which the Court charged: "It is alleged by the plaintiff that the defendants caused to be removed a support essential to keep part of the structure in position without notifying the plaintiff of the removal; if you find this to be so, and the plaintiff did not know of the removal, and that it was improper to remove it, then it is negligence on the part of the defendants."

error assented to it in good faith, believing there was no danger in so doing, it was complying with the rule to provide for his servants to the best of his judgment. The true question as to this branch of the case is what was then fairly and reasonably deemed prudent and safe. He took as much care for the safety of his servant as he took for his own safety. (Railway Company An employer does not impliedly guarantee v. Bresmer, to WEEKLY NOTES, 379.) In view the absolute safety of his employé. In accept of the unquestioned facts, his omission to notify ing an employment, the latter is assumed to the employé of the removal, did not constitute have notice of all patent risks incidental negligence. (Priestley v. Fowler, 3 Meeson & thereto, or of which he is informed, or of Welsby, 1.) The first specification is sustained. which it is his duty to inform himself. (Whar. There was no error in declining to charge as reon Neg. § 206.) When, therefore, he under-quested under the second assignment. takes hazardous duties, he assumes such risks as Judgment reversed, and a venire facias de are incident to their discharge from causes open novo awarded.

and obvious, the dangerous character of which | Opinion by MERCUR, J.

causes he has had opportunity to ascertain. (Id.

§ 214.) The master is bound to provide for the

safety of his servant to the best of his judgment. Jan. '82.

(1 Addison on Torts, pl. 564.) In most cases

in which danger may be incurred, the servant is

March 2, 1882.

Huber v. Commonwealth.

as likely to be acquainted with the probability Affidavit of defence-Recognizance—Desertion.

and extent of it as the master. The latter is therefore not responsible for the damages attendant on the mountings of the scaffolds or unfinished staircases, landings, or roofs, which the workman has voluntarily undertaken to mount, with as much knowledge of the attendant risk asing been declared forfeited by the Court of Quarter Sessions, the person who employs him. (Id.)

There was evidence that the defendant in error

was employed as a rigger. Charles B. Smith, another rigger of large experience, and a witness for him, testified that he arranged the guys and tackle himself, that "one guy towards the wharf was removed. I took it off. I asked Mr. Sykes whether I could, and he said yes. The other tackle stood still. The tackle I took off I wanted to use for something else. The remaining tackle was not taken away." Another witness testified that he removed the tackle by order of both the plaintiffs in error, and if the block had been left the accident would not have happened.

A recognizance entered into before the Court of Quarter Sessions to support the family of the recognizor is an instrument of writing for the payment of money within the meaning of the affidavit of defence law, and the same havjudgment thereupon may be taken by virtue of the provisions of said law without a prior judgment of forfeiture.

setting up that the recognizor has returned to his family In a suit on such recognizance an affidavit of defence and that he is contributing all his earnings to their support, whereby they are reasonably provided for, is insufficient.

Error to the Common Pleas of Berks County. Debt, by the Commonwealth of Pennsylvania against J. Frederick Huber and Levi Krick, upon a recognizance entered into by defendants in the Court of Quarter Sessions of Berks County.

The following were the facts of the case. Defendant Huber was tried before said Court of Quarter Sessions on the charge of deserting his wife and children, and was ordered to pay the sum of $4.00 per week for their support, and to enter recognizance with bail to fulfil said order. He entered accordingly into the recognizance in suit in which defendant Krick became his surety. Said recognizance being afterwards declared forfeited in open Court the present suit was brought.

The judgment of the plaintiff in error as to the propriety of removing this block and tackle, and as to the safety in so doing, is shown by the fact that at the time of the accident he and the defendant in error, as well as others, were at work on the rafters, and plaintiff and defendant fell at the same time. The defendant had as good an opportunity of seeing the condition of the tackle A certified copy of the recognizance and foras any other employé had. He must be held to feiture being filed, defendant Huber filed an have known what was clearly visible to his sight. affidavit of defence, setting forth that in pursuIt was not necessary that he should be specific-ance of the suggestion of the Court made at the ally informed of a fact so patent to him. It is trial, he had returned to his wife and children not sufficient evidence of negligence that a jury and lived with them continuously thereafter, has now found it was improper to remove the tackle, judged by its effect. If an experienced rigger advised its removal; if the plaintiff in

during which time he had contributed all his earnings to their support. That shortly after his health failed and he was compelled to abandon

A forfeited recognizance is an instrument in writing for the payment of money upon filing a copy of which judgment may be entered for wanting thereof and to excuse the want of personal of an affidavit of defence.

