text:
    Commonwealth v. Snyder, Appellant.
    Argued Jan. 10, 1910.
    Appeal, No. 5,
    May T., 1910, by defendant, from judgment of Superior Court, March T., 1909, No. 13, affirming judgment of Court of Quarter Sessions of Dauphin Co., Sept. Sessions, 1907, No. 239, in case of Commonwealth' of Pennsylvania v. John H. Sanderson, Joseph M. Huston, James M. Shumaker, William P. Snyder and William L. Mathues.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elicin, Stewart and Moschzisker, JJ.
    Affirmed.
    - Appeal by defendant from a judgment and sentence upon an indictment charging conspiracy to defraud the state of Pennsylvania.
    The facts and the report of this case will be found in 40 Pa. Superior Ct. 485.

      Alex. Simpson, Jr., and Lyman D. Gilbert, for appellant.

      James E. B. Cunningham, deputy attorney general, and D. T. Watson, with them John Fox Weiss, district attorney, John E. Fox, James Scarlet and M. Hampton Todd, attorney general, for appellee.
   Per Curiam,

March 7, 1910:

A majority of the court are of opinion that the judgment appealed from should be affirmed on the opinion of the Superior Court.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Commonwealth v. Shumaker, Appellant.
    Argued Jan. 10, 1910.
    Appeal, No. 6,
    May T., 1910, by defendant, from judgment of Superior Court, March T., 1909, No. 15, affirming judgment of Court of Quarter Sessions of Dauphin County, Sept. Sessions, 1907, No. 239, in case of Commonwealth v. John H.' Sanderson, Joseph M. Huston, James M. Shumaker, William P. Snyder and William L. Mathues.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal by defendant from a judgment and sentence upon an indictment charging conspiracy to defraud the state of Pennsylvania.

      The facts and the report of this case will be found in 40 Pa. Superior Ct. 547.

      ■ Charles II. Bergner, with him Percy Allen Rose, for appellant.

      James E. B. Cunningham, deputy attorney general, and D. T. Watson, with them John Fox Weiss, district attorney, John E. Fox, James Scarlet and M. Hampton Todd, attorney general, for appellee.
   Per Curiam,

March 7, 1910:

A majority of the court are of opinion that the judgment appealed from should be affirmed on the opinion of the Superior Court.

Judgment affirmed.


author: Mr. Justice Stewart,

text:
    Fearon v. Little, Appellant.

      Practice, C. P. — Trial—Points for charge — Answers to points.

    1. The court is not required to read to the jury and specifically rule upon points submitted where the points are substantially answered in the general charge. This is particularly so when the points are not relevant to the proofs and the issue being tried.

      Stocks — Stockbrokers—Purchase upon margin — Gambling transaction —Wagering contracts — Promissory note■ — Interest on balances — Usury.
    2. A purchase of stock on margin for speculation is not necessarily a gambling transaction. If it is the intention of the parties that a real purchase shall be made by a transfer of the stock, although the delivery may be postponed or made to depend upon future conditions, the transaction is legal; if it is the intention that there is not to be a delivery to complete the purchase but that the account is to be settled on the basis of a rise or fall in prices, it is a mere wager, and the contract cannot be enforced by either party.
    3. In an action by a stockbroker to recover on a promissory note given him for the balance due upon stocks purchased and sold by him for the maker, where the broker produces his monthly statements covering every stock transaction, and testifies that every share of stock appearing on the statements had been purchased by him outright, that the certificates therefor had been delivered to him, that every share of stock purchased for the defendant which defendant ordered to be sold, had been actually sold to the purchaser, and produces on the trial the checks given for the stock purchased, and the defendant in no way contradicts this testimony, but testifies that his understanding with the broker was that the latter was to buy the stocks outright, and that the transactions between them were not for the matching of differences, but that the stock was to be actually bought and sold as by him directed, the contract is not a wagering contract, and it can avail the defendant nothing to have the jury instructed to consider such circumstances as the extent of the transactions, the aggregate of the amounts involved and his own financial circumstances.
    4. Stock transactions are not to be judged wagering whenever it appears that the losing party indulged beyond the point of prudence as measured by his financial ability.
    5. Where at the end of each month a stockbroker renders to a customer a statement of his account, including interest on the balance shown, he is entitled to charge interest on this balance, where it appears that the monthly statements were accepted by his customer as correct and approved by him in writing.
    6. When an account is settled and balanced up, the balance bears interest notwithstanding that interest has been added in the account.
    Argued Jan. 13, 1910.
    Appeal, No. 222,
    Jan. T., 1909, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1906, No. 2,503, on verdict for plaintiff in case of William F. Fearon, Trading as William F. Fearon & Company, v. Henry Ashton Little.
    Before Fell, C. J., Brown, Mestrbzat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Audeñried, J.
    The defendant claimed that the note was given as a result of stock dealings between the parties which were gambling transactions. The evidence showed that the stock transactions embraced a large number of transactions, amounting in the aggregate to $12,000,000 in the course of two years, and that at no time did the defendant have more than about $35,000 or $40,000 of collaterals against loss.

      Error assigned among others was in refusing to specifically charge on the points presented by defendant.

      Joseph W. Shannon, for appellant.
    — The court erred in refusing to charge as requested: Gaw v. Bennett, 153 Pa. 247; Albertson v. Laughlin, 173 Pa. 525; Dauler v. Hartley, 178 Pa. 36; Kear v. Heilner, 190 Pa. 276.
    A debtor is not bound to pay an excess of interest over six per cent: Heath v. Page, 63 Pa. 108; Miners’ Trust Co. Bank v. Roseberry, 81 Pa. 309.
    The real question in the case is, the intention of the plaintiff to deliver the stock to the defendant, and the law of this state leaves the question to the jury to decide the intention,' taking into consideration the rapidity and number and amount of the transactions, the amount of margins and other circumstances: Snider v. Harvey, 215 Pa. 538; Jennings v. Morris, 211 Pa. 600; Fareira v. Gabell, 89 Pa. 89, Brua’s App., 55 Pa. 294; Wagner v. Hildebrand, 187 Pa. 136.

      Samuel M. Clement, Jr., with him, Frank Rogers Donahue, for appellee.
    — It is entirely within the discretion of the court to decline points without reading them and to state the law to the jury in its own terms: Carey v. Buckley, 192 Pa. 276; Jones v. Greenfield, 25 Pa. Superior Ct. 315; Com. v. Swallow, 8 Pa. Superior Ct. 539; Muthersbaugh v. McCabe, 22 Pa. Superior Ct. 587; Long v. Reed, 16 Pa. C. C. Rep. 110; Scheuing v. Yard, 88 Pa. 286; McLain v. Com., 99 Pa. 86.
    The accounts amounted to balances struck between the parties and they were always treated with the consent of the defendant as fixed balances: McClelland’s Executor v. West, Admr., 70 Pa. 183.
    Short sales may be speculative but are not all wagers: .Assigned Est. of L. H. Taylor & Co., 192 Pa. 306; Peters v. Grim, 149 Pa. 163; Fareira v. Gabell, 89 Pa. 89; Jennings v. Morris, 211 Pa. 600; Kirkpatrick v. Bonsall, 72 Pa. 155; Hirst v. Maag, 13 Pa. Superior Ct. 4.
   Opinion by

Mr. Justice Stewart,

March 7,1910:

The chief matter assigned as error was the failure of the learned trial judge to read to the jury the thirteen points submitted by the defendant’s.counsel, and specifically rule upon them. The reply made to those assignments is that the points, so far as relevant to the case, were substantially answered in the general charge, and that the charge was in all respects as favorable to the defendant as lie could ask. The reply is sufficient, if correct in its statement of fact. First, as to the relevancy of the points. They are exactly the same as were submitted in Gaw v. Bennett, 153 Pa. 247. On appeal the ruling of the court affirming these points was sustained. The action there was upon a promissory note, and the defense set up was that the note had been given in settlement of a wagering contract. So far the cases are alike; but the resemblance stops right there. In the case referred to there was absolutely nothing from which the contract between the parties covering their mutual transactions could be derived except the course of dealing between them. One of the parties was dead, and the defense was urged by his legal representative. The transaction was left to speak for itself, and from it alone the understanding of the parties was to be ascertained. The points submitted were to meet this condition of the evidence. The transaction showed a purchase of some $70,000 of stock on defendant’s account, at buyer’s option, during the period of some three years; that none of the stock had been delivered to the defendant; that the only money he had ever paid to plaintiff was $400, which had been paid in a lump sum, not on account of the purchase of any particular stock, and the proceeds of 200 shares of railroad stock left with plaintiff to be sold. The only question was whether this evidence, taken in connection with that which related to defendant’s financial condition during the period covered by the transaction, would support a finding by the jury that the contract between the parties was a wagering one. The points directed the jury’s attention to the several features of the case which supposedly made for the defendant’s contention, and which were thought sufficient in their combined strength to compel a submission of the case. Their inapplicability to the present case becomes apparent when we consider the real question that was there being inquired into, and the state of the evidence in regard to it. The only question here was, did the plaintiff, according to the understanding between himself and the defendant, actually buy upon the latter’s order the various stocks on which he has charged commissions, with a view to their delivery to the defendant, upon demand and payment therefor. The question as thus stated presents every element which can be considered in determining whether the transaction offends against law or policy. “A purchase of stock on margin for speculation is not necessarily a gambling transaction. If it is the intention of the parties that a real purchase shall be made by a transfer of them, although the delivery may be postponed or made to depend upon future conditions, the transaction is legal; if it is the intention that there is not to be a delivery to complete the purchase, but that the account is to be settled on the basis of a rise or fall in prices, it is a mere wager, and the contract cannot be enforced by either party:” Peters v. Grim, 149 Pa. 163; Wagner v. Hildebrand, 187 Pa. 136. The question being as stated, what was the evidence with respect to it? The plaintiff having introduced his note, rested. The defendant opened his case by calling the plaintiff to testify as under cross-examination. The witness produced the monthly statements covering every stock transaction. He testified that every share of stock appearing on these statements had been purchased by him outright, and that the certificates therefor had been delivered to him; that every share of this stock purchased for the defendant which defendant ordered to be sold, had been actually sold to the purchaser. He further produced on the trial the checks given for the stock purchased. The defendant was next called to the stand. There was absolutely nothing in his testimony to contradict or qualify any material statement made by the plaintiff. On the contrary, he testified that his understanding with the plaintiff was that the latter in buying upon his order was to buy the stocks outright; that it was not a transaction between them for the matching of differences, but that the stock was to be actually bought and sold as by him directed. The contract as testified to by both parties was not a wagering contract, and the testimony of plaintiff showing a course of dealing in strict conformity with the terms of the contract, was wholly uncontradicted. On this state of the evidence how could it have availed the defendant to have had the jury instructed to consider such circumstances as the extent of the transaction, the aggregate of the amounts involved, and the financial circumstances of the defendant? These matters would have had significance in a dispute where the agreement between the parties was otherwise undisclosed, as in the case of Gaw v. Bennett, supra; but where, as here, both parties to the contract acquit themselves of all purpose to engage in wagering, and no evidence whatever is offered to show that the stocks were not purchased and sold outright upon the order of the complaining party, as testified to by the other, to allow a party to avoid his liability because of such circumstances as those suggested by the points, could only be justified on the ground that stock transactions are to be judged wagering whenever it appears that the losing party indulged beyond the point of prudence as measured by his financial ability. That is not the law. The evidence in the case was confined to the testimony of the parties themselves, and since it furnished nothing that overcame the prima facie case as established by the note itself, the learned trial judge would have committed no error had he given binding instructions for the plaintiff.

