text:
    Hood, Appellant, v. Pennsylvania Society to Protect Children from Cruelty.

      Wills — Construction—Intention—Change of law by judicial decision.

    While it is the general rule that when a judicial decision is rendered the law is not presumed to be changed by it, but to have been the same before as after, although previous decisions may have been to a different effect, the rule is met, in the interpretation of wills, by the cardinal and controlling principle that the intention of the testator must prevail.
    Where at the date of a will it was generally accepted as the law that a gift of a life estate to a daughter and after her decease then to her children “her surviving” gave the daughter’s daughter a vested remainder, the actual intent of the testator will be considered as what it would have been understood to be by the law as it existed at the date of the will.

      Argued March 25, 1908.
    Appeal, No. 391, Jan: T., 1907, by plaintiffs, from decree of O. P. No. 4, Phila. Co., Dec. T., 1905, No. 2,715, dismissing bill in equity in case of Bessie D. Iiood and DeWitt Clinton Derringer v. Pennsylvania Society to Protect Children from Cruelty.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity to remove cloud on title. Before Willson, P. J.
    The bill alleged that under the will of William Patterson, deceased, his daughter, Mary Jane Patterson, took only a life estate in the real estate in question, and that the interest, of Mary A. Smith, the daughter of the said Mary Jane Patterson, in the premises was in the nature of a remainder contingent upon her surviving the said Mary Jane Patterson, and that, therefore, the said Mary Jane Patterson and Mary A. Smith and her husband were not vested with an estate in fee in the premises, and that a mortgage executed by them was not operative to convey to appellee the interest of appellants in the premises. The bill further recited that said mortgage was null and void as to appellants, and that its existence created a cloud upon the title of appellants in said premises.
    Willson, P. J., filed an opinion which was in part as follows: It was claimed on the part of the plaintiffs that Mary Jane Patterson took only a life estate in the premises before mentioned, that said Mary A. Smith’s estate in the same was in the nature of a remainder contingent upon her surviving her mother, the said Mary Jane Patterson, and that, therefore, the said Mary Jane Patterson, Orley M. Smith and Mary Ann Smith were not vested with an estate in fee in the said premises, and that the said mortgage deed was not operative to convey to the mortgagee the interests of the plaintiffs therein.
    It is claimed on. behalf of the defendant that, at the time when the will under construction was made, as well as when the mortgage in controversy was executed, the life tenant, Mary Jane Patterson, and her daughter, Mary A. Smith, together with the husband of the latter, were together vested with the entire estate in the premises, and were, therefore, fully competent, under the law, to execute the mortgage in question, and thereby to subject the whole estate in the premises to the lien of the mortgage. Several oases have been referred to us as sustaining this proposition, viz.: Manderson v. Lulcens, 23 Pa. 31•; Womrath v. McCormick, 51 Pa. 504; Laguerenne’s Estate, 15 Phila. 553 ; McClure’s Appeal, 72 Pa. 414; and Muhlenberg’s Appeal, 103 Pa. 587.
    I do not understand that o.n behalf of the plaintiffs any opposition is made to this position of the defendant. Whether or not that be so, the cases referred to seem to me, beyond all controversy, to sustain the defendant’s point. Though the language of the wills which were under construction in the cases just cited was not in any instance identical with the language of the will now under construction, every essential element in the present case which would go to determine the nature of the estate that was taken by Mary A. Smith was covered by the cases mentioned, and, under those cases, I have no hesitation in reaching the conclusion that, at the time when the mortgage was made, the law of Pennsylvania was to the effect that Mary A. Smith held a vested estate in remainder in the premises in question, and, therefore, that she, along with her mother, Mary Jane Patterson, and her husband, were possessed of.the entire estate in the property, and had full legal power to execute the mortgage and thereby subject the entire estate in the property to the lien of the mortgage. At the same time, it must be admitted, and it is admitted by counsel for both the plaintiffs and the defendant, that the law of Pennsylvania upon the subject under consideration has since been differently stated, and that if the present controversy is to be determined according to the view which is now taken in our state of the nature of such an estate as was created by the will, it. would be necessary to reach the conclusion that Mary A. Smith took only a contingent estate under the will, that upon her death the entire estate in fee vested in her children, the plaintiffs, and- that, therefore, the estate of the plaintiffs is not bound by the mortgage.
    In this state of the controversy it only becomes necessary to consider whether the rights of the parties shall be determined according to the construction which the law would have given to the will at the time the will was made and the mortgage was executed, or whether such rights shall be determined according to the law as it exists at the present time.

      It is true, as a general principle, that when courts of á given jurisdiction depart from a rule of construction applied, e. g., to the language of wills, and adopt another at variance therewith, it is to be regarded as an expression of a judgment by the courts that the law as modified was always the correct view to take of a particular question, and that earlier expositions of the law were erroneous. It is, however, equally true that, where judicial decisions have given to certain language á definite construction and meaning, the intention of the testator in the use of such language can only be reached by giving to the words employed by him in his will the meaning which had been fixed by judicial determination at the time when the will was made or when it went into effect. Such a course would seem to be necessary in order to avoid the thwarting of a testator’s intentions and to prevent the doing of great wrong to those.who may have acquired estates or entered into obligations upon the faith of the law being that which it had been decided to be. In the construction of every will it is incumbent upon the courts to endeavor to ascertain the intention of the testator. To do this is of’ more importance than to adhere to a rule of construction. In any case, how can the intention of the testator in the use of certain words be better determined than by knowing what meaning the courts have attached to such words ? In the case in hand, William Patterson used certain language disposing of his real-estate. Ab-cording to the settled construction given to such language by the courts at the time he made his will and when- he died, his daughter, Mary A. Smith, took a vested estate in -remainder in the property which is now in controversy. Must we not necessarily draw the inference that he intended she should have such an estate, and, therefore, that she should have the right, along with her mother and husband, to execute-such a mortgage as the defendant took? On the faith of the law as it was then interpreted the defendant presumably parted with money, to secure the return of which the mortgage was given. The rights of the defendant may be regárded as having then been settled according to a proper interpretation to be given to the will of the testator. Under such circumstances, I deem it entirely proper to conclude that the action of the testator’s widow and daughter in making the mortgage in question-'ivas strictly in accordance with the rights and estate which the testator intended to confer upon them, and that the rights of the defendant should now be determined with reference to the character of the estate which, under the law as it then existed, the testator must be regarded as having intended to confer upon his daughter, and not according to what the courts at the present time would regard as the intention of a testator under a different view as to the construction to be placed upon such language as was used in the will in question. I may add that it is somewhat indicative of the intention of the testator that in his will he charged certain annuities and legacies “ upon the said remainder and residue of my estate herein devised to my daughter, Mary Jane and her children, in order that they may be paid out of the same.” The language just quoted apparently indicates that it was the understanding of the testator that the entire estate in the property in question would, under the provisions of his will, vest in his daughter, Mary Jane, and her children, and this view tends to corroborate the opinion already expressed by me.
    The court dismissed the bill.

      Error assigned was decree dismissing the bill.

      B. F. Pepper, with him G. W. Pepper and Bayard Henry, for appellants.
    Between 1850, the date of the will, and 1884, the date of the mortgage, the decisions of the courts of Pennsylvania, in cases involving the interpretation of wills analogous to the Patterson will, were in great confusion, and it was impossible to formulate from them any clear rule for the construction of such wills.
    Assuming, for the sake of this argument only, that, between 1850 and 1884, it was well settled by judicial decision that words similar to those appearing in the Patterson will would create a vested remainder, nevertheless this court will follow its later decisions under which the remainder must be held to be contingent: Haskett v. Maxey, 134 Ind. 182 (33 N. E. Repr. 358); Centre School Twp. v. Board of School Commissioners, 150 Ind. 168 (49 N. E. Repr. 961); Kenyon v. Welty, 20 Cal. 637; Allen v. Allen, 95 Cal. 184 (30 Pac. Repr. 213); Alferitz v. Borgwardt, 126 Cal. 201 (58 Pac. Repr. 460).

      May 25, 1908 :
    A change by statute is only for the future. A change by decision is retrospective, and makes the law at the time of the first decision as it is declared in the last decision, as to all transactions that can be reached by it: Storrie v. Cortes, 90 Texas, 283 (38 S. W. Repr. 154); Bradshaw v. Mill Co., 52 Minn. 59 (53 N. W. Repr. 1066) ; Ray v. Western Penna. Nat. Gas Co., 138 Pa. 576.

