The loan of $10,000 was then made by Berg & Co., upon White's executing his note at ninety days therefor. Subsequently another loan of $5000 was made upon substantially the same terms, Foster transferring 5000 barrels of oil. The oil was afterwards sold and White's $10,000 note paid out of the proceeds; and the residue paid over by Berg & Co. to White. Foster then brought suit to recover this residue with interest. The plaintiff submitted, inter alia, the following point: (4) The telegrams and letter in evidence Ishow that the oil was Foster's, and they are sufficient to, visit the defendants with that knowledge. Answer. We say that is a question for the jury, and not for the Court, and we have submitted it to the jury. Exception. Verdict and judgment for defendants. Whereupon the plaintiff took this writ, and assigned for error the answer of the Court to plaintiff's fourth point, as above specified. John M. Thompson (Chas. McCandless and O. D. Thompson with him), for plaintiff in error. T. C. Campbell (J. D. McJunkin with him), for defendants in error. November 12, 1883. THE COURT. The construction of a written instrument is exclusively for the Court; except when it cannot be understood without reference to facts not within the writing, and then the jury are to judge of the whole together. If there be a patent ambiguity in the terms of a written contract the Court must solve it; but if ambiguity arises from extrinsic evidence it must be solved by the jury. Not controverting these familiar rules, the defendants contend that under all the testimony the question whether they had notice of Foster's title to the oil at the time it was sold, was for the jury; and, also, that if the Court improperly submitted the construction of the writings to the jury the error was harmless, for the writings fail to give notice of Foster's title. As the cause was tried the question was submitted upon the writings alone. The plaintiff's fourth point was: "The telegrams and letters in evidence show that the oil was Foster's, and are sufficient to visit the defendants with that knowledge." And the Court answered: "We say that is a question for the jury and not for the Court, and we have submitted it to the jury." Upon this point, in the charge, the Court said: "If you are satisfied, under the evidence, that there was notice, that the telegrams and letters were notice, and brought the knowledge to Mr. Berg that the oil was still owned by Foster, and on payment of the notes would revert to him, your verdict should be for the balance or amount the oil sold for in excess of $10,000. On the other hand, if you think these were not noticedid not convey knowledge to Berg that Foster still retained the ownership of the oil, then your verdict should be for the defendants." Thus, the writings were submitted to the jury for construction, and the remaining inquiry is whether such submission injured the plaintiff. If they show that Foster retained ownership of the oil, subject to Berg & Co.'s right as collateral security for White's notes, then the Court should so have instructed the jury, and the plaintiff has cause for complaint. The telegrams and letter relating to the ten thousand barrels of oil, explicitly state that Foster had placed the oil to the credit of Berg & Co., as collateral for the payment of White's note for ten thousand dollars. They inquired by telegram, "Is oil placed to our credit by Foster ours as absolutely as if we had made purchase of the same ?" and received answer: "The oil placed to your credit by Foster is as absolutely subject to your order as if you had purchased it." It is plain that Berg & Co. took the oil as collateral security for the note, subject to their order as if they had purchased it; but upon payment of the note at maturity, the oil would belong to him who gave it as collateral, or upon default of payment and sale of the oil by the holder, the overplus, after satisfaction of the note belonged to the owner of the oil. Foster placed the oil and named the purpose; it had been stored in his own name, and he transferred it to name of Berg & Co.; the direct and natural inference is that it belonged to him. There is nothing to indicate that he sold or gave the oil to White. Had White been the owner, or had the Union Pipe Company held it in his name, Foster could not have transferred it to any body for any purpose. In absence of evidence to the contrary, the man who holds a chattel in his own name and pledges it, is presumed to be the owner, and the pledgee is taken to have knowledge that the pledgor is the owner. The writings respecting the second lot of oil are not so explicit; but it has not been contended that this lot was received on other terms than the first. We are of opinion that the plaintiff's fourth point ought to have been affirmed. Even if there were sufficient testimony, if believed, to alter or vary the written contract, the plaintiff