In Chancery.---Burchard v. Phillips et al. Before the Hon. F. WHITTLESEY, Vice-$1388,72, the second, $982,08. An order Chancellor of the Eighth Circuit. BURCHARD V. PHILLIPS et al.-14 Feb. 1844. NOTICE OF LIS PENDENS UNDER THE ACT OF 1840-PAYMENT OF SURPLUS PURCHASE MONEY ΤΟ JUNIOR INCUMBRANCER. On a sale under a decree of foreclosure there was a large surplus, which was brought into court. The Master's report of the sale was filed on the 4th November, 1843. On the 6th November following, B. filed with the clerk his claims for the surplus, and an order of reference was entered in relation thereto at the instance of B., and was executed by the Master, who by his report awarded the surplus to B. to whom the same was, by virtue of an order made therefor paid on the 22nd November, 1843. It appeared that the Master in proceeding on the reference, was furnished with the certificate of the clerk that the only claim filed was that of B. W and W. who had a lien upon the mortgaged premises by a judgment subsequent to the mortgage foreclosed, and who had filed a notice of lis pendens required by the act of 1840, in the County clerk's office, upon which the usual decree had been taken, applied to vacate the proceedings in relation to the surplus, and for an order that B. restore the money withdrawn, alleging that they were not informed of the proceedings in the suit until the 8th November, 1843, and that after ascertaining the necessary facts, they sent a notice of their claim to the clerk to be filed. It was admitted however, that such notice was not received by the clerk till November 24th, being two days after the money had been paid to B. HELD, that W. and W. although not parties to the of reference was entered in relation to the surplus money, upon the application of Bryan, Nov. 15, 1843, and was executed by the Master, Nov. 22, 1843, when his report was filed awarding the surplus to Bryan. The Master in proceeding upon ence. the reference was furnished with the certificate of the clerk that none of the defendants had appeared in the suit but Phillips, and that no other claim was filed, but the claims filed by Bryan. Phillips was summoned by the Master, but no one but Bryan appeared before him on the referUpon filing the Master's report, an order was made for the payment of the money to Bryan, Nov. 22, 1843, and the money was immediately paid to him. The mortgage foreclosed by this suit, was executed in 1837. Phillips had conveyed the mortgaged premises to the defendant, Parish. The Messrs. Willetts, the petitioners, recovered a judgment against Parish in 1838, upon which was due $437,80. The notice of lis pendens required by the act of May 14, 1840, was duly filed in the County clerk's office, and the usual decree taken under the act. The petitioners state that they were not informed of the proceedings in this suit, until Nov. 8, 1843, and then were so informed in such a manner that it was necessary to write again to obtain information as to the title of the suit, and the court in which it was pending. The mortgaged premises were situated in Monroe county, and the petitioners reside in Delhi, Delaware county. After ascertaing the necessary facts which they suit, were foreclosed the same as if the bill had been taken as confessed against them. Held, also, that the Court had no control over did not do until Nov. 20, 1843, they imthe money received by B. This was a bill to enforce a mortgagedecree of sale entered July 25, 1843, and sale made October 25, 1843. The defendant, Calvin H. Bryan was the purchaser, and there was a surplus produced by the sale of $1898,28, which was brought into court. The Master's report of sale was filed Nov. 4, 1843. Nov. 6, 1843, Calvin H. Bryan filed with the clerk, his claims for the surplus, which were two-one, a decree upon a junior mortgage for the purchase money, executed by the defendant Jasper Parish to the defendant, Phillips, and the other, a mortgage executed by the defendant Parish to the defendant Bryan, dated May 1, 1841; the first claim was mediately sent a notice of their claim to the surplus to the Master, and to the clerk to be filed. The clerk did not receive it until Nov. 24, after the money had been paid out to Bryan. The Petitioners then called upon Bryan to pay their judgment or to consent to vacate the proceedings for the surplus, which he declined to do. Bryan at the time of instituting the proceedings for the surplus, knew of the existence of the petitioners judgment, but was informed that it was collaterally secured by other obligations. The petitioners now apply to vacate the proceedings in relation to the surplus, and for an order that Bryan restore the money withdrawn by him to the Court. F. M. Haight, for petitioners. In Chancery..--Burchard v. Phillips et al. E. Griffin, for defendant Bryan. The VICE-CHANCELLOR.