text:
    Roessing v. Pittsburg Railways Company, Appellant.

      Malicious prosecution — Probable cause — Province of court and jury— Advice of counsel.

    1. What is probable cause, and whether it exists under an admitted or clearly established state of facts, is a question of law for the court.
    2. In an action by a street railway conductor against a street railway company which had formerly employed him, to recover damages for an alleged malicious prosecution, it is the duty of the court to say as a matter of law that there was probable cause for the prosecution5 where it appears that five men of good character watched the conductor at various times, and reported that he had failed to ring up numerous fares, and that the company did not begin the prosecution until it was advised to do so by its counsel, after all the facts had been laid before him.
    Argued Oct. 29, 1909.
    Appeal, No. 65, Oct. T., 1909, by-defendant, from judgment of C. P. No. 3, Allegheny Co., May Term, 1904, No. 373, on verdict for plaintiff in case of Harry Roessing v. Pittsburg Railways Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for an alleged malicious prosecution. Before Evans, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $2,500, upon which judgment was entered for $2,000 all above that amount having been remitted.

      Error assigned was in refusing binding instruction for defendant.

      William A. Challener, with him Clarence Burleigh and James C. Gray, for appellant.
    The mere fact of acquittal on a criminal charge does not, in an action against the prosecutor for malicious prosecution, establish want of probable cause, nor raise an irrebuttable presumption of the want of probable cause. If the testimony on the part of the defendant is undisputed that probable cause existed, the court may declare the result of the testimony as matter of law: Robitzek v. Daum, 220 Pa. 61.
    January 3, 1910:
    This case comes squarely within the rule that a jury ought not to be permitted to infer malice from the mere want of probable cause, when by other circumstances, it is disproved, and the case was not a proper one for the court to charge, as it did, that “in the absence of probable cause the jury may find from that fact alone that the prosecution was malicious: ” Emerson v. Cochran, 111 Pa. 619.
    Advice of counsel is evidence not to prove probable cause, but to rebut the inference 'of malice arising from the want of probable cause: Emerson v. Cochran, 111 Pa. 619.

      Body P. Marshall, with him Thomas M. Marshall, for appellee.'
    The case was properly submitted to the jury: Auer v. Mauser, 6 Pa. Superior Ct. 618; Grohmann v. Kirschman, 168 Pa. 189; MacDonald v. Schroeder, 214 Pa. 411; Munns v. Dupont, 3 Wash. C. C. 31; Melvin v. Melvin, 130 Pa. 6; Coyle v. Snellenburg, 30 Pa. Superior Ct. 246; Greeney v. Water Co., 29 Pa. Superior Ct. 136; Bell v. R. R. Co., 202 Pa. 178.
   Opinion by

Mr. Justice Potter,

Before the plaintiff in this case could succeed, he was bound to show that the defendant had no probable cause for thinking that he was guilty of the offense for which it prosecuted him. He was bound to show an abuse of the privilege of prosecution, and that the defendant had acted in bad faith. In the present case the plaintiff met this burden only to the extent of proving his arrest, and that he was held by the magistrate to await the action of the grand jury, his indictment and trial, and his acquittal. Defendant admitted responsibility for the arrest and prosecution of the plaintiff, but claimed that there was probable cause for its action, and therefore it could not be held liable for damages in the present case.

The circumstances which led to the arrest and prosecution of the' plaintiff were as follows: The plaintiff was a conductor in the erpploy of the defendant company, and was in charge of a street car. W. H. O’Brien, the employment agent of the company, testified for the defendant that operatives were employed to ride in the cars and check the reports of the conductors. The operative counts' the passengers and sees whether they are all registered. His report shows whether the conductor is turning in all fares collected by him or not. The employment agent testified that in this case three operatives made separate reports to him of what they had observed on plaintiff’s car. These three reports made on different days and by different men, each showed a discrepancy between the fares collected and those registered by the conductor. In the first report there was a deficit of ten fares; in the second of twenty-one fares, and in the third of two fares. The operatives employed were all known to witness to be of good reputation for truth and veracity, and also to be careful men. The witness testified that he believed their reports. After having received these reports from the operatives, witness detailed two special officers to ride on plaintiff’s car from one end of the line to the other, in order to verify the previous reports received from the operatives. They did so on two successive days, and each reported a deficit of eleven fares on one day, and of fifteen upon the other. The witness showed that the reports of the operatives and the special officers were submitted to James Francis Burke, Esq., as special attorney for the company, and that on his advice the prosecution was instituted. There was, however, a failure to convict in the criminal court. In the present case the judge refused to give binding instructions for the defendant, and submitted the question of probable cause for the prosecution, to the jury.

The main question raised here by the assignments of error, is whether or not, under the uncontradicted evidence, probable cause for the action by the defendant was so clearly shown, that the trial judge should have taken the case from the jury, and directed a verdict for the defendant. 'There was no dispute as to the facts which induced the prosecution, and therefore the responsibility for deciding whether these facts constituted probable cause was upon the court, and should not have been shifted to the jury. The rule is well settled. Thus in the late case of Robitzek v. Daum, 220 Pa. 61, it is said, “What is probable cause, and whether it exists under an admitted or clearly established state of facts, is a question of law for the court.” And in Fisher v. Forrester, 33 Pa. 501, Justice Woodward said (p. 508): that the case stated was “a case in which the court ought to have taken the question of probable cause away from the jury, and ruled that under the evidence, if believed by the jury, the defendant had probable cause.” In Bernar v. Dunlap, 94 Pa. 329, it was held that plaintiff’s own evidence showed the existence of probable cause, and that a nonsuit was properly entered. In McCarthy v. De Armit, 99 Pa. 63, Justice Trunkey said (p. 69): “What facts and circumstances amount to probable cause is a question of law. Whether they exist in any particular case is a question of fact. Where the facts are in controversy, the subject must be submitted to the jury, in which event it is the duty of the court to instruct them what facts will constitute probable cause, and submit to them only the question of such facts. This principle is well settled. If all the evidence is insufficient to establish probable cause, the court shall so instruct the jury, for they are not at liberty to find a fact without evidence; and if the admitted facts amount to probable cause, the court shall direct a verdict for the defendant, even if his malice were clearly proved.” In Cooper v. Hart, 147 Pa. 594, and in Mahaffey v. Byers, 151 Pa. 92, judgments on verdicts for the plaintiff were reversed without venire, on the ground that the uncontradicted evidence established probable cause. And in Huckestein v. Ins. Co., 205 Pa. 27, it was said (p. 31): “The instruction therefore that the prosecution was without probable cause was clearly right, and it was the duty of the court to give it. The question of probable cause is one of law for the courts, where the facts relied on to constitute it are admitted or established beyond controversy.” In the case of Bryant v. Kuntz, 25 Pa. Superior Ct. 102, judgment on a verdict for the plaintiff was reversed without a venire. Orlad y, J., there said (p. 106): “The inquiry as to the probable cause goes back to the commencement of the prosecution, and it relates to the facts then known and as they then appeared. It is not confined to the truth of the matters that led to the prosecution, but extends to their appearance as indicating the guilt or innocence of the accused. If probable cause is shown, it matters not whether the motive of the prosecutor be praiseworthy or malicious; and the undisputed evidence in this case made it the duty of the court below to affirm the defendant’s seventh point and to direct a verdict for the defendant.”

Under these established principles, it was clearly the duty of the trial judge to declare the law upon the admitted facts in this case. The uncontradicted evidence offered by the defendant, in part documentary, shows that O’Brien, the agent, who instigated the prosecution, placed three different “operatives” upon plaintiff’s car, on different days, for the purpose of learning whether he was accounting for all the fares collected. The evidence further shows that they were-men of good character, and that O’Brien believed their reports. Each operative made a written detailed report, and each report showed that plaintiff had not registered all the fares collected during the period of observation. But O’Brien took further precautions before acting. He sent two special officers on two different days, to ride with plaintiff from one end of the line to the other, to keep account of the fares collected and registered. These officers made written reports which were in evidence, and they agreed that on both the trips which they took on plaintiff’s car, he collected fares which he did not register. Even then, O’Brien did not act until advised by counsel for the company, that he would be justified under the evidence in having a warrant sworn out for plaintiff’s arrest. It is difficult to conceive of circumstances which would constitute more reasonable grounds of suspicion, or would be more likely to lead a reasonable and prudent man to believe in the guilt of the plaintiff. In fact, it is hard to understand how any reasonable man could avoid the conclusion, that the circumstances shown were strong indications of the guilt of the accused person.

If such circumstances as those here detailed were not sufficient to justify the defendant in invoking the protection of the law, through the criminal courts, then the hope of any such protection is a vain thing. The trial judge erred in not pronouncing upon the facts. He should have given binding instructions for the defendant upon the ground that probable cause for the ■ prosecution was clearly shown, by the iincontradicted evidence in the case.

The judgment is reversed, and is here entered for the defendant.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Perret, Appellant, v. Lepper.

      Execution — Decedents’ estates — Real estate — Orphans’ court sale.