would be entitled to affirmance of that proposition, though it should be the duty of the Court to instruct the | tered of record, and indexed against Newberry jury respecting the effect of such extrinsic testi- & Brother, and notice of this fact must be found mony. from the evidence to have been given to all the parties. Judgment reversed, and venire facias de novo awarded. Opinion by TRUNKEY, J. July, '82, 109. Hamilton's Appeal. J. M. S. If subsequent incumbrancers have actual notice of a judgment so defectively entered (i. e., without setting forth the Christian names of the partners) before their rights attach, it is equivalent to the constructive notice required to be given April 18, 1883. by the entry on the judgment docket. York Bank's Appeal, 12 Casey, 458. Judgment-Partnership-Practice-Index Notice-Guardian and ward. A judgment entered and indexed in the name of a firm, without any designation of the individuals composing the firm, will be postponed to the claim of a subsequent lien creditor, without notice, whose judgment is properly indexed. Such defective entry may be remedied as to subsequent lien creditors, by actual personal notice to them of the judgment. Where a partner gave a judgment note in the name of his firm for money borrowed by the firm, on which judg ment was entered and indexed in the firm name only, and subsequently he confessed judgment in the name of the firm to himself as guardian of several minors, the latter judgment being properly indexed: Held, that he, as guardian, had such actual notice of the first judgment as would remedy its defective entry, and entitle it to be paid in priority of the judgment confessed to him as guardian. The Newberrys were the agents of all the creditors, and through them notice of the Hamilton judgment was given to all. H. K. Weand (with him Geo. W. Rogers and . H. Larzelere), for appellees. ment was only indexed as against Newberry & Ridgway's Appeal, 3 Harris, 181. The money October 1, 1883. THE COURT. for distribution in this case is part of the fund arising from the sale on execution of the real estate of Henry E. and Israel D. Newberry, by the sheriff of Montgomery County. The defendAppeal of Elizabeth L. Hamilton from a de-ants in the execution were brothers, and had cree of the Common Pleas of Montgomery County, distributing the proceeds of a sheriff's sale of the real estate of Henry E. Newberry and Israel D. Newberry. The facts of the case, as they appeared before the Auditor, will be found in full in the opinion of the Supreme Court. The Auditor, John W. Bickel, Esq., filed his report postponing the Hamilton judgment to all the others. All the judgments, except the last two, having been paid, he made the following distribution : Balance of fund, less expenses of audit,. 64 Newberry Minors 255 10 459 15 been partners for many years in the flour and feed business in Bridgeport, under the firm name of Newberry & Bros. They held the land as tenants in common, having derived their title by inheritance from their deceased father and brother. The sum for distribution is $14,725. The first judgment appearing of record against the said defendants was that of Elizabeth L. Hamilton, the appellant, which was on the 29th of July, 1878, entered and indexed against "Newberry & Bros." This judgment was entered by the prothonotary upon an obligation. under seal, dated July 26, 1878, for $600, pay$714 25 able six months after date; the obligation contained a warrant of attorney to confess judgment $714 25 in the usual form, and had subscribed thereto the Exceptions were filed by Elizabeth L. Hamil- firm name of Newberry & Bros. in the proper ton on the ground that the Auditor had erred in handwriting of Henry E. Newberry, one of the not distributing the fund to her, and in distribut-partners. The obligation was given for money ing it to Clarissa Eve and the Newberry Minors. borrowed for the use of the firm; the co-partner, These exceptions were dismissed by the Court, and the Auditor's report confirmed. Elizabeth L. Hamilton thereupon took this appeal, assigning for error the dismissal of her exceptions, and the decree of the Court. George N. Corson, for appellant. Israel D. Newberry, was cognizant of the transaction, knew that the money had been received and used by the firm, but it does not clearly appear that he knew of the character of the obligation given as a security for it. The second lien was a mortgage, executed by The judgment was duly filed in the office, en- | Henry E. and Israel D. Newberry to Ann Jane Yewdall, conditioned for the payment of $9500, | sheriff has thus applied the money, and that after entered January 14, 1879. Judgments were afterwards entered as fol lows: 1. Maria Hagy v. Henry E. and Israel D. Newberry, trading as Newberry & Bro. Debt $3000, entered February 11, 1879. 2. Ross Broades v. Henry E. Newberry and Israel D. Newberry. Debt $300, entered May 20, 1879. 