At the end of each month during the period covered by the transaction the plaintiff rendered to the defendant a statement of his account, including interest on the balance shown. Upon the balance so shown interest was charged in the next succeeding statement and entered into the balance of that account; and so on throughout. These monthly statements were accepted by defendant as correct and approved by him in writing. In contemplation of law such acceptance was an admission of a precise debt due at that time. When an account is settled and balanced up, the balance clearly bears interest, notwithstanding that interest has been added in the account: McClelland’s Exr. v. West, 70 Pa. 183.

The assignments of error are overruled, and the judgment is affirmed.


author: Mr. Justice Brown,

text:
    Tenth National Bank v. Construction Company.

      Receivers — Ancillary receiver — Courts—Jurisdiction.
    1. A court has no power to appoint a receiver where one has already been appointed by another court of equal jurisdiction.
    2. Where a court of one judicial district in the state appoints a receiver for a corporation, such appointee becomes receiver of every asset of the corporation, wherever situated in the state.
    3. The court which first appoints a receiver has the sole disposition of the fund or property received by him as such and is bound in the exercise of its judicial powers to make administration of it.
    4. Where a receiver has been appointed for a corporation in one county, the appointment of an ancillary receiver four days later by the court of another county is an unauthorized proceeding, and the assets of the corporation located in such other county are still under the dominion of the court which made the original appointment. Where in such case a bank located in the county where the ancillary receiver was appointed refuses to pay or deliver over to the original receiver assets in its hands belonging to the corporation, the proper proceeding is for such court to order its receiver to demand payment of the bank, and, upon failure of the bank to pay him, to forthwith institute suits to recover the amounts of the deposits. Such court, however, has no authority to make a decree or to enter a rule to show cause ordering the bank to pay the receiver and enjoining it from making payment to any one else, where the court has never brought the bank within its jurisdiction by proper process.
    Argued Jan. 14, 1910.
    Appeals, Nos. 342 and 343,
    Jan, T., 1910, by The Security Title and Trust Company and The Farmers’ National Bank of York, Pa., from order of C. P. No. 5, Phila. Co., Dec. T., 1904, No. 3159, to pay over money on petition of the Fourth Street National Bank of Philadelphia, in case of Tenth National Bank of Philadelphia v. The Smith Construction Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Petition for rule to show cause why a receiver should not be permitted to withdraw certain funds from banks in York county and to enjoin payment of such funds to any other person. Before Staake, J.

      The opinion of the Supreme Court states the case.

      Error assigned was the decree of the court granting the petition.

      Frederick B. Gerber, with him Duane, Morris & Hecksher, for The Security Title and Trust Company, appellant.
    — The jurisdiction of courts of common pleas is limited to their respective counties, where the proceedings concern a chose in action whose situs is in another county: Wiener v. American Ins. Co., 224 Pa. 292; Coleman’s App., 75 Pa. 441.
    A rule cannot be used as original process in equity against a corporation which is not a party to proceedings in which the rule issues: Allegheny Bank’s App., 48 Pa. 328; Aurentz v. Porter, 48 Pa. 335.

      Frederick B. Gerber and V. K. Keesey, with them J. S. Black and Duane, Morris & Hecksher, for Farmers’ National Bank, appellant.
    — Before a court can grant or enforce a rule against any party, it must have acquired jurisdiction over him by some regular and recognized legal process: Allegheny Bank’s App., 48 Pa. 328.

      Abraham M. Beitler, with him Henry S. Drinker, Jr., James McMullan and Arthur G. Dickson, for appellee.—
    The court which first appoints a receiver has the sole disposition of the fund or property received by him as such, and is bound in the exercise of its judicial powers to make administration of it: Fischer v. Superior Court, 110 Cal. 129 (42 Pac. Repr. 561); O’Mahony v. Belmont, 37 N. Y. Super. Ct. 380; McCarthy v. Peake, 9 Abb. Pr. 164; Peale v. Phipps, 55 U. S. 368; Sullivan v. Algrem, 160 Fed. Repr. 366.
    By accepting a deposit in the name of the receiver, the banks became pro hac vice officers of the court which appointed the receiver, and so subject to its jurisdiction: In re Western Marine & Fire Ins. Co., 38 Ill. 289; Schwartz v. Keystone Oil Co., 153 Pa. 283.
   Opinion by

Mr. Justice Brown,

March 7, 1910:

On January 27, 1905, the Tenth National Bank of Philadelphia filed a bill in the court below, asldng for the appointment of a receiver for the Smith Construction Company. The bill averred, inter alia, that the said company had an office and a large part of its machinery, tools arid fixtures, plant and assets in the city of Philadelphia, the balance of its machinery, tools, fixtures, plant and assets being scattered, some being in Chester county, some in Mifflin county, some in York county and some in the state of West Virginia. On the same day that the bill was filed the court appointed William R. Richards receiver of all and singular the equipment, materials, supplies, income, choses in action, personal property of every description, rights, privileges and franchises then held by and belonging or appertaining to the Smith Construction Company, and of all of the books, accounts, records, documents and papers of said -company. By the decree appointing the receiver he was directed, as soon after entering upon the duties of his office as might be practicable, to cause an inventory of all the personal property which should come into his possession to be made and filed in the office of the prothonotary of the said court, and he was authorized to continue the business then carried on by the Smith Construction Company in such manner as he might deem most advantageous for its creditors. He was authorized to prosecute or defend, without the further order of the court, all existing actions by or against the company and to pay and defray the expenses properly incident theréto, to commence and prosecute any actions which, in the course of business, he might deem necessary or proper, to commence, either in the name of the construction company or in his own name, and to defend all suits that might be brought against the said company, and was directed to keep all moneys received by him on deposit in one or more banks or trust companies of good credit, subject to his order, to be drawn therefrom on his checks only for the proper purpose of the receivership, and all sums not required for making such payments were to be safely kept subject to the further order of the court. Four days later — on January 31 — the same complainant, the Tenth National Bank of, Philadelphia, filed a bill iii the court of common pleas of York county, the material averments in it being ipsissimis verbis those of the bill filed in the court below, and the York county court was asked to appoint an ancillary receiver. The bill recited the appointment four days before by the court below of Richards as receiver of the construction company, but notwithstanding this, on the same day that the bill was filed in the York county court that court appointed him ancillary receiver, the decree appointing him being in the exact words of that of the court below, except as to the amount of the bond to be given. The business conducted by Richards as receiver in York county was the completion of a certain contract for the building of a portion of a sanitary sewer in the city of York. He has filed accounts both in the court below and in the court of common pleas of York county. The account filed in the court below purports to include all items of receipts and expenditures incident to the business of the Smith Construction Company wherever conducted by the receiver. The account filed in the court of common pleas of York county purports to include only the receipts and expenditures incident to the business carried on by the receiver in the county of York. Certain subcontractors who had furnished materials for the construction of the sewer in the city of York made claims under the Act of June 4, 1901, P. L. 431, as amended by the Act of April 22, 1903, P. L. 255, and the city of York, in pursuance of the statute, paid into the court of common pleas of York county the sum of $5,614.33. An auditor was appointed to determine who were the parties entitled to this fund, and he awarded it to William R. Richards, the ancillary receiver. Exceptions to his report were sustained by the lower court, but, upon appeal to this court, the decree of the lower court was reversed and the report of the auditor absolutely confirmed: Tenth National Bank of Philadelphia v. Smith Construction Co., 218 Pa. 581. The fund was thereupon, less the costs of audit, paid to William R. Richards, receiver, who deposited the same to his credit in the Security Title and Trust Company, of York, Pa., where it now remains. Subsequently, on August 19, 1907, the city of York presented a petition to the court of common pleas of York county, asking leave to pay into court the balance alleged by it to be due upon the contract with the Smith Construction Company for the building of the sanitary sewer, to wit, the sum of $14,911.76. Upon the presentation of this petition the court ordered the said city of York to “pay said sum of money to William R. Richards, receiver of the above defendant, to be accounted for by said receiver according to law, this fund to be deposited by said receiver in the Farmers’ National Bank of York, Pennsylvania, to be paid out only' in accordance with the order of this court.”

