author: Per Curiam:

text:
    Standard Leather Company, Appellant, v. Insurance Company of North America.

      Insurance — Fire insurance — Principal and agent — Cancellation of policy — Notice to the insured.

    Where an agent of an insured is given general powers to place a large line of insurance in various companies with power to cancel policies and replace with other policies without special authority from the principal, to keep an expiration book for an indefinite period and correct the same every six months, such agent, so long as the line of insurance is not completed, is a proper person, to whom an insurance company may serve notice of cancellation of a policy of insurance procured by him for his principal; and the same rule applies even where the agent of the insured is also the agent of the insurance company.
    Argued Jan. 19, 1909.
    Appeals, Nos. 229, 231 and 232, Oct. T., 1908, by plaintiff, from judgments of C. P. No. 2, Allegheny Co., July T., 1905, Nos. 292, 298, 290, for defendants on case tried by the court without a jury in suit of Standard Leather Company of Pittsburg v. Insurance Company of North America, the Hartford Fire Insurance Company of Hartford, Conn., and the Spring Garden Insurance Company of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on contracts of fire insurance.
    The case was tried by the court without a jury by agreement of parties.
    Shafer, J. filed the following opinion:
    This case, with about sixteen others, in which the same company is plaintiff against a number of other insurance companies, was tried by the court without a jury, a jury trial having been dispensed with by writing filed. The cases were not all tried together, and the present case, with two others, was taken up for trial before a jury, and afterwards submitted to the court upon testimony already taken and other testimony to be taken. We find the facts of the case to be as follows:
    FINDINGS OF FACTS.
    1. The Standard Leather Company is a corporation under the laws of this commonwealth, and in and before May, 1904, was the owner of a factory at Cheswick, Pa., as well as a factory in Allegheny, Pa. The factory at Cheswick was for the making of patent leather and other leather products, and the plant there constituted a more or less hazardous insurance risk.
    2. On May 28, 1904, an arrangement was entered into between the plaintiff company and the Negley & Clark Company, a firm of insurance brokers, in the city of Pittsburg, which, on May 31, 1904, was confirmed by a letter written by Negley & Clark Company to the plaintiff company, proposing an employment as brokers to procure insurance for the plant, which proposal was accepted verbally by the company.
    3. The substance of this letter, so far as it concerns the Cheswick plant, is that the Negley & Clark Company have examined the policies already in force on that plant, and find the line of insurance to be in exceedingly poor condition, amounting to only about $33,000, of which only $10,000 was good, and they agreed to place $75,000 on the plant in good companies, and at the end of the letter, they say that they will have a special expiration book made for the plant, and agreed that if they will send it every six months to their office, they will check it over, verifying it with their records, the whole letter being made part thereof.
    4. The Negley & Clark Company thereupon proceeded to endeavor to place the insurance desired by the plaintiff. For the purpose of doing so, they sent an agent or agents to a large number of insurance offices in the city of Pitts-burg, among others to the office of the agent representing the company defendant in this case, and procured, to be signed by it and numerous other companies, a writing commonly called an insurance binder, the form of instrument being as follows:
    “ Pittsburg, Pa., June 9, 1904.
    “Fire Insurance is hereby made binding for Standard Leather Company on general form, situate Cheswick, Pa. Forms to be furnished by Negley & Clark Company. Policies to issue. The insurance on this binder shall become void and cease (without further notice) upon issue and delivery of policies at the office of the Negley & Clark Company, or the said insurance may be canceled, at any time during the life of this binding agreement, as provided for in the printed conditions of the form of policy in use by Companies hereto. Rate, two per cent. Time, one year from June 10,1904.”
    This was signed by J. W. Kennedy, agent of the insurance company, in the amount of $2,000, and delivered to Negley & Clark Company.
    5. On the same day, the agent drew up a policy in accordance with the binder, but did not deliver it.
    6. On June 13, 1904, the company ordered a cancellation and on June 16, 1904, Kennedy, the agent who signed the binder, sent to Negley & Clark Company a notice of cancellation, which notice was received by Negley & Clark Company without objection, and the binder was marked “O. C.,” meaning Ordered Canceled.
    7. Neither in this case, nor any of the other cases tried with it, did Negley & Clark Company inform the plaintiff that they had obtained the binder, or that it had been canceled, until after the loss claimed for. A large number of other companies,- which had signed similar binders, or delivered policies to Negley & Clark Company, gave notice of cancellation about the same time to Negley & Clark Company, who, without notifying the principal, proceeded to attempt to procure, other insurance, and did' procure some other insurance thereafter, not to take the place of any particular policy which was canceled, but in a general endeavor to fill up the line of insurance they were attempting to procure.
    8. The form of policy of insurance referred to in the binder, is that commonly called standard form of fire insurance policy of New York or Pennsylvania. The portion of that policy which relates to cancellation is as follows: “ This policy shall be canceled at any time at the request of the insured, or by the Company by giving five days’ notice of such cancellation,” with a provision as to the disposition of the premium, in case the premium has been actually paid.
    9. On the night of July 12, 1904, the Cheswick plant of the plaintiff company was destroyed by fire, causing a loss of over $93,000.
    10. Within a day or two after the fire, the plaintiff company communicated with Negley & Clark Company, and were informed by them that they had in force about $39,000 of insurance, and telling them at the same time that they had had a much larger amount, but that it had been reduced by cancellation, and that a large number of companies had canceled their risks before the fire.
    11. No objection was made by the plaintiff company to Negley & Clark Company as to their having received notices of cancellation or permitting the cancellation tó be made, and the company proceeded to make proofs of loss upon the policies then in possession of Negley & Clark Company, and adjusted the loss upon those policies with the various companies, and received payment thereof,
    12. About a week after the fire, while the adjustment of the loss was proceeding, Negley & Clark Company showed to the president of the plaintiff company the binders in question in this and in the other cases, and 'pointed out to him which of the policies were canceled and which were not. Some time in the latter part of July thereafter, the plaintiff called on Negley & Clark, to furnish them the names of the companies whose policies or binders were claimed to be canceled, and Negley & Clark at first declined to give the information, but afterwards upon formal demand made, they did so, and the binders and information as to the numbers and amounts of the policies, which were claimed to be canceled, were furnished to the plaintiff. The date when the information in question was furnished to the plaintiff by Negley & Clark Company, after a demand by their counsel, does not definitely appear, but appears to have been about the first week of August, 1904.
    13. No notice of the fire was given to the defendant company, until proofs of loss were delivered to it August 12, 1904, and no notice was then given, except the proof of loss itself. A form of policy referred to provides that, “If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company,” and further provides that, “No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements.” It was admitted that neither in this case nor any other case tried with it, 'was any premium paid.
    14. On August 12, proofs of loss were furnished to the. company, which were returned with the statement in some form or other that the company was not on the list.
    15. It was admitted on the trial that the amount of loss, and the amount of the total insurance was such that if the defendants are liable, they are liable for the whole amount of the plaintiff’s claim, being $2,000, with interest from October 16, 1904.
    CONCLUSIONS OP LAW.
    1. The proof by the plaintiff of the execution of the binder by defendants’ agent makes a prima facie case for the plaintiff. The defense is, first, that the insurance was canceled, and, second, that if it was not, the defendants are relieved from liability by the failure of plaintiff to give notice of the fire according to the terms of the policy.
    2. The cancellation relied on in this case, and all the other cases tried with it, consists of a written or verbal five days’ notice under the terms of the policy referred to in the binder, or of the policies themselves, where policies were delivered, and the validity of this cancellation is not in question except in one particular, that is, whether, under all the circumstances, of- the case, the notice of cancellation to Negley &
      Clark Company was sufficient. This depends upon the nature of the agency of Negley & Clark Company for the plaintiff.
    3. It is stated by counsel that so far as they can find, no case has been decided in this commonwealth, involving the question of the sufficiency of notice of cancellation of a binder or a policy to the agent who procured it, but a number of cases have been cited from other jurisdictions. In some of these cases, a notice given to a broker to procure insurance was held insufficient, and in others, it was held to be good, according to the nature of the broker’s employment. There would seem to be no doubt that a broker who was employed to procure a particular policy or policies of insurance would not be a proper person upon whom to serve a notice of cancellation, for the reason that his agency ended with the procurement of a particular policy, and in that case, it would seem to make no difference whether he had delivered the policy to the principal, or informed him of his having procured it or not. On the other hand, it was held in some of the cases cited by counsel, that a notice of cancellation might properly be given to one who was a general agent to procure insurance for his principal, with a general authority to procure insurance up to a certain amount, and entire discretion as to the company’s rates of premiums and amounts of policies: Hermann v. Niagara Fire Insurance Company, 100 N. Y. 411 (3 N. E. Repr. 341); Stone v. Franklin Fire Insurance Company, 105 N. Y. 543 (12 N. E. Repr. 45). We are of the opinion that the rule indicated in these cases is the correct one.
    4. It becomes necessary, therefore, to determine what was the nature of the employment of Negley & Clark by the plaintiff company, which is to be gathered from the letter of May 31, in which Negley & Clark Company undertake to put in writing the agreements and proposals which had been made shortly before between the parties, and which was afterwards accepted by the plaintiff, and this interpreted by the conduct of the parties thereafter. The letter in question states that they have examined the insurance which the plaintiff then has, and find it in very poor condition, and they agree to place $75,000 on it in good companies at a lower rate and to have a special expiration book made for the plaintiff company, to go over it every six months for the plaintiff, and check it over, verifying it with their own records. It is very evident that this was intended to authorize the agents to cancel such of the existing policies as they thought were not good, and to get other policies which they should deem better, in such companies as they pleased, for such amounts as they pleased, and for such premiums as they could, and that the employment was expected to continue indefinitely, is shown by the agreement to check up the expiration book furnished the company with the records kept by the agents, every six months thereafter. It is also evidently intended to authorize the agents to procure policies from time to time to take the place of any that should be canceled, at least, until the whole $75,000 of insurance was procured, and there can be no doubt that if in the course of this employment, the agents procured insurance which they should discover to be undesirable, they would have power to cancel the risk without special authority from their employers. We are of the opinion that, under these circumstances, Negley & Clark Company were agents of the plaintiff, to whom notice of cancellation of policies of insurance procured by them might properly be given, so long, at least, as the matter was in fieri, and they were engaged in the endeavor to procure the amount of insurance agreed upon, and had not communicated to their principal what insurance they had, nor delivered policies or binders to it. If this is not the rule under such circumstances, great inconvenience would result both to the agent and the principal. The principal would receive notice of cancellation of insurance of which he never heard, and would be required to communicate the same to his agent, in order that the gap left in his line of insurance might be filled, and this might result in a loss of the benefit of the five days’ clause, or at least a part of it, without any corresponding benefit whatever.
    We are of opinion, therefore, that the contract of insurance sued upon in this case was duly canceled before the loss occurred, and therefore direct that judgment be entered for the defendant.
    In another of the opinions filed Shafer, J., held that the rule announced above applied even where Negley & Clark Company represented the insurance company, as well as the insured.

