It appeared, however, that Schoening's lot, instead of being 355 feet 51⁄2 inches north of Brown Street, as specified in the above receipt, was 435 feet 521⁄2 inches north of Brown, or 180 feet south of Poplar Street. Among the bills retained by the city as part of the surplus after the contractor had been paid the amount specified in his contract, was one in the name of William Wolf for property situated 180 feet south of Poplar Street. This is the claim in question in this case, and was originally filed against William Wolf, but subsequently Schoening was suggested as "actual and present owner." Upon these facts being shown the Court instructed the jury that the defendant had not made out any defence, and directed them to find a verdict for the plaintiff. Verdict for plaintiff for $85.36, and judgment thereon. Whereupon the defendants took this writ, assigning for error the charge of the Court as above. Albert T. Goldbeck, for plaintiffs in error. Abraham M. Beitler, Assistant City Solicitor (Wm. Nelson West, City Solicitor, with him), for defendant in error. premises No. 851, on the line of the sewer, having a frontage of forty feet on North Fourth Street. His title was evidenced by a sheriff's deed, duly registered, in which the lot was described as being "on the east side of Fourth Street, between Brown Street and Poplar Lane." The charge for the construction of this sewer was fixed by an ordinance of the Councils at $1.50 per foot. There can now be no doubt as to the right of the city to impose the burden of merely local improvements upon the property of those immediately benefited thereby, to the extent of the benefits conferred. This principle has been well established, in a long line of cases, to which it is unnecessary to refer. Such a burden is a species of taxation, and the remedy for its collection, as against the property charged, is certainly a proceeding in rem, and not in personam. The property itself, and not the owner, is debtor to the city for the amount of the charge. We can see no reason, however, why the defendant below might not have availed himself of the registry of his deed in the Survey Department as a defence to the lien. Since the Act of 14th March, 1865, and the supplement thereto of 29th March, 1867, the fact of registration requires that the property shall be charged and pursued in the name of the registered owner; and, as there accompanied the deed a draft or plot which gave the dimensions and locality of the premises, it was improperly charged in any other name than that of Schoening. Although the deed was not exact in its description of the property, its recitals were explained by the draft. The Registrar of the Survey Department, who was a witness at the trial, upon examination of the draft said, without hesitation, that it corresponded with the actual location of lot, 851 North Fourth Street, in the plan of the city. It is admitted that Schoening owned no property on Fourth Street, other than the property charged with this lien ; and it does not appear that William Wolf owned any property on that street or any other. The use of Wolf's name, in connection with the ownership of No. 851, was altogether unwarranted by any thing which appears in the evidence. February 4, 1884. THE COURT. The city But we think the defendant established a good of Philadelphia, in the year 1875, built a sewer on defence, by proof of actual payment, prior to the that part of North Fourth Street, between Brown entry of the lien, and that the Court erred in and Beaver. The contractor was Joseph Conk-charging the jury that the verdict should be for lin, who agreed to accept from the city assessment bills, indorsed by the Commissioner of Highways, as cash paid upon the contract; which bills he agreed to collect, at his own cost, without recourse to the city in any event. The contractor had the right to use the name of the city, and to employ all remedies or proceedings, whether of lien or otherwise, to which the city was competent in their collection. Schoening was at the time the owner of the the plaintiff. At the completion of the sewer, Schoening desired to have a license to make connection with it from his own lot, but he was informed by Conklin that this could not be done until he had made contribution to its construction by payment of the price at the rates stated. Schoening then paid to Conklin the full amount and took his receipt for it, and we presume that the connection was made. Assuming the authority of Conklin to receive the money, the payment was was properly noted in the plans of the city on file in that department. not in any general form; it was specific; it was in discharge of the claim which the city had upon the lot Schoening owned; the lot which It was the Wolf lot which Schoening owned, he wished to have connected with the sewer. and that fact thus appeared in the Survey DepartWe cannot, in the very nature of the case, mis-ment upon exhibition of the sheriff's deed. take the intention of the defendant, as to the Schoening owned no other, and the city had no particular lot to which that payment was applied. other valid claim against him which it could It is not the case of a payment of money applied assign to Conklin. The assessment bill in its by direction of the payer to one debt, which he description of the premises was manifestly a subsequently discovered he ought to have applied mere blunder, for which the city was responsible. to another; the