The Fourth Street National Bank of Philadelphia is the holder of receiver’s certificates issued by the said William R. Richards under and by virtue of an order of the court below, and on July 16, 1909, it presented its petition to said court, averring the foregoing state of facts, and, in addition, that the receiver had requested payment to him by the Farmers’ National Bank of York of the sum on deposit with it to his credit, and that payment was refused, and, further, that he had made a similar demand upon the Security Title and Trust Company of York for payment of the amount deposited with it to his credit, but that payment thereof had also been refused. Upon the presentation of this petition the court below granted a rule upon William R. Richards, receiver, the Security Title and Trust Company of York and the Farmers’ National Bank of York, Pa., to show cause why the moneys on deposit to the credit of the said receiver, or to which he might be entitled, should not forthwith be paid to him and why the said Security Title and Trust Company and the Farmers’ National Bank of York should not be enjoined and restrained from paying said moneys to any person or persons except under and by direction of the court. Service of this rule was made in York county upon the Security Title and Trust Company and the Farmers’ National Bank of York, but no answer was made by either of them, and on October 20, 1909, the court below made an order that they forthwith pay to William R. Richards, receiver, the sums on deposit with them to his credit, with interest to the date of payment, and enjoining them from paying said moneys to any person or persons except under and by direction of the court. From this order we have these appeals.

When court of common pleas No. 5 of the county of Philadelphia appointed Richards receiver he became the receiver of every asset of the Smith Construction Company, wherever situated within the state. From the moment he was appointed, and before he may have taken actual possession of all of the assets of the company within the state, the court acquired plenary jurisdiction and dominion over those assets, and the receiver appointed by it was its officer to administer them, in whatever counties of the state they might happen to be. If there be an adjudicated case which authorized the court of common pleas of York county to interfere with the jurisdiction and dominion of the court below over the assets of the construction company which were in York county on January 27, 1905, by appointing an ancillary receiver four days later, it has never fallen under our notice. On the contrary, under all the authorities, the York county court was wholly without jurisdiction to make the appointment. “As between courts of the same State when a receiver has been appointed by one court and has obtained possession of the property or fund over which he was appointed, he cannot be in any manner interfered with by a receiver subsequently appointed, or by any proceeding whatever in any other action brought in any other court. The court which first appoints a receiver has the sole disposition of the fund or property received by him as such, and is bound in the exercise of its judicial powers to make administration of it:” Beach on Receivers, sec. 15. In Peale v. Phipps, 14 Howard, 368, an attempt was made in one of the federal circuit courts to exercise jurisdiction over a trustee who had been duly appointed by one of the courts of the state of Mississippi, and, in setting aside the circuit court’s interference, it was said by the Supreme Court of the United States, through Taney, C. J.: “The property, in legal contemplation, was in the custody of the court of which he was the officer, and had been placed there by the laws of Mississippi. And while it thus remained in the custody and possession of that court, awaiting its order and decision, no other court had a right to interfere with it or to wrest it from the hands of its agent, and thereby put it out of his power to perform his duty.” In the comparatively recent ■ case of Sullivan v. Algrem, 160 Fed. Repr. 366, there were three suits in three courts against Sullivan, owning and operating the Home. Cooperative Company, to appoint receivers of the same property, to sell it and to distribute the proceeds among the same creditors and holders of contracts. The first two suits were commenced in the state courts and the third in the federal court. The first court — the circuit court of St. Louis county, Missouri, — appointed a receiver, who took possession of a part or all of the property of the company. The circuit court of appeals of the United States for the eighth circuit held that, even without actual possession by the receiver, the circuit court of St. Louis county had acquired complete jurisdiction over all of the property of the company by the commencement of the suit, the appearance of the defendant and the appointment of the receiver. In so holding it was said by Sanborn, Circuit Judge: “The legal custody of specific property by one court of competent jurisdiction withdraws it, so far as necessary to accomplish the purpose of that custody, until that purpose is completely accomplished from the jurisdiction of every other court. The court which first acquires jurisdiction of specific property by the lawful seizure thereof, or by the due commencement of a suit in that court, from which it appears that it is, or will become, necessary to a complete determination of the controversy involved, or to the enforcement of the judgment or decree therein, to seize, charge with a lien, sell, or exercise other like dominion over it, thereby withdraws that property from the jurisdiction of every other court, and entitles the former to retain the control of it requisite to effectuate its judgment or decree in the suit free from the interference of every other tribunal. When a court has by lawful proceedings taken possession of specific property, it has during that possession and as incident thereto jurisdiction to hear and determine all questions respecting the title, possession, and control thereof, and courts of coordinate jurisdiction are powerless to render any judgment or decree that will invade or disturb the possession of the property while it is in the custody of the court which has thus first acquired it: Lang v. Choctaw, Oklahoma & Gulf R. R. Co. (C. C. A.), 160 Fed. Repr. 355 (filed by this court March 2, 1908); Farmers' Loan & Trust Co. v. Lake Street El. Railroad Co., 177 U. S. 51 (20 Sup. Ct. Repr. 564); 44 L. ed. 667; Peck v. Jenness, 7 Howard, 612; 12 L. ed. 841; Freeman v. Howe, 24 Howard, 450; 16 L. ed. 749; Moran v. Sturges, 154 U. S. 256 (14 Sup. Ct. Repr. 1019); 38 L. ed. 981; Central Nat. Bank v. Stevens, 169 U. S. 432 (18 Sup. Ct. Repr. 403); 42 L. ed. 807; Williams v. Neely, 134 Fed. Repr. 1; 67 C. C. A. 171; 69 L. R. A. 232; Barber Asphalt Paving Co. v. Morris, 132 Fed. Repr. 945; 66 C. C. A. 55; 67 L. R. A. 761; Gates v. Bucki, 53 Fed. Repr. 961; 4 C. C. A. 116.”

Authorities need not be multiplied in support of the rule that a court has no power to appoint a receiver where one has already been appointed by another court of equal jurisdiction. The rule is essential to the orderly administration of justice, for without it there would be unseemly conflicts between courts undertaking to exercise jurisdiction over the same subjects and persons. If the York county court could interfere with the administration by the court below, through its officer, of the estate of the construction company, so might the courts of the counties of Chester and Mifflin and of as many other counties as might happen to have assets of the company within their borders. Instead of one account by a receiver, to be passed upon by one court, there would be an account in each county by the receiver appointed by its court, and on every question raised on the accounts of receivers so appointed there might be as many minds as there were judges who made the appointments. To avoid such confusion, if for no other reason, when an appointment is once made by a court of competent jurisdiction, that appointment ought not to be interfered with by any other court within the same state. The controlling reason of the rule that the court which first appoints a receiver has exclusive jurisdiction over him and the assets to be sequestered and administered is that by his appointment those assets pass at once in gremio legis, and are not, therefore, to be interfered with by the process of any other court.

It is contended by counsel for appellants that, even if the appointment of the ancillary receiver by the court of common pleas of York county is void, it is not to be attacked in this collateral proceeding. This overlooks the fact that the court of common pleas of York county never had jurisdiction of the subject-matter — the assets of the Smith Construction Company. Exclusive jurisdiction over those had attached on January 27, 1905, in the court of common pleas No. 5 of the county of Philadelphia, as affirmatively appeared in the bill presented to the York county court. As that court was without jurisdiction, its appointment of the ancillary receiver was void and is to be so regarded in this proceeding. The appellee is not required to formally'move for its vacation by the court that undertook to make it.

The deposits with the two appellants are assets belonging to the receiver appointed by the court below and are free from any interference or control by the York county court, whose connection with the moneys due by the city of York for the sewer ended when it ordered the same to be paid to the receiver. What he should do with the funds after payments were made to him was solely for the court below. But while this is true, no authority exists for the action of the court below in ordering the appellants to pay the receiver. This order followed a rule upon them issued in a proceeding to which they were not legally made parties. They had never been within the court’s jurisdiction, and the rule taken upon them was ineffectual to bring them in. The order made upon them was void for want of jurisdiction: Allegheny Bank’s Appeal, 48 Pa. 328. They are not, however, to be permitted to retain the moneys due the receiver, and, if they do not pay him upon demand, will be compelled to pay in a proper proceeding. On the petition presented by the appellee the court ought to have ordered the receiver to demand payment, and, upon the failure of the appellants to pay him, to forthwith institute suits to recover the amounts of the deposits.

The decree below is reversed, the costs to be paid out of funds belonging to the receiver, and leave is granted to the appellee to apply to the court below for the order which we have suggested ought to have been made.


text:
    Bergdoll, Appellant, v. Sopp.

      Mortgage loan — Collateral security — Dividend on insolvent’s estate— Insolvency.

    Where a loan of $11,000 was made on condition that the father of the borrower should execute a mortgage for $8,000 as collateral security and there is a contention as to whether the mortgage was given to secure the whole indebtedness or only $8,000 of the debt, it is for a jury to decide what the mortgage was designed to cover, and if their finding is that the mortgage was only to embrace $8,000 of the indebtedness, then the lender must credit on the $8,000 of the indebtedness covered by the mortgage the ratable portion of a dividend received on the whole claim from the borrower’s insolvent estate, but if the finding shall be that the mortgage was collateral security for the entire indebtedness, the creditor may credit the dividend generally on the entire indebtedness and recover the full amount of the mortgage.
    Argued Jan. 18, 1910.
    Appeal, No. 214,
    Jan. T., 1909, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 925, for defendant non obstante veredicto in case of Emma C. Bergdoll v. Ernst Sopp.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Assumpsit for balance due under a mortgage. Before McMichael, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $1,581.56. The court subsequently entered judgment for defendant non obstante veredicto.

      Errors assigned were (1) in taking from the jury the interpretation of the parol contract of suretyship; and (2) in entering judgment for defendant non obstante veredicto.

