much more formal than that which was sustained

in McCracken's Heirs v. Graham et al. (14 Pa. St. Jan. '82, 226.
R. 209). We are unanimously of the opinion
that this case furnishes no sufficient ground for
departing from the practice so long established."
Cochlin thereupon took these writs, assigning
for error the action of the Court in discharging
the above rules.

James B. Reilly, for plaintiff in error.

The transfer of the bonds to the Common Pleas was unwarranted by the Act of 1859. After entry of judgment under the warrant of attorney, the Act of June 14, 1836 (P. L. 639), should have been followed and judgment entered (1) For the Commonwealth in the amount of the bond, and (2) for the plaintiff in the amount of the damages to be assessed. By sec. 11 of the same Act the damages should have been assessed by scire facias before execution issued.

This Act was not a re-enactment of the statute 8 & 9 Wm. III., but gave a new remedy, and included judgments by confession.

Miltenberger v. Commonwealth, 2 Harris, 71.
Maffit v. Commonwealth, 5 Barr, 359.
Commonwealth v. Cope, 9 Wright, 165.
Isaac M. Price, for defendant in error.
Proceedings on official bonds in Schuylkill
County are regulated exclusively by the Act of
February 17, 1859 (P. L. 51).

No scire facias is necessary to ascertain the damages when judgment is entered under a warrant of attorney accompanying the bond.

Skidmore v. Bradford, 4 Barr, 300.
Judgments entered by warrant of attorney are
not within the statute of 8 & 9 Wm. III., nor the
Act of June 14, 1836 (P. L. 639).

Longstreth v. Gray, 1 Watts, 60.
Skidmore v. Bradford, supra.
Jones v. Dilworth, 13 Smith, 447.

May 1, 1882. THE COURT. It is settled that where judgment for the penalty of a bond is entered up by virtue of a warrant of attorney, no scire facias is necessary to ascertain the sum for which execution shall issue. (Skidmore v. Bradford, 4 Barr, 296.) The amount of the execution is entirely within the control of the Court, who can interfere to reduce the amount, if it is required. The Court will see that eventually no injustice is done.

Judgment affirmed in each case.
PER CURIAM.

MERCUR and PAXSON, JJ., absent.

Principal and surety- Official bonds—Terms of, in excess of statutory requirements.

The statute creating the office of Receiver of Taxes for the Twenty-third Ward of the city of Philadelphia provides, inter alia, that said receiver shall give bond to the city, with good and sufficient security, but makes no specific provisions as to the character or terms of said

bonds.

A Receiver was appointed for three successive terms, for each of which he gave bonds with sureties, upon which judgments were duly entered up by the city. By these bonds the receiver and his sureties bound themselves to be liable for any dereliction of duty on the part of the Receiver for the official term for which he was elected or "for any term or terms for which he might thereafter be re-elected to said office so long as he continued in said office during said original or any subsequent term or terms " The Receiver defaulted during real estate of one of his sureties for his second term, his third term. In a contest for a fund realized from the

between the city and a subsequent judgment creditor:

Held, that the surety for the second term was liable for the default of his principal during the third term, and that the judgment of the city was a prior lien.

Waters's Appeal, 12 WEEKLY NOTES, 146, followed.

Appeal of Peter Castor from a decree of the Common Pleas No. 4, of Philadelphia County, dismissing his exceptions to and confirming the report of the auditor appointed by the Court to distribute the principal of a certain ground-rent owned by said Castor, and which had been paid into Court by John J. Nathans, the terre-tenant of certain premises, out of which the same had been reserved.

Before the auditor (W. Herbert Washington, Esq.) the fund was claimed (1) by the city of Philadelphia in right of the balance due on a certain judgment entered March 10, 1875, on a bond and warrant of attorney, dated March 4, 1875, against Benjamin Shallcross, Robert W. Shallcross, and Peter Castor, and (2) by Charles D. Middleton in right of a judgment entered by him May 18, 1877, against Peter Castor.

The facts relating to the judgment held by the city of Philadelphia are reported at length in Waters's Appeal, 10 WEEKLY NOTES, 146, the judgment being the same there in question. Castor and Middleton contended that although that case decided that said judgment was valid and binding as against Shallcross, the principal, it did not decide that the same was valid and binding as against Castor, who was a surety. They claimed further that it was invalid as to said Castor, and that therefore it constituted no lien against the ground-rent in question.

