LANCASTER LAW REVIEW. VOL. XXXII.] FRIDAY, SEPT. 10, 1915. [No. 45 Common Pleas--Law. $100.00; on September 24, 1909, $100.00; on March 21, 1910, $100.00; and on September 30, 1910, $200.00. Ziegler also paid to Brown the interest accruing upon the judgment from time to time. Whether or not this interest was paid over to Goll does not appear in this proceeding. The first two payments on the principal Brown paid over to Goll, who thereupon marked their receipt in his personal account book; but the subsequent payments were appropriated by Brown to his own use. When Ziegler made the last pay Goll v. Zeigler. Agency-Attorney-at-law-Scope of au- ment, Brown placed his appearance on thority-Judgment-Satisfaction. Where an attorney, who represented both parties in making a loan secured by judgment, without any express authority from the plaintiff, receives from the defendant and pays over to the plaintiff without objection two part payments of the principal and subsequently receives the balance of the principal which he fails to pay over, but enters satisfaction on the judgment, the attorney has no implied authority to enter the satisfaction and it should be stricken off. Rule to strike off satisfaction of judg- ment. uary Term 1907, No. 495. Bernard J. Myers, for rule. Jacob Hill Byrne, contra. the record as attorney for Goll, and entered satisfaction on the judgment in full. It is admitted that Brown had no express authority from Goll to either receive these moneys or to enter his appearance and the satisfaction; but it is claimed, on the part of the defendant, that because Goll took from Brown the two payments on account of the principal and failed then to repudiate and to dissent from the acts of Brown in making those collections, implied authority was given to Brown to receive the subsequent payments, and that Goll is, therefore, bound by Brown's act in entering the satisfaction. It will be observed that this case differs materially from the case of Goll v. Denlinger et al., 32 LANC. LAW REVIEW, June 26, 1915. Opinion by LANDIS, 85. There, it was admitted that this P. J. The facts out of which this controversy arose are undisputed. On March 30, 1907, Peter J. Ziegler executed and delivered to William H. Goll a judgment bond, of that date, for $800.00, payable on April 1, 1908, with interest at the rate of five per cent. per annum. On the same day, it was entered to the number and term above mentioned. At this time. W. T. Brown was a member of the Lancaster Bar, and he was attorney for both the parties. Ziegler applied to him to secure the loan and Brown arranged with Goll to make it. On September 23. 1907, Ziegler paid to Brown, on account of the principal of the judgment, the sum of $100.00; on March 27, 1908, $100.00; on September 25, 1908, 100.00; on March 26, 1909, same attorney was the representative of Goll alone, and that he did not, at any time, represent Hoeltzel, one of the defendants. Hoeltzel made three payments to Brown as attorney for Goll, two of which were paid over by Brown, and, upon their receipt by Goll, he (Goll) entered receipts for the same upon the record, and never disavowed the authority of Brown to receive them. It was there held that Goll's course of dealings in the matter showed a ratification of the acts of Brown as his agent in making all the collections. We may also say that the cases of Himes v. Herr, 3 Sup., 124, and Buck v. Henry, 52 Sup., 477, were decided upon the same principle. We, however, think that, in the present case, a different proposition arises. In Zimmerman v. Floyd and Collins, 20 LANC. LAW REVIEW, 17, this Court said: "The attorney is, at best, the agent | held out the latter as having authority to * * of the client. It is a familiar principle that every one who transacts business with an agent is bound to make inquiry and inform himself as to the nature and extent of his authority. He cannot plead ignorance or even misinformation by the agent himself. Philadelphia Trust Company v. Roberts, 14 W. N. C., 123." We then added that this same rule applied to attorneys-at-law, and that a judgment would not be marked satisfied where the amount was paid to an attorney not authorized to receive it and not paid over by him to the plaintiff. In Ely v. Lamb, 10 C. C. R., 209, Yerkes, P. J., in deciding a similar case, tersely said: "We conceive that one who is general attorney has not the power to satisfy a judgment obtained by confession without the aid of his professional skill, unless authorized specially to do so. It was also held in that case that authority to collect the interest on a judgment does not imply authority to collect the principal. In Slaymaker, Trustee, τ'. Herr, 12 LANC. LAW REVIEW, 342, it was decided that "the attorney who acted as agent for the plaintiff in making a loan has no implied authority to collect the principal or interest of the judgment given to the plaintiff for said loan, and cannot place