verse or otherwise, the only material fact contained in said second plea of said defendants and upon which any material issue could be taken, viz: whether the said alleged cause of action did accrue at any time within one year next before the beginning of this suit, and because the matters and things contained and pleaded in said replication are not, nor is any of them sufficient in law to toll and avoid the said Statute of Limitations above pleaded by the defendants. Alfred Driver, J. Warren Coulston, and John Sparhawk, Jr., for demurrer, relied onHaviland v. Fidelity Ins. Co., 16 WEEKLY NOTES, C. P. No. 4. H. R. H. April 7, 1888. City of Philadelphia v. Carr. Municipal claim-Judgment must be obtained E. Cooper Shapley, for the rule. The pluries sci. fa. was unauthorized and invalid to keep the claim alive. The plaintiff had five years after issuing the original sci. fa. in which to obtain a judgment. Plaintiff was bound to use due diligence, that is issue an alias, serve it, and obtain judgment within the five years. City v. Scott, 93 Pa. 25. Ward v. Patterson, 46 Pa. 372. Fulton's Estate, 51 Pa. 204. Otherwise by issuing a succession of sci. fas. without serving any of them, the city could keep up an indefinite lien, without ever notifying defendants, and giving them a day in Court to defend. The lien of a municipal claim is different from that of a judgment in personam. A judgment on a municipal claim is in rem, and must be revived every five years. A sci. fa., after the expiration of five years, will not preserve it. Haddington Church v. The City, 108 Pa. 466. There was no reason why the original sci. fa. should not have been served. Defendant Buck was within a square of the sheriff's office. E. Spencer Miller, assistant city solicitor, contra. We have five years after the alias sci. fa. issued to get judgment. The pluries sci. fa. was effectual to preserve the lien. Ketchum v. Singerly, 12 Phila. 189. [THAYER, P. J. Ketchum v. Singerly does thereon within five years after the issuing of not appear to have been regarded as authority in the original scire facias, or the claim will be City v. Scott.] lost-It cannot be kept alive longer than five years by alias and pluries sci. fas.-Such writs are intended to bring in the defendant and give him an opportunity to defend. Rule to quash pluries sci. fa. and strike off claim. In this case the plaintiff filed a claim on December 3, 1875, for $4 for removing a nuisance. On June 2, 1880, the plaintiff filed an affidavit that Daniel Buck, trustee, is the owner of the property described in the claim, and that notice to pay the claim had been personally served on him, whereupon a scire facias to show cause why the claim should not be levied, was issued the same day. Directions were given on the writ to return it nihil habet. On June 2, 1885, an alias sci. fa. was issued, and directions were given not to post or advertise it, but to return it nihil habet. On December 28, 1887, a pluries sci. fa. was issued, on which the defendants Emma Benson and Daniel H. Buck accepted service, entered an appearance, and filed an affidavit of defence. On March 6, 1888, a rule to plead was entered, and on March 28, 1888, judgment was entered for want of a plea; whereupon defendants obtained a rule to strike off the pluries sci. fa. and stay the rule to plead. [ARNOLD, J. In Wistar v. Philadelphia (86) Pa. 215) the Supreme Court said that since the registration Act of 1867, they are not prepared to say, as a matter of law, that a return of nihil habet is erroneous, even if the defendant had a known residence in the city. But it does not extend the time for issuing and serving an alias, or posting and publishing it under the Act of June 10, 1881; nor does it extend the time for obtaining judgment beyond five years from the exit of the original sci. fa. as ruled in City v. Scott. The purpose of alias and pluries writs is to bring in the defendant by service or publication. You cannot get a valid judgment in this case." e.] Eo die. THE COURT. Pluries sci. fa. quashed and judgment for want of a plea struck off. [NOTE.