      John G. Johnson, for appellee.
    Language similar to the present, in accordance with the settled decisions of this court as the same stood at the time of its use, was understood as giving a vested remainder to a person situated as was Mary Ann Smith, the daughter of Mary Jane Patterson : Mulliken v. Earnshaw, 209 Pa. 226 ; Frame v. Stewart, 5 Watts, 433 ; Manderson v. Lukens, 23 Pa. 31; Womrath v. McCormick, 51 Pa. 504; McClure’s App., 72 Pa. 414; Muhlenberg’s App., 103 Pa. 587 ; Laguerenne’s Est., 15 Phila. 553 ; McBride v. Smyth, 54 Pa. 245 ; Buzby’s App., 61 Pa. 111; Delbert’s App., 83 Pa. 462 ; Woelpper’s App., 126 Pa. 562.
    The present will must be interpreted in accordance with the meaning of the language as understood at the time of its making by the Supreme Court of Pennsylvania, and necessarily by the legal profession : Ray v. Gas Co., 138 Pa. 576 ; Quin’s Est., 144 Pa. 444 ; Mulliken v. Earnshaw, 209 Pa. 226 ; Seybert v. Hibbert, 5 Pa. Superior Ct. 537 ; George v. Morgan, 16 Pa. 95 ; Lisle’s Est., 22 Pa. Superior Ct. 262 ; Carroll v. Burns, 108 Pa. 386 ; Bellerjeau’s Est., 18 Phila. 83 ; Gelpcke v. City of Dubuque, 68 U. S. 175.
   Per Curiam,

It is quite true, as urged by the appellants, that when a judicial decision is rendered the law is not presumed to be changed by it, but to have been the same before as after, although previous decisions may have been to a different effect. This is the general rule, but it is not to be applied-in all cases without discrimination. On the subject of interpretation of wills it meets the cardinal and controlling principle that the intention of the testator must prevail. It is undeniable that this principle had in certain classes of cases been so overlaid and hedged in by arbitrary canons of construction as to become a subordinate instead of a d'ominant rule. As was said in Mulliken v. Earnshaw, 209 Pa. 226, “ The want of harmony-in'the cases dealing with the period-to which the words ‘then living,’ or similar phrases, in a will should be applied, arises mainly from the artificial canon of, construction that the period intended is presumed tó be the death of the testator. The canon itself grew out of the preference in the policy of the law, in all doubtful cases, for vested rather than contingent interests. ' Like all artificial rules it had the constant tendency to become an arbitrary fetter, instead of a mere instrument for the ascertainment of the testator’s intent. The policy of the later cases in this state, if not everywhere, is to get back to the true rule of looking only to the actual intent. There is no sound reason in the nature'of things why the actual meaning 'of the person using the words should not be sought in the case of a will exactly as it is in the case of a contract.”

In the present case, therefore, as in all others, the question is, what was the intention-of the testator, and that is to be ascertained by what the testator understood to be the legal meaning of his language at the time he used it. It is practically 'conceded that at the date of the testator’s will the gift of a life estate to his daughter and after her decease then to her children “ her surviving,” gave the daughter’s daughter a vested remainder. That being the generally accepted meaning of the language at the time the testator used it, must, in the absence of anything to the contrary, be accepted as the expression of his actual intent.

On this point we adopt what was said by the learned judge below.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Pennsylvania Railroad Company, Appellant, v. Southwestern Street Railway Company.

      Railroads — Street railways — Contract—Written agreement — Contradiction — Affidavit of defense — Negligence.
    In an action by a steam railway company against a street railway company to recover the amount of certain damages which the plaintiff had been compelled to pay by reason of a collision between a train and a wreckage car of the defendant on which the persons injured were riding,
    ■ the statement of claim set forth a contract between the two companies regulating the crossing, and averred that the accident had happened by reason of the defendant violating the agreement in not stopping the ear before crossing and in running the ear in a direction opposite to that which was required by the contract. The defendant filed an affidavit of defense in which it averred that the car had been run in a proper manner, had stopped at the crossing, and that the provision of the contract relating to the direction of the running of cars did not apply to a wreckage car. Held, that the affidavit of defense was sufficient to pre-. vent judgment.
    Argued April 2, 1908.
    Appeal,. No. 17, Jan. T., 1908, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1906, No. 3,229, discharging rule for judgment for want of a sufficient affidavit of defense in case of Pennsylvania Railroad Company v. Southwestern Street Railway Company.
    Before Mitohell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for breach of contract.
    Rule for judgment for want of a sufficient affidavit of defense.
    The material averments of the statement of claim and affidavit of defense are set forth in the opinion of the Supreme Court.
    The court discharged the rule for judgment for want of a sufficient affidavit of defense.

      jError assigned was the order of the court.

      E. J. Sellers, of Sellers & Rhoads, for appellant.

      John G. Bell, for appellee.

      May 25, 1908:
   Opinion by

Mr. Justice Stewart,

This appeal is from an order of court discharging a rule for judgment for want of a sufficient affidavit of defense. The action was brought to recoup from the defendant company damages which had been recovered against the plaintiff company by certain parties for injuries sustained in a collision at a grade crossing; the plaintiff contending that the collision was in consequence of a violation by the defendant company of the terms of an agreement under which it was permitted to máintain and use the- crossing. By this same agreement the defendant company undertook to indemnify and save harmless the plaintiff from and against all loss or damage which might be imposed upon or recovered against it in consequence of any negligence on the part of the defendant company in the use of said crossing, or failure on its part to use the same in the way stipulated and provided for in the agreement. The parties injured in the collision, and who recovered against the plaintiff company, were, at the time of the accident, riding in what is known as a wreckage or repair car of the street railway company. As the car was moving upon and over the grade crossing, it was run into by an engine on plaintiff’s road. The statement of claim filed in the case sets out the agreement between the two companies with respect to the construction, maintenance and manner of use of the crossing, and avers two distinct breaches of the agreement by the defendant company, from which it is claimed the accident resulted. The line of road of the defendant company is composed of two parallel tracks. These are so operated that the cars employed in passenger travel moving eastward proceed on the southern track, and those moving westward on the northern. The derailing switch placed at the approaches to the railroad tracks at either side, are effective as this order of movement of cars is observed. A car moving eastward on the northern track would have no interruption at the grade crossing by reason of the switch at that point. In this particular instance the car that was struck by the passing engine was moving eastward on the northern track, and this the plaintiff avers was a distinct breach of the agreement between the two companies. The agreement also provided that the defendant company would cause each and every car on its railway when approaching the crossing, to be stopped at a safe distance therefrom, and not permit them to cross until the track should be free from passing or approaching engines, cars, or trains, etc. The statement avers, as another distinct breach, that the defendant failed on this occasion to stop the car at a safe distance from the crossing before moving forward upon the tracks. The affidavit of defense admits the agreement between the two companies, but denies any and all liability on its part thereunder for any damages resulting from this particular occurrence. It contains a positive and specific denial of the averment that its car was not stopped at a safe distance from the crossing before the crossing was attempted, and asserts that the car was brought to a full stop at a proper and safe distance; that the safety gates at that point operated by the plaintiff were negligently raised and opened, admitting defendant’s car to the crossing, and that defendant’s employee in charge of the car, after looking carefully forward to see whether the track was clear, was proceeding with due care and caution to cross, when his car was suddenly struck by the engine of the plaintiff which had given no signal or warning, and was without a headlight. As to the other alleged breach, the affidavit admits that it was defendant’s custom to run the cars employing the same track in the same direction, but asserts that this order was not required by the agreement between the companies, but was adopted for defendant’s own convenience. It denies that any such custom had been observed by it with respect to its repair or wreckage cars, and asserts that it had always been its custom, before and since the agreement, to run and operate such cars in any ■direction and to any point when and wherever the same were needed, of which fact the plaintiff had full knowledge. It further denies that it was ever contemplated or intended by the parties to the agreement, or that it is within the purview or meaning of the agreement, that the direction and movement of the defendant’s wreckage or repair cars should be controlled or governed by the agreement, and asserts that the agreement in this regard had relation only to the direction and movement of defendant’s passenger cars.

It is quite manifest, as contended for by appellant’s counsel, that had the car been on the other track the accident would not have occurred; the derailing switch it would have there encountered, would have prevented any collision. But that is a circumstance not to be considered in this connection. The plaintiff’s action is founded on a breach of the agreement, not on defendant’s negligence as a thing apart. Does or does not the agreement between the companies require the street railway company to regulate the movement of all its cars, including its wreckage and repair cars, so that all, without exception, should be controlled at the crossing by the derailing switch? If it does, then a breach having been averred in this regard, and there being no denial of the fact constituting such breach in the affidavit, the plaintiff would be entitled to judgment. But the defendant denies that the provision in the agreement relating to the use of the derailing switch applies to the movement of its wreckage and repair cars, and asserts that it extends only to the movement of passenger cars. Here is an issue squarely raised. What is included in the subject-matter of the agreement — all of the defendant’s cars, or only some of them ? Were this an attempt to contradict or vary the written agreement, a serious objection might be urged to the affidavit of defense; but it is not. It is always competent to explain and define the subject of a written agreement: Barnhart v. Riddle, 29 Pa. 92; Centenary M. E. Church v. Clime, 116 Pa. 146. A construction of the agreement that would except wreckage cars from the switch regulation, could not be said to nullify any of its terms, or contradict any part of the writing, since the agreement contains no express reference to such cars, nor are they necessarily included in the terms used. In view of what is set up in the affidavit as supporting the defendant’s contention in this regard, what the agreement includes becomes a question for the jury to decide. ' The traverse in the affidavit is quite sufficient with respect to both of the alleged breaches of the agreement to carry the case to the pry-

The order of the court discharging the rule is affirmed.


author: Mr. Justice Mestrezat,

text:
    Mittleman, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Riding on platform — Summer car— Passenger — Conductor—Contributory negligence.

