author: Me,. Justice Elkin,

text:
    Pottsville Bank, Appellant, v. Minersville Water Company.

      Corporations—Dissolution—Liquidating trustee—Winding up business— Notice—Laches—Equity.

    The stockholders of a corporation like members of a partnership, company, or association, may, by permitting a person to act for and represent the corporation in all matters pertaining to the collection of debts, payment of liabilities, settlement of accounts, distribution of proceeds and doing other acts pertaining to the winding up of the business, confer by acquiescence and assent such powers upon the person so acting as will constitute him a liquidating trustee within the meaning of the law.
    The act of dissolution of a corporation like the act of association, is not a corporate act, but an act of the members of the corporation. They may commit to their officers the business of effecting it in all its details, but they are not required to do so by the terms of their association, and in effecting such a purpose the officers are rather trustees of the members than corporate functionaries.
    A member of the board of directors of a corporation who is also secretary and attorney for the corporation, and has had for a period of twenty-five years possession of the books, papers and assets of the corporation, and has exercised with the acquiescence and consent of. the stockholders authority to do every act, and perform every duty which the corporation itself might have done, is a liquidating trustee.
    The board of directors of a bank voted to close up its doors and wind up its business, and deliver all its books, papers and other assets to one of the directors who was also the bank's secretary and attorney. Among the papers that came into the possession of the attorney were certificates of stock which the bank held as collateral for a loan made five years before. Five years after the papers came into the attorney’s possession an action was instituted against the corporation which had issued the stock to determine to whom the dividends on the stock held by the bank as collateral should be paid. The liquidating trustee of the bank had notice of this suit, which resulted in a judgment for plaintiff therein. Nothing was done thereafter by the bank or its liquidating trustee for twenty years when an action of trespass was brought by the bank against the corporation for damages resulting from a transfer of the stock by the corporation to the person to whom the dividends had been adjudicated. Held, that the notice to the liquidating trustee was notice to the bank, and that the laches of the bank precluded a recovery.
    Argued Feb. 13, 1905.
    Appeal, No. 119, Jan., T., 1904, by plaintiff, from judgment of C. P. Schuylkill Co., May T., 1903, No. 286, on verdict for defendant in case of Pottsville Bank v. Minersville Water Company.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for the conversion of the stock of a corporation.
    The facts are stated by the opinion of the Supreme Court.
    The court charged in part as follows:
    [Mr. Nicholas Heblich, who was living at that time, and who had in his possession all of the assets, all the papers and books of the Pottsville Bank, as appears by this minute, and, as I understand the evidence, testified at the hearing in reference to this stock, and it is fair to presume that at that time he, at least individually, knew that this stock was" held or claimed by Mrs. Roehrig, and the question arises whether or not that was not notice to the bank. That question has been argued on both sides by counsel very fully, counsel for the water company taking the position that under the special facts of this case it was notice to the Pottsville Bank that there was a counterclaim to this stock, and that the Minersville Water Company had received notice that Mrs. Roehrig claimed this stock. Counsel for the plaintiff, Mr. Bechtel, thinks that the notice to Heblich was not notice to the bank, and has cited some authorities. I agree with Mr. Bechtel’s authorities,- as a rule, but under the facts of this case it seems to me that notice to Mr. Heblich was notice to the bank, for the reason that by that resolution of the bank, of August 22,1878, the books and the property and papers of the bank were transferred from the bank, wherever it was held, which is immaterial, to Mr. Heblieh’s possession and custody, and these certificates which are in controversy were found in his office after his death. We think, under that state of facts, he having control of these papers and assets, presumably for the purpose of collecting in the assets for the bank, in order that the bank might wind up its existence, taking that fact into consideration with the fact' that the minute book of the bank shows they held' no more meetings, except some in 1880, the minutes of which are simply on loose sheets <}f paper, it seems to me to support the contention of counsel for defendant that Mr. Heblich was holding these papers and books and assets of the bank for the purpose of winding up or collecting them in and enabling the bank to wind up its corporate existence; and that the bank, whilst it had a corporate existence from that time on down to the present time, so far as the evidence goes, yet at no time seemed to exercise its corporate rights, except for the purpose of keeping its organization up. We think, therefore, that notice to Mr. Heblich at that time, under the peculiar state of facts as exist in this case, was notice to the bank that there was this counterclaim to the stock in the defendant company.] [8]
    Under the evidence, it seems that the Minersville Water Company came into court and desired to have the Pottsville Bank come in and interplead ; but, for reasons, which are not expressed, the court refused to allow it at that time, but they directed'a verdict, under the evidence which was submitted to them, for Mrs. Roehrig, for the dividends arising from this stock. It seems to me, there having been an adjudication of that kind (whilst it is true the court, in its opinion, says that it is not passing upon the rights of the Pottsville Bank at that time) that it was at least notice to the Pottsville Bank, through Mr. Heblich, of the counter contention which existed in this case, and notwithstanding that which occurred back on July 2, 1883, when the finding of the court in that respect was entered of record, there seems to have been nothing done on the part of the Pottsville Bank to assert its rights or to protect itself as the bona fide holder of these certificates of stock, although it knew that the Minersville Water Company had been called upon by Mrs. Roehrig to pay the dividends from it to Mrs. Roehrig. Although it knew that there had been an adjudication that the dividends to that stock belonged to Mrs. Roehrig, by this court, yet from that time down to 1903 the Pottsville Bank or its representatives seems to have rested on its oars and to have done nothing, so far as the evidence appears in this ease.
    [It further appears that some time after the adjudication of this court, the Minersville Water Company issued the certificates of stock to Mrs. Roehrig for the same stock which is in controversy here. Presumably they waited for some action on the part of the Pottsville Bank to assert its title, if it intended to assert its title, and what was the reason of the delay is unknown. Possibly when Mr. Heblich, who had charge of these matters, discovered what Mr. Wadlinger had sworn to about his arrangement with Mr. Saylor, the president of the bank, who was dead at that time, he concluded that the bank, practically speaking, had given up its claim and had settled it for $300, and had received $200 on it, and, therefore, was not entitled to the certificates of stock.] [9] I do not say that is so, understand, but I simply say that may have been the reason for this delay. Whether it was or was not does not appear, but the fact appears that from 1883, the time of the filing of this adjudication and .the time of the filing of this testimony, down to 1903, a period of over nineteen years, no step was taken by the Pottsville Bank to assert its title as against the Minersville Water Company to this stock which is in controversy.
    In 1903, Mr. Kramer, who represented the Pottsville Bank after the death of the late Nicholas Heblich, in company with his colleague, Mr. H. O. Bechtel, seems to have made a demand upon the Minersville Water Company for the transfer of this stock, and they declined to transfer it or to issue new certificates to the Pottsville Bank, on the ground that there was no stock standing on the books any longer in the name of John Wadlinger, as I understood the evidence ; I think that is correct. Then Mr. Kramer and Mr. Bechtel brought suit, an action in damages, against the Minersville Water Company, for refusing to issue certificates of stock, and hence you have the controversy, the Minersville Water Company denying their right for about nineteen years, and during that time they lay idly by, they made no effort to protect their rights, and that certificates of stock in that time had been issued to Mrs. Roehrig, and that, therefore, the Minersville Water Company ought not to be called upon to respond in damages for refusing to issue new certificates of stock or transfer the certificates, which had been issued to John Wadlinger, to the Pottsville Bank.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were (8, 9) above instructions, quoting them.

      II. O. Bechtel, with him W. L. Kramer, for appellant.

      The delivery of the stock, accompanied with the irrevocable power of attorney, passed title to the stock as between Wadlinger and the bank; and, as between them it was an executed contract against which" the statute of limitations could not run, and which required only the presentation of the certificates and the power of attorney to the proper officers in order to transfer the stock to the Pottsville Bank on the books of the Minersville Water Company: Minnich v. Keystone Nat. Bank, 12 Pa. Dist. Rep. 638; Finney’s App., 59 Pa. 398; Shattuck v. American Cement Co., 205 Pa. 197.
    It is a well-settled rule of law that knowledge acquired by an officer of a corporation other than that acquired in the line of the performance of his duty as such officer, is not a knowledge to the corporation employing him: Sitler v. Fire Ins. Co. 18 Pa. Superior Ct. 139; Wetzel v. Linnard, 15 Pa. Superior Ct. 503; B. & P. Ry. Co. v. American-Bangor Slate Co., 203 Pa. 6 ; Budd v. Olver, 148 Pa. 194; Houseman v. Girard Mut. B. & L. Assn., 81 Pa. 256; Wilson v. McCullough, 23 Pa. 440 ; Custer v. Tompkins County Bank, 9 Pa. 27 ; Wilson v. Second Nat. Bank, 7 Atl. Repr. 145; Twelfth St. Market Co. v. Jackson, 102 Pa. 269 ; Allen v. First Nat. Bank, 127 Pa. 51.
    The statute of limitation does not begin to run until a right of action accrues: Swearingen v. Sewickley Dairy Co., 198 Pa. 68 ; Marsteller v. Marsteller, 93 Pa. 350; Smith v. Bell, 107 Pa. 352; Eichman v. Hersker, 170 Pa. 402; Taylor v. Witman, 3 Grant, 138.