3. Henry E. Newberry, guardian of Charles E. Adams v. Henry E. and Israel D. Newberry. Debt $1388.17, entered May 11, 1880. 4. Clarissa Eve v. Henry E. Newberry and Israel D. Newberry. Debt $1100, entered January 27, 1881. 5. Henry E. Newberry, guardian for several minors, v. Henry E. Newberry and Israel D. Newberry. Debt $2400, entered January 27, 1881. Other judgments were entered against the defendants, and appear in the certified lists, but it is deemed unnecessary to state them, as the above are all that are involved in the questions raised in this distribution. Objection is made to the allowance of the Hamilton judgment; first, upon the ground that it is entered and indexed in the name of Newberry & Brothers, without naming or giving any sufficient designation of the persons constituting that firm, by the addition of the Christian names. This is undoubtedly a valid objection, when made by subsequent lien creditors without notice. (Ridgway, Budd & Co.'s Appeal, 3 Harris, 181; York Bank's Appeal, 12 Casey, 458; Smith's Appeal, 11 Wright, 128; Hutchinson's Appeal, 11 Norris, 186.) It is the duty of the plaintiff to see that his judgment is properly entered and indexed, so that it may give constructive notice to subsequent purchasers and lien creditors, and his recourse for an improper entry is against the prothonotary. Actual personal notice of the judgment to subsequent purchasers and lien creditors, before their rights attach, will supply such defective entry and index as to them. (Smith's Appeal, 11 Wright, supra). Was there, then, such actual personal notice to the subsequent lien creditors as will admit the Hamilton judgment to participate in this distribution? Setting apart as much of the money realized by the sheriff as is sufficient to pay the Hamilton judgment we may ascertain how far the remainder of the fund will reach, in the payment of the other liens, as they appear of record, and thus discover with whom Mrs. Hamilton has her controversy. We are not informed of the amount of the debt, interest, and costs of each of the several liens, but the Auditor reports that the paying off and discharging the Yewdall mortgage, and the judgment of Maria Hagy, Ross Broades, and Henry E. Newberry, guardian of Charles E. Adams, there remains $800, which the sheriff has paid into Court for distribution. There could, in the nature of the case, be no controversy between Elizabeth L. Hamilton and any one, or all of these creditors, thus reached in the distribution; they are entitled to their money, whether they had actual notice or not; even allowing the Hamilton judgment to share in the distribution, they are entitled to their claims. It is, therefore, immaterial and unnecessary to inquire whether there were any facts or circumstances which gave them, or any of them, notice of the Hamilton judgment; the fact of such notice to them might be admitted, and the distribution, as to them, would not be affected thereby. The controversy, therefore, necessarily arises between Elizabeth L. Hamilton, on the one part, and Clarissa Eve, and Henry E. Newberry, "guardian of several minors," whose judgments were entered on the same day, January 27, 1881, on the other part. It cannot be pretended that there is any proof of actual personal notice to Clarissa Eve; a careful examination of the testimony discloses no fact or circumstance affecting her with notice, actual or constructive. The Auditor finds that, after deducting expenses of the audit, she is entitled to $255.10, being her pro rata share of the fund in Court, and we can find nothing in the law or facts in this case which can change this result. Clarissa Eve, being thus eliminated from the controversy, it only remains for us to pass upon the rights of Mrs. Hamilton, as against the judgment of Henry E. Newberry, "guardian of several minors," for $2400, entered January 27, 1881. This judgment is peculiar in form, the defendant, Henry E. Newberry, being the plaintiff therein, but as the judgment recites, in a general way, and the testimony discloses more specifically the use for which it is held, the judgment is probably sustainable in equity, in relief of the persons interested therein. The plaintiff in this judgment, being the legally appointed guardian of those for whose use the same was taken, is the only person to whom notice could be given touching the rights, interests, and estates of his wards to have any legal force or effect. Notice to the minors themselves would certainly avail nothing, but notice to their guardian is effective according to its purpose. If, therefore, Henry E. Newberry, " guardian," had actual notice of the Hamilton judgment, the effect of that notice would be communicable to the minors whose interests he represented. He was one of the firm of New money was made. The sheriff made return that after deducting costs he had paid the balance of the sum real ized into Court, and an entry