    It is the duty of the conductor of an electric street car to control the operation of the car, to protect and regulate the seating of passengers and to enforce the rules and regulations of the company affecting the transportation of passengers. In such capacity he is the representative of the company and acts for it.
    It is the duty of the passenger to submit to the authority of the conductor and to observe such reasonable directions as he may give. A passenger would not be justified in obeying the instructions of a conductor to occupy a place on the car which was imminently, or manifestly dangerous, but he should take the place on the car assigned him by the conductor unless the danger is so imminent or apparent that a reasonably prudent man would not assume it.
    Where a passenger laden with numerous bundles attempts to enter the body of an open summer car, and is directed to occupy the platform by the conductor who accepts his fare, the court cannot declare as a matter of law that the passenger is guilty of negligence per se in occupying a place on the platform as directed by the conductor.
    Argued April 2, 1908.
    Appeal, No. 69, Jan. T., 1908, by plaintiff, from order of C. P. No. 3, Pbila. Co., Sept. T., 1903, No. 1,896, refusing to take off nonsuit in case of Abraham Mittleman v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Yon Mosghzisker, J.
    .The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Bernard Harris, for appellant.
    The conductor has general power and control over the train and all persons on it, with authority to compel observance of the regulations of the company, to preserve order, and to employ the whole force of the trainmen, and of passengers willing to assist, for these purposes : Duggan v. B. & O. R. R. Co., 159 Pa. 148 ; Artherholt v. Motor Co., 27 Pa. Superior Ct. 141; Rounds v. Del., etc., R. R. Co., 64 N. Y. 129 ; Brennan v. Merchant & Co., 205 Pa. 258 ; McCaw v. Traction Co., 205 Pa. 271; O’Donnell v. R. R. Co., 59 Pa. 239 ; Druzepski v. People’s St. R. R. Co., 30 Pa. Superior Ct. 380.
    May 25, 1908 :

      Thomas Learning, with him Sydney Young, for appellee,
    The plaintiff, with great deliberation, accepted the risk and wras guilty of the contributory negligence which all of our cases, without any exception, attribute to the act of riding on the front platform of a car: McMillan v. Ry. Co., 172 Pa. 523 ; Thane v. Traction Co., 191 Pa. 249 ; McDade v. Transit Co., 215 Pa. 105 ; Paterson v. Transit Co., 218 Pa. 359 ; Reilly v. Pass. Ry. Co., 4 W. N. C. 273 ; Penna. R. R. Co. v. Langdon, 92 Pa. 21; Deery v. R. R. Co., 163 Pa. 403.
   Opinion by

Mr. Justice Mestrezat,

This is an action of trespass to recover damages for injuries received under the following circumstances : On the morning of September 2, 1903, the plaintiff with a companion went to Fourth and Pine streets in the city of Philadelphia to board a street car. The plaintiff is a paper hanger and painter, and had with him on this occasion a bundle of paper, a bucket of paste, a satchel and a small stepladder. He and his companion desired to go west on a Pine Street electric car. He testifies : “ A. When I approached the car with the intention of boarding it, I approached it from the back near the conductor, and I attempted to board the car, and he said, ‘ Go to the front.’ Q. Did you go to the front? A. Tes, sir. Q. You boarded the car in front? A. Yes, sir, in front. Q, Where did you remain after the car started? A. Near the motorman. Q. On the platform ? A. On the platform.” The car was an open summer car with transverse seats extending the entire width of the car, and with no openings from the platform into the body of the car. When it reached Sixth street it collided with another car of the defendant company passing south on that street, and in the collision the plaintiff was seriously injured. The accident occurred about 7:30 o’clock in the morning.

At the close of the plaintiff’s testimony, the trial judge granted a nonsuit, giving as a reason therefor the following: “We simply have the case of a conductor saying to a passenger when he attempts to enter the rear of the car, ‘ Go forward,’ and that passenger going forward to the very extreme front of the car, to wit: the front platform, and placing himself in that which has been decided by our courts to be a position of danger, and a position where, if an accident happens to him, he is debarred from recovering.” The court in banc refused to take off the nonsuit, holding that the plaintiff in occupying a position on the platform was guilty of negligence per se. The opinion says : “ It was a mere direction to him (plaintiff) to ‘ go to the front,’ and even if it be assumed that this was a direction to him to go to the front platform as there was no constraint or compulsion it was not a sufficient excuse for him to place himself in and remain in a position of danger.”

W e have repeatedly held that it is negligence per se for a passenger to voluntarily take a position on the platform of an electric street car when there are vacant seats in the body of the car. The body of the car, as is well understood, is the place prepared for and assigned to the passenger for transportation, and it is his duty to enter and remain there until he arrives at his destination. If he fails to observe this duty and voluntarily places himself on the platform or on the running-board of the car, positions not intended to be occupied by a passenger, and which are more or less dangerous, he must assume the risk incident to such a place. But there are exceptions to this rule. Special reasons may obtain which justify a passenger in occupying a position on the platform while a car is in motion. If, as sometimes occurs, a seat is placed on one or both platforms of an open summer car, it is a sufficient reason for a passenger occupying the seat, and in doing so he is not guilty of negligent conduct. The act of the carrier company in placing the seat on the platform is an implied invitation to the passenger to use it, and estops the carrier from alleging that it is a place of danger to be avoided by the passenger. Where a passenger enters a car and by reason of its overcrowded condition there is no vacant space in the body of it, he may occupy the platform with the acquiescence and knowledge of the conductor: McCaw v. Union Traction Co., 205 Pa. 271. Such conduct does not convict him .of negligence per se. His action is justified by the necessities of the case, and by accepting his fare and permitting him to occupy the position, the conductor tacitly invites him to stand on the' platform. These and other exceptions to the general rule that a passenger must not occupy the platform of a street car are recognized not only in our own, but in other jurisdictions.

Turning now to the case in hand, we are clearly of the opinion that the facts disclosed by the testimony make it an exception to the general rule that a passenger on an electric street railway is guilty of negligence per se if he occupies a position on the platform of a moving car. The trial judge as well as the court in banc evidently misapprehended the facts of this case and the inferences to be drawn from them. When the plaintiff approached the car to enter it, the conductor did not simply direct him to “ go forward,” thereby intending that he should take a seat in the front part of the car. So far as the evidence discloses, there is no reason why the plaintiff should not have been seated in the rear as well as the front of the car. There were vacant seats in both the rear and the front, and there is nothing in the case to show that the conductor could .have had any reason for assigning the plaintiff a seat in the front rather than the rear of the car. On the other hand, a jury would have been fully justified, and it was for the jury, in finding that the direction to the plaintiff was to go to the front platform and occupy it with his incumbrances until he reached his destination. The plaintiff attempted to board the car and take a seat in the rear. When he did so the conductor said to him, “ Go to the front.” As we have said, there is no reason appearing in the case, why, if the plaintiff was to be permitted to enter the body of the car at all he should not have done so then and have occupied a seat in the rear of the car. The plaintiff was carrying several articles which might have been objectionable to other passengers and would certainly have obstructed ingress and egress to and from the body of the car, and the reasonable inference is that the command or direction of the conductor was that the plaintiff should enter the front platform and occupy it. This is also manifest and conclusively shown when we consider that the plaintiff frequently used the cars on this street with the same incumbrances he had on this occasion and was always, as testified by him, told when he would attempt to enter the inside or body of the car, “ you can’t go there because there are passengers there. The seats are for passengers. You go with your bundles to the front of the car.” We, therefore, have the case where a passenger laden with numerous bundles attempts to enter the body of an open summer car and is directed to occupy the platform by the conductor who accepts fare from the passenger for his transportation. Under such circumstances the court cannot declare as a matter of law that the passenger is guilty of negligence per se in occupying the position.

In Duggan v. Baltimore and Ohio Railroad Company, 159 Pa. 248, the present chief justice delivering the opinion of the court said (p. 254): The conductor has general power and control over the train and all persons on it, with authority to compel observance of the regulations of the company, to preserve order, and to employ the whole force of trainmen, and of passengers, willing to assist, for these purposes.” The conductor of an electric street car is invested with a like authority. It is his duty to control the operation of the car, to protect and regulate the seating of the passengers, and to enforce the rules and regulations of the company affecting the transportation of the passengers. He is the representative and acts for the company in transporting the passengers. It is the duty of the passenger to submit to the authority of the conductor and to observe such reasonable directions as he may give: O’Donnell v. Allegheny Valley Railroad Co., 59 Pa. 239. This is necessary for the safe transportation of all the passengers aboard the car. A passenger would not be justified in obeying the instructions of a conductor to occupy a place on the car which was imminently or manifestly dangerous, but he should take the place on the car assigned him by the conductor unless the danger is so imminent or apparent that a reasonably prudent man would not assume it.

Applying these principles to the case under consideration, we think that the conductor had the authority to direct the passenger to occupy the platform. It was within the powers conferred upon him by the company. The place assigned to the passenger while not regarded as safe as the body of the car, yet it is so frequently used by passengers that it cannot be regarded as imminently dangerous. It is common knowledge that in a city where the travel on electric street cars is very heavy, both platforms of the cars are constantly occupied by passengers with the knowledge and assent of the conductor and that he collects the fares for their transportation. This is so well known that it must be taken to be within the knowledge of the company and done with their approval. Therefore, the conductor having the authority to require the plaintiff to occupy the platform and the plaintiff having done so in obedience to the direction of the conductor, the plaintiff was not guilty of negligence as a matter of law, to be declared by the court, in standing on the platform while the car was in motion.

The case should have been submitted to the jury to determine the question of the plaintiff’s negligence. If the jury found that the plaintiff when attempting to board the body of the street car was directed by the conductor to occupy the platform, and that in pursuance of such instructions from the conductor he did take his place on the platform, he is relieved from the charge of negligence. In other words, the plaintiff was not guilty of negligence per se in standing on the platform under the circumstances.

"We are all of the opinion that the nonsuit was improperly granted, and, therefore, the second assignment of error is sustained, and the judgment is reversed with a procedendo.


author: Mr. Justice Fell,

text:
    Hanlon v. Lehigh Valley Railroad Company, Appellant.

      Negligence — Railroads—Grade crossing — “.Stop, look and listen”— Case for fury.