claim Schoening intended to pay Schoening had a right to assume not only that the he did pay; the premises which Conklin by bill conformed to the registry, but that the receiving the money intended to discharge, he registry was correct. It was for the protection did discharge. The whole difficulty arises out of of the property-holders, in part at least, that the unfortunate expression of the receipt, which registration of deeds was required, and they was given. This receipt is dated October 4, have a right to assume that assessments of 1875, and in it the money is stated to have been taxes, or other municipal claims, are made in paid "for the construction of a sewer in front of accordance therewith. The defendant below, by the premises 741 North Fourth street." This this blunder, which was from no fault of his, has was a clear and palpable mistake. The "premises been subjected to an expensive, protracted, and 741 North Fourth Street" were not situated useless litigation. It is very clear that he paid between Brown and Beaver streets, but in another block; they were not on the line of the sewer at all, and Mr. Schoening neither owned them nor pretended to own them. A receipt is but an acknowledgment and like any other acknowledgment, is open to contradiction or explanation and correction; it is not a contract inter partes. (Jones v. Patterson, 1 W. & S. 321; Batdorf v. Albert, 9 P. F. S. 59.) This receipt was an acknowledgment of the receipt of the money, and if it appeared that it did not properly disclose the intentions of the parties, the subject was susceptible of other proof; it does appear that the money was paid and received in discharge of the premises 851, instead of 741 North Fourth Street; the receipt is palpably erroneous and becomes unimportant. the money in relief of his lot No. 851; it was so received by the contractor; the bill was intended to cover the lot which Schoening owned, the Wolf lot, the deed for which was registered; the contractor so regarded it, when it was assigned, and having entered a receipt upon it sent it to Schoening, upon the footing of the previous payment. This receipt was no discharge of lot No. 841, because the payment was not made for the charges against that lot; it was perfectly competent for the city to have proceeded against lot No. 841, and the receipt, if produced, was susceptible of a clear explanation. The loss, if any has been sustained, is the loss of the city. The judgment is reversed, and a venire facias de novo awarded. Opinion by CLARK, J. But it is said that Conklin had no authority from the city on the 4th of October, 1875, to receive the money. This is perhaps true, and, therefore, Conklin agreed that in a few days he would deliver to Schoening a department receipt for the money. On the next day, the contractor obtained an assignment of the assessment bill against Schoening from the Chief Commissioner of Highways and his local assistant, and, having c. P. of Tioga Co. receipted it, delivered it to Schoening in accordance with his previous promise. The sheriff's deed was in evidence, but we are not furnished with a copy; it was stated on the argument, however, that the premises therein described, had been sold by the sheriff as the property of William Wolf, who was owner thereof prior to the sale. The certificate of registration indorsed thereon, implies that the sheriff's conveyance with the precise dimensions and locality of the premises" was duly reported to the Registry Bureau, and that the fact of the transmission of the title from Wolf to Schoening 66 J. H. M. Common Pleas-Law. January, 1884. Lycoming Insurance Co. v. Bixby. Mutual insurance Assessment Statement showing losses, etc., for which assessment is levied-Sufficiency of, to support execution. A statement which shows the manner of the expenditure of the moneys of the Lycoming Insurance Company with sufficient clearness to enable the assured to judge of the necessity for the assessment he is called upon to pay is sufficient. It need not descend into minute detail, but must show the amount paid for losses, expenses, etc., separately. The statement filed in this case held to be sufficient. Rule to show cause why proceedings upon a | showing the manner in which the money has writ of fi. fa. to collect an assessment, etc., should not be stayed. The facts are stated in the opinion of the Court. M. F. Elliott and F. E. Watrous, for the rule. J. A. Beeber, H. Watson, and J. B. Niles, contra. January, 1884. THE COURT. In this case a lien was obtained by the filing of an "abstract" or memorandum, showing the name of the insured, the date, and amount of the policy, the amount of the premium note, and a description of the property insured. A fi. fa. was then issued for the collection of an assessment then unpaid, which was stayed on November 5, 1881, for the reason that no sufficient statement of the amount of premiums received, and of the manner in which the money of the company had been expended, was on file in the office of the prothonotary. The statute requires the filing of such a statement as a condition precedent to the issuing of a writ of fi. fa. The statement which had been put on file gave the aggregate receipts in one item, and the aggregate expenditures in one item. The fact that the money of the company had been expended was stated. The manner of its expenditure was not stated. We held that the insured was entitled to know enough of the manner in which the money