      George S. Graham, with him Joseph Gilfillan, for appellant.—
    In some states and also in the United States courts, the rule applies that in involuntary payments the creditor can apply the amount realized from the insolvent debtor’s estate, or security which has been foreclosed or sold out, in such a way as to best protect his own interests: Kortlander v. Elston, 52 Fed. Repr. 180; California Nat. Bank v. Ginty, 108 Cal. 148 (41 Pac. Repr. 38); Small v. Older, 57 Iowa, 326 (10 N. W. Repr. 734); Wilson v. Allen, 11 Oregon, 154 (2 Pac. Repr. 91); Wood v. Callaghan, 61 Mich. 402 (28 N. W. Repr. 162); Advance Tresher Co. v. Hogan, 74 Ohio, 307 (78 N. E. Repr. 436); Morrison v. Bank, 9 L. R. A. 282.

      Alex. Simpson, Jr., with him Martin H. Stutzbach, for appellee.
    — In involuntary payments made by virtue of a decree of court on the distribution of an insolvent estate, the application is to be pro rata: Burnell’s Estate, 9 W. N. C. 334, aff’d in Weightman’s App., 10 W. N. C. 155; Bardwell v. Lydall, 20 Eng. Com. Law, 220; Raikes v. Todd, 35 Eng. Com. Law, 546; Thornton v. McKewan, 1 Hemming & Miller’s Ch. 525; Blackstone Bank v. Hill, 27 Mass. 129; Commercial Bank v. Cunningham, 41 Mass. 270; Browning v. Carson, 163 Mass. 255 (39 N. E. Repr. 1037); Cowperthwaite v. Sheffield, 1 Sandf. (N. Y.) 416; Orleans County Nat. Bank v. Moore, 112 N. Y. 543 (20 N. E. Repr. 357); Cohen v. State Bank of Florida, 29 Fla. 655 (11 So. Repr. 44).
   Opinion by

Mr. Justice Brown,

March 7, 1910:

The son of the appellee borrowed $11,000 from the appellant on or about September 10, 1903. She lent him this sum upon condition that the father would execute the mortgage in suit as collateral security to her. Her contention is that it was given as security for the whole indebtedness of $11,000, while the appellee insists that it was to be collateral for only $8,000 of the debt. Subsequently the son’s indebtedness to the appellant was increased and amounted at the time of his death — not long after the execution of the mortgage— to $12,200.27. His estate was insolvent, and the appellee received a dividend of 16J} per cent upon her whole claim of $12,200.27, amounting to $2,015.95. After receiving this dividend she procured a writ of scire facias to be issued on her mortgage, claiming that she had the right to apply the $2,015.95 to the unsecured part of the debt due to her, and, upon that theory, seeks to recover the full face of the mortgage, with interest, costs and counsel fees. The appellee, claiming that he was entitled to have the 16-|‡ per cent dividend credited pro rata on the $8,000 of the indebtedness which his mortgage secured, paid the difference, with interest, costs and counsel fees, and the case thereupon proceeded to trial for the determination of the single question thus raised, viz., Had the plaintiff the right to apply the dividend paid her to the unsecured part of her claim? The trial judge instructed the jury to render a verdict for the plaintiff, but the court in banc subsequently entered judgment for the defendant non obstante veredicto.

If it were admitted or it clearly appeared that the appellee executed the mortgage as collateral security for but $8,000 of the indebtedness contracted by his son, the judgment of the court below could not be disturbed. If his mortgage was to be security for but part of the debt, upon his payment of that part after the death of his son he would have been subrogated to all the rights of the appellant upon that part against the insolvent estate of the debtor. He did not so pay, but, if his mortgage was security for but $8,000, his failure to pay does not affect his equities against the appellant, and she must credit on $8,000 of the indebtedness the ratable portion of the dividend she received upon her whole claim, just as she would be compelled to allow such credit if she held a separate obligation of the decedent upon which the appellee was surety. Many cases have been cited by counsel on both sides as to the appropriation of voluntary payments made by a debtor, but such a payment is not here involved. The payment made to the appellant was an involuntary one, so far as the debtor was concerned. It was made to her by the law, through the orphans’ court, as a dividend upon the entire sum due her by the decedent, and if part of that indebtedness was specially secured, a ratable portion of the payment made to her was to the relief of the surety, and equity will compel her to relieve him pro tanto: Weightman’s App., 10 W. N. C. 155; Bardwell v. Lydall, 20 Eng. Com. Law, 220; Raikes v. Todd, 35 Eng. Com. Law, 546; Thornton v. McKewan, 1 Hemming & Miller’s Ch. 525; Blackstone’s Bank v. Hill, 24 Peck. (Mass.) 270; Commercial Bank v. Cunningham, 10 Peck. (Mass.) 129; Browning v. Carson, 163 Mass. 255; Cowperthwaite v. Sheffield, 3 N. Y. 243; Orleans County National Bank v. Moore, 112 N. Y. 543; Cohen v. State Bank of Florida, 29 Fla. 655. In Bardwell v. Lydall, supra, the defendant had guaranteed the plaintiffs against debts to be contracted by a third party to the extent of £400; that party became indebted to them in the sum of £625. Upon his insolvency there was a dividend of 8s. 7d. per pound, and in holding that a pro- rata part of the dividend must be allowed as a credit upon the guaranteed claim of £400, the court said: For suppose the sum which exceeds the £400 had been covered by the guaranty of another person, could it be ' contended that the plaintiffs might "have applied the whole of the dividends to either part of the demand at their election, and thus have varied, at their own pleasure, the extent of the responsibility of the two sureties? In the case supposed, we think that each of the sureties might have claimed a ratable deduction, out of each pound of the amount of debt to which their respective guaranties extended. And if so, the same result appears to us to follow, whether the excess beyond the £400 is covered by the guaranty of a stranger, or the creditor is contented to become his own surety for the residue, etc., and to look for payment of it to the principal debtor alone. Again, suppose in the principal case the defendant had paid the £400 to the plaintiffs before the plaintiffs had made their claim against Mayhew’s estate. There could be no doubt, in that case, that if they proved the whole demand, they would have been trustees for the defendant for the dividend on the £400; or, if they had declined to prove, that the defendant might have received the dividend on that sum, if the trust-deed admitted of such an arrangement. And what difference can it make in the equitable rights of the defendant whether such payment is made before, or is sought to be enforced against him after the payment pro rata out of the estate of the principal? .... The payment was not a payment in gross, but a payment specifically made by the trustees, and specifically received by the plaintiffs, as so much in each and every pound of the whole amount of the debt; so that there is a specified appropriation of payment to each and every part of the demand, which appears to us, in law, to operate as a part payment of the £400, as well as a part payment of the residue.” The foregoing is the whole law of the case if the appellee’s mortgage was given and accepted as security for but $8,000.

From the testimony of the appellee on his cross-examination the jury might have found that the mortgage was not given as “collateral for every dollar of the $11,000.” And if they had so found, the judgment of the court below would be right. On the other hand, there was evidence from which they could have found that the mortgage was given as a general indemnity against any loss on the entire $11,000 indebtedness. The testimony of Borasky, if believed, would have justified such a finding, which would sustain the contention of the appellant that the appellee is not entitled to any credit on his mortgage, as the whole dividend received by her is insufficient to pay the excess over the $8,000. The judgment is reversed with a venire facias de novo, that the case may be submitted to a jury in accordance with the views expressed in this opinion.


text:
    Commonwealth v. LeGrange, Appellant.

      Criminal law• — Murder—Homicide—Manslaughter—Charge of court.

    1. In the trial of an indictment for murder, an instruction as to manslaughter need not be given or that question submitted to the jury, where there is no evidence to reduce the grade of the crime below that of murder.
    2. In determining the degree of murder the jury must always be left free to act, because the act of assembly expressly imposes that duty on the jury, but there is no such requirement in distinguishing between murder and manslaughter.
    Argued Feb. 7, 1910.
    Appeal, No. 393,
    Jan. T., 1909, by-defendant, from judgment of O. & T. Phila. Co., Jan. T., 1909, No. 392, on verdict of guilty of murder of the first degree in case of Commonwealth v. Cecil LeGrange.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Indictment for murder. Before Ralston, J.
    At the trial it appeared that the prisoner was charged with the murder of Paul Hiller on Dec. 21, 1908. Other facts appear in the opinion of the Supreme Court.
    Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.
    The court charged in part as follows:
    [I would say to you, gentlemen, that in this case I can see no element whatever of manslaughter. In the commonwealth’s testimony there is no evidence which would, in the remotest degree, justify a verdict of manslaughter. Nor do I find such evidence in the testimony adduced on behalf of the prisoner. Voluntary manslaughter is where a man is so provoked by a blow, that, while in a violent passion, while beyond himself with rage, he fires the shot or inflicts the' wound which causes death.] [2]

      Error assigned among others, was (2) above instruction, quoting it.

      Edwin M. Abbott, for appellant.

      Joseph P. Rogers, assistant district attorney, with him Samuel P. Rotan, district attorney, for appellee.
   Per Curiam,

March 7, 1910:

The main argument on behalf of the appellant is directed to show error in the instruction in the charge that there was no evidence in the case that would justify a verdict of manslaughter. The commonwealth’s witnesses testified that the appellant entered the saloon where the homicide was committed, and immediately drew a pistol from his pocket and pointed it at William Reglin. Paul Hiller, who was killed, was standing nearby and advanced towards the appellant, who swung his arm around, changed his aim and shot Hiller; that no one had touched the appellant, and that Hiller was four or five feet from him when the shot was fired. The substance of the appellant’s testimony was that, when he entered the saloon, a number of persons rushed at him; that Hiller struck him and some one seized him from behind; that in attempting to draw his pistol to intimidate his assailants, it was accidentally discharged; that he did not intend to shoot anyone.