      Errors assigned were in entering judgments for defendants.

      J. S. Ferguson, for appellant. —
    The person procuring the insurance is not an agent to whom notice of cancellation may be given: Hermann v. Niagara Fire Ins. Co., 100 N. Y. 411 (3 N. E. Repr. 341); Quong Tue Sing v. Anglo-Nevada Assur. Corp., 86 Cal. 566 (25 Pac. Repr. 58); Broadwater v. Lion Fire Ins. Co., 34 Minn. 465 (26 N. W. Repr. 455); Rothschild v. American Cent. Ins. Co., 74 Mo. 41; Body v. Hartford Fire Ins. Co., 63 Wis. 157 (23 N. W. Repr. 132); Hodge v. Security Ins. Co., 33 Hun (N. Y.), 583; Adams v. Manufacturers’ & Builders’ Fire Ins. Co., 17 Fed. Repr. 630; Kehler v. New Orleans Ins. Co., 23 Fed. Repr. 709; Mutual Assur. Society v. Scottish Union Nat. Ins. Co., 84 Va. 116 (4 S. E. Repr. 178); Wilson v. New Hampshire Ins. Co., 140 Mass. 210 (5 N. E. Repr. 818); Lancashire Ins. Co. v. Nill, 114 Pa. 248; Scott v. Sun Fire Office, 133 Pa. 332; Grace v. American Cent. Ins. Co., 109 U. S. 278 (3 Sup. Ct. Repr. 207).

      W. K. Jennings, with him D. C. Jennings, for Insurance Company of North America, appellee. —
    An insurance broker employed by a party to effect insurance for him may be regarded by the insurer as clothed with full authority to act for his principal in procuring, modifying or canceling policies and his acts in these respects are binding upon his principal: Standard Oil Co. v. Triumph Ins. Co., 64 N. Y. 85; Hermann v. Fire Ins. Co., 100 N. Y. 411 (3 N. E. Repr. 341); Stone v. Fire Ins. Co., 105 N. Y. 543 (12 N. E. Repr. 45); Arnfeld v. Assurance Co., 172 Pa. 605; Schauer v. Queen Ins. Co., 88 Wis. 561 (60 N. W. Repr. 944).

      March 22, 1909:

      Brown & Stewart, for Spring Garden Insurance Company of Philadelphia. —
    The general rule is that so far as an insurance agent acts as broker he is agent for the insured and not for the insurer; and the proposition that a broker who has general charge and control of the placing of an application for insurance, is a proper person upon whom notice of cancellation may be served, unless he has entirely fulfilled his undertaking, is a corollary to that rule, and Is well established in law: May on Insurance, 123; Standard Oil Co. v. Triumph Ins. Co., 64 N. Y. 85; Karelsen v. Sun Fire Office, 122 N. Y. 545 (25 N. E. Repr. 921); Hartford Fire Ins. Co. v. Reynolds, 36 Mich. 502; Royal Ins. Co. v. Wight, 55 Fed. Repr. 455; Young v. Newark Fire Ins. Co., 59 Conn. 41 (22 Atl. Repr. 32); Manheim Ins. Co. v. Hollander, 112 Fed. Repr. 549; Pottsville Mut. Fire Ins. Co. v. Minnequa Springs Imp. Co., 100 Pa. 137.
   Per Curiam:

The judgments in these cases are affirmed on the opinion of Judge Shaper.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Standard Leather Company of Pittsburg, Appellant, v. Allemannia Fire Insurance Company of Pittsburg.

      Principal and agent — Ratification or repudiation of the act of agent.

    1. One who knows that his agent has undertaken to do for him what he is not authorized to do, is bound to repudiate the act promptly, and if he does not do so, and especially, if he does anything by way of .affirmance of the act, he cannot afterwards repudiate it.

      Insurance — Fire insurance — Principal and agent — Cancellation of policy — Notice to the insured.

    2. Where an agent of an insured is given general powers to place a large line of insurance in various companies with power to cancel ' policies and replace with other policies without special authority from the principal, to keep an expiration book for an indefinite period and correct the same every six months, such agent, so long as the line of insurance is not completed, is a proper person, to whom an insurance company may serve notice of cancellation of a policy of insurance procured by him for his principal.
    Argued Jan. 19, 1909.
    Appeal, No. 230, Oct. T., 1908, by-plaintiff, from judgment of C. P. No. 2, Allegheny Co., July Term, 1905, No. 310, for defendant on case tried by the court without a jury in suit of Standard Leather Company of Pitts-burg v. Allemannia Fire Insurance Company of Pittsburg.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a contract of fire insurance.
    The case was tried by the court without a jury by agreement of the parties.
    Shaper, J., filed the following opinion:
    These three cases were tried without a jury, together with the other insurance casfes on the same loss, and present certain features which distinguish them in some respects from the other cases. We find the facts as to the loss and employment of Negley & Clark Company by the plaintiff, the notice and proofs of loss, and the negotiations between the plaintiff and Negley & Clark Company, the making of a binder, and the notice of cancellation of it, to be the same as those found in the case at No. 292, July Term, 1905, with the following additions:
    1. These three companies were represented by C. P. Campbell, who was an insurance broker, having an office in the city of Pittsburg, and having one or more employees or clerks in his office, among whom was a young man named A. C. Stewart. Campbell was authorized to issue policies and sign insurance binders for the several companies, but Stewart was not authorized to sign such papers for him or for the companies. .
    2. When the agent of Negley & Clark Company came to Campbell’s office, Campbell was not present, but Stewart was in charge of the office, and upon the proposition being made to Stewart to sign the binders for these companies, Stewart said to Negley & Clark Company’s agent' that he would do so, provided they would take the risk of his signature being approved by Campbell. He also said to Negley & Clark’s agent that he remembered a loss which some of their companies paid on this same risk some time before, and asked them if patent leather was made there, and was told that it was not. He said that they would not take the risk if patent leather was made there. He thereupon signed the binder in question, signing it "C. P. Campbell, Agent, A. C. S.”
    3. Stewart saw Campbell that evening and told him what had taken place, and was directed by Campbell to ascertain whether patent leather was in fact made there or not. Thereupon the next day, and the next two or three days thereafter, Stewart looked up the matter at the board of underwriters and elsewhere, and found that patent leather was made there, of which he informed Campbell, and Campbell thereupon directed him to cancel the risk.
    4. In the meantime, while Stewart was acquiring this information, forms of policy in accordance with the binder had been written up in the • office of Campbell and were given numbers, but were not delivered to anyone. Stewart thereupon wrote a notice of cancellation in the usual form, referring, not to the binders, but to the policies which had been so written, and delivered the same day to Negley & Clark Company.
    5. The defendants, in this case, undertook to prove that it was the custom in the city of Pittsburg and vicinity to give notice of cancellation of a binder to the agent who procured it. They produced a number of witnesses who testified under objection that such was the usual custom, and no evidence was produced to the contrary. We find from the evidence that it is, and for many years has been, the actual practice among the insurance brokers and companies in Pittsburg, to give notice of cancellation of insurance effected by binders, to the agent who procured it.
    6. It is admitted that if the defendants are liable at all to the plaintiff, the Ben Franklin Company is liable for $1,500, the Allemannia for $2,500, and the Monongahela Insurance Company for $1,000, with interest from October 15, 1904.
    CONCLUSIONS OF LAW.
    1. The first matter to be discussed, which is peculiar to these cases, is the authority of the person who signed the binder. We have found that Stewart had no general authority from Campbell or the companies to sign such a paper, and that the paper was taken by the plaintiff’s agents with knowledge of the fact that it would be subject to Campbell’s approval. It appears, however, that Campbell knew shortly after the signature was made, that his agent had undertaken to sign for him, and that he never repudiated the signature in any way on the ground of want of authority in Stewart, but, on the contrary, directed the risks to be canceled under the terms of the agreement. This was an affirmance of the signature of Stewart. One who knows that his agent has undertaken to do for him what he is not authorized to do, is bound to repudiate the act promptly, and if he does not do so, and especially, if he does anything by way of affirmance of the act, he cannot afterwards repudiate it.
    2. We do not understand it to be claimed that Campbell, as agent for the defendants, was bound to sign all insurance contracts made by him for them, with his own hand. While he might not, without their authority, delegate a general power to represent him to any of his agents, there can be no doubt that he might sign policies by the hand of an agent, where he himself knew and accepted the risk, either before or after the signature, which was the case here.
    3. As to the proof of the custom or practice of giving notice of cancellation to the broker, instead of the insured, we are of opinion that no such custom was proved as would modify the legal effect of the contract made in this case.
    4. If these conclusions are correct, there is no difference between these cases and the case of No. 292, above mentioned, and we adopt, in addition to the conclusions of law above stated, the conclusions of law heretofore filed in this case.