    In an action by a woman against a railroad company to recover damages for personal injuries sustained at a grade crossing, the case is for the jury where the evidence shows that the plaintiff, before starting to cross from a point fifteen feet from the tracks where she could see 500 feet, looked and listened for a train and continued to watch for-it as she walked towards the track; that at the edge of the first rail her foot struck a plank, which was out of place, causing her to drop a package, and almost fall on the rail; and that she was struck after she had crossed the tracks by the crossbeam of an engine, which was running thirty-or forty miles an hour and of the approach of which no notice was given until an instant before the accident.
    Argued April 13, 1908.
    Appeal, No. 229, Jan. T., 1907, by defendant, from judgment of C. P. Luzerne Co., June T,, 1905, No. 119, on verdict for plaintiff in case of John J, Hanlon, in his own right, and Mary Hanlon, in her own right, v. The Lehigh Valley Railroad Company,
    Before -Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Lynch, P. J.
    The facts relating to the accident are set forth in the opinion of the Supreme Court.
    Verdict and judgment for Mary Hanlon for $2,000 and for J. Hanlon for 1700. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      J. B. Woodward, of Wheaton, Darling cfk Woodward, for appellant,
    cited : McHugh v. McHugh, 186 Pa. 197; Brown v. Schock, 77 Pa. 471; Keiser v. R. R. Co., 212 Pa. 409 ; Smith v. New Castle, 178 Pa. 298 ; Baker v. R. R. Co., 182 Pa. 336 ; Dees v. R. R. Co., 154 Pa. 46 ; Carroll v. Penna. R. R. Co., 12 W. N. C. 348 ; Penna. R. R. Co. v. Mooney, 126 Pa. 244; Kraus v. Penna. R. R. Co., 139 Pa. 272; Hovenden v. Penna. R. R. Co., 180 Pa. 244.

      M. H. McAniff, for appellee,
    cited: Kraus v. Penna. R. R. Co., 139 Pa. 272; Cromley v. Penna. R. R. Co., 208 Pa. 445 ; McNeal v. Pittsburg, etc., Ry. Co., 131 Pa. 184; Muckinhaupt v. Erie R. R. Co., 196 Pa. 213 ; Doud v. Delaware, etc., R. R. Co., 203 Pa. 227 ; Davidson v. Lake Shore, etc., Ry. Co., 171 Pa. 522 ; Baker v. R. R. Co., 182 Pa. 336 ; Hovenden v. Penna. R. R. Co., 180 Pa. 244 ; Bickel v. Penna. R. R. Co., 217 Pa. 456 ; Unger v. Phila., etc., R. R. Co., 217 Pa. 456 ; Cromley v. Penna. R. R. Co., 211 Pa. 429 ; Wolfe v. Penna. R. R. Co., 22 Pa. Superior Ct. 335; Pyne v. R. R. Co., 212 Pa. 143; Carroll v. R. R. Co., 12 W. N. C. 348 ; Howard v. B. & O. R. R. Co., 219 Pa. 358.
    May 25, 1908:
   Opinion by

Mr. Justice Fell,

; The plaintiff was injured at a grade crossing of the defendant’s road under the following circumstances, as shown by her testimony and that of her witnesses. When she reached the crossing, at which there were two tracks, a train was passing east on the track farther from her and a train not then in view was approaching the crossing from the east on the nearer track. Because of a curve in the tracks, a view of the approaching train was cut off beyond the distance of 500 feet by the east bound train and by a tree and a barn that were near the tracks.. She stood fifteen feet from the crossing until the east bound train had passed and its last car was 500 feet from her, and then listened for a train and looked up and down the tracks and found them clear. She continued to watch as she approached the crossing, but to what point was not shown. At the edge of the first rail her foot struck a plank, which was raised out of place or from the side of which the earth had been wrashed, and she dropped a package she was carrying and. almost fell on the rail. She was struck after she had crossed the track by the crossbeam of the engine, which was running thirty or forty miles an hour and of the approach of which no notice was given until an instant before the accident.

This' testimony required the submission of the case to the jury. It tended to establish negligence on the part of the engineer and care by the plaintiff. Before starting to cross from a point fifteen feet from the tracks, where she could see 500 feet, she looked and listened for a train and continued to watch for it as she walked towards the track. When she committed herself to the act of crossing, she was very near the track, which was then clear for 500 feet, and no train was within hearing. She had ample time to cross before a train .not thep in sight could reach the crossing, and would have done so in safety if she had not been tripped by the plank. If she had looked after she had picked up her package, she would no doubt have seen the train, but she was then on the first rail and acted on the natural impulse to hurry over. Whether in this emergency she acted imprudently was not a question to be determined by the court. The fact that she was delayed by tripping and dropping her package while crossing the track takes the case out of the operation of the rule that a person who steps in front of a moving train which lie saw or could have seen will be conclusively presumed to have been negligent.

The judgment is affirmed.


text:
    Yevsack v. Lackawanna & Wyoming Valley Railroad Company, Appellant.

      Negligence — Electric railway — Street railway — “Stop, look and listen” —Contributory negligence.

    A person who walks in front of a moving car which he saw or could have seen by the exercise of the reasonable care which the law requires, will be conclusively presumed to have been negligent.
    Where a passenger alights from an electric car at a point where there' are platforms along the tracks, and a passageway extending from one platform to the other, and goes behind the car from which he alights ■ and is struck by a ear on the next track, he cannot recover, if it appears either that he did not look for the car, or seeing it, took the chance of crossing in front of it. In such a case the fact that the passageway was provided by the railway company for the use of persons going from one platform to the other, is a fact, to be considered in determining the passenger’s negligence, but it does not relieve him from the exercise of' reasonable care. The care required in its use is not the ordinary care required of a passenger who must cross a track, between his train and the station, but the greater care of a person at a crossing over, which he knows trains constantly pass.
    Argued April 14, 1908.
    Appeal, No. 2, Jan. T., 1908, by' defendant, from judgment of O. P. Luzerne Co., Jan. T., 1905, No. 13, on verdict for plaintiff in case of Michael Yevsack v. The Lackawanna & Wyoming Valley Railroad Company.

      May 25, 1908:
    Before Mitchell, O. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Lynch, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $2,391. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      John P. Lenahan, with him Richard B. Sheridan, for appellant.
    The fact that plaintiff was struck before he cleared the south bound track, shows clearly that when he looked from his position east of the south bound track and again between the rails he must have seen the approaching car on the south bound track, and brings the case directly within the rule laid down in Carroll v. Penna. R. R. Co., 12 W. N. C. 348; Holden v. Penna. R. R. Co., 169 Pa. 1; B. & O. R. R. Co. v. Schwindling, 101 Pa. 258; Irey v. Penna. R. R. Co., 132 Pa. 563; Morgan v. R. R. Co., 1 Monaghan, 122; Boring v. Union Traction Co., 211 Pa. 594; Baker v. Penna. R. R. Co., 182 Pa. 336.

      John MoGahren, with him John A. Mangan, for appellee, cited:
    Penna. R. R. Co. v. White, 88 Pa. 327; Flanagan v. R. R. Co., 181 Pa. 237; Kohler v. R. R. Co., 135 Pa. 346.
   Opinion by

Mr. Justice Fell,

The defendant operates a double-track electric railroad eighteen miles in length between Wilkes-Barre and Scranton. Midvale, where the accident happened, is on the line of this road but it is not a regular stopping place. Cars stop there only on signal to take on or let off passengers. There is a platform on either side of the tracks, raised three or four inches above them. A plank walk twelve feet wide and twenty-three feet long, level with the tracks, extends from one platform to the other. Between the tracks there is a fence about four feet high which extends 130 feet in either direction from the walk. The town of Midvale is west of the tracks, and persons going from it to the east platform or to it from this platform are required to use the plank walk.

The plaintiff lived in Midvale, rode on the cars frequently, and was familiar with the situation. On a September evening, when it was dusk, he got off a north bound car onto the east platform, and, as the car moved from the station, he crossed the track behind it on the plank walk and was struck by a south bound car when stepping from the west track to the west platform. He testified that he looked north when on the east platform, again when on the east track, and again when between the rails of the wTest track; that the last time he looked, he saw the car from which he had alighted 200 feet away, but saw no car approaching on the west track, although he could see up that track 250 feet. One of his witnesses, who was standing on the west platform waiting for a- car, a place less favorable for observation because of a curve in the road, testified that he could see up the track 300 feet and that he saw the car when it was that distance from the crossing, and another testified that the car that struck the plaintiff was fifty feet from the station when the car from which he had alighted had gone thirty feet from it.

It was the plaintiff’s duty to look, after he had crossed the east track and passed the fence, before attempting to cross the west track. At this point he was within seven feet of the west platform and could see up the track 250 or 300 feet. The car was lighted and there was nothing to prevent his seeing it as his witness saw it. It could not first have come into view after he had looked. The testimony of the plaintiff’s witnesses in relation to speed was that the car was running pretty fast,” “ very fast,” “ as quick as she always goes into the station.” These witnesses all agreed that the car was stopped within 150 feet of the crossing. In considering the plaintiff’s testimony in the light most favorable to him, the conclusion is irresistible that he did not look or that he saw the car and took the chance of crossing in front of it. The case is within the rule, that a person who walks in front of a moving car which he saw or could have seen by the exercise of the reasonable care which the law requires, will be conclusively presumed to have been negligent.

That the passageway over the tracks was provided by the defendant company for the use of -persons going to or from the east platform, was a fact to be considered in determining the plaintiff’s negligence; but it did not relieve him from the exercise of reasonable care. It was not a place where passengers alighted, nor a way leading from the place where they alighted to the station to which they were going, which they might assume would be kept clear of trains and be safe at the time. It led from the platform on the east to the street and, while its use was a convenience and it may be a necessity, it was not a place where passengers stood in getting on or off cars. The care required in its use was not the ordinary care required of a passenger who must cross a track between his train and the station, but the greater care of a person at a crossing over which he knows trains constantly pass.

