleaded in all the courts of manner hereinbefore provided" is the record of Luzerne and Carbon Counties," and manner provided for service upon natural pergenerally "to have and enjoy all the rights and privileges of a corporation.' The depositions quires the service to be made where the corporashowed that the office of the Company was situ- tion office is located, or where its business is ated at White Haven, Luzerne County, Pa., and that it had no office or agency in Philadelphia, or any officer residing there; and that it trans The 66 sons. There is not a word in the Act which re carried on. which that word is used relatively to natural perA corporation has no residence in the sense in It has an existence everywhere within the sons. acted no general business there; that Mr. Brown, jurisdiction of the sovereignty from which it de the President of the Lehigh Boom Company, re-rives its corporate privileges, although the sphere sided at Easton, Northampton County, Pa.; and that he was served personally, as president of the of its ordinary operations may be limited to a defendant company, with the summons while single county. But even if by a figure of speech temporarily in the city of Philadelphia. Preston K. Erdman, for the rule, citedBrobst v. The Bank, 5 W. & S. 379. Lehigh County v. Kleckner, 5 W. & S. 181; 1 Tr. & Haly, 204. we regard its chief place of business as its residence, there is no provision in the Act which requires the service upon the president or other chief officer to be made at this place, any more than there is a provision requiring the service upon a natural person to be made at his place of residence. mons beyond the limits of the county, and beyond the ordinary jurisdiction of the court. It A service upon a natural person may be made cannot be said, therefore, that the 42d section wherever he can be found, if made within the was unnecessary if the 41st section permits a serjurisdiction of the court from which the sum-vice upon the chief officers in a county other mons issued, and the service upon the chief offi- than that where the chief place of business is cer of a corporation is to be made in the same located. The 41st section authorizes a service manner as the service upon natural persons" in wherever the chief officers may be found, within the manner herein before provided.” the jurisdiction of the court issuing the summons. If it had been the intention of the legislature The 42d section authorizes a service beyond the to restrict the service upon the chief officer of jurisdiction of the court in any county of the the corporation to the county in which the office State. It is unreasonable, therefore, to argue that of the corporation is situated, it would have the 42d section shows that the service contembeen easy to have said so in appropriate lan-plated by the 41st section is a service in the county guage. The absence of any words indicating where the corporation is principally located. any such intention, and the provision that the There is no such implication in the 42d section, service shall be made in the same manner which the meaning of which plainly is that if there are is provided for the service of natural persons, neither officers nor agents within the county show that the legislature meant to treat both where the trespass is committed, the summons alike, and that corporations were intended to be shall run beyond the limits of the county, and subject to the same rule in this respect that natu- be served upon the chief officers of the corporaral persons are subjected to. It may be an in- tion in any part of the State. convenience for a corporation to be sued in a Neither do the special provisions relating to county remote from its chief place of business. executions against corporations, contained in the It is equally inconvenient for a natural person to Act of June 16, 1836 (P. L. 774; Brightly's Purbe sued in a county remote from his residence.don, 289), in any respect help the defendants' Why a corporation should, in this respect, have a superior privilege to a natural person I fail to see. The answer in both cases is that the proper person to be served is within the jurisdiction of the Court issuing the writ. 821). But now, by the Act of April 7, 1870 (Brightly's Purdon, 291), under an execution issued in one county the property of a corporation may be seized in every county of the State. Two cases were cited by counsel which are supposed to militate against the views now expressed. Brobst v. The Bank (5 W. & S. 379), and Lehigh County v. Kleckner (Id. 181). In the former case the point determined was that argument, as seems to be supposed, for it must be perfectly obvious that if a judgment is recovered against a corporation in a county where its principal office is not located, it would be easy, if necessary, to comply with all the provisions of The 42d section of the Act of 1836, provides the Act by means of the testatum execution prothat in actions of trespass against corporations, vided by the same Act, or by transferring the "if the officers aforesaid of such corporation," judgment in accordance with the provisions of —that is, the chief officers of the corporation- the Act of April 16, 1840 (Brightly's Purdon, do not reside in the county in which the trespass is committed, the summons may be served upon any officer or agent of the corporation at any office or place of business within the county, or if there be no such office or place of business, it shall be lawful to serve the summons upon the president or other chief officer, in any county or place where he may be found. It was argued that this section shows that the chief officers of the corporation could not be served in ordinary the cashier of a branch office established in cases except at the places of their residence. But the inference is altogether illogical. The object of the 42d section was to provide a remedy in the county in which the trespass is committed, and it accordingly directs that if the chief officers do not reside in the cou, service may be made upon any ąent of the corporation at any office in the