      G-eorge M. Roads, for appellee.
    The statute “runs only from the time when a demand for registration was made: ” Cleveland, etc., R. R. Co. v. Robbins, 35 Ohio St. 483; Iron R. R. Co. v. Fink, 41 Ohio St. 321; Trickett on the Law of Limitations in Pennsylvania, sec. 226, p. 298; Alexander v. Leckey, 9 Pa. 120; Pittsburg, etc., R. R. Co. v. Byers, 32 Pa. 22; Steele v. Steele, 25 Pa. 154 ; Waterman v. Brown, 31 Pa. 161; Morrison v. Mullin, 34 Pa. 12.
    The bank’s agent knew that Dorothy Roehrig was claiming in - court the dividends on this very stock, that a demand for these shares had previously been made by the officers of the bank, without avail. Having thus been put upon inquiry, he and, therefore, the hank, is presumed to have known what that inquiry would reveal: Bayard v. Farmers’ & Mechanics’ Bank, 52 Pa. 232.
    April 24, 1905 :
   Opinion by

Me,. Justice Elkin,

If Nicholas Heblich can be considered under the facts of this case a liquidating trustee of the appellant, it necessarily follows that the cause of action was properly disposed of in the court below. It is conceded that neither the stockholders nor the board of directors by any formal act, or vote, or written authority, in express terms constituted him a liquidating trustee. We' do not consider this necessary. The stockholders of a corporation, like members of a partnership, company or association, may, by permitting a person to act for and represent the corporation in all matters pertaining to the collection of debts, payment of liabilities, settlement of accounts, distribution of proceeds and doing other acts pertaining to the winding up of the business, confer by acquiescence and assent such powers upon the person so acting as will constitute him a liquidating trustee within the meaning of the law. So far as the evidence shows the appellant did not pursue the statutory requirements in respect to the winding up of the business of the corporation. The provisions of the Act of April 9, 1856, P. L. 293 might have been followed, but the record in this case is entirely silent on the subject. We gather from the facts, however, that this method was not adopted. The act of 1856 recognizes the application of the general rules in reference to the accounts of assignees and trustees in such cases. Lithe construction of that statute our courts have applied equitable principles. In Lauman v. Lebanon Valley Railroad Co., 30 Pa. 42, Mr. Chief Justice Lowbie said: “ The act of dissolution, like the act of association, is not a corporate act, but an act of the members of the corporation. They may commit to their officers the business of effecting it in all its details, but they are not requii'ed to do so by the terms of their association and in effecting such a purpose the officers would be rather trustees of the members than corporate functionaries.” See also Bailey’s Appeal, 96 Pa. 253; in re Credit Mobilier of America, 10 Phila. 2. These authorities indicate that the rules of law applied by the courts to acts done by directors or officers of corporations relating to the dissolution thereof are the equitable principles governing trustees or others acting in a fiduciary capacity. Our courts have long recognized this principle in dealing with partners. Garretson v. Brown, 185 Pa. 447, was a case in which the opinion of the master was affirmed by this court. In discussing this question, the master said: “ It seems to be clear from all of the cases that formal action by way of vote, or written document, or similar process, is not a prerequisite to the exercise of such right by one member of a partnership, or to the legal imposition upon the partner so acting of all the duties and consequent responsibility of such office:” Wilson v. Waugh, 101 Pa. 233 ; Siegfried v. Ludwig, 102 Pa. 547; Campbell v. Floyd, 153 Pa. 84; Jutte v. Hutchinson, 189 Pa. 218. We see no good reason why the same rule should not apply to a member of the board of directors, the secretary and attorney for the corporation, who for a period of twenty-five years, having the possession of the books, papers and assets of the corporation, exercising with the acquiescence and consent of the stockholders, authority to do every act and perform every duty which the corporation itself might have done should not be held to be a liquidating trustee. We must therefore consider Nicholas Heblich a liquidating trustee, and notice to him under the circumstances of this case was notice to the bank, and its failure to assert right to or ownership of the certificates of stock, the value of which is involved in this controversy, for a period of more than thirty years after it obtained possession of the same as collateral security for a loan, and almost twenty years after an amicable action had been instituted in the court of common pleas of Schuylkill county for the purpose of determining to whom the dividends should be.paid, on which action judgment was entered, of which action and judgment the bank is presumed to have notice through its liquidating trustee, is such laches as will preclude the appellant from recovering in this case.

On January 5, 1878, the board of directors of the appellant bank adopted a resolution to close its doors on the following Saturday and wind up its business, unless otherwise directed by the stockholders at a meeting to be called prior to that time. The evidence does not disclose what action was taken by the stockholders, but inasmuch as the bank did proceed to wind up its business and settle its affairs, it must be presumed tbat the stockholders adopted tbe resolution of the board of directors and authorized the winding up of the corporate business. Nothing is shown by the record to throw any light upon the manner in which the business was closed out. The last formal meeting of said board was held August 22, 1878, at which a resolution was adopted authorizing the bank property, consisting of books, notes, papers and other assets, to be removed from the bank building to the office of Nicholas Heblich. In accordance with this authority the books, notes, papers and other personal property, including the bank safe, were so removed, where they remained under his care, supervision and control until his decease December 24, 1902. The meeting of the board of directors August 22, 1878, was the last at which formal action was taken upon the affairs of the company and spread upon the minute book. After the removal of the assets, books and accounts of the bank to the office of Heblich in August, 1878, he was permitted to exercise absolute authority in the matter of disposing of the property of the bank, collecting the notes, making settlement of accounts, and in the performance of every act, duty or thing in which the' bank was interested. The bank went out of business in 1878, and has not performed any corporate act from that time until the institution of this proceeding, except it is claimed by counsel, and not disputed, that some kind of informal meetings were held from time to time for the purpose of electing nominal officers to preserve the franchise and corporate entity of the bank.

Let us see how these facts affect the rights of the parties to this action. On April 10, 1872, John Wadlinger, who was the owner of thirty-one shares of stock in the defendant water company, delivered the certificates therefor with an irrevocable power of attorney to the president of the appellant bank, which power of attorney authorized said president to transfer the certificates of stock to the bank. This stock was pledged as collateral security for a loan made to Wadlinger. It stood in the name of Wadlinger on the books of the defendant company at that time. On September 26, 1872, Wadlinger in company with Frederick Roehrig went to Jacob S. Lawrence, treasurer of the defendant company, who had charge of the stock ledger, the only book in which transfers were made, and entered thereon an assignment of the shares of stock in question to the said Frederick Roehrig. This assignment was properly executed by Wadlinger in the presence of a witness. On the same day the treasurer charged the stock account of Wadlinger with the shares so transferred, and credited the account of Roehrig with the same. Wadlinger did not produce the original certificates at the time the transfer was made, alleging to the treasurer that he had mislaid or lost them. On March 15, 1873, Wadlinger made an affidavit which was presented to the board of directors, stating therein that he had lost or mislaid said certificates of stock; that he had sold or transferred the same to Frederick Roehrig, and authorized and instructed the defendant company to issue new certificates to said Roehrig. The evidence shows that Roehrig acted in good faith as a bona fide purchaser for value, without notice of the fact that the original certificates had been transferred to the plaintiff bank as collateral security for the loan of Wadlinger. Although new certificates were not issued to Roehrig at that time, his name was entered on the books of the company as a stockholder and dividends on the stock were regularly paid to him or his representative until 1881. Prior to this time the water company did not have notice or knowledge of the fact that Wadlinger had pledged these certificates of stock to the bank.In 1881 the water company was informed that the original certificates were held by the bank as collateral security for the debt of Wadlinger. The board of directors of said water company thereupon adopted a resolution instructing the treasurer not to pay any more dividends to Roehrig or any other claimant until it was ascertained to whom the stock belonged. In the meantime Roehrig died and his interest in these certificates of stock passed by his will to his widow. On September 1, 1882, an amicable action in assumpsit was entered in the court of common pleas of Schuylkill County between Dorathea Roehrig, who was the widow of Frederick Roehrig, deceased, and the Minersville Water Company, for the purpose of determining whether said plaintiff was entitled to recover the dividends declared and unpaid on said stock. On November 20th following the defendant water company presented a petition to the court setting out these facts, and asking for a rule upon the appellant bank to show cause why it should not intervene in order that all of the rights of the parties might be determined in that proceeding. The court refused to grant the rule without assigning any reason therefor. It does not appear from the evidence whether the bank had formal and legal notice of the institution of the amicable action or the presentation of the petition asking that a rule be granted to show cause why it should not intervene. The inference is, however, that it did have notice of the proceedings for the reason that seven days elapsed from the filing of the petition until the order of the court was made refusing the same, the reasonable presumption being that this time was taken for the purpose of giving notice and hearing the parties interested. At this time the bank had been out of business for five years. The only person acting for and representing it was the said Nicholas Heblich. When the case came on for trial a few months later he was called as a witness, and testified in detail to matters concerning said certificates of stock, and where and how they were held by the bank. He admitted the bank held them as collateral, but he did not assert ownership of the bank in the stock. As we have already said, notice to Heblich was notice to the bank. It is idle, therefoi’e, to say that the bank did not have notice sufficient to require it to assert whatever rights it claimed in said stock within a reasonable time. The case was tried under the Act of April 22, 1874, P. L. 109 without a jury. The court found the facts and entered judgment in favor of the plaintiff for the amount of the unpaid dividends, stating in the opinion that the question of the rights of the Pottsville Bank was not passed on. Judgment was entered July 2,1883. The water company then paid the amount of the judgment and continued to pay Dorathea Roehrig all dividends on said stock as they were declared thereafter. On August 6, 1883, new certificates of stock were issued to the said Dorathea Roehrig for the shares in controversy, this action by the water company being predicated upon the finding of the court that if she was entitled to the dividends she was also entitled to the certificates of stock. From the 6th of August, 1883, when the new certificate was issued to Dorathea Roehrig, until March 17, 1903, the appellant made no demand for nor asserted any ownership in this stock. During this long period of time it remained quiet, failing to assert any rights either for the dividends declared or to the certificates. Certainly these facts bring the case within that familiar rule that if one by his acts or silence or negligence misleads another, or effects a transaction whereby an innocent party suffers, the blamable party must bear the loss. We fail to see how the appellee can be held liable in this action which is predicated upon the supposed negligence or tortious acts of the water company. The evidence clearly shows that the defendant acted in good faith and with business prudence throughout the whole transaction. It is well known in the common experience of corporations that certificates of stock are sometimes lost or destroyed, and when these facts are properly made known to the officers of the company new certificates are issued, generally under the express provisions of the by-laws regulating such matters. It does not appear from the evidence whether the water company had provided for such contingencies in its by-laws, although it was argued that no such power had been granted. It would seem, however, such authority may be presumed from custom acted upon and not disputed for a long period of time. The appellee was justified in relying upon the adjudication of the court, which for all practical purposes decided that Dorathea Roehrig was entitled to said shares of stock unless the bank holding the original certificates should show its superior right within a reasonable time by due course of law. Having lain by and failed to do so it cannot be heard to complain when the rights of innocent third parties have become permanently fixed. It is true that this is an action at law, but in our State the doctrine is firmly established that equity is administered through common law forms. This is a case for the assertion of the maxim vigilantibus non dormientibus jura subveniunt. It is unnecessary to discuss the other questions raised by the assignments.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Jones, Appellant, v. Scranton Coal Company.