-These petitioners having a lien upon the mortgaged premises by a judgment subsequent to the mortgage foreclosed, and upon taking the decree in the cause, proof having been made of the filing the requisite notice in the County clerk's office, the petitioners must under the act of May 14, 1840, be deemed to be foreclosed, although they were not made parties to the suit. I apprehend also that the effect upon them is precisely the same as if the bill had been taken as confessed against them, after having been made parties, and served with process. The 10th section of the act before referred to gives these petitioners the right to apply for surplus monies, and set aside the sale in the same manner as if they had been made parties. They did make their application for surplus monies, but it was not made until after it had been paid out of court upon a previous application by another claimant. Mr. Bryan one of the defendants filed his claim, procured a reference to a Master, produced to the Master the certificate of the clerk that only one defendant had appeared, and that no other claim had been filed; the Master summoned the defendant, who had appeared, no one appeared before him except Mr. Bryan, and the amount of his claims was ascertained and reported, and upon the filing of his report, an order was made for the payment of the money to him, and it was paid to him. The order was made for the payment of the money immediately, without waiting for the eight days nisi for confirmation, because no one appeared before the Master, and therefore no one had a right to except. The whole proceedings were in strict conformity with the 136th rule, and with the course indicated by the Chancellor in Hurlburt v. Mc. Kay, (8 Paige, 651.) Indeed, this application is not made on the ground of any irregularity. The petitioners counsel does however insist that it was the duty of the Master under the 136th rule to require certificates as to liens from the proper clerk's offices to be produced, and not confine himself to summoning the parties who had appeared, and the persons who had filed claims. But I do not so understand the rule. Before the law of 1840, every person who would have had any claim upon the fund must, to have been foreclosed as against the land, have been made parties, and served with process. They would have thus had notice. By the law of 1840, and the filing of the notice in the county clerk's office according to its provisions, judgment creditors receive what is by law deemed to be actual notice. If, therefore, a judgment creditor, after thus having legal notice of the proceedings, neglects to file his claim, it may be fairly presumed that his claim is paid, or that he does not think it worth pursuing. If the Master had procured the certificate of the clerk of the Supreme Court, showing the existence of this judgment and no one had appeared to claim anything by virtue of it, he would not have been justified in withholding a report in favor of Mr. Bryan. He could have taken no notice of any such judgment when the party in whose favor it was did not appear to found any claim upon it. The course prescribed by the 136th rule seems to have been strictly pursued, and all that it requires to be done seems to have been done. If the petitioners had presented their claim before the Master, it would appear independent of equities arising out of extrinsic circumstances, that it was a lien upon the fund, subsequent to the decree held by Bryan, but prior to the mortgage held by him. It was subsequent to the decree, because the decree was upon a mortgage, which, though younger than the petitioner's judgment, was given for the purchase money. It was prior to Bryan's mortgage, because it was older in point of time. The surplus, however, was sufficient to pay Bryan's first claim, and the judgment of the petitioners. But Bryan has by his diligence and speed, obtained the whole surplus, and obtained it by proceedings regularly instituted and prosecuted, and the question now is, whether the petitioners can obtain any relief. The circumstances under which this application is presented, and the facts upon which it is founded, would be sufficient to open any order or default, and let in the petitioners to be heard on equitable terms. If the matter was still pending before the Master, the petitioners though they had filed no claim, would be permitted to go before the Master and prove it, and even after the Master's report had come Court of Common Pleas.-Jenkins v. t phens. in, and at any time while the money was under the control of the court, I think these petitioners would be permitted to have their claim examined. It would clearly be within the power of the court to do what was equitable as long as the fund was within its control. But in this case the fund has been paid out, and Mr. Bryan has regularly obtained possession of it. The order has been executed, and I question whether it is competent for the court now to set aside, or rather, whether it is competent for the court to order Bryan to restore the money. Courts of law have power over their own process, and of the money raised by it, while it is in the Sheriff's hands, but can they direct its repayment after it has come to the hands of the party? So courts of equity in mortgage cases, can set aside orders, defaults, and even the enrolment of decrees, and sales under them, when the party to the suit was the purchaser, and the property was still in his possession, but have they any control over the money which has been raised by sale, and paid over to a party? How is the order to repay the money into court to be enforced by execution or attachment? In bills for the administration of assets, it appears to be the general rule that the court has control over the fund as long as it or any part of it remains in court, but it is to be inferred that it can exercise no control over that which has been paid out under a regular order of the court. (Wilder v. Keeler, 3 Paige, 164; Brooks v. Gibbons, 4 Paige, 377; 2 Smith's Ch. Practice, 267.) The present case appears to be very similar in principle, and I must confess that in my view of this case, the court has lost all control of the money. It is suggested that Bryan was guilty of a fraudulent concealment of fact when he obtained this money. It is clear that at such time he knew of the existence of the petitioners judgment but he was also given to understand that it was