text:
    Raeder v. Monks, Appellant.

      Judgment — Opening judgment — Findings of fact.

    Where on a rule to open a judgment, the court finds from competent testimony that the ground alleged by the defendants for opening the judgment is not sustained, the Supreme Court will not reverse the order discharging the rule, in the absence of clear error.
    Argued April 11, 1910.
    Appeals, Nos. 257 and 258, Jan. T., 1909, by defendants, from order of C. P. Luzerne Co., Dec. T., 1908, No. 644, discharging rules to open judgment in case of W. L. Reader v. James S. Monks et al.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Rule to open judgment. Before Ferris, J.
    The opinion of the Supreme Court states the case.

      May 16, 1910:

      Error assigned was order discharging rule to open the judgment.

      James L. Lenahan, with him Edward A. Lynch, for appellants.

      M. J. Mulhall, for appellee.
   Per Curiam,

These appeals are from an order discharging a rule to open a judgment for rent entered upon a written lease. Four persons were named in the body of the lease as lessees but only three of them signed it. All four, however, entered into possession of the premises, paid rent, sublet the property and jointly took all the benefits of the lease. The ground of the application by the defendants to open the judgment was that they had signed the lease upon the assurance by the lessor that the fourth person named as lessee would also sign it. The court found that the contention of the defendants was not sustained by the testimony. Such a finding as this will not be set aside unless it is shown that it is clearly erroneous. This has. not been done.

The order of the court is affirmed at the cost of the appellant.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Condry, Appellant, v. Wilkes-Barre & Wyoming Valley Traction Company.

      Negligence — Street railways — Fright of horses — Speed of car — Non-suit.

    In an action against a street railway company to recover damages for personal injuries alleged to have been sustained as a result of the frightening of plaintiff’s horses by an electric car, a nonsuit is properly entered, where it appears from the testimony of plaintiff’s witnesses that the car was running at the usual speed and not more than ten to fifteen miles an hour between cross streets, and it is not shown that the speed of the car contributed in any way to the accident.

      Argued April 12, 1910.
    May 16, 1910:
    Appeal, No. 79, Jan. T., 1910, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1906, No. 929, refusing to take off nonsuit in case of Michael Condry v. The Wilkes-Barre & Wyoming Valley Traction Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Evans, P. J., specially presiding.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was order refusing to take off nonsuit.

      James L. Lenahan, for appellant.

      Paul Bedford, with him Frank A. McGuigan and John T. Lenahan, for appellee.
   Per Curiam,

While the plaintiff’s horses were standing at the side of a city street they were frightened by an electric car which approached from the direction in which they were facing. When the car was about 150 feet from them they suddenly turned across the street in front of it and ran ahead of it until the wagon collided with a telegraph pole. The negligence alleged in the plaintiff’s statement was that the car was run at an excessively high rate of speed. This was not shown. The plaintiff’s witnesses testified that the car was running at the usual speed and the highest estimate of its speed was from ten to fifteen miles an hour between cross streets. Nor was it shown that the speed of the car contributed in any way to the accident. The burden of proof of negligence was on the plaintiff and as none was shown, a nonsuit was properly entered.

The judgment is affirmed.


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    First National Bank of Freeland v. Everett, Appellant.

      Practice, C. P. —Pleading—Corporation—Change of name.

    Where a corporation issues a bond of indemnity and subsequently changes its corporate name by proceedings under the Act of April 22, 1903, P. L. 251, and thereafter a'suit is brought upon the bond, in which suit the former name of the corporation is used in the body of the statement without reference to a change of name, the court will, after the expiration of the time limit for bringing the suit, permit the statement to be amended so as to set forth the new name of the company with a proper averment as to the change of name.
    Argued April 12, 1910.
    Appeal, No. 100, Jan. T., 1910, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1907, No. 656, on verdict for plaintiff in case of First National Bank of Freeland v. F. M. Everett and the Title Guaranty & Surety Company of Scranton.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit on a bond of indemnity. Before Fuller, P. J.
    At the trial the jury returned a verdict in favor of the plaintiff for $17,795.
    Subsequently on a motion for judgment non obstante verdicto Fuller, J., filed the following opinion:
    This action is founded upon a bond, given by the Title Guaranty & Trust Company of Scranton, whose name afterwards was changed to the Title Guaranty & Surety Company, guaranteeing in the sum of $15,000, the fidelity of F. M. Everett, cashier of the plaintiff bank.
    No evidence whatever was offered by the defendants, nor was any meritorious defense whatever suggested, and' the evidence adduced by the plaintiff established these unquestionable facts, viz.:

