tor to the execution creditors according to priority of lien. If there were no further proceedings upon the record, it would be our duty to dismiss the exceptions and to confirm the distribution as made by the auditor. But we find that on December 18, 1899, the trustee for the estate of the bankrupt filed his petition, to which was attached a certificate of the adjudication in bankruptcy, praying for an order directing that the balance of the fund remaining in court after the payment of the preferred claims, as per agreement already referred to, be paid to the trustee. This petition at the time was marked "refused," bcause we believed that the question could be settled on the argument of the exceptions to the auditor's report. It was refused without prejudice to the claim of the trustee. We now formally recall the refusal and allow the petition to stand, as we did in effect at the time the exceptions were argued. Therefore the only question to be decided now is the right of the trustee to the balance of the fund. We are clearly of the opinion that he is entitled to the money. To the extent of its jurisdiction a state court is bound to carry into effect the provisions of the bankruptcy act. It is our duty to further the purposes of the act rather than to obstruct and thereby may be to defeat them. In the present case the defendant was unquestionably insolvent. His estate is within the grasp of the federal law. The balance of the fund must go into the United States Court, there to be disributed to the parties who can show the best claim to it. In accordance with this opinion, the report of the auditor is confirmed, excepting the distribution to Phalen & Burns, Lackawanna Lumber Company and Crawford & Keller, the sum awarded to these three creditors being in the aggregate $434.09. The distribution of this sum by the auditor to the creditors mentioned is not sustained. We also direct that the said sum of $434.09, less prothonotary's costs, being the balance of said fund now in court, be paid by the prothonotary to R. A. Zimmerman, esq., trustee in bankruptcy of the estate of L. W. Hoffecker. Gordon vs. Norton. C. P. No. 1, Philadelphla County, June Term, 1892, No. 151, M. L. D. Mechanic's Lien-Sub-Contractor's Claim-Bond to Insurer of Mortgagee, given by plaintiff and owner, defendant, will not prevent judgment-Failure to serve terre-tenant-Effect of judgment undetermined— Act of May 16, 1895, In a suit on a sci. fa sur. mechanic's lien, by a sub-contractor against the owner and contractor, the defendants may not set up as a defence a bond executed jointly by plaintiffs and defendants to an insurer of a mortgagee against mechanics' liens. The fact that the writ of scire facias was not issued in compliance with the Act of May 16, 1895, P. L. 84, in that the terre-tenants were not served, will not prevent judgment against the defendants. The effect of the judgment and how far the plaintiffs may go in executing it not decided. Case stated. E. COOPER SHAPLEY, for plaintiff. ROBERT H. HINKLEY, for defendants. BEITLER, J., Dec. 19, 1899.-On Feb. 10, 1891, James Food, Albert E. Norton, Henry Gordon and others gave a bond to The Commonwealth Title Insurance and Trust Company as follows: "Know all men by these presents, That we, James Hood, Albert E. Norton, .. Henry Gordon & Sons, . . . are held and firmly bound unto The Commonwealth Title Insurance and Trust Company in the sum of $30,000, lawful money of the United States of America, to be paid to the said company, its certain attorneys, successors or assigns, to which payment, well and truly to be made, we bind and oblige ourselves, and each of us, our heirs, executors and administrators and every of them, jointly and severally, firmly by these presents. And we do authorize and empower any attorney of any court of record to appear for us, our heirs, executors and administrators, and confess judgment in favor of said company, its successors or assigns, against us and each of us, our heirs, executors and administrators, in the sum of $30,000, besides cost of suit, with release of errors and waiver of all laws for stay of execution and exemption. Witness our hands and selas, Feb. 10, 1891. "Whereas, the said The Commonwealth Title Insurance and Trust Company has agreed to insure the title of The GermanAmerican Title and Trust Company, mortgagee, its successors and assigns, to the premises situated in the twenty-fourth ward of the city of Philadelphia. Being all that lot of ground. . . . against loss by reason of liens for the payment of debts contracted for work and labor done and materials furnished in or about the erection of the building or buildings on the lot of ground above described, and also against unfiled municipal claims, and shall also erect and fully complete, within twelve months from the date hereof, sixty-five buildings, in accordance with the plans and specifications approved by The GermanAmerican Title and Trust Company. "Now, the condition of the above obligation is such that if the above bounden obligors, their heirs, executors, administrators, or any of them, shall and do at all times hereafter, well and sufficiently