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


author: Mr. Justice Potter,

text:
    Coolbaugh, Appellant, v. Herman.

      Corporations — Election of officers — Objection to voting of stock — Act of May 26,1893, P. L. 141 — Undisclosed trust.

    Under the Act of May 26, 1893, P. L. 141, relating to the election of directors of a corporation, it is not necessary that objection to the voting of stock should be simultaneous with the offer of the ballot. It was not the intention of the legislature that a delay of a few moments on the part of the objector should render the protest void.
    When a statute directs certain proceedings to be done in a certain way, or at a certain time, the law will be regarded as directory and the proceedings under it will be held valid, though the command of the statute as to form and time has not been strictly obeyed; the time and manner not being the essence of the thing required to be done.
    Under the Act of May 26,1893, P.L. 141, election judges at a meeting of the shareholders of a corporation are bound to reject votes offered in the name of an undisclosed trust.
    The purpose of the act of 1893 was to prevent the voting of stock by one not the owner or who was an undisclosed trustee, and the essence of the requirement as to the objection is that it must be made at a time when it may be considered and passed upon by the election officers, and the disputed ballot rejected if unlawfully offered.

      The act of 1893 was passed to further define evidence of stock ownership and the right to vote thereon. Under its provisions if the person in whose name the stock stands and who is offering a vote thereon either in person or by proxy, is not the owner thereof either in his own right or as active trustee, with the character of his trusteeship disclosed on the face of the certificate or transfer books in connection with his name, he is not entitled to vote the stock.
    Argued March 10, 1908.
    Appeal, No. 376, Jan. T., 1905, by plaintiff, from judgment of O. P. Northampton Co., Feb. T., 1907, No. 41, on verdict for defendant in case of Frank W. Coolbaugh v. Asher W. Herman.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Quo warranto to determine right to office of director of a corporation. Before Stewart, J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows :
    Now, as I have already said, the certificate of stock and the books of the company and this list which was furnished under the provisions of the act of 1874, that would be prima facie— or, in the first instance, to start off with, the evidence which these election officers had as to who had the right to vote. [“ But if objection ” — I am reading from the act of assembly —“ is taken by an actual stockholder ”■ — it is admitted that Mr. Coolbaugh was an actual stockholder — “ at the time the ballot is tendered.” It does not say at the time when the ballot was tabulated ; it does not say at the time when the calculation is made, but at the time when Kuebler and Kinsey and the other party, Hilliard, I believe it was, tendered their ballots. Was there, then, an objection made in writing; was there' an objection, accompanied by a written statement in writing, made?] [2] Now, if there was, then it shall be the duty of the judges of election to inquire and determine summarily. It does not mean that the judges of election should wait until after they had gotten in all the rest of the ballots ; but they should determine summarily whether the facts are as represented in such statement. So it seems to me that it is a preliminary and necessary thing that when these ballots were tendered to these election officers that Coolbaugh ought to put in his protest. [There is no question about • the' fact that he did protest, everybody admits that, but did he protest in time; was his protest put in at the time when these ballots were tendered by liuebier and by Kinsey and by Hilliard when they voted this trustee stock which went to make up these 1,930 votes which are in dispute ? If you find as a matter of fact from a consideration of all this testimony that he did not make his protest in time, as I have indicated what the time is, then it would be your duty to find a verdict in favor of the defendant.] [3] But if you find from all the testimony in the case that Mr. Coolbaugh did make his protest when these gentlemen tendered their ballots to the election officers, then it would be your duty to find a verdict in favor of the plaintiff; remembering that the burden is upon the plaintiff to satisfy you by the weight of the evidence that he did get his protest in at the right time. Now, by time the law does not mean that he should do it in the next second, or that he should be right there and hand it in just as soon as the other man handed in his ballot, but it must be within a reasonable time. That is to say, a party who is intending to protest and who is intending to object, ought to be present, and he ought to watch and see when ballots are offered, just as you would challenge a voter at a general election, and when the man walks up with his ballot he ought to walk up with his protest, and the one event ought to follow the other in a natural and orderly sort of way.
    Plaintiff presented these points:
    3. That it now appearing by said certificates and transfer books, the character of the trusteeship of the several persons claiming the right to vote on said stock, and the evidence in the case that the said stock was not owned by the persons claiming the right to vote thereon in their own right or as trustees, the character of whose trusteeship was disclosed on the face of the certificates and transfer books, the jury must render a verdict in favor of the plaintiff. Answer : That is refused, because it requires that the case should be taken away from you. I submit the question to you. [5]
    4. The provision in the act of 1893 that the objection to the vote of any person claiming a right to vote shall be. offered at the time the ballot is tendered, is not mandatory but directory only. Answer: I refuse that point. It seems to me that this direction that objection should be made at the time when a ballot is tendered, is of the very essence of the act of assembly, and when taken in connection with the fact that the judges are to act summarily, it seems to me that it is a mandatory provision, as I have already charged you. [6]
    6. Under all the law and the evidence the verdict of the jury should be for plaintiff. Answer: That point is refused. [7]

      Errors assigned were (2, 3, 5, 6, 7) above instructions, quoting them.

      Frank Reeder, Jr., of Reeder <& Cojjm, with him Samuel Seoville, Jr., and Charles II. Edmunds, for appellant.
    The amending act of 1893 is a remedial statute. Prior to its enactment there was no provision of law which would prohibit an inactive trustee from voting stock standing in his name contrary to the wish of the beneficial owners thereof, and against their interest. The act was intended to remedy this defect in the law, and, being a remedial measure, is to be interpreted liberally : Quinn v. Fidelity Beneficial Assn., 100 Pa. 382; Schuylkill Navigation Co. v. Loose, 19 Pa. 15; Hassenplug’s App., 106 Pa. 527 ; Clay v. McCreanor, 9 Pa. Superior Ct. 433 ; Howes Brothers v. Dolan, 9 Pa. Superior Ct. 586.
    The provisions of a statute prescribing duties to .be performed in respect to any matter are, so far as they relate to the time and manner of performance, directory only, and where the thing to be done may be as well done after as before the time described, and where it is a matter of manner, order or convenience, rather than of substance, the courts will assume the legislative intent not to have been mandatory: Gearhart v. Dixon, 1 Pa. 224 ; Magee v. Com., 46 Pa. 358 ; Cowan’s Estate, 184 Pa. 339; Com. v. Griest, 196 Pa. 396 ; Walker v. Edmonds, 197 Pa. 645 ; Com. v. Zillafrow, 207 Pa. 274.
    Whether a provision in a statute is mandatory or merely directory, depends on whether the thing directed to be done is of the essence of the thing required or is mere matter of form : Norwegian Street, 81 Pa. 349 ; Bladen v. Philadelphia, 60 Pa. 464.

      May 25, 1908:

      H. J. Steele, with him E. W. Edgar, for appellee.
    When a statute fixes the time within which an act must be done, the courts have no power to enlarge it, although it relates to a mere question of practice: Harris v. Mercur, 202 Pa. 313.
   Opinion by

Mr. Justice Potter,

■ This was a quo warranto to try the right of the defendant, Asher W. Herman, to hold the office of director of the Sterlingworth Railway Supply Company, a corporation of the state of Pennsylvania. At the annual election held January 22, 1907, certain shares of stock standing on the books in the name of “ William J. Kuebler, Trustee,” and “ Howard P. Kinsey, Trustee,” and “ Zearfoss and Hilliard, Trustees,” were voted by the parties named as trustees in favor of the defendant as a director. It was claimed by relator that these votes were illegal, and this was conceded by defendant if objection thereto at the election was made in time. It was admitted on the trial that during the election objection to the contested votes was made and a statement under oath furnished to the election officers as required by the Act of May 26, 1893, P. L. 141, but the testimony was conflicting as to whether this was done at the time the ballots were tendered, or later. It is conceded that if the objection was made and statement filed in time, sufficient contested votes must be rejected to change the result of the election so far as the relator is concerned.

The court submitted to the jury the question of fact whether the objection was made and a statement filed at the time the ballots were tendered to the election officers, saying in his charge, “ Now, by time, the law does not mean that he should do it in the next second, or that he should be right there and hand it in just as soon as the other man handed in his ballot; but it must be within a reasonable time.” But the learned judge went on to charge the jury that if there was an interval of. perhaps fifteen minutes after the ballots were tendered before the protest came and was filed with the judges of the election, that the verdict then ought to be in favor of the defendant in this case. Under this charge, the jury found for the defendant, and judgment was entered upon the verdict.

While the testimony is conflicting as to whether the protest was made immediately upon the contested ballots being offered, or ten or fifteen minute's later, it clearly appears from the evidence that at the time when the protest was- made, the election was still in progress, and there was no question as to the identitity of the ballots which had been objected to.

■This case seems to have been tried upon the theory that the election board did not act upon the protest which was filed, and that it was not required to do so, if the protest was not filed substantially at or about the time when the ballots were tendered. But it appears from the evidence that the election board did take action upon the protests, and that they determined to accept the votes as offered, in accordance with the list of stockholders furnished to them by the secretary, and that they pursued this policy in the face of and without regard to the protests. The testimony shows that the election board listened to argument as to the legality of the votes, before the voting was concluded or the result announced; and that they deliberated' upon, and talked over, the matter before deciding whether or not they would exclude the votes which were objected to. Conrad Miller, one of- the tellers, testified: “ The vote was tendered and was accepted and passed upon, and shortly after, I am unable to say just when, those papers were presented, those objections; then we stopped awhile and considered whether it was legal, whether we would pick out those ballots out of the hat again.”