his name on the margin of the record as attorney for the plaintiff and enter satisfaction so as to bind the plaintiff, without express authority, which authority should be shown on the record," and that even "the consent of the plaintiff to the collection of interest by the attorney does not give him authority to collect the principal." This same doctrine is fully set forth in the recent case of Mynick v. Bickings, 30 Sup., 401. Henderson, J., delivering the opinion of the Court, said: "The mere fact that the attorney acted as a conveyancer in the transaction between the plaintiff and defendant did not invest him with authority to collect the debt. The obligations were given to the plaintiff. This the appellant well knew. They were not in the possession of Jones at any time when | payments were made. The defendant had not been requested to make payments to Jones, nor had the plaintiff receive payments on the debt. Relying on his integrity and apparently to avoid the inconvenience of finding the plaintiff and paying her, he gave the money to Jones to be paid over. In so doing, he assumed the risk that Jones might not act in good faith. ** Generally speaking, it is the duty of a debtor, who is bound by an obligation in writing, to see that the person to whom he pays the money for his creditor has possession of the evidence of indebtedness, unless he can show express authority in the person to whom the payment is made to receive the money. * * * Nor did the fact that payments of interest were received from time to time and accepted by the creditor imply that he had authority so to receive them. When the money was paid to the creditor, the debtor received credit for the payment; but any other person might have handed the money to the creditor with the same effect as when done by the attorney through whom the loan was effected. * * * The position of an investor would be most precarious if the fact that he employs an attorney from time to time when making loans and authorizes him to make collections of interest, and in special cases of the principal due on securities, is sufficient to warrant a finding of authority generally to collect the principal of all his client's mortgages, and that, too, when the latter keeps possession of his obligations.' We have, therefore, concluded, under the facts of this case, that Brown had no authority to enter the satisfaction upon the plaintiff's judgment, and we accordingly make the rule absolute, and direct that the same shall be stricken off. Rule made absolute. Pittsburgh v. McDonough. Municipal liens-Revival of-Defective service-Act of May 16, 1891, P. L. 69. A sci. fa. on a municipal lien, fatally defective in its service, is a nullity for the purpose of obtaining judgment and is not sufficient potentially to continue the lien beyond its expiration so as to give validity to a judgment sci. fa. attempted to be secured on an alias expired by the efflux of time. Sur rule to open judgment on sci. fa. and to strike off a municipal lien. C. P. of Allegheny County, June Term 1895, M. L. D. 398. Charles A. O'Brien, City Solicitor, and Thomas H. Hasson, Assistant City Solicitor, for plaintiff. W. A. Jordan, for defendant. April 23, 1915. Opinion by SHAFER, P. J. In 1894 the city of Pittsburgh built a sewer, for the construction of which it filed its municipal lien, on May 22, 1895, at the above number and term, against D. William McDonough, who was at that time the registered owner of the property. On August 8, 1895, a sci. fa. was issued on this, which was returned nihil habet; on April 6, 1897, an alias sci. fa. was issued, on which there was a return that the sheriff had posted the premises and advertised the writ according to the act of May 16, 1891, P. L., 69. and judgment was thereupon taken on May 17, 1897, in default of an apperance or affidavit of defence. We do not understand that there is any dispute as to the validity of the lien and of the judgment thereon, up to this point. On April 3, 1900, a sci. fa. to revive was issued to the first Monday of May, and returned nihil habet. The deed of Mrs. Wallace, the petitioner herein, was registered in June, 1900. The next proceeding was a sci. fa. on March 7, 1905, which recites the judgment taken as above stated and was issued with notice to the petitioner. This writ was returned "nihil habet and premises posted," and no judgment was taken thereon. On February 8, 1910, a præcipe was filed for a sci. fa. to revive and continue the lien of the judgment herein, which was returned nihil as to the defendants and that the premises had been posted and a publication according to the act of 1891, and on May 25, 1910, judgment was entered in default of an appearance, and on May 3, 1911, a lev. fa. issued, and it was then that the petitioner, owner of the property. first learned of the existence of the lien and the writs that had been issued thereon, whereupon she took the present rule. It