-In Ely v. Wren (90 Pa. 151), an action on a mechanic's claim, the Supreme Court said, "When a special security and remedy are given to a favored class of creditors, it is not asking too much to require them to conform with reasonable accuracy to the provisions of the law designed for their benefit."] WEEKLY NOTES OF CASES. VOL. XXI.] FRIDAY, MAY 18, 1888. Supreme Court. Jan. '88, 435. the terms of the policy, this action was brought to enforce payment of the same. Plaintiff presented the following points: (1) The Act of May 11, 1881, does not apply to the contract which is the basis of the claim in [No. 14. suit. Refused. April 25, 1888. New Era Life Association v. Musser. Insurance Assessments-Application and policy-Evidence-Act of May 11, 1881. The Act of May 11, 1881 (P. L. 20), requiring insurance companies, in all cases where the policy contains a reference to the application, to attach a correct copy of the application to the policy, and "unless so attached and accompanying the policy, no such application . . . shall be received in evidence in any controversy between the parties to or interested in the said policy, nor shall such application be considered a part of the said policy or contract between the ... parties" is constitutional. In an action to recover assessments under a policy issued after the date of the Act, containing a distinct reference to the application, but with no application attached, it is not error to instruct the jury that the Act applies, and the applica tion cannot be received in evidence. The Act of 1881 does not impair in any sense the obligation of the contract between the company and the insured, nor does it impair even the remedy; it affects merely the formalities to be observed in making proof of the contract. It is difficult to distinguish this Act in principle from an Act requiring deeds to be stamped or contracts for the sale of land to be in writing. It is but the exercise of the clearly recognized power of the State to regulate the mode by which contracts shall be made and proved; it is founded upon sound reasons of public policy, and affords protection to persons who insure their lives or property, and can injure no company honestly conducted. Error to the Common Pleas of Cumberland County. The case was tried in the Court below on an appeal by the defendant, E. N. Musser, from a judgment of a justice of the peace in an action brought against him by The New Era Life Association to the use of J. M. Weistling, Receiver, for the collection of assessments alleged to be due plaintiff under a policy of insurance. (2) and (3) The said Act is unconstitutional in that it violates the obligation of the charter contract of the corporation plaintiff, and is an attempt to prevent persons who are sui juris from making their own contract. Refused. Defendant presented the following point: If the jury believe from the evidence in the case that the policy issued to Dr. Musser on the 26th of May, 1881, had no copy of the application attached to or included therein, then under the Act of Assembly of the 11th of May, 1881, "such application shall not be received in evidence in any controversy between the parties to or interested in the said policy, nor shall such application be considered a part of the policy or contract between the parties;" here being a plain reference to said application in said policy and forming a part thereof. Affirmed. Verdict for defendant and judgment thereon, whereupon plaintiff took this writ, assigning as error the answers to the above points. Robert Snodgrass (J. W. Wetzel with him), for plaintiff in error. The plaintiff under its charter had a right to make its contracts of insurance in any form and subject to any condition it pleased. The Act of May 11, 1881, impairs the obligations of these contracts by prescribing the form and manner in which they must be executed, and destroys the rights and remedies for the enforcement of these contracts; it is therefore unconstitutional. Gunn v. Barry, 15 Wall. 623. Walker v. Whitehead, 16 Id. 318. Memphis v. United States, 97 Id. 293. The Act of May 11, 1881, is an attempt to prevent persons who are sui juris from making their own contracts, but this cannot be done. Godcharles v. Wigeman, 3 Amer. 431. F. E. Beltzhoover (F. Maust with him), for defendant in error. The provision of the Federal Constitution that "no State shall pass any law impairing the obligation of contracts," has been construed by the On the trial, it appeared that on May 25, 1881, Supreme Court of the United States in upwards the plaintiff, an insurance company incorporated of seventy-five cases, from Fletcher v. Peck (6 under the Act of April 29, 1874, issued to de- Cranch, 128) to Water Co. v. Easton (121 U. S. fendant a policy of insurance on his life contain-388), and no room seems to be left for conjecture ing an express reference to the application for in- as to what legislation comes within the inhibition surance, but not having a copy of such applica- of the Constitution. tion attached to the policy. Default having been made in the payment of assessments due under All presumptions are in favor of the constitutionality of the