Under the testimony the instruction was clearly right. There was nothing shown that would reduce the, crime to manslaughter. If the commonwealth’s witnesses were believed, the crime was murder; if the appellant was believed, the killing was accidental and he was entitled to acquittal. Great care has been required in the trial of homicides to guard every right of the accused, but it has not been held that an instruction as to manslaughter should be given or the question submitted to the jury, where there is no evidence to reduce the grade of the crime below that of murder. In determining the degree of murder the jury must always be left free to act, because the act of assembly expressly imposes that duty on the jury, but there is no such requirement in distinguishing between murder and manslaughter: Com. v. Sutton, 205 Pa. 605; Com. v. Curcio, 216 Pa. 380. There is no merit in any of the assignments.

The judgment is affirmed, and it is directed that the record be remitted to the court of oyer and terminer of Philadelphia for the purpose of carrying the sentence into execution.


text:
    School District, Appellant, v. Montgomery.

      Constitutional law — Special legislation — School districts — Townships —Public health — Police power — Board of health — Act of April 11, 1899, P. L. 38 — Constitution, Art. Ill, sec. 7.
    The Act of April 11, 1899, P. L. 38, empowering the school directors of townships to exercise the powers of a board of health, and “to make rules and regulations to prevent the spread of contagious or infectious diseases,” etc., is not special legislation within the prohibition of Art. Ill, sec. 7, of the Constitution, and under this act the school directors of a-township have authority to furnish supplies to quarantined persons, to disinfect private residences, and to contract for support, maintenance and treatment of persons afflicted with smallpox, and payments made therefor do not constitute an unwarranted diversion of school funds.
    Argued Feb. 7, 1910.
    Appeal, No. 114,
    Jan. T., 1909, by plaintiff, from judgment of Superior Court, Oct. T., 1908, No. 46, affirming judgment of C. P. Delaware Co., June T., 1905, No. 107, on verdict for defendant in case of the School District of the Township of Nether Providence v. Kingsley Montgomery.
    Before Fell, C. J., Brown, Potter, Elicin and Moschzisker, JJ.
    Affirmed.
    Appeal from settlement of the accounts of the defendant as treasurer of the school district of Nether Providence.
    Issue to determine liability of the defendant for certain expenditures during an epidemic of smallpox. Before Johnson, P. J.
    For the report of the case in the Superior Court, see 38 Pa. Superior Ct. 483.
    The question at issue was the right of the board of school directors under the Act of April 11, 1899, P. L. 38, to furnish supplies to quarantined persons, to disinfect private residences, and to contract for support, maintenance and treatment of persons afflicted with smallpox and the legality of payments made by the treasurer therefor.
    The court gave binding instructions for the defendant.
    The judgment of the trial court was affirmed by the Superior Court, Head, J., delivering the following opinion:
    The appellant asks us to declare unconstitutional the Act of April 11, 1899, P. L. 38, on the grounds (a) that it is special legislation regulating the affairs of school districts; (b) that it undertakes to divert the school funds to other purposes than the support of the public schools.
    The correct standpoint from which a court should approach the consideration of questions of this kind, has been repeatedly described in many authoritative utterances; fully and forcibly in the recent case, In re Likens, not yet reported. The pith and marrow of them all may be found in these few words quoted from the opinion of the present eminent chief justice in Sugar Notch Borough, 192 Pa. 349: “It must not be lost sight of that the attitude of courts is not one of hostility to acts whose constitutionality is attacked. On the contrary, all the presumptions are in their favor, and courts are not to be astute in finding or sustaining objections.” It is also to be observed that the act mentioned belongs to the class of remedial legislation -to which the courts have ever accorded a broad and liberal interpretation.
    In disposing of the questions before us, clearness of view will not be promoted by an attempt to analyze and harmonize the multitude of cases wherein the same provisions of the constitution have been considered, but under conditions that vary widely from those now confronting us.
    But, if starting with the two cardinal principles referred to, we follow the light shed by one or two recent decisions, in cases closely resembling the one at bar, the way to a correct solution of our problem will not be difficult to find.
    Turning then to the act we observe that, in form at least, it manifests the intention of the legislature to enact a general, not a special law. Looking to its main purpose and object, as distinguished from the incidents that are involved in these, we discover that it does not deal with “school districts” at all. That expression cannot be found either in the title to or body of the act. The territory within which the act is to be operative is state wide, the townships, all of the townships of the commonwealth. Not one is necessarily excluded. The object directly sought to be accomplished throughout that territory is, not the regulation of school affairs, but the preservation of the public health when menaced by sudden assault from pestilence. True,' the persons authorized to exercise the powers conferred by the act are those who are the school directors; but if they had been the road supervisors instead, would the act, for that reason, have been fairly classified as road legislation? True also, the act contemplates and authorizes 'some expenditure of the school funds. In these two incidental respects only can it be said to affect school districts or regulate school affairs. As to such incidents when necessarily involved in working out a main purpose which is itself the subject of valid legislation, the constitution has placed no yoke on the legislative power. As was said in Sugar Notch Borough, supra, “the restrictions of the constitution upon legislation- apply to direct legislation, not to the incidental operation of statutes, constitutional in themselves, upon other subjects than those with which they directly deal.” And this language is quoted with approval in Stull v. Reber, 215 Pa. 156, where the court, upholding the constitutionality of the Act of June 18, 1895, P. L. 203, requiring the exclusion from the public schools of children who have not been vaccinated, said, “but the act is, in no proper sense, a regulation of school districts.”
    But even if the act could be fairly regarded as legislation regulating the affairs of school districts, and even if, by its terms, it excludes from its operation school districts within boroughs, it does not follow that it is special legislation within the prohibition of the constitution. When the Supreme Court in Wheeler v. Phila., 77 Pa. 338, determined that the classification of cities was a valid exercise of the legislative power, it did not declare that the power to classify was, by that single exercise of it, exhausted. As often as the like necessity recurs the power may be again exercised and the later children of the same mother will be as legitimate as her firstborn. And the subjects of such proper classification may be townships or school districts as well as cities. We again quote from the same case, already cited, which, in our judgment, practically rules this branch of the case at bar: “It is the settled law since Wheeler v. Phila., 77 Pa. 338, that classification based on genuine and substantial distinctions is within the constitutional power of the legislature, and an act which applies to all the members of the class is general and not special.” The act of 1899 cannot therefore be successfully assailed as special legislation.
    But it is further argued that the act is invalid because it undertakes to divert to other and different uses funds which have been raised by taxation or appropriation for school purposes only. State appropriations for the public schools, it is said, are made in pursuance of Art. X, sec. 1 of the constitution, which declares: “The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public schools .... and shall appropriate at least one million dollars each year for that purpose.”
    When a dangerous and contagious disease makes its appearance in a community one of the first results that follow is the closing of the public schools. If a portion of the school funds can be effectively expended in “preventing the introduction and spread” of such disease, we are unable to see how such expenditure can be regarded as an unlawful diversion of the money from the broad purpose declared in the article and section quoted. We therefore regard the act of 1899 as a valid exercise of the police power of the state, embodied in a general statute which violates no provision of the constitution.
    Finally, it is objected that the act, if constitutional, does not warrant the expenditures here complained of. In Marlatt v. Aleppo Township School District, 34 Pa. Superior Ct. 323, practically the same objection was made and passed on by this court. We there briefly expressed our views as to the character of the expenditures that could lawfully be made under the act. We have no desire to repeat or enlarge upon what, was there said. Following that case we must hold that this position of the appellant is not tenable. The assignments of error are all overruled.
    Judgment affirmed.

      Error assigned among others was the action of the Superior Court in refusing to enter judgment for the plaintiff non obstante veredicto.

      A. B. Geary, for appellant.
    — The purpose of the act is to confer additional powers upon school directors to regulate the affairs of school districts and the management of public schools in townships only. It therefore violates Art. Ill, sec. 7 of the constitution, prohibiting the passing of any local or special law:- Van Loon v. Engle, 171 Pa. 157; Chalfant v. Edwards, 173 Pa. 246.
    School districts are agencies of the commonwealth for a special and limited purpose; with no funds under their control but public moneys devoted to a specific charity, and not divertible, even directly, to any other use: Briegel v. Phila., 135 Pa. 451; School District of Erie v. Fuess, 98 Pa. 600.

      John E. McDonough, for appellee.
    — There is no constructional objection to the classification of school districts: Borough of Sugar Notch, 192 Pa. 349; Com. v. Gilligan, 195 Pa. 504; Stull v. Reber, 215 Pa. 156.
    The case of Marlatt v. Aleppo Township School District, 34 Pa. Superior Ct. 323, rules against the appellant.
   Per Curiam,

March 7, 1910:

An appeal was allowed in this case because the constitutionality of an act of assembly was involved: The judgment is affirmed on the opinion of the Superior Court.


text:
    Greiser, Appellant, v. Eddystone Manufacturing Company.

      Negligence — Master and servant — Notification of foreman — Obvious danger — Nonsuit.
    A nonsuit is properly entered in a suit for damages for personal injuries brought by a workman who was injured by being caught in the rollers of a cloth drying machine at which he had worked for a year, where there was no defect in the machine and no danger except the obvious one of having his hand caught by the cylinders if he was careless in handling the cloth.
    Argued Feb. 7, 1910.
    Appeal, No. 328,
    Jan. T., 1909, by-plaintiff, from order of C. P. Delaware Co., June T., 1908, No. 243, refusing to take off nonsuit in case of Jacob Greiser v. The Eddystone Manufacturing Company.
    Before Fell, C. J., Brown, Potter, Elkin and Moschziskbr, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries to a workman whose hand was caught between the rollers of a drying machine. Before Johnson, P. J.
    The facts appear in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was in refusing to take off nonsuit.

      William C. Alexander, for appellant.
    — Where the servant, in obedience to the requirement of the master incurs the risk of machinery, which though dangerous, is not so much as to threaten immediate injury, or where it is reasonably probable it may be safely used by extraordinary caution or skill, the master is liable for a resulting accident: Patterson v. Pittsburg & Connellsville R. R. Co., 76 Pa. 389; Schiglizzo v. Dunn, 211 Pa. 253; Rummell v. Dilworth, 111 Pa. 343; Gerding v. Steel Co., 220 Pa. 229.