Common Pleas Equity. that there must be a personal service to found an

Common Pleas Law.ral rule is that bail is not demandable, because

Judgment had been entered on a warrant of attorney, reciting that Gibson was bound to Wal-Practice-When judgment entered for want of lace in the sum of $5000, conditioned for the an appearance is a nullity-Duty of the properformance of certain covenants. Plaintiff's thonotary. counsel had, at the same time, directed an assessment of damages, as follows:

Sur exceptions to adjudication.

The facts as they appeared before the Auditing Judge (HANNA, P. J.) are briefly as follows: The decedent, Charles F. Hulse, was a member of the firm of Price, Parrish & Co., and in pursuance of proceedings in equity for an account on the winding up of the partnership, the decedent's estate was found, with other members of the firm, to be jointly and severally liable to Parrish's estate in the sum of $47,192.70. The indebtedness of the decedent was afterwards fixed at $18,352.30. [See opinion infra.]

The following assignment was also given in evidence before the Auditing Judge:

vidual debt due from the decedent which was entitled to a preference, and exceptions were accordingly filed.

C. Stuart Patterson and Richard C. McMurtrie, for Frederick Collins.

Such an assignment as the above is good, and enforceable in equity as against creditors of the assignor.

Grantham v. Hawley, Hobart, 132.

Cadogan v. Kennett, Cowper, 32.

Doe v. Routledge, Cowper, 708. See, also, Holroyd
v. Marshall, 10 H. L. 209.
Pelman v. Hart, Barr, 263.

The exceptant's claim is without reference to the pledge of November 23, 1875, entitled to payment in full in priority to the claim of the executors of Parrish.

Bispham's Equity, sec. 517.

Murrill v. Neill, 8 Howard, 404, 425.
3 Kent's Com. 65 note.

E. Hunn Hanson, W. C. Hannis, for Parrish's estate.

He

April 1, 1882. THE COURT. How far a partner, retaining his interest in an existing firm, may pledge it to secure a present advance, is a question which does not arise in this case. MEMORANDUM. WHEREAS, Frederick Collins has certainly may assign out and out, and his asagreed to advance Charles F. Hulse ten thousand dollars, which said Hulse proposes to use as capital in an under signee's title will be good as against creditors, withtaking of himself and Alexander W. Wister, to furnish out an actual delivery of possession of partnership rolling chairs for the Centennial Exhibition; and the said effects. Such a delivery, as was said by Judge Hulse, for the purpose of securing the said Collins for SHARSWOOD, in Whigham's Appeal (13 Smith, the said loan, and the repayment of the same, with inter- 194), would be impossible, since neither partner est, hereby pledges to the said Collins all his, the said has anything in the corpus of the partnership Hulse's interest in the said partnership "limited" of Hulse and Wister; and he further agrees to assign and property, but only a share of what remains after deliver possession of all said interest he holds in the the accounts have been taken; and in that case partnership of Hulse & Wister at any time before the a mere notice to the other partner of the transrepayment of said loan to said Collins, that the said Col-fer was held to be sufficient.

lins may elect to demand such possession, when the But when the instrument upon which the exagreement made by him, the said Hulse, for the proper

of said sum and interest as aforesaid, this agreement becomes null and void, and said Hulse retains the privilege of repaying the amount at any time he may decide, and also agrees on request to execute all the instruments counsel will advise, on purpose to carry this intention Witness our hand and seals this twenty-third day of November, 1875.

into effect.

conducting of the business aforesaid shall be assumed ceptant relies for the purpose of establishing his and executed by the said Collins, and after the re-priority of right over the other creditors of the payment of said loan and interest, and the necessary decedent was executed, there was no firm in exexpenses attendant therefor, the excess of receipts for istence. It recited that the borrower, Charles said business shall be paid to Elizabeth D. Hulse, the F. Hulse (the decedent), "proposed to use the wife of the said Charles F. Hulse. On the assignment sum loaned as capital in an undertaking of himself and Alexander W. Wister, to furnish rolling chairs for the Centennial Exhibition," and, as security for such loan, the interest of the said Hulse in said partnership, "limited," of Hulse and Wister, was thereby pledged, etc. etc., the said Hulse further covenanting "to assign and deliver possession of all said interest he holds in the partnership of Hulse and Wister, at any time before the repayment of said loan to said Collins, that the said Collins may elect to deThe Auditing Judge awarded to the executors mand such possession," etc. etc., and also, “on of Parrish their claim due on account of dece-request, to execute all the instruments counsel dent's partnership indebtedness, which ruling will advise, on purpose to carry this intention was objected to in behalf of Frederick Collins, into effect."

