in Tilford vs. Fleming, 14 P. F. S. 300, rendered the passage of the act of 1867, in this respect, unnecessary, for they held "That the statute of 4 Anne, c. 16, sec. 9, making all grants and conveyances of the remainder and reversion good and effectual, without attornment of the tenant, was in force in Pennsylvania:" Roberts' Dig. 45. (See the Report of the Judges of the Supreme Court to the Legislature in 1808, as to what English statutes are in force in this State: 3 Binney, 625.) Judge Agnew, in Tilford vs. Fleming, says: "To prevent difficulty, however, the act of February 20, 1867, authorizes the owner of the premises who has acquired title by descent or purchase from the original lessor, to proceed under the act of December 14, 1863, and the act of April 11, 1866, and its supplements." But the act of March 6, 1872 (P. L. 22, Purdon's Digest, vol. 2, p. 883), declares that it shall be unlawful to commence or prosecute any proceedings to obtain possession of any lands or tenements under the provisions of the act of December 14, 1863, entitled "An act relative to landlords and tenants, unless such proceedings shall be founded upon a written lease or contract in writing, or by a parol agreement, in and by which the relation of landlord and tenant is established between the parties, and a certain rent reserved." The complaint and transcript of the justice, as exhibited, show that this cause is embraced within the provisions of the acts of 1863 and 1867, and the judgment of the justice must be affirmed, unless the act of March 6, 1872, exempts it from the operation of the above-mentioned act of assembly. The question here is, was there a written or parol lease of the premises establishing the relationship of landlord and tenant between the parties, with rent reserved? We must look to the proceedings to ascertain these facts. There is some difficulty in determining whether there was a letting by Mortimer from the words of the complaint, which are: "And the said Asbury F. Mortimer then agreed that the said Bartholomew O'Reagan might continue to occupy the said premises from year to year at the annual rent of ninety dollars;" for it is argued that there is no averment that this was accepted by O'Reagan, and therefore it could not be a leasing, so as to establish the relation of landlord and tenant. The language does not satisfactorily show a leasing of the premises in the sense required by the statute, for if O'Reagan claimed by another title, connected with his lessor's title (8 P. F. S. 137), he would not acknowledge the ownership of Mortimer, and the requirements of the act would not apply. But this difficulty is obviated by the first part of the complaint, which clearly and distinctly sets forth that the premises were demised by Henry C. Gibson to Bartholomew O'Reagan, at a rent reserved, and for a stated period, thus establishing the relationship of landlord and tenant between Gibson and O'Reagan. So it is immaterial whether O'Reagan accepted the new lease from Mortimer, for the old lease of Gibson fixes his tenancy and binds him. The tenant cannot dispute the title upon which he entered: Holt vs. Martin, 1 P. F. S. 499; Bedford vs. Kelly, 11 P. F. S. 491. Thus attornment follows assignment of the landlord by operation of law, and the consent of the tenant is unnecessary. The law infers consent, per Allison, P. J., Fleming vs. Tilford, 7 Philada. 301. Under the act of 1867, and the decision of the Supreme Court, in Tilford vs. Fleming, the relationship of landlord passes to the alienee of lands without attornment, and the status of Mortimer is that of Gibson, and, as the remedies are purely civil, this act should be liberally interpreted: Snyder vs. Carfrey, 4 P. F. S. 90. The record in this case shows Gibson's possession of the premises, a demise by him to O'Reagan for a certain term, with rent reserved, and notice given of plaintiff's desire to repossess the premises. These are the essentials to sustain the judgment: McGinnis vs. Vernon, 17 P. F. S. 149; Givens vs. Miller, 12 P. F. S. 133. There is no doubt that Gibson (had he instituted these proceedings before he sold), as landlord, with rent reserved, could recover against O'Keagan, his tenant, under the facts presented. And as Mortimer (under the act of 1867) stands in the same relation to the defendant as Gibson did to the defendant, he is, we think, clearly within the provisions of the act of 1872, requiring a lease, with rent reserved, and must also recover. Exceptions dismissed and judgment affirmed. [Leg. Int., Vol. 30, p. 273.] MINERS' TRUST COMPANY BANK v8. JAMES WREN, JOHN T. NOBLE AND MATTHEW RHODA. W., N. & R. formed a copartnership for the single purpose of erecting a furnace for the Emaus Iron Company. They borrowed for partnership purposes $15,000 from the Miners' Trust Company Bank, for which they gave their joint judgment obligation, and also deposited with the bank stock of the Emaus Iron Company as collateral security. The partnership was dissolved before the work was completed, and a short time thereafter W. was declared a bankrupt. His assignee in bankruptcy sold his real estate, at which time notice was given of the above judgment. On peti tion presented by the purchaser for a rule to show cause why the real estate bound by the lien of said judgment, including that of N. and R., should not be sold in the proportion or in the succession, that the owners were liable to contribute to the payment of said judgment, otherwise on the payment of the judgment, that the Miners' Trust Company Bank might be compelled to assign the judgment and the collaterals for such uses as the court might direct. Held: 1. That as between the original parties, until there was a final settlement of the partnership business, the court would not subrogate W. to the rights of the plaintiff in the judgment notwithstanding the agreement of N. and R. to pay the partnership debts, it being alleged that the partnership transactions were unsettled, that W. was a debtor to N. and R. in a large amount, and that the consideration for the promise of N. and R. to pay said partnership debts had failed. 