    Where the defendant in a judgment has died, leaving personal property insufficient for the payment of his debts the plaintiff may enforce his lien against the decedent’s estate by issuing execution out of the court in which the judgment was entered. The latter court, in the exercise of a sound discretion, may stay the execution so as to allow the sale to be made under the jurisdiction of the orphans’ court, but it is not required to do so, and it will not do so of its own motion.
    Argued Oct 29, 1909.
    Appeal, No. 121, Oct. T., 1909, by plaintiffs, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 622, on verdict for defendant in case of Frederick Perret, trustee under the last will and testament of Frederick Perret, deceased, et al. v. Christian Lepper.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in the fourteenth ward of the city of Pittsburg. Before Kennedy, P. J.
    At the trial the following offer was made :
    Counsel for defendant also offer in evidence the record fi. fa. No. 172, January Term, 1905, being an execution on the judgment No. 844, January Term, 1905.
    Objected to on the part of the plaintiffs in so far as it relates to the execution of the writ and the sheriff’s return of the sale of the real'estate; on the ground, first, that it is incompetent and irrelevant; second, as being an unlawful sheriff’s sale of real estate, because there was not sufficient personal assets of decedent to pay the demands upon the decedent’s estate; third, as being an unlawful sheriff’s sale of real estate procured through the fraud and deceit of the plaintiffs in the judgment, who is the defendant in this ejectment, in concealing from the court the fact that the personal assets of decedent’s estate were insufficient to pay all just demand upon decedent’s estate, when if such fact had been made known the court would have been required by law to stay all proceedings upon the execution until the executor should make application to the orphans’ court for the sale of the real estate of decedent. It is further objected to unless followed by proof that the personal assets of decedent’s estate were sufficient to pay all just demands against decedent’s estate.
    Objection overruled.
    To which ruling of the court counsel for plaintiffs excepts.
    Exception allowed and bill sealed. [8]
    Plaintiffs presented this point:
    1. That the personal assets of decedent’s estate being insufficient to pay the just demands upon decedent’s estate the court of common pleas had no jurisdiction to proceed to a sheriff’s sale on the execution of the real estate of decedent, but the jurisdiction was in the orphans’ court to decree a sale of the real estate of decedent to be made by the executor, and a sale by the sheriff of the real estate of decedent was unlawful and void. Answer: Refused. [1]
    Verdict and judgment for defendant. Plaintiffs appealed.

      Errors assigned, inter alia, were (1) refusal of plaintiffs’ points; (7) in giving binding instructions for defendant; (8) ruling on evidence, quoting the bill of exceptions.

      January 3, 1910:

      Morton Hunter, for appellants.
    The common pleas court had no jurisdiction to sell decedent’s real estate when the personal assets were insufficient to pay all just demands upon the decedent’s estate: Everman’s App., 67 Pa. 335; Hammett’s App., 83 Pa. 392.

      W. H. S. Thomson, with Mm Frank Thomson, for appellee.
   Opinion by

Mr. Justice Stewart,

The orphans’ court may direct a sale of decedent’s real estate for the payment of debts only where the personal assets are insufficient for that purpose; but the right of a judgment creditor to enforce Ms lien against such real estate, when obtained in the lifetime of the debtor, rests on no such condition. The court out of wMch the latter execution issues may stay the execution so as to allow the sale to be made under the jurisdiction of the orphans’ court; but it is not required to do so. Whether it shall or shall not, rests entirely within the discretion of the court, having regard to the circumstances of the case. If it be made to appear that a stay will be without prejudice to the judgment creditor, and that other interests will likely be advantaged by a sale made through the orphans’ court, a stay should be granted; if otherwise, there could be no occasion for interference. In any event the court having control of the execution cannot be expected to act of its own motion. The parties in interest, creditors or distributees, who tMnk that they will be advantaged by a sale other than by the sheriff, may so represent to the court, and ask that the execution be stayed: Hammett’s App., 83 Pa. 392. But if they remain silent and allow the execution to proceed to a sale, their opportunity to require an orphans’ court sale is irrevocably lost. A sheriff’s vendee under such sale acquires as good a title in every respect as would a vendee had the property been sold under an order of the orphans’ court. This is but another way of saying the power of sale in the orphans’ court is not exclusive. “If it be supposed that no sale by execution can ever be made on a judgment against an estate, after the death of the ancestor, it is a mistake. It can be always made if there be no application to prevent it, and the title will be good:” Gamble v. Woods, 53 Pa. 158. The case calls for no further discussion. The assignments of error are overruled and the judgment affirmed.


author: Mr. Justice Potter,

text:
    Bell’s Estate
    (No. 1).

      Executors and administrators — Surcharge—Asseis—Evidence.
    An administrator is only answerable for such assets of the estate as actually come into his possession, or which in the discharge of his duty he is bound to secure; and debts and real estate are not properly chargeable to an administrator.
    Argued Oct 29, 1909.
    January 10, 1910:
    Appeal, No. 97, Oct. T., 1909, by-James McF. Carpenter and W. B. Secrist, executors of James M. Bell, deceased, from decree of O. C. Allegheny Co., Sept. T., .1908, No. 42, dismissing exceptions to adjudication in Estate of Thompson Bell, deceased.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to adjudication.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing exceptions to adjudication.

      J. McF. Carpenter, with him George N. Chalfant and William, B. Secrist, for appellants.

      C. C. Dickey, with him W. K. Shiras, for appellee.
   Opinion by

Mr. Justice Potter,

The appellants in this case urge that the court below erred in its conclusions on the facts. Our duty is therefore limited to determining whether there was evidence sufficient to sustain the items of surcharge to which exception has been taken. As set forth in the second assignment of error these items of surcharge are:

a. To the debit $17,235.34 same being composed of three items, to wit: balance Western Bank $2,235.34; payment to Fleming Brothers, November 26, 1889, $10,000; payment made to James M. Bell, January 28, 1892, $5,000.

b. To the charge of $20,000 for Stowe township lots.

c. To the charge of $28,483.78 interest.

d. To the surcharge of $6,000 for Colorado bonds.

Taking up these items in detail, and referring to the evidence adduced in support of each item of surcharge, it appears that the first item of $2,235.34 is the result of a statement prepared by the bookkeeper and printed in connection with the account, of the assets and liabilities of the so-called Western Bank. This was only a name by which the decedent, Thompson Bell, chose to do business. The statement represented, therefore, the assets and liabilities of Thompson Bell, and as the statement stands, the liabilities exceed the assets. Why the liabilities or debts of Thompson Bell should be charged to his administrator is not apparent. Such of his assets as actually came into the hands of the administrator were of course properly chargeable to him. But among the list of assets appears certain real estate marked Stowe township lots, and this real estate would not seem to be properly chargeable to an administrator. However correct this statement of the condition of Thompson Bell as a private banker may have been from the theoretical standpoint of a bookkeeper, it does not seem to be a proper basis upon which to charge his administrator, who is only answerable for such assets of the estate as actually come into his possession, or which in the discharge of his duty he is bound to secure.,

Thompson Bell died September 7, 1886. There is no date attached to the statement of the condition of the Western Bank, filed by Mr. Cree, the bookkeeper, but presumably it shows the condition of his banking business, as it was at the death of Thompson Bell, some ten years prior to the beginning of the administration covered by the account filed in this case. We can find nothing in the evidence to justify the injection into this account of this statement of the condition of the so-called Western Bank, which as a matter of fact means simply the condition of that portion of the business of Thompson Bell at the date of his death. It would not necessarily follow that the assets called for by the books at the time of testator’s death, were actually on hand, or could be secured by the administrator and converted into cash at their book value. Evidence as to the facts should have been given or an inventory produced and filed. The exception to this item of surcharge, $2,235.34, is therefore sustained.

The second item of surcharge, to which exception was taken, the loan of $10,000 to Fleming Brothers, was stricken out of the final decree by the court below.

With regard to the next item, being for a payment apparently made by James M. Bell of $5,000 to himself, the books show the entry, and show no consideration therefor, so that we cannot say that there was no evidence to support this surcharge. The specification alleging error in this respect is therefore dismissed.

With regard to the item of surcharge of $20,000 for the proceeds of Stowe township lots, the evidence is so confusing that we are unable to say from our examination of the record, whether or not it supports the surcharge. It apparently does not. Mr. Cree, the bookkeeper, when asked with reference to the Stowe township lots, whether the estate of James M. Bell was chargeable with $20,000, or is chargeable with $1,000, testified: “If you lose entire sight of the credit of the bookkeeping and take the actual facts, the estate of James M. Bell is chargeable with $1,000. As the books stand he should be charged with $20,000, and given credit for $19,000.” Turning again to the account, we find that the administrator has been charged with this $20,000, but we fail to find any corresponding item of credit for the $19,000 to which as the bookkeeper said, he was entitled, unless we include within the account the item of real estate, being the Stowe township lots, set out among the assets of the so-called Western Bank. This statement of the condition- of the banking business, in our opinion, as wé said above, has no proper place in connection with this account. This item of $19,000 of a difference, is too large to be permitted to stand upon any such uncertain testimony as this. Unless it clearly appears that the credit has been given under some head which is not apparent upon examination, this item of surcharge should be reduced by that amount. The transaction seems to have been treated as a mere matter of bookkeeping, but if the fund resulted from the actual sale of real estate, how did it get into the hands of the administrator?

With regard to the surcharge of 16,000 for Colorado bonds, the transaction as described by the witness Mr, Cree, appears to be substantially that Mr. Bell took the bonds from the estate on account of his distributive share. Afterwards he undertook to charge them back to the estate, and credit himself with the purchase price; but did hot return the bonds. They turned out to be worthless. Appellee excepted to this item of credit, and no evidence was offered to sustain it, so it was properly disallowed. Appellants do not attempt in their argument to sustain their exception to this item.

