text:
    Gillman v. Media, Middletown, Aston & Chester Electric Railway Company, Appellant.

      Evidence — Witnesses—Expert—Hypothetical question.

    1. Where the facts are admitted or proved by evidence which js not conflicting, an expert may be interrogated as to his opinion upon such facts. As, however, it is the province of the jury to determine the facts, an expert cannot be asked his opinion upon the whole evidence in the case where that is conflicting. But a party may state specifically the particular facts he believes to be shown by evidence or such facts as the jury would be warranted in finding from the evidence, and ask the opinion of the expert on such facts, assuming them to be true. The other side may likewise put a hypothetical question based upon such facts as he alleges are shown by the evidence or the jury would be justified.in finding from the evidence. Neither side is re- ■ quired in putting the hypothetical question to include therein any other facts than those which he may reasonably deem established by the evidence.
    2. Where a hypothetical question states all of the facts disclosed by the evidence in the case, from the standpoint of the party interrogating the witness, the question states all that is required.

      Practice — Trial—Continuance cause — Absence of witness — Discretion of court.

    3. It is not an abuse of discretion amounting to reversible error for a trial judge to refuse to continue a case because of the absence of a witness where there is no proof that the witness had been subpoenaed, where there is no offer to show what he would testify to, and where it also appears that the testimony of the witness would have been simply cumulative.
    Submitted March 2, 1909.
    Appeal, No. 95, Jan. T., 1908, by defendant, from judgment C. P. Delaware Co., Jan. T., 1906, No. 185, on verdict for plaintiff in case of Bertha Gill-man v. Media, Middletown, Aston & Chester Electric Railway Company.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Johnson, P. J.
    At the trial when Dr. Paxson was on the stand he was asked the following question:
    “Q. If Bertha Gillman, prior to June 9, 1906, was in good physical health, and on that day received an injury on a trolley car which fractured her coccyx, and has since that time been operated upon for that fracture, and is in poor physical health now, and has been since that time, might, in your judgment, that injury cause her present poor physical health? ”
    Mr. Howell: I object to that question. I presume it is intended to be a hypothetical question. It does not state all of the facts of the case, and I think it is improper.
    The Court: I do not think a hypothetical question must necessarily state all of the conditions. There may be thousands of conditions not stated.
    Mr. Howell: Yes, sir. That is the point, and to ask whether, applying it to this woman, a certain thing itself were anything else, when there are other complications admitted, it permits the drawing of a wrong inference.
    The Court: What other complications?

      Mr. Howell: Dysmenorrhea, painful menstruation, previous history of an operation and the removal of ovaries.
    The Court: State your proposition again.
    Question read as follows:
    “Q. If Bertha Gillman, prior to June 9, 1906, was in good physical health, and on that day received an injury on a trolley car which fractured her coccyx, and has since that time been operated upon for that fracture, and is in poor physical health now, and has been since that time, might, in your judgment, that injury cause her present poor physical health? A. Yes, sir.”
    The Court: I think you had better add to that, there being no other physical conditions excepting those mentioned, because that excludes everything else, you see.
    Mr. Fronefield: I have no objection to that.
    The Court: Add that to it, and I will let it be answered.
    Mr. Howell: Your honor understands that is the very point of my objection?
    The Court: I say, there being no other physical conditions.
    Mr. Howell: The testimony is there were others.
    The Court: I do not know whether there are or not. You can cross-examine on that. The objection is overruled. Exception. [1]
    Mr. Fronefield: “Q. Will you please answer the question? A. My answer is that I only examined the woman one day, and never have seen her since except in the courtroom, and what I found at that time I believe to be the cause of all her trouble then. As to now, I know nothing about. ”
    Dr. Charles S. Potts, a witness for the plaintiff, was asked this question:
    Mr. Fronefield: “Q. From your examination of Bertha Gillman, after having received a full history of her case, what, in your judgment is the least time required and the least expense required to give her the rest cure of which you have spoken?”
    Mr. Howell: I object.
    The Court: If it is divided up, I will let him state the least time and rule the other out.

      Mr. Fronefield: I will make the question refer to the least time required.
    Mr. Howell: I object to that question.
    The Court: The doctor may give his judgment as to the probable time in which she will get well with proper treatment.
    Mr. Howell: My objection is the doctor does not know the entire history of the case.
    The Court: I take it for granted if he has not sufficient knowledge to enable him to state it he won’t state it. If he has no such knowledge as will enable him to give an opinion upon that, I take it for granted he won’t give it.
    Mr. Howell: He said a year.
    “A. I probably said a year.”
    Mr. Fronefield: “Q. What is your answer to that question, • the least time?”
    The Court: You may state whether in your judgment she would be restored in a year; exception. [2]
    “A. If you give me the least time, I would say six months, although I would not promise it in that time.”
    Dr. Charles S. Potts, a witness for the plaintiff, was asked this question:
    “Q. Doctor, in your judgment, could Miss Gillman’s condition be caused by the accident of being hurt on a trolley car, such as has been detailed in your presence here. A. Yes, sir. Undoubtedly so.”
    Mr. Howell: I object.
    Objection overruled. [3]
    Mr. Howell: I formally ask an adjournment until to-morrow to permit the obtaining of the presence of the two physicians who are prevented from coming on account of important cases of illness that they cannot leave.
    Mr. Fronefield: Who are the physicians?
    Mr. Howell: Dr. S. R. Crothers and Dr. Joseph Manasses.
    Mr. Fronefield: I object to the continuance.
    The Court: Objection sustained. [4]
    Mr. Howell: I then would formally ask for a continuance of this case on account of the absence of a material witness who has been subpoenaed to be here. He has been in attendance, but as he is a physician was compelled to absent himself in attendance of an ill patient — the witness is Dr. S. R. Crothers. I ask for a general continuance to the next term of court.
    Mr. Fronefield: That is also objected to for the same reason and because Dr. Crothers simply is called as an expert to give us his opinion as to the illness of the plaintiff, it appearing that the doctor was present, representing the defendant company, at the operation in 1906.
    The Court: Objection sustained. [5]
    The court charged the jury in part as follows:
    [The testimony read this morning of Dr. Manasses says that she was nervous and neurasthenic, both, if there is any difference in them what they are, prior to June, 1904, and the contention of the defendant is that what she is suffering from now is but a continuation of her old trouble and that there was nothing took place on this car on June 9,1906, that brought about the trouble or increased it, because it is quite apparent that if it was brought about by the shock given to her by being thrown against the car and the company was negligent and she was not, then she would be entitled to recover and if that was the primary cause of the trouble, and she would also be entitled to recover if that happened if it increased her former difficulties or trouble. There has been some testimony about whether that would tend to increase the former trouble, if it had existed. You will remember it. It is all a question for you entirely. No law about it except the law the court has laid down.] [6]
    [Now, she will be entitled to recover if you find she was not negligent, find that the company was, and find that the cause of her trouble arose out of the shock which she says she received there, or her trouble increased by reason of what took place there. Then what will compensate her? She will be entitled to be compensated for her pain and suffering, whatever that has been in the past and will likely be in the future. It is a very difficult thing to .tell, but you will have to take up that question and dispose of it. She will also be entitled to be compensated for her loss of earning power.] [7] .
    Defendant presented these points:
    4. If the jury believe that the plaintiff got on the car while it was standing still and that the car was started in the usual and ordinary way after the plaintiff was in the car, but before she had an opportunity to seat herself, there can be no recovery in this case, and your verdict must be for the defendant. Answer: We would affirm that unless the car was started hastily, recklessly, power turned on so that it would start suddenly, because it would be negligent for a motorman or a conductor, where they had charge of the moving of a car to start it so suddenly and recklessly as to throw persons down who were in the aisle seeking seat. That is affirmed as a general proposition. [8]
    11. The burden is on the plaintiff to convince the jury that any pain and suffering she may have endured was caused by an injury at the defendant's hands, and from no other cause. Unless she has done so, your verdict must be for the defendant. Answer: That is refused. If it means that all her troubles must have arisen out of the accident. In other words, if the condition she- says she is in now was an old and previous condition and this accident happening was not the cause of that condition, but it increased it, still she may recover. Therefore this point is refused. [9]
    17. Under all the evidence in this case, the verdict must be for the defendant. Answer: That is refused. It will be for you. [10]
    Verdict and judgment for plaintiff for $3,950. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (4, 5) refusal of continuance; (6-10) above instructions, quoting them.

      E. A. Howell and David Wallerstein, for appellant. —
    It was error to submit the case to the jury: Bornscheuer v. Traction Co., 198 Pa. 332.

      March 29, 1909:
    "Where a hypothetical question is asked in an issue being tried before the court without a jury, this court has decided that the hypothetical question must include all essential conditions and facts brought out in the testimony of the party to the suit, whose counsel asks the question: Keating’s Appeal, 2 Monaghan, 4; Miller’s Est., 179 Pa. 645; Reber v. Herring, 115 Pa. 599.
    It was the duty of the court to instruct the jury that if her condition was the result of cumulative causes, it was the duty of the jury in estimating the damages to be awarded to Miss Gillman to separate the injury resulting from conditions prior to the accident and those resulting from the accident. There is apparently no case upon this point in the state of Pennsylvania, but it has been discussed and decided in the state of Michigan in Hall v. Cadillac, 114 Michigan, 99 (72 N. W. Repr. 33); Schwingschlegl v. Monroe City, 113 Michigan, 683 (72 N. W. Repr. 7). .