in the docket was duly made to that effect. A. thereupon procured an order of Court authorizing him to withdraw the amount, and in pursuance of this order the prothonotary paid him said sum. Subsequently it was discovered that the sheriff had not paid the money into Court. A. thereupon assigned all his rights in the premises to the prothonotary, and a suit was brought by the Commonwealth, at the suggestion of A., to use of the prothonotary, on the sheriff's official bond, the breach assigned being a false return: berry & Brothers. He knew how that firm was constituted; that he had himself given the obligation to Mrs. Hamilton, and that obligation contained a warrant to confess judgment. He also knew that she had entered it upon record as a lien; he himself states that he asked Mr. Conard, Mrs. Hamilton's grandson, before the Yewdall mortgage was negotiated, to have the lien of that judgment released, in order that the mortgage might be entered as a first lien. He certainly, therefore, knew all about it; more accurate and complete notice could not be estab-derived entirely by assignment from A., but that A., hav lished in any case. Held, that the rights of the use plaintiff, if any, were ing received the amount of his claim in full under order of the Court, and not being bound to refund to the proThe judgment confessed, as between the par-thonotary the money received by him, had no cause of ties, without indexing, was sufficient to create a action against the sheriff, and hence could assign none to lien upon the defendant's lands. (York Bank's the prothonotary: Appeal, supra.) Held, therefore, that the action could not be maintained. Error to the Common Pleas of McKean County. Debt, by the Commonwealth, for the use of Chester K. Sartwell, against Chester S. King, Enoch B. Dolly, and Horace B. King, upon the official bond of the first-named defendant, as sheriff of McKean County. The other two defendants were sureties on said bond. The obligation, it is true, was signed only by Henry E. Newberry in the name of the firm; but, as we have stated, it was given for money borrowed for the use of the firm, and Israel D. Newberry has done nothing to impeach the validity of this judgment as to him; if he is satisfied, judgment creditors cannot complain; if one partner confess a judgment against a firm for a partnership debt, another creditor of the firm can interpose no objection to the judgment on that account. It is only the non-assenting partner that can question the validity of the judg-lowing facts appeared: Defendant, Chester S. ment; if he permits it to stand, it binds both. (Grier & Co. v. Hood, 1 Cas. 430.) On the trial, before WILLIAMS, P. J., the fol King, while acting in his office of sheriff, collected by a fi. fa. a sum of money in an action We are of opinion, therefore, that the amount by S. Solomon against D. Whitestone. He inawarded to the judgment of Henry E. Newberry, dorsed on his writ that the money was paid into "guardian of several minors," should be applied Court, and returned the writ into the office of to the judgment of Elizabeth L. Hainilton. the prothonotary. The return on the writ was Clarissa Eve cannot complain of this, as she re- duly entered in the execution docket. S. Soloceives, upon her judgment, just what she would mon, the plaintiff in the execution, obtained have received if the Hamilton judgment were leave from the Court to take the money, and, entirely excluded from the distribution. Nor on presenting the Court's order, the prothonocan the other junior judgment creditors com-tary paid it to him. Afterwards, the prothonoplain, as the fund can in no case reach them. tary, Chester K. Sartwell, discovered that he had The decree is reversed, and it is ordered that never received the money from the sheriff, and the sum of $459.15, awarded to Henry E. New-that the sheriff's return was false. This action berry, guardian, etc., be applied to the judgment was then begun against the sheriff at the suggesof Elizabeth L. Hamilton; and it is ordered that tion of Sartwell: but the record was afterwards the money be paid out accordingly, and that the amended so as to read "at the suggestion of S. appellee pay the cost of this appeal. Solomon, for the use of Chester K. Sartwell,' Opinion by CLARK, J. etc., Solomon having assigned any rights he had against the sheriff to Sartwell. Jan. '82, 461. T. R. May 7, 1883. King et al. v. Commonwealth, at suggestion of Solomon, to use of Sartwell. Sheriff-Sheriff's official bond-Execution Prothonotary-Assignment. A., having a judgment against B, issued a fi. fa., which he placed in the sheriff's hands. A levy was made on the property of B., a sale took place, and the Plaintiff requested the Court to charge that if the jury believed that the money had not in fact well, the prothonotary, by the sheriff, and that been paid into Court, or into the hands of SartSartwell had paid the money to the