The amount of the surcharge of interest on funds due from the estate of James M. Bell, must of course be modified in accordance with the actual amount of the funds which may finally be found to have been in his hands, and due and payable to the estate of Thompson Bell, deceased.

We think the account should be restated, so as to show clearly and definitely the assets which actually came into the hands of James M. Bell as administrator d. b. n. c. t. a. of the estate of Thompson Bell, deceased, or which, in the proper discharge of his duty, he should have collected.

The decree of the orphans’ court is reversed and the record is remitted for further proceedings.


text:
    Bell’s Estate
    (No. 2).

      Executors and administrators — Surcharge—Loan.
    An administrator d. b.'n. c. t. a. will not be surcharged with a loss resulting from a loan where it appears that the loan was made by the sole executrix who preceded him in the trust, and that he had nothing to do with the transaction.
    Argued Oct. 29, 1909.
    January 3, 1910:
    Appeal, No. 208, Oct. T., 1909, by Harmar D. Denny, Administrator d. b. n. c. t. a. of the estate of Thompson Bell, deceased, from decree of O. C. Allegheny Co., Sept. T., 1908, No. 42, dismissing exceptions to adjudication in Estate of Thompson Bell, deceased.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The opinion of the Supreme Court states the case.

      Error assigned was decree of the court.

      C. C. Dickey, with him W. K. Shiras, for appellant.

      J. McF. Carpenter, with him George N. Chalfant and William B. Secrist, for appellees.
   Opinion by

Mr. Justice Potter,

In this appeal, error is alleged in the final decree of the orphans’ court, by reason of its striking out the surcharge of the amount of a loan to Fleming Brothers, of $10,000 and interest. The court below gave no reason for sustaining the exception to this surcharge, but the record shows that the loan in question was made when Emma M. Bell was sole executrix; and that when Fleming Brothers failed, the dividend upon the indebtedness in question was collected by Emma M. Bell. It does not appear that James M. Bell, as administrator, had anything to do with the transaction. We think the court below was right in refusing to surcharge for this item. At any rate, the question was one of fact, and there is evidence to sustain the finding.

The assignments’ of error are overruled, and this appeal is dismissed.


author: Per Curiam,

text:
    Robison, Appellant, v. Alpern.

      Landlord, and tenant — Lease—Repairs.
    A lease provided “that tenant will pay for all necessary repairs as marked out above, except where building or any part thereof is condemned through dangerous walls, or wall becoming so through any accident." A portion of the wall was condemned by the building inspectors, and the landlord refused to make the repairs. The tenant having refused to pay, the landlord entered judgment on the warrant of attorney as for breach of contract to pay rent. The court below opened the judgment on a petition averring that the clause was inserted to meet such contingency by providing for the making of such repairs by the landlord and that there was a verbal understanding to this effect. The order of the lower court was affirmed by an equally divided court.
    Argued Oct. 29, 1909.
    Appeal, No. 116, Oct. T., 1909, by plaintiff, from order of C. P. No. 2, Allegheny Co., April T., 1909, No. 934, making absolute rule to open judgment in case of William Robison v. Bennett Alpern.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to open judgment.
    Frazer, P. J., filed the following opinion:
    The judgment in ejectment was entered in this case upon a warrant of attorney contained in a lease for the premises in controversy, made by plaintiff’s predecessor in title to defendant, the term having four years and two months to run, the judgment being entered upon defendant’s failing to pay the rent due for the month of March. The petition to open the judgment sets up a verbal understanding between lessor and lessee, had at the time of executing the lease and explanatory of a clause relating to the making of repairs. The clause referred to provides that all necessary repairs shall be paid for by the tenant, “except where building or any part thereof is condemned through dangerous walls, or wall becoming so through any accident.” This language, defendant in his petition says, was inserted to meet the contingency which has arisen, namely, the condemning of a portion of the walls of the building by the building inspector of the city of Pittsburg, and provide for the making of such repairs by the owner at his expense. The clause, it seems to us, would so indicate. If the owner was not to make the repairs to the walls why except them from the repairs to be made by the tenant? The averments of the petition not being denied by plaintiff, we are of opinion they are sufficient under the circumstances in this case to warrant us in opening the judgment.
    January 3, 1910:
    And now, April 6, 1909, rule absolute. .

      Error assigned was the order of the court.

      S. S. Robertson, for appellant.

      Charles H. Sachs, with him Benj. L. Hirshfield, for appellee.
   Per Curiam,

The judgment is affirmed by a divided court.


author: Mr. Justice Elkin,

text:
    Shadowski v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Res gestee — Evidence.
    In an action against a street railway company to recover damages for personal injuries to a child, it is reversible error on the part of the trial judge to permit a witness for the plaintiff who was in no way connected with the accident, either as an actor or a participant, to testify to a voluntary profane, exclamatory remark made by himself prior to the happening of the accident, and to no one in particular and not in the presence of the motorman, or conductor, or injured child, or other persons standing by at the time or immediately after the accident occurred.
    Argued Oct. 29, 1909.
    January 3, 1910:
    Appeals, Nos. 57 and 58, Oct. T., 1909, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1904, No. 177, on verdict for plaintiffs in case of Mary Shadowski by her next friend, Adam Shadowski, and Adam Shadowski in his own right v. Pittsburg Railways Company.
    Before Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries to a child. Before Swearingen, P. J.
    At the trial a witness for the plaintiff was asked this question: “Q. What remark did you make at that time?”
    Objected to by counsel for defendant as being incompetent, irrelevant and immaterial, and not part of the res gestse.
    The Court: The objection is overruled.
    To which ruling of the court counsel for defendant requests an exception.
    Exception allowed and bill sealed. [1]
    “A. I says, 'Look at that damn fool, he will run over that little girl up there.' That is what I said. He did run over her, too."
    Verdict and judgment for Mary Shadowski for $7,500 and for Adam Shadowski for $1,534. Defendant appealed.

      Error assigned amongst others was ruling on evidence, quoting the bill of exceptions.

      James C. Gray, with him Clarence Burleigh and William A. Challener, for appellant.

      Body P. Marshall, with him Thos. M. Marshall, for appellees.
   Opinion by

Mr. Justice Elkin,

At the trial in the court below a witness produced by plaintiffs and in no way connected with the occurrence either as actor or participant was permitted to testify under objection to a voluntary profane exclamatory remark made by himself prior to the happening of the accident and to no one in particular. The remark was not made in the presence of the motorman, or conductor, or injured child, or other persons standing by at the time or immediately after the accident occurred. The witness was on the sidewalk returning from his work, saw the car rapidly approaching while the little child was running or playing on the track and made the remark in question. It was offered and admitted as part of the res gestee, and this has been assigned for error. I Under the doctrine of res gestee those circumstances which are the undesigned incidents of the occurrence upon which the suit is based may be proven when illustrative of the act about which complaint is made. It is true also that these incidents may be separated from the act by a lapse of time more or less appreciable, but they must grow out of and be in a legal sense immediately connected with the litigated act. They may consist of remarks made at the time by an actor, participant, and perhaps under exceptional circumstances by a bystander, if the party making the remark has to do with or is concerned about the occurrence. It is imperatively required, however, that they should be the necessary incidents of the litigated act in order to make such remarks admissible as testimony. In the case at bar the exclamatory remark did not emanate from the act, nor did it have any causal connection with it. It was not made by an actor, or participant, or by anyone connected with the occurrence. It was made by a person walking on the pavement, a considerable distance from the point of accident, who saw a car approaching and noticed a little child on the track. It was not made after the accident but before it happened and not by anyone concerned. For these and other reasons which might be stated the present case is clearly distinguishable from Call v. Easton Transit Co., 180 Pa. 618, principally relied on by counsel for appellees. Again, it may be added, it is an elementary and essential rule of evidence that the best testimony available should be produced in every case. The direct and positive testimony of the witness who made the exclamatory remark describing what he saw and what happened at the time of the accident is the best evidence of what occurred. The appellees have the benefit of the direct and positive testimony of this witness and should not be permitted to introduce an exclamatory remark in the nature of a partisan serving declaration when no proper evidential purpose is served by so doing. We find no case in our reports which properly understood can be construed as an authority for the admission of this testimony as part of the res gesta). It- would be a dangerous precedent to establish, and would open the door wider than has yet been done for the introduction of this kind of evidence. It should have been excluded on both reason and authority, and it was error not to do so. Some complaint is made as to the adequacy of that part of the charge which relates to the proper measure of damages. It is unnecessary to discuss this question at length because when the case again comes on for trial, counsel and court will have the opportunity to more fully consider and define what is meant by present worth and capitalization of the future in the verdict.

The first assignment of error is sustained, judgment reversed and a venire facias de novo awarded.


text:
    Kelly, Appellant, v. Pennsylvania Railroad Company.

      Will — Trusts and trustees — Spendthrift trust — Devise in fee.

    Where a testator devises a one-fourth interest in land to a trustee on a spendthrift trust to one of his sons and “his heirs,” the son to have the “usufruct and profits,” the trustee to sell only at the request of the son, and the interest is given without limitation over, the son takes an equitable fee.
    Argued Oct. 29, 1909.
    Appeal, No. 171, Oct. T., 1909, by plaintiffs, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1908, No. 770, for defendant on case stated in suit of Clara D. Kelly et al. v. The Pennsylvania Railroad Company.
    Before Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.