      W. Roger Fronefield and J. Howard. Reber, for appellee.—
    The case was for the jury: Kohler v. Penna. R. R. Co., 135 Pa. 346; Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 233.
    The jury is enabled to determine by the mere form of the question, what specific facts are assumed by the expert in his conclusions and of what his opinions are predicated: Coyle v. Com., 104 Pa. 117; Yardley v. Cuthbertson, 108 Pa. 395.
    Dr. Potts heard all the testimony in the case- except part of the plaintiff’s, and her condition was detailed to him fully. His opinion may properly be based upon facts testified to at the time: Olmsted v. Gere, 100 Pa. 127.
    The charge as a whole was a clear statement of the law applied to the disputed facts: Pierce v. Cloud, 42 Pa. 102.
   Opinion by

Mr. Justice Mestrezat,

Notwithstanding the thirteen assignments filed in this case we are not convinced that the learned court below committed error on the trial of the cause.

The assignments alleging error in the admission of expert testimony are without merit. Where the facts are admitted or proved by evidence which is not conflicting, an expert may be asked his opinion upon such facts. As, however, it is the province of the jury to determine the facts, an expert cannot be asked his opinion upon the whole evidence in the case where that is conflicting. But a party may state specifically the particular facts he believes to be shown by evidence or such facts as the jury would be warranted in finding from the evidence, and ask the opinion of the expert on such facts, assuming them to be true. The other side may likewise put a hypothetical question based upon such facts as he alleges are shown by the evidence or the jury would be justified in finding from the evidence. Neither side is required in putting the hypothetical question to include therein any other facts than those which he may reasonably deem established by the evidence. The purpose of a hypothetical question is to elicit from the expert an opinion upon facts either admitted or established by the evidence, and the fapts upon which the question is predicated should be clearly stated so that the jury may know upon what the opinion is based.

The objection to the question put to the expert witness was “that it does not state all of the facts of the case.” It, however, did state all of the facts disclosed by the evidence in the case from the standpoint of the party interrogating the witness, and that was all that is required: Coyle v. Com., 104 Pa. 117; Davidson v. State, 135 Ind. 254; Cowley v. People, 83 N. Y. 464; Stearns v. Field, 90 N. Y. 640. In the Coyle case, Mr. Justice Clark, speaking for the court, said (p. 133): “Each side had the right to an opinion from the witness upon any hypothesis reasonably consistent with the evidence, and if meagerly presented in the examination on one side, it may be fully presented on the other; the whole examination being within the control of the court, whose duty it is to see that it is fairly and reasonably conducted.” Coffey, J., delivering the opinion in the Davidson case, says (p.. 261): “In the examination of expert witnesses, counsel may embrace in his hypothetical question such facts as he may deem established by the evidence, and if opposing counsel does not think all the facts established are included in such question he may include them in questions propounded on cross-examination. Any other course would result in endless wrangles over the question as to what facts were, and what were not, established.” In Stearns v. Field it is held that if “testimony of an expert is proper, counsel may ask a hypothetical question, assuming the existence of any state of facts which the evidence fairly tends to justify. An error in the assumption does not make the interrogatory objectionable, if it is within the possible or probable range of the evidence.”

It may be suggested that the admission of the testimony of Dr. Paxson which is assigned for error, did the defendant no harm if it was erroneously admitted. His reply was not a direct answer to the question. The hypothetical question put to the doctor invited his opinion whether the injury on the trolley car was the cause of the plaintiff’s “ present poor physical health.” In his answer he says that he examined the woman, “and what I found at that time I believe to be the cause of all her trouble then.” He does not say what he found and, hence, he does not testify as to the cause of her present condition of health. His answer to the hypothetical question does not disclose that it is based upon the injury which she alleges she received on the trolley car.

Dr. Potts, whose testimoney is also objected to, had made an examination of the plaintiff and-testified as to the result of the examination. He also was present at the trial and heard all the testimony in the case except a part of the plaintiff’s testimony. The trial judge interrogated the witness and stated to him the facts disclosed by the evidence. A hypothetical question was then put to Dr. Potts as to the probable time in which the plaintiff would recover with proper treatment. The defendant’s counsel interposed the objection that, “The doctor does not know the entire history of the case.” The doctor made a personal examination of the plaintiff a short time previous to the trial and diagnosed her ailment as a combination of neurasthenia and hysteria and he simply gave his opinion as to the probable time it would require her to recover from that ailment. He heard the testimony as to the condition of the plaintiff’s health subsequent to the accident. We do not think the second assignment of error should be sustained.

The third assignment must be overruled for the reasons given for dismissing the first assignment of error.

The refusal of the court to continue the cause under the circumstances was not an abuse of discretion amounting to reversible error. The testimony on both sides of the case, except that of Dr. Crothers, was concluded. It did not appear by proof that the doctor had been subpoenaed nor was any offer made to show what he would testify to. In addition to this his testimony would have been simply cumulative.

The parts of the charge assigned for error are not justly open to criticism. Especially is this true when we consider the affirmation by the court of the defendant’s thirteenth, fourteenth, and fifteenth points for charge. The court’s answers to the fourth and eleventh points are likewise unobjectionable, and are sufficiently full .and explicit to vindicate themselves.

The assignments are overruled, and the judgment is affirmed.


source: Caselaw Access Project

author: Me. Justice Elkin,

license: Public Domain

text:
    Lehman v. Chambersburg & Gettysburg Electric Railway Company, Appellant.

      Street railway companies — Eminent domain — Relocation of tracks— Consent of property owners — Injunction—Costs.
    1. If a street railway company seeks to exercise the right of eminent domain conferred upon street railways by the Act of June 1, 1907, P. L. 368, for the purpose of relocating a portion of its tracks, it may do so after it has secured the consent of the owners of at least fifty-one per centum of the foot frontage of the entire distance traversed longitudinally on the highway in the township. It is not a prerequisite to the exercise to the right of eminent domain that the owners of fifty-one per centum of the foot frontage covered by the relocation at a particular point, shall be obtained.
    2. Where a street railway company laid its tracks prior to the act of June 1, 1907, along one side of a public road, except at one point where it deflected its tracks by a jog to the other side of the road on account of an injunction secured by a nonconsenting abutting landowner, the company may after the passage of the Act of June 1, 1907, P. L. 368, exercise the right of eminent domain to straighten its line and relocate its tracks at the point of deflection, without again getting the consents of the owners of fifty-one per centum of the foot frontage on the road. The consents procured prior to the passage of the act are sufficient to sustain the exercise of the right of eminent domain at the point in question.
    3. Where an injunction is properly issued prior to the Act of June 1, 1907, P. L. 268, restraining a street railway company from laying its tracks on a road in front of an owner’s property, and after the passage of the act, and after the street railway company has announced its intention to relocate its tracks in front of plaintiff’s land, the case is tried, and the injunction is improperly continued until the new consent shall be obtained, the Supreme Court in reversing the decree will impose the costs upon the street railway company.
    Argued March 9, 1909.
    Appeal, No. 32, Jan. T., 1909, by defendant, from decree of C. P. Franklin Co., Equity Docket 2, page 359, on bill in equity in case of Amos B. Lehman v. Chambersburg & Gettysburg Electric Railway Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction. Before Gillan, P. J.
    From the record it appeared that the bill was filed on June 8, 1902, and a preliminary injunction was granted. The defendant company laid its tracks along the south side of the Chambersburg turnpike road, except at the line of plaintiff’s land, where it deflected its tracks to the north side. After the passage of the Act of June 1, 1907, P. L. 368, the company resolved to straighten or relocate its tracks in front of plaintiff’s property, through the exercise of the right of eminent domain.
    The cause was then placed on the trial list and, after hearing, the court filed his findings of fact and conclusions of law and entered a decree on March 24, 1908, dismissing plaintiff’s bill and dissolving the injunction.
    On March 25, 1908, the defendant filed its bond and petition for the appointment of viewers.
    On March 31, 1908, plaintiff filed exceptions to the court’s findings and decree and on July 28, 1908, the court filed a second opinion and decree, continuing the injunction until the railway company could show it had obtained the consents of the supervisors and the owners of at least fifty-one per cent of the foot frontage of the entire distance to be traversed longitudinally on the highway by the relocation.
    Other facts appear by the opinion of the Supreme Court.

      Error assigned was the final decree which was as follows:
    All the exceptions except that which relates to imposition of costs on the plaintiff are overruled. In order that the defendant may, if it can, avail itself of the power and exercise the right of eminent domain, the preliminary injunction heretofore granted is dissolved, in so far as the same may interfere with the defendant’s beginning and conducting condemnation proceedings according to law; and same is made perpetual for the purpose only of preventing the construction by the defendant of its railway and appliances on the south side of the turnpike in front of plaintiff’s property, without having brought itself within the provisions of June 1, 1907, in accordance with the views expressed in the opinion filed July 28, 1908. The plaintiff’s bill will be dismissed upon the defendant availing itself of the power and exercising the right of eminent domain in accordance with the views expressed in said opinion. Defendant to pay the costs.