appears from the petition and answer that Mrs. Wallace was all the time a resident of the city of Pittsburgh, and her petition to open the judgment herein is partly founded upon this failure to give her notice. The act of 1891, above referred to, which is claimed by the city to govern the case, provides in §3 that when a lien is filed the process for collecting it shall be by writ of scire facias, and directs what proceedings are to be had thereon for the recovery of a judgment on the lien. Its provisions, substantially, are that a scire facias shall be issued, and if it is returned nihil an alias may issue, which shall be served by notice posted on the premises, and by certain advertisements published in newspapers; and it provides that such posting and publication shall be equivalent to a service. Whether these provisions apply to a scire facias to revive a judgment recovered on the lien seems, to say the least, very doubtful, but that question is not material in this case for the reason that if they do not apply the petitioner is not bound by the judgment and may move to strike off the lien as lost for want of proper revival, notwithstanding the existence of the judgment against her; and if they do apply, the petitioner, having had no actual notice and having applied promptly for relief, is entitled to have the judgment opened so as to allow her to defend. In either case she is not precluded from setting up the alleged failure to revive the lien. The only question argued by counsel on either side was whether or not the lien had been duly revived. The act provides that the lien shall re- | properly serve the scire facias was the main on the property until it is fully paid, "provided that a writ of scire facias shall be issued to revive the same at the expiration of every period of five years after the lien is filed." The contention of the city is that this proviso sets up a new method of preserving the lien of the municipal claim, different from the ordinary revival of a judgment by scire facias, and that all the city has to do to keep the lien on foot indefinitely is to issue a scire facias every five years, without regard to whether it is served or not. If this contention is correct, the lien in question still remains, as a scire facias was issued within every five-year period since the filing of the lien. We are of opinion, however, that there is nothing in the words of the act which requires any such interpretation. There is no more reason for taking literally the proviso that the lien shall continue if a writ of scire facias "shall be issued" than there would be for applying an equally literal interpretation to the words, want of proper posting and publication, precisely as in this case. It will be observed from the statement of facts herein that the sci. fa. of 1900 was returned nihil, and that of 1905 was returned nihil, and that the premises was posted, but without any publication. We seem to have, therefore, the case there presented; and it was there held that a sci. fa. on a municipal lien, fatally defective in its service and a nullity for the purpose of obtaining judgment thereon, has not sufficient potentiality to continue the lien beyond the time of its expiration so as to give validity to a judgment attempted to be secured on an alias sci. fa. sued out after the lien of the original claim had expired by efflux of time. Applying the act, therefore, in the most favorable manner for the city, and supposing it to mean that the writs of scire facias were all issued on the lien, and are to be served by the method provided for serving the alias sci. fa. mentioned in the act, there will be a lapse of almost thirteen years during which no sci. fa. was issued which at the expiration of very could preserve the lien of the claim. period of five years after the lien is filed. If this were to be taken literally all the sci. fa. in this case were premature. According to the plaintiff's contention a scire facias every five years would pre serve the lien although it were stayed by the plaintiff or returned tarde venit. What the act seems to mean is, that the lien shall continue until paid provided it is duly revived by scire facias every five years. If the sci. fas. in this case issued after the original judgment are to be deemed as issued upon that judgment and are to be treated as ordinary sci. fas. for that purpose, they were, of course, ineffectual; if, as we understand it, the sci. fa. is supposed to be upon the lien, although the sci. fa. of 1905 is expressly stated to be upon the judgment, we have a case precisely like that which was presented in the case of Philadelphia 7. Cooper, 212 Pa., 306. While the lien in that case was filed and the sci. fas. issued thereon were under the laws peculiar to the city of Philadelphia, there is nothing to differentiate that case from this, as to the matter which was there decided. In that case the failure to It is