      March 22, 1909:
    It is therefore ordered that judgment be entered for the several defendants.

      Errors assigned were in entering judgment for defendants.

      J. S. Ferguson, for appellant.

      Patterson, Sterrett & Acheson, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of Judge Shaper.


text:
    Pile, Appellant, v. Prizer.

      Contract — Purchase of mortgages — Bond of guaranty — Warrant of attorney.

    Where a person in purchasing a mortgage stipulates for a personal guaranty bond of the owners in addition to the ordinary bond of the mortgagor, the purchaser cannot demand that the guaranty bond shall contain a warrant to confess judgment where the agreement does not provide for such warrant, and there is nothing to show the existence of any custom in the community requiring that a warrant of attorney for the confession of judgment shall accompany a bond of guaranty.
    Argued Jan. 19, 1909.
    Appeal, No. 337, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1906, No. 4,392, on verdict for defendant in case of Charles H. Pile v. Elmer T. Prizer.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for breach of contract.
    At the trial the jury under binding instructions returned a verdict for defendant.
    'The court subsequently refused a new trial, Audenried, J., filing the following opinion:

      The second reason urged by the plaintiff in support of his motion for a new trial is that the verdict was rendered in favor of the defendant by direction of the trial judge. The essential facts that the plaintiff’s evidence tended to establish are as follows:
    The defendant agreed to sell to plaintiff for $15,500 two second mortgages aggregating in amount $18,000. In this action the latter asks damages from the former, as compensation for an alleged breach of that contract. The mortgage debts in question were to be secured on certain pieces of ground on which the defendant and two other parties, Knox and Patterson, were engaged in erecting sundry houses. The completion of buildings was to be guaranteed to the plaintiff by the West Philadelphia Title and Trust Company, which was also to insure the title of the mortgaged land. The mortgages and bonds thereby secured were executed by a man of straw. When subsequently the financial sufficiency of this obligor was questioned by the plaintiff, it was agreed that he should receive, along with the assignment of mortgages, a bond executed by Prizer, Knox and Patterson, conditioned for the payment of the mortgage debts. So far as it appears, it was not contemplated that there should be attached to this bond a warrant of attorney authorizing the confession of judgment upon it. At least the testimony does not indicate that such a warrant was referred to in the negotiations of the parties, and there is no evidence to show that the custom of business in Philadelphia requires that a warrant of attorney for the confession of judgment shall accompany a bond of guaranty. At the time fixed for settlement in this matter, however, Henry G. Hart, acting for the plaintiff, demanded that Prizer, Knox and Patterson should execute and deliver with their bond, a warrant for the confession of judgment upon it. To this the representative of the West Philadelphia Title and Trust Company objected, unless the bond and warrant should be left in the possession of the company for delivery to the plaintiff only in the event of a breach of the condition of the bond. His objection was based on the ground that under the form of a warrant prepared a judgment might be confessed immediately, even before the mortgage debts matured, and that the completion of the contemplated improvements on the mortgaged land might be rendered impossible through the effect that the entry of a judgment for so large a sum would have upon the credit of the builders. The defendant concurred in this objection and the settlement was postponed until the plaintiff could be consulted. When the question thus raised was laid before the plaintiff, he flatly refused to consent to the holding of the bond and warrant of Prizer, Knox and Patterson by the trust company, and declined to take the bond and mortgages that he had agreed to buy, unless the guaranty, with the accompanying warrant of attorney, were placed in his own hands. The defendant thereupon disposed of his second mortgage to another purchaser. Upon these facts we can say, without going into a discussion as to whether the contract sued upon is tainted with usury, and without deciding what might be the rights of the plaintiff, had the performance of the defendant’s agreement been rendered impossible by the refusal of the West Philadelphia Title and Trust Company to issue its policy guaranteeing the completion of the proposed buildings, the plaintiff is not entitled to a recovery. His demand for a warrant of attorney from Prizer, Knox and Patterson, was an attempt to interject a new term into his contract with the defendant. The latter was not bound to accede to his request. The plaintiff had no right to predicate the payment of the money that he had agreed to give for the two mortgages, on the condition that he should have delivered to him the warrant of attorney that he demanded and his refusal to carry out his agreement, except on that condition, was a breach of contract on his part that left the defendant free to sell his mortgages where he pleased. Prizer was entitled to have the jury instructed to find in his favor, for this reason if for no other.

      Error assigned was in giving binding instructions for defendant.
    ■ E. Spencer Miller, for appellant.

      March 22, 1909:

      Alex. Simpson, with him Francis Shunlc Brown, for appellee.
   Per Curiam,

The judgment is affirmed on Judge Audenried’s opinion.


text:
    Day v. Pennsylvania Railroad Company, Appellant.

      Mechanics’ liens — Subcontractor—Notice of intent to file lien.

    1. Where a written notice by a subcontractor to the owner, of an intention to file a mechanic’s lien has attached to it a copy of the contract between the subcontractor and the contractor, which does not in express terms refer to certain specifications under which the subcontractor’s work was done, the notice will not be deemed insufficient, if it appears as a fact that the specifications themselves were in the possession of the owner. Even if the notice were deemed insufficient on this account, an amendment made after trial and verdict which brought the specifications on the record, would cure the defect.
    2. Where, in such a case, the article supplied by the subcontractor was a patented device composed of various parts of iron, wood, etc., the subcontractor was not bound to set out in his notice an itemized statement of the different articles and materials of the device as a whole.
    3. Where on the trial of a scire facias sur mechanic’s lien the evidence is conflicting as to the date when the work was finished and completed, the case is for the jury.
    Argued Jan. 19, 1909.
    Appeal, No. 128, Jan. T., 1908, by defendant, from judgment of Superior Court, Oct. T., 1907, No. 197, affirming judgment of C. P. No. 3, Phila. Co., Dec. T., 1903, No. 3,882, M. L. D. in case of H. L. Day v. Pennsylvania Railroad Company, Owner, and M. P. Seeley, J. S. Seeley and G. R. Delamatyr, trading as Seeley, Son & Co., Contractors.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from the Superior Court.