Act, and nothing but a clear violation of the Constitution will justify a Court in declaring it unconstitutional and void. Craig v. Presbyterian Church, 88 Pa. 46. Powell v. Commonwealth, 4 Amer. 265. Even if the Act of 1881 modifies the remedies given to the plaintiff by its charter, this would not invalidate the law. Phelp's App., 2 Out. 546. Antoni v. Greenhow, 107 U. S. 769. This Act does not impair any substantial right of the plaintiff. The Legislature has power to pass an Act for the enforcement of a pre-existing right, or to grant one where none existed before. Supervisors v. Dennis, 96 Pa. 429. Long's Ap., 87 Id. 114. R. R. Co. v. Nesbit, 10 Howard, 375. The Act of 1881 is authorized under the sovereign power of the State to enact laws for the public good. Gas Light Co. v. Louisiana Co., 115 U. S. 650. May 14, 1888. THE COURT. We are of opinion that this case comes within the Act of May 11, 1881. The policy issued to Dr. Musser had no copy of the application attached thereto as required by that Act, and as there was a distinct reference in the policy to the application, the learned Judge committed no error in refusing the plaintiff's first point, and in affirming the defendant's point. Nor have we any reason to doubt the constitutionality of the Act of 1881. It does not impair in any sense the obligation of the contract between the company and the assured. It does not even impair the remedy. It affects only the evidence necessary to entitle the plaintiff to recover, by requiring the company, in all cases where the policy contains a reference to the application, to attach a correct copy of such application as signed by the applicant, to the policy, and "unless so attached and accompanying the policy, no such application. shall be received in evidence, in any controversy between the parties to, or interested in, the said policy, nor shall such application be considered a part of the policy or contract between the parties." This affects merely the formalities to be observed in making proof of the contract. It is difficult to distinguish the Act of 1881 in principle from an Act requiring deeds and other instruments to be stamped, and that contracts for the sale of land shall be in writing. The Act of 1881 was but the exercise of the clearly recognized power of the State to regulate the mode by which contracts shall be made and proved. It is a wise and beneficent Act, founded upon sound reasons of public policy; it affords protection to persons who insure their lives er property, and can injure no company conducted upon honest business principles. Judgment affirmed. Opinion by PAXSON, J. GORDON, C. J., and TRUNKEY, J., absent. H. S. P. N. Fraudulent conveyances Practice Whether deed was given to hinder and delay creditors is a question for the jury. Whether a deed was given to hinder and delay creditors and whether said deed, although in form a contions of fact for the jury, and when they are left to veyance absolute, was in reality a mortgage, are questhe jury under clear and adequate instructions on the law the Supreme Court has no control over their verdict. The instructions to the jury in this case as to the rules of law relating to deeds valid or void as to creditors, approved. Error to the Common Pleas of Erie County. Ejectment, by William Benson and Chester West, against Sarah E. Maxwell and Marcus Wishart, to recover possession of a house and lot in the borough of Waterford, Erie County. The facts are sufficiently stated in the charge of GUNNISON, P. J., infra. The plaintiffs requested the Court to charge, inter alia, as follows: (1) If the jury find from the evidence that Sheldon Maxwell made the deed to his son, John S. Maxwell, to delay and hinder his creditors in collecting their debts, then it was and is void as to his creditors, Benson & West and D. C. Hutchins. Answer. The first point cannot be affirmed in the broad sense in which it is stated; if the jury find that Sheldon Maxwell made the deed with the intention of delaying and hindering his creditors and that the intention was known to and shared by John S. Maxwell, then the deed was void as to the creditors of Sheldon Maxwell. (First assignment of error.) (5) If the jury find from the evidence that John S. Maxwell and Sarah E. Maxwell kept the deed made December 5, 1873, in their possession, unrecorded until September 27, 1875, unknown to the said Benson & West and D. C. Hutchins, the creditors of Sheldon Maxwell to a large amount, and increasing his debts, then the deed would be void as to the said creditors of Sheldon Maxwell. Answer. The fifth point is refused. If the deed was valid when made