collaterally secured. And he might have supposed that such was the reason why it was not claimed, neither do I suppose that a mere knowledge of the existence of the judgment is sufficient to infect his lawful and regular acts in obtaining the money with the stamp or taint of fraud, and if so I cannot perceive any clear mode of relief by this application. If the peti tioners have sustained a loss in this matter, it has arisen out of the provisions of the law of 1840, by which notice filed in the county clerk's office, is substituted for the notices formerly served upon the parties. If the legislature in their desire to diminish costs have adopted rules, which endanger the rights, and prejudice the interests of parties, it is an evil for that power to correct, and not this court. The only duty of judicial tribunals is to administer the law as they find it. There may be cases supposed when the lien of even vigilant judgment, creditors will be cut off under this law, as in the case of judgment, creditors absent from the country when the bill is filed. But with the policy of the law this court has nothing to do. The prayer of the petition is denied, with ten dollars costs. COURT OF COMMON PLEAS. Before the Hon. M. ULSHOEFFER, and JENKINS V. STEPHENS. RER TO SEVERAL PLEAS. To a declaration in an action on a Bond containing two counts, the first on a money bond without setting forth the condition and the second setting forth the condition, the defendant pleaded nil debet to both counts. Held, as to the first count that the plea was bad, that it should have been non est fartum ; but as to the second count, that as the bond was not the foundation of the action but only the inducement to the action, and matter of fact the foundation, nil debet was a good plea On a general demurrer to several pleas, if either plea is good, the defendant is entitled to judg ment. DEMURRER TO PLEA.-The action was on a Bond. The declaration contained two counts, the first on a money bond under seal, which stated no condition, the second count on a bond of indemnity stating the condition. The defendant pleaded nil debet to both counts. Geo. White in support of the demurrer. The first count is on a money bond under seal, without condition. The second count is on a bond to indemnify with oyer, nil debet is pleaded to both counts, it is not good as to either, non est factum is the proper plea.-(1 Chitty Pl. 477, 478, 479; English Cases.-Davies v. Jenkins. 2 Saund. 187; 5 Esp. R. 38; 1 Cow. per Woodworth, J., 676; 8 John R. 82; 11 idem. 474-6.) J. S. Mitchell, contra. The plea of nil debet is good because, 1. The indemnity on which this suit is brought is a covenant to save plaintiff harmless, &c.—(2 R. S. chap. 6, § 20, 355.) 2. It is only inducement to the action, the foundation being a matter of fact, viz., whether there was a legal recovery against the plaintiff on account of such levy within the meaning of the indemnity.-(Gra. Prac 196, op. Court. Sept. term.) PER CURIAM.-This is a demurrer to a plea in an action of debt. The narr. contains two counts, 1. on a money bond stating no condition. 2. On a bond of indemnity stating the condition. plea is nil debt to both counts. The As to the first count, the plea of nil debet is not good. The bond, or specialty, being the foundation of the action, the plea ought to have been non est factum. (1 Chit. 478-9.) As to the second count, the bond is not the only foundation of the action. The bond is only inducement to the action, and matter of fact the foundation, and nil debet may be pleaded-(11 John, 476.) The The various matters of fact upon which this count is founded, are stated in the second count. It is true that where the bond is the foundation of the action, although extrinsic facts are mixed with it, nil debet is not a good plea-but bonds of indemnity against escapes and such like indemnities have always been held not to be the foundation. The escape being matter of fact is the foundation. In the case before us, the plaintiff being sued for the levy against which he was indemnified, and judgment being recovered against him for such levy, are the matters of fact upon which this suit is founded, and the bond of indemnity is only inducement. If so, nil debet is a good plea. The defendant mistakes in supposing that the Art. 2 R. S. 355, 1st edit. § 20, authorizes this plea. This is not an action of covenant but debt. The words “ or with the plea of nil debet to an action of debt or judgment," do not meet this case, and the 10 only applies to the plea of nil debet in cases where such plea might, before the statute, have been put in according to the settled rules of pleading (20 Wend. 2). The question then is, whether according to the rules of pleading nil debet is a good plea to the second count? (Vide 1 Saund. 39, note 3; 2 Saund. 187, and note: 2 Gr. Prac. 2nd edit. 232-3.) It rather occurs to us that the foregoing conclusion is correct, viz., that the plea might be sustained as to the second count. On a general demurrer to several pleas, if either plea is good, the defendant is entitled to judgment. (12 Wend. 165.) If this plea, however, is bad as to the first count, it must be held bad for the whole. (1 Saund. 