save, defend and keep harmless and indemnify the said The Commonwealth Title Insurance and Trust Company, its successors and assigns, and the said premises and every part thereof, of and from all loss, damage, costs, charges, liability or expense on account of any claims or liens for work and labor done or materials furnished, or to be done or furnished, for and about the construction and erection of said building or buildings, or on account of any municipal claims that have been or may be entered or filed of record against the above-described premises or any part thereof, with the appurtenances, or in the event of any such liens or claims being made or entered as aforesaid, shall and will forthwith pay off and discharge the same and have the same satisfied of record, without any fraud or further delay, and shall also erect and fully complete, within twelve months from the date hereof, sixty-five buildings, in accordance with the plans and specifications approved by The German-American Title and Trust Company, then the above obligation to be void, or else to be and remain in full force and virtue." The lien under consideration is filed by H. Gordon & Sons against Albert E. Norton, owner, and James Hood, contractor. The bond is signed by the plaintiffs and both defendants. The obligee is the trust company. We fail to see on what principle the bond prevents the plaintiffs from filing a lien. The bond was not to the owner or contractor, though in fact it is signed by them. It was given to a company which insured the mortgagee. It may be that under certain circumstances the parties signing such a bond and then filing liens might have to meet the requirements of the bond at the suit of the company to which it is given. But here the bond is interposed by a stranger. The principle running through the line of cases, of which Benedict vs. Hood, 134 Pa. 289, and Rynd vs. The Pittsburgh Natatorium, 173 Pa. 237, are prominent examples, would prevent the filing of the liens by the plaintiffs if they had given the bond to the owner or contractor, defendants herein. Besides, as a practical question, the defendants' contention has nothing in it, for by the case stated the court is to enter judgment if the decision is in plaintiff's favor, "subject to the lien of the mortgages to The German-American Title and Trust Company recorded Feb. 19, 1891.” The lien covers, inter alia, nine houses in Fairmount avenue. After its filing, eight of these houses were sold by the defendant Norton. The deeds run in date from Feb. 11, 1892, to October 12, 1894, and were all promptly recorded. The writs of scire facias on the lien as to these were issued June 16, 1897, without naming the terre-tenants, and were neither served on the terre-tenants nor indexed in the name of the terre-tenants on any lien or judgment docket. In these respects the plaintiffs have failed to comply with the Act of May 16, 1895, P. L. 84. What is to be the penalty, however? The Act says if its provisions are not complied with, the writ shall not have the effect of continuing the lien of such mechanics' lien for a longer period than five years from the date of its filing as against any purchaser, mortgagee or other en creditor, nor as against a terre-tenant, unless he be named in the scire facias or agrees in writing. We see nothing in this Act to prevent judgment being entered. The effect of that judgment, and how far the plaintiff's may go in executing it, is a matter for future consideration. Suppose, after these liens were filed, there had been a small mortgage recorded. That would surely not prevent the lien plaintiffs, failing to comply with the Act, from having judgment in rem. on their scire facias. As against the mortgagee, the lien of the lien would be gone, but if the property was sold. surely the owner ought not to have anything until both the mortgage and the lien was paid. As to the terre-tenants not named, the plaintiffs ought to have a chance to contest their title, if it be possible. On the case stated, therefore, we enter judgment for the plaintiffs, &c. -District Reports. INDEX. ACCOUNTING See Decedents Estates, 4; Partition 1; Trusts, I. ACCUMULATIONS OF ICE AND SNOW-See Negligence, 3. ACTS OF ASSEMBLY-Cited and construed. 1715, Act of May 28. sec, 9 and 10, (1 Sm. L. 94; P, and L. Dig. 1589). 1806, Act of March 21, sec. 13, (Sm. L. 326; P. and L. Dig. 107). Acts strict- 1810, Act of March 20, sec. 11,(5 Sm. L. 167; P. and L. Dig. 872). Posting 1823, Act of March 31, (3 Sm. L. 131; P. and L. Dig. 1590). Satisfaction 1834, Act of Feby 24, (P. L. 77; P. and L. Dig. 1437) not amended by Act of 1834, Act of April 1, sec. 2 (P. L. 163; P. and L. Dig. 364). Majority of 1834, Act of April 15, sec 13, (P. L. 539. P. and L. Dig. 1014) Erection of 1836, Act of June 13, sec. 4 (P. L. 589; P. and L. Dig. 2813) who may make 1836, Act of June 13, sec. 67, (P. L 589; P. and L. Dig. 2816) Lunatics Defined. 1836, Act of June 16, (P. L. 755; P. and L. Dig. 1958) Inquisition.-Beyond 1840, Act of June 13, (P. L. 666; P. and L. Dig. 712) Jurisdiction of Court of 1845, Act of April 16, (P. L. 542; P. and L. Dig. 713) Jurisdiction of Court of |