      Case stated in ejectment for an undivided interest in land in the twenty-fourth ward of the city of Pittsburg.
    Ford, J., stated the facts to be as follows:.
    Plaintiffs and defendant company both claim under John McClurg, who, being seized of the land described in the writ, died testate, the controversy in this case arising out of the construction of his last will and testament. The will is dated May 13, 1854. The clause in the will which gives rise to the dispute is as follows:
    “Item — After my wife, Margaret Jane’s, death, I give and devise the real estate upon which I now reside and have given and devised to my wife during her natural life, to my son Thomas J. McClurg, my son Joseph M. McClurg, my son Washington McClurg and to John S. Hamilton, their heirs and assigns, forever, as follows, to-wit: To said Thomas J. McClurg the one undivided fourth of said farm, to Joseph McClurg the one undivided fourth of said farm; to Washington McClurg the one undivided fourth of said farm; to John S. Hamilton the one undivided fourth of said farm, on which I now reside, for the use and benefit of my son, William McClurg, his heirs, to be held in trust for the benefit of said William, so that the same shall be free from all debts and liabilities of the said William McClurg, and to permit the said William McClurg to possess and enjoy the usufruct and profits thereof — and the said Trustee is hereby authorized and empowered to sell and convey the undivided one-fourth part of said farm or premises, at the request of said William McClurg and to invest the proceeds of any such sale upon similar trusts in other lands, or to and for the payment of the interest thereof to the said William McClurg, his own receipts, as the said Trustee may deem such sale, investments and payments most expedient for the benefit of the said William McClurg. And in the event of the decease of any of my said sons, namely, Thomas J., Joseph or Washington McClurg, without lawful issue, the shares of said deceased shall be vested in the survivor or survivors of my said sons last named in equal shares, or their heirs and assigns. All the rest and residue of my estate, real, personal and mixed, not hereinbefore disposed of after paying my debts, legacies and funeral expenses — I give, devise and bequeath to my three last named sons, his or their heirs and assigns, share and share alike.”
    January 3, 1910:
    William McClurg, devisee, died April 8, 1890. The question to be determined is, What estate vested in William McClurg by the foregoing will? The plaintiffs claim, that by the terms of the will, a spendthrift trust was created in favor of William McClurg, and that upon his death, the real estate vested in the residuary legatees, viz., Thomas-J., Joseph and Washington McClurg, or their heirs — among whom are the plaintiffs. The defendant, that William McClurg, by the will took a legal or equitable fee. If he took a fee, plaintiffs claiming under the residuary clause have no title to the land in controversy.
    The court entered judgment for defendant on the case stated.

      Error assigned was the judgment of the court.

      Charles W. Jones, for appellants.

      James R. Miller, of Patterson, Sterrett & Acheson, for appellee.
   Per Curiam,

The paramount intention of the testator, John McClurg, was that his son William should take a fee in an undivided fourth of his farm. Though the devise passed the legal title to a trustee, it was to the trustee for the use and benefit of William McClurg and “his heirs.” This gave an equitable fee to William. What follows discloses no intention that this absolute devise should be cut down to a mere life estate. The father simply wished to throw around the devise to his son and “his heirs” some protection against the son’s improvidence. He had an unquestioned right to do so: Spring’s Est., 216 Pa. 529; and in doing so there was nothing inconsistent with the absolute devise: Boies’s Est., 177 Pa. 190. Nothing but a clearly expressed intention following the absolute devise to reduce it to a spendthrift trust, limited to the life of William, can have such an effect. No such intention appears. On the contrary, William is given the “usufruct and profits” of the interest in the farm, and there is no devise over upon his death. The trustee is to sell only at the request of William. As to the interests of the other three sons, Thomas J., Joseph and Washington, the direction is that if either shall die without lawful issue his interest shall vest in the survivor or survivors. But there is no provision as to William’s share upon his death. This was because the testator had previously devised it to him and his heirs. It could not, therefore, constitute a part of the residuary estate of the testator.

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


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    Hermann’s Estate.

      Executors and administrators — Inventory—Ownership of property — ■ Jurisdiction of orphans’ court — Findings of fact.

    1. Presumably every item of property an executor has included in his inventory belongs to the estate, and for all such he must account. The inventory is an admission on his part that the property embraced in it came into his possession as a legal representative of the testator. If at testator’s death the property is shown to have been in his possession, or if for any other reason it is presumably his, a mere denial of ownership unsupported, will not oust the court of its jurisdiction, but the court may proceed with the investigation so far as to inform itself whether the denial is made in good faith and a substantial dispute exists.
    2. Where a son as the executor of his father includes in the inventory the stock and merchandise of a store, but in his account, and at the audit, claims that he was a partner in the merchandise and the stock and owned half of it, the orphans’ court has jurisdiction to determine the question of ownership; and if it finds as a fact from the admissions of the son and other competent testimony, that the son was a partner in the profits only, and not in the ownership of the stock and merchandise, such finding will not be reversed by the Supreme Court.
    3. Where a son who was the executor of his father, and who had an interest in the profits of his father’s business renews a current note to his father two weeks after the latter’s death, and the makers of the noto eight months after the testator’s death fail, resulting in a loss on the note, the son cannot be surcharged with the loss, if it appears that the note was the last of a long series of renewals by the testator himself, that at the time it was renewed the makers were in the best credit, were apparently solvent, and the accountant had no reason to antieijiate their failure.

      Executors and administrators — Misconduct—Compensation—Disallowance of commissions.

    4. An executor’s commissions are properly disallowed where it appears that the accountant took upon himself the exclusive management of the estate, denying to his coexecutor the right of participation; that he managed it in total disregard of the most ordinary business methods; that his exhibits were untrustworthy upon their face, several of them being absolutely incorrect, and others which he should have produced he asserted were lost; that he claimed as his own property that which undoubtedly belonged to the estate; and that after several years he left the estate in such confusion and uncertainty, that only the most thorough and expert examination could reveal the true situation.
    Argued Oct. 29, 1909.
    Appeal, No. 141, Oct. T., 1909, by John A. Hermann, Jr., Executor, from decree of O. O. Allegheny Co., March T., 1907, No. 106, dismissing exceptions to adjudication in Estate of John A. Hermann, deceased.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Modified and affirmed.
    Exceptions to adjudication. Before Over, J.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing exceptions to adjudication.

      Charles W. Dahlinger, with him J. M. Stoner, for appellant.
    -The surcharge for loss on Groetzinger note was erroneous; Keller’s App., 8 Pa. 288; McNair’s App., 4 Rawle, 148; Neff’s App., 57 Pa. 91; Moyer’s Est., 1 Pears. 407; Maples v. Hicks, Brightly N. P. 56; Overholt v. First Nat. Bank of Mt. Pleasant, 82 Pa. 490; Barnhart v. Seitz, 27 Pitts. L. J. 239.
    In the absence of fraud or unfairness, an administrator is entitled to reasonable commissions for his services, although he may have been negligent in the performance of them: McManus’s Est., 3 Pa. Dist. Rep. 183; Woodward’s Est., 2 Chest. County Reps. 159; Robison’s Est., 5 Phila. 99; Williamson’s Est., 2 Pa. C. C. Rep. 221; Miller’s App., 8 Atl. Repr. 864; Heft’s App., 19 W. N. C. 302; Hay’s Est., 32 Pitts. L. J. 375; Bierman’s Est., 5 York, 57; Norris’s App., 71 Pa. 106.
    January 3, 1910:

      J. L. Ritchey, with him W. H. S. Thomson and Frank Thomson, for appellees.
    The court was justified surcharging the accountant for the loss on the Groetzinger note: Charlton’s App., 34 Pa. 473; Johnston’s Est., 9 W. & S. 107; Baer’s App., 127 Pa. 360; Stewart’s App., 110 Pa. 410; Reese’s App., 116 Pa. 272; Stewart’s Est., 137 Pa. 175.
    Where there has been gross negligence resulting in peril, expense and loss to the estate, or where fraud or bad faith are shown, commissions will not be allowed: Dickson’s Est., 21 Pitts. L. J. 109; Swartzwalter’s Account, 4 Watts, 77; Berryhill’s App., 35 Pa. 245; Clauser’s Est., 84 Pa. 51; Milligan’s App., 97 Pa. 525.
   Opinion by