      Negligence—•Master and servant—•Mines and mining—Infant.

    In an action against a coal mining company to recover damages for the death of a boy fifteen years old employed as a slate picker, a nonsuit is properly entered where it appears that the deceased met his death by being caught in the elevator machinery of defendant’s breaker; that it was no part of his business to be near the machinery; and that there was nothing to show how he came near enough to the machinery to be injured by it.
    Argued Feb. 20, 1905.
    Appeal, No. 212, Jan. T., 1905, by plaintiff, from order of C. P. Lackawanna Co., Sept. T., 1901, No. 974, refusing to take off nonsuit in case of Whitemore Jones and Elizabeth Ann Jones v. Scranton Coal Company.
    Before Mitchell, C. J., Dean, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s son. Before Kelly, J.
    At the trial the court granted a compulsory nonsuit.
    On a rule for a new trial Kelly, J., filed the following opinion:
    Daniel Jones, a boy a little over fifteen years old, son of the plaintiffs, was killed on January 7, 1901, by being caught in the elevator machinery of the defendant’s breaker. There was no eye witness to the accident, and no evidence to show how he came to be near enough to the machinery to be injured by it. He was employed as a slate picker in the August previous, and during all of the intervening time worked at the breaker as a slate picker, until the day of .his injury. On that day he'was engaged in the occupation of keeping the coal running in the chutes which lead from the elevator machinery to the screens, that is, whenever the coal became clogged he loosened it with a shovel and started it running again. There is no evidence to show how he came to be so engaged on the day of the accident, whether by order of the foreman or as a mere volunteer, but assuming it was by order of the foreman, his work in keeping the coal running in the chutes did not require him to be in any dangerous proximity to the elevator machinery. When last seen, a minute or two before the accident, he was leaning over the chute watching the coal running down into the screen, about ten feet away from the machinery. He would have to go up several steps to get to the elevator, and the evidence shows that it was no part of his business to go to it, or be near it, even in the work, of looking after the chutes. While some of the testimony showed that the machinery in question was substantially guarded, there is other testimony tending to show that it was not. The negligence complained of in the plaintiff’s declaration was that the boy was required and permitted to do other work than that which he was employed to do, work more hazardous and dangerous, viz.: to care for and move the culm from the elevators and to keep the elevators clear and free from clogging, and that the defendant failed to instruct him of the danger and hazard incident to such work; and that he was caught in the machinery and killed while so employed. The plaintiffs failed to shpw that he was required . or permitted by the defendant to work about the machinery in question, or that he was so employed when he met with the accident. They failed entirely to prove the negligence set out in their declaration. .Under the evidence the boy was at the place where he had no business to be when he was injured, and at a place where the defendant owed him no duty. So even if the machinery was not guarded properly that would not render the defendant liable : Gillen v. Rowley, 134 Pa. 209.
    Another fatal defect in the plaintiff’s case is the failure to show how the accident happened, which must always be shown in cases of this character, by at least a fair preponderance of the evidence : Ford v. Anderson, 139 Pa. 261. That the mere happening of the accident raised no presumption against the defendant is a principle so well settled that it would be idle to quote any authority to sustain it.
    Taking all of the evidence presented into consideration, we cannot see that the plaintiffs have shown the defendant’s responsibility for the unfortunate accident which resulted in their son’s death. Rule discharged.

      Error assigned was refusal to take off nonsuit.

      Charles E. Daniels, with him W.-M. Bunnell, for appellant.

      James E. Burr, with him James E. Bell, for appellee.
    April 24, 1905:
   Per Curiam,

This judgment is affirmed on the opinion of the court below.


text:
    Brown, Appellant, v. Moosic Mountain Coal Company.

      Evidence—Privileged communications—Attorney at law—Employment of same attorney by two persons.

    When two or more persons employ the same attorney in the same business, communications made by them in relation to said business, while privileged as to the common adversary, are not privileged inter sese.
    Where an offer of testimony and the preliminary examination of the witness do not disclose a privileged communication, an objection to the offer is properly overruled. If the testimony of the witness subsequently discloses that it was incompetent, it is the duty of counsel to move to strike it out, and not for the trial judge to order it stricken out on his own motion.
    Argued, Feb. 20, 1905.
    Appeal, No. 268, Jan. T., 1904, by plaintiff, from judgment of C. P. Lackawanna Co., Jan T., 1903, No. 241, on verdict for the defendant, in case of John L. Brown v. Moosic Mountain Coal Company.
    Before Mitchell, C. J., Dean, Brown, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit on a contract. Before Kelly, J.
    Verdict and judgment for defendant.
    On a rule for a new trial Kelly, J., filed the following opinion:
    The only reason for a new trial which requires any attention is that in which it is claimed we erred in admitting the testimony of W. S. Diehl, Esq., called as a witness by the defendant. It is claimed that Mr. Diehl was the attorney for the plaintiff at the time he had the conversation with him which he was allowed to testify to, and that, therefore, it was a privileged communication, and as such inadmissible.

      A careful examination of Mr. Diehl’s testimony fails to convince us that it was a privileged communication between attorney and client which Mr Diehl testified to. True, Mr. Diehl was the attorney for Mr. Brown at the time, in a limited and technical sense, but under all of the circumstances it seems clear that he was acting in his capacity as attorney for the defendant and that the plaintiff knew it when they had the talk about the settlement of the case. Or, if not acting exclusively for the defendant, then it is certainly clear that he acted in behalf of both, in making settlement with the common adversary, Mr. Stanton. The general rule is that when two or more persons employ the same attorney in the same business, communications made by them in relation to such business, while privileged as to their common adversary, are not privileged inter sese: Probst’s Appeal, 163 Pa., 423; Jackson v. French, 3 Wendell, 337 ; 23 Am. & Eng. Ency. of Law (2ed.), 65 and notes.
    It might be further said in regard to the matter that the offer did not disclose that a privileged communication was sought to be introduced in evidence, nor did the preliminary examination of the witness disclose any such proposition. So the objection to the offer was properly overruled, and if the testimony of the witness subsequently disclosed that it was incompetent it was the duty of counsel to move to strike it out, and not for the trial judge to order it stricken out on his own motion : Aitkin v. Young, 12 Pa. 15.
    We think the case was on the whole fairly presented to the jury on its merits, and can see no good reason for disturbing the verdict. The rule for a new trial is, therefore, discharged.

      Error assigned among others was in admitting the evidence of W. S. Diehl.

      Eomer Grreene and L. P. Wedeman, with them E. E. Boyle, for appellant,
    cited: Beeson v. Beeson, 9 Pa. 279 ; Beltzhoover v. Blackstock, 3 Watts, 20; Moore v. Bray, 10 Pa. 519; Kaut v. Kessler, 114 Pa. 603; Bennett’s Est., 8 W. N. C. 287; Miller v. Weeks, 22 Pa. 89; Jeanes v. Fridenberg, 3 Clark, 199; Com. v. Moyer, 11 W. N. C. 34; Peoples’ Bank of Buffalo v. Brown, 7 Am. B. R. 475.

      W. W. Watson, of Watson, Diehl Kemmerer, for appellee.
    April 24, 1905:
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


text:
    Neuls, Appellant, v. City of Scranton.

      Constitutional law—Public officers—Removal of elected officers—Act of March 7, 1901, P. L. 20.
    The legislature has the power to remove, or to authorize directly or indirectly the removal of an elected municipal officer.
    The city recorder of the city of Scranton has the power to remove an assessor previously elected. Neuls v. City of Scranton, 20 Pa. Superior Ct. 286, followed.
    The Act of March 7,1901, P. L. 20, is constitutional. Com. v. Moir, 199 Pa. 534, followed.
    Argued Feb. 21, 1905.
    Appeal, No. 277, Jan. T., 1904, by plaintiff, from judgment of C. P. Lackawanna Co., for defendant -on case tried by the court without a jury in suit of John A. Neuls v. City of Scranton.
    Before Mitchell, C. J., Dean, Brown, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit for salary as city assessor.
    The case was tried by the court without a jury under the Act of April 22, 1874, P. L. 109, and judgment was entered for defendant. Plaintiff appealed.

      Krror assigned was the judgment of the court.