      Walter K. Sharpe, of Sharpe & Elder, with him O. C. Bowers and Charles Walter, for appellant. —
    The court erred in' refusing to dissolve the injunction until the defendant could show that it had obtained the consents of the owners of at least fifty-one per cent of the foot frontage of that portion of the highway traversed longitudinally by said relocation. The case at bar illustrates the unreasonableness of such a construction. The plaintiff owns or has a life estate in much more than fifty-one per cent of the foot frontage covered by the proposed relocation. Therefore it necessarily follows, if the court has interpreted the act correctly, that the defendant cannot relocate its track until it has procured the plaintiff’s consent. Not being able to procure his consent, the relocation is prevented and that portion of the act which had for its plainly expressed purpose the enlarging of the rights of electric railway companies becomes a nullity. The company is powerless now to eliminate this curve and double-grade crossing from its tracks as it was before the act of 1907 was passed. We earnestly insist that this effort of the court to thus limit the act and nullify that portion of it was wholly unjustifiable and contrary to the well established rule that should be applied to the interpretation of every statute, that is, that it shall be so construed that every word and every sentence shall stand and be effective, if such construction be possible.
    Under the rule laid down in Dryden v. Railway Company, 208 Pa. 316, the court will not go beyond the plain reading of the act in order to find some fact to defeat its main purpose. While that case involved the interpretation of the act of 18'69, the principle therein laid down and the reasoning of the court is quite applicable to the case at bar.
    This court has uniformly held that a legislative grant of a right or franchise, especially when its purpose is the performance of a public act, carries with it such implied power or right as may be necessary to make the grant effective: Monongehela Bridge Co. v. Kirk, 46 Pa. 112; McManus’s Appeal, 5 Pa. Superior Ct. 65; Lockhart v. Craig St. Ry. Co., 139 Pa. 419; Dryden v. Pittsburg, etc., Ry. Co., 208 Pa. 316; Hannum v. Media, etc., Elec. Ry. Co., 221 Pa. 454.

      J. A. Strife, with him D. Edward Long, for appellee. —
    The consents required by the Act of June 1, 1907, P. L. 368, must be consents to exercise the right of eminent domain. The consents offered in evidence are all consents to the construction, maintenance and operation of a railway on the south side of the road, or on the north side of the road, or on the middle of the road. None are consents to the exercise of the right of eminent domain on said road. The act of assembly admits of but one construction: “Before the right of eminent domain herein conferred shall be exercised upon any highway in any township, excepting for the purpose of crossing such highway, the consent of the owners of at least fifty-one per centum of the foot frontage of the entire distance to be traversed longitudinally, on said highway in said township, shall be obtained.” Consents given before the passage of the act could not have been consents to exercise the right of eminent domain for the reason that no such right existed by virtue of any law as to the property of abutting landowners before the passage of the act. Consent to the construction of an electric railway in front of the property of the consenting party, with knowledge that the railway could be constructed in front of the property of no other abutting landowner without the consent of such other landowner, is a very different thing from consent to the compelling of some other abutting property owner to permit the building of the railway in front of his property and without his consent: Woods v. Greensboro Nat. Gas. Co., 204 Pa. 606; Commonwealth v. Erie, etc., R. R. Co., 27 Pa. 339.
    March 29, 1909:
    Whether under the rule which existed prior to the Act of June 1, 1907, P. L. 368, namely, that where the track is constructed entirely on one side of the road, the consent of the abutting landowners on that side only would be sufficient, as was held in North Penna. R. R. Co. v. Inland Traction Co., 205 Pa. 579, or whether under the act of 1907, the consent of fifty-one per centum of the foot frontage on both sides of the road is required, the burden is on the company to show the necessary consents: Hannum v. Railway Co., 200 Pa. 44.
    If plaintiff’s property were in a borough, it is clear that no compensation could be gotten for the reason that no land would be taken or injured. The fact that it is in the township entitles him to damages, not because land has been taken or injured, but because the authorities of a township cannot impose the additional servitude upon the township roads without the consent of the abutting landowners: Penna. R. R. Co. v. Montgomery County Pass. Ry. Co., 167 Pa. 62; McDevitt v. People’s Nat. Gas Co., 160 Pa. 367.
   Opinion by

Me. Justice Elkin,

Some confusion arises in the consideration of the questions here involved because of changed conditions since the preliminary injunction was granted. In 1903 when the bill was filed the street railway company could not construct its lines upon the highway without the consent of abutting landowners. The consent of the complainant was not obtained and he stood upon his legal rights in asking a court of equity to restrain the threatened invasion. The restraining order was issued and the whole matter remained in statu quo for several years. The street railway company secured the consents of the other abutting property owners along the highway, made a jog in its line so as to avoid the property of appellee, laid its tracks and for several years has operated its lines with the approval of the supervisors and of the people very generally. In 1907 street railway companies were given the right of eminent domain, and in order to exercise this power, it became necessary to have the injunction dissolved. At the hearing for the dissolution of the injunction court and counsel adopted a method of procedure which broadly considered all questions affecting the rights of street railway companies and abutting owners in a condemnation proceeding. The right to condemn was denied so long as the injunction continued, and the power to discontinue the injunction was made to depend upon the status of the street railway company in the assertion of its right of eminent domain. In other words, the burden of establishing all the antecedent facts necessary to the exercise of the power of eminent domain in a condemnation proceeding, was placed on appellant in a proceeding to dissolve the injunction granted several years before the right of eminent domain was conferred. If the law and the facts now existing could have been made to appear in 1903, the injunction then granted could not have been sustained, and the parties would have been required to assert and protect their rights in a condemnation proceeding. What would have resulted then had the right of eminent domain been conferred, which it was not, should now result when this right does exist. Under the circumstances it seems wise to follow the course of procedure adopted in the court below for the purpose of determining the essential questions involved upon their merits. The learned court below found as a fact that the appellant company having first obtained the consents of the supervisors and abutting landowners had constructed its line of street railway on the southern side of the turnpike road, except, where it had deviated from its course to avoid the property of appellee, and for several years had operated thereon. After the passage of the act of 1907 it was deemed expedient to straighten the line by taking out the jog in front of the property of appellee and laying the railway tracks at the southern side of the turnpike road through his lands so that the tracks at this point would be in alignment with other portions of the railway already constructed. There can be no doubt that the situation here presented was the kind of mischief permissible under the old law which the new act was intended to remedy. If a construction shall now be placed upon it to defeat this intention the act will fail of its purpose. This legislation was passed as a result of the demands of the people to secure the greater convenience of rural transportation by street railway, and to encourage companies already incorporated and those subsequently to be formed, to increase their facilities and extend their usefulness. Any proper construction of the act must give due consideration to its intendment.' Keeping in view this thought, let us examine the requirements of the statute in order-to ascertain whether appellant is in a position to assert its right to adversely and against the wish of appellee lay its tracks upon that portion of the turnpike included in the fee of those represented by complainant. It is provided in the act that, “before the right of eminent domain herein conferred shall be exercised upon any highway, in any township, excepting for the purpose of crossing such highway, the consent of the owners of at least fifty-one per centum of the foot frontage of the entire distance to be traversed longitudinally, on such highway in said township, shall be obtained.” It will be observed that the statute does not in terms specify the nature and character of the consent to be obtained, but it is supplemental to an act providing for the incorporation and regulation of street railway companies and deals with the method of condemning lands for the use intended. The use intended is the construction and operation of lines of street railway, and when a consent in writing has been obtained from an abutting owner which grants the right and privilege of constructing, maintaining and operating a street railway upon the public highway in front of his property and over his fee, it would be sticking in the bark to hold that this is insufficient for the purpose of asserting the right of eminent domain conferred by the act. The right to condemn is based on the public use, which is to construct and operate a street railway. It necessarily follows, therefore, that when fifty-one per centum of the foot frontage represented by the abutting owners to construct, maintain and operate a street railway has been obtained, the precedent condition required by the act in order to exercise the right of eminent domain has been met. The fifty-one per centum of foot frontage refers to the entire distance to be traversed longitudinally upon the highway in any township, and not to a particular portion of it represented by the foot frontage of a complaining property owner. If the latter construction should be adopted the purpose of the act would be defeated. It was intended to prevent one or several property owners from hindering and delaying public improvements, but in order that the rights of abutting owners should not be disregarded it was provided that the owners of at least fifty-one per centum of the foot frontage should consent to the construction of the street railway upon the public highway before the right of eminent domain should be exercised against a nonconsenting owner. The real question here is, does the street railway company have the consents of the owners of fifty-one per centum of the foot frontage along the turnpike in the township? It is conceded that it has the consents of a sufficient number of abutting owners to meet the requirement, but it is contended that these consents were obtained prior to the passage of the act of 1907 and therefore not within its provisions. This is too technical to be substantial. The law looks at the substance, not the shadow. By what has already been said it is clear that if appellant since the act of 1907 had secured the very same kind of consents it now has the requirements of the act in this respect would have been met. It would be an idle thing and an unnecessary burden to say to this company, you must now go out and again obtain what you already have before the right of eminent domain can be exercised. The consents of property owners representing the necessary foot frontage whether obtained before or after the act is sufficient. The consents obtained before , the passage of the act must be regarded as applicable to the general location of the line then made and now existing. In the case at bar the consents must be understood to refer to the location of the street railway on the southern side of the turnpike, and with reference to this location they may be treated as valid consents under the Act of June 1, 1907, P. L. 368. If the general line of street railway should be relocated so as to occupy the center or northern side of the turnpike, it would be necessary to obtain consents for this purpose, because this would introduce new locations and new conditions not contemplated when the original consents were obtained. The act did not modify or change the established rule that only the owners of the fee, or those representing them, had to be consulted in obtaining consents. If the line of street railway does not invade the fee of an abutting owner, his consent is not required and his right to be included in the foot frontage does not exist. In all these respects the law stands as it did before the passage of the act. It is a misapprehension to treat what is attempted to be done in this case as a new location of the line of the street railway system. It is a widening, or perhaps a relocation of the tracks on the turnpike over the land of appellee at a particular point, and is certainly within the reasonable intendment of the act of 1907, or under its express provisions. If by any construction that part of the public highway upon which it is now proposed to lay the tracks could be considered as within the curtilage appurtenant to dwelling house of appellee, and such an interpretation is strained and doubtful, even in such event, it is sufficient to say the act in express terms gives the right to appropriate within the limitations and upon the conditions therein contained. Of course, the owner of the fee may recover damages on the ground that an additional servitude has been imposed upon the highway already dedicated to public use, and such damages, if any, may be assessed in a proceeding to condemn and cannot be inquired of here. We think the learned court below was right in the first view of the case and erred in entering the final decree.