Mr. Justice Stewart,

The assignments of error, bring to our attention many questions of fact, but very few of law. The presumption in favor of the correctness of the court’s findings, is much strengthened in this case by the fact that the audit extended over a whole year, the hearing being interrupted only from time to time as it became necessary to afford counsel on either side opportunity to examine the many different exhibits offered in evidence. The record is voluminous of course, and the lengthy and exhaustive opinion of the learned judge who presided, covering more than sixty pages, shows that the case in all its details had. his fullest consideration. Nevertheless, certain of his findings being challenged, the law imposes on us the duty of reviewing the evidence, not, however, to determine whether in our judgment they are sustained by a preponderance of the evidence, but whether the evidence left the facts disputable. And this we have tried to do, with the result that, after a somewhat prolonged and careful investigation, we are entirely convinced that in every instance, except that hereinafter referred to, the finding rests on sufficient evidence. The evidence with respect to each disputed fact was sufficient to submit to a jury, and more. It is a settled rule that this court will not disturb the findings of the learned judge below where this is the case. It is emphatically true here, and since we sustain the findings of fact, separate review of them is unnecessary. The case however presented several questions of mixed law and fact, which require separate consideration. Accountant was the executor of his father’s will. The inventory and appraisement filed under his direct supervision included among the assets of the estate this item, “Merchandise, stock in business, 82 Ohio street, $2,500.” In his account, and on the hearing, accountant claimed that this item represented a one-half interest in the merchandise and stock of a business which had been conducted by his father and himself as equal partners. The partnership, though not appearing in the inventory, was not denied. Ex-ceptantsj however, offered much testimony including admissions of accountant, himself, to the effect that the partnership did not embrace the merchandise and stock in business, but was limited to profits, the father being the sole and exclusive owner of the stock. The learned judge found, as we think from a clear preponderance of the evidence, that the partnership was confined to profits, and accordingly surcharged the accountant with the difference between the sum accounted for and what he determined as the full value of the merchandise and stock. The jurisdiction of the orphans’ court to determine the question here raised is challenged. It is to be noted that the partnership was first asserted by the accountant, and that he voluntarily made it the subject of accounting. That the orphans’ court has jurisdiction in such a case as this abundantly appears in Brown’s App., 89 Pa. 139. Here the jurisdiction is more obvious than in the case referred to, since here none were interested in the partnership but the accountant and the testator. The question for the court to determine was simply what assets of the estate passed into the hands of the accountant. Admittedly the entire stock of merchandise and accounts passed into the hands of the accountant. If, as the court found, the stock belonged to the estate, accountant would be liable to surcharge for what had not been inventoried. In Cutler’s Estate, decided at the present term, but not yet reported, we held as follows: “Presumably every item of property an executor has included in his inventory belongs to the estate, and for all such he must account. The inventory is an admission on his part that the property embraced in it came into his possession as a legal representative of the testator. If at testator’s death the property is shown to have been in his possession, or if for any other reason it is presumably his, a mere denial of ownership unsupported, will not oust the court of its jurisdiction, but the court may proceed with the investigation so far as to inform itself whether the denial is made in good faith and a substantial dispute exists.” In that case the contested items had been omitted from the inventory. Here we start with the fact that the merchandise and stock constitute an item included in the inventory, without a suggestion that the item includes less than the whole, or that accountant individually had any claim to any of the stock as partner. What he brings into the estate by the inventory is the merchandise and stock; its estimated valuation is of no consequence in this particular inquiry. Afterwards, in accounting, he demands that he should be charged with nothing beyond the valuation fixed by the appraisers, because only a one-half interest was valued, he himself being the owner of the other half. Nothing in writing confirmatory of the accountant’s claim was offered in evidence. Not only was there no written contract of partnership showing the terms on which accountant had been admitted as a partner in a business which had been long established, but the books and accounts of the firm furnished no basis whatever for his present claim. Against it were his own admissions, not simply as contained in the inventory, but admissions made to others that his interest was confined to profits, and that he owned no part of the merchandise or stock. The learned judge reached the conclusion that accountant’s denial of the entire ownership of the stock by the testator was not made in good faith, and that the question between him and the estate on this branch of the case was not a disputable one. The evidence supported the finding as well as the surcharge made.

Among the inventoried assets of the estate was a note of J. Groetzinger & Son for $12,000. This represented a loan made by the testator many years before his death to the firm of A. & J. Groetzinger. Some three or four years before his death, upon a change of the firm, the loan was continued to the new firm of J. Groetzinger & Son. On each renewal the note was for a year. Upon maturity of the note current at the time of testator’s death accountant accepted a renewal for another year. Within eight months thereafter the makers failed, and a loss of $8,897 resulted to the estate. To make good the loss sustained to such of the distributees as demanded indemnification, the court surcharged accountant with $6,355.10, distributing this amount among five of the distributees. The finding of the court with respect to the renewal of the note is as follows: “There is no question that the firm’s credit was good when the accountant renewed the $12,000 note, and it could then have been collected, but as the renewal was an investment not authorized by law, made without the consent of his coexecutor, or the legatees in remainder, he is prima facie liable for the amount lost on this note.” This finding in our judgment is insufficient to warrant the surcharge against the accountant. It is not quite correct to say that this “was an investment not authorized by law.” The original investment had been made by the testator, and the acceptance by the accountant of a note at the maturity of the old was nothing more than an extension of the time of payment. The note current at testator’s death matured within two weeks thereafter. Accountant at once accepted a renewal of it for a year on payment of the accrued interest. Eight months thereafter, without warning, the makers became bankrupt. Up until that time their solvency had not been questioned. Banks with which they had for years been doing business were lending them large sums of money, and the testimony is cumulative that their financial standing was excellent. Suppose instead of accepting a renewal note the accountant had simply retained the original, and had failed to collect it before bankruptcy overtook the makers. Could it possibly be charged in such case that he was guilty of such supine negligence as would make him liable for the loss? The bankruptcy came when but little more than half of the year of the administration had gone by; it came as suddenly and unexpectedly to the accountant as to the banks and other creditors of the bankrupts, with disastrous results to many others who had trusted in the financial soundness of the firm because of its public fame. The money due the estate was not required for the payment of debts, and as invested by the testator himself was bearing interest. There was nothing 'to require its immediate collection, and nothing to put the accountant on notice of any increase of risk. There is no suggestion of bad faith or dishonest purpose on the part of the accountant in connection with this renewal of the note. Clearly under such circumstances the mere failure to sue within eight months after testator's death would have been no sufficient ground for a surcharge. If this be so, and we think it too clear for dispute, how can the fact that a new note had been taken for a. year be material? It is not shown to have contributed to the result in any way. Had failure to sue resulted from the acceptance of the note, the case might have been different; but so far as can be discovered from the evidence the two are wholly unrelated. The assignment of error which has regard to this surcharge is sustained.

The action of the court in disallowing accountant’s claim for commissions, loses much of its apparent severity when the whole case is examined. We do not care to review it further than we have, nor is it necessary that we should. It clearly appears, and the court so finds, that the business of the estate was managed in total disregard of the most ordinary business rules and methods; that accountant took upon himself its exclusive management, denying to his coexecutor the right of participation; that his exhibits were untrustworthy upon their face, several of them being absolutely incorrect, and others which he should have produced he asserted were lost; that he claimed as his own property that which undoubtedly belonged to the estate; that he withheld from the account clearly identified assets of the estate, and, generally speaking, after several years of administration, he left the estate in such confusion and uncertainty, that only the most thorough and expert examination could reveal the true situation. Because of these most serious derelictions the learned judge concluded that he had not faithfully executed his trust, and in consequence had forfeited all right to his commission. In this we concur. We see no error in the case other than in the surcharge for the loss sustained on the Groetzinger note. The decree must be modified by striking therefrom whatever is surcharged on account of the loss on the Groetzinger note, and with this modification the decree is affirmed.


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    McKinley, Appellant, v. Martin.

      Wills — Construction—Vested and contingent interest — Condition subsequent.

    1., Wills should be construed to speak and take effect as if executed immediately before the death of the testator, unless a contrary intent shall appear.
    2. A construction is to be favored which vests an absolute estate rather than a contingent or defeasible one. The law regards with disfavor conditions subsequently divesting a vested estate.
    3. Testator after giving his real estate to his wife for life gave a particular house to a son, but provided that “if he is living or societing with his divorced wife he shall never inherit that property.” This was followed by a gift over. It appeared that the son had lived with Ids divorced wife at times between the testator’s death and the termination of the life estate, but there was no proof that they had lived together between the date of the will and the testator’s death. Held, that the condition created by the will was a condition precedent, that the estate vested in the son absolutely when the-will went into effect, and was not defeated by his subsequent conduct.
    Argued Nov. 1, 1909.
    Appeal, No. 104, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1906, No. 803, on verdict for defendants in case of Lizzie McKinley v. Sarah E. Martin et al.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Ejectment for land in the Fifth ward of the city of Pitts-burg. Before Davis, J.

      January 3, 1910:
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendants. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendants.

      George H. Quaill, with him Charles A. O’Brien and Charles W. Ashley, for appellant. '

      John M. Hunter, for appellees.
   Per Curiam,

This was an action of ejectment, and both parties claimed title under the following clause of the will of Arthur Martin, which followed a devise of his real estate to his wife for life: “To my son Joseph I allow the house on Poplar alley . ; if he is living or societing with his divorced wife, he shall never inherit that property, it shall go to Lizzie Martin McKinley, to support her fatherless children, Lizzie to pay Joseph ten dollars a year.” It appeared at the trial that the son had lived with his divorced wife at times between the testator’s death and the termination of the life estate, but there was no proof, nor direct offer of proof, that they had lived together between the date of the will and the testator’s death. The learned trial judge held that the condition on which the son was to take was a condition precedent, and that the estate vested absolutely in him when the will went into effect and that it was not defeated by his subsequent conduct. In this there was no error. Wills should be construed to speak and take effect as if executed immediately before the death of the testator, unless a contrary intent shall appear: sec. 1, Act of June 4,1879, P. L. 88. A construction is to be favored which vests an absolute estate rather than a contingent or defeasible one. The law regards with disfavor conditions subsequently divesting a vested estate: Jackson’s Est., 179 Pa. 77.

The judgment is affirmed.


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    Dickson, Sheriff, Appellant, v. McCartney.

      Sheriff — Expiration of office — Right to sue bidders at sale — Sheriff’s sale — Defective title — Tender of deed.