      Joseph T. Bunting, for appellee.
    — There being no defect charged against tlie drying machine, and the plaintiff having had ample experience in taking off these double edges at the place where he was finally hurt, and the danger incident to taking them off in front of the rapidly revolving heated rolls being apparent, open and obvious, he has no right of recovery against the master: Higgins v. Fanning, 195 Pa. 599.
   Per Curiam,

March 7,1910:

The plaintiff had worked a year or more at a machine for drying cloth in the defendant’s mill. The cloth was washed in a long tub by passing it between rollers, and was then drawn by a roller to the drying'machine, where it passed between heated cylinders that revolved rapidly. It was the plaintiff’s duty to see that the cloth, after it passed between the cylinders, was wound on spools. The edges of the cloth would frequently become doubled over, and he was then required to remove the folds with his hands. On the day of the accident there were an unusual number of folds, or folds of an unusual size, in the cloth when it came from the tub. The plaintiff told the foreman in charge that there must be something wrong with the roller in the tub, and was told by him to do the best he could, that it would be fixed, and that there would be no danger if he took the folds out at the back of the machine, the place where he usually took them out and where he was working when injured. There was no defect in the machine at which the plaintiff was working, and there was no danger except the obvious one of having his hand caught by the cylinders if he was careless in handling the cloth.

The judgment is affirmed.


author: Pee Cueiam,

text:
    Commonwealth v. McComb, Appellant.

      Constitutional law — Police power — Game laws — Act of May 31, 1907, P. L. 329.
    The Act of May 31, 1907, P. L. 329, entitled: “An act prohibiting the use of automatic guns for the killing of game or wild birds within this commonwealth, and prescribing a penalty for violation of its provisions,” is constitutional. It is not an unreasonable exercise of the police power by the legislature, nor does it arbitrarily interfere with private property, nor unjustly discriminate against the maker of a particular ldnd of gun.
    Argued Feb. 8, 1910.
    Appeal, No. 248,
    Jan. T., 1909, by-defendant, from judgment of the Superior Court, Oct. T-, 1908, No. 148, reversing judgment of Q. S. Delaware County, Miscellaneous Docket, page 316, in case of Commonwealth of Pennsylvania v. Thomas W. McComb.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Appeal from summary conviction. Before Johnson, P. J.
    The defendant was charged before an alderman of the city of Chester with killing a wild duck in the county of Delaware with an automatic gun in violation of the Act of May 31, 1907, P. L. 329. The defendant admitted the killing and set up that the act of assembly was unconstitutional. The aider-man sentenced him to pay a fine of $50.00. An appeal was taken to the court of quarter sessions which declared the act unconstitutional and discharged the defendant.
    The commonwealth appealed to the Superior Court, which reversed the judgment of the court of quarter sessions, Or-lady, J., delivering the following opinion (see 39 Pa. Superior Ct. 411):
    The defendant was arrested, taken before an alderman of the city of Chester, and convicted of violating the provisions of the following act of assembly: “An Act prohibiting the use of automatic guns for the killing of game or wild birds within this commonwealth,” and prescribing a penalty for the violation of its provisions.
    Section 1. “Be it. enacted, etc., that from and after the passage of this act, it shall be unlawful for any person to use what is commonly known as an automatic gun for the killing of game within this commonwealth. Each and every person violating any provision of this section shall be liable to a penalty of 150.00 for each offense, or shall suffer an imprisonment in the common jail 6f the county for a period of one day for each dollar of penalty imposed: Act of May 31, 1907, P. L. 329.
    An appeal was allowed by the court below, and after a full hearing, the defendant was discharged for the reason that the act was unconstitutional in that the prohibition of the killing of game with automatic guns was a discrimination against the makers of such guns, and deprived them of the equal protection of the laws guaranteed-by the constitution of the United States, and the constitution of Pennsylvania. This act is one of a very large number beginning in the early colonial days and continuing through almost every session of the legislative body, providing for the manner of taking game; the methods employed; limiting the amount of the bag or catch of every kind of fish, fowl or beast known in Pennsylvania.
    It is earnestly contended that the act is unconstitutional, because it is an unreasonable exercise of police power by the legislature, arbitrarily interfering with private property and unjustly discriminating against the owner of a certain kind of gun. So to hold, we would be obliged to declare that a number of similar statutes are void by parity of reason. The extent and limitation of what is known as police power, has been a fruitful subject of discussion in the appellate courts of nearly every state in the union. It is universally conceded to include everything essential to the public safety, health and morals and to justify the destruction or abatement by summary proceedings of whatever may be regarded as a public nuisance, and wherever the public interests demand it, a large discretion is necessarily vested in the legislature to determine not only what the interests and the public require, but what measures are necessary for the protection of such interests: Barbier v. Connolly, 113 U. S. 27 (5 Sup. Ct. Repr. 357).
    The preservation of game and fish has always been treated as within the proper domain of the police power, and laws, limiting the season when birds and wild animals may be killed, and had for sale, and prescribing the manner in which they may be taken, have been repeatedly upheld by the courts. The duty of preserving the fish and game of a state from extinction, by prohibiting exhaustive methods of taking it, or the use of destructive instruments as are likely to result in the extermination of the young as well as the mature, is as clear as its power to secure to its citizens, as far as possible, a supply of any other wholesome food: Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. Repr. 499). It is but a decent respect due to the wisdom, integrity and patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt: Ogden v. Saunders, 25 U. S. 213. A reasonable doubt must be solved in favor of the legislative action and the act be sustained: Cooley's Constitutional Limitations (7th ed.), 253. When the legislature has considered the question and passed upon it, this makes a prima facie case in the law: Com. v. Vrooman, 164 Pa. 306. It must be manifest that the legislative department has overstepped the boundaries marked by the constitution before the courts are justified in nullifying the statute. The legislature comes direct from the people, and by its enactment gives expression to the popular will. This will so expressed, is the law of the land, except where the constitution unquestionably forbids it: Com. v. Darmska, 35 Pa. Superior Ct. 580; Likins’s Petition (No. 1), 37 Pa. Superior Ct. 625. The test as to whether the police power is validly exercised, is whether the enactment has relation to the public welfare, and it has been deemed of sufficient importance to justify the legislatures of practically all cf our states, to enact laws for the protection and preservation of game, and we have seen no case which challenges this as a legislative right, clearly within the exercise of the police power.
    Prohibiting taking fish by any device other than hook and line, or rod held in the hand, the use of nets, the size and number of a catch; the prohibition against the use of destructive agencies like torpedoes, quicklime or explosives; the season in which the fish may be caught have all been legislated about, and the enactments have been sustained by our appellate courts.
    By the Act of May 17, 1883, P. L. 34, it is made unlawful to chase, hunt, shoot, kill or destroy any web-footed wild fowl from or with any craft or boat propelled by steam or sails. By the Act of June 4, 1897, P. L. 123, it is provided, that no person shall kill, wound, trap, net, snare or catch with birdlime or any similar substance, poison, or drug, any wild bird or make use of dog or dogs in hunting elk, deer or fawn, within this state, or hunt or cause or permit the hunting of hares or rabbits with ferrets, or set, lay or prepare any trap, snare, net, birdlime, swivel gun, pitfall, turkey blind, or pen, or any other contrivance with intent to catch, take or kill any of the birds and mammals mentioned in that act, or any use of any artificial light, battery, or any other deception or contrivance whatever, with intent to attract, or deceive any of the birds or mammals mentioned, except the use of decoys, in hunting ducks, wild geese and brant.
    The swivel gun referred to in the act of 1897, is described as a small cannon, revolving on a swivel, so that it may maim or kill a number of game at a single discharge, but it is always under the direction and control of the operator. The automatic gun mentioned in this act is described as “one that is fired from the shoulder, and the recoil developed by the exploded cartridge, ejects the shell, cocks the hammer, and feeds in a fresh cartridge from a magazine into the chamber of the gun,” so that all that is required to discharge it is to pull the trigger. It is not necessary to justify the wisdom of the legislative enactment; the whole question has so frequently been the subject of discussion in the legislature and courts, that we must accept it as a result of their deliberations, that an automatic gun is not a proper weapon for the killing of game, within this commonwealth. Nor are the courts concerned about a technical though trifling interference with the pleasure of a hunter, or the property interest of a gun maker in deciding a question of public interest and welfare. Indeed, the source of police power, as to game, flows from the duty of the state to preserve for its people a valuable food supply: Phelps v. Racey, 60 N. Y. 10; Ex parte Maier, 103 Cal. 476 (37 Pac. Repr. 402); Magner v. People, 97 Ill. 320, and the cases there cited. The exercise of the state of such power, therefore, comes directly within the principle of Plumley v. Mass., 155 U. S. 461 (15 Sup. Ct. Repr. 154); Silz v. Hesterberg, 211 U. S. 31 (29 Sup. Ct. Repr. 10).
    When the act against taking fish with a certain kind of seine went into effect, there were doubtless many seines of the prohibited class manufactured, and in existence. The same may be said of swivel guns, when the act making it unlawful to kill certain wild fowl with such guns became a law, and the rule would apply with equal force to any new agency or device that is particularly prohibited. When the interests of the private manufacturer and the public weal come in conflict, from the legislative standpoint, the people at large are to have the preference. The act is general in its prohibition, affecting all alike, and protects from the automatic gun every kind of game in this commonwealth: Halter v. State, 7 L. R. A. (N. S.) 1079; Com. v. Kenney, 32 Pa. Superior Ct. 544; Com. v. Bercaw, 30 Pa. Superior Ct. 335; N. Y., etc., R. R. Co. v. New York, 165 U. S. 628 (17 Sup. Ct. Repr. 418).
    The Act of June 10, 1881, P. L. Ill, forbids the sale to any person under sixteen years of age of a pistol, revolver, etc. The Act of March 31, 1860, P. L. 382, provides for the confiscation of gambling apparatus. Even the length of time a female laborer shall be subjected to the exhaustion of physical labor is within legislative control: Com. v. Beatty, 15 Pa. Superior Ct. 5. The object of the act is not to favor the makers of one sort of gun, at the expense of those of other kinds, but its sole object is to protect game, and the methods adopted for its destruction, whether guns, traps or devices, are proper subjects for legislative consideration, just as the manufacture and use of explosives, the regulation of the practice of medicine, the dealings of hawking and peddling, the use of automobiles, the employment of minors, the taking of game, the use of public highways are general, and affect all alike; so that, a specially designed gun, which is made particularly effective and proportionately dangerous to game comes within the class of dangerous agencies either to be regulated or prohibited, as the legislature may decide.
    The judgment of the court below is reversed, and the record is remitted to the end that the sentence imposed may be fully carried into effect.