the delay in recording it did not avoid it. (Second assignment of error.) The defendants requested the Court to charge as follows: (1) Fraud is never to be presumed, but must be proven by the party alleging it, and in order to avoid a deed it is not enough to show that the vendor intended to hinder, delay, or defraud his creditors, but it must also be shown to the satisfaction of the jury that the vendee received the deed with like intent to hinder, delay, and defraud the creditors of the vendor. Affirmed. (Third | before conveying the land back to Sheldon Maxassignment of error.) well, and the agreement is no evidence of fraud. Affirmed. (Seventh assignment of error.) (2) If the jury believe from the evidence that Sheldon Maxwell had received money belonging to his wife, the defendant, which came from her father's estate or any other source, he had a right to give her a note for the same and secure the payment of said note by mortgage on his lands, even if he was indebted to others or in failing circumstances. Answer. The second point is affirmed. Money received by the wife in any other way than from her husband or from her own earnings is her sole and separate property, and if she loans it to her husband he can lawfully give her a note for the loan and secure it by a mortgage, even if he were at the time indebted to others or in failing circumstances. (Fourth assignment of error.) (3) If the jury believe from the evidence that Sheldon Maxwell was indebted to his wife in the sum of $1562 for money received by him prior to April 1, 1870, belonging to her, he had a right to give her the note of that date and afterwards secure payment of the same by the mortgage upon which the property was afterwards sold and purchased by Mrs. Maxwell, the defendant, at sheriff's sale; that the transaction was not per se fraudulent, but must be treated just as are the transactions between ordinary debtors and creditors. Affirmed. (Fifth assignment of error.) (6) If the judgment No. 562, September Term, 1875, in favor of D. C. Hutchins v. Sheldon Maxwell and M. H. Terry, entered September 30, 1875, was not a lien on the land in dispute, the verdict should be for the defendants. Affirmed. (Eighth assignment of error.) The Court charged the jury as follows:"This is an action of ejectment brought to recover the possession of a lot of land in the borough of Waterford. Both parties claim by virtue of separate sheriff's deeds in pursuance of sales of the lands upon actions upon mortgages given by Sheldon Maxwell to Sarah E. Maxwell, and to Benson & West respectively. "The mortgage given to Mrs. Maxwell was the first executed and recorded, and was prior in lien to that of the plaintiffs Benson & West. The sale on the Benson & West mortgage was the first made, and if the mortgage to Mrs. Maxwell was the first lien it was made subject to the latter mortgage, which, according to the law of this State, was not divested of its lien by that sale. According to the records, as they have been offered in evidence, this was the fact. "Now, after the sale to Benson & West, Mrs. Maxwell, or John S. Maxwell in trust for her, which is the same thing, proceeded to foreclose (4) If the jury find from the evidence that the her mortgage, and in that proceeding caused the deed made by Sheldon Maxwell, dated Decem- property to be sold and became its purchaser. If ber 5, 1873, for the land in dispute, was received these were all the facts, there would be nothing by John S. Maxwell in trust for his mother, the to present to you for your consideration and defendant, for a debt owing from Sheldon Max-decision. There would be no question but that well to her, it was not fraudulent, and the judg- the title to the land is in Mrs. Maxwell. ment in favor of D. C. Hutchins against Sheldon "In order to show a better title in themselves Maxwell, entered while John S. Maxwell so held than Mrs. Maxwell's title, the plaintiffs allege the title, was not a lien on the land. Answer. If that the conveyance made December 5, 1873, the jury find from the evidence that the deed to from Sheldon Maxwell to John S. Maxwell, John S. Maxwell was given in consideration of which has been offered in evidence, was a volunthe debt due from Sheldon Maxwell to Sarah E. tary conveyance without consideration, and in Maxwell, and in payment of the debt, and not to fraud of the creditors of Sheldon Maxwell, secure its future payment, it was not fraudulent among whom were Benson & West, the plaintiffs as to other creditors unless it was made and re-in this case. If this is true, the deed to John S. ceived with the intention of defrauding the other creditors