    1. A sheriff whose term of office has expired has a right to maintain an action against a defaulting bidder at a sale held during his term of office to recover the difference between the amount of his bid and the amount realized at a subsequent sale of the property.
    2. A bidder at a sheriff’s sale cannot refuse to pay his bid and take the property, on the ground that the sale will convey no title. If he is entitled to relief he should apply to the court to have the sale set aside.
    3. It is not necessary for the sheriff to tender a deed to the purchaser in order to hold him to his bid.
    Argued Nov. 1, 1909.
    Appeal, No. 139, Oct. T., 1909, by defendant, from order of C. P. No. 4, Allegheny Co., Third Term, 1908, No. 818, discharging rule for judgment for want of a sufficient affidavit of defense in case of James W. Dickson, Sheriff, v. J. H. McCartney and A. O. McCartney.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Assumpsit by an ex-sheriff to recover the amount of a bid at sheriff’s sale less amount secured on a resale. Before Cohen, J.
    From the record it appeared that the plaintiff during his office of sheriff sold at a sheriff’s sale certain land for the defendants for $1,850. It subsequently appeared that the defendant in the execution had no title. The bidders refused to pay their bid and the land was resold for $78.68, and this suit was brought for the difference.
    The court discharged a rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      George H. Quaill, for appellant.
    When the purchaser fails to comply with the terms of his contract, by paying the amount of his bid, in the manner stipulated in the conditions of sale, he is liable in an action for the amount bid, or the property may be sold again, and the purchaser at the first sale is liable for the loss arising from the diminution of price at the second sale: Negley v. Stewart, 10 S. & R. 207; Gaskell v. Morris, 7 W. & S. 32; Spang v. Schneider, 10 Pa. 193; Wright’s App., 25 Pa. 373; Freeman v. Husband, 77 Pa. 389; Pepper v. Deakyne, 212 Pa. 181; Davis v. Baxter, 5 Watts, 515; Emley v. Drum, 36 Pa. 123.
    If the purchaser has bid under a misapprehension of his rights or the description in the levy be incorrect, he should' apply to have the sale set aside: Davis v. Baxter, 5 Watts, 515; Cooper v. Borrall, 10 Pa. 491; T. & H. Pr., sec. 1279.
    The rule of caveat emptor applies in all its force, to a purchaser at a sheriff’s or other judicial sale; if the defendant in the. execution had no title the purchaser takes none, but he cannot object to payment of the purchase money, on the ground of defect of title: Smith v. Painter, 5 S. & R. 223; Friedly v. Scheetz, 9 S. & R. 156; Elkin v. Meredith, 2 Miles, 167; Vandever v. Baker, 13 Pa. 121; Allen v. Gault, 27 Pa. 473.
    From any sales of property made by him as sheriff he alone has the right to receive the money, and is responsible for the legal appropriation of it unless it is brought by him into court for that purpose: Adams v. Adams, 4 Watts, 160; Davis v. Baxter, 5 Watts, 515; Gaskell v. Morris, 7 W. & S. 32; Forster v. Hayman, 26 Pa. 266; Freeman v. Husband, 77 Pa. 389; Smith v. Wilson, 152 Pa. 552.
    A late sheriff may reacknowledge a defectively acknowledged sheriff’s deed, though out of office; his successor cannot make a new deed: Adams v. Thomas, 6 Binn. 254; Woods v. Lane, 2 S. & R. 53.

      W. H. S. Thomson, with him Frank Thomson and Donaldson Brothers, for appellees.'
    -The plaintiff cannot maintain this action for the reason that he was not sheriff of Allegheny county when the action was commenced, his term of office having expired.
    No demand for the purchase money was made by the plaintiff from defendants after their bid and before the resale or at any other time. This resale without demand for the purchase money from defendants raises a presumption that a right to demand the same, if any existed, had been waived: Girard Life Insurance Co. v. Young, 8 Phila. 16.
    January 3, 1910:
   Opinion by

Mr. Justice Potter,

This is an appeal by plaintiff from an order discharging a rule for judgment for want of a sufficient affidavit of defense. The action was assumpsit, and was brought in the name of James W. Dickson, sheriff, to recover from the defendants who were defaulting bidders at a sheriff’s sale, the difference between their bid and the amount realized at a subsequent sale of the property. The defendants question the right of a sheriff whose term of office has expired to maintain an action against a defaulting bidder, to recover the amount of his bid at a sale held by the sheriff during his term of office. In looking through our cases for light upon this point, it appears that in Emley v. Drum, 36 Pa. 123, the suit was by “Abram Drum, late sheriff of Luzerne county,” to recover for the use of the plaintiff the amount of the defendant’s bid at a sheriff’s sale. The question of the right of the plaintiff to maintain the action after the expiration of his term does not seem to have been directly raised, but at any rate the action was sustained. In Peck v. Whitaker, 103 Pa. 297, suit was brought by “Aaron Whitaker, late sheriff of Luzerne County,” against a defaulting bidder to recover the difference between his bid and the price realized at a subsequent sale of the property. The court below instructed the jury that the plaintiff was entitled to recover, and judgment in favor of the plaintiff was affirmed by this court. In the case of Fife v. Bohlen (U. S. C. Ct., W. D. Pa.) 22 Fed. Repr. 878, a suit against the defaulting purchaser was brought by a sheriff after his term of office had expired. It was there held that the suit could be maintained, Judge Acheson in his opinion saying (p. 880): “The action was commenced more than two years after Fife’s official term as sheriff expired, and this, it is claimed, is an obstacle to the maintenance of the suit. But it cannot be doubted that an ex-sheriff may sustain such action, especially in a case like the present, where he sues for the use of lien creditors of the defendant in the execution under which he made the sale in question.” There is no doubt but that the sheriff continues to be liable after the expiration of his term, for his official acts, and that he and his sureties may be sued after he is out of office: Act of March 28, 1803, 4 Sm. L. 45, sec. 4; and Act of April 3, 1860, P. L. 650, secs. 1 and 2. It would only be reasonable, therefore, that he should have the power to maintain a suit where the cause of action accrued during his term. In Adams v. Adams, 4 Watts, 160, Justice Kennedy, in speaking of the sheriff, said: “He is considered the principal himself in such cases, as well as the real party making the contract of sale. ... He alone has the right to receive the money arising therefrom, and is responsible for the legal appropriation of it, unless it is brought by him into court for that purpose.” The responsibility thus placed upon an outgoing sheriff to receive the proceeds of a sale and distribute them according to law, would seem necessarily to carry with it the right to sue for the collection of such proceeds.

As a matter of sound principle, we have no doubt that an ex-sheriff may maintain such an action as this. The sheriff is merely the legal plaintiff, and the suit is solely for the benefit of the lien creditors entitled to the fund.

As to the second question raised by this appeal, we are equally clear. It is well settled that a bidder at a sheriff’s sale cannot refuse to pay his bid and take the property, on the ground that the sale will convey no title. In the late case of Pepper v. Deakyne, 212 Pa. 181, Chief Justice Mitchell said (p. 185): “A defaulting bidder is liable for the loss occasioned by his failure to comply with the terms of the sale, and it is equally well settled that the measure of damages is the difference of price on a resale fairly conducted upon terms not less advantageous to the purchaser than the first.” In Smith v. Painter, 5 S. & R. 223, Justice Duncan said (p. 225): “The sale by sheriff excludes all warranty. The purchaser takes all risk. He buys on his own knowledge and judgment. Caveat emptor applies in all its force to him. If this were not the law, an execution, which is the end of the law, would only be the commencement of a new controversy; the creditor kept at bay during a series of suits, before he could reap the fruits of his judgment and execution.” In Wells v. VanDyke, 106 Pa. 111, Justice Paxson said (p. 115): "It is no answer to say that the plaintiff bought a worthless title. That is begging the question. The execution issued upon the bond was a valid execution against the husband, and the sale thereunder passed any title there may have been in him. ... A man who buys a worthless title at a sheriff's sale, and pays for it, or is allowed 'a credit on his lien, which is substantially the same thing, has no standing to repudiate the transaction subsequently.”

It may be that the enforcement of the rule which requires a bidder to make good his bid at a sheriff's sale, will work hardship upon the defendants in this case. But if so, they have themselves to blame. They admit that between the time when they made the bid and the date of the resale, they learned the facts relating to the title, which caused them to reject it; yet they made no application to the court for relief. If they were misled or deceived, or had any good reason why they should not have been required to make payment of the purchase money, their remedy was to apply to the proper court to have the sale set aside. As Chief Justice Mitchell said, in Pepper v. Deakyne, 212 Pa. 181 at p. 187, sheriff's sales "belong to the class of legal problems in which to have a fixed rule by which all parties may clearly and readily know their rights and responsibilities, is more important than-the theoretical perfection of the rule itself.” Nor was it necessary for the sheriff to tender the deed to the purchaser in order to hold him to his bid. In Allen v. Gault, 27 Pa. 473, Chief Justice Lewis said (p. 479): "It is the duty of the purchaser to pay his money to the officer of the law, according to the conditions of the sale. The sheriff is not bound, like an individual, to tender a deed before he demands the money. The court will see that justice is done to the purchaser.” In Hartman v. Pemberton, 24 Pa. Superior Ct. 222, a case in which the Superior Court, in an action like the present one, reversed the order of the court below, refusing judgment for want of a sufficient affidavit of defense, Hendekson, J., said (p. 228): “The averment that the sheriff was bound to tender a deed to the defendant and demand payment of the balance of the purchase money cannot be maintained.”

There is no suggestion or pretense that the resale was not made in exact accordance with the published conditions, made known to the defendants at the time of the first sale.