      J. H. Burns, A. A. Vosburg and Charles W. Dawson, for appellant.

      David, J. Davis, city solicitor, and H. i?. Van Deusen, assistant city solicitor, for appellee.
    April 24, 1905:
   Per Curiam,

The constitutionality of the Act of March 7, 1901, P. L. 20 was expressty affirmed in Com. v. Moir, 199 Pa. 534. Every question advanced now, including the constitutional power of the legislature to remove, or to authorize directly or indirectly the removal of an elected municipal officer, was there considered and determined adversely to appellant’s present contention.

In Neuls v. City of Scranton, 20 Pa. Superior Ct. 286, it was shown that the act of 1901 authorized the recorder to remove an assessor previously elected. It is unnecessary to add anything further on the subject.

Judgment affirmed.


author: Mb. Justice Elkin,

text:
    Neubert v. Armstrong Water Company, Appellant.

      Corporation—Stockholders—Right to inspect books.

    The minority stockholders of a corporation have a right to an opportunity to examine the books and papers of the corporation for the purpose of ascertaining the value of their stock, where the majority holders have been seeking to purchase the stock at a price much below par, and the majority having control of the company have given the minority no information as to the financial condition of the company. This right, if denied, may be enforced by mandamus.

      Corporations—Stockholders—Inspection of books—Legal demand—Letter— Mailing letter—Presumption—Evidence.

    A legal demand for an opportunity to inspect the books of a corporation, if properly addressed, with prepaid postage, and deposited in the post office, will be presumed to have reached its destination, but such presumption may .be rebutted by evidence showing that it was not received. If such evidence is offered, the question becomes one of fact for the determina^ tion of the jury.

      Mandamus—Jurisdiction—Corporations—Acts of June 8, 1893, P.L. 345, and March 19, 1903, P. L. 32—Inspection of books and papers.

    The purpose of the Acts of June 8, 1893, P. L. 345, and March 19, 1903, P. L. 32, construed in pari materia, was to give the courts in the counties where the chief place of business of a corporation is located, or where the corporation transacts its business or has its property in whole or in part, the right to proceed by mandamus to compel the performance of any act, duty, matter or thing which should be performed within such county.
    Where a corporation has its plant and transacts almost all of its business in one county, although its principal office is in another and distant county, the court of common pleas of the first county has jurisdiction in mandamus proceedings to compel the corporation to give a stockholder an opportunity to inspect its books and papers.

      Mandamus—Amendments—Corporation—Inspection of books and papers ■—Value of stock.

    Where the several prayers of a petition for mandamus to enforce the right to inspect the books and papers of a corporation, show that the purpose of' the proceeding was to ascertain the value of the shares of stock owned by the petitioner, although this purpose was not specifically stated in the prayers, the court may permit the petition to be amended so as to include a specific prayer for that purpose.
    Argued Feb. 28, 1905.
    Appeal, No. 8, Oct. T., 1905, by defendants, from judgment of C. P. Armstrong Co., Sept. T., 1903, No. 33, on verdict for plaintiffs in case of Valentine Neubert et al., Executors of G. C. Orr, deceased, v. Armstrong Water Company et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Petition for mandamus. Before Reed, P. J.
    Tbe facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows :
    [Therefore, if you are convinced upon the whole evidence that the plaintiffs were approached by the defendants for the purpose of buying their stock, and the plaintiffs informed the defendants that they would not sell until they could examine into the financial condition of the company, for the purpose of determining the value of the same, and that they subsequently made a demand for the books upon the persons having their possession and control, at a proper time and place, stating their purpose to be the inspection and examination of the books to learn what their stock was worth, then they complied with the requirements of a proper and legal demand, and if you so find, your verdict should be for the plaintiffs, otherwise it should be for the defendants.] [3]
    [Perhaps before concluding my instructions I should refer to one particular demand which the plaintiffs allege was made on William Walker, treasurer of the company, by letter. The plaintiffs offered evidence to show that a letter, a copy of which has been introduced in evidence bearing date February 12,1903, and marked “ exhibit No. 13,” that this letter was prepared and signed by Mr. Orr Buffington; that it was then put into an envelope and addressed to Mr. Walker, at his residence number, in the city of Philadelphia. That it was properly stamped and deposited in the post office at Kittanning and sent to Mr. Walker by registered mail. These facts, standing alone, would raise a presumption that Mr. Walker received that letter. If there was nothing else in the ease, you would be warranted in so finding. But the presumption is only one of fact, and may be overthrown by testimony that the letter was not received. Mr. Walker was called, and he testified positively that he never did receive it. If you credit his testimony and deem it sufficient to overthrow the presumption that he did receive the letter, arising from the fact that it was addressed and mailed to him as stated, then that letter, or copy of which has been offered in evidence, would drop out of the case and will not be considered by you at all in arriving at your verdict.] [5]
    Defendant presented these points :
    5. The plaintiffs having shown by their evidence that the only purpose of the inspection of respondent company’s books and the papers, disclosed before the filing of the petition in this case, was the ascertaining the value of the plaintiff's stock, and the petition shows that the purpose thereof was entirely different, viz.: To file a bill for the correction of alleged mismanagement of the corporate affairs, on the part of the respondent company’s officers; such alleged demand is not a legal and proper one, and the verdict of the jury must be for the respondents. Answer : Refused. [8]
    6. In order to sustain a verdict in behalf of the plaintiffs in this case it must appear of record that this court has jurisdiction, not only of the parties respondent but of the subject-matter of the complaint as well. Answer : Refused. [9]
    Verdict and judgment for plaintiff. Defendants appealed.

      JErrors assigned were (3, 5, 8, 9) above instructions, quoting them.

      M. JE. Leason and William J. Christy, of McCain Christy, with them Ross Reynolds, for appellant.
    The principles and restrictions which govern and control the granting of writs of mandamus are clearly stated in Com. ex rel. Snyder et al. v. Mitchell et al., 82 Pa. 343; Com. ex rel. v. Thomas, 163 Pa. 446; Com. v. City of Pittsburg, 209 Pa. 333.

      The court should not have allowed the amendment: Com. ex rel. v. Phila., 180 Pa. 12.

      I). C. Corbett, with him O. W. Gilpin and Orr Buffington, for appellee.
    April 24, 1905:
   Opinion by

Mb. Justice Elkin,

Three questions arise in the consideration of this appeal: First, did the appellees in good faith desire an inspection of the books of the defendant corporation for a definite and proper purpose pertaining to the corporate business and affecting their rights as stockholders; second, did they make a proper legal demand on the officers for an inspection of the books and papers before instituting the mandamus proceedings, and was the demand-refused; third, did the court have jurisdiction to entertain the petition and issue the writ ?

The petition averred, inter alia, that the business of the defendant corporation was under the control and management of Stocker, Welles and Walker, who had acquired a majority of the capital stock thereof; that they had failed to keep proper accounts and make annual statements of the financial condition of the corporation to the stockholders; that said parties had committed these and other illegal acts for their personal benefit and to prevent plaintiffs from knowing the value of their stock; and that plaintiffs had been denied all information about the business of said corporation and the value of its stock, although such information was necessary in order to enable them to file a bill in equity to restrain the officers from the further commission of the acts complained of, for an accounting of the moneys expended by the officers and for other purposes therein stated. The petition further averred that the defendants Stocker, Welles and Walker, being in control of the management of said corporation, had resorted to various devices to compel petitioners to sell to them their stock at a price below its actual value. The petition also contained many other allegations to support the writ prayed for, but these recitals are sufficient for the purpose of considering the questions before this court. All the material averments in the petition were denied by the defendants in the answer filed. The plaintiffs traversed and joined issue on the facts and the case proceeded to a final hearing. By agreement of the parties the single question of fact left to the jury was whether proper legal demand had been made by the appellees on the appellants for an inspection of the boohs and papers of the corporation prior to the filing of the petition for a mandamus. All other questions of law and fact by agreement and consent of the parties were left to the court. In the opinion of the learned court below refusing a new trial, it is stated: “ The testimony on the trial shows, inter alia, that James D. Stocher, Charles H. Welles and William Walker in June, 1902, bought about six-sevenths of the stock of the Armstrong Water Company, and that the remaining one-seventh of said stock was held and owned by the plaintiffs; that Stocker, Welles and Walker were endeavoring to purchase the plaintiffs’ stock and had made them an offer of 170.00 per share for the same; that the plaintiffs declined to sell until they were afforded an opportunity to examine the books and papers of the company for the purpose of ascertaining and determining the value of their stock; that there had been no statements issued by the defendant company regarding its financial condition or other information furnished the plaintiffs whereby they could determine the value of their stock; and that an inspection of the books and papers of the company was necessary for this purpose.” Certainly under these facts, which we must accept as established, the plaintiffs have shown a definite and proper purpose which justified a demand for an inspection of the books and papers of the corporation, which when refused can be compelled by mandamus: Commonwealth v. Phœnix Iron Company, 105 Pa. 111; Phœnix Iron Company v. Commonwealth, 113 Pa. 563.

The question as to a proper legal demand having been made upon the appellants for leave to inspect and examine the books and papers of the corporation was by agreement of the parties submitted as a question of fact to be determined by the jury, which after hearing the testimony returned the following verdict: “We the jurors impaneled in the above entitled case find for the plaintiffs that they made a proper and legal demand on the defendants for leave to inspect and examine the books and papei’S of the Armstrong Water Company, which was refused by the defendants.” The verdict of the jury is con-elusive unless there was error in the admission of testimony.