Decree reversed, injunction dissolved and bill dismissed. Under the circumstances and because the injunction was properly issued in the first instance we think the costs should be paid by appellant and they are so imposed.


author: Mr. Justice Brown,

text:
    First National Bank v. New Castle, Appellant.

      Municipalities — City treasurer — Implied contract — Lending money to treasurer.

    When a city treasurer, without the knowledge, consent or approval of the municipality, borrows money from a bank, though the same is placed to his official credit in an account kept by him with the bank, the city is under no liability to repay the same, and this is especially true when at the time the city treasurer borrows he is a defaulter. 6
    Argued Oct. 12, 1908.
    Appeal, No. 2, Oct. T., 1908, by defendant, from judgment of C. P. Lawrence Co., March T., 1901, No. 82, on verdict for plaintiff in suit of First National Bank of New Castle v. City of New Castle.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit for money had and received. Before Williams, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $7,657.45. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      James A. Gardner, city solicitor, and Robert K. Aiken, for appellant. —
    As a city, defendant cannot contract any debt or incur any liability, except in pursuance of an appropriation previously made therefor by the municipal government: Const. of Penna., art. XV, sec. 2; Bladen v. Philadelphia, 60 Pa. 464; Parker v. Philadelphia, 92 Pa. 401; Mathews v. Philadelphia, 93 Pa. 147.
    John Blevins kept his account in the First National Bank of New Castle, in the name of “John Blevins, City Treasurer.” This bank had not been made a city depository; and though these moneys were earmarked “City Treasurer,” yet they were, notwithstanding, his own individual moneys, and subject to h'is check for any purpose he might designate: Slaymaker v. Farmers’ Nat. Bank, 103 Pa. 616; Sibbs v. Phila. Saving Fund Society, 153 Pa. 345.
    The power to incur debts by a city must be expressly given (except in certain cases), the provisions, when given, are mandatory, and any doubt of authority is resolved against such power: 1 Abbott, Mun. Corp., secs. 141, 143, 144; O’Rourke v. Philadelphia, 13 Pa. Dist. Rep. 379; McSpedon v. New York, 20 N. Y. Super. Ct. 601; 20 How. Pr. 395.
    A voluntary payment of money made without fraud or constraint,, though in ignorance of the law or legal circumstances of the case, cannot be recovered back: Natcher v. Natcher, 47 Pa. 496; Real Estate Saving Institution v. Linder, 74 Pa. 371; Finnel v. Brew, 81 Pa. 362; Gould v. McFall, 118 Pa. 455; Markley v. Stevens, 89 Pa. 279; Miller v. Hulme, 126 Pa. 277; Morris v. Tarín, 1 Dal. 147; Hall v. Shultz, 4 Johns. 240; De La Cuesta v. Insurance Co., 136 Pa. 62.
    That a city treasurer cannot borrow money, turn it into the city treasury, use it for city purposes, and make the city liable has been clearly decided: Railroad National Bank v. Lowell, 109 Mass. 214; Agawam National Bank v.. South Hadley, 128 Mass. 503; Lowell Five Cent Savings Bank v. Winchester, 90 Mass. 109; Benoit v. Conway, 92 Mass. 528; Dickinson v. Conway, 94 Mass. 487; Kelley v. Lindsey, 73 Mass. 287; McDonald v. Mayor, etc., of New York, 68 N. Y. 23.

      B. A. Winternitz and Oscar L. Jackson, for appellee. —
    The action for money had and received is a substitute for a bill in equity, and lies wherever one has money of another in his hands, which in equity and good conscience he ought not to retain. There need be no other privity of contract between the parties to support the action: Humbird v. Davis, 210 Pa. 311; McAvoy v. Commonwealth Title Ins. etc., Co., 27 Pa. Superior Ct. 271; Mason v. Waite, 17 Mass. 560; Hall v. Marston, 17 Mass. 575; Eagle Bank v. Smith, 5 Conn. 71; Rapalje v. Emory, 2 Dali. 51; Pugh v. Powell, 10 Cent. Repr. 335.
    April 12, 1909:
    That the rule thus established as to contracts and liabilities of natural persons and private corporations applies also to municipal corporations, and that the latter also are liable upon an implied assumpsit for money received and retained or used by them, which, sequo et bono, they ought to refund, is well settled by the opinions of text-writers and jurists and by adjudicated cases: Nelson v. Mayor, etc., of New York, 63 N. Y. 535; McDonald v. Mayor, etc., of New York, 68 N. Y. 23; Gas Co. v. San Francisco, 9 Cal. 453; Argenti v. San Francisco, 16 Cal. 255; Louisiana v. Wood, 102 U. S. 294; Dill v. Wareham, 48 Mass. 438; Marsh v. Fulton County, 77 U. S. 676; Mayor, etc., of Nashville v. Ray, 86 U. S. 468.
    The implied liability of municipal corporations is generally restricted to cases where the city obtains money or property of others by mistake or without authority of law, and appropriates such money or property under such circumstances, that the general law imposes the obligation to pay in order to do justice: Clark on Contracts, sec. 317; Barnet v. Paterson, 4 Cent. Repr. 248; Salt Lake City v. Hollister, 118 U. S. 256 (6 Sup. Ct. Repr. 1055); Allegheny v. McClurkan, 14 Pa. 81; Parker v. Philadelphia, 92 Pa. 401.
   Opinion by

Mr. Justice Brown,

John Blevins, who died January 7,1899, had been treasurer of the city of New Castle for some years prior to his death. During the time he so served the city he kept an account with the appellee, the First National Bank of New Castle, depositing with it large sums of money to the credit of “John Blevins, City Treasurer.” On September 19, 1898, he called at the bank and stated that he needed some money for the city, naming the amount as $5,431.49. This sum was the aggregate of nine certificates of indebtedness which had been issued by the city to different persons for work done and materials furnished. He executed a note, of which the following is the material part:

“Newcastle, Pa., Sept. 19,1898.

“ $5,431.49. Four months After Date, For Value Received I hereby promise to pay to The First National Bank of New Castle, Penn’a, or order at said bank Fifty four hundred thirty-one & 49-100 Dollars, with interest at the rate of 6 per cent, per annum after due, having deposited with said bank as collateral security for the payment of this note, and also as collateral security for all other present or future demands of any and all kinds of the said bank against the undersigned due or not due, or that may be hereafter contracted, including any indorsement made or that in future may be made by me the following property, viz: Sundries cert’s of indebtedness of City of New Castle, Pa., for $5,431.49, and interest.” The obligation was signed “City of New Castle, John Blevins Treasurer.’ ’ The amount asked for by Blevins was placed to his credit as cityvtreasurer. At the time the loan was made his account as city treasurer with the plaintiff showed a balance to his credit of $7,000. In addition to the proceeds of the loan he deposited on September 19, 1898, $2,568.51 in cash, making the credit balance $15,000. Between September 19, 1898, and the date of his death — January 7, 1899 — he deposited various sums with the appellee, amounting in the aggregate to $67,267.50, making the total cash placed to the credit of his account during that period $82,267.50, against which checks were drawn and paid amounting to $55,767.50. Many of these checks were made payable to his own order and the cash was paid to him. At the time of his death there was to his credit with the appellee $26,500. On January 17, 1899, John H. Preston was elected as his successor, and the said balance was transferred from the account of John Blevins, city treasurer, and credited to the account of John H. Preston, city treasurer. Blevins had an account as treasurer with the Citizens’ National Bank of New Castle, and the balance to his credit in that institution at the time of his death was $12,500. The balance in the two banks aggregated $39,000. At no time between September 19, 1898, and January 7, 1899, was the balance in the account of Blevins as city treasurer less than $5,431.49. At the time he made the loan from the appellee he was clearly a defaulter, his default amounting at the time of his death to more than $25,000. There in no evidence, however, that the bank knew of the default at any time prior to his death. No action of the city or its council authorized the loan made by Blevins, and the city had no knowledge of the transaction until after his death. The First National Bank of New Castle was not even a designated depository of the city. The city, under the foregoing facts, refused to pay the plaintiff’s claim, and in this action recovery is sought, not upon an express contract, as evidenced by the note, nor upon the certificates of indebtedness attached to it, but upon what it is contended is the implied obligation of the city arising out of the circumstances under which the money was credited to its financial agent. The position of the appellee, as stated by its counsel on the trial, was that the claim was not on the note or on the certificates attached, but for money advanced to the city which went into the city treasury, and, therefore, the city ought to pay it back on a claim for money had and received by it. In other words, the claim against the city was upon its implied liability, and recovery was permitted on that theory.