It is apparently conceded by everyone that if the decision of the election board had been ' to exclude, instead of accepting them, there could have been no doubt as to the particular ballots objected to, and no difficulty in identifying and removing them from the receptacle in which they had been deposited.

The real question which arises in this case, is not whether the election board should have taken action respecting the protests, for clearly that is what they did. But the point is, whether the effect of their action is to be permitted to stand, under the plea that they should not have considered the protest at all, because it came a few minutes after the ballot was tendered. We do not consider the reference in the statute to the objection'being taken at the timé the ballot was tendered, as- a peremptory requirement that the objection and the offer of the ballot .shall be simultaneous. The learned judge of the court below concéded this, but he instructed the jury that the protest in order to be effective must follow almost immediately after, the deposit of the ballot. We are not persuaded that the legislature intended that a delay of a few moments upon the part of the objector should render his protest void. No rights were impaired thereby.

“ In general, it may be laid down as a rule, that when a statute directs certain proceedings to be done in a certain way, or at a certain time, the law will be regarded as directory and thé proceedings under it will be held valid, though the command of the statute as to form and time has not been strictly obeyed;, the time and manner not being the essence of the thing required to be done: ” Potter’s Dwarris on Statutes, 221, 22'6 (note 29).

The purpose of the statute under consideration, was to prevent the voting of stock by one-not the owner, or who was an undisclosed trustee. And the essence of the requirement as to the objection, is that it must be made at a time when it may be considered and passed upon by the election officers, and the disputed ballot rejected if unlawfully offered.

Under the facts of the case at bar, no difficulty appeared in identifying the ballots to which objection in writing was made, at the time when the election board were considering the protests. The act of 1893 was passed to further define evidence of stoék ownership and the right to vote thereon. Under its provisions, if the person in whose name the stock stands, and who is offering to vote thereon either in person or by proxy, is not the owner thereof, either in his own right or as active trustee, with the character of his trusteeship disclosed on the face of the certificate or transfer books in connection with his name, he is not entitled to vote the stock. Clearly, therefore, it was the duty of the election judges to reject the votes offered in the name of an undisclosed trust. Obviously, in so far as the stock to the voting of which objection in this case was made, was concerned, the character of the trusteeship was not disclosed, and the votes so tendered should have been rejected.

The plain intention of the statute is to prevent voting by an inactive trustee, or in behalf of an undisclosed trust. It cannot be said that such a requirement is destroying any property right. It is merely regulating the exercise of the right. If the trust be not active, the right to vote the stock is expressly reserved to the real owner by the second section of the act.

The fifth, sixth and seventh assignments of error are sustained.

The judgment is reversed and it is here entered for, the plaintiff.


text:
    Hilliard v. Sterlingworth Railway Supply Company, Appellant.

      Receiver — Removal of receiver — Corporations—Discretion of court— Review.

    A receiver, who is the officer of the court and whose actions are under its control, ought to be disinterested, unbiased and impartial as between the parties; and where any breach of propriety in any such respect occurs, it is the duty of the court to remove the receiver and substitute another. But in the exercise of this power the court must be guided by sound discretion under the circumstances of the particular case. No definite rule can be framed, but the power of removal is to be exercised under the broad discretionary jurisdiction of a court of equity. An appellate court will not review the exercise of such power, except in a case where there is a manifest abuse of discretion.
    The action of a court in refusing to remove a receiver of a corporation will not be reversed by the appellate court, where it appears that the refusal of the court below was based partly on the ground that an application was soon to be made for a termination of the receivership, and it also appears that the matters complained of could be remedied by a surcharge of the receiver on the filing of his account on the termination of the receivership.
    If a proper case for its exercise be made out, it is the right and duty of an appellate court to review the judgment of the court below as to the removal or discharge of a receiver, but this duty is one to be exercised only in cases showing a manifest abuse of discretion.
    Argued March 10, 1908.
    Appeal, No. 76, Jan. T., 1908, by defendant, from decree of C. P. Northampton Co., April T., 1907, No. 1, discharging rule to remove a receiver in case of Clinton Hilliard et al. v. Sterlingworth Railway Supply Company, defendant, and F. W. Coolbaugh, intervenor.
    May 25, 1908:
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Rule to show cause why a receiver should not be removed. Before Stewart, J.
    The opinion of the Supreme Court states the case.

      Error assigned was in discharging rule to remove receiver.

      Samuel Sooville, Jr., and Frank Feeder, with them Charles H. Edmunds, for appellant.
    The court did not properly exercise its discretion in refusing to remove the receiver: Schwartz v. Keystone Oil Co., 153 Pa. 283; Williamson v. Wilson, 1 Bland, 418; French v. Pittsburg Vehicle & Harness Co., 184 Pa. 161; Handy v. Cleveland, etc., R. R. Co., 31 Fed. Repr. 689.

      F. W. Edgar, with him II. J. Steele, for appellee.
   Opinion by

Mr. Justice Potter,

Appellant in this case has failed to print the docket entries in the court below, but we find from the paper-book of the appellee that on February 12, 1907, a bill in equity was filed by Clinton Hilliard et al. against the Sterlingworth Railway Supply Company, a corporation. On the same day the court appointed William J. Kuebler receiver of the defendant corporation, and the bond of the receiver was approved and filed. On February 18, 1907, F. W. Coolbaugh, the present appellant, asked leave to intervene, and on March 18, 1907, he filed a petition, in which he was joined by other stockholders, asking the court to dissolve the receivership. Hearing upon the motion to dissolve was postponed from time to time, and it does not appear that it was ever argued or disposed of. On November 9,1907, the court authorized a sale by the receiver, for the sum of $10,250 cash, of the machinery, tools, appurtenances and materials of the defendant company, which were contained in the rolling-mill and car shop departments of the Sterlingworth plant at Easton, Pa., and directed that the proceeds of such sale should be applied to the payment of certain mortgage bonds of the company owned by the receiver in his individual right. On December 5, 1907, F. W. Coolbaugh petitioned the court to vacate the order of sale made upon November 9 preceding, and, further, asked that the receiver be restrained from selling or removing any part of the property of the company from its • premises ; and also asked for the removal of William J. Kuebler from the office of receiver. In response to this petition rules were granted upon the receiver to show cause. An answer was filed to the petition by the receiver, and on January 13, 1908, both rules were discharged. The present appeal is taken by F. W. Coolbaugh from the order of the court below, discharging the rule for the removal of the receiver and dismissing the petition of appellant.

It appears from the opinion of the court below that a hearing was begun on December 23, 1907, when petitioners filed an amended petition, and that defendants moved the court to discharge the rules upon the ground of the insufficiency of the petition, and that the order of January 13, 1908, from which this appeal is taken, was based solely upon the insufficiency of the petition, which the court considered as amended. The petitioners alleged that Kuebler was appointed as receiver without notice. That he had no experience which would qualify him properly to discharge the duties of receiver, and that he was not an impartial person. That, after his appointment, he purchased most of the bond issue of the corporation at a price below par, and then sold the equipment of the rolling-mill and machine shop at a small fraction of its value, and applied the proceeds to the payment of the bonds at par and accrued interest.

The conclusion of the court, as set forth in its opinion, is as follows : “We have considered the matters in the petition as if no answer had been filed. This proceeding is not one between parties. It is addressed to the sound discretion of the court, and affects an officer of the court in his conduct of the business in the charge of the court. He ought not to be compelled to answer matters done under decrees of the court, unless specific charges of fraud are made. Matters alleging individual profit can be heard upon final settlement of his account. We have also considered the fact, that it was stated that the annual election of officers of this company occurs this month, and that an application would probably be made to take this corporation out of the hands of the court shortly thereafter. As a general rule an officer of a corporation ougnt never to be appointed as a receiver. We were of the impression at the time of the appointment of this receiver that as between the two contending factions he was an indifferent party, and he was also appointed because of his well-known financial responsibility and ability to secure funds upon his personal credit to operate the plant.”

It goes without saying that a receiver, who is the officer of the court and whose actions are under its control, ought to be disinterested, unbiased and impartial as between the parties; and where any breach of propriety in any such respect occurs, it is the duty of the court to remove the receiver and substitute another. But in the exercise of this power the court must be guided by sound discretion under the circumstances of the particular case. No definite rule can be framed, but the power of removal is to be exercised under the broad discretionary jurisdiction of a court of equity.

In setting forth the controlling principle, the text-book writers say: “ It has been held that the removal or discharge of a receiver rests within the discretion of the court. The discretion of the court referred to, however, is not an arbitrary or. capricious discretion, but a lawful and reasonable discretion : ” 23 Am. & Eng. Ency. of Law (2d ed.), 1128.

And, since the propriety of removing a receiver is a question for the sound discretion of the court, its decision in this respect will not ordinarily be subject to review. Thus in Alderson on Receivers, sec. 640, it is said: “Inasmuch as the appointment and removal of a receiver are matters which rest essentially in the discretion of the court, it is a general rule that a court of appeal will not review questions which have been passed upon by a lower court in relation thereto, and the rule is the same whether the one party or the other — the party of the receiver or the party opposed — attempts to prosecute the appeal.”

In Milwaukee & Minnesota R. R. Co. v. Soutter, 69 U. S. 440, it was held that the removal or appointment of a receiver rested in the sound discretion of the court and was not revisable on appeal. But in a later appeal in the same case, 69 U. S. 510, it was held that while the appointment or discharge of a receiver is ordinarily matter resting wholly within the discretion of the court below, it is not always and absolutely .so. In that case, however, the question was not as to the removal of the receiver for cause, but as to his discharge on the ground that the purpose of the receivership had been accomplished. An order dismissing an application for his discharge was reversed and the discharge was ordered, upon compliance by the petitioners with certain requirements.

