to prove that it was so intended. The writing itself shows no such thing, and in cases where a chose in action is assigned by the debtor to the creditor, I think the presumption is, that it was not intended as an absolute payment,, unless it is so expressed. The reason of this presumption is, that such assignment is not in its nature a payment. It puts no money in the hands of the creditor, but only gives him the means of collecting money from another." In Peritt v. Pittfield, 5 Rawle 166, it is said, "The general principle is, that property placed by the debtor in the hands of the creditor is not to be construed as received in full discharge of the debt, unless that plainly appears to have been the intention of the parties.'

No presumption arises here from testimony on the part of the plaintiff, because it did not appear in it that Anderson was indebted to Fowkes when the assignment was made. No presumption can arise from the proofs on the part of the defendant that such relation did exist at the time, for the reason that he proved the whole transaction or contract involved in the assignment of the mortgage, what the agreement was, and what was the intention of the parties to it. He did this by the testimony of Fowkes, who testified that it was assigned as collateral security for the payment of $3,000, and that it was agreed and so expressed that at a certain time, it was to be taken in payment of the whole sum, if it was not then paid. The mortgage put no money into the hand of the creditor, but if he agreed to accept it in payment he is bound by that agreement, and if it was not worth the full amount of his claim, and he could not realize that much on it, it would bar him from further recovery. On the other hand if from it he realized more than his claim, it was to his advantage. He took this chance in accepting it in payment of his claim. This was the plain intent of the parties and so proved by the defendant. It prevented any presumption as to why it was assigned arising. If the plaintiff had proven this and depended on it to recover, we would have had to submit it to the jury, but it having been proven by the defendant and not being sufficient to prevent plaintiff's recovery, it was not necessary to submit it to the jury for the reason that their belief of it or refusal to believe

it, was immaterial. If they believed it, the plaintiff was entitled to a verdict and the same result would follow if they did not believe it.

Some testimony was offered of what Anderson did and said after he assigned the mortgage to Fowkes. This cannot be considered, as it was shown that Anderson had no interest in the mortgage at the times these things occurred, and they were not therefore admissions against his interest. The assignment of the trustee in bankruptcy of Fowkes to the plaintiff is, in our opinion, sufficient to vest title in him of all the interest of said Fowkes in the mortgage.

It is also contended that the plaintiff is not entitled to recover because the bond was not produced at the trial.

While the rule in some states requires the production of the bond before a mortgage can be admitted in evidence, and Judge Mayer, in Tyson v. Seitz, 15 D. R. 702, (1906) followed this rule, we find that the Supreme Court of this State about the time of Judge Mayer's decision decided that the production of the bond is not necessary; Brownell v. Oviatt, 215 Pa. 514. In that case it is said, "One of the errors assigned is that the mortgage was admitted in evidence without the accompanying bond. If the bond had been paid, its payment would have been a complete defense to the suit on the mortgage, but the burden was upon the appellant to show that it had been paid. The appellee's suit was on the mortgage -a cause of action separate and distinct from that on the bond-though both were for the same debt. In proceeding on either it is not incumbent on a plaintiff to show that the other has not been paid. In an action on the bond, when the holder produce it, there is a presumption that the mortgage has not been satisfied, and so in a proceeding on the mortgage against the land, there is a like presumption that the bond has not been discharged. The objection to the offer of the mortgage without the bond was properly overruled." From this it is clear that the plaintiff was entitled to recover even though the bond was not produced at the trial. There is no merit in the contention of the defendant that the decision does not apply in a case where the terre tenant is defending. There seems to be a stronger reason for its application

in such a case than where the mortgagor is doing so, as the terre tenant is not personally liable on the bond, and he bought the land knowing that the mortgage was a lien on it. So long as the mortgage is not satisfied the presumption exists, that the bond has not been paid.

The other questions raised in the reasons for a new trial are not material, if we were right in giving binding instructions to the jury to find a verdict for the plaintiff, and as we think we were right in doing so it is unnecessary to discuss them. We are satisfied that our action in giving binding instructions was correct, and, therefore, discharge the rule for a new trial.

VOLMER v. GRIM ET AL.

Landlord and Tenant-Excessive Distress-Action jor Damages-Statute of Marlbridge.

Where the testimony shows that a landlord, through his bailiff, levied on his tenant's goods to collect rent admittedly due, and the averment in the pleadings is that the landlord levied on more goods than were necessary to pay the rent, and that this caused a creditor of the tenant to issue an execution for a debt, which was admittedly due, by the tenant to his creditor, the landlord cannot be held liable to pay damages, especially when the tenant voluntarily confessed judgment for the sum for which execution was issued, and where there is nothing in the pleadings to show that the tenant has any other cause of complaint, and nothing in the evidence to establish any damages, the tenant cannot recover even nominal damages.