      Morrison, J., filed the following opinion:
    This is an appeal by the Pennsylvania Railroad Company, owner, from a judgment on a sci. fa. sur mechanic’s lien in favor of the appellee, a subcontractor. Seeley, Son & Company entered into a contract with the appellant for the erection and construction of a grain elevator. The structure was to be equipped with a certain patented device known as a “dust collector.” On February 21, 1903, Seeley, Son & Company entered into a written contract with the appellee for the construction and installation of the dust collector complete, for the entire sum of $2,124. The appellee averring that he had completed his contract in accordance with its terms and specifications referred to in the contract, furnished by George M. Moulton & Company, ánd that the contractors had neglected and refused to pay him for his work and materials, gave notice to the appellant, in writing, duly sworn to, and served on October 30, 1903, of his intention to file a mechanic’s lien against said grain elevator, etc., to secure a balance alleged to be due appellee of $940.79. In pursuance of said notice, the appellee filed his lien January 15, 1904. As the claim was filed appellee claimed the additional sum of $168, as alleged under a verbal modification of the written contract, and this sum was included in his lien.
    A rule was taken to strike the lien off and, on argument and consideration, the court below made the rule absolute as to the $168, and discharged it as to the balance.
    In the opinion of the court refusing to strike off the lien as filed, under the written contract, some doubt is expressed in regard to the failure of the written notice to refer to and give information as to the George M. Moulton & Company specifications referred to in said contract. The learned court, however, held the notice sufficient and refused to strike off the lien for that reason.
    While we find several reasons alleged by appellant in the statement of questions involved, assignments of error, argument, etc., for reversing the judgment, they all hinge on the question of the validity of the lien: First, as to the specifications of George M. Moulton & Company, they were in terms made a part of the contract between the appellee and Seeley, Son & Company. The recital in the contract is “with the dust collecting system according to the specifications of George M. Moulton & Company and the following specifications.” We are not fully convinced that the failure to attach to the lien the Moulton & Company specifications and to set them out in the notice was fatal to the lien. But we need not decide that question because the learned court below permitted the lien to be amended, and if said specifications were a material part of the lien, the amendment brought them on the record and cured that defect. That the court had power to grant this amendment, we think is clear under the fifty-first section of the Act of June 4, 1901, P. L. 431. That this amendment was not made until after trial and verdict, we do not consider material. It was purely technical, and upon the facts we do not think it introduces anything new into the case of which the appellant has cause to complain. It is averred, and not denied, that during all the time the work was being done and the litigation carried on, the appellant had possession of the Moulton & Company specifications and the appellee did not have possession or custody of the same, or a copy thereof. Moreover, we understand it to be a conceded fact that the appellee completed the dust collector in accordance with his contract and the specifications, and, therefore, we cannot see how it would have benefited the defendant a particle if the Moulton specifications had been attached to the lien and referred to in the notice to the defendant of the appellee’s purpose to file the lien.
    It is contended that the lien is bad because it fails to comply with paragraphs 4, 6 and 8 of sec. 11 of the act of June 4, 1901. But when we take into consideration the fact that the appellee agreed to construct and install a complete dust collector, which was a patent device composed of various articles of wood, iron, etc., and that the appellant was fully advised of the appellee’s claim by the copy of the contract and specifications attached thereto, and reference to the Moulton specifications contained therein, we are inclined to the opinion that the paragraphs referred to were substantially complied with. We cannot agree with the contention that the appellee was bound to set out an itemized statement of the wood, iron, pipes] nails and other materials which went into the construction of the completed dust collector.
    We are of the opinion that the notice of the intention to file a lien, dated October 26, 1903, was a substantial compliance with the act of assembly, and under the facts it gave the defendant all the notice required: sec. 8, Act of June 4, 1901, P. L. 431.
    It is admitted that the notice served is in the following form:
    “To the Pennsylvania Railroad:
    “I hereby give you notice that I intend to file a mechanic’s lien on the grain elevator and curtilage appurtenant thereto, situate at Germantown Junction, Philadelphia, Pa. The amount due to me is $940.79. My claim arises out of a written contract with Messrs. Seeley, Son & Co., Contractors, a copy whereof is hereto attached and made part hereof, my obligations in said contract having been fully performed by me. The said sum is made up of the contract price therein recited, to wit, $2,124.00, together with the further sum of $168.00, the reasonable cost of testing and altering the work done under the aforesaid contract.
    “There has been paid to me by the Contractors the sum of $1,351.21, leaving the aforesaid sum of $940.79 still due and payable to me. The labor and materials furnished for the said grain elevator by me were such as are necessary in the erection of the patented dust collector which formed the subject-matter of the aforesaid contract. The last work done and materials furnished in and about the erection of the said dust collector were done and furnished August 7, 1903.
    “[Signed] H. L. Day.”
    This notice was duly sworn to on October 26, 1903, and served on October 30, 1903. When we remember that the appellee’s contract was attached to this notice and that it ■ simply referred to the specifications of George-M. Moulton & Company, and that they were not made a part of the contract, and that they were at all times in the custody of appellant, we think this notice is sufficient.
    The case was tried on its merit, and the jury found on sufficient evidence all of the essential facts entitling the appellee to recover. We do not understand it to be contended that the amount of the verdict and judgment is not justly due and owing to the appellee, and it is conceded that he could not collect the same from Seeley, Son & Company.
    The most serious question raised at the trial was whether the dust collector was finished and completed prior to July 30, 1903, or was it not so completed until August 7, 1903. If it was completed at and before the former date, then the sworn statement of notice served October 30, 1903, was too late and the lien was invalid, but if the work done up to August 7, 1903, was a necessary part of the construction of the dust collector, then the notice was in time and the lien filed in pursuance thereof was valid. This question was squarely raised by points presented by defendant’s counsel, and the jury was carefully instructed as to the law and that the lien could not be sustained and the verdict must be for the defendant if the work done in August “was not done in and about the erection and construction of the dust collecting system, but was done in changing or altering the work already done and put in so as to make the system operate as a completed work, then your verdict ought to be for the defendant.”
    Under the evidence this question was for the jury: Holden v. Winslow, 18 Pa. 160; Driesbach v. Keller, 2 Pa. 77. We do not consider the. alleged insufficiencies of the notice and claim as presenting any substantial difficulty. “The object of the notice is to inform the owner of the demand and the nature thereof in order that'he may require payment of the contract, or in default thereof, withhold the amount from the contract price:” Thirsk v. Evans, 211 Pa. 239. All the cases agree that a substantial compliance is sufficient, and this is shown to exist wherever enough appears on the face of the statement to enable the owner to ascertain the amount of the claim, its date and the nature and amount of the labor or material out of which it arises: Este v. Penna. R. R. Co., 27 Pa. Superior Ct. 521. In American Car & Foundry Company v. Alexandria Water Co., 215 Pa. 520, a lien was filed by a subcontractor, and it was stricken off by the court below. In reversing the judgment and reinstating the lien much was said by the Supreme Court that applies to the case in hand. “But all the cases agree that a substantial compliance is sufficient, and this is shown to exist wherever enough appears on the face of the statement to point the way to successful ■ inquiry.” “ Adherence to the terms of the statute is indispensable, but the rule must not be pushed into such niceties as serve but to perplex and embarrass a remedy intended to be simple and summary, without, in fact, adding anything to the security of the parties having an interest in the building sought to be incumbered. Certainty to a common intent has, theretofore, always been held to suffice.” The doctrine of that case and several others, construing the act of 1901, we think upholds the lien in the present case. We are at a loss to see what additional knowledge or benefit the appellant would have derived if the court below had required a strict compliance with all of the extremely technical points raised by counsel for appellant. If the court below had adopted the counsel’s views, and struck the lien off, it would, we think, have been error. It is well to note that this is a contest between the subcontractor and owner, and that no lien creditor is questioning the validity of the mechanic’s lien..
    March 22, 1909:
    We do not find any reversible error raised by the several assignments, and they are all dismissed, and the judgment is affirmed.

      Error assigned was the judgment of the Superior Court.

      J. Quincy Hunsicker, with him John Hampton Barnes, for appellant.

      Harry E. Kohn, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the Superior Court.


text:
    Cassidy’s Estate.

      Will — Codicil—Gift to widow — Power cf appointment.