In Misselwitz Lunacy Case, 177 Pa. 359, the appeal ivas from a decree appointing a receiver pendente lite over the property of an alleged lunatic. The decree was affirmed, and this court said (p. 362) : “ The appointment of such temporary custodian or receiver pendente lite, to prevent mismanagement or waste of the alleged lunatic’s property, etc., rests in the sound discretion of the court in which the inquiry is pending; and, it requires a clear case of abuse of that discretion to justify the interposition of an appellate court.”

We have no doubt whatever but that if a proper case for its exercise be made out, it is the right and duty of an appellate court to review the judgment of the court below, as to the removal or discharge or a receiver. But we are equally clear that this duty is one to be exercised only in cases showing a manifest abuse of discretion. The application here was for the removal of the receiver. The request was refused by the court below, partly on the ground that an application was soon to be made for a termination of the receivership. This was in itself sufficient to justify the court in exercising its discretion as it did. In view of the probable speedy end to the receivership, the removal sought would have been useless and would have involved the additional expense of a.new appointment for a short time only. The court also based its decision on the ground that the allegations of the petition were not sufficiently specific, with the exception of those relating to the sale of the machinery by the receiver and the application of the purchase money to the payment of the bonds held by him. In so far as the sale is concerned it appears that it was made by the order of the court, after due investigation into the facts and circumstances bearing thereon. If there be any question of surcharge as to the receiver, that may come up on the filing of his account on the termination of the receivership, and is not to be Considered on this appeal.

The assignments of error are overruled, and the appeal is dismissed at the cost of appellant.


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    Harrison’s Estate

      Decedents’ estates — Counsel fees to exceptants — Executors and administrators.

    It is only in very exceptional cases that an exceptant to the account of an executor, administrator or trustee in the orphans’ court will be allowed counsel fees out of the fund. The rule in such cases is that the exceptant must pay his own counsel fee.
    Where the fund is in the hands of the court and in no jeopardy, except from a possible mistake of the court in dealing with it, and an exceptant is merely protecting his own interest, he will not be allowed counsel fees, although through his efforts others may also be benefited.
    Argued March 24, 1908.
    Appeal, No. 387, Jan. T., 1907, by Clara A. Durant, from decree of O. C. Phila. Co., sustaining exceptions to adjudication in Estate of Joseph Harrison, Jr., deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exception to adjudication.
    From the record it appeared that the auditing judge, Ash-man, J., allowed Clara E. Durant, an exceptant, $6,000 for counsel fee
    The claim was based on services to the estate in objecting to the allowance of excessive commissions, and the payment of certain taxes and broker’s charges. The exceptions were sustained in an opinion by Lamorelle, J.

      Errors assigned were in sustaining exceptions to adjudication.

      M. Hampton Todd, for appellant.
    The other beneficiaries to the estate cannot successfully object to a reasonable allowance being made out of the estate for benefits conferred upon that estate, by restoring funds to it which had been improperly taken from it: Manderson’s App., 113 Pa. 631; Neill’s Est., 19 W. N. C. 380.

      Charles Biddle, of Biddle, Paul, Miller <& Jayne, for appellee.
    Counsel who object, or file exceptions to claims presented before an auditing judge, cannot be said to have either created a fund or saved a fund that was in jeopardy, and in such cases only, will the court order the. expenses and fees of counsel to be paid out of the fund : Neill’s Est., 19 W. N. C. 380 ; Manderson’s App., 113 Pa. 631; Kennedy’s Est., 141 Pa. 479 ; Com. v. Order of Solon, 193 Pa. 240 ; Sunderland’s Est., 203 Pa. 155.
    May 25, 1908 :
   Opinion by

Mr. Justice Potter,

Our consideration of the facts upon which this appeal is based leads us to agree with the view taken by the orphans’ court; and that is, that this case is not properly to be classed with Kennedy’s Estate, 141 Pa. 479, where an allowance for ■counsel fees was made to an exceptant out of the fund. In that case the allowance was only approved upon the peculiar facts stated in the opinion of the court below. And warning was expressly given that the action must not be drawn into a precedent for the broad doctrine that, where exceptions are filed to the account of an executor, administrator or .trustee, in the orphans’ court, the exceptant is entitled to an allowance for counsel fees out of the fund. The rule in such case is that the exceptant must pay his owii counsel.” We regard this as a most salutary rule, and not to be entrenched upon or impaired in any way. To do so would be to open the door to great abuses. This is pointed out in the opinion of Justice Dean, in Com. v. Order of Solon, 193 Pa. 240, where he elaborates the principle involved, and points out the distinction between securing or raising a fund — the actually bringing it into existence, and the mere dealing with a fund which is at the time safely in the custody of the court. He says (p. 242) : “ It is conceded that the distribution of a fund in the hands of a receiver or other trustee is to be governed by equitable principles; and where the attorney of one of several parties, all equally interested, secures a. fund which would otherwise have been embezzled or lost, and all share equally in the distribution, it is but equitable that all should share in the expense which produced the fund, although but one moved in the matter. But there is no such case here. . . . It is urged that Mr. Quincy, from his argument and some evidence produced by him, induced the auditors to reject many thousand dollars of spurious claims on the fund, and thereby all holders of certificates, whether purchased by or originally issued to them, were benefited. Admit it; but he did only what he was bound to do under his professional obligation to his own clients; if he had done less, he would have failed, in duty to them; in this particular he owed no duty to other claimants and performed none to them, although an incidental benefit may have resulted to them from the performance of a duty to his own clients. This, however, gives him no claim on them for contribution to his compensation. Suppose, as there might easily have been from the large number of claimants, thirty lawyers representing thirty separate claims, and fifty unrepresented certificate holders before the auditors, and every lawyer had urged successfully a point which induced the rejection of some unfounded claim, then compensation to each, at the rate here allowed, would have swept away the whole fund. That this claim being only for one lawyer, in no degree under the facts raises an equity in his favor. It would have been otherwise if the fund in the beginning had been raised or saved by him as counsel for his particular clients.”

We are unable in any .way to distinguish the present case in principle from that just cited. The fund was in the hands of the court, and in no jeopardy except from possible mistake of the court in dealing with it; and in that event nothing more was required for the correction of the error than the filing and argument of proper exceptions in the court below, and, if necessary, following the matter to the' appellate court. There is no evidence that anything out of the ordinary routine of legal procedure was required. The appellant was protecting her own interest, and although it may be that by means of her efforts others were benefited also, yet we know of no rule of law which will entitle her to be reimbursed for payment of counsel fees expended by her in order to protect her own interest. The services she rendered to the common interest were voluntary, and however beneficial they may have been, no legal charge for them can be sustained, in the absence of a contract of employment, either expressly made or superimposed as a matter of law or equity upon the facts.

The assignments of error are overruled.

The decree of the orphans’ court is affirmed, and this appeal is dismissed at the cost of appellant.


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    Adams, Appellant, v. Hubbard.

      Partnership — Dissolution—Accounting—Division of capital — Account stated.

    Where two partners dissolve their copartnership, and a statement of account prepared by one of them shows the amount of contribution to capital by each of them, and the agreement to dissolve shows that a liquidation of assets was contemplated, and that a possible shrinkage of assets was anticipated, one partner cannot assert as against the other that the statement of account was an account stated, and that the amount in his favor was fixed and could not be reduced by a subsequent shrinkage in the value of assets.
    Where a partnership is dissolved and its affairs are wound up, there must be a return of the firm capital to the partners contributing -it, in order that there may be a distribution of the profits. Each partner’s contribution is regarded as a firm debt to such partner, which must be repaid before there are any profits to be divided. Where one partner has advanced capital in excess of another, the amount advanced is a preferred claim upon the property of the firm. The distribution of capital upon dissolution is in the same proportion in which such capital was furnished.
    Argued April 1, 1908.
    Appeal, No. 5, Jan. T., 1908,-by-plaintiff, from decree of C. P. No. 4, Phila. Co., June T., 1906, No. 543, on bill in equity in case of John Quincy Adams v. George L. Hubbard et al., surviving partners of the firm now or late trading as George K. Hubbard & Company, and Dilworth P. Hibberd, Administrator, substituted in place of George L. Hubbard.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an accounting of partnership assets.
    The opinion of Audenrieu, J., was in part as follows:
    The partners were George K. Hubbard, who had a five-eighths interest in the business, and John Quincy Adams, whose interest was three-eighths. By this is meant that these two parties were entitled to share in the profits of the partnership venture, and bound to bear its losses in the proportions mentioned. Hubbard was the head of the firm. Adams had a particular charge of its bookkeeping. On November 30,1892, the firm was dissolved by a verbal agreement, which was subsequently embodied in a written memorandum dated November 30, 1892.
    By a statement of the firm’s condition on December 1,1892, prepared by Adams, it appears that the assets were on that date reckoned at $176,029.08. This estimate was based in the case of certain items on their appraised valuation, in the case of other items on their book value. Sundry insurance rebates, copyrights, trade-marks and old merchandise unappraised were excluded from the estimate. The liabilities of the firm were estimated at $104,192.76. It appears also by this statement that Hubbard had contributed $49,005.56 to the firm’s capital, and that Adams had contributed $22,030.76.
    The formal agreement of dissolution signed by the partners was as follows:
    “ This agreement made the 30th day of December, 1892, between George X. Hubbard and J. Quincy Adams, heretofore trading together under the firm name of George X. Hubbard & Company is wholly dissolved except as far as may be necessary for the final liquidation and settlement of the business thereof.
    “ It is agreed and understood that the said George X. Hubbard shall continue the business heretofore carried on by the late firm of George X. Hubbard & Company. That he shall take, hold arid keep the merchandise and partnership assets which he desires to retain and keep for that purpose at prices to be agreed upon between the said parties. (This does not include the trade-marks and copyrights owned by the said firm of George X. Hubbard & Company.)
    “ It is agreed that the remaining partnership assets, merchandise and other property which shall not be taken and kept by the said George X. Hubbard will be sold to the best advantage of the said parties.
    “ It is agreed that the said George X. Hubbard shall take the store, fixtures and teams heretofore used by and belonging to the late copartnership for $3,350.
    “ It is agreed that the said J. Quincy Adams shall retire from the said firm of George X. Hubbard & Company, and shall take an advanced payment on account of the distribution to be made in final settlement of the said partnership affairs as follows:
    May 25, 1908:

      “ One store and contents situate in New Jersey, $1,200 ; one store and contents in W. Philadelphia for $4,359.81; cash, $2,140.19.
    “ It is also agreed between the parties that the premises situate at the corner of Twelfth street and Diamond street shall be valued and appraised at the sum of $3,500, subject to a mortgage of $5,500, and that the said J. Quincy Adams shall have the right and privilege of taking the said premises should his share of the partnership assets upon -final settlement distribution exceed the sum of $3,500, in addition to what has been already advanced under this agreement as before set forth, to wit: the sum of $7,700.”
    Other facts appear by the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to the adjudication.