The appellants have specified several assignments of error raising questions relating to the admission of testimony. The only assignment that need be considered in this respect is that which raises the question of admission in evidence a copy of a letter dated February 12, 1908, addressed to William Walker, and marked exhibit No. 13. This letter was signed by one of the plaintiffs who was the executor of G. C. Orr, deceased, a shareholder in said corporation. It demanded the right to examine the books of the company, and asked the party addressed, who was the treasurer of said corporation, to state when, where and under what circumstances such an examination could be made. The original letter was prepared and properly signed by Orr Buffington, executor as aforesaid. It was properly addressed to William Walker at his residence in the city of Philadelphia, was deposited in the post office at Kittanning as a registered package, a receipt having been taken from the proper postal officials for the package so registered. Before the trial a subpoena duces tecum was served upon William Walker to produce at the trial the original letter. He failed to do so, stating when called as a witness by the plaintiff for the purpose of making inquiry about the production of the original letter, that it had never been received by him. Said letter not having been produced, the plaintiffs offered in evidence exhibit No. 13, being a copy thereof. The appellants contend that it was error to admit a copy of the letter for the reason that William Walker, to whom it was addressed, when called as a witness by appellees, testified that he had not received the same, and that his answer was conclusive upon them. It has been frequently held by this court that the depositing in the post office a properly addressed letter with prepaid postage, raises a natural presumption, founded in common experience, that it reached its destination by due course of mail. It is prima facie evidence that it was received by the person to whom it was addressed, but the prima facie proof may be rebutted by evidence showing that it was not received. The question is one of fact for the determination of the jury under all the evidence: Susquehanna Mutual Fire Insurance Company v. Tunkhannock Toy Company, 97 Pa. 424; Folsom v. Cook, 115 Pa. 539; Whitmore v. Insurance Company, 148 Pa. 405; Jensen v. McCorkell, 154 Pa. 323. In the latter case the defendant denied that he had received the notice which had been forwarded him by mail, just as the witness in the present case denied that he received the letter in question, but notwithstanding the denial by the person to whom the letter was addressed, this court said in that case: “ The question is one of fact solely for the determination of the jury under all the evidence.”

In the case at bar the trial judge gave the jury careful instructions in reference to this feature of the case, stating that the depositing of the letter in the post office properly addressed raised the presumption that the party to whom it was addressed had received the same, but that this presumption could be overcome by positive testimony that it had not been received, and that if they believed the testimony of Walker that he had not received the letter, then they should entirely disregard it in their determination of the question submitted to them. It is true that this witness was called by the plaintiffs, but the primary purpose of his examination as a witness was to lay the ground for the introduction of secondary evidence, and all of his testimony must be considered as relating to this matter. Under these circumstances we think the testimony of Walker was not conclusive against the appellees, but raised a question of fact about the receipt of the letter which was properly submitted to the jury. It is clear, however, that entirely independent of the demand made by the letter, there was sufficient evidence to justify the jury in finding as a fact that a demand had been made for the inspection of the books and papers of the corporation.

The only remaining question to be considered is whether the court had jurisdiction to entertain the petition and issue the writ of mandamus. The' Act of March 19,1903, P. L. 32, provides that the several courts of common pleas, within their respective counties, shall have power to issue writs of mandamus “ to all corporations being or having their chief place of business within such county, and to any corporation doing business or having its property in whole or in part within the county: Provided, the relief, act, duty, matter or thing, the performance of which is sought, should be given or performed within such county. ” This act amended the Act of June 8, 1893, P. L. 345, which was construed in Loraine v. Railroad Co., 205 Pa. 132, wherein it was held that where a railroad company had its principal office in Philadelphia, but has constructed and operates its railroad wholly within Clearfield county, where its o]Derating officers dwell, mandamus proceedings may be instituted against the company in Philadelphia or in Clear-field county. In the present case the majority stockholders at a meeting held prior to the institution of these proceedings changed the principal office of the corporation from Kittanning to Scranton, both in Pennsylvania. For this reason, and because it is alleged that sufficient jurisdictional averments are not contained in the petition, the appellants contend that the court below did not have jurisdiction. We cannot accept this view of the law. It was not the intention of the act of 1903 to confine within narrower limits the right to proceed by mandamus against corporations. In the construction of the act of 1893, in Loraine v. Railroad Co., supra., this court distinguished the earlier cases and laid down the rule that the later acts should be given a construction in reference to the conditions existing at the time they were passed. The right to proceed against corporations by mandamus under the later acts is more liberally construed than under the earlier statutes. This is not only sound law but good sense as we]l. The evident purpose of the acts of 1893 and 1903, construed in pari materia, was to give the courts in the counties where the chief place of business is located, or where the corporation transacts its business, or has its property in whole or in part, the right to proceed by mandamus to compel the performance of any act, duty, matter or thing which should be performed within such county. In this case the defendant corporation has its plant and transacts almost all of its business in Armstrong county. Why then should these shareholders be required to go into Lackawanna county, situated in another part of the state, several hundred miles distant from the place where the real business of the corporation is transacted, in order to determine the questions in dispute hr this controversy? The act of 1903 was intended to cover just such a case as is here presented, and under the express provisions of the statute the court of common pleas of Armstrong county had jurisdiction of the parties and the subject-matter.

The original petition and the amendments made thereto contain ample averments to support the proceedings in the court below. It is complained, however, that the amendments were not properly permitted or directed to be made by the learned court, and that without these amendments there were no sufficient jurisdictional averments. The prayer of the petitioners did not specifically ask for an inspection of the books and papers for the purpose of ascertaining the value of the shares of stock, and it is argued by the appellants that the act or duty to be performed is the inspection of the books and papers for this purpose, and therefore the averments conferring jurisdiction were not properly set out. In this connection, however, it will be observed that each of the seven prayers was intended to ascertain facts, all of which either showed or tended to show the value of the stock, and this was the manifest purpose of the petitioners, known to and conceded by the appellants throughout the trial. The learned trial judge was so impressed with this view of the case that he directed the petition to be amended so as to include a prayer for this purpose. The trial before the jury by consent and agreement of counsel for both parties proceeded entirely upon this theory and it would be sticking in the bark to hold that the irregularity complained of, if such it be, could now be seized upon to defeat the plain purpose of the whole proceeding. Courts will not be astute to sustain technical objections to the course of procedure in the trial of causes where they have been disposed of on their merits and no substantial injury has' been done the complaining party. The act or duty the performance of which is sought to be compelled by mandamus is to be performed in the county of Armstrong, and there can be no question that the court exercised proper jurisdiction.

Assignments of error overruled and judgment and decree affirmed.


text:
    Delaware, Lackawanna and Western Railroad Company, Appellant, v. Danville and Bloomsburg Street Railway Company.

      Railroads—Street railways—Grade crossings—Preliminary injunction— Equity—Act of June 19, 1871, P. L. 1360.
    A preliminary injunction restraining a street railway company from laying its tracks at grade over the tracks of a steam railroad in a borough will be continued until final hearing where the evidence tends to show that ■ the crossing in question was at a point where the railroad passed over the principal street in the borough; that the street was so closely built up that no view of coming trains could be had until the crossing was reached; that over and across the street eight regular passenger trains and six regular freight trains passed daily; that the operation of a neighboring switch required a large amount of shifting across the street; that at the point in question a large number of vehicles and pedestrians passed hourly; and the evidence is conflicting as to whether an overhead crossing is reasonably practicable.
    Argued Feb. 28, 1905.
    Appeal, No. 316, Jan. T., 1904, by plaintiff from decree of C. P. Montour Co., Sept. T., 1904, No. 7, dissolving preliminary injunction in case of Delaware, Lackawanna & Western Railroad Company v. Danville & Bloomsburg Street Railway Company, W. F. Pascoe, C. E. Leippe, W. C. Billman and R. H. Koch, trading as Standard Construction Company.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat and Elkin, JJ.
    Reversed.
    Bill in equity for an injunction. Before Little, P. J.
    The court found among other facts the following:
    The railroad, in passing through Danville, crosses Mill street at grade. This street is the principal business street of the borough and a large number of vehicles and pedestrians pass hourly where the railroad crosses the street. Over and across this street eight regular passenger trains and six regular freight trains pass daily, beside extra trains. The street is about thirty-six feet in width between the curb lines.
    Mill street, both north and south of the crossing, is closely built up on both sides of the street, so that those approaching from either north or south are unable to obtain a full view of the track east and west of Mill street until they have reached the track. A watchman is kept at this point, who lowers the gates at the crossing upon the approach of trains. A person standing in the middle of the crossing can see trains at a distance of 588 feet looking eastwardly, and at a distance of 680 feet looking westwardly. A short distance east of the crossing at Mill street is a switch operated by said railroad company, frequently used, which requires a large amount of shifting across the street.
    The court found from conflicting testimony that an overhead crossing was not practicable at the point in question, and dissolved the preliminary injunction.
    A decree was entered giving the street railway company permission to construct a grade crossing and prescribing certain precautions to be taken in the use of the crossing by the defendant company.

      Error assigned was the decree of the court.

      H. M. Hinckleg and Everett Warren of Willard, Warren $• Knapp, with them A. H. McClintoelc, for appellant.
    All the presumptions are to be resolved against grade crossings. Williams Valley R. R. Co. v. Ry. Co., 192 Pa. 552; Pittsburg, etc., R. R. Co. v. S. W. Penna. Ry. Co., 77 Pa. 186 ; Perry R. R. Extension Co. v. R. R. Co, 150 Pa. 193; Penna. R. R. Co. v. Electric Ry. Co., 152 Pa. 116; Altoona, etc., R. R. Co. v. R. R. Co., 160 Pa. 623; Scranton, etc. Traction Co. v. Canal Co., 180 Pa. 636 ; Penna. R. R. Co. v. Warren Street Ry. Co.: 188 Pa. 740; Mifflinville Bridge, 206 Pa. 420; R. R. Co. v. Lawrence County, 198 Pa. 1; B. & O. R. R. Co. v. Butler Pass. Ry. Co., 207 Pa. 406 ; Penna. R. R. Co. v Bogert, 209 Pa. 589.