county, and if they have no office in the county, then the summons issued by the court of that county may be served upon the chief officer in any part of the State, wherever he may be found. The effect of this section is to bring the corporation to answer for a trespass in the court of the county where the trespass was committed, by permitting a service of the sum Berks County by the Bank of Pennsylvania, located in Philadelphia, was not the cashier of the bank, but a subordinate agent, and therefore not one of the officers mentioned in the Act of 1836, on whom a summons against the bank could be properly served, in accordance with the provivisions of the Act. The officer served was not the officer required by law to be served. This was the only point decided, and the case is no authority whatever for the proposition contained in the reporter's syllabus that a summons must be served where the corporation is located. The syllabus is clearly erroneous in this respect. Lehigh County v. Kleckner the point decided was that Lehigh County could not be sued in the In courts of Northampton County, a result plainly have a corporate seal, may enact by-laws for the deducible not only from those general considera- management of their corporate concerns, "and tions of reason and public convenience, which are have and enjoy all the rights and privileges of a peculiar to the nature and constitution of munici- corporation." It is argued from this that the pal corporations, but from the language of the 41st corporation can only be sued in Luzerne and section of the Act of 1836, which expressly ex- Carbon Counties, and this is clearly so if the incepts counties and townships from the methods of tention of the Legislature by this language was to service there prescribed for private corporations. confine their right to sue and be sued to the two Doubtless some expressions which were used by counties named. But it must be observed that ROGERS, J., in delivering the opinion in Lehigh it is not said they shall sue and be sued only in County v. Kleckner, give countenance to the these counties, while the words immediately folassertion that a corporation can only be sued in lowing confer upon them all the rights and privithe county where it is located; but with these leges of a corporation. Now the right to sue in we have no concern. The only point for which all the courts of the sovereignty by which the the case is authority is that a public municipal corporate capacity is conferred is one of the five corporation can only be sued in the courts of powers inseparably incident to every corporation the county where it is located a proposition aggregate. Such a power is not to be denied or which is easily capable of being sustained, both restricted, except by the plainest language, clearly by the express words of the Act of 1836 and by indicating the intention of the Legislature to deny general considerations of public right and conve- or restrict it, for the power itself is of the very nience. essence of their corporate character. If this corBut I do not find anywhere, either in the Act poration cannot be sued in another county in conof 1836, in the decisions of this State, or in any sequence of these words, neither can it sue in other place, any authority for the assertion that another county. This would be a very severe conactions against private corporations are local, or struction for the corporation. Suppose they should that a private corporation may not, like a private receive in payment of tolls a check on a Philaindividual, be sued wherever a service of the delphia bank, would they be without remedy on summons can be effected upon the proper person such a check in the courts of Philadelphia? It is within the jurisdiction of the court issuing the not to be supposed that the Legislature intended summons. There is no ground for any discrimi- by these words to prevent this corporation from nation between individuals and private corpora- pursuing their debtors or enforcing their rights, tions in this respect, and no reason that I know if it should become necessary to do so, in other of why they should enjoy any advantages over courts of the State besides those of Luzerne and natural persons in the matter of exemption from | Carbon Counties, particularly as the words used law suits. The tendency of all the legislation contain no express prohibition against their doing upon this subject in this State has been to enlarge | so. Why, then, were they used? It is impossithe remedies against corporations, and not to ble to say. They are perhaps due to a want of restrict them. Indeed, any such rule as that con- proper care or to a hasty and inartificial method tended for by the defendant would be very incon- in the draughtsman of the Act. They may be venient, for if the writ could only be served regarded as mere words of surplusage, for a grant where the corporation is located, the corporate of corporate capacity necessarily implies a right officers, designated by the Act as the officers to sue and be sued as a corporation. It is suffiupon whom service must be made, could easily cient to say that inasmuch as there are here no prevent a service by absenting themselves from the negative words of restriction implying of neceschief place of business of the corporation, or by sity a prohibition against suing and being sued in residing in another county. In the present case other counties, and as such a construction would the corporation defendant carries on its business be inconvenient and injurious, as well as repugin Luzerne and Carbon Counties. The office of nant to the general grant of corporate powers in the company is at White Haven, in Luzerne the same section, it would be unreasonable to County, while Mr. Brown, the president of the corporation, resides at Easton, in Northampton County. The charter of this company, among other things, declares that they may sue and be sued, plead and be impleaded, in all the courts of record of Luzerne and Carbon Counties; that they shall hold that it was the intention of the Legislature Opinion by THAYER, P. J. |