of the company had been expended to enable him to judge of the necessity for the assessment he was called upon to pay. Since the order of November 5, 1881, another statement has been filed, which states the amount of the expenditures for the period to which the assessment relates and the "manner" in which such expenditures have been made so far as the important items thereof are concerned. The "loss and damage by fire" is stated separately, so also the amount paid for reinsurance, for salary of officers, for clerk hire, for interest and exchange; for services of directors; of special agents; for stationery, printing, etc., are given separately, showing the manner in which the aggregate is made up. This statement is, we think, sufficiently itemized to enable the insured to determine the need for the assessment he is called upon to pay. It shows that six-sevenths of the total sum paid out has been upon losses by fire, and that the next largest item is for reinsurance. If it shows him the payment of large sums for salaries of officers and clerks for the few weeks covered by the statement, his remedy is not by a refusal to pay an assessment needed for payment of losses, but attention to the management of the company of which he is a member. All we can compel is the filing of a statement in accordance with the Act of Assembly, been expended, with sufficient clearness to give the insured a fair opportunity to judge of the necessity for the assessment. The management of the business of the company is not committed to us. Our power is limited to compelling a disclosure of the manner in which the money has been expended. Regarding the last statement filed as a substantial compliance with the law and our order of November 5, 1881, we shall decline to stay the proceedings further. Whatever further remedy the insured may be entitled to must be sought in some other way than by motion to stay proceedings on the writ of fi. fa. Rule discharged. Opinion by WILLIAMS, P. J. Holmes Co. v. Barnard et al. Right of action-Estoppel-Illegal contractForeign corporations-The failure of a foreign corporation to comply with the Act of April 22, 1874, is no defence to an action by such corporation for goods sold and delivered. Rule for judgment for want of a sufficient affidavit of defence. This was an action for the price of flour sold and delivered. The defendants in their affidavit not denying that they had received the flour, averred that the contract was made with plaintiff, a corporation of the State of Minnesota, while it was doing business in Philadelphia without having filed in the office of the Secretary of the Commonwealth the statement required by the Act of April 22, 1874; that the contract was, therefore, illegal; and that no suit could be maintained thereon by the plaintiff. L. W. Barringer, for the rule. Plaintiff need not aver or prove its corporate existence, and the defendant is estopped from denying it in the absence of fraud. Wood's Field on Corp'ns, & 349. Dutchess Manufactory v. Davis, 14 Johns. 245. Foster v. Walton, 5 Watts, 378. The Commonwealth alone can object to a corporation's want of capacity. It cannot be inquired into collaterally. Cochran v. Arnold, 8 Sm. 399. Hagerman v. Empire State Co., 1 Out. 536. Iowa Gulch Mining Co. v. Work, 13 WEEKLY One who has enjoyed the fruits of his contract with a corporation cannot set up the defence Oil Co. & Allegheny R. R. v Pa. Transp. Co., 2 Gill (with him Read & Petit), contra. Thorne v. Ins. Co., 30 Sm. 15. debted to the plaintiffs upon the notes in suit, became seriously embarrassed in business. It was proposed to plaintiffs by another creditor of defendant's, that defendant confess judgment to amounts due them respectively, and that the a number of his principal creditors for the judgments thus obtained be marked to the use of some person friendly to both parties; the object being to consolidate claims against defendant, so as to keep off junior claimants and enable defendant by the forbearance of his creditors to continue in business. This plan met with plaintiffs' approval, and they received from defendant a judgment note. for the amount now in suit, which note was duly entered up in Common Pleas No. 2, nearly a year before the present action was begun. On the same day that this judgment was entered, it was marked to the use of Maggie A. Brown, the sister-in-law of defendant. February 16, 1884. THE COURT. The facts in this case are not disputed. It is not denied that the defendants received the flour, nor, on the other hand, that the plaintiff, a foreign corporation, has failed to comply with the requirements of the Act of April 22, 1874, and that the transaction was, therefore, an illegal one. The question is, Can the defendants avail themselves of the illegality of the transaction as a defence to this action? In Thorne v. Travellers' Ins. Co. (30 Sm. 15, 28), Mr. Justice MERCUR said that "conceding the rule that an illegal contract will not be enforced by a Court, yet, when it has been executed by the parties themselves, and the illegal object of it has been accomplished, the money or thing which was the price of it Mrs. Brown issued execution on the judgment may be a legal consideration between the parties assigned to her in Common Pleas No. 2, and for a promise express or implied, and the Court realized almost the entire amount due upon it, will not unravel the transaction to discover its which, however, she refused to pay over