    Where a testator gives all of his estate absolutely to his wife, and appoints her executrix, but later owing to her mental condition he makes a codicil appointing another person as executor, and directing such person as trustee to use the income of the estate for the support and maintenance of his wife, and after her death to dispose of the estate as she shall by will direct, the estate upon the death of the wife intestate, goes to the heirs and next of kin of the wife and not to those of the husband.
    Argued Jan. 19, 1909.
    Appeal, No. 304, Jan. T., 1908, by Charles G. McCloskey, from decree of O. C. Phila. Co., Jan. Term, 1901, No. 495, dismissing exceptions to adjudication in Estate of Michael J. Cassidy, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    Anderson, J., filed the following adjudication:
    The testator died March 14, 1900, leaving him surviving his widow, Margaret Cassidy, but no children, and neither father, mother, brother or sister; and having first made and published his last will and testament, dated December 24, 1880, by which he gave, devised and bequeathed all his estate to his wife absolutely, and appointed her executrix of his will. The wife having become temporarily, at least, insane, it was necessary for her to be removed to a hospital for patients of that character, and on the same day, being March 5, 1900, the testator, fearing, no doubt, that she was unable properly to manage his estate, or to look after her own affairs, made a codicil to his will, in which he provided as follows: “As it is my desire that my wife Margaret Cassidy shall not have any unnecessary trouble with my affairs I hereby appoint my friend, George Yaux, Junior, to be the Executor of my Will in lieu and stead of my said Wife; and I further hereby constitute and appoint him Trustee for her, and give, devise and bequeath, to him the whole of my estate In Trust he to invest the same and keep it invested, and after defraying the necessary expenses of management to pay over the net income derived therefrom unto my said wife Margaret Cassidy for her support and maintenance, but so that no part thereof shall be subject to attachment or other legal process. And upon the decease of my said wife I direct my Trustee to dispose of my said Estate in such manner as she shall by her last Will and Testament direct.”
    Margaret Cassidy, the widow, died October 3, 1907, without exercising the power of appointment, and leaving collateral kindred.
    At 'the death of the decedent his next of kin were unknown to the executor. At the audit claim was made on the part of certain persons that they were the next of kin, and entitled to the esfatefunder the intestate laws, on the ground that the codicil had so changed the will as to reduce the estate, given to the wife, from an absolute one to a life estate with the super-added power of appointment; and that, in default of such appointment, the testator had died intestate.
    A question j having arisen as to whether or not there were next of kin io the decedent, the audit was postponed for further investigation on this point. Subsequently the next of kin and heirs of the wife, Margaret Cassidy, presented a claim to the auditing judge on their behalf to the whole estate, on the ground, that the codicil had not so changed the will as to deprive the wife of her absolute estate. A subsequent hearing was had, at which the testimony of Mr. Vaux, the accountant, was taken as to the facts surrounding the testator at the time of the execution of the will, and the case was ably and elaborately argued. In construing this will and codicil we must bear in mind that this is the will of a childless man whose whole family consisted of his wife. The claim here is that the codicil is so repugnant to the terms of the will as to change its character. While it is true that an absolute gift can be reduced by a subsequent unequivocal direction to a lesser estate, as in Shower’s Estate, 211 Pa. 297; Sheetz’s Appeal, 82 Pa. 213, yet, we must bear in mind that this direction must be unequivocal, and, also, that the codicil cannot be construed as revoking the will, but should be read as part of it, modifying, wherever the terms of the codicil are inconsistent with the will, and reaffirming the original will except as it is so modified by the codicil. “The fundamental distinction between the nature of a codicil and a later will should be borne in mind,” said Mr. Justice Potter, in Sigel's Estate, 213 Pa. 14; “the later will works essentially a revocation, while the codicil is a confirmation except as to the express alterations which it may contain; and, therefore, while in the case of a later will a revocation may be presumed, this is not true of a codicil. It means rather an addition than a revocation.” To the same effect see opinion of Mr. Justice Williams, in Shalters v. Ladd, 163 Pa. 509. That is, the two together form one instrument, the codicil being the last expression of the testator, and overriding the will where the two are antagonistic.
    Applying this rule to the present case, we find, first, that the testator gave his estate to his wife without any limitation as to time; secondly, he puts it in trust for her benefit, to relieve her of the management and to save her from her incapacity; thirdly, he directs all the income to be paid for her maintenance and support; fourthly, she has a power to devise, and bequeath it generally; and lastly, the estate given to her is not only without limit as to time, but there is no limitation over on failure to make a will, want of issue, or for any other cause. The sole purpose of the testator in making his will was to provide for his wife, and he gave her the whole of the estate. Nor does the codicil, in the mind of the auditing judge, show any change in that intent. True it is, that he takes the legal estate from her, and vests it in the hands of a trustee, which is one of the elements which the Supreme Court held, in Nevins's Estate, 192 Pa. 258, showed the intent of that testator to reduce an absolute gift to a life estate. But in that case there were other expressions which showed clearly that the testator did intend to reduce the quantity of the estate; and here the testimony of Mr. Yaux — which to the auditing judge should only be considered so far as showing the circumstances surrounding the making of the codicil; being incompetent as to anything in reference to the contents thereof, or the declaration of the testator, or witness, as to the meaning of the language of it — shows clearly why this change was made. No sensible man, whose wife had the misfortune to be even temporarily out of her mind, would rest content with a will in which the management of the property was left in her hands. Under these circumstances, the testator naturally would feel that it would be better not to leave his property under the control of the wife; so he states in the codicil, and names a trustee for her, providing someone to guard her interests in the matter — a most natural and wise provision, which, under these circumstances, would not show an intent to reduce her interest in the gift. He, however, giving her still the whole beneficial interest without any gift over, and provides the estate should go under her last will and testament. We have, therefore, in reading these two papers together, an absolute gift modified by a trust for the wife’s protection, with power in her of a disposal by will. Does this reduce the gift as contended from an absolute to a life estate?
    The auditing judge is of the opinion that the rule of law, as gathered from the authorities, is to the contrary; that where there is a devise in a will, the wifi is only changed so far as necessary by the codicil, and reaffirmed as to the balance. Again, that where there is a devise or bequest indefinitely, and no gift over, the devisee or legatee takes an estate in fee, as in Sheetz’s Appeal, 82 Pa. 213. In Taylor’s Estate, 4 Phila. 376, Thompson, P. J., says: “By the will, the bequest is absolute and unqualified, not restricted to his life, and not limited over. The codicil gives the trustees authority to hold the principal and pay only the interest to the legatee, according to their discretion. Does this alone restrict the bequest to a life interest only? Without a limitation or some further indication of such an intention, we think it does not. In this case there is nothing to show that the testator desired to do more than to enable the trustee to prevent an unwise use of the legacy. It was given to the legatee for his sole benefit; no other beneficiary was thought of. It is not to be supposed that the testator intended to limit the bequest to unknown parties who might by law be entitled to inherit from the legatee, rather than to leave it to be disposed of as the first taker might think proper. The trustees might restrict him to the interest, but his right in the corpus of the legacy remained absolute. It is of course vested at his death in his administrators.”
    In McAleer's Estate, 4 Pa. Dist. Rep. 360, Penrose, J., says: “It is a principle in the interpretation of wills, so well established that it has become text-book law, that under an absolute gift, in the first instance, to children or legatees, followed by a direction that the shares shall be held upon trusts which do not exhaust the whole interest, the legatees take their shares absolutely, subject only to the qualifying trusts: Hawkins on Wills, 267, 268; Theobald on Wills, 245. This is a corollary of the rule that a clear gift will not be cut down by subsequent words except to the extent clearly and necessarily indicated.”
    In addition to this there is the rule that where there is a general gift without limitation as to life, with superadded power of appointment, this does not cut down the general gift, but is simply an expression of the testator that the devisee or legatee shall have that power which has already been given. As was said by Penrose, J., in Shallcross's Estate, 13 Phila. 374: “The distinction between a grant for life, with power of appointment by will, and a general grant, with similar power, is well settled. In the latter case the gift is construed as conferring the absolute property, and the power is regarded as nothing more than an anxious expression of the donor that the donee may have an uncontrolled power of disposing of the property.”
    In the present case the inference is so strong that the testator did not intend to limit the absolute gift in the will by the codicil, that no other conclusion can be reached. The balance of this fund, is, therefore, awarded to the administrator of the widow.
    The court dismissed exceptions to the adjudication.

      March 22, 1909:

      Errors assigned were in dismissing exceptions to the adjudication.

      James C. Sellers, for appellant. —
    The contention of the appellant is that the purpose and effect of the codicil to Michael J. Cassidy’s will were to reduce the absolute interest given to his wife by the terms of the will to a life estate merely, with a superadded power of appointment. Or rather, to revoke the absolute gift altogether, and to give her in its stead the right to receive the net income from the trustee during her life, with power to direct by will how the trustee should dispose of the principal.
    If the codicil stood alone, there can be no doubt that it would be construed so as to give the widow a life interest only: Lewis’s Est., 108 Pa. 133; Nevins’s Est., 7 Phila. 506; Oyster v. Knull, 137 Pa. 448; Schoyer v. Kay, 217 Pa. 32; Shower’s Est., 211 Pa. 297; Howland v. Clendenin, 134 N. Y. 305 (31 N. E. Repr. 977).

      Thomas Earle White, of White, White & Taulane, and Francis Macomb Gumbes, with them Ernest E. Prevost, Walter Penn Shipley and Wm. S. Windle, for appellees.
   Per Curiam,

The decree is affirmed for the reasons stated in the adjudication by the learned judge of the orphans’ court.


author: Mr. Justice Elkin,

text:
    Commonwealth v. Nazarko, Appellant.

      Criminal law — Murder—Charge—Belief of jury — Evidence.
    1. On a murder trial it is not error for the court to refuse a point as follows: “If the jury believe that the defendant at the time of the killing did not know the consequences of his act and did not do it in pursuance of a previously formed purpose or design, then the law does not regard him guilty of murder of the first degree.” Such a point should show that the belief must be based upon evidence. Otherwise the jury might feel at liberty to act upon a mere capricious belief.

      March 22, 1909:

      Criminal law — Murder—Intoxication as a defense.

    2. At common law intoxication was not a defense to a charge of murder, nor is it an absolute defense in this state. In Pennsylvania such a defense can be made for the purpose of affecting the degree of murder, but not to entirely absolve the perpetrator of the crime from responsibility to answer in some degree for his unlawful deed.
    Argued March 8, 1909.
    Appeal, No. 50, Jan. T., 1909, by defendant, from judgment of O. & T. Luzerne Co., Sept. T., 1908, No. 441, on verdict of guilty of murder of the first degree in case of Commonwealth v. Stanley Nazarko.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Lynch, P. J.
    The opinion of the Supreme Court states the case.
    Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

      Errors assigned appear by the opinion of the Supreme Court.

      Martin J. MvThall, with him John J. O’Donnell, for appellant,

      Abram Salsburg, district attorney, for appellee.
   Opinion by

Mr. Justice Elkin,

An examination of this record will show that appellant had a fair trial in the court belovr and that the evidence was sufficient to sustain the verdict which found him guilty of murder of the first degree. The assignments of error are without merit under the facts established by proof at the trial, except, perhaps, the third assignment which will be briefly considered. The learned trial judge was requested in a point submitted to charge the jury as follows: “If the jury believe that the defendant at the time of the killing did not know the consequences of his act and did not do it in pursuance of a previously formed purpose or design, then the law does not regard him guilty of murder of the first degree.” As an abstract proposition, this is a correct statement of the law, but whether it is applicable in a particular case depends upon the nature of the defense set up and the testimony produced at the trial. The point as submitted requested the court to instruct the jury if they, “Believe that the defendant at the time of the killing did not know the consequences of his act,” he would not be regarded in law as guilty of murder of the first degree. If this instruction had been given as requested it would have been misleading because a jury might form such a belief without any evidence on which to found it. Under such an instruction a jury might capriciously or otherwise without reference to the testimony, form a belief that no one who knew the consequences of his act would commit such a crime, and of course this would be error. The belief of a jury must be founded on the testimony, and the instructions of the court must likewise have reference to it. The point in question should have requested if the jury believe from the evidence that the defendant at the time of the killing by reason of intoxication, which was the only excuse attempted to be given in mitigation of his crime, did not know the consequences of his act, this would affect the degree of murder. The point was not so submitted and the learned trial judge committed no error in declining to affirm it. The defendant submitted nine points in writing, eight of which were either affirmed without .qualification, or with such modification as the facts of the case required. The only point refused was the sixth, and it is apparent that the learned trial judge did not consider this point to be based on the evidence and thought it might mislead the jury. . The defendant had all the benefit of his theory of intoxication he was entitled to in the general charge to the jury and in the answer to the points submitted. At common law intoxication was not a defense to a charge of murder, nor is it an absolute defense in our state. In Pennsylvania such a defense can be made for the purpose of affecting the degree of murder, but not to entirely absolve the perpetrator of the crime from responsibility to answer in some degree for his unlawful deed.