The duties of Blevins as city treasurer were limited to receiving the moneys of the city and paying them out on warrants. He had no authority by virtue of his office to do anything else for it or in its name and was powerless to make any promise on its behalf. An obligation signed by him as city treasurer could no more commit the city to its discharge than if signed by him as an individual. This is not questioned. The attempt of the appellee is not to enforce any valid contract executed by Blevins on behalf of the city, but is to compel payment, on the ground of the implied liability incurred by the municipality under the undisputed evidence in the case. It has been truthfully said of the extent of the liability of a municipal corporation that “the authorities are a tangled web of contradictions, and it is difficult to assert any proposition with respect to the same for which adjudications on both sides may not be cited;” but we know of no case in which the doctrine of implied municipal liability was stretched to the limit to which the learned court below carried it in instructing the jury that the appellee could recover in this proceeding. The doctrine of such liability has been applied to cases of informal or irregular contracts entered into by a city and from which it has obtained substantial benefits. See cases referred to in 28 Cyc. of Law and Pro. 668 and 669. Argenti v. City of San Francisco, 16 Cal. 255, a leading case and the one upon which the learned judge relied for his instructions to the jury, was a case of that kind. The plaintiff, by virtue of contracts entered into with an officer of the city of San Francisco, which contracts were executed by such officer in his official capacity, made valuable and permanent improvements to the city for the exclusive benefit of itself and its inhabitants; these improvements were made under the immediate supervision of an officer of the city, and, when completed, were approved of and received by him on behalf of the city; in making the improvements the plaintiff relied on the validity of the contracts and the obligations of the city to pay as therein provided; the city authorities were fully informed of these facts, but took no steps to repudiate the contracts or to inform the plaintiff as to its disposition not to pay. On the other hand, it had collected moneys to pay for the improvements. In making the contract for them certain legal requirements had not been complied with, and for that reason the city ultimately attempted to repudiate liability for the work done. This, of course, was not permitted. The city had knowledge of what was being done and had undertaken to contract for it. It was receiving the benefit from the work done and had collected moneys to pay for the same. There was simply a want of compliance with legal requirements in making the contract. In the recent case of Long v. Lemoyne Borough, 222 Fa. 311, in which the municipality attempted to evade the payment of money which it had borrowed and intended to borrow, because the loan had not been contracted in strict conformity to legal requirements, we said, in holding that, while there was no valid, express contract upon which it could be held, it was impliedly liable for money had and received. The borough had intended to contract for the money and could lawfully have contracted for it, and, having received and used it, was bound to pay. But this is not the situation here. If it were, the appellant would have to pay. The city of New Castle never intended to borrow the money from the appellee and had no knowledge until after the death of Blevins that he had made the loan. As stated, he was unquestionably a defaulter at the time he applied to the bank for the money. Suppose at the time he borrowed the money he had done so for the purpose of settling with the city and turning over its funds in his hands to his successor in office; if the amount lent to him by the bank had been sufficient to make up his default, he would have been able to pay over to the city all of its moneys in his hands, and, in turn, would have received from it whatever security he had given for the faithful discharge of the duties of his office. After a settlement so made, can it be seriously contended that the city should subsequently be compelled to pay to the bank the money borrowed by its defaulting treasurer for the purpose of covering up his default, simply because the money borrowed by him had been placed to his credit as treasurer of the city and paid over by him as a part of what he owed it? The mere suggestion of such a situation, possible at any time, it seems to us, is sufficient in itself to prevent recovery by the appellee. But even if he had not been a defaulter, a rule of public policy imperatively requires that, for the safety of municipalities, no one of its ministerial officers shall be permitted to impose liability upon it in the way Blevins is alleged to have done. It is because of the disastrous results that may come to municipalities if they are held impliedly liable for moneys borrowed by a municipal treasurer, without the knowledge, consent or approval of the municipality, even if placed to his official credit, that a recovery cannot be permitted in this case.

The second, third and fourth assignments of error are sustained and the judgment is reversed.


text:
    Wiener to use v. American Insurance Company of Boston.
    ' Foreign attachment — Debt—Subject of attachment — Foreign corporay tion.

    1. The rule that to give a court jurisdiction in foreign attachment the res must be within the territorial jurisdiction of the court applies only to tangible assets capable of actual seizure, and does not apply to choses in action.
    2. Jurisdiction to fasten choses in action by garnishee process depends upon the ability to serve that process upon the debtor of the absent defendant within the jurisdiction of the court.
    3. All debts are payable everywhere unless there be some special limitation or provision in respect to the payment, the rule being that debts as such have no locus or situs but accompany the creditor everywhere.
    4. A debt due by a foreign corporation registered in Pennsylvania to another foreign corporation may be attached in Pennsylvania by a foreign attachment.
    Argued Jan. 5, 1909.
    Appeal, No. 181, Jan. T., 1908, by Phoenix Insurance Company Garnishee, from order of C. P. No. 2, Phila. Co., Dec. T., 1906, No. 30, making absolute rule for judgment against garnishee on answers in case of Louis Wiener to use of J. R. Pringle v. The American Insurance Company of Boston, defendant, and Phoenix Insurance Company Garnishee.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Foreign attachment.
    Rule on garnishee for judgment on answers.
    The opinion of the Supreme Court states the case.

      Error assigned was order making absolute rule for judgment.

      Francis S. Laws, with him John F. Lewis, for appellants.—
    The writ of attachment at the date of its issuance did not bind anything in the hands of the garnishee: Datz v. Chambers, 3 Pa. Dist. Rep. 353; Opdyke v. Murphy Iron Works, 10 Pa. Dist. Rep. 68; Childs v. Digby, 24 Pa. 23; Penna. R. R. Co. v. Pennock, 51 Pa. 244; Glenny v. Boyd, 26 Pa. Superior Ct. 380; Noble v. Oil Co., 79 Pa. 354, Jaffray’s App., 101 Pa. 583; Brock v. Brock, 1 Pa. C. C. Rep. 232; Barr v. King, 96 Pa. 485; Chase v. Ninth Nat. Bank, 56 Pa. 355; Beal v. Toby Valley Supply Co., 2 Pa. Dist. Rep. 671; Pain's Pyro-Spectacular Co. v. Lincoln Park, etc., Co., 5 Pa. Dist. Rep. 474; Pierce v. Electric Company, 28 W. N. C. 311; Diener v. Wopsononock Hotel Co., 10 Pa. Dist. Rep. 57; Shaw v. Mining Co., 145 U. S. 444 (12 Sup. Ct. Repr. 935); Reimers v. Manufacturing Co., 70 Fed. Repr. 573.
    April 12, 1909:
    The point here contended for is sustained by a large number of well-considered cases, in both the federal and the state courts: Central Trust Co. of New York v. Chattanooga R. & C. R. R. Co., 68 Fed. Repr. 685; Reimers et al. v. Seatco Mfg. Co., 70 Fed. Repr. 573; Douglass v. Ins. Co., 138 N. Y. 209 (33 N. E. Repr. 938); Railroad Co. v. Maggard, 39 Pac. Repr. 985; Central Trust Co. v. Chattanooga, etc., R. R. Co., 68 Fed. Repr. 685.

      Theodore F. Jenkins, with him G. Heide Norris, for appellee. —
    Where one foreign corporation is indebted to another foreign corporation, the debt will be bound by a foreign attachment in which the creditor is the defendant and the debtor the garnishee: Furness v. Smith, 30 Pa. 520; Bushel v. Com. Ins. Co., 15 S. & R. 173; Fithian v. Railroad Co., 31 Pa. 114; Jones v. Railroad Co., 1 Grant, 457; Morgan v. Neville, 74 Pa. 52; Barr v. King, 96 Pa. 485; Datz v. Chambers, 3 Pa. Dist. Rep. 353; Nat. Fire Ins. Co. v. Chambers, 53 N. J. Eq. 468 (32 Atl. Repr. 663); Harris v. Balk, 198 U. S. 215 (25 Sup. Ct. Repr. 625); Penna. R. R. Co. v. Pennock, 51 Pa. 244; Chicago, etc., Ry. Co. v. Sturn, 174 U. S. 710 (19 Sup. Ct. Repr. 797); Louisville & Nashville R. R. Co. v. Deer, 200 U. S. 176 (26 Sup. Ct. Repr. 207).
   Opinion by

Mr. Justice Brown,

This foreign attachment was issued against the American Insurance Company of Boston, a Massachusetts corporation, as defendant, and the Phcenix Insurance Company of New York, a New York corporation, as garnishee. The defendant. appeared and judgment was entered against it for want of a sufficient affidavit of defense. Subsequently judgment was entered against the garnishee on its answers to the interrogatories filed, and from that judgment it has appealed. What was attached was a debt due from the garnishee to the defendant in the attachment, and we are asked to say that this was not attachable, because it was not in contemplation of law within the jurisdiction of the court at the time the writ issued. Authorities are not wanting to sustain this contention of the appellant, but we cannot follow them.