      James Scarlet and Gtrant Herring, with them H. S. Ammerman and T. J. Vanderslice, for appellees,
    cited: Scranton, etc., Traction, Co. v. Canal Co., 180 Pa. 636.
    April 24, 1905:
   Per Curiam,

This is a clear case for the maintenance of the status quo until final hearing.

Decree reversed and injunction reinstated.


text:
    Duffin, Appellant, v. Dawson.

      Negligence—Cellar door in pavement—Tenant—Owner.

    Where a person is injured by the tilting of a cellar door in a pavement, and it appears that the accident was caused because the door had not been properly closed, and not because of any defect in the construction of the door, the remedy is against the tenant in possession and not against the owner.
    Argued March 21, 1905.
    Appeal, No. 80, Jan. T.,1905, by plaintiff, from judgment of C. P: No. 5, Phila. Co., March T., 1903, No. 2805, on verdict for defendant in case of Bradley S. Duffin and Hannah Duffin v. Alfred H. Dawson and John P. Adams.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries against the owner of a building. Before Davis, J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      J. M. Vanderslice, with him Clarence Vanderslice, for appellants.

      Dwight M. Lowrey, with him Alfred R. Haig, Henry C. Thompson, Jr., and William F. Harrity, for appellees.
    April 24, 1905 :
   Per Curiam,

The plaintiff was injured by the tilting of a cellar door on which she stepped from the pavement to look into a store window. The building was in possession of a tenant; the action was against the owners. The door slid in grooves at its sides, instead of swinging on hinges, and this peculiarity of construction made it more difficult to open and close, and as the grooves became worn it was more liable to get out of place if not properly closed. But neither the manner of construction of the door nor any defects caused by its use made the door unsafe if care was taken in closing it. The affirmative evidence produced by the plaintiff was that the door would remain in place if it was slid back properly. It was not shown by the plaintiff what caused the door to fall when she stepped on it, but the only conclusion that could be drawn from the testimony was that it fell because it had not been properly closed. As this was due to neglect in the use of the door and not a defect in its construction, the remedy was against the tenant in possession.

The judgment is affirmed.


text:
    Boring, Appellant, v. Union Traction Company.

      Negligence—Street railways—Crossing street in middle of block—“ Stop, look and listen.”

    In an action against a street railway company to recover damages for personal injuries it appeared that at night plaintiff left the west sidewalk of a street at the middle of a block to cross to the east. At this place an alley seven feet wide opened into the street but did not cross it; crossing stones were laid from the end of the alley to the other side of the street. Plaintiff looked as he stepped in the street and saw a car within 150 or 200 feet of him. He did not look again. When near the west rail he met two men crossing in the opposite direction and stepped from the crossing stones south in the direction of the car. He was struck as he was stepping from the east rail. If he had looked at the point of danger, he would have seen that the car was so near that in attempting to cross he was placing himself in a position of imminent danger. Held, that a verdict was properly directed for defendant not only because of the contributory negligence of plaintiff, but also on account of the failure to prove negligence of the motorman.
    Argued March 22, 1905.
    Appeal, No. 367, Jan. T., 1904, by plaintiff, from judgment of C. P. No. 5, Phila. Co., June T., 1902, No. 2846, on verdict for defendant in case of James H. Boring v. Union Traction Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Davis, J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Eugene Raymond, for appellant,
    cited : Kline v. Traction Co., 181 Pa. 276 ; Shaughnessy v. Traction Co., 17 Pa. Superior Ct. 588; Lenkner v. Traction Co., 179 Pa. 486; Muckinhaupt v. R. R. Co., 196 Pa. 213; McGovern v. Traction Co., 192 Pa. 344; Elston v. R. R. Co., 196 Pa. 595; Henderson v. Traction Co., 202 Pa. 527.

      Thomas Learning, with him Thad. L. Vanderslice, for appellee,
    cited: Buzby v. Phila. Traction Co., 126 Pa. 559; Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Nugent v. Traction Co., 181 Pa. 160 ; Burke v. Union Traction Co., 198 Pa. 497; Holmes v. Union Traction Co., 199 Pa. 229; McCracken v. Traction Co., 201 Pa. 378; Pieper v. Traction Co., 202 Pa. 100 ; Keenan v. Union Traction Co., 202 Pa. 107; Moser v. Union Traction Co., 205 Pa. 481.
    April 24, 1905:
   Per Curiam,

At night the plaintiff left the west sidewalk of a street at the middle of a block to cross to the east. At this place an alley seven feet wide opened into the street but did not cross it; crossing stones were laid from the end of the alley to the other side of the street. He looked as he stepped in the street and saw a car within 150 or 200 feet of him. He did not look again. When near the west rail he met two men crossing in the opposite direction and stepped from the crossing stones south in the direction of the car. He was struck as he was stepping from the east rail. If the plaintiff had looked at the point of danger, as it was his duty to do, he would have seen what his witness saw, that the car was so near that in attempting to cross he was placing himself in a position of imminent danger. There was moreover no evidence of undue speed or of the failure of the motorman to keep his car under proper control. On both grounds, the contributory negligence of the plaintiff and the failure to prove negligence of the motorman, a verdict was properly directed for the defendant.

The judgment is affirmed.


text:
    Brophy, Appellant, v. American Brewing Company of Philadelphia.

      Corporations—Officers—Compensation—Contract.

    A corporate officer cannot recover compensation for services rendered tho corporation unless there was an express contract of employment before the services were performed.
    In an action against a corporation to recover compensation for services it appeared that the plaintiff and other organizers of the corporation defendant, in order to conceal their connection with it placed their stock in the names or persons who had no interest in it but held it solely for them. The real owners of the stock had exclusive control of the affairs of the company. The plaintiff during the whole period for which he claimed compensation for services was an acting director and a member of the executive committee of the board of directors. The plaintiff claimed on a quantum meruit for services alleged to have been rendered as superintendent and manager. Held, that a verdict and judgment for defendant should be sustained.
    Argued March 22, 1905.
    Appeal, No. 69, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T. 1900, No. 587, on verdict for defendant in case of Edward J. Brophy v. American Brewing Company of Philadelphia.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit for services rendered. Before Willson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the plaintiff presented these points :
    1. If the jury believe from the evidence that the plaintiff, Edward J. Brophy, rendered services to the company defendant as its manager or superintendent, from the time of its incorporation in May, 1897, until January, 1901, and the defendant company availed itself of such services, and the same were not voluntarily rendered without expectation of being paid for, then the law will imply a promise by the defendant company to pay for such services what they are reasonably worth, and the verdict accordingly should be for the plaintiff. Answ&r: I decline that point. [1]
    2. If the jury believe from the evidence that the plaintiff was appointed a manager or superintendent of the company defendant at a meeting of the promoters thereof; that at such meeting the fixing of the amount of his compensation was postponed ; that the plaintiff did render the services comtemplated by such appointment, then he is entitled to be paid the value thereof, and the verdict must be for the plaintiff. Answer: I decline that, unless it appear that any arrangement or contract made by the promoters was subsequently adopted by those who constituted the corporation or the persons interested in the corporation. [2]
    The court charged, inter alia, as follows:
    [Whether it is so or not unless the plaintiff did what he says he did, visiting the brewery daily on week days, ordering certain supplies, making certain’ contracts, obtaining certain customers—unless he did that in pursuance of a contract that he should be paid, then it constitutes no ground on which he can ask now to be paid.] [8]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-3) above instructions, quoting them.

      M. Hampton Todd, with him John T. Greene, for appellant.

      Joseph P. Me Cullen, for appellee.
    April 24, 1905:
   Per Curiam,

The plaintiff and the other organizers of the corporation defendant, in order to conceal their connection with it, placed their stock in the names of persons who had no interest in it, but held it solely for them. The real owners of the stock had exclusive control of the affairs of the corporation. The plaintiff during the whole period for which he claimed compensation for services was an acting director and a member of the executive committee of the board of directors. He came therefore within the reason of the settled rule that a corporate officer cannot repover compensation for services rendered the corporation unless there was an express contract of employment before the services were performed. Whether the plaintiff had been employed as superintendent or manager, with all other questions of fact, was fairly submitted to the jury. The instruction that there could be no recovery on the basis of a quantum meruit for services rendered was right.

The judgment is affirmed.


text:
    Byrne, Appellant, v. Philadelphia.

      Negligence—Municipality—Defective pavement—Notice—Contributory negligence—Nonsuit.

    In an action against a city to recover damages for personal injuries caused by a fall, it appeared that plaintiff’s fall was caused by striking his foot against the edge of an asphalt pavement which at the line of the house steps was on the same level with the brick pavement which it adjoined, but was two or three inches above it at the curb. The accident happened before sunset on a clear day in June when the plaintiff could have seen the inequality in the pavement if he looked. He testified that he did not look at the pavement at all. He was familiar with the locality; he had walked on this pavement almost daily for fourteen months and had not observed any defect in it. Held, that the plaintiff was negligent in not looking where he was going, and that if the defect was of such a nature as to have escaped his observation in his continual use of the pavement, it was not such as would warrant the imputation of notice to the city.
    Argued March 22, 1905.
    Appeal, No. 42, Jan. T., 1905, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1901, No. 1394, refusing to take off nonsuit in case of George Byrne by his next friend and father Peter Byrne and Peter Byrne in his own right v. City of Philadelphia.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before WlLTBANK, J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Albert E. Peterson, with him David Phillips, for appellant.