      Error assigned was in declaring the act constitutional.

      John G. Johnson and William I. Schaffer, with them William Findlay Brown, for appellant.
    — The act is unconstitutional because an unreasonable exercise of the police power arbitrarily interfering with private property and unjustly discriminating against the owner of a certain kind of gun: Barbier v. Connolly, 113 U. S. 27 (5 Sup. Ct. Repr. 357); Mugler v. Kansas, 123 U. S. 623 (8 Sup. Ct. Repr. 273); In re Marshall, 102 Fed. Repr. 323; Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. Repr. 499); Holden v. Hardy, 169 U. S. 366 (18 Sup. Ct. Repr. 383); Iler v. Ross, 57 L. R. A. 895; Chicago, etc., R. R. Co. v. Nebraska, 41 L. R. A. 481; s. c., 53 Amer. St. Rep. 557; 41 L. R. A. 481; Smiley v. McDonald, 47 Amer. St. Rep. 684; 27 L. R. A. 540; Ex parte Whitwell, 35 Amer. St. Rep. 152; 19 L. R. A. 727.
    Depriving an owner of the use of his gun, is to deprive him of his property. Any limitation upon its use is an interference with his right of property in it: Matter of Jacobs, 98 N. Y. 98; Pumpelly v. Green Bay Co., 80 U. S. 166; Wynehamer v. People, 13 N. Y. 378; People v. Otis, 90 N. Y. 48; Forster v. Scott, 136 N. Y. 577 (32 N. E. Repr. 976).

      S. B. Sadler, with .him Josiah Smith, for appellee.
    — Various attempts to prevent excessive killing or capture of game, by preventing the use of too effective implements or methods have been used and sanctioned.
    Camp hunting, that is, with the use of tents, has been prevented: DeBose v. State, 74 S. W. Repr. 292.
    The use of explosive shells in fishing may be prohibited: Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. Repr. 499); Taylor v. State, 55 S. W. Repr. 832.
    Taking fish otherwise than by “ hook and line, or rod held in the hand,” may be prevented: Lawton v. Steele, 152 U. S. 133 (14 Sup. Ct. Repr. 499); People v. Conrad, 83 N. W. Repr. 1012.
    Using a fyke net may be punished: Com. v. Lohman, 8 Kulp, 485; Com. v. Wetherill, 23 Pa. C. C. Rep. 59.
    The use of seines is often prohibited in the taking of fish: People v. Bridges, 142 Ill. 30 (31 N. E. Repr. 115); Com. v. Drain, 99 Ky. 162 (35 S. W. Repr. 269); State v. Blount, 85 Mo. 543; In re Yell, 107 Mich. 228 (65 N. W. Repr. 97).
    The difficulty of proof justifies prohibitions so wide that in preventing improper, they also prevent proper acts: Powell v. Penna., 127 U. S. 678 (8 Sup. Ct. Repr. 992-1257); Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159 (29 Sup. Ct. Repr. 270); N. Y. ex rel. Silz v. Hesterberg, 211 U. S. 31 (29 Sup. Ct. Repr. 10); State v. Rodman, 58 Minn. 393 (59 N. W. Repr. 1098); In re Deininger, 108 Fed. Repr. 623; People v. Dornbos, 127 Mich. 136 (86 N. W. Repr. 529); Com. v. Savage, 155 Mass. 278 (29 N. E. Repr. 468).
   Pee Cueiam,

March 7, 1910:

The question raised by this appeal was properly decided by the Superior Court and the judgment is affirmed on its opinion.


author: Pee Cubiam,

text:
    West Chester Borough, Appellant, v. Postal Telegraph-Cable Company.

      Constitutional law — Special legislation — Municipalities—License fees —Telegraph companies — Act of April■ 17, 1905, P. L. 183.
    1. The Act of April 17, 1905, P. L. 183, entitled: “An act providing for the determination by the court of common pleas of the proper county of all disputes as to the reasonableness of the amount of license fees between municipal corporations and telegraph and telephone, or light or power companies,” is not unconstitutional as special legislation because it does not include electric street railway companies within its provisions. Electric street railway companies are nothing but “street passenger railways,” and such companies are by the constitution itself put into a separate class.
    2. The findings of fact by the court below in a proceeding under the Act of April 17, 1905, P. L. 183, to determine the reasonableness of a license fee imposed by a borough on a telegraph company, when sustained by sufficient evidence, will not be reversed by the appellate court.
    Argued Feb. 8, 1910.
    Appeal, No. 320,
    Jan. T., 1909, by-plaintiff, from decree of the Superior Court, Oct. T., 1908, No.' 181, affirming decree of C. P. Chester Co., August T., 1907, No. 22, in proceeding to determine reasonableness of license fees in case of the Borough of West Chester v. Postal Telegraph-Cable Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition under the Act of April 17, 1905, P, L. 183, to determine reasonableness of license fees on telegraph poles.
    The court of common pleas, Butler, J., held that the act of 1905 was constitutional, and by decree reduced the license fees from fifty cents to thirty cents per pole.
    The Superior Court on appeal, affirmed the decree, Porter, J., delivering the following opinion:
    The borough of West Chester, by ordinance approved April 11, 1906, ordained that each telegraph, telephone, electric light and electric railway company using poles with wires strung thereon within the limits of said borough should pay an annual license fee of fifty cents for each pole used by any of said companies in any street, alley or highway of the borough. The borough, in 1907, brought this action to recover of the defendant company the amount of the license fees imposed by this ordinance upon the poles which it maintained in the streets of the borough. The defendant company presented a petition to the court, under the provisions of the Act of April 17, 1905, P. L. 183, averring that the amount of the annual license fee imposed by the ordinance was unreasonable and excessive, that for this reason a dispute had arisen between the borough and the company, and prayed the court to hear the parties and determine the amount of the annual license fees which should be paid by the company to the borough in order to properly compensate it for the necessary cost of the service performed, or to be performed by it, for the inspection and regulation of the poles of the defendant company. The representatives of the borough and of the defendant company, respectively, then entered into a written agreement providing that, in this action, “in accordance with the provisions of the Act of Assembly, approved April 17, 1905, P. L. 183, the amount of annual license fees to be paid by said company, the defendant, shall be determined by the court, at such time as to the court shall seem proper; and that the decision of the court shall have the same effect as if no suit had been begun, and as if the petition had been presented pursuant to the act of assembly aforesaid, and all subsequent proceedings by reason thereof had been in accordance with the said act.” The effect of this agreement is simply to constitute this a proceeding under the act of April 17, 1905. The court below after hearing the parties and considering the evidence which they presented entered a decree fixing the amount of the annual license fee to be paid by the defendant company upon its poles in the streets of the borough at thirty cents per pole. The borough appeals and contends that the decree of the court below should be reversed upon two grounds: first, that the Act of April 17,. 1905, P. L. 183, is unconstitutional and, second, that the evidence produced established that the charge imposed by the ordinance was reasonable and ought not to have been reduced by the court below.
    The ground upon which the borough contends that the statute is unconstitutional is that it is special legislation in that it does not apply to all public service corporations maintaining poles in the public streets. The act applies to telegraph, telephone, light and power companies, and would thus seem to embrace all companies known to modern conditions which use poles carrying wires for the purpose of the transmission of messages, light or power. The learned counsel representing the borough, contends, however, that “trolley companies” also maintain poles in the streets for the purpose of sustaining'wires carrying an electric current to be used in the movement of their cars, and that because the statute does not mention and include such - companies, it therefore does not apply to all property within the class and must be held to be special legislation, within the prohibition of the constitution. The sole objection to the statute is that because electric street railway companies are not subject to its provisions, although it is conceded that all other companies having the right to erect poles, sustaining wires carrying an electric current, are so subject, this involves a classification of subjects which renders the act unconstitutional. The fact that “trolley companies,” or electric street railways, are nothing but “street passenger railways,” and as such are by the constitution itself put into a separate class would seem to be a sufficient answer to this criticism of the statute. Article XVII, sec. 9 of the constitution, is in these words: “No street railway shalj. be constructed within the limits of any city, borough or township, without the consent of its local authorities.” The power of the municipal authority, under this constitutional grant, to give or refuse consent is unlimited and unqualified. That necessarily implies the power to impose reasonable conditions in giving consent; When the municipality, in the ordinance consenting to the construction of a street railway, imposes a condition, the street railway company, if it accepts the grant, must perform the condition. The municipality may couple its consent with a condition that the street railway company shall carry passengers at a designated rate of fare, and that a certain percentage of the dividends shall be paid to the municipality: Allegheny v. Railway Company, 159 Pa. 411; Millcreek Township v. Erie Rapid Transit Street Railway Company, 209 Pa. 300. So the municipality may by the form of its consent impose upon the street railway the burden of paving and keeping streets in repair: Duquesne Borough v. Kunze, 7 Pa. Superior Ct. 313. It cannot be seriously questioned that if a municipality imposed, as a condition of its consent, that the street passenger railway company should pay a certain rate annually for each pole sustaining the wires carrying the electric current, which furnished the power for its cars, that the company, if it accepted the grant, would subsequently be required to perform the condition. Neither the legislature nor the courts can trespass upon the discretion given absolutely by the constitution to the local bodies, in determining the conditions upon which they will consent to the construction of a street passenger railway upon the local highways. The introduction and maintenance of telegraph, telephone,, electric light and electric power poles and wires, upon the streets, as well as the construction of gas and water lines under the surface of such highways, are subjects with regard to which the legislative control of the streets is complete, and the municipalities have only such authority in regard thereto, as the legislature may choose to grant. The legislature may in terms confer upon municipal corporations the power to pass ordinances of a specific and defined character, and an ordinance passed pursuant thereto cannot be impeached as invalid because it would have been regarded as unreasonable if passed under the incidental power of the corporation, or under a grant of power general in its nature: Ligonier Valley Railroad Company v. Latrobe Borough, 216 Pa. 221. The legislature may, by general law, authorize the construction of telegraph and telephone lines upon the streets, or of natural gas lines, under the surface, and exempt those lines from local charges for police supervision by the municipalities, or limit such charges and provide that the imposition of them by the local authorities may, upon the petition of either party, be reviewed and corrected by the’ courts: Appeal of the City of Pittsburg, 115 Pa. 4; Fort Pitt Gas Company v. Sewickley Borough, 198 Pa. 201; Edgewood Borough v. Scott, 29 Pa. Superior Ct. 156. These things it may do with regard to those subjects as to which its control of the streets is not limited by constitutional restriction. The legislature might absolutely forbid the maintenance of electric light or electric power wires upon poles in the streets of a municipality, while at the same time authorizing telegraph and telephone lines to be therein maintained. The power of local municipal authorities to ’ make such discrimination is dependent upon grant by the legislature. The act of 1905 applies to all telegraph and telephone companies, in every city, borough and township in the state; it is a general act, and not special legislation within the meaning of the constitutional provision.
    We have considered the evidence which was produced by the parties at the hearing of this matter in the court below and have arrived at the conclusion that the decree of the court below, fixing the annual license fee to be paid by the defendant company at thirty cents for each pole maintained by it in the streets of the borough, ought not to be disturbed. The ascertainment of the facts involved the balancing of conflicting testimony, the credibility of witnesses, and the consideration of existing local conditions. The findings of fact by the learned judge of the court below were abundantly sustained by evidence, and we find no reason for disregarding them. The conclusions of law based on those findings of fact are in accordance with the principles recognized in the opinion of our Brother Head, in Delaware & Atlantic Telegraph & Telephone Company’s License Fees, 37 Pa. Superior Ct. 151, and upon that branch of the case nothing can profitably be added to what was there said.
    The decree of the court below is affirmed and the appeal dismissed at costs of the appellant.