If, under the attachment in his hands, the sheriff had undertaken to seize tangible property of the defendant in the possession of the garnishee beyond the jurisdiction of the court, such property would not have been bound by the attachment: Pennsylvania Railroad Company v. Pennock, 51 Pa. 244. By the act of June 13, 1836, the goods and effects of a defendant in a foreign attachment in the hands of the garnishee shall, after service of the writ, be bound by it and be in the officer’s power, and, if susceptible of seizure or manual occupation, the officer shall proceed to secure the same to answer and abide the judgment of the court in the case. If tangible goods are not in the possession of the garnishee within the jurisdiction of the court out of which the writ of attachment issued, they cannot be touched by that writ and are, therefore, not bound by it. An intangible thing- — a debt due from the garnishee to the defendant — cannot be actually seized anywhere, but, being an effect of the defendant in the hands of his creditor, is bound by the attachment from the time it is served. “All debts are payable everywhere, unless there be some special limitation or provision in respect to the payment; the rule being that debts as such have no locus or situs, but accompany the creditor everywhere:” 2 Parsons on Contracts (8th ed.), 702. It does not appear from the answers to the interrogatories that the debt due by the garnishee to the defendant had imposed upon it any “ special limitation or provision in respect to the payment.” It was payable generally, and unquestionably could have been sued on here in Pennsylvania, and, therefore, was attachable here. “This is the principle and effect of the best considered cases — the inevitable effect from the nature of transitory actions and the purpose of foreign attachment laws if we would enforce that purpose:” Chicago, Rock Island, etc., Railway v. Sturm, 174 U. S. 170. The rule that to give a court jurisdiction in foreign attachment the res must be within the territorial jurisdiction of the court, applies only to tangible assets, capable of actual seizure, and does not apply to choses in action. Jurisdiction to fasten choses in action by garnishee process depends upon the ability to serve that process upon the debtor of the absent defendant within the jurisdiction of the court: National Fire Insurance Co. v. Chambers, 53 N. J. Eq. 468. This case is cited with approval in Harris v. Balk, 198 U. S. 215. In that case a citizen of North Carolina, indebted to another citizen of that state, was, while temporarily in Maryland, garnisheed by a creditor of the man to whom he owed the money, and judgment was duly entered according to the Maryland practice, and paid. Subsequently the original creditor of the garnishee sued him in North Carolina, and the defense was set up of judgment against the garnishee and its payment by him, but the North Carolina courts held that, as the situs of the debt was in North Carolina, the Maryland judgment was not a bar to a recovery by the North Carolina creditor, and judgment was awarded against the debtor. On a writ of error to the supreme court of the United States that court, in reversing the judgment, held that, as under the laws of Maryland the garnishee could have been sued by his creditor in the courts of that state, he was subject to a garnishee process if found and served there, even though there only temporarily, no matter where the situs of the debt was originally, and it was said: “The cases holding that the state court obt.ains no jurisdiction over the garnishee if he be but temporarily within the state, proceed upon the theory that the situs of the debt is at the domicil either of the creditor or of the debtor, and that it does not follow the debtor in his casual or temporary journey into another state, and the garnishee has no possession of any property or credit of the principal debtor in the foreign state. We regard the contention of the plaintiff in error as the correct one. The authorities in the various state courts upon this question are not at all in harmony. They have been collected by counsel, and will be found in their respective briefs, and it is not necessary to here enlarge upon them. Attachment is the creature of the local law; that is, unless there is a law of the state providing for and permitting the attachment it cannot be levied there. If there be a law of the state providing for the attachment of the debt, then if the garnishee be found in that state, and process be personally served upon him therein, we think the court thereby acquires jurisdiction over him, and can garnish the debt due from him to the debtor of the plaintiff and condemn it, provided the garnishee could himself be sued by his creditor in that state. We do not see how the question of jurisdiction vel non can properly be made to depend upon the so-called original situs of the debt, or upon the character of the stay of the garnishee, whether temporary or permanent, in the state where the attachment is issued. Power over the person of the garnishee confers jurisdiction oh the courts of the state where the writ issues: Blackstone v. Miller, 188 U. S. 189, 206. If, while temporarily there, his creditor might sue him there and recover the debt, then he is liable to process of garnishment, no matter where the situs of the debt was originally. We do not see the materiality of the expression ' situs of the debt/ when used in connection with attachment proceedings. If by situsis meant the place of the creation of the debt, that fact is immaterial. If it be meant that the obligation to pay the debt can only be enforced at the situs thus fixed, we think it plainly untrue. The obligation of the debtor to pay his debt clings to and accompanies him wherever he goes. He is as much bound to pay his debt in a foreign state when therein sued upon his obligation by his creditor, as he was in the state where the debt was contracted. We speak of ordinary debts, such as the one in this case. It would be no defense to such suit for the debtor to plead that he was only in the foreign state casually or temporarily. His obligation to pay would be the same whether he was there in that way or with an intention to remain. It is nothing but the obligation to pay which is garnished or attached. This obligation can be enforced by the courts of the foreign state after personal service or process therein, just as well as by the courts of the domicil of the debtor. If the debtor leave the foreign state without appearing, a judgment by default may be entered, upon which execution may issue, or the judgment may be sued upon in any other state where the debtor might be found. In such case the situs is unimportant. It is not a question of possession in the foreign state, for possession cannot be taken of a debt or of the obligation to pay it, as tangible property might be taken possession of. Notice to the debtor (garnishee) of the commencement of the suit, and notice not to pay to his creditor, is all that can be given, whether the garnishee be a mere casual and temporary comer, or a resident of the state where the attachment is laid. His obligation to pay to his creditor is thereby arrested and a lien created upon the debt itself: Cahoon v. Morgan, 38 Vermont, 234, 236; National Fire Ins. Co. v. Chambers, 53 N. J. Eq. 468, 483. We can see no reason why the attachment could not be thus laid, provided the creditor of the garnishee could himself sue in that state and its laws permitted the attachment.”

The foregoing is in accord with what was held in Fithian et al. v. New York & Erie R. R. Co., 31 Pa. 114, where the question was whether a debt due by a foreign corporation, which was evidenced by a judgment obtained against it in a foreign state, was attachable here at the instance of a creditor of the corporation’s creditor, and we decided that such debt could be attached and that the garnishee was not protected by paying over the amount of the judgment against it to the attorneys of its judgment creditor in the state of New York in disregard of the attachment. The attachment, it is'true, was one in execution under the act of June 16,1836, but that act, directing that a debt due to a defendant may be attached, provides that it is to be attached in the manner allowed in the case of a foreign attachment. If the debt was attachable in the attachment execution, it clearly would have been so in a foreign attachment.

The assignment of error is overruled and the judgment is affirmed.


author: Me. Justice Brown,

text:
    Noble v. Police Beneficiary Association.

      Beneficial associations — Change of beneficiary — Interest of beneficiary —Sister—Widow—By-laws.

    1. A beneficiary named in a certificate or policy issued by a beneficial association acquires no vested interest in it, nor a right to anything, during the lifetime of the member to whom it is issued, but merely an expectancy, which does not become a vested or absolute right to the proceeds of the certificate or policy until the death of the assured.
    2. Where a member of a beneficial association names his sister as beneficiary but retains the certificate in his own possession, and thereafter, upon marrying, surrenders the certificate and the association issues to him a new certificate wherein the wife is named as beneficiary, the sister after the member's death has no right to the death benefits; and this is the case although a by-law of the association provided that no transfer should be made without the consent of the beneficiary, and the sister did not in fact consent to the change of the beneficiary. In such a case the retention of the certificate and its surrender were not a transfer of the certificate; and even if the by-law was violated by the issuing of the second certificate the association would be estopped from questioning the regularity of that certificate, for, by issuing the same, it waived all the provisions of the by-laws as to transfers.
    3. By-laws of a beneficial association as to transfers are solely for the convenience and protection of the association, and may be waived by it without any person having a right to complain.
    Argued Jan. 6, 1909.
    Appeal, No. 193, Jan. T., 1908, by Margery E. Dittmer, intervening claimant, from decree of C. P. No. 5, Phila. Co., March T., 1908, No. 742, distributing fund paid into court in case of Annie M. Noble v. Police Beneficiary Association.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule of Annie M. Noble on Margery E. Dittmer to show cause why a fund paid into court by the Police Beneficiary Association should not be paid to her. Before Staake, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order making absolute the rule.

      James Collins Jones, for appellant. —
    The Pennsylvania cases establish that in order to be effective, whether as against the association or as against a rival beneficiary, a change of beneficiary must be made in accordance with the by-laws of the association: Vollman’s Appeal, 92 Pa. 50; Roesch’s App., 32 Pitts. L. J. 168.
    When, therefore, the by-laws of a beneficial association require that in order to change the beneficiary the consent of the original beneficiary be obtained, the beneficial certificate is put in the same category as a life insurance policy and the beneficiary is given a vested interest.
    The improvident act of the president and secretary of the beneficiary association in taking from James Noble the certificate payable to his sister, the appellant, and issuing in lieu thereof the certificate payable to the appellee cannot affect the rights of the parties.

      Joseph P. Gaffney, with him Thomas P. McNichol, for appellee. —
    If the association has waived a strict compliance with its own rules, and, in pursuance of a request of the insured to change a beneficiary, has issued a new certificate, the original beneficiary will not be heard to complain that the course indicated by the regulations was not pursued: Penna. R. R. Co. v. Wolfe, 203 Pa. 269; Heasley v. Heasley, 191 Pa. 539.
    This doctrine, that “a provision in the Charter, Constitution or By-Laws of a beneficial society to the effect that a new direction as to the payment of a beneficiary certificate shall be valid only when made in a certain way, is for the protection of the society, and does not govern as between the claimants to the benefit,” is general. It prevails in New York: Klee v. Klee, 93 N. Y. Supp. 588; Fanning v. Supreme Council of the Catholic Mutual Benefit Association, 84 N. Y. App. Div. 205.
    In Iowa: Wandell v. Mystic Toilers, 130 Iowa, 639 (105 N. W. Repr. 448).
    In Kentucky: Manning v. Ancient Order of United Workmen, 86 Ky. 136 (5 S. W. Repr. 385).
    In Minnesota: Fischer v. Malchow, 93 Minn. 396 (101 N. W. Repr. 602).