2. That the purchase of the real estate, having been made with notice of the judgment, was made subject to its payment by the purchaser, and that he had no claim to subrogation or contribution. Rule to show cause. Opinion delivered by PERSHING, P. J.—The material facts in this case are as follows: James Wren, John T. Noble, and Matthew Rhoda, in July, 1870, made an agreement by which they became partners, under the firm-style of James Wren & Co., for the erection of a furnace for the Emaus Iron Company, and for no other purpose. Of this firm Mr. Wren was the treasurer. The interest of Wren in this contract was the one-half, whilst Noble and Rhoda jointly held the other half. Before the work was completed, viz., on the 16th of October, 1871, this partnership was dis solved. By the stipulations of the agreement Noble and Rhoda were to pay all the debts due by the firm of James Wren & Co. It was also agreed that the agreement dissolving the partnership should be "a final and complete settlement of the affairs of the partnership of James Wren & Co., and of all claims and demands of each partner upon the others, arising out of the said partnership." The settlement being made, as expressed in the agreement," with the understanding that all moneys and stock received by said James Wren, as treasurer of the firm of James Wren & Co., have been applied by him for the benefit of said firm, and any mistake or error in that particular was to be corrected, notwithstanding the settlement." This was followed on the 18th of October, 1871, by the receipt of Noble and Rhoda to James Wren for the books, papers, cash book, receipts, etc., of the firm of James Wren & Co., which, the receipt states, were compared and found to be correct. On the 25th of October, 1871, James Wren was adjudged a bankrupt. During the time the firm of James Wren & Co. was in existence, viz., on July 7, 1871, James Wren, John T. Noble and Matthew Rhoda, gave their judgment obligation to the Miners' Trust Company Bank of Pottsville for the sum of $15,000, which money was borrowed from the bank for the purposes of the partnership. Upon this, judgment was entered July 10, 1871, in the Common Pleas of Schuylkill county, to No. 206, September term, 1871, the obligation having one year to run from its date. At the time this money was borrowed there were deposited with the Trust Company Bank, as collateral security for the payment of the loan, 302 shares of the stock of the Emaus Iron Company, of the par value of $50 per share, all of which stock was issued in the name of James Wren & Co., and taken by them on account of their contract for the erection of the furnace for that company. James Wren testifies that this judgment was one of the partnership debts which Noble and Rhoda agreed to pay, and that upon its payment by them they were to receive the stock left as collateral security. Lewis C. Dougherty, assignee in bankruptcy, on the 23d of March, 1873, sold three lots of ground, situate in Pottsville, as the property of James Wren, to John W. Roseberry, Esq., for the sum of ten thousand dollars ($10,000), which sale was confirmed by the United States District Court. On September 3, 1872, Mr. Roseberry presented his petition to the court, setting forth his purchase of said three lots of ground "in trust for others;" that at the time of the sale by the assignee, the judgment of the Miners' Trust Company Bank was a lien on said real estate, and still was at the date of the petition a lien on said real estate, as also a lien on the real estate of John T. Noble and Matthew Rhoda; that he was informed and believed that Wren, Noble and Rhoda had given or assigned to said Trust Company Bank 151 shares of the Emaus Iron Company, of the par value of $15,100, as collateral security for the judgment held by said bank; that in law and equity the real estate and collaterals of the said John T. Noble and Matthew Rhoda should contribute their proper proportions towards the discharge of said judgment, and praying for a rule on said Miners' Trust Company Bank, to show cause "why they should not levy upon and make sale of the said real estate and collaterals liable to execution for the payment of said judg ment, in the proportion in which the properties of the said James Wren, John T. Noble and Matthew Rhoda shall in law or equity be liable to contribute towards the discharge of the said judgment, otherwise upon the payment of such judgment to assign the same together with such collaterals for such uses as the court may direct." This application is based on the 9th section of the act 22d April, 1856, Purd. Dig. 827, pl. 40. This section provides, that "whenever the real estate of several persons shall be subject to the lien of any judgment to which they should by law or equity contribute, or to which one should have subrogation against another or others, it shall be lawful for any one having right to have contribution or subrogation, in case of payment, upon suggestion by affidavit and proof of the facts necessary to establish such right, to obtain a rule on the plaintiff, to show cause why he should not levy upon and make sale of the real estate liable for the payment of said judgment, in the proportion or in the succession in which the properties of the several owners, in law or equity, be liable to contribute towards the discharge of the