      J. Barton Rettew, for appellant.
    An “ account stated ” between partners will not be opened save for fraud or mistake, and the evidence as to fraud or mistake must be clear, precise and indubitable: Yarner’s App., 16 Atl. Repr. 98.

      D. P. Eibberd and Samuel P. Tull, for appellees.
   Opinion by

Mr. Justice Potter,

The firm of George K. Hubbard & Company, which was composed of George K. Hubbard, J. Quincy Adams and Edwin Halpen, was organized June 1, 1876, for the purpose of carrying on a wholesale grocery business in the city of Philadelphia. On June 1, 1883, Halpen retired from the firm, having assigned his interest to his copartners, and Hubbard and Adams continued the business under the same partnership name until 1892. Hubbard owned a five-eighths interest in the firm, and Adams a three-eighths interest. On November 30, 1892, the partnership was dissolved by mutual consent, the terms of dissolution being afterwards embodied in a written agreement signed by both parties under date of December 30, 1892. A statement prepared as of the date of dissolution, from the private ledger of the firm, showed that as regarded the capital account, the amount to the credit of George X. Hubbard was $49,805.56, and the amount to the credit of J. Quincy Adams was $22,030.76, and the sum of these two amounts represented the net assets over liabilities, provided that all the assets could be converted into cash at the amount at which they were carried upon the books. In accordance with the agreement, George K. Hubbard took as much of the merchandise of the old firm as was acceptable to him, and the store fixtures, etc., and formed a limited partnership which continued the business under the same name and at the same location: On February 27, 1895, George X. Hubbard died, and letters of administration were granted to George L. Hubbard.

On July 9, 1896, J. Quincy Adams filled this bill for an accounting against the surviving partners of the firm of George X. Hubbard & Company, and the administrator of George X. Hubbard, deceased. An answer was filed and the case was put at issue and referred by agreement to Horace M. Rumsey, Esq., as referee. On September 10, 1901, the referee filed an interlocutory report, recommending a decree for an accounting by the administrator of George X. Hubbard, deceased, only. Upon exception, the court in an opinion by Arnold, P. J., held that the complainant was entitled to an account, as found by the referee, and sent the case back to the referee to take further testimony and report the facts and law thereon to the court, together with a proper form of final decree. In his opinion Judge Arnold used this language: “We are also of opinion that the account stated between the parties at the time of the dissolution of the partnership in December 1892, shall be considered as a finally stated account, and not open to correction at this late day. By it Mr. Adams’ share of the assets of the co-partnership amounted to $22,030.76.”

It is upon this language of Judge Arnold that counsel for appellant bases his main contention in this controversy. In fact the only thing which he presents in his statement of the question involved, is whether this account in the private ledger, existing at the time of the dissolution of the partnership, was an account stated between the partners which fixed conclusively the amount which was due to the plaintiff and payable to him, without regard to the actual liquidation of the assets, and their conversion into cash thereafter. The referee found upon further consideration of the account, after it was sent back to him, that while the settled balance between the partners as of November 30,1892, precluded him from going back of it to inquire into any errors or omissions which might have existed in that respect, yet it did not prevent him from taking into consideration the items of which the account was composed, nor the elements which entered into the balances due to each partner. This was the plain common-sense construction of the statement of Judge Arnold, and if he did not mean it to be so understood, his statement was clearly wrong. He could not have intended to say that the amounts shown by the account represented a net amount of money on hand in the treasury of the partnership, and ready to be drawn out by the partners. Manifestly the actual amount to be divided would depend entirely upon what - could be realized out of the assets. And when the final report of the referee was made to the court below, J udge Audenried, in passing upon it, said: “It is proper to add here that when we said, after hearing the argument on exception to the interlocutory report of the referee, that the account stated c at the time of the dissolution of the partnership in December, 1892, shall be considered as a final stated account and not open to correction,’ we had reference only to its effect so far as it fixed the respective contributions of the partners.” So that the court below fully adopted and approved the view of the referee in this respect. And that this statement was not intended to set forth the amount due in cash to the partners, but represented only the condition of things as shown by the books at this date, is conclusively shown by the agreement subsequently signed by both parties dated December 30, 1892. This agreement recited that the partnership is dissolved “ except so far as may be necessary for the final liquidation of the business thereof.” It further provides that Hubbard, who continued the business, may take partnership assets “ at prices to be agreed upon between the said parties.” Assets not so taken by Hubbard “ will be sold to the best advantage of the said parties.” It was further agreed that Hubbard was to take the store fixtures and teams at a specified price, and Adams was to have two stores and a specified amount in cash “ as an advance payment on account of the distribution to be made in final settlement of the said partnership affairs.” Adams was' also to have the premises at the corner of Twelfth and Diamond streets, appraised at $3,500, subject to a mortgage of $5,500, “ should his share of the partnership assets upon final distribution exceed the sum of $3,500 in addition to what had been, already advanced under this agreement as before set forth, to wit, the sum of $7,700.” This whole agreement clearly contemplated a liquidation of the assets. If they realized the amount at which they were carried upon the books, the amount shown to be due the partners could be paid, but otherwise not. Whatever shrinkage might result in the assets would reduce by that much, the amount for actual distribution. And when we recall the fact that this statement as made up included the sum of $116,849.09 of open book accounts, it is not at all strange that there should have been considerable shrinkage in converting them into cash. Accepting, therefore, the statement of the account of December 1, 1892, for what it really was as showing the settled amount contributed by each partner to the capital of the firm, the learned judge of the court below took the view that these contributions to capital were to be repaid before there could be any division of the profits. He stated Hubbard’s contribution as $49,005.56, which seems to involve a clerical error of $800, as the figures in the private ledger account are $49,805.56, but appellee has accepted this slip without complaint. The contribution of Adams is $22,030.76. As a result of the findings of the referee, approved by the court, the net balance in Hubbard’s hands as liquidating partner, was $23,139.40, and the total amount received by Adams was $14,210.93, making total assets of $37,350.33, which, deducted from the capital account contributed by both partners of $71,036.32, shows a loss of $33,685.99. This loss was to be shared in the proportion of five-eighths to one partner and three-eighths to the other. So that, crediting Hubbard with his contribution to the firm, $49,005.56, and charging him with the amount received by him, $23,139.40, and his proportion of the loss, $21,053.75, total $44,193.15, leaves a balance of $4,812.41 due him. Charging Adams with the amount received by him, $14,210.93, and his proportion of loss $12,632.24, makes $26,843.17, which, is in excess of his amount contributed to the capital by $4,812.41, which is awarded to Hubbard’s estate and thus balances the account.

The method pursued by Judge Audenried was entirely correct, and is in accordance with the authorities which are well summed up in 22 Am. & Eng. Ency. of Law (2d ed.), 86, 87, as follows : “ Where a partnership is dissolved and its affairs are wound up, there must be a return of the firm capital to the partners contributing it, in order that there may be a distribution of the profits. Each partner’s contribution is regarded as a firm debt to such partner, which must be repaid before there are any profits to be divided. Where one partner has advanced capital in excess of another, the amount advanced is a preferred claim upon the property of the firm. The distribution of capital upon dissolution is in the same proportion in which such capital was furnished.”

A Pennsylvania case clearly establishing this principle and applying in its facts to the present case, is Plumly’s Appeal, 1 Mona. 177, where the master said (p. 178): When the partnership came to an end, December 31, 1884, it was the plaintiff’s right to have the assets converted into money, to have all liabilities to non-partners satisfied therefrom, and, out of what remained, to have returned to each partner his capital. If there was not sufficient for the return of the capital of each, the sum that was wanting should have been treated as a partnership loss: Nowell v. Nowell, 7 L. R. Eq. 538; and paid as other losses are payable; and, as has appeared, that was two-thirds by the defendant and one-third by the plaintiff.” In this particular the report of the master was confirmed by the court below, and by this court.

What we have said disposes of the questions raised by the assignments of error covered by appellant’s “Statement of Question Involved.” The remaining assignments of error are not properly before us, but if they were, it would be sufficient to say that they relate to questions of fact, upon which the findings of the referee have been confirmed by the court below, and therefore they would not be disturbed except for manifest error. Nothing of that kind has been shown.

This appeal is therefore dismissed, and the decree of the court below is affirmed.