to the origin." We think that the present case is plaintiffs, who thereupon began this action, and within this principle. The defendants, having they, never having parted with the original proreceived and enjoyed the benefits of the illegal missory notes, obtained judgment as above transaction, are estopped by their own act. For some reason, few, if any, other creditors consented to the scheme of forming a creditors' syndicate, and the plan failed even before plaintiffs had performed their part by assigning their judgment. stated. There was evidence tending to show that defendant was cognizant of this whole transaction, and regarded the execution of the note, and the assignment of the resulting judgment to Mrs. Brown, in the same light as the plaintiffs swore they did, viz., as a loan of his own debt to himself, to enable him to retain property that otherwise might have been seized in execution. Judgments-Rule to open, when made absolute -Contradiction of testimony-Parties to judg On the other hand, evidence was given showments- When they may not impeach them col-ing that when the scheme for the formation of laterally, for fraud. Sur rule to open judgment, and exceptions to Master's report. The plaintiffs recovered a judgment against the defendant, upon certain promissory notes, for want of an affidavit of defence. Defendant thereupon made oath that the judgment had been obtained solely by reason of his then counsel omitting to file an affidavit in time, having overlooked the date of judgment day in the month of January, 1882, and that he had a good defence on the merits. Upon this he procured a rule to show cause why the judgment should not be opened, etc. The rule was referred to William C. Hannis, Esq., as Master, to report both facts and law, before whom evidence was produced in substance as follows: In 1880, the defendant, being in a creditors' syndicate fell through, plaintiffs freely gave their claim (not supposing it to be worth as much as it eventually proved to be) to Mrs. Brown, who was represented to them as a widow with a dependent family involved in financial difficulty by the threatened insolvency of the defendant, her brother-in-law. The Master, therefore, recommended that the rule to open the judgment be discharged. To these findings and the recommendation defendant excepted. A. Sydney Biddle (Chas. M. Hough with him), for exceptants. If Maggie Brown is trustee for any one, it is for the plaintiffs; they placed confidence in her, and that she has abused it, is no reason for a fresh proceeding for the same cause against this defendant. But, admitting that there was a fraud committed upon the plaintiffs, to which defendant was privy, it can only be rectified in Common Pleas No. 2; for that judgment is regular on its face, and these plaintiffs were parties to it, and the rule is that no party to an action at law, in which fraud has been perpetrated to his injury, can impeach such fraudulent judgment in any collateral proceeding. Prudham v. Phillips, Stra. 961; 2 Amb. 763. Harrison v. The Mayor, etc., 4 De G., M. & N. 137. Cyphert v. McClune, 10 Id. 195. Miltimore v. Miltimore, 4 Wr. 151. Smith v. Smith, 22 Ia. 516. There is a direct conflict of testimony as to the nature of the assignment to Maggie Brown; a jury should consider the evidence on this question. [YERKES, J. It has certainly been the practice to grant a trial where the evidence discloses an irreconcilable difference between the parties upon a material question of fact.] S. B. Huey, contra, relied upon the report of the Master. June 23, 1884. THE COURT. Rule absolute. Exceptions sustained. C. P. No. 3. C. M. H. A judgment having been obtained against the decedent, in his lifetime, a writ of scire facias was issued under § 33, of Act 24 February, 1834 (Purd. 425, 101), to charge the decedent's lands with the lien of the judgment. The widow and heirs having filed an affidavit of defence this rule was taken. W. H. Peace, for the rule. It is settled that the personal representatives of a decedent are not bound to file affidavits of defence when the debt was due from the decedent himself. Leibert v. Hocker, 1 Miles, 263. Umberger v. Zearing, 8 S. & R. 163. THE COURT. Upon the authorities cited by the counsel for the defendants we think the rule should be discharged. Rule discharged. Rule for judgment for want of a sufficient affidavit of defence. To a copy of book entries filed in assumpsit against husband and wife, the affidavit of defence chased by her when sole. They were charged by the wife set forth that the goods were purto her in her maiden name. Julius C. Levi (P. F. Rothermel with him), for the rule. The wife alone is liable, and the Court can enter judgment against her. The restriction of the execution follows as a matter of course, whether so ordered or not. Whiteside v. Boardman, 10 WEEKLY NOTES, 136. De Forrest Ballou, contra. The judgment asked for was refused in Langfeld v. McCullough, 11 WEEKLY NOTES, 107. [THAYER, P. J. No reasons are set forth in that case. There may have been something July 12, 1884. peculiar in it. Upon principle, I see no reason why judgment should not be entered against a married woman for a debt contracted dum sola. Hall v. Wiggins et al. Affidavit of defence law-Scire facias to revive a judgment against a decedent-Duty of widow and heirs as to filing an affidavit. Rule for judgment against the widow, heirs, and executors for want of a sufficient affidavit of defence. |