15 Abb. Pr. 189; Bowen v. Bank, 34 How. Pr. 408; Kneel. Attachm. 524; Fr. ter v. Sweeny, 14 Serg. & R. 386; Holman v. Fisher, 49 Miss. 478, 479; E1"win v. Heath, 50 Miss. 795, 801.

F. C. Sturges and George K. Powell, for defendants in error.

The dissolution of the attachment does not abate the suit. Sharpless v. Ziegler, 92 Pa. St. 470. The giving of the bond dissolves the attachment. Brenner v. Mayer, 98 Pa. St. 278; Dallett v. Feltus, 7 Phila. 627; Hildeburn v. Watch 00., Id. 450; Conway v. Butcher, 8 Phila. 272. The right to move to dissolve was waived. Poor v. Colb'arn, 57 Pa. St. 415; Railroad Co. v. Wilcox, 48 Pa. St. 161; Loewenstein v. Sheetz, 7 Phila. 361.

MERCUR, C. J. This suit was against the principals and sureties in a bond given under the act of seventeenth March, 1869, which provides for the commencement of actions by attachment. On the first of March, 1881, the defendants in error made and filed an affidavit under that act, setting forth that Fernau & Thomas, two of the plaintiffs in error, were indebted to them in the sum of $506.74, and that a portion thereof, towit, $279.73, had been fraudulently contracted. They gave bond, and caused an attachment to be issued for the whole sum against Fernau & Thomas. By virtue thereof the sheriff attached certain goods which had already been levied on by former executions, and also attached some book-accounts and other claims. On the tenth of March the defendants in the attachment filed their afiidavit denying that they had fraudulently contracted any part of said debt, and obtained a rule to show cause why the attachment should not be dissolved. On the hearing thereof the court thought the fraud averred was not sufficiently proved, and made the rule absolute on the twenty-fifth April. This action of the court has never been reversed. It stands as a conclusive judgment that the attachment was improperly issued. On the aforesaid tenth of March the bond in suit was executed by the defendants in the attachment as principals, and by the other plaintiffs in error as sureties. It recites the attachment suit instituted, and the action of the sheriff on the writ. It then proceeds to declare: '

“Now, the condition of this obligation is such that it the plaintiffs in said attachment recover judgment in the same, and if the said Fernau St Thomas, defendants in said attachment, will pay the debt and costs at the expiration of the stay of executions on sums of like amount given to freeholders, or surrender up the said property, in as good condition as when attached, to any officer having an execution against said party defendant on any judgment rendered in said attachment in favor of the said plaintiffs, then and in

such event the said obligation to be void, otherwise to be in full force and virtue.” .

The legal arbitrator by whom the present case was decided, found as a fact that the existence of this bond was not known to the court when it dissolved the attachment. _

A personal service of the writ having been made, the dissolving of the attachment did not operate as a discontinuance of the whole suit. Sharpless v. Ziegler, 92 Pa. St. 467; Biddle v. Black, 99 Pa. St. 380; White v. Thielens, 106 Pa. St. 173. Relieved from all the security acquired un

der and by virtue of the attachment, the suit, in the words of the statute, shall proceed “as in a case of summons for debt regularly issued and duly served.” The plaintiffs did proceed and obtain a judgment against the defendants for the whole amount of their claim. Failing to collect it, they brought suit on this bond. The contention now is whether the dissolution of the attachment destroyed the vitality of the bond? This leads us to consider the design of the act and the language of the bond.

1. The manifest purpose of the statute was not to supersede the usual forms of action for the recovery of debts. It provides a mode of proceeding only when the debtor has committed, or is about to commit, some fraudulent act. Then, and then only, does it give a creditor the right to forthwith seize the property of his debtor, and to hold the same as security for the payment of a judgment to be thereafter recovered. Without fraud of the debtor his property cannot be thus seized nor held for the security of the creditor. When seized under the allegation of fraud, its release may be procured either by dissolving the attachment, or by giving security conditioned for the payment of the judgment which may be recovered “in said attachment,” or for the return of the property attached. Under the view we take of this case, it is not necessary to decide now whether an attachment under this act will lie when the aflidavit charges fraud as applicable to only a part of the debt for a recovery of which the suit is brought. The writ goes out claiming the whole debt as an entirety. If it can be so used as to obtain possession of property to pay a debt concerning a large portion of which no fraud is alleged, the whole purpose and spirit of the statute will be perverted. The intent of the act is not to take from an unfortunate but honest debtor his property before judgment rendered against him. If the fraud averred is not sufficiently proved, the attachment falls. When it does fall the plaintiff loses all the security which he temporarily held thereunder. Whether that security existed by virtue of the writ of attachment alone, or by the superadded bond of the defendant and his sureties based thereon, a dissolution of the attachment strikes down the security. Without fraud of the defendants the plaintiffs were not entitled to demand either form of security. When the attaching power is stricken down, the bond of the defendants falls with it.