The judgment is reversed, and the record is remitted to the court below, with direction to enter judgment against the defendants for want of a sufficient affidavit of defense, unless other legal or equitable cause be shown why such judgment should not be entered.


text:
    Kerin, Appellant, v. Mercantile Trust Company.

      Equity — Contract—■Rescission.
    1. Where a person purchases from an assignee of an insolvent, the bonds of a railroad company in the hands of a receiver, the property of which is about to be judicially sold, and the purchaser has full knowledge of the condition of the railroad, and his purpose in acquiring the bonds is to secure control of the railroad, he cannot rescind his contract because he had relied upon the synopsis of a master’s report to be filed in the foreclosure proceedings, showing certain liens, and this report, filed after the purchase of the bonds, had, on exceptions, been modified by the court so as to increase the amount of the liens ahead of the bonds.

      Equity — Equity practice — Cross bill — Parties—Act of June 7, 1907, P. L. 440.
    2. New and distinct matters are not within the scope of a cross bill in an equity suit.
    3. In a bill in equity for the rescission of a contract, a cross bill for money due on such contract will be sustained though introducing parties other than the plaintiff in the original bill as defendants, where it appears that such other parties are sureties on the bond of the original plaintiff to bind the contract, that they are in fact principals with such plaintiff in the contract, that the parties have seen fit to go into the whole controversy on its merits; that no substantial defense was offered, and that defendants to such cross bill have waived their right to a trial by jury under the Act of June 7, 1907, P. L. 440, and that neither by demurrer or answer do they set up want of jurisdiction in equity.

      Argued Nov. 1, 1909.
    Appeal, No. 120, Oct. T., 1909, by plaintiff, from decree of C. P. No. 1, Allegheny Co., June Term, 1908, No. 455, dismissing bill in equity in suit of Thomas L. Kerin v. the Mercantile Trust Company, Assignee for the benefit of creditors of the Prudential Trust Company.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity to rescind a contract, also cross bill for money due.
    Miller, J., specially presiding, filed the following opinion:
    The bill is filed for the rescission of a written contract relating to the sale of certain bonds upon the ground of misrepresentation as to the ownership and lien standing thereof, and prays for the return of the purchase money paid on account thereof; the answer denies the material averments of the bill.
    The cross bill is filed by the defendant against the plaintiff and his sureties for a money decree, requiring the defendant and his sureties to pay the balance of the contract price for said bonds.
    From the pleadings and testimony the following relevant and material facts are found:
    The Mercantile Trust Company and the Prudential Trust Company are both corporations created under the laws of the state of Pennsylvania, domiciled in the city of Pittsburg. On June 22,1904, the Prudential Trust Company made an assignment for the benefit of its creditors to the Mercantile Trust Company.
    Among the assets of the Prudential Trust Company coming into the possession of the Mercantile Trust Company, its assignee, were 250 bonds of the par value of 8500 each, issued by the Wetzel & Tyler Railway Company, a corporation under the laws of West Virginia, then in the hands of a receiver; said bonds are part of an issue of 600 bonds of like tenor and amount, evidenced by a deed of trust duly executed and recorded. Of this railway company John P. Gangwisch, Jr., one of the defendants in the cross bill, was an incorporator, was its president from the beginning, and continued in that office at the time and subsequently to the receivership, and was such president (with full knowledge of the affairs of said company at the time the contract hereinafter referred to was made). It was for him and others that the plaintiff, an attorney at law, acted in this transaction.
    The said 250 bonds being assets in the hands of the defendant assignee were offered for sale as was its duty; (at the time of the sale referred to in the next finding of fact the assignee had a bona fide offer from other parties of $35,000 cash). The fact of such offer was known to the plaintiff Kerin and to Gangwisch.
    The-plaintiff, representing himself, Gangwisch and others, entered into negotiations with Stephen Stone, Esq., of counsel for defendant company, for the purchase of said bonds; these negotiations resulted in the written contract. This contract after reciting the foregoing assignment, the amount and the designation of the bonds, the fact that they were assets of the Prudential Trust Company in the hands of the assignee, and that the plaintiff “is desirous of purchasing the said bonds, and succeeding to all the rights which the said Prudential Trust Company has thereunder and thereto,” provides for the sale thereof, fixing the consideration at $42,500, of which $2,500 was to be paid in cash; $5,000 in four months, and the balance in two equal installments of $17,500 in twelve and eighteen months respectively, with interest at the rate of six per cent on all deferred payments, said deferred payments to be secured by the bond of the plaintiff with sufficient surety. December 20, 1906, was fixed as the time for closing the sale; the agreement provided that the sale shall be contingent upon ratification by this court; it contained the further provision that the purchaser shall have the right to be substituted as owner of said bonds in lieu of the Prudential Trust Company, in any action then pending concerning the same in the state of West Virginia or elsewhere, with the right in him to continue any action pending or thereafter to be brought in the name of the assignee with the same force and effect.
    At and prior to the execution of the foregoing contract Stone had before him and submitted to Kerin what appeared to be a partial synopsis of the report of a master appointed by the circuit court of Wetzel county, West Virginia, in which the order of lien of said bonds was set forth; according to this synopsis the liens prior to said bonds, seemed to be about $45,000, and the costs of the receivership and litigation then pending concerning said railway were estimated at about $15,000. This report was then still in the hands of the master and was not filed until some time in the next month. There was no representation or guarantee by Stone of the correctness of these estimates. The purchaser was told that he took the bonds as they existed in the assignee’s hands, subject to all the rights as well as the charges against the same which the Prudential Trust Company had. It seemed to be assumed by the parties that ownership of the bonds was in the Prudential Trust Company.
    Following the execution of the contract the Mercantile Trust Company, assignee, presented its petition to this court setting forth its possession of said bonds, the receivership of the street railway company in the hands of the Guarantee Title & Trust Company of Pittsburg and Martinsville, West Virginia, the poor condition of the road and its failure to earn more than running expenses and proceedings -in the circuit court of Wetzel county by creditors and lienors whereby it was proposed to sell the said railway for the benefit of creditors, the value of the railway at about $150,000, the existence of a large amount of outstanding receiver’s certificates, the fact of other liens prior to the said bonds with costs and commissions approximating about $60,000, the necessity on the part of the assignee to protect the interests of the creditors in the Prudential Trust Company, of raising a sum approximating $25,000 in order to take care of its interests pending said sale, and the necessity on the part of the assignee to sell said bonds for the highest and best price; accompanying the petition was an executed bond by the plaintiff with the defendant in the cross bills as sureties for the faithful performance of the foregoing contract. Whereupon this court, on December 17, 1906, ratified and approved the contract and authorized the Mercantile Trust Company, assignee, to sell and'convey to Kerin, the plaintiff, the bonds described in the petition upon receiving the consideration price set forth therein. Following this order the defendant has paid $7,500 on account of said contract price. By agreement between the parties the bonds remained in the custody of the Mercantile Trust Company, assignee, for safe keeping and possibly as further collateral security for the deferred payments subject to the defendant’s possession.
    The commissioner in West Virginia — a synopsis of whose report was before the parties at the time of the contract on December 17 — sent out a general notice informing creditors and parties interested of the completion of his report, with invitations to examine the same and file exceptions thereto. No exceptions seem to have been filed, and on January 17, 1907, his report was filed in said court; this report contained substantially the list of creditors and the order of their liens as had been set forth in the synopsis as shown by Stone to Kerin at the time the contract was made.
    The bonds in question were placed, with the knowledge of Gangwisch, president, and other officers of the railway company, with or through Thomas Watkins, president of the Prudential Trust Company, and treasurer of the said railway company, as collateral security for loans, with the right of hypothecation. The purpose of Kerin and Gangwisch in purchasing these bonds was to acquire control of the railway then in the receiver’s hands. The status or title to these bonds in the Prudential Trust Company was known to Gangwisch from the testimony taken before a master here in Pittsburg prior to contract upon which this proceeding rests.
    Exceptions were filed to this report in the circuit court of West Virginia and hearings had thereon. On February 8,1908, the said court modified and changed the master’s report.
    It appears from, the findings and decree of said court on the report, that additional mechanics’ liens to the extent of about $25,000 were rated in priority ahead of the bonds in question. This is the only substantial change so far as priority of lien is concerned. It further appears that said court found that the bonds in question were not the absolute property of the Prudential Trust Company, but were held as pledges for moneys advanced on account thereof in accordance with an agreement between Thomas Watkins, former president of the Prudential Trust Company, and the said street railway company, they having be$n placed in his hands for the purpose of raising funds with which to complete and equip said road. The court considered the claims (1) of receiver’s certificates the holders of which had paid full value, (2) mechanic’s lien claims for which full value had been rendered, and (3) the 600 bonds in question secured by said deed of trust; of these twenty-nine had been disposed of by the company for full value and should so participate — the remaining 571 had been turned over to Watkins to raise money — that he had obtained $166,161 including interest, on account of them; of the amount advanced some $72,000 was by the Prudential, entitling it with the other holders of these bonds in like proportion, each bond to 1-571 of the total fund.
    It further appears that the sale of the property rights and franchises of the said railway company was ordered for the payment of the debts ascertained by the court. The said decree also shows that, the defendant railway, certain creditors, and the plaintiff, Thomas L. Kerin, moved the court for an order suspending the execution of the said decree for sale for a period of ninety days pending their appeal from the decree to the Supreme Court of Appeals of said state and that such order was made conditioned upon the appellants, or any of them, entering into a bond for the payment of any damages caused by delay. No such bond was given and no appeal was taken; the road was sold, to whom does not appear; nor does it appear that either Gangwisch or Kerin attended said sale or made any effort to acquire control of said railroad, as was their declared purpose in the purchase of said bonds.
    On or about March 25, 1908, the plaintiff gave notice of the rescission of the contract for the causes stated in the bill and the return of the moneys paid on account thereof.
    After the execution of said contract the defendant assignee took no further interest or action in the proceedings either before the master or the court in West Virginia. Whatever was done, so far as these bonds were concerned, seems to have been done by the plaintiff through his representatives there.
    CONCLUSIONS OF LAW.
    1. There was neither warranty as to title nor as to priority of the lien touching the bonds in controversy at the time the contract was made either in the contract itself or in anything that was said or done at the time; both parties knew, and as lawyers were particularly bound to know, that the synopsis of the master’s report or the report i.tself was subject to exception and modification by the court.
    2. While both Stone representing the seller, and Kerin the purchaser, believed from the memoranda of the master’s report that the prior liens including costs would approximate $60,000, the fact that the railway was in the hands of a receiver, that proceedings for its sale were instituted, that litigation was pending touching the relative standing of the different class of creditors, that among the claims ahead of the bonds as shown by the synopsis was a mechanics’ lien of Tennis & Company of the sum of $14,000, while immediately following were a larger number of other mechanics’ claims or liens, all combined was presumptive notice to the purchaser that he took title to these bonds subject to a final adjudication by the court upon the law of conflicting claims then pending or that might thereafter arise; his stipulation to be substituted in any actions pending and to assume all liability for costs in connection therewith is corroborative evidence of the condition which as purchaser he was bound to know these securities were subject to. As purchaser from an assignee of an insolvent he took the title held by the insolvent, unless the assignee warranted a different title.
    3. Whatever title the Prudential Trust Company had passed to its assignee. Whether it owned the bonds outright or had only a qualified ownership thereof to the extent of its advancements, is immaterial under the facts in this case, for it only undertook to sell and the purchaser agreed to buy whatever title it had. So far as the sale itself was concerned, even accepting the final adjudication as to ownership as fixed by the circuit court of West Virginia, the title of the purchaser was good to the extent of $72,000 or $73,000, almost twice the consideration to be paid. No one else had any title to these bonds until these advancements were paid, and therefore for the purposes of the sale and for the purposes of acquiring control of the road the bonds were in the absolute ownership of the purchaser and entitled to as full participation either in the control of the road or participation in dividends or any amounts received from the sale thereof, at least to the extent of the advancements, as if the purchaser had acquired them outright from the railway company and paid for them.
    4. Conceding that full faith should be given to the decree of the circuit court of West Virginia, all that was sought to be adjudicated there was the lien standing of the various claims, the difference in the aggregate not being very material, and the priority which these bonds should be entitled to receive, in the distribution of the proceeds of sale as compared with other creditors; conceding that the holders of these bonds did not pay their full face value, it is manifest that for the purpose of securing an equality in distribution between them to the extent of 571 bonds and the other twenty-nine who had paid full face value that an equitable method of distribution was reached by the adjudication in that court; but, this did not pretend to determine any remaining rights either in the railroad company or anyone else in the title or ownership of these bonds; conceding that the 571 bonds were hypothecated as collateral security for moneys obtained therefrom, no one but the holder of the bonds has title or ownership therein for the purposes of this case; the corporation itself has none unless it tendered and paid all advancements; nor is there any claim by anyone else of any interest, immediate or remote, in these bonds.
    That adjudication, therefore, is no defense; it did not destroy the right of the plaintiff or his associates as purchasers of these bonds either in obtaining control of the road or for any other purpose.
    5. In view of the terms of the contract, of the knowledge of Gangwisch, who is the real purchaser of these bonds back of Kerin, of the absence of any warranty either as to lien standing or title, coupled with the duty of the assignee to dispose of these bonds for the benefit of the creditors of the Prudential Trust Company, and especially coupled with the fact that from the evidence, there was another bona fide offer in cash ready to be closed on the same day that this contract was signed, coupled with the further fact, that from the date of this contract and the presumptive delivery of the bonds to the plaintiff, the defendant took no further action in the proceedings pending; no sufficient reason has been shown in equity, to rescind the contract, to destroy absolutely the rights of the creditors of the Prudential Trust Company in an asset which at the time of the contract had for them a very material value, nor to compel the assignee by the rescission of the contract to repay the 17,500 distributed among the creditors of the Prudential Trust Company. The plaintiff’s bill must be dismissed at his costs. . .
    6. The defendant having filed its cross bill against Kerin and his sureties, and they having answered, not raising the question of jurisdiction, under ordinary circumstances the whole matter in controversy between the parties as raised by the bill and cross bill could be disposed of in this one proceeding.
    But the original bill being by one of the parties to the original contract for rescission of the contract concerns itself wholly with the question of the vitality of that contract, while the cross bill is by one of the original contracting parties not only against the original plaintiff but against a number of others, who are not made parties to the original bill. The rule is too well settled to require citation of authorities that new and distinct matters are not within the scope of a cross bill. From the answers filed by the defendants in the cross bill it appears that they ground their defense on the statements in the bond which they signed; they have a right in an action at law to set up such a defense.
    The cross bill is therefore dismissed at the costs of the plaintiff therein, without prejudice, however, to proceed in a separate action either on the contract and bond or both, against the plaintiff and his sureties or separately, as it may see fit.