Assignments of error overruled, judgment affirmed and record remitted to the court below for the purpose of execution.


text:
    Osborne, Appellant, v. Sundheim.
    March 22, 1909:

      Trespass — Damages—Loss of employment — Attorney at law.

    A passenger in a street car, had his face slightly scratched by glass in a collision. At the instance of an acquaintance he went to the office of two attorneys and instructed them to bring an action against the company. He was examined by a physician employed by the attorneys, who reported to them and to him that there was no evidence of injury. He was subsequently examined by a physician employed by the railway company at the office of the physician who had first examined him. After the second examination the plaintiff, fearing that he would lose his position in a department store in which he was employed because of having brought the action, directed his attorneys to abandon it, and they did so. The head of the department in which he was employed discharged him because of information received when the officers of the railway company were making an investigation as to the extent of his injury. He subsequently brought an action against the attorneys and the acquaintance who introduced him to them to recover damages caused by the loss of employment. Held, that he had no cause of action.
    Argued Jan. 18, 1909.
    Appeal, No. 206, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1907, No. 2,121, on verdict for defendants in case of John L. Osborne v. Joseph Sundheim, Harry G. Sundheim and Edgar Engle.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for loss of employment. Before Ralston, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendants.

      John H. Fow, for appellant.

      W. Horace Hepburn, for appellees.
   Per Curiam,

The plaintiff was a passenger in a car of the Philadelphia Rapid Transit Company, that collided with another car, and his face was slightly scratched by a piece of broken glass. He lost no time and incurred no expense because of the injury. At the instance of an acquaintance he went to the office of two attorneys and instructed them to bring an action against the company. He was examined by a physician employed by the attorneys, who reported to them and to him that there was no evidence of injury. He was subsequently examined by a physician employed by the transit company at the office of the physician who had first examined him. After the second examination the plaintiff, fearing that he would lose his position in a department store in which he was employed because of having brought the action, directed his attorneys to abandon it, and they did so.

The head of the department in which he was employed discharged him because of information received when the officers of the traction company were making an investigation as to the extent of his injury. This action is against the attorneys and the acquaintance who introduced the plaintiff to them, to recover damages caused by the loss of employment.

This was the whole case.presented by the plaintiff, and all that need be said of it is that there was an entire failure to establish a cause of action, and that a verdict for the defendant was properly directed.

The judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Castor, Appellant, v. Schaefer.

      Negligence — Injuries by a carriage and team — Speed—Crossing at public street — Nonsuit.
    In. an action by a girl to recover damages for personal injuries sustained by being run down at a public street crossing by a team and carriage, it is error to enter a compulsory nonsuit where the evidence offered by the plaintiff, although somewhat conflicting and not easy to reconcile, tends to show that the defendant at the time of the accident was driving at a high rate of speed, that the speed was within his control, and where, taking everything into consideration, including the obstructions to view, a reasonable inference can be derived that the defendant fell short of his full duty to the plaintiff.
    Argued Jan. 12, 1909.
    Appeal, No. 244, Jan. T., 1908, by plaintiffs, from order of C. P. No. 2, Phila. Co., Dec. T., 1905, No. 4,148, refusing to take off nonsuit in case of Louisa Castor, a minor, by her next friend and guardian, Calvin H. Castor, and George J. Castor, Administrator of the Estate of Frank H. Castor, deceased, v. Louisa K. Schaefer and John Birkman, Executor of George Birkman, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before
    WlLTBANK, J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was the order of the court refusing to take off nonsuit.

      Augustus T. Ashton, with him Victor Frey, for appellants.—
    The appellants contend that under the following cases the testimony shows that the defendant was negligent: Schmidt v. McGill, 120 Pa. 405; Christian v. Commercial Ice Co., 3 Pa. Superior Ct. 320; Streitfeld v. Shoemaker, 185 Pa. 265; Boggs v. Railroad Co., 216 Pa. 314; Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 233; Henson v. Arthur, 217 Pa. 156.

      Joseph W. Catharine, for appellees. —
    Plaintiffs failed to prove that the driver of the team into which the girl plaintiff ran, was guilty of negligence in the management of it, and that such negligence was the proximate cause of the accident: Summers v. Brewing Co., 143 Pa. 114; Small v. Rys. Co., 216 Pa. 584; Cunningham v. Bellknap, 60 S. W. Repr. 837; Gottwald v. Bernheimer, 6 Daly, 212; Kochesperger v. Rapid Transit Company, 217 Pa. 320; McCahill v. Kipp, 2 E. D. Smith (N. Y.), 413; Quinlan v. Railroad Co., 4 Daly, 487; Streitfeld v. Shoemaker, 185 Pa. 265; Kleinert v. Ice & Coal Co., 6 Pa. Superior Ct. 594; Schwartz v. Brahm, 130 Pa. 411; Hensen v. Arthur, 217 Pa. 156; Funk v. Electric Traction Co., 175 Pa. 559; Goshorn v. Smith, 92 Pa. 435; Baker v. Fehr, 97 Pa. 70; Kelly v. Traction Co., 204 Pa. 623; Strawbridge v. Bradford, 128 Pa. 200; Rachmel v. Clark, 205 Pa. 314; Parker v. Ry. Co., 207 Pa. 438; Kehler v. Schwenk, 144 Pa. 348; Dynes v. Bromley, 208 Pa. 633; Hestonville Pass. Ry. Co. v. Connell, 88 Pa. 520; Nagle v. Railroad Co., 88 Pa. 35.
    March 29, 1909:
   Opinion by

Mr. Justice Stewart,

The plaintiff, a young girl under the age of fourteen, while attempting to cross a street in the city of Philadelphia, at a public crossing in daytime, was run over by a passing team driven by George Birkman, the original defendant, since deceased, whose executors have been substituted on the record. It was charged that plaintiff had sustained her injuries in consequence of the negligence and carelessness of defendant in driving his horse at a rapid and excessive rate of speed, and failure on his part to direct its course of travel with due regard to the safety of the plaintiff. At the close of the testimony offered on part of plaintiff, the court directed 'a nonsuit, which it afterwards refused to take off. We are not permitted to know the considerations which prevailed to determine this action of the court, since no opinion was filed and no expression of view is to be found in the record. Whatever these considerations-may have been, we think them inadequate to support the nonsuit. With respect to the question of the defendant’s negligence the inference to be derived from the testimony is fairly debatable. Apart from the plaintiff, whose narrative of the occurrence is lacking in particularity, but two witnesses testified as to how the accident befell. Their testimony is not in exact accord, due perhaps to the circumstance that their points of observation were not the same; but however this may be, in considering the question now before us, we must have regard to the testimony which makes most strongly for the plaintiff’s contention. It is always for

the jury to reconcile conflicting statements of witnesses and say which is to prevail. The testimony presents this view of the occurrence: Plaintiff was walking east on Howell street and had reached the north crossing of Torresdale avenue. Before attempting the crossing she looked up the avenue and saw a fire engine coming south but no other vehicle coming from that direction. She had ample time to clear the crossing before the engine could reach it, but thought it prudent ;to walk rapidly. There is a double line of railway tracks on the avenue; the one on the west side, where plaintiff was, is ordinarily used for travel moving south, the other for travel moving north. As plaintiff stood on the pavement before starting to cross, a lumber wagon came along proceeding northward on the track farthest from her.. It had reached the crossing when she started and obstructed her view of the driveway beyond, that is, the driveway beyond the east track and between the track and the pavement along which the defendant was driving south. Plaintiff had advanced to the middle of the street and was between the two lines of railway tracks when the lumber wagon cleared the crossing. She immediately advanced in the rear of the wagon, only, however, to be struck by the defendant’s team which came along between the east track and pavement at a rapid rate. It does not appear where the defendant first saw the plaintiff; whether when she first fentered on the crossing, or not until the moment she was struck; but in either case the speed at which he was driving might well support an inference that he fell short of his duty with respect to the plaintiff. If he saw her when she was just advancing on the crossing, a duty was upon him under the circumstances to regulate his speed with special reference to her safety; if he did not see her until she was directly in front of his horse, it must have been either because he was unobservant, or his view obstructed. If the latter, so much the greater care was required of him in approaching the crossing, especially in view- of the fact that he was driving south on the side of the street not ordinarily used for travel in that direction. Of course, if the defendant, through no fault of his, had lost control of his horse, and its speed was not of his ordering, there would be no liability; and in actions of this kind the plaintiff assumes the burden of proving affirmatively the negligence charged. While the testimony on this branch of the case is somewhat conflicting, and not easy to reconcile, yet, having regard to that which makes most for plaintiff’s contention, there was quite enough in it to support a finding that the speed was within defendant’s control.

.The question of plaintiff’s contributory negligence was clearly for the jury. Waiving consideration of the circumstance that the plaintiff was under fourteen years of age, and having regard exclusively to the facts as they appear from the evidence submitted, a determination by the court that contributory negligence was thereby established, could not be sustained.