The auditor reported, inter alia, as follows: "The unsuccessful endeavors to draw a distinction between the status of principal and surety

Waters's Appeal only decides as to the principal's liability, and recognizes the fact that the sureties might be released. The lawful security was $10,000. If the liability of the sureties in the second bond was a continuing liability, the third bond being in excess of the statutory requirement would be void. We claim therefore that the new bond superseded the old one. United States v. Kirkpatrick, 9 Wheat. 720. United States v. Eckford, 1 How. 250.

Sparks v. Farmers' Bank, 9 Am. Law Reg. (N. S.)
365.

United States v. Wardwell, 5 Mason, 82.
United States v. Maurice, 2 Brock. 96.

By the spirit of the Act of 21 April, 1846, P. L. 432, when the new bond was given, the sureties in the old were discharged from all responsibility.

appear in the following cases: Wolverton v. Commonwealth (7 S. & R. 273); Roth v. Miller (15 id. 107); Farmer's Bank v. Boyer (16 id. 50); Commonwealth v. West (1 Rawle, 29); Shunk v. Miller (5 B. 250); McCaraher v. Commonwealth (5 W. & S. 21); Loan Co. v. Odd Fellows (12 Wright, 449). It may be said to be perfectly well settled by these decisions that the responsibilities of principal and surety on a bond are not to be distinguished. Reverting to the facts of this cause, it is to be observed that the intention of all three of the obligors to assume a liability during continuance of the principal in office in any subsequent term appears in the most clear and unambiguous language upon the face of the instrument, that the denial of illegality in this condition by the final decree in Waters's Appeal must affect all parties to it, and Lord Arlington v. Merricke, 2 Saund. 411. that there is not a scintilla of evidence before Moore v. Potter, 12 Am. Law Reg. 764. Commonwealth v. Baynton, 4 Dall. 282. your auditor to show any fraud or mistake C. E. Morgan, Jr., Assistant City Solicitor before the execution of the instrument by the sureties or their discharge thereafter, unless it be (with him Wm. Nelson West, City Solicitor), sureties or their discharge thereafter, unless it be for appellee, relied on the report of the authe taking of a new bond with new sureties at ditor and Waters's Appeal, 10 WEEKLY Notes, the commencement of the ensuing term. But 146. the city took the fund in Waters's Appeal, not by virtue of a judgment obtained against the principal for money embezzled, but by virtue of the judgment on the official bond, whose validity as to the sureties is now denied. If the giving of a new bond for the third term could discharge the sureties on the bond for the second term, why would it not have had the same effect on the principal. But that the judgment on the bond for the second term was valid, at least as to the principal, was decided in Waters's Appeal."

The auditor therefore awarded the amount of her claim to the city, and the balance to Middleton on account of his judgment. Castor filed exceptions to this report on the ground that the auditor erred in awarding the fund as above. The Court dismissed the exceptions, and confirmed the report, whereupon Castor took this appeal, assigning for error the decree of the Court.

Edward R. Worrall (with him John Shallcross and F. Carroll Brewster), for appellant.

There was no default during the term for which the appellant was surety, and his bond was superseded by the bond for the third term. The city did not accept the bond for the second term as a continuing liability of the sureties, but required a new bond and new sureties.

The principal in a bond may be liable, and the sureties be discharged.

Commonwealth v. West, 1 Rawle, 29. The construction of a bond must be the same as to all the obligors, but the sureties may be discharged by some equity of their own.

Hutchinson v. Commonwealth, 6 Barr, 124.

April 17, 1882. THE COURT. When it was decided by this Court in Waters's Appeal (10 WEEKLY NOTES OF CASES, 146) that such a condition as the one set forth in this bond was valid, so as to bind the principal, it necessarily followed that the sureties were also bound. It remained in the custody of the city, and the acceptance of the new bond and sureties could not have the effect of discharging the sureties. Decree affirmed, and appeal dismissed at the costs of the appellant.

PER CURIAM. STERRETT, J., absent.

be of the same force and effect as if defendant had been regularly summoned.

agreed that such action should be instituted to the requisite population. The only tribunal having jurisdiction of a claim of this character is the Board of County Auditors, which board is expressly given the authority by the Act of April 15, 1834, Sect. 48 (P. L. 545). The remedy before them is exclusive.