2. The language in the condition of the bond strengthens the conclusion at which we have arrived. It is to secure the payment of a judgment to be recovered “in said attachment.” It is based on the fact that property is held under the attachment, and assumes that it may legally be so held. It promises to surrender “the property attached” to an officer having an execution against said defendants on any judgment rendered “in said attachment” in favor of said plaintiffs. The judgment for the payment of which the obligors bound themselves was to be one that should be rendered in and by virtue of the attachment, and not one that might be obtained “as in the case of a summons for debt regularly issued and duly served.” That language does not indicate any enlarged right flowing from the issuing of an attachment, and the seizure of property thereun

der. On the contrary, it clearly imports a summons in the usual and ordinary form. When the attachment was dissolved, the suit was stripped of all the properties and incidents applicable to the attachment. We think the bond was not intended to cover, and does not cover, the case of a judgment recovered on an ordinary summons for debt. The learned judge therefore erred in confirming the report of the referee, and in entering judgment in favor of the plaintiffs below.

Judgment reversed, the report of the referee set aside, and judgment in favor of the plaintiffs in error.

1. HUSBAND AND WIFE—TORTs OF WIFE—COERCION—PRESUMPTION—PRESENCE. The responsibility of a husband for his wife’s torts exists only when committed by his coercion, and a presumption of coercion does not arise unless

it appear that he was present when the offense was committed.

2. SAME—TRUST MONEY—WRONGFULLY CONVERTED. So where a wife wrongfully converted trust money to her own use, in the absence of proof that it was done by compulsion of her husband, damages for the tort may be recovered from her estate.

Appeal from orphans’ court, Dauphin county.

Sur distribution of the estate of Anne E. Henderson, deceased. The facts are set forth in the opinion of the court.

H. M. North, W. H. Atlee, and Wm. M. Franklin, for appellant.

D. G. Eshleman, for appellee.

, TRUNKEY, J. The executors of the will of Anne Franklin, deceased, invested the trust money in United States treasury notes. These notes, on May 1, 1865, were delivered to Anne E. Henderson and Elizabeth E.

Franklin, who were entitled to the interest and income on the express terms that they should retain the interest, and that the survivor should return the notes to the executors as directed by the said will. Soon after, Miss Franklin died, and the notes passed into the hands of Mrs. Henderson. On the fifth of August, 1881, Mrs. Henderson and her husband, reciting the prior receipt, and that the investment had been changed, acknowledged that they held “three thousand dollars, the in— terest on which is to be retained by said Anne during her life, and the principal sum, upon her decease, is to be returned to the said executors, to be distributed according to the will of Anne Franklin, deceased.”

_ That Anne E. Henderson knew the notes were trust property under the said will is clear. It was her duty, as survivor, to return them to the executors, or hold them so they could be returned after her decease. Her acknowledgment, with her husband, that she had changed the investment, and held the money to be returned to the executors, put no new face on the transaction. It left her just as she stood immediately after the conversion of the notes. She had no right whatever to appro— priate the notes to her own use, or the money she received for them. Because of her coverture her contract to return the note was void; so was her promise to return the sum of $3,000 which she received for the notes; but the executors gave her no authority to dispose of the notes, or to use the proceeds. If she used the trust fund, or gave it away, or destroyed it, her act was a wrongful conversion.

There is nothing in the case showing that she committed the tort by coercion of her husband. The presumption of coercion does not arise unless it appear that he was present at the time of the offense committed. In the absence of evidence that he was present, there is no presumption.

Upon the facts found by the auditor, Anne E. Henderson, with full knowledge of the trust, received the trust fund, and so disposed of it that it is impossible to trace it. The fund for distribution is affirmatively shown to have been derived from another source. If, in her life-time, she was liable for damages for the conversion of the fund, her estate is liable. Her legatees may make the same defense which she could make if living, and no other.

Except where otherwise provided by statute, the husband is liable for the torts of the wife during coverture. If committed in his company and by his order, he alone is liable; if not, they are jointly liable, and the wife must be joined in the suit with her husband; and, when the remedy for the tort is only damages by suit, the husband is liable with his wife. 2 Kent, Comm. (12th Ed.) 149. Husband and wife may be jointly guilty of the tortious conversion of a chattel. At common law the wife is liable to an action for her torts, and, while living, her husband may be joined and will be liable with her for the damages recovered; but, if she dies, then his liability terminates; while if the husband dies, she may be sued alone, the same as if she had been feme sole when the tort was committed. Cord, Rights Marr. \Vom. §§ 1147—1149.