Witness at signing:

CHAS. F. HULSE. [SEAL]

A. J. D. DIXON,
JOHN RODGERS.

executor of Charles F. Hulse, on the ground Not only was the firm, the decedent's interest that the above assignment gave rise to an indi- in which was thus pledged, not in existence,

but, as stated at the argument without contradic- | a new and independent right in the assignee.” tion, it never came into existence, the firm (2 Select Cases in Equity, 233.) which three months later was formed being After the formation of the partnership it was composed of Mr. Wister and the decedent, and in the power of the lender to have perfected his four others. For the purpose of this opinion, title by calling for an assignment, but he did not however, the firm actually entered into may be do so. His debtor died. "His personal estate treated as that contemplated when the loan was then passed into the custody of the law for admade. The fact still remains that when the in- ministration, and the mortgagee had no right to strument stipulating for the pledge was executed, undertake to administer any part of it for the there was no existing interest upon which it satisfaction of his own debt. (Kater v. Steincould operate. There was nothing to prevent ruck, 4 Wright, 505.) the borrower, after obtaining the money, from using it for any other purpose, and not entering into any partnership at all. A further act was at least necessary on his part, viz., the formation of the partnership. The lender trusted to his promise that this should be done, and to the covenant that then, if so required, he would execute an actual assignment and deliver possession, so far as the subject was susceptible of possession. The stipulation as to assignment cannot therefore be regarded as formal simply, or as a mere covenant for further assurance. It was essential, for the perfection of the lender's title.

It is undoubtedly true, as was said by TILGHMAN, C. J., in Clemson v. Davidson (5 Binney, 398), cited by the exceptant, that "any order, writing, or act, which makes an appropriation of a fund, amounts to an equitable assignment of that fund;" but, as was held in that case, the principle cannot apply where the subject of the attempted appropriation was not in existence at the time. "An agreement to pay out of a particular fund, however clear in its terms, is not an equitable assignment. A covenant in the most solemn form has no greater effect. The phraseology employed is not material, provided the intent to transfer is manifested. Such an intent and its execution are indispensable. The assignor must not retain any control over the fund, any authority to collect, or any power of revocation. If he do, it is fatal to the claim of the assignee." (Christmas v. Russsell, 14 Wallace, 69-84.)

The fund came, as the account shows, into the hands of the exceptant as executor, and at that time, as we think, could have been received by him in no other capacity. It was subject to no lien, and therefore properly distributable among the general creditors of the decedent.

Nor do we think that the exceptant was the only creditor having the right to come upon the separate estate of the decedent.

The debt to George D. Parrish's estate was not a partnership debt. It grew out of the business of the firm of Price, Parrish & Co., of which he and the decedent had been members, but the affairs of that firm had been settled by a litigation in Common Pleas No. 2, in which it was found, and was so decreed, that of the debt of the firm to George D. Parrish (composed of him and five others), the decedent and three of the members were jointly and severally liable to his executors for $47,192.70, and another member, James C. Parrish, for $52,574, making in all $99.766.70.

It is true that it was found that the debt of the decedent to the firm was but $18,352.39, and that, as between himself and the other three joint debtors, the amount should be contributed by Stephen S. Price and Thomas C. Price, in the proportions mentioned in the decree. But this, while it will entitle the accountant to proceed against the parties primarily liable, cannot impair the right of the creditor to recover from the decedent in the first instance. And it is clear that a debt due by any number of partners less "To constitute an assignment, either in law than the whole, to one of the others or to a or equity, it is necessary that there should be stranger,cannot be regarded as a partnership debt. such an actual or constructive appropriation of The rule which postpones partnership creditthe subject matter assigned, as to confer a com- ors in the distribution of the separate estate of piete and present right in the assignee, even a partner, has never been extended to mere where the circumstances do not admit of its im- joint, as distinguished from partnership liabilimediate exercise. A covenant on the part of ties; and even a partnership creditor, by joint the debtor to apply a particular fund in payment of the debt as soon as he receives it, will not operate as an assignment, for it does not give the covenantee a right to the fund save through the medium of the covenantor, and looks to a future act on his part as the means of rendering it effectual, while the characteristic of an assignment is the relinquishment of all legal or equitable interest of the assignor, and the creation of|

and several bond, may elect to come in as a separate creditor, though by so doing he abandons his claim on the joint estate. (Ex parte Banks, 1 Atk. 160; Ex parte Bevan, 10 Vesey, 107; Bell v. Newman, 5 S. & R. 90; Lindley on Partnership, *1014.)

The exceptions are dismissed, and the adjudication confirmed.

Opinion by PENROSE, J.