Judgment reversed and procedendo awarded.


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    Samuel Hano Company, Appellant, v. Hano.

      Trusts and trustees — Executors and administrators — Assessment on stock — Corporation—Parties.
    Where a testator leaves his estate, including shares of stock in a foreign corporation, to his executors in trust for the uses and purposes declared in his will, and the executors file their account, and a decree is entered awarding to them as trustees the stock in question, a decree of a court of the state of the corporation’s origin subsequently entered levying an assessment against the executors of testator is no ground for an entry of a judgment in this state against the trustees. The decree awarding the stock to the trustees cannot be impeached collaterally, and as long as it stands the stock in the hands of the trustees is discharged of liability for any indebtedness of the testator’s estate. In such a case the fact that the individual trustees were the same persons as the executors of the will is a matter of no significance.
    Argued Jan. 13, 1909.
    Appeal, No. 259, Jan. T., 1908, by plaintiff, from order of C. P. No. 4, Pbila. Co., March T.,1907, No. 3,609, discharging rule for judgment for want of a sufficient affidavit of defense in case of Samuel Hano Company v. Aaron R. Hano, Rachel Hano and Samuel Cohen, trustees under the last will and testament of Louis Hano, deceased.
    Before Mitchell, C. J., Fell, Mestrezat, Potter. Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover assessments levied upon the stock of a corporation. Before Audenrieb, J.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in discharging rule for judgment for want of a sufficient affidavit of defense.

      Stevens Heckscher, of Duane, Morris, Heckscher & Roberts, for appellant. —
    While it is true that there was no duty on the part of defendants to have the stock transferred from themselves as executors to themselves as trustees, they would probably have been permitted to have made an election and rejected the stock as a damnosa hereditas, or an undesirable piece of property, much as an assignee may reject a policy of insurance that would be more burdensome than beneficial. But in the absence of any overt act on their part rejecting the stock, the presumption is that they accepted the gift of inheritance for their beneficiaries, especially when the stock was awarded to them as trustees as part of decedent’s estate by our orphans’ court. The burden of proof is on defendants to show such rejection of the stock, and such an election “must be evidenced by unequivocal acts, clearly proved, and the burden of showing this is upon him who alleges that an election has been made:” Miller’s Estate, 159 Pa. 562; Cox v. Rogers, 77 Pa. 160; Provident Life & Trust Co. v. Fidelity Ins., etc., Co. 203 Pa. 82; Coquard v. Marshall, 14 Mo. App. 80; Whitney v. Butler, 118 U. S. 655 (7 Sup. Ct. Repr. 61); Schofield v. Turner, 213 Pa. 548.

      John G. Johnson, with him Furth & Singer, for appellees.—
    A suit cannot be maintained against Aaron R. Hano, Rachel Hano and Samuel Cohen, trustees, etc., upon the decree of the New Hampshire court, directing an assessment against Aaron R. Hano, Rachel Hano and Samuel Cohen, executors of the will of Louis Hano, deceased.
    March 29, 1909:
   Opinion by

Mr. Justice Stewart,

By a decree of a New Hampshire court made January 3, 1906, an assessment was levied upon the shares of stock of an insolvent corporation of that state for the payment of the debts of the corporation. One Louis Hano, a citizen of this state, was, at the time of his death, December 14, 1897, the owner of 5,100 shares. These shares were included in the general assessment, and were assessed as held by “Aaron R. Hano, Rachel Hano, and Samuel Cohen, Executors of the will of Louis Hano, of Philadelphia, Penna.” The amount of this particular assessment was $10,200, and the present action was brought by the receiver of the corporation, in the name of the corporation, against these defendants for its recovery. If the action were for the recovery of an assessment made against these defendants, or if it were against the legal representatives of the estate of Louis Hano, deceased, the several very interesting questions involving the regularity and enforcibility within this jurisdiction of the foreign decree sued on, and which were so ably discussed on the argument, would necessarily be for our consideration and determination. But we face neither of these conditions. The assessment was not made against the defendants; nor are they brought into court as the executors of the will of Louis Hano, but as “trustees under the will of Louis Hano, deceased.” The plaintiffs would derive liability on their part as trustees from the following facts which are recited in the third paragraph of the statement of claim filed: “At the time of his death, said Louis Hano was the owner of five thousand one hundred (5,100) shares of stock of said Samuel Hano Company, and by his last will and testament, dated August 19, 1897, and a codicil thereto dated November 12, 1897, and recorded in the office of the Register of Wills of Philadelphia County, in Will Book 196, pp. 569, etc., bequeathed and devised all his property, including the aforesaid stock, to his executors, Aaron R. Hano, Rachel Hano and Samuel Cohen, in trust for the uses and purposes declared in his said will and codicil. Said will and codicil were duly probated before the Register of Wills of Philadelphia County, State of Pennsylvania, and the said Aaron R. Hano, Rachel Hano and Samuel Cohen duly qualified as executors of the estate of said Louis Hano, deceased. Said executors duly filed their account, and by an adjudication of the Orphans’ Court of Philadelphia County, State of Pennsylvania, dated March 17, 1899, in said estate of Louis Hano, deceased, No. 559, October Term, 1897, all of the aforesaid shares of stock were awarded to the - accountants, the said Aaron R. Hano, Rachel Hano and Samuel Cohen, as trustees (the defendants herein), for the further uses and trusts declared in said will.' Said stock continued to be held by defendants as trustees up to the time of and subsequent to the levying of the assessment of two dollars ($2.00) per share aforesaid and is still held by said trustees.”

Had the decree of the New Hampshire court ordering the levy of an assessment been directed against the defendants as trustees owning or holding the stock, the facts above stated would be pertinent, and quite sufficient, other things being equal, to impose liability on the estate in their hands; but the decree established an indebtedness of Hano, and involved his estate only. The defendants, as trustees, stand in no relation; at least no representative relation, to the estate of Hano. The funds they hold, and which they are answerable for, were, it is true, derived from the estate of Hano, but they ceased to be any part of that estate when they were awarded to and received by the defendants under a decree of distribution in the adjudication of the account of the executors. If for any reason they can yet be made answerable for any unsatisfied indebtedness of the estate of Hano, it is quite certain that no such recovery can be reached through a common-law action brought by the creditor against the trustees. Yet this would be the result were the present action to be sustained. The debt here sought to be recovered is the debt of Hano fixed and established by the decree against the estate. Even conceding that there may be equitable reasons why the estate in the hands of these trustees should be held liable for its payment, these can only avail as they are asserted in a proceeding for a review of the adjudication under which the trustees held. So long as the decree upon that adjudication stands, it may not be impeached collaterally or circumvented, and these defendants will continue to hold the funds awarded them thereunder discharged of liability for any indebtedness of the estate of Louis Hano. The fact that the individual trustees were executors of the will as well, is a matter of no significance. When they settled their account as executors their functions as executors ceased so far as concerned the estate accounted for and distributed. Thereafter they continued to act as trustees, not by reason of the fact that they had been executors, but by virtue of the appointment contained in the will. The learned judge of the court below in his opinion dismissing the motion for judgment for want of sufficient affidavit of defense states the case in a paragraph: “Here then,” he says, “is an action in which it is attempted to recover money from certain persons acting in one capacity on the basis of the decree of a court in another state which requires those parties to pay it in an entirely different capacity. We are clear that the decree of the New Hampshire court against the defendants as the executors of Louis Hano affords no ground for the entry of a judgment against them as trustees under Louis Hano’s will.” In this conclusion we concur.

Appeal dismissed at costs of appellant.


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    Somerset Coal Company, Appellant, v. Diamond State Steel Company.

      Receivers — Taking property into foreign jurisdiction — Attachment execution.

    1. Where money comes into the hands of receivers of an insolvent corporation appointed by the courts of another state and thereafter such money is brought by the receivers into Pennsylvania, it cannot be attached by a creditor of the corporation in this state.
    2. A receiver who has obtained rightful possession of personal property within the jurisdiction of his appointment will not be deprived of his possession, where he takes it in the performance of his duty, into a foreign jurisdiction. It cannot there be seized by creditors of the debtor residing within such foreign jurisdiction; and the rule applies not only to the personal property itself, but also to money representing the proceeds of the sale of such property, after such money has been brought into the foreign jurisdiction.

      Attachment execution — Funds received by garnishee after service of writ.

    3. The effect of an attachment is to bind all funds of the defendant debtor that come into the hands of the garnishee after service of the writ and before judgment is entered.
    Argued Jan. 15, 1909.
    Appeal, No. 254, Jan. T., 1908, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1904, No. 3,116, discharging rule for judgment against garnishee upon answers to interrogatories in case of Somerset Coal Company v. Diamond State Steel Company, Defendant, and Philadelphia Warehouse Company, Garnishee.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule for judgment against garnishee upon answers to interrogatories.
    The opinion of the Supreme Court states the case.

      Error assigned was order discharging rule for judgment against garnishee upon answers to interrogatories.