A case stated was agreed upon, setting forth the following facts: James D. Harris was duly elected county commissioner of Luzerne County in the fall of 1878, and discharged the duties of the office during the three years of his term of office from the first Monday of January, 1879. When the new Constitution went into effect, and when the Act of March 31, 1876 (P. L. 13), was passed providing for the salaries of county officers in counties containing over 150,000 ininhabitants, Luzerne County contained 160,915 inhabitants. On August 21, 1878, the county

of Lackawanna was erected and created out of the county of Luzerne, and ceased from that time to be a part of the latter county. The county of Lackawanna had a population of 80,000, taken from Luzerne County. Plaintiff was paid his salary of $1500, which was the amount he was entitled to under the provisions

Act March 21, 1806, Sect. 13, 4 Sm. L. 332.
Blackmore v. Allegheny Co., 1 Smith, 160.

April 24, 1882. THE COURT. The agreement of the parties could not give the Court below jurisdiction of the action. The only tribunal having original jurisdiction is the Board of County Auditors. (Blackmore v. Allegheny County, 1 P. F. Smith, 160.) Writ quashed. PER CURIAM.

of the Act of March 31, 1876, during the years Common Pleas—Equity.

1879 and 1880, but in the year 1881 was paid only $1071. This suit was brought to recover $429, the balance alleged to be due. If the Court should be of opinion that plaintiff was entitled to this additional sum, judgment was to be entered in his favor, otherwise judgment was to be entered for defendant. Both parties reserved the right to take a writ of error. The Court (RICE, P. J.) entered judgment on the case stated for defendant, whereupon plaintiff took this writ, assigning for error the entry of judgment for defendant.

G. M. Harding (with him J. McGahren), for plaintiff in error.

C. P. No. 3.

April 22, 1882.

Loughlin v. Atlantic and Ohio Railroad Co.
Equity-Preliminary injunction-Injunction to
compel the transfer of stock by the officers of
a corporation-Remedy at law-A mandatory
order upon a preliminary motion cannot be
made-Service of bill upon the president of a
foreign corporation residing in this city-
Jurisdiction.

Sur motion for a preliminary injunction.
Plaintiff's bill set forth substantially the fol-

The object of this action is to obtain a deci-lowing facts: The Royal Land Company of Virsion on a question of great importance to all county officers in our county, and we contend that we were entitled to stand on the census of 1870, until a new census changes our position. The Court, moreover, erred in holding that the division of the county changed our status, for the increase of population would have been sufficient to obviate that. If any departure is to be made from the status as it was by the census of 1870, we should be permitted to prove what the population really is now.

The question of jurisdiction ought not to be considered now, after the case has gone so far by agreement of all parties concerned.

H. W. Palmer (with him G. L. Halsey), for defendant in error.

The Court was bound to take judicial notice of the division of our county, and, when the population of what is now Lackawanna County, as shown by the census of 1870, is deducted from the total of Luzerne County, as shown by the same census, it is clear that Luzerne had not

ginia was incorporated April 12, 1876, under the laws of Virginia, for the purposes of developing mines, manufacturing and working iron, steel, and other ores, selling and improving lands, etc. By certain amendments to the charter, approved on or about September 26, 1876, and January 11, 1877, the rights, powers, and privileges of said corporation were enlarged, and authority was given to it inter alia to build, construct, and equip certain railroads in the State of Virginia, and the name was changed to the Atlantic and Ohio Railroad Company. On November 10, 1881, five thousand shares of the stock of said company were exposed at public sale, by auction, at the Chamber of Commerce, in Pittsburgh, Pennsylvania, and the same were purchased by the complainant. The certificates for said stock all bore powers of attorney, signed by the parties in whose favor the certificates were made out, and were duly delivered to complainant at or immediately after the date of the purchase. The president of said company resided