      J. W. Catharine, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellee.
    April 24, 1905:
   Per Curiam,

The plaintiff’s fall was caused by striking his foot against the edge of an asphalt pavement which at the line of the house steps was on the same level with the brick pavement which it adjoined, but was two or three inches above it at the curb. The accident happened before sunset on a clear day in June, when the plaintiff could have seen tire inequality in the pavement if he had looked. He testified that he did not look at the pavement at all. He was familiar with the locality; he had walked on this pavement almost daily for fourteen months and had not observed any defect in it. He was negligent in 'not looking where he was going, and if the defect was of such a nature as to have escaped his observation in his continual use of the pavement, it was not such as would warrant the imputation of notice to the city.

The judgment is affirmed.


text:
    McFadden v. McFadden, Appellant.

      Appeals—Delay—Penalty under Act of May 19, 1897, P. L. 67—Superior Court.

    The Supreme Court will not grant á motion to remit an appeal to the Superior Court where the motion was not made until after eight months from the time the appeal was taken with a session of the Superior Court intervening, and it appears that no assignments of error have been filed and no paper-book printed by the appellant. In such a case the court will quash the appeal, and impose the penalty provided by the Act of May 19, 1897, P. L. 67.
    Argued April 17, 1905.
    Appeal, No. 264, Jan. T., 1904, by defendant, from judgment of C. P. Blair Co., Oct. T., 1902, No. 75, overruling demurrer to declaration in case of Barbara McFadden v. Harry McFadden.
    Before Dean, Brown, Mestrezat, Potter and Elkin, JJ.,
    Appeal quashed.
    Motion to remit to Superior Court.
    Motion to quash appeal.

      Harry A. McFadden, P. P.

      T. H Grreevy, for appellee.
    April 24, 1905 :
   Per Curiam,

When this case was called for argument, two motions were made ; one by counsel for the appellant to remit his appeal to the Superior Court, and the other by the appellee that it be quashed with the imposition of penalty provided for in the statute in cases of appeals taken merely for delay.

No assignments of error are on file, and no paper-book has been printed by the appellant. He now, after eight months from the time his appeal was taken, and with a session of the Superior Court having intervened in the meantime, seems to think his appeal ought to have been to that court. Under the the circumstances, the appeal must be quashed.

Appeal quashed, and it appearing to the court that it was sued out merely for delay, the appellant is ordered and directed to pay to the attorney for the appellee the sum of $25, in accordance with the provisions of the Act of May 19, 1897, P. L. 67.


text:
    Jennings, Appellant, v. Morris.

      Contract—Gambling contracts—Futures—Merchandise.

    Merchandise such as grain, cotton and oil may legally be bought and sold upon speculation, and the purchase may be with borrowed money, or upon credit, and with or without security; and the legality is not affected if the purchaser pledges the merchandise to secure the payment of the purchase money. The transaction, however, becomes illegal if in fact it is the intention of the parties only to pay or receive the difference between the contract prices and the future market prices without the delivery of the subject of sale.
    The legal presumption is that the transactions were not contrary to law, and the burden is upon him who asserts the contrary to prove their illegality.
    Where the testimony is conflicting the intention of the parties may be gathered from the course of dealing.
    Argued Jan. 25, 1905.
    Appeal, No. 261, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1900, No. 358, dismissing exceptions to referee’s report in case of Edmund P. Jennings v. William McK. Morris and Edwin J. Morris, trading as Morris & Co.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.

      Assumpsit for balance due on purchases and sales of cotton by plaintiff for defendants’ account.
    The case was referred by agreement to E. Hunn Hanson, Esq.
    From the referee’s report it appeared that the plaintiff was a cotton broker in Philadelphia, and the defendants were manufacturers of cotton at Yardville, New Jersey. The defendants, had for four or five years bought cotton through the plaintiff. During the year 1900 the defendants gave plaintiff orders to buy many thousand bales of cotton! These orders were filled and subsequently on a marked decline on the price of cotton, and on the failure of defendants to furnish sufficient margin the cotton was sold, resulting in a loss, for which this suit was brought. The referee after stating the facts reported as follows :
    The principle governing the facts is distinctly established by decisions in Pennsylvania : Peters v. Grim, 149 Pa. 163, and Assigned Estate of L. H. Taylor & Co., 192 Pa. 304. It may be stated as follows:
    Merchandise (grain, cotton, oil, etc.,) may legally be bought and sold upon speculation and the purchase may be with borrowed money or upon credit and with or without security; and the legality is not affected if the purchaser pledges the merchandise to secure the payment of the purchase money; or, in other words, he may engage the pledgee (his broker or another) to “ carry it,” to use the commercial phrase, and this —further to adopt the current word—either with or without part payment of the purchase money, “ the margin.”
    But the transaction becomes illegal if instead of this it is the intention of the parties shown by their course of dealing merely to pay or receive the difference between the contract prices and the future market prices without the delivery of the subject of the sale.
    In the case for decision the plaintiff testified he had every reason to believe, did believe, and expect- that the cotton for the purchase of which he had the defendants’ orders would be taken by them ; that is to say, that the contract was to be perfected by delivery; and that in the case of every purchase he tendered the cotton to the defendants. E. J. Morris, on the contrary, testified that the dealings in futures were gambling transactions pure and simple, although on cross-examination lie seemed reluctant to repeat this and very much modified it.
    In view of this contradiction, such as it is, what the intention of the parties was must be determined from such of their acts and course of dealing as manifested it.
    The legal presumption is that the transactions were not contrary to law: Bibb v. Allen, 149 U. S. 481 (18 Sup. Ct. Repr. 950) ; Clews v. Jamieson, 182 U. S. 461 (21 Sup. Ct. Repr. 845), and the onus of proving they were so was upon the defendants. This they sought to do from the plaintiff’s statements of account of futures rendered them ; the significance of these is only developed when compared with the plaintiff’s bills for cotton that was delivered. In all such bills the cotton was either designated by marks and the weight of each bale, or of the entire amount sold; so many bales a month were to be delivered at the defendants’ mills and the terms for which the note in payment was to be given were specified and subsequently the cotton sent each month was weighed at the mill and the plaintiff advised of this in detail.
    In the statements of account with regard to the transactions in dispute, the cotton was not designated either by marks, number or weight; and since these statements showed that not only the purchases, but also the sales of the same merchandise were in the hands and under the control of the plaintiff, it was doubly businesslike if bales were delivered that they should be so described that the defendants might verify the accuracy of what was stated to have taken place.
    These statements of account are such as would be rendered if no more was intended than a settlement of differences between the contract and market prices ; there are so many bales bought, the same number sold at the same time, and the difference in price designated as profit or as loss, as the case may be. The presumption of legality was in this manner rebutted by evidence, and it thereupon fell to the lot of the plaintiff to establish by further evidence, if practicable, the legality of the contracts with the defendants. This was undertaken by the letters which in each case he wrote to the defendants stipulating that in such transaction actual delivery was understood and intended and by his testimony that he tendered the cotton to the defendants and that they assured him they were buying to load up with cheap cotton to protect themselves from an expected trust combination.
    Undoubtedly the letters must be deemed as the stipulation of each party that actual delivery of cotton was intended. But each knew doubtless that dealings in mere differences were wagers and illegal, and knowing this each might naturally choose to cover the illegality by a seeming legal contract. Passing that as of no great moment, however, it is clear that notwithstanding the plain written assertion that actual delivery was intended, such intention might be given up for another, and that it was abandoned by the course of dealing is shown by the difference between bills rendered for cotton bought and delivered and statements of cotton futures before pointed out. Although the testimony of the plaintiff that he always tendered to defendants the cotton he bought for their account was denied by no more than an inference from E. J. Morris’ testimony, yet the statement itself was insufficient to establish an offer to deliver so many bales of cotton, inasmuch as it failed to show that plaintiff had the control of and could have made actual delivery of the cotton tendered, in failing to designate the locality of such cotton or the production of the books of the warehouse, in which it was, or airy explanation why this was not done. It is determined, therefore, that whatever the plaintiff meant by the assertion that he tendered the cotton, it did not establish the fact that he controlled it so that he could actually deliver. Finally that part of the plaintiff’s testimony to the effect that the parties intended actual delivery because defendants wanted to load up with cheap cotton seems plainly inconsistent with the established fact that the defendants required or permitted the plaintiff to sell all that he bought and to do so within a few weeks or months of each purchase. The testimony intended to re-establish or to maintain the presumption in favor of legality failed of its purpose ; and this it is thought becomes further evident by a comparison of these dealings with the more common but analogous ones in stock. As is generally known, when stocks are bought upon margins, and the purchasing broker carries the stock, he actually buys for his customer the shares, takes them to a bank or trust company, there pledges them to obtain the greater part of the funds with which to pay their cost. With respect to margin transactions in merchandise (where they are not mere settlement of differences between the contract and. the market price) the broker buys for his customers’ account the grain or cotton, generally stored in a warehouse, obtains a negotiable warehouse receipt, pledges it with a bank or company having money to loan, and so gets the. greater part of the money with which to pay the price of the merchandise. In such, or some similar way, the plaintiff would have had control of cotton if he had, in fact, purchased bales for the defendants’ account, and in such case could readily have established in this suit that he had the means to perfect the tender of cotton which he said he had made.
    It was urged that the defendants under the writing with respect to actual delivery could have legally compelled it, that therefore the plaintiff has a similar right with regard to them. If one might do so, the other certainly could. But had the defendants sought by suit to compel delivery, the plaintiff had it in his power successfully to defend, on the ground of illegality of contract (if a sense of business adherence to a contract did not prevent), and yielding in such a suit would have been a voluntary and not a compulsory act.
    It remains to consider the persuasive, the potent, appeal of the attorneys for the plaintiff that E. J. Morris, having admitted that his firm received from the plaintiff large profits in dealings in 1899, exactly analogous to those which he characterized as gambling in this suit in order to escape the payment of losses, and the evidence having demonstrated that if the plaintiff had declined to stand by an agreement with the defendants, as they were now doing with him, he would have saved himself the loss of over 18,000, it would be in a high degree unjust to allow the defense to prevail, and that the testimony of E. J. Morris was evasive, at times contradictory, at others incredible, and that his manner of giving it was suggestive of withholding that which he knew, and therefore every intendment should be made against him. If the decision which has been reached depended upon his testimony, a critical review of it would be proper. But as has appeared the conclusion arrived at depends upon the evidence alone of the course of dealing of the parties.
    Among men of the business world, and in the market place, if any answer could be made to this appeal on behalf of the plaintiff it is unknown to the referee. The only one which he can make is that which his office compels, and it is to say that the contract under consideration intended no more than wagering, which, in a court of law, is illegal, and the illegality is not affected by the heavy hardship which in this case follows in its train.
    The plaintiff in the game in which the defendants were playing with him believed they would play according to rule and in fairness; accordingly he felt he was justified instead of appropriating the proceeds of two notes of $2,742.15 and $3,190, which the defendants’ letters of May 19, 1900, directed to be used to renew two others in another way, and to the then very heavy indebtedness of the defendants to him. Whatever might have been his right in this behalf had such indebtedness been the result of legal dealings, he had not the right to use the proceeds of these notes with regard to an indebtedness resulting from the mere settlement of differences, and accordingly -from the misappropriation he is indebted to the defendants in $5,932.15, with interest from July 24, 1900, to the date of this report.
    Pursuant to the foregoing the decision of the referee is that the contract between the plaintiff and the defendants concerning futures required the mere settlement of differences between the contract price of cotton and its market price, did not intend the delivery of cotton and is illegal, and that the claim of the plaintiff pursuant to his statement is not recoverable from the defendants.
    Exceptions to the referee’s report were dismissed by the court.