Fred Vollmer v. Jacob L. Grim and Henry Dresher. Trespass. In the Court of Common Pleas of Northampton County, No. 10 September Term, 1915. Judgment for defendants by direction of the Court. Rule to show cause why a new trial should not be granted. Rule discharged.

H. C. Cope, for Plaintiff.

John D. Hoffman, for the Defendants.

The opinion of the court was delivered Nov. 6, 1916 by

Stewart, P. J. This is a rule for a new trial. Upon the trial the jury, by direction of the court, returned a verdict for defendants. The reasons now assigned for a new trial, are the formal direction of the court, as above

stated, and specifically as follows: "6. The court erred in not submitting to the jury the question as to whether or not under the circumstances of the case, the levy under Grim's distress warrant and failure to appraise the goods levied on and make sale was the immediate cause of the issuing of the execution on the judgment confessed to S. E. Miller whereby the same goods bound by said distress warrant were sold, as bearing on the question whether or not the goods distrained were followed by an appraisement and sale. 7. The court erred in erred in not submitting to the jury the question as to whether or not the levy under the distress warrant was excessive." When When we turn to the plaintiff's statement we find that he declared that he was a tenant of the defendant Grim; that on the 12th of January, 1915, he owed Grim $120.00, that Grim wrongfully, unlawfully and unjustly seized, took and distrained an unreasonable and very great distress. Then followed a number of articles. The second paragraph alleged that Grim was required by law, to appraise these articles and that he refused and neglected to appraise them; that on January 19, 1915, they attempted to adjust their differences, and on January 21, 1915, plaintiff's attorney notified defendants' attorney to proceed to appraise the goods: and he alleges that defendants' attorney instructed the constable to make no appraisement. His averment then is as follows: "Wherefore, by reason of said proceedings in distraint and the refusal to release said goods and chattels from said distraint, an execution was issued from the Court of Common Pleas of Northampton County against said plaintiff in the sum of $641.69 at the suit of one S. E. Miller on January 25, 1915, and on the same day the said goods and chattels were duly levied on and seized by the Sheriff of Northampton County, advertised for sale and on February 2, 1915, sold at Sheriff's sale for the sum of $641.15. Subsequently, said J. L. Grim served upon the said Sheriff a notice in writing claiming out of the proceeds of said sale the said sum of $120, the amount for which he had issued his warrant of distress." In the subsequent paragraphs there is a repetition of the same allegations. It will be noticed that the plaintiff nowhere alleges that he was put to any inconvenience in his busi

ness, or in his household affairs, or that he was unable to give bond in replevin. His sole allegation which would give him a right to damages, is that a sheriff's sale resulted from the unreasonable distress. In fact he could not have stated more for the undisputed testimony was that the restaurant had been closed for two days before the distress, and there was not the slightest interference at any time with the plaintiff's property by either of defendants, nor did they refuse to release the goods upon demand of the plaintiffs nor did they cause this sheriff's sale. The only thing that they did, taking the plantiff's case at its strongest, was to take a paper levy on too large an amount of plaintiff's goods. It appeared in evidence that the plaintiff and his wife, on January 18th, gave a note payable one day after date, to S. E. Miller, for $640.00, which was entered in court on January 25th, and execution issued upon the property. How can this plaintiff, in view of the fact that he confessed a judgment for $640.00, due and payable in one day after date, say that he was injured because he did not pay that note and execution was issued on it? To merely state the proposition is to answer it. There is nothing in the sixth reason. This brings us to the difficulty which confronted us at the time of the trial, which was whether we should submit the case to the jury, and tell them that plaintiff could only recover nominal damages, or take the case entirely from the jury. It plainly appears from what was held in McKinney v. Reader, 6 Watts, 34, that plaintiff's action is an action on the case founded on the statute of Marlbridge. In that case the supreme court said on page 40: The court below say, in their charge to the jury, 'In this case there is no evidence of any notice of the distress taken, with the cause of such taking, having been given to the tenant or left on the premises. This omission is fatal to the proceedings of the defendants. It renders their whole proceedings under the right of distress illegal, and takes from them that ground of justification.' In this we think the court erred; for, at common law, such notice was not required; and would seem to be necessary, under the act of assembly only, in order to warrant a sale of the distress agreeably to the directions thereof. But as no sale was made of the distress in this case, the mere omission to give the

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