      H. S. P. Nichols, for appellant. —
    The garnishee cannot complain of a judgment entered against it in this proceeding, because it is a mere stakeholder, and it must be a matter of indifference to it whether it pays the money to the attaching creditor, the plaintiff, under an order and judgment of this court, or whether it pays the amount to the defendant or its creditors in the jurisdiction of Delaware. The defendant cannot complain, because it voluntarily came into the jurisdiction of the court and paid the money to the garnishee to abide the action of the court, upon condition that the garnishee account to it for the surplus after the attachment was disposed of.
    A sum deposited for a certain use, if not so used, is .a debt due to the depositor: Balliet v. Brown, 103 Pa. 546; Rozelle v. Rhodes, 116 Pa. 129.
    It would hardly be questioned under the facts of this case, as above set forth, that a judgment entered against the garnishee in this case would be an absolute protection to it, and would be a bar to any suit entered against it to recover the amount of the judgment in another state: Embree v. Hanna, 5 Johns. 101; Wilkinson v. Hall, 72 Mass. 568; Wallace v. McConnell, 38 U. S. 136; National Fire Ins. Co. v. Chambers, 53 N. J. Eq. 468 (32 Atl. Repr. 663).
    The parties defendant and garnishee are before this court and therefore a judgment can be entered which will be binding upon them not only here but everywhere: Moore v. Spackman, 12 S. & R. 287; Noble v. Oil Co., 79 Pa. 354.
    Goods pledged to a Pennsylvania corporation by a contract made in Philadelphia the pledge to be repaid in Philadelphia, are subject to attachment sur judgment recovered here against the pledgor, though the goods be stored by the pledgee for the sake of convenience in Delaware: Philadelphia Nat. Bank v. Hilgert, 3 Penny. 437; Childs & Co. v. Digby, 24 Pa. 23; Merchants’, etc., Nat. Bank v. Baeder Glue Co., 164 Pa. 1.
    Whatever may have come into the hands of the garnishee up to the time of answering is bound: Franklin Fire Insurance Co. v. West, 8 W. & S. 350; Silverwood v. Bellas, 8 Watts, 420; Sheetz v. Hobensack, 20 Pa. 412; Mahon v. Kunkle, 50 Pa. 216; Hays v. Lycoming Fire Ins. Co., 99 Pa. 621; Riley v. Hirst, 2 Pa. 246.

      Ruby R. Vale, with him Ward & Gray, for appellees. —
    The sale of the merchandise in compliance with the decree of the court having jurisdiction in Delaware and a stipulation entered into between the garnishee and receivers for the defendant did not make the' proceeds of such sale, in excess of the amount required to liquidate garnishee’s claim, liable to the attachment: Penna. R. R. Co. v. Pennock, 51 Pa. 244. The stipulation between the garnishee and defendant did not provide for the bringing into the jurisdiction of the Pennsylvania courts either the merchandise stored in Delaware, or the whole or any part of the proceeds of its sale.
    The decree of the United States circuit court for the district of Delaware, passing upon the respective claims of property of the garnishee and the receivers to the specific property attached, cannot change the effect of the principles of law above adverted to for the reason that an attachment can bind only the property which has been attached and cannot by any possible legal fiction be extended to property which never came within the grasp of the process: Glenny v. Boyd, 26 Pa. Superior Ct. 380; Smith v. Eyre, 149 Pa. 272.
    An attachment execution issued by a Pennsylvania court against a foreign corporation and served upon a garnishee in Pennsylvania does not bind merchandise, which at the time of the impetration of the writ and service of interrogatories upon the garnishee is located on land situate in the state of Delaware, leased by the garnishee from defendant and held by garnishee with the merchandise thereon stored as security for a loan made by the garnishee to the defendant, said loan being made in Pennsylvania and its repayment promised to be made in said state: National Bank v. Furtick, 2 Marv. (Del.) 35; Penna. R. R. Co. v. Pennock, 51 Pa. 244; Hollister v. Goodale, 8 Conn. 332; Childs v. Digby, 24 Pa. 23; Noble v. Oil Co., 79 Pa. 354; Stevenot v. Koch, 28 L. R. A. 600; Illinois Cent. R. R. Co. v. Cobb, 48 Ill. 402; Bates v. Chicago, etc., Ry. Co., 60 Wis. 296 (19 N. W. Repr. 72); Rozelle v. Rhodes, 116 Pa. 129; Merchants’, etc., Nat. Bank v. Glue Co., 164 Pa. 1.
    March 29, 1909:

      John Douglass Brown, for Philadelphia Warehouse Company, garnishee.
   Opinion by

Mr. Justice Stewart,

The Somerset Coal Company, a corporation of this state, having here obtained judgment against the Diamond State Steel Company, a corporation of the state of Delaware, caused a writ of attachment execution sur judgment to issue, summoning the Philadelphia Warehouse Company as garnishee. The writ when first served held nothing within its grasp. The Warehouse Company was not indebted in any way to the defendant debtor, and held no property belonging to the latter which was subject to the attachment process. On the contrary, the Diamond State Steel Company was largely in debt to the Warehouse Company, and for this indebtedness it had pledged and had delivered ta the Warehouse Company, upon the latter’s storage yards in Delaware, a lot of iron and steel in various forms. The- property thus pledged was beyond the reach of process issuing from a court within this state. As to it the attachment was without effect, and the Warehouse Company could do with it what it pleased without incurring responsibility to the attaching creditor. The effect of an attachment, however, is to bind all funds of the defendant debtor that come into the hands of the garnishee after service of the writ and before judgment is entered. Subsequent to the service of the writ and before answer was made, the Diamond State Steel Company passed into the hands of receivers. By arrangement between the Warehouse Company and the receivers, approved by the court in Delaware having jurisdiction, the iron and steel held in pledge by the former were surrendered to the receivers, on the stipulation that the Warehouse Company should be paid its claim first from the proceeds of the sale of the same, and in addition the sum of $5,000 “to abide the determination of the attachment issued out of the Court of Common Pleas No. 3 of the City and County of Philadelphia, with the right on the part of the receivers to apply for leave to intervene in the cause in which the aforesaid attachment issued, and to take such steps as they may be advised by counsel to secure the dissolution of the said attachment; the Warehouse Company to account to the receivers for any surplus portion of said $5,000 which may remain after the said attachment has been disposed of.”

There is nothing in the mere circumstance that the money was placed in the hands of the garnishee to abide the result of the attachment that gives the appellant any right to it. The object of so placing it was not to benefit the creditor, but to protect and indemnify the garnishee. In no sense can the latter be said to hold as trustee of the former. The one question in the case is, was this money in the hands of the garnishee within this state exempt from the attachment from the suit of creditors here, because of the fact that it is part of an insolvent estate being administered upon in the state of Delaware by a court of equity through receivers appointed by the court, brought here for special purpose by the receivers under the sanction of the court that appointed them? The contention on part of the appellee is, that the court of Delaware having no jurisdiction beyond the limits of that state, the money when it came into this state, came released of all the right and title which the receivers had to it in the state of Delaware. The question thus raised is not a new one, though it seems never to have been expressly decided in our state. In several other jurisdictions it has been squarely met and decided and in a way adverse to appellant’s contention. If the decisions are not numerous, they are uniformly consistent both in their reasoning and conclusions, and have been accepted without challenge. In Crapo v. Kelly, 83 U. S. 610, personal property located in Massachusetts was transferred to an assignee in insolvency proceedings; the property afterwards being in New York was attached by a creditor of the insolvent residing there. It was held that the assignee had the prior right. In Pond v. Cooke,

'45 Conn. 126, the receiver of an insolvent concern appointed by a court in New Jersey, where it was located, took possession of its assets, and for the purpose of completing a bridge in Connecticut, which the concern had contracted to build, bought some iron with the funds of the estate and sent it into Connecticut, where it was attached at a suit of a creditor there. It was held that the property having once vested as the property of a receiver by the law of the state where the property was situated, the law of another state would not divest the receiver of his right to it if he should take it into such state in the performance of his duty. The court there said: “When property has oncé vested in a trustee, assignee or receiver, by the law of the state where the property is situated, it makes no difference whether it is done under the local law of the state or the common law. The laws of another state will not divest the trustee, assignee or receiver of his right to the property, should he take it into said state in the performance of his duty. The courts of said state will inquire whether he has such right to the property when it comes into the state as between himself and their own citizens, but when the fact that he has such right is ascertained they will not regard it as important by what mode the right was acquired.” In Chicago, etc., Railway Company v. Keokuk Northern Line Packet Company, 108 Ill. 317, it was held that a receiver who had obtained rightful possession of personal property within the jurisdiction of his appointment, will not be deprived of his possession though he takes it in the performance of his duty into a foreign jurisdiction; that it cannot there be taken by creditors of the debtor residing within such foreign jurisdiction. The present case cannot be distinguished from those we have cited in any material respect. The money in this case was derived from the sale of goods in Delaware which had passed into the possession of the receivers; the money stood in the place of the goods; the receivers in compliance with the order of the court having jurisdiction over them and the assets, placed it in the hands of the garnishee in this state. The money thereafter continued to be the property of the receivers, and as such was as exempt from attachment here as it would have been had it remained in Delaware. The debtor himself could have asserted no right to it as against the receiver; and it is a recognized rule that the rights of the attaching creditor are simply those of the debtor. In the adjudged cases above referred to the controlling fact was that the property sought to be held by the attachment had already passed into the possession of the receivers. Once in their hands, it was thereafter subject only to the control and disposition of the court having jurisdiction over them and their accounts. Comity in such cases prevails to exempt the property from attachment in a foreign jurisdiction, when taken there under authority from the proper court;

Judgment affirmed.