      Errors assigned were in dismissing exceptions to referee’s report.

      Henry J. Scott, with him Ruby R. Vale and Alexander Magill, for appellant.

      John Gr. Johnson, with him J. W. Bayard, for appellee.
    May 1, 1905:
   Per Curiam,

The learned referee in the court below reviewed the evidence with great care, and found as a fact, evidently with reluctance arising from the dishonesty of the defense, that the transactions out of which the plaintiff’s claim arose were wagering agreements not enforceable at law. To the facts thus found he applied the law with entire accuracy, and after a most careful examination we are forced to sustain his conclusions.

Judgment affirmed on the report of the referee.


author: Per Chriam,

text:
    Morris v. Jennings, Appellant.
    Argued Jan. 25, 1905.
    Appeal, No. 262, Jan. T., 1904, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1900, No. 281, dismissing exceptions to referee’s report in case of William McK. Morris and Edwin J. Morris, trading as Morris & Company v. Edmund P. Jennings.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    May 1, 1905:
   Per Chriam,

This case was tried below and argued here with Jennings v. Morris, 211 Pa. 600, and the judgment is affirmed on the referee’s report.


author: Mb. Justice Potteb,

text:
    Taylor, Appellant, v. Beekley.

      Mortgage—Foreclosure—Scire facias—Service of writ—Ejectment.

    In an action of ejectment brought to recover lands purchased under a sheriff’s sale upon a judgment in scire facias on a mortgage, the terre-tenant who was served with the scire facias and against whom judgment was entered, cannot set up as a defense that no service of the scire facias was made upon the mortgagor.
    Argued Feb. 6, 1905.
    Appeal, No. 234, Jan. T., 1903, by plaintiff, from judgment of C. P. Chester Co., Oct. T., 1902, No. 19, on verdict for defendant in case of Emily E. Taylor v. Caroline Beekley and M. F. Beekley.
    Before Mitchell, C. •J., Fell, Bbown, Mestbezat and Potteb, JJ.
    Reversed.
    Ejectment for land in Honeybrook Township. Before Butleb, J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      John Gf. Johnson, with him J. Frank E. Eause, for appellant.
    A terre-tenant of mortgaged premises, who was made a party to the proceeding to foreclose the mortgage, and upon whom service of the writ was made, and against whom judgment was entered, cannot object to a recovery in ejectment by the purchaser at the sheriff’s sale because service of the scire facias was not had upon the mortgagor and no judgment entered against her: Nace v. Hollenback, 1 S. & R. 540; Allison v. Rankin, 7 S. & R. 269; Mather v. Clark, 1 Watts, 491; Cadmus v. Jackson, 52 Pa. 295; Brundred v. Egbert, 164 Pa. 615; Hoffman v. Lee, 3 Watts, 354; Messmore v. Williamson, 189 Pa. 73; Colborn v. Trimpey, 36 Pa. 463; Sames’s App., 26 Pa. 184 ; Edwards’s App., 66 Pa. 89; Beshler’s Assigned Est., 129 Pa. 268; Landon v. Brown, 160 Pa. 538.

      Jos. W. Eunsicker, for appellees.
    The levari facias in a scire facias sur mortgage is void, unless issued on a judgment against the mortgagor: Reigart v. Ellmaker, 6 S. & R. 44; Kean v. Ellmaker, 7 S. & R. 1; Roberts v. Williams, 5 Wharton, 170; Tenan v. Cain, 188 Pa. 242; Wilson v. McCullough, 19 Pa. 77; Caldwell v. Walters, 18 Pa. 79.
    May 1, 1905:
   Opinion by

Mb. Justice Potteb,

It appears from the undisputed facts in this case that Mary E. Wilson executed a mortgage to James B. Ralston et al, upon a tract of land in Chester county to secure the payment of $3,500 with interest. The property was subsequently conveyed by Mary E. Wilson to Caroline Beekley and M. F. Beekley, the appellees, subject to the lien of the mortgage. Thereafter, a scire facias was issued under the mortgage; Mary E. Wilson, the mortgagor, was made a party, as were the terre-tenants. But no service of the writ was made upon the mortgagor. It was served upon the terre-tenants alone, and judgment was entered for want of an appearance or affidavit of defense. On this judgment, a levari facias issued, and the premises were sold to Emily E. Taylor, the appellant. She brought ejectment to recover the land, and upon the trial, the court below held that, inasmuch as there was no judgment against the mortgagor, the deed from the sheriff passed no title to the appellant, and that the terre-tenants could raise this objection in the present action. In this we think there was error. Án irregularity in the proceedings upon the scire facias cannot be inquired into in this proceeding. The judgment was entered against the terre-tenant as the real party in interest. It is true that good practice requires a judgment to be entered against the mortgagor, but the failure to do so in this case was an irregularity of which the terre-tenant cannot be now heard to complain. The title had passed from the mortgagor to her; the writ was served upon her; she had her day in court; no defense was made and judgment was entered against her as the only party really interested. It may be admitted that any title remaining in the mortgagor would not be swept away, except by service of notice upon her and the entry of judgment duly followed by sale; but that question must be raised, if at all, by the mortgagor, and she is not here making any complaint. Upon the contrary, it appears by the record that she filed her petition in court asking leave to enter her appearance and confess judgment in favor of the plaintiff nunc pro tunc, with the same force and effect as if the judgment had been duly entered against her at the same time when judgment was entered against the terre-tenants ; and this for the express purpose of quieting and foreclosing any equity of redemption in the said mortgagor. It is therefore apparent that the contention of the terre-tenants is without any substantial merit.

In Nace v. Hollenback, 1 S. & R. 540, it was held that “ in an ejectment brought to recover lands purchased under a sheriff’s sale upon a judgment in a scire facias on a mortgage, the terre-tenant cannot give in evidence any matters which might have been shown in the scire facias suit, unless there has been fraud or collusion between the mortgagor and the mortgagee, or the terre-tenant was not a party to the scire facias.” We cannot see any right in the terre-tenant to ignore the judgment entered against her in the scire facias proceeding.

It is true that in Roberts v. Williams, 5 Wharton, 170, this court said that the mortgagor should be served and the judgment obtained before proceeding against the terre-tenant, but in that case the terre-tenant appealed in the proceeding itself from what was held to be an irregular judgment. The contention that there must be a valid judgment entered against the mortgagor in the scire facias proceeding before there could be any judgment against the terre-tenant or any execution against the land is answered in Allison v. Rankin, 7 S. & R. 269. There it was said by Gibson, J.: “ To show that the title of William Marshall, under whom both parties claim, had been vested in the plaintiff below, his counsel offered in evidence a mortgage to the plaintiff,, together with the record of a scire facias, and judgment on it, showing a sale to the plaintiff, and also a deed from the sheriff of the county; to all which the counsel of the defendant objected, on the ground that there was no legal service on the mortgagor, and that consequently, the judgment, which was entered up by default, was irregular. But assuming this to be true, a court can never inquire into the regularity of the proceedings of another court, coming collaterally before it; .... No alleged irregularity of the proceedings, therefore, could affect the competency of the judgment on the scire facias, or of the sheriff’s deed founded on a sale in pursuance of it.”

If the terre-tenants here had appealed from the judgment against them on the scire facias, the objection now raised would, under the authorities, have had weight, but, as this case now stands, we do not see that they are in position to make any defense against the title of the appellant. Having had their day in court, the judgment entered against them in the proceedings upon the scire facias is conclusive.

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