common incumbrance, otherwise upon the payment of such judgment, to assign the same for such uses as the court may direct; and the court shall have power to direct to what uses the said judgment shall be assigned," etc. In deciding this application, we can assign Mr. Roseberry no better position than that occupied by James Wren at the date of the sale. It must be remembered that the judgment held by the Miners' Trust Company Bank was given by the members of a firm, for money borrowed for and used in the partnership business, as is shown by the evidence. Each partner is liable to pay the whole of the partnership debts, to the last acre and the last shilling, says Lord Eldon. As between partners there can be neither contribution nor subrogation. Baily vs. Brownfield, 8 H. 41, is a case in point. It is there held that where partners borrow money to be used in the business which they are jointly carrying on, it becomes a partnership fund, and no matter how they stand on the security given to the lender, they are accountable to one another as partners. The relation of principal and surety has no place between them. It is not the law that a partner, after paying a partnership debt, may be substituted to the rights of a creditor against his copartner. If as between the joint debtors themselves, there is a superior obligation resting on one to pay the debt, the other, after paying it, may use the creditors' security to obtain reimbursement. The reason why subrogation is not allowed to one partner as against his copartners, or to one merely a joint debtor as against his co-debtor, is because that as between them there is no obligation resting upon one superior to that which rests upon the other: McCormick's Administrator vs. Irwin, 11 Casey, 111. By the terms of the agreement dissolving the partnership, Noble and Rhoda agreed to pay the partnership debts of James Wren & Co., and thus took upon themselves the superior obligation, the effect of which was to fix themselves as principals and Wren as the surety, if the transactions between them stopped at this point. It is well settled that a binding agreement by which one copartner or co-contractor assumes the debt or agrees to bear the whole burden of its payment in discharge of the rest, will give rise to the relation of principal and surety, and with it to the right of subrogation to the remedies of the creditor on the one hand, and to that of discharge on the other, if those remedies are wrongfully impaired or surrendered: 1 L. E. C. Equity, 153. But the right of subrogation or of contribution is subject to principles of law which are presented by the testimony taken on this rule. Where the original debt springs from a partnership transaction, there can be no substitution before a settlement of the partnership accounts, clearly evincing that the partner whose estate has been taken in satisfaction for the partnership debts, in defeat of his individual creditors, was not indebted to his fellow, and that no countervailing equities existed in the latter. And the duty of showing this devolves on the party claiming to be substituted, in the clearest manner: Sterling vs. Brightbill, 5 W. 229; Gearhart vs. Jordan, 1 Jones, 325. If the surety be also a debtor, he has no claim to be substituted. It has been repeatedly held that care must be taken to make no order of substitution or subrogation where injustice would be done the plaintiff or other parties whose interests are involved. In the case now before us, James Wren testifies that he complied with the conditions stated in the agreement for the dissolution of the firm of James Wren & Co., and that there has been a final settlement of the partnership business. In flat contradiction of this, John T. Noble testifies that Mr. Wren has not complied with the conditions on which the dissolution was to be a settlement of their partnership transactions; that he is indebted on these transactions to Noble and Rhoda to the amount of nine thousand dollars ($9,000), and in effect, that the consideration upon which Noble and Rhoda agreed to pay the firm-debts of James Wren & Co. has failed. Here is a conflict in the evidence which cannot be decided one way or the other in this proceeding. But until it was settled, if James Wren himself were making this application, that the joint business in which he and Noble and Rhoda were engaged has been settled, and that he (Wren) was not indebted as alleged in the deposition of Noble, it is clear from all the authorities, that he. could demand neither contribution nor substitution. To allow either might be to destroy countervailing equities existing in his former partners. But there is another ground which we think fatal to this application. Mr. Roseberry purchased the real estate of James Wren, subject to the judgment of the Miners' Trust Company Bank. Assignees in bankruptcy take the property of the bankrupt, subject to the liens legally and bona fide existing as against him: James on Bankruptcy, 43. The 14th section of the bankrupt law authorizes the assignee to sell the real estate subject to a mortgage, lien or other incumbrance. An assignee in bankruptcy succeeds to all the rights and interests of the bankrupt, to precisely the same extent that the bankrupt himself had, subject to and affected by all the equities, liens and incumbrances existing against them in the hands of the bankrupt, and the same rule applies to the purchaser at assignee's sale of the bankrupt's effects: Strong vs. Clawson, 5 Gilman, 346. It is part of the evidence that at the sale made by the assignee in bankruptcy of Mr. Wren, verbal and written notice was given of the existence of the judgment of the Miners' Trust Company Bank. Mr. Roseberry acknowledges it to be a sub |