      April 12, 1909:
    In Washington: Cade v. Head Camp, 67 Pac. Repr. 603.
    In Michigan: Supreme Court Order of Patricians v. Davis, 129 Mich. 318 (88 N. W. Repr. 874).
    In federal courts: Supreme Conclave, Royal Adelphia, v. Cappella, 41 Fed. Repr. 1.
    In mutual benefit societies the contract of insurance is between the society and the member; and the beneficiary acquires no vested right in the benefit fund, which is to accrue upon the death of the member, until the death takes place, and during his life the member may-change his beneficiary without other limitations or restrictions than such as are imposed by the organic law of the society: Com. v. Beneficial Assn., 137 Pa. 412; Hayes v. German Beneficial Union, 35 Pa. Superior Ct. 142; Algeo v. Fries, 27 Pa. Superior Ct. 157; Fischer v. American Legion of Honor, 168 Pa. 279; Lithgow v. Supreme Tent of Knights of Maccabees, 165 Pa. 292.
   Opinion by

Me. Justice Brown,

This contest is over the proceeds of a beneficial certificate issued by the Police Beneficiary Association, of the city of Philadelphia, to James Noble, one of its members. On April 20, 1907, it issued a certificate to him, in which Margery E. Dittmer, his sister, was named as the beneficiary. He retained this certificate in his possession until December 23, 1907, when he surrendered it to the association, and, on his application for another in lieu of it, the one under which the appellee, his widow, claims, was issued to him. In this she is named as the beneficiary. He died January 22,1908, and suits were brought against the association by his widow and sister, each claiming the fund. The association was ready to pay it to the one entitled to receive it, and, disclaiming all interest in it, leave was granted to pay it into court. There being no disputed facts, a rule to show cause why it should not be paid to Annie M. Noble, the widow, was made absolute. From this the sister has appealed, her ground of complaint being that the certificate naming the wife as the beneficiary was invalid as against the one in which she had been named as beneficiary, because issued in violation of a provision of a by-law of the association that “a member may transfer his certificate heretofore issued either to his wife, child or children, heirs-at-law, parent or parents, affianced wife, or the person or persons dependent upon the member, consent in writing, however, to be first had of all the living beneficiaries named therein, excepting, however, that when a certificate has been made payable to a member’s parent or parents, and such member subsequently marries, the member can substitute the name of his wife, and this without the consent of the parent or parents named in the certificate, and excepting also, however, as hereinafter provided.”

A beneficiary named in a certificate or policy issued by a beneficial association acquires no vested interest in it, nor a right to anything, during the lifetime of the member to whom it is issued, but merely an expectancy, which does not become a vested or absolute right to the proceeds of the certificate or policy until the death of the assured: Fischer to use v. American Legion of Honor, 168 Pa. 279; Brown v. Ancient Order of United Workmen, 208 Pa. 101; Supreme Conclave, Royal Adelphia, v. Cappella et ah, 41 Fed. Repr. 1. In this latter case it was said by Brown, Circuit Justice: “ In case of an ordinary policy, the right of the person for whose benefit a policy is issued cannot be defeated by the separate or joint acts of the assured and the company, without the consent of the beneficiary (Bliss, Ins., sec. 318); while it is entirely well settled that in cases of this description the beneficiary has no vested interest in the benefit certificate until the death of the insured member.” During the lifetime of a member of a beneficial association to whom a beneficial certificate is issued the beneficiary named in it is a mere volunteer, having no contractual relations either with the association or the assured. The contract is between the association and its member alone. The first contract between Noble and the Police Beneficiary Association was for the payment to Margery E. Dittmer, upon his death, of the amount of the assessments collected from the members, provided that at the time of his death he should be a member in good standing and she continued to be his designated beneficiary. He might at any time have- allowed the first certificate to become null and void by neglecting to pay assessments levied upon it. This is one of the conditions of the certificate issued to him, and, if he had allowed it to lapse, the sister would have had no ground of complaint, either against him or the association. He did not “transfer” the certificate to another without the consent of the beneficiary named in it, to whom it had not been delivered, but, still having possession of it, surrendered it to the association. He then made application for a new certificate and a new contract was entered into between him and the association, in pursuance of which the certificate was issued to him, naming his wife as the beneficiary. Of this the sister could not have complained, for she had no vested right under the certificate which was surrendered. Even if the issuing of the second certificate is to be regarded as a violation of the by-laws of the association, it would be estopped from questioning the regularity of that certificate, for, by issuing it, it waived all provisions in the bylaws as to transfers. If those by-laws were not complied with, can this appellant raise any question as to their violation? As stated, the certificate was never delivered to her, and before the time that she had acquired any rights under it it was returned to the association. If the second one was issued in disregard of the by-laws of the association, that disregard prejudiced no rights of the appellant, for she had no rights at that time. The by-laws were made solely for the convenience and protection of the association. Regulations concerning the method of changing beneficiaries are adopted for the protection of the society, and if it has, by waiver or estoppel, lost the right to object to a change in the name of the beneficiary, no one else may raise that objection; and if a change of beneficiaries has actually been consummated and acted on by the society in the member's lifetime, the original beneficiary has no standing to attack the change, because not made in compliance with the regulations of the society. See cases cited in 29 Cyclopaedia of Law and Procedure, p. 135. In our state, in the recent case of Pennsylvania Railroad Company v. Wolfe, 203 Pa. 269, we held that such rules are for the protection of the association, and if it waives its rights or does not claim them under such rules, no one else can take its place. Among other cases there cited and approved is Titsworth v. Tits-worth, 20 Pac. Repr. 213, in which the association waived a provision that no change of a beneficiary should be valid or have any binding force or effect, unless made in accordance with certain requirements in the constitution of the grand lodge. The new beneficial certificate, issued in disregard of the constitutional requirements, was upheld in a controversy with the first-named beneficiary over the proceeds of the certificate, the court saying: In the determination of the various questions arising in this case, it must be constantly borne in mind that the Ancient Order of United Workmen, the association that issued the benefit certificate, is no longer a party, and is not taking any part in the litigation. It has paid the money into court, and has been released from all obligation respecting it. This payment, however, is an admission on its part that the benefit certificate was rightfully issued, and hence all contention as to whether its rules and regulations respecting these matters had been complied with is out of the case, and is entirely disposed of. We mean by this to assert that when the association issues a certificate, or changes the beneficiary, all questions as to whether it is done or not in accordance with their rules and regulations are concluded.”

The appellant having no right or interest of any kind which the association was bound to regard at the time it accepted from Noble the first policy issued to him and issued the second, the order of the court below is affirmed.


text:
    Aschenbach, Appellant, v. Carey.

      Decedents’ estates — Diquor license — Executors and administrators.

    1. While a license for the sale of liquor is not in itself marketable, yet as it is granted for a particular place, it may add materially to the value of the fixtures, good will and unexpired term of the lease, if there be any. These an executor or administrator has for sale and they form part of the assets of the decedent’s estate, for which it is his duty to obtain the best price possible, either by public or private sale.

      2. Though a liquor license is not, per se, an asset of the estate of a decedent to whom it was issued, the representative of such estate can make no personal profit through it, and if he chooses to make of it a valuable asset for the estate, on no principle ought it be taken from the estate and made an asset of his own to satisfy his creditors. If a license is not per se an asset of an estate, it certainly is not an asset of anyone else.
    3. Where an administrator has a liquor license granted to the decedent transferred to himself individually, but pays transfer charges and subsequent renewals out of moneys of the estate, deposits the moneys from the business in a bank for the benefit of the estate, and pays therefrom the expenses of the business, reserving nothing for himself, not even commissions, a personal creditor of the administrator cannot attach such moneys or the proceeds of the sale of such license as the individual property of the administrator.
    Argued Jan. 8, 1909.
    Appeal, No. 253, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1900, No. 509, on verdict for garnishee in case of Annie E. Aschenbach v. Michael F. Carey and Joseph W. Aschenbach, Copartners, trading as Carey & Company, Defendants, and John Byrne, Jr., Garnishee.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Attachment execution. Before Willson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for garnishee. Plaintiff appealed.

      Error assigned was in refusing binding instructions for plaintiff.

      Henry Spalding, with him David N. Fell, Jr., for appellant. —
    The license granted to the defendant Carey was granted to him in his own right, because under the law of this state a liquor license cannot be held in a representative capacity: Degan’s License, 18 Phila. 458; Grimm’s Est., 181 Pa. 233; Mueller’s Est., 190 Pa. 601; Reilly’s Est., 6 Pa. Dist. Rep. 252; Buck’s Est., 185 Pa. 57; Auer’s Est., 14 Pa. Dist. Rep. 114; Schmidt’s Est., 14 Pa. Dist. Rep. 139; Fury’s Est., 35 Pa. C. C. Rep. 298; Immendorf’s Est., 190 Pa. 590.

      April 12, 1909:
    The question of whether Carey was chargeable with the value of the license was not adjudicated by the orphans ’ court. Carey voluntarily accounted to that court as for a sum of money which he was willing to pay over for the license, and both before and after the accounting continued the business and treated the license as his own.
    The estate of Laurence J. Carey has no interest in the controversy in this case.

      Walter Thos. Fahy, with him Frank A. McManus, Samuel P. Tull and Thomas A. Fahy, for appellees. —
    Assuming appellant’s contention that a license, per se, is not an asset of decedent’s estate, to be correct, she is in no way benefited: Blumenthal’s Petition, 125 Pa. 412; Grimm’s Est., 181 Pa. 233.
    The good will of a business carried on by a decedent is unquestionably an asset of his estate: Emeret’s Est., 2 Parsons, 195; Wiley’s App., 8 W. & S. 244.
    However, whether valuable in itself or not, it has been held in Reilly’s Est., 6 Pa. Dist. Rep. 252, and by the Supreme ■Court in Buck’s Est.; 185 Pa. 57, and Mueller’s Est., 190 Pa. 601, that an executor or administrator cannot use the license of his decedent for his own profit.
    Michael F. Carey was unquestionably a trustee. He appropriated to himself certain assets — whether license, or stock, good will and fixtures enhanced by the license — of the estate, paying no consideration therefor. He, as trustee, cannot profit at the expense of his trust estate; and the property so appropriated, or its proceeds, must be returned to the proper parties; and Carey’s creditors stand in no better position as to it than himself: Garrison’s App., 2 Grant, 216; Harrisburg Bank v. Tyler, 3 W. & S. 373; Sadler’s App., 87 Pa. 154; Frank v. Kurtz, 4 Pa. Superior Ct. 233.
   Opinion bt

Mr. Justice Brown,

On February 4, 1901, the appellant obtained a judgment against Michael F. Carey for 11,186.06. In February,' 1906, she procured an attachment ad lev. deb. to be issued on it against John Byrne, Jr., as garnishee, to recover from him a debt alleged to be due by him to Carey. The facts under which the appellant claims to be entitled to a judgment against the garnishee are either undisputed or uncontradicted.