      Error assigned was in declaring the act constitutional.

      William S. Windle, for appellant.

      C. Wesley Talbot, for appellee.
   Pee Cubiam,

March 7, 1910:

The decree is affirmed at the cost of the appellant on the opinion of the Superior Court.


text:
    Good’s Estate.

      Assignment — Mental competency — Use of drugs — Inadequacy of consideration — Contracts—Sale.
    1. Where a young man twenty-four years of age sells to a person with whom he has no confidential relations a vested estate of the value of about $2,600 for $500, the fact that he had for several years been addicted to the use of opium and other drugs in excess is not sufficient to avoid the assignment when those present during the transaction, including the assignee and three notaries public, testify that his appearance and condition were then normal and there is evidence to the effect that when not under the influence of drugs he was above the average in intelligence.
    2. Against imprudent and improvident contracts made by parties sui juris and of average intelligence the law affords no protection.
    Argued Feb. 8, 1910.
    Appeal, No. 327,
    Jan. T., 3909, by Robert H. Good, Jr., et al., from order of O. C. Chester Co., dismissing exceptions to auditor’s report in Estate of Julianna H. Good, deceased.
    Before Fell, C. J., Beown, Pot-tee, Elkin and Moschziskeb, JJ.
    Affirmed.
    Distribution of balance in hands of trustee under a will.
    From the record it appeared that Robert H. Good, Jr., by the death of his father on April 9, 1902, became possessed of a legacy valued at about $2,600, from the estate of Julianna H. Good. He assigned all his rights to Herman Murphy by assignment dated June 20, 1903, for $500.

      The auditor, Theodore K. Stubbs, Esq., appointed by the court to make distribution of the fund in the hands of the trustee, awarded the legacy tó the assignee, Murphy.
    Exceptions to the auditor’s report were dismissed by Hemphill, P. J., in the following opinion:
    ' The only exception pressed upon the argument of this case, was that the auditor erred in awarding to Herman Murphy, assignee of Robert H. Good, Jr., his share of the estate of $2,613.52, instead of awarding it to him.
    The exceptant’s contention is predicated upon the invalidity of the assignment to Murphy, and upon two grounds, first, mental incapacity of the assignor at the time of the execution of the assignment, second, inadequacy of price paid when a relation of confidence and trust existed between the parties.
    The auditor has found that at the time of the negotiations and execution of the assignment the assignor did not lack mental capacity but knew and understood what he was doing; and that no confidential relationship existed between him and his assignee.
    After a careful reading and consideration of all the evidence, the reports of the auditor and briefs of counsel we think his findings warranted and his conclusions right.
    Robert H. Good, Jr., when quite young (about seventeen years old), acquired a fondness for alcoholic liquors and later for opium, morphine and cocaine and at times used all to excess. Twice, at least, he enlisted in the United States navy and made trips upon government transports to Cuba, the Philippine Islands and other places and was discharged in September, 1902, as one “very good in conduct and very good in ability.”
    When under drug influence he was sleepy, stupid and reticent; when not, he was more communicative, would read, play poker and do as others do, but was superior to the average seaman in education, intelligence and manners! ■
    Upon his return to San Francisco in 1903, he still continued the use of the drugs to excess and was a great portion of the time under their influence; he spent all his savings, ran into debt, for both board and drugs, and wrote to Mr. Shipley, whom he knew was trustee of the estate of Julianna IT. Good, and received from him about $90.00 of accrued interest; when that was exhausted he called on Mr. Murphy, whose advertisement as a money loaner he had seen in a newspaper, for the purpose of procuring a loan, told him of his estate in the east, showed him Mr. Shipley’s letters and gave him his address in Philadelphia and Mr. Murphy finally agreed to loan him $150, taking as security an assignment of his interest in said decedent’s estate and advancing him from time to time small sums during their negotiations.
    Before these negotiations were completed and loan consummated, Good asked Murphy to purchase his entire interest in the estate, fixing his price for the same at $500, which Mr. Murphy agreed to do after having his attorneys make further investigation in the east, through Mr. Shipley, in regard to the same; had a deed of assignment prepared, read it to Good and handed it to him for execution and acknowledgment.
    Good selected his own notary, took the deed to him, asked him to explain the meaning of certain language used in the deed, which he did, and he then executed, acknowledged and delivered it to Mr. Murphy and received the balance due him, $444.50.
    All who met him during these transactions, the three notaries public and Mr. Murphy, saw no evidence of his being under the influence of drugs, and testified that his appearance and condition were normal and his conduct that of a man of average intelligence; and after the recéipt of this money he paid his debts, traveled through Southern California and other parts of the west and returned to his home in New York.
    That the sale was an improvident one on Good’s part may be conceded; indeed, it would have been so at any price if made, as it certainly was, to enable him to gratify his overweening passion for drugs.
    Against imprudent and improvident contracts made by parties sui juris and of average intelligence the law affords no protection.
    The authorities cited and relied upon by counsel for ex-ceptant, it seems to us, are not applicable to this case, for this was not the sale of an expectancy for an heir, but of a vested estate by a man twenty-four years of age, of good education and fair intelligence; who knew about what its value was or had the means of ascertaining it; nor were there confidential relations existing between him and Mr. Murphy; they were strangers to each other and dealt as such, he seeking Murphy, a money loaner, to procure financial assistance and dealing together as buyer and seller and consummating their deal upon the terms demanded by him.
    The exceptions are therefore dismissed, the report confirmed, and an order made to pay out in accordance with the same.

      Error assigned was in awarding the fund to the assignee.

      J. Frank E. Hause, with him Richard L. Ashhurst and William M. Hayes, for appellants.
    — Standing in the relation Murphy did to Good it was incumbent upon him to show that he took no advantage of Good, and that the arrangement was fair and equitable: Darlington’s App., 86 Pa. 512; Miskey’s App., 107 Pa. 611; Worrall’s App., 110 Pa. 349; Darlington’s Est., 147 Pa. 624; Crothers v. Crothers, 149 Pa. 201; Plankinton’s Est., 212 Pa. 235.

      A. M. Holding, for appellee.
    — The interest assigned was wholly vested and therefore inadequacy of price is no evidence of fraud and does not invalidate the transaction: Davidson v. Little, 22 Pa. 245; Whelen v. Phillips, 151 Pa. 312; Phillip’s Est., 205 Pa. 511; Singer’s Est., 217 Pa. 295.
    There is no evidence in this case to warrant the conclusion that Good was unsound mentally, unable, when not under the immediate influence of drugs, to understand what he was doing, or that at the time of any of these transactions he was under the influence of any drug: Keating’s App., 2 Monaghan, 4; Walton’s Est., 194 Pa. 528; Harmony Lodge’s App., 127 Pa. 269; Graham v. Pancoast, 30 Pa. 89; Moorhead v. Scovel, 210 Pa. 446; Nace v. Boyer, 30 Pa. 99; Kelly’s App., 108 Pa. 29; Dugan’s Est., 6 Pa. Dist. Rep. 222; Wright’s Est., 10 Pa. Dist. Rep. 133; aff’d in 202 Pa. 395; Tasker’s Est., 205 Pa. 455; Bull’s Est., 12 Pa. Dist. Rep. 393; Levis’s Est., 140 Pa. 179.
   Per Curiam,

March 7, 1910:

The order dismissing exceptions and confirming the report of the auditor is affirmed on the opinion of the learned president of the orphans’ court.