execution plaintiff under a mistake caused by the false return of the sheriff, then the payment made by Sartwell to the execution plaintiff did not discharge the sheriff from liability to account for the sum collected by him, and the assignment by the execution plaintiff to Sartwell passed to him the right to recover the amount of the same | paid. The mistake of the prothonotary cannot from the sheriff and his sureties in this action. possibly discharge the sheriff from liability to Affirmed. account for money which he has collected but That the payment by Sartwell, if the facts are not paid. As between Solomon and the sheriff found as above stated, operated as an equitable the execution is not satisfied. Solomon, thereassignment to him of the rights of the execution | fore, had a right of action against the sheriff, and plaintiff, which, when followed by the legal assignment of the execution plaintiff gave Sartwell the same right to recover from the sheriff as the plaintiff would have had if Sartwell had not paid him the money. Affirmed. The defendant requested the Court to charge as follows: 1. That by the plaintiff's own showing the payment by Sartwell to Solomon was a voluntary payment without fraud or deceit on the part of Solomon, and that, therefore, Sartwell could not recover it back in an action against Solomon. Refused. 2. That Solomon having received his money, and standing in a position where it cannot be recovered back from him, he cannot recover in this action. Refused. 3. That even if Sartwell paid the money by mistake, not having received the same from King, his remedy would be by action in his own name against King individually, and not on his official bond. Refused. 4. That, under the plaintiff's own evidence in the case, no recovery can be had upon the official bond of Sheriff King. Refused. Verdict and judgment for the plaintiff. The defendant thereupon took this writ, assigning for error, inter alia, the affirming of plaintiff's points, and the refusal to affirm defendant's points as above. A. G. Olmsted, and Sterrett & Rose, for plaintiff in error. Sartwell's right to recover depends entirely on the rights of Solomon at the time of the assignment; and at the time of the assignment Solomon had received his money in full. He received it without fraud or deceit, it was a voluntary payment, and it could not be recovered back from him. Morris v. Tarin, I Dall. 147. Keener v. Bank of U. S., 2 Barr, 237. R. Brown, B. D. Hamlin, M. F. Elliott, for defendant in error. The question is not whether Sartwell could recover back the money he paid to Solomon by mistake, but whether, having paid it under the misrepresentation of the sheriff that the money was in Court, the sheriff and his sureties are liable for the money he has received and not he has assigned it to Sartwell. Lithcap v. Wilt, 4 Phila. 64. Brice's Appeal, 9 WEEKLY NOTES, 230. The con October 1, 1883. THE COURT. trolling question in this case is, whether, upon the following state of facts, the plaintiff below was entitled to recover. In November, 1878, a writ of fieri facias, at the suit of S. Solomon against D. Whitestone, was issued and placed in the hands of plaintiff in error, King, the sheriff of McKean County. It is conceded the money was made by levy and sale of defendant's personal property, and the writ, showing that fact, was returned into the prothonotary's office two weeks before the return day. The sheriff's return, indorsed on the writ, setting forth that the property levied on was sold for $1102.26, and, after applying a portion thereof to costs, "the balance of the money, $1030.71, paid into Court," was duly entered on the execution docket by one of the prothonotary's deputies; and thus the matter rested until after the return day. Adverse claimants of the fund having, in the mean time, relinquished their right thereto, the Court, on application of counsel for Solomon, the plaintiff in the execution, authorized him to take out of Court the money appearing by the sheriff's return to be there. Upon presentation of the order to Prothonotary Sartwell, the money was forthwith paid to the plaintiff in the execution, and by him receipted for in full of his judgment and interest. The Court in making the order, the prothonotary in promptly obeying it, and the execution plaintiff in receiving and receipting for the money, all acted upon the assumption and belief that it was in Court as represented by the sheriff's return. Some time afterwards, however, the prothonotary, alleging the money had not been paid into Court, or to him by the sheriff, caused this suit to be brought against the latter and his sureties on his official bond to recover, at the suggestion of Solomon, the amount paid to the latter in pursuance of the order of Court. The substance of the breaches assigned and mainly relied on is, that the sheriff's return is false, in that he did not pay into Court the |