and not of preferring Mrs. Maxwell to the other creditors, and the judgment entered by D. C. Hutchins against Sheldon Maxwell would not be a lien on the land while the title remained in John S. Maxwell. (Sixth assignment of error.) (5) If John S. Maxwell received the deed of December 5, 1873, without any intention of hindering, delaying, or defrauding the creditors of Sheldon Maxwell, but for the purpose of paying the debt owing his mother from Sheldon Maxwell, he had the right to make the arrangement by which his mother should have the first lien by mortgage security on the property for her debt Maxwell was null and void, and the title remained in Sheldon Maxwell, and the judgment entered September 30, 1875, before the date of Mrs. Maxwell's mortgage, was a lien prior to that mortgage. The effect of that would be that it not being a first mortgage-there being a judgment prior to it-its lien would be divested by the sale on the Benson & West mortgage, and the sale to Mrs. Maxwell afterwards conveyed no title whatever. "This question is entirely a question for you. If you find from the evidence that the deed was without consideration, given by Sheldon Maxwell and received by John S. Maxwell with the intent to hinder, delay, and prevent the creditors from collecting their debts, then the deed was null "The plaintiffs claim also that the considera- and delaying the creditors of Sheldon Maxwell, then as to the plaintiffs no title passed from Sheldon Maxwell to John S. Maxwell, and the Hutchins judgment became a lien upon the land, and your verdict should be for the plaintiffs. The case is in your hands." Verdict for defendants and judgment thereon. Plaintiffs took this writ, assigning for error (1st to 8th inclusive) the answers to the points as above noted, and (9th and 10th) the portions of the charge inclosed in brackets. S. M. Brainerd (S. A. Davenport and William Benson with him), for plaintiffs in error. The deed of December 5, 1873, to John S. Maxwell was concealed and secreted from the creditors for nearly two years; was fraudulent as to the creditors of Sheldon Maxwell; and the jury should have been so instructed. Coates v. Gearlock, 8 Wright, 43. "It is also claimed that the deed to John S. Maxwell was, while in form an absolute deed, in Bump on Fraudulent Conveyances, 32. reality a security for the claim of Mrs. Maxwell, The deed is absolute upon its face. It deand therefore was in reality a mortgage instead clares no trust in favor of Sarah E. Maxof a deed; that there having been no defeasance well, and, so far as the creditors have to deal with -which you will understand is an agreement for it, it ought to be considered and disposed of upon the reconveyance of the property on the payment what it shows on its face. When the rights of of the debt-recorded, it became an unrecorded creditors are involved, as in this case, it is an mortgage, and its lien should, therefore, be postponed to that of the judgment of Hutchins. If you believe from the testimony that the deed was given as a security for the debt due Mrs. Maxwell, that would be so: [but if you believe the deed was given in consideration of the debt, and in payment of it, with no agreement for the reconveyance upon the payment of the debt, then it was an absolute deed and not a mortgage]. [Is there any evidence of an agreement for such a reconveyance? Because if it was not, it was not a mortgage but a deed, as claimed by the defendant, and if it was a deed, unless it was without consideration and given and received with the intention to hinder, delay, and defraud creditors, the Hutchins judgment did not become a lien upon the land, and as a consequence the defendants would be entitled to a verdict in the case]. "The whole matter is in your hands. If you believe the conveyance to John S. Maxwell was bona fide in consideration of and in payment of an actual, valid debt, due from Sheldon Maxwell, then the Hutchins judgment never became a lien upon the land, and your verdict should be for the defendants. If, however, you find the deed was given without consideration, and was given and received for the purpose of defrauding, hindering, extremely suspicious circumstance that the par- F. F. Marshall (George A. Allen with him), for defendants in error. The questions raised in this case were of facts which were properly submitted to the jury. Benson v. Maxwell, 105 Pa. St. 274. May 14, 1888. THE COURT. If the plaintiffs in error have any just cause of complaint, which is by no means clear, it is with the verdict of the jury and not with the rulings of the learned Judge below. A careful examination of the ten |