      Subsequently Miller, J., for the court in banc, filed the following opinion:
    Upon consideration of this case, after the argument by counsel upon exceptions, we find no reason to interfere with the conclusions reached by the trial judge on the original bill filed, and the exceptions on the part of the plaintiff in the original bill must be dismissed.
    As to the exceptions filed by the plaintiff in the cross bill, we find the following additional facts:
    The defendants in the cross bill, executed their bond with Thomas L. Kerin as principal, and the rest as sureties, on December 21, 1906, in the penal sum of $45,000, reciting that Kerin entered into an agreement with the Mercantile Trust Company, assignee, to purchase the 250 bonds in question owned by said company; that the said agreement was ratified by this court on December 17, 1906, and bound themselves to the performance of all things contemplated and necessary, as set forth in said article of agreement.
    The defendants in the cross bill, viz.: Charles Denney, John P. Gangwisch, Jr., Frank T. Redman and Thomas M. Ward, are not only sureties on Kerin’s bond, but are interested with him in the contract providing for the purchase of the bonds which are subjects of the controversy; Kerin having a one-fifth interest in said contract; the others together the remaining interest. The other defendant, Klaus, has not filed an answer.
    The foregoing facts aid in leading to a different conclusion; while the cross bill introduced new parties, they are in fact principals, and were purchasers with Kerin; the averments in his bill and his proofs, by which he sought to set aside his contract, are the same in effect as are his, and the other defendants’ answers, to the cross bill.
    The parties have seen fit to go into the whole controversy on its merits; no defense was offered, other than the naked averments in some of the answers, that the bond was executed “upon the express representations and recital as set forth in said bond itself that the Prudential Trust Co., was the owner of said bonds to be purchased by said Thomas L. Kerin.”

      Even if these defendants were mere sureties, this allegation, unsupported, is not an available defense under the conclusions heretofore reached; the contract recited in the bond stated that the bonds were among the assets in the hands of the assignee. The ownership by the Prudential Trust Company of the bonds in controversy, whether absolute or qualified, passed title to the bonds under the contract. No other claimant dis-' putes or questions the fact that absolute title vested in the vendee; as parties interested in the contract with Kerin, there is no merit in the technical defense based upon the recital in the bond.
    Conceding that new parties are brought in by the cross bill, Equity rule 40 recognizes this right, and the mere fact thereof is not even ground for demurrer; while equity rule 25 provides for the enforcement of a joint and several demand in the nature of a cross bill as between either principals or sureties.
    These defendants waived their right to a trial by jury under the Act of June 7, 1907, P. L. 440. Neither by demurrer or answer do they set up want of jurisdiction in equity. The whole controversy is submitted in this one proceeding; while consent will not hold jurisdiction, Pittsburg & Allegheny Drove Yard Co.’s App., 123 Pa. 250, yet as the contract, the surety bond, and all the parties are before the court, under the cross bill filed by the defendant to obtain relief for itself in reference to the matter contained in the original bill, Datz v. Phillips, 137 Pa. 203, and as a multiplication of suits will be avoided, Johnson v. Price, 172 Pa. 427, it appears that this joint proceeding will reach all phases of the dispute most effectively, and is ground to sustain the same: Electric Company’s App., 114 Pa. 574.
    Therefore, a decree will be entered against the several defendants in the cross bill, excepting Klaus, in the penal sum of their bond, conditioned to- be released upon the payment of the balance due upon the contract, with interest thereon; as to Klaus, he having failed to answer, the regular proceeding to obtain judgment pro confesso may be followed, then a like decree should be entered against him.

      January 3, 1910:

      Error assigned was decree dismissing the bill.

      Thomas Watson, with him George R. Wallace, for appellant.

      W. A. Stone, of Stone & Stone, for appellee.
   Per Curiam,

The decree dismissing the plaintiff’s bill and sustaining the cross bill of the defendant is affirmed on the findings of fact and law and the opinion of Judge Miller, specially presiding.