      1. The bond was given by the Title Guaranty & Trust Company on April 1, 1903, for one year from that date, and was twice afterward in writing renewed, covering on the last renewal the year ending March 31, 1906, guaranteeing the bank against loss to the amount of $15,000, which might be sustained through the dishonesty of said Everett, cashier.
    2. During the year of last renewal the bank did sustain a loss amounting to $44,650, through the dishonesty of said Everett, cashier.
    3. During the same year the name of the Title Guaranty & Trust Company was by due proceeding under Act of April 22, 1903, P. L. 251, changed to the Title Guaranty & Surety Company, without, of course, affecting its liabilities. This act we may observe does not create a new corporation, nor change the identity of the corporation at all, but merely confers right to use another name.
    4. The plaintiff fully complied with all the requirements of the bond in respect to notice, proofs of loss, and all other matters, but the defendants refused, without any good reason, to perform its obligation.
    5. Before suit brought, the original bond was lost, but on the trial plaintiff established its contents by proper secondary evidence to the full satisfaction of judge and jury, precisely as set forth by copy in the statement filed, except that the name of the guarantor was stated to be the Title Guaranty & Surety Company when it should have been stated the Title Guaranty & Trust Company, and there was also a discrepancy in the name of a signatory officer.
    The defendants have never undertaken to deny a single fact as above recited, and virtually concede the complete accuracy of the recital by not asking for a new trial, but have fought the case throughout by objection to evidence, motion for nonsuit, request for binding instructions, and finally by the present motion for judgment non obstante veredicto, on the ground of fatal variance between allegata and probata in that the instrument sued upon purports to be the bond of the surety company instead of the trust company, and. the identity of the two is not explained.
    The only question, then, open for present consideration, is whether a meritorious claim should be thrown out of court simply because the pleader in stating his case, failed to bear in mind that the contracting corporation had changed its name.
    He instituted and entitled his action properly against the corporation by its new name, Title Guaranty & Surety Company, begins the statement with averring that the plaintiff "claims of the defendant, the Title Guaranty & Trust Company,” and attaches copy of bond purporting to be executed by the Title Guaranty & Surety Company, but accompanied with a schedule of names and amounts "guaranteed by the Title Guaranty & Trust Company.”
    Of course, he should have set forth a bond executed by the trust company and then have said in a few words that the name had been changed without affecting the liability. His inadvertent use of the names, interchangeably, unaccompanied by explanation, was a departure from good pleading, which according to good authority, would seem at least to make an amendment appropriate. The mistake, however, amounts to only an "unimportant •misnomer:” Railroad Co. v. Evans, 53 Pa. 250; and the right to amend is clear, notwithstanding the limitation of one year fixed by the terms of the bond, for the cause of action would not be changed by the amendment.
    We strongly suggest to counsel for plaintiff the propriety of a motion to amend, which, so far as we see, ought to be allowed; but regarding as done what ought to be done and finding no substantial error which should nullify a long trial resulting righteously, we deny the defendants’ motion for judgment non obstante veredicto, referring to our charge for further vindication of this conclusion.

      May 16, 1910:

      Errors assigned were in refusing binding instructions for defendants and overruling motion for defendants non obstante veredicto, and in permitting plaintiff to amend his statement.

      C. B. Little and John T. Lenahan, with them Willard, Warren & Knapp, for appellants.
    The plaintiff, having alleged that the bond sued upon was issued in the alleged form and executed as alleged, it was incumbent upon the plaintiff to so prove: Quarles v. Littlepage & Co., 2 Hen. & M. (Va.) 400; Faulkner v. Faulkner, 73 Mo. 327; Phillips v. Singer Mfg. Co., 88 Ill. 305; Cunningham v. Shaw, 7 Pa. 401; Corning Steel Co. v. Western Union Tel. Co., 60 Ill. App. 426; Curley v. Dean, 4 Conn. 259; Thompson v. Rathbun, 18 Ore. 202 (22 Pac. Repr. 837); Christian College v. Hendley, 49 Colo. 347; Burns v. Iowa Homestead Co., 48 Iowa, 279; Murdock v. Hicks, 49 Vt. 408; Burnett v. Doggett, 6 Fla. 632; Sage v. Hawley, 16 Conn. 106; Umbehocker v. Rassel, 2 Yeates, 339; Church v. Feterow, 2 P. & W. 301; Bellas v. Hays, 5 S. & R. 427.

      John McGahren, with him John M. Carr and B. R. Jones, for appellee.
   Per Curiam,

It was conceded at the argument that if there was a defective service of the writ it was cured by a general appearance for the defendants. The amendment suggested by the learned trial judge in his opinion on the motion for judgment non obstante veredicto was subsequently regularly allowed.

On his opinion we affirm the judgment.


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    Commonwealth v. Keenan, Appellant.

      Bond — Trespass—Capias—Confession of judgment.

    Where a bond given to the commonwealth in an aotion of trespass commenced by capias ad respondendum is in the form prescribed by the statute, the mere voluntary addition of a confession of judgment with a waiver of exemption, stay of execution and inquisition, will not invalidate the-bond nor will such provisions be treated as nullities.
    Argued April 12, 1910.
    May 16, 1910:
    Appeal, No. 108, Jan. T., 1910, by defendants, from order of C. P. Luzerne Co., March T., 1909, No. 117, discharging rule to strike off judgment in case of Commonwealth to use of- Fritz Holznagel v. W. J. Keenan et al.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Rule to strike off judgment.
    The opinion of the Supreme Court states the case.

      Error assigned was order discharging rule to strike off judgment.

      S. S. Herring, with him John T. Lenahan, for appellants.

      Thomas D. Shea, with him James K. Gearhart, for appellee.
   Per Curiam,

This appeal is from an order discharging a rule to strike off a judgment entered by confession, on a bond to the commonwealth given in an action of trespass commenced by a capias ad respondendum. The condition of the bond was that prescribed by the act of assembly, but in addition there was a confession of judgment with a waiver of exemption, stay of execution and inquisition. The contention of the defendants is that this addition invalidated the bond or at least should be treated as surplusage and a nullity and that the judgment entered is void.

A person under arrest on a capias is entitled to his discharge upon complying with the statute. The giving of a bond is compulsory and no condition can be exacted in excess of the requirement of the statute. None was exacted in this case. The bond was regular and in proper form and its condition was in exact compliance with the act of assembly. The confession of judgment and the accompanying waivers were voluntarily given. They added nothing to the obligation of the bond but merely facilitated its enforcement. In speaking of a replevin bond that contained a warrant of attorney to confess