therefore ordered that the judgment on the last sci. fa. be opened; and the case having been presented and argued as if that had been already done, the rule to strike off the lien and the proceedings thereon is made absolute. Kaiser v. Kaiser. Husband and wife-Divorce-Desertion The court will permit a respondent in a divorce case, even after testimony has been taken ex parte for the libellant and a decree has been recommended by a master, but before the case has been taken under consideration by the court, to file a cross-bill for a divorce from the libellant. Under the Act of March 13, 1815, 6 Sm. Laws, 286, authorizing the granting of a divorce "when any husband shall have, by cruel and barbarous treatment, endangered his wife's life or offered such indignities to her person as to render her condition intolerable and life burdensome, and thereby force her to withdraw from his house and family," a diWe have gone over all the evidence in the case, and we are of opinion that the separation of the parties was brought about by the fault of the husband and Divorce. C. P. of Fayette County, not by that of the wife. There are September Term 1914, No. 67. vorce will be granted a wife when, on account of cruel and barbarous treatment, she refuses to live with her husband again after he has left her. George Patterson, for libellant. January 12, 1915. Opinion by VAN SWEARINGEN, J. This case is before the court on a libel and a cross-bill, each of the parties desiring a divorce from the other. The ground for divorce alleged by the libellant is desertion, and that relied on by the respondent is cruel and barbarous treatment. The parties were married at Camden, New Jersey, on November 25, 1905. They have one child, a daughter, now eight years of age. They became finally separated at Williamstown, New Jersey, in the latter part of June, 1908. After the separation, the libellant came to this county, where he married Mary L. Loudermilk on February 10, 1913. On account of that marriage he was convicted of bigamy here, and on May 29, 1914. was sentenced to a term of imprisonment in the county jail, when a decree also was made by the court declaring the bigamous marriage null and void. On June 9, 1914, the libellant filed this application for a divorce. On October 19. 1914, the testimony of the libellant was taken before a master appointed by the court, who found as a fact from the evidence then offered that the respondent was guilty of desertion, and recommended that a divorce be granted to the libellant on that ground. On January 4, 1915, before the case had been taken under consideration by the court, the respondent, although residing and teaching school at Jefferson Island, five miles from Big Timber, in the State of Montana, came here, and by leave of court filed a cross-bill, and gave her testimony at a hearing before the court at which the libellant and his counsel were present, and at which hearing also the libellant offered additional evidence in his own behalf. many sharp contradictions in the evidence, and we are compelled to determine which of the parties we shall believe and which of them we shall discredit. On all the material points in the case, we are constrained to give credence to the testimony of the wife instead of to that of her husband. We arrive at that conclusion to some extent because of the fact that the libellant testified in one way relative to certain matters at his trial for bigamy and in an entirely different way in regard to those same matters in this case. In addition to that, the conduct and bearing of the parties when before us was such as to lead us to believe the testimony of the wife instead of that of her husband. The wife, while in an embarrased financial condition and compelled to make her own way in the world, impressed us as a woman of considerable education and natural refinement, with a delicate and proper solicitude for her own good name and a commendable sense of duty to her child. The wife's manner was such as to convince us of the truthfulness of her statements. The husband, while not naturally entirely bad, has permitted his weaknesses to so overcome him as to cause us to doubt the sincerity and truthfulness of many of his statements. From the evidence we find the facts to be that on the day prior to the birth of her child, while the libellant and respondent were living at Williamstown, New Jersey, the respondent was compelled to go to a maternity hospital in Philadelphia, where she might be cared for in child-birth, because her husband had so neglected her and failed to provide for that event at their home as to render it dangerous to the respondent's life and health to remain there, and that while the respondent was in the hospital under the circumstances stated, the libellant departed from Williamstown with another woman, leaving the respondent to provide for herself as best she could; that later the libellant and respondent lived |