A declaration in trover against husband and wife, stating that the defendants converted the property to their own use, was held sufiicient; the objection having been made after verdict. Keyworth v. Hill, 3 Barn. & Ald. 685. Although the point decided in that case related only to the pleading, the declaration was held good, on the ground that the wife could be guilty of conversion by other means than the acquisition of prop— erty. It was not gainsaid that she was liable and responsible'in case she was guilty of the conversion. ,

When a tort is committed by the wife, she is personally liable, unles her husband was both personally present and directed the doing of it at the time. His presence furnishes evidence and raises the presumption of his direction; but it is not conclusive, and the truth may be established by competent evidence. Casein v. Delany, 38 N. Y. 178.

We are of opinion that the facts reveal a wrongful conversion of the trust fund by Mrs. Henderson, and that she was liable therefor in damages. Therefore the appellant is entitled to recover.

Decree reversed, and 'it is now considered and decreed that the report of distribution made by the auditor be and is confirmed, and the money be paid to the parties entitled, as shown by said report; appellee, Clara A. Franklin, to pay costs of appeal. Record remitted for enforcement of this decree.

NESLIE and Wife 12. SECOND & THIRD STs. PASSENGER RY. Co.1 . (Supreme Court of Pennsylvania. October 14, 1886.)

1. CARRIERs—OP PASSENGERS—STREET RAILWAY—DUTIEs—MEANs To GET ON AND OFF CAR.

It is the duty of a street railway company, as a carrier of passengers for hire, not only to transport passengers safely, but also to provide reasonably safe means for their getting on and off the car.

3. NEGLIGENCE—STREET RAILWAY—PAssENGERs—PLATronm—Icn ON—INJURY.

A., a passenger on a street railway car, was about to get off the car. There were passengers on the platform, although there was plenty Of room inside the car, and A. endeavored to catch hold of the dasher, but could not do so owing to the presence of the passengers on the platform. In alighting, her foot slipped on the ice formed on the step of the platform by a storm on the previous night. A. fell and was injured. The court entered a nonsuit. Held to be error, as-there was evidence of negligence on the part Of defendant sufficient to take the case to the jury.

Error to common pleas N0. 4, Philadelphia county.

Case by William Neslie and Margaret, his Wife, in right, etc., against the Second and Third Streets Passenger Railway Company, for damages caused by defendant’s negligence. The facts of the case are fully set forth in the opinion of the supreme court.

James P. Dolman and John Dolman, for plaintiffs in error.

Defendant was bound to transport safely. Railroad Co. v. Goodman, 62 Pa. St. 329; Meier v. Railroad 00., 64 Pa. St. 225; Laing v. Colder, 8 Pa. St. 482; Spear. St Red. Reg. § 280. There was sufficient evidence of negligence to send the case to the jury. Gillis v. Railroad Co., 59 Pa. St. 129; Railroad Co. v. Boyer, 97 Pa. St. 91; Railroad Co. v. White, 6 Wkly. Notes Gas. 516; Railroad Co. v. McElwee, 67 Pa. St. 311; McCullg v. Clarke, 40 Pa. St. 406; Railway Co. v. Henrice, 92 Pa. St. 431; Borough v. Waine, 16 Wkly. Notes Gas. 44; Schum v. Railroad 00., 16 Wkly. Notes Gas. 305.

Mr. Thorn, for defendant in error.

Defendant was not negligent. The accident occurred entirely through plaintiff’s negligence in failing to take hold of the handle on the dasher. Goshorn v. Smith, 92 Pa. St. 435; Philadelphia d: R. R. Co. v. Yerger, 73 Pa. St. 121; Baker v. Fehr, 97 Pa. St. 70; Philadelphia (f: R. R. Co. v. Schertle, Id. 450; Mauch Chunk v. Kline, 100 Pa. St. 119; Erie v. Magill, 101 Pa. St.-616; Denhart v. Philadelphia, 15 Wkly. Notes Gas. 214; Fleming v. Lock H a'oen, Id. 216.

MEROUR, C. J. This was an action on the case to recover damages for an injury to the person Of the plaintiff. When her evidence was closed, the learned judge ordered a nonsuit, which the court refused to take Off. The question, therefore, now is, should the case have been submitted to the jury? The plaintiff was a passenger in a car of the defendant. In alighting therefrom she fell and received an injury. Her complaint is

‘Edited by Henry R. Hatfield, Esq., of the Philadelphia bar.