There were attached to the bill as exhibits, a

in the city of Philadelphia, within the jurisdic- | interfering with complainant's right fully to have tion of the court. On March 14, 1882, the and enjoy said stock, and particularly with his right complainant, through his attorney in Philadel- to be present at the annual meeting of the stockphia, made a demand on the secretary of the holders to be held on May 2, 1882, and to vote company, to issue a call forthwith for a general thereat upon said five thousand shares of stock. meeting of the stockholders, to be held at the (4) From refusing to permit the complainant to earliest date possible, after the proper notice re-sell, assign, and transfer upon the books, the quired by the charter and by-laws of the com- whole or any portion of said stock, and from pany, and to take the necessary steps by adver- refusing to issue any certificates to his assignees tisement or otherwise for the holding of such or vendees. (5) General relief. meeting. To this, the secretary replied in writing that he had no knowledge that the complain-schedule of the stock owned by the complainant, ant was the owner of any stock in said company. and copies of the various demands referred to in Accordingly on March 22, 1882, a written re- the bill. Counsel for complainant presented a quest to transfer the said five thousand shares of number of affidavits, sustaining the averments stock to the complainant was mailed to and duly of the bill, and showing that the demands made received by the secretary. On March 27, 1882, by complainant, as stated in the bill, were made a further demand to transfer said stock to the with the concurrence of those who were the complainant was made upon the secretary at the holders of the certificates of the said stock, and branch office of the company in New York by that they were desirous that said stock should be complainant's attorneys there, and at the same duly transferred to the complainant as they betime the original certificates of stock were pro-lieved that the same had been duly purchased by duced and offered to be surrendered, and request | him. was made that new certificates be issued therefor The respondent entered no formal appearance, to the complainant in the place of those then but on the application for the injunction was produced. At the same time a demand was represented by counsel who resisted the applicamade on the secretary to call a meeting of the tion, and presented several affidavits denying the stockholders of the company, for an inspection averments of the bill. of the transfer books and for a list of the stockholders of the company. Each and all of these demands were refused, and the company refused to recognize the complainant in any way as the owner of said stock.

By the charter and by-laws of the company, and under the laws of Virginia, an annual meeting of the stockholders is to be held on the first Tuesday of May, 1882, where an election for a board of directors for the ensuing year will be held.

George T. Bispham, for the motion. Similar injunctions have been granted both in this country and in England.

Baptist Congregation v. Scannel, 3 Grant, 48. Lathrop v. Junction R. R. Co., 37 Leg. Int. 447. Coe v. Railroad Co., 3 Federal Reporter, 775. Carlisle v. Stevenson, 3 Maryl. Ch. Rep. 499. Longwood v. Railroad Co., 27 N. J. Eq. 166. Pettibone v. Hamilton, 40 Wisconsin, 402. Cole Mining Co. v. Virginia Co., I Sawyer, 685. Earl of Mexborough v. Bower, 7 Beavan, 127. Smith v. Smith, Law Rep. 20 Eq. 500. The injunction, if granted, will not injuriously affect the company. They are mere stakeholdThe parties who stand upon the company's books as the owners of the stocks, and the claimant who now claims ownership by virtue of his purchase at public sale unite in this application, and no other claimant of the stock appears to object.

The complainant averred that, by reason of the refusal of the secretary to transfer the said stock to him, he may be deprived of his rights anders. privileges as a stockholder of attending the said annual meeting and voting at the election for officers and directors. That he is deprived of the facilities, to which he is justly entitled, to sell, dispose of, and transfer said stock.

The bill prayed equitable relief as follows: That the said Atlantic and Ohio Railroad Company, its officers, agents, servants, and employés, be restrained by injunction, preliminary until the hearing and perpetual thereafter, (1) From refusing to transfer the said five thousand shares of stock to the name of the complainant upon the books of the said company, and from refusing to issue certificates therefor to the said complainant. (2) From refusing to permit the complain ant to inspect the certificate books, and other books of the company, and also from refusing to furnish a list of the stockholders. (3) From

T. Elliott Patterson (with him Charles S. Pancoast), contra.

It has been held in England that a special action on the case will lie against a corporation for improperly refusing to transfer stock.

Rex v. Bank of England, 2 Douglass, 524. In New York on a motion for a mandamus, the Court refused that remedy, and said an adequate remedy at law was open to complainant.

Shipley v. Bank, 10 Johnson (N. Y.), 484.

A corporation is liable in damages for any loss sustained through the negligence or misconduct of its officers in making transfers.

Boon on Corporations, sec. 123.
Bank v. Lanier, 11 Wallace, 369.