28, note 2.) If several pleas had been put in, the result would have been different. The plaintiff is therefore entitled to judgment, with liberty to the defendant, on payment of costs to withdraw or amend his pleas. In the Exchequer of Pleas, Before the Right Hon. Lord ABINGER, Ch. B., and Barons PARKE, ALDERSON, GURNEY, and RoLFE. DAVIES V. JENKINS-Trinity Term, 1843. ATTORNEY-NEGLIGENCE. An action on the case will not lie against an attorney, who, by mistake and without malice, brings an action, or sues out an execution against the wrong party. CASE. The declaration stated that the defendant, being an attorney, had been retained as such by one David Jones, to commence and prosecute an action against one David Davies, at the suit of the said David Jones, for the recovery of a sum of money alleged to be due and owing from David Davies to David Jones; that he thereupon sued out a writ of summons in debt, at the suit of David Jones, directed to David Davies, and caused such proceedings to be had, that afterwards, to wit, on the 17th of November, 1842, David Jones recovered in the said action against the defendant therein the sum of 5s. 4d. debt, and 77. 14s. 6d. damages and costs; that defendant afterwards sued out and prosecuted a writ of fieri facias to the Sheriff of Carmarthenshire, directing him to levy on the goods of David Davies, the sum of 5s. 4d., and 77. 14s. 6d. and inte English Cases.-Davies Jenkins. rest, with costs of execution, and caused the said fieri facias to be delivered to the sheriff, and caused and procured a mandate to be issued by the sheriff, to the bailiff of Kidwelly, in the said county, for levying in the said liberty, the said several sums, &c., and caused the said mandate to be delivered to the bailiff of the liberty, who delivered it to his bailiffs to be executed. That at the respective times of the committing of the grievances in this count mentioned, the plaintiff was not indebted to the said David Jones, in any sum or sums of money whatever, nor had the said David Jones any claim or demand whatsoever against him the plaintiff, nor had the said David Jones then, or at any other time, retained, or employed, or authorized the defendant as attorney as aforesaid, or otherwise howsoever, to commence or prosecute against the plaintiff any such action as aforesaid, or any action whatsoever, at the suit of the said David Jones, yet the said defendant, to wit, on the 1st September, 1842, by himself and his assistants and servants, and the bailiff, carelessly, negligently, and improperly for want of due and proper care and attention on his and their part, commenced and prosecuted the said action, and sued out the said writ of summons, and caused other proceedings thereupon had in the said court as aforesaid, to be taken, and the said writ of fi. fa. and mandate to be issued agains the plaintiff, instead of the person against whom the defendant was retained and employed to commence and prosecute the said action as aforesaid. And the plaintiff further says, that the defendant by himself and his agents and servants in that behalf, to wit, on the said 17th November, 1842, so carelesssly, negligently and improperly conducted himself in the prosecution and management of the said action, and the proceedings therein, that by and through the mere negligence, carelessness, and improper conduct of the defendant, and his agents and servants in that behalf, and for want of due and proper care and attention on their part as to the service of the said writ of summons, and of a notice of declaration in the said action, neither a copy of the said writ, nor any such notice was ever served on the plaintiff, or on any one on his behalf; and the said plaintiff did not, till after the said warrant was delivered to the said bailiffs for execution as aforesaid, know of the same proceedings or any of them, and for want of such knowledge, he, the plaintiff, did not, nor could, by application to the said court or otherwise, prevent the same judgment from being obtained or enforced against him the plaintiff. And the plaintiff further says that the defendant by himself, and his agents and servants, so behaved himself in the premises that by and through the mere carelessnes, negligence, and improper conduct of the defendant, and his agents and servants in that behalf, and for want of due and proper care and attention on his and their part in ascertaining who was the person against whom the said David Jones had retained and employed the said defendant to commence and prosecute an action at the suit of the said David Jones as aforesaid, the said writ of fi. fa., and the said mandate and warrant were to wit, &c., within the said liberty put in force and executed against the goods and chattels of plaintiff by the said bailiffs, who, as such, entered into the dwelling house, building, and close of the plaintiff, and seized and took in execution certain actual goods and chattels of the plaintiff then being in the said dwelling house, of the value of 50l. and remained in possession of the said chattels for a long space of time, to wit, for the space of five days, by means of which said several premises, &c. Special demurrer. E. V. Williams, in support of the demurrer. It is clearly settled that no action will lie in a case like the present, unless the conduct of the defendant is alleged and shown to have been malicious. Here the declaration does not even allege that the defendant had acted wilfully. Scheibel v. Fairburn, 1 B. and P. 388; Lewis v. Morris, 2 C. and M. 712, 4 Tyr. 907; Saxton v. Castle, 6 Adol. and Ell. 652, 1 N. and Per. 661; Porter v. Weston, 5 Bing. N. C. 717. Henderson, contra.-No allegation of malice is necessary, if it can be shown that by a negligent and careless use of the process of the court substantial mischief has been done to the plaintiff. The general principle of law is that every man must exercise his own rights and discharge his duties with such a degree of caution as not to occasion injury to others. If danger ensues from neglect in this respect, it is no |