Laurence J. Carey, who died December 2, 1903, was at that time the proprietor of a saloon and the holder of a retail license for the sale of liquor from the court of quarter sessions of the county of Philadelphia. Letters of administration on his estate were granted to his brother, Michael F. Carey, the appellee, who filed an inventory, in which the value of the license, stock, fixtures, etc., was appraised at $8,616.50. The appellee had this license transferred to himself as an individual and the same was renewed in his name in 1904 and 1905. Under the transfer and renewals of the license he carried on business for the benefit of the estate of his brother. He paid for the transfer and renewals of the license out of the estate’s money. He deposited all receipts from the business in his name as administrator and out of the same paid all expenses. In 1905 he had a private bid for the license of $13,500, but was directed by the orphans’ court to sell it at public sale. Ho did so, and Byrne, the garnishee, became the purchaser of it for $16,000. The attachment of the appellant was issued to reach this purchase money. The jury were instructed that if they believed the foregoing undisputed facts, the verdict should be for the garnishee, and they so found. The plaintiff asked that a verdict be directed for her, on the ground that when the license was transferred to Carey and renewed in his name it became, under the circumstances stated, his individual property, and the price bid for it by Byrne was payable to him as an individual and liable to attachment for his debts. In support of this the appellant relies upon the clause in sec. 5 of the Act of May 13, 1887, P. L. 108, which provides that an applicant for a liquor license must set forth in his petition for it that he “is the only person in any manner pecuniarily interested in the business so asked to be licensed, and that no other person shall be in any manner pecuniarily interested therein, during the continuance of the license.” This averment is found in the application of Carey for the transfer of the license and in each of the petitions for a renewal of it. Assuming that the court of quarter sessions may have been imposed upon and that it would not have granted the license if it had been fully informed as to what he intended to do under it, that is not a matter for consideration in this proceeding. The sole question is whether, in view of the act of 1887, or any rule of law, the learned court below erred in its instructions to the jury and in refusing judgment for the plaintiff n. o. v.

In procuring the transfer of the license to himself and having it renewed Michael F. Carey expended none of his own money. The transfer and renewals were paid for out of moneys of the estate of his brother, and the appellant is first confronted with the fact that no money that she ought to have, as a creditor of the appellee, was used for the benefit of the estate of his brother. What rule of law or of public policy was violated by Michael in husbanding the estate of Laurence? As just stated, he did nothing that took anything from the appellant as one of his creditors. He merely conserved the estate of his brother for its creditors. He had no right, under any guise, to use it or anything of value to it for his own benefit, and he did not attempt to do so. On the contrary, he did not retain a dollar for himself, not even commissions for his services as administrator. All of the receipts from the saloon were placed in bank for the benefit of the estate and out of them all of the expenses of the business were paid, including the license fees. The lease was not transferred to him. He kept nothing for himself. It is true that in his applications for the transfer and renewals of the license he stated he was the only person in any manner pecuniarily interested in the business, but the only conclusion to be reached from the testimony is that he did not intentionally impose upon the court. But even if the legal conclusion is that he did, how can that avail the appellant when what he did was done in perfect good faith for the benefit of his brother’s estate? Upon what principle ought the appellant to be permitted to take from that estate what has been made for it by a faithful administrator? The answer to this, in substance, is that we have held that a license to sell liquor is not an asset of a decedent’s estate. We have used that expression, but what was decided in ■two of the cases in which it is used — Buck’s Estate, 185 Pa. 57, and Mueller’s Estate, 190 Pa. 601 — would clearly make the appellee surchargeable with what he has voluntarily accounted for to the estate, and, in the third — Grimm’s Estate, 181 Pa. 233 — the question involved was not the one now before us.

In Buck’s estate the administrator took possession of the premises in which the business had been carried on and procured a transfer of the license to himself, using the stock and fixtures of which the decedent had been the owner and charging himself with their appraised value of $200. The uncontradicted testimony was that the unexpired term, good will and opportunity of getting a license were worth, without the stock or fixtures, from $2,000 to $2,500, and as the accountant made no effort to procure a purchaser, but appropriated the whole to himself, he was surcharged the highest price fixed by the witnesses as the value of the business at the time of decedent’s death. In sustaining this surcharge, while we said that a license to sell liquor is a personal privilege, and upon the death of the holder does not go to his personal representative, we further said: “But the fact that a license had been granted to sell liquor at a particular place may increase the value of that which the executor or administrator may have to sell. On the hearing of an application for a retail license the court considers the public necessity of the place as well as the personal fitness of the applicant, and the granting of a license is the finding that the place in its location and appointments is a suitable place for the sale of liquor. The opportunity to secure a transfer of the license and a renewal at the end of the year may materially affect the value of the fixtures, good will and unexpired term of the lease. When this is shown to be the case, and the accountant has failed in the performance of a plain duty, there is ground for surcharge.” In Mueller’s estate, in which the expression is used that a liquor license is not, per se, an asset of the estate, the question was as to the surcharge of one of the executors, who continued to occupy the licensed premises for the unexpired term of the lease and obtained a renewal of the license in her individual name. She reopened the tavern on the day succeeding the. decedent’s funeral and thereafter continued the business as her own. She made no effort to procure a purchaser and simply charged herself with the amount at which the stock and fixtures were appraised. The court below surcharged her, holding that the good will of the business was an element which could not, with propriety, be ignored, and it, in turn, derived its value from the license, without which a legal trade could not have been conducted. In dismissing the exceptions to the adjudication by which she was surcharged, the orphans’ court of Philadelphia county said, through Pen-rose, J., what we approved in affirming the decree: “Such a place has, necessarily, a greatly enhanced market value— just as it may also have by reason of good will arising from the mere carrying on of a prosperous business during a time sufficiently long to give it a reputation. If the occupancy of the licensee is under a lease having some time to run, the unexpired term, in case of his death, is an asset of his estate, of which good will and the opportunity of obtaining a transfer or grant of a license are inseparable incidents. No executor or person acting in a fiduciary capacity is permitted to appropriate to his individual 'benefit any profit or advantage derived, directly or indirectly, from his connection with the trust estate, even if it would be lost altogether if he did not receive it. This is an elementary principle of equity: Keech v. Sandford, 1 Lead. Cas. in Eq. 44; Davoue v. Fanning, 2 Johns. Ch. 252; In re Heager’s Executors, 15 S. & R. 65; Johnson’s Appeal, 115 Pa. 129; and if such a person could find a purchaser for an unexpired license, he would be required to account for what he received, even though the purchaser acquired no right by reason of the sale. Nor can an executor who is also legatee sever the license from the unexpired term to which it is incident, and thus prejudice the value of the latter as an asset, in order to gain some advantage to himself as legatee; his rights as legatee do not begin until he has fully performed his duties as executor, and his allegiance in the first instance is to the creditors of the estate.” While a license for the sale of liquor is not in itself marketable, yet as it is granted for a particular place, it may add materially to the value of the fixtures, good will and unexpired term of the lease, if there be any. These an executor or administrator has for sale and they form part of the assets of the decedent’s estate, for which it is his duty to obtain the best price possible, either by public or private sale: Immendorf’s Estate, 190 Pa. 590. The learned trial judge below would have erred if he had. not held that, under our cases, the money realized by the appellee from the license belonged to the estate of which he was administrator.

Instead of attempting to profit personally from the fixtures of the saloon, the stock of liquors on hand at the death of his brother and the opportunity of procuring a transfer of the license, as was attempted by the administrator in Buck’s estate and the executor in Mueller’s, this appellee, as administrator, felt from the very beginning that everything belonged to the estate he represented, and, with exceptional fidelity, carried on the business as trustee for it through a license in his individual name. Though a liquor license is not, per se, an asset of the estate of a decedent to whom it was issued, the representative of such estate can make no personal profit through it, and if he chooses to make of it a valuable asset for the estate, on no principle ought it to be taken from the estate and made an asset of his own to satisfy his creditors. If a license is not, per se, an asset of an estate, it certainly is not an asset of anyone else.

The appellee did not, as counsel for appellant seem to think, enter into a contract with those interested in the estate to do what he did for its benefit, and no one has attempted to compel him to perform a contract which might not be enforcible as being in violation of some positive law or a rule of public policy. He voluntarily brings to the estate what he made for it when acting for it, and no one else is entitled to what was so made. As to this the learned trial judge, in his opinion refusing judgment for the plaintiff upon the whole record, very properly said: “We have the fact that the defendant recognized his fiduciary relation and made no effort to reap any personal advantage from the licenses which actually stood in his name. If, then, the law would compel him, in case the money in question had voluntarily been paid to, and received by, him, personally, to account for the same for the benefit of the estate, would it not be an incongruous view which would permit his judgment creditor by attachment to reach and take the money from the debtor? It appears to us that it would, and that the anomaly would be made worse by considering that the defendant made no claim, individually, to the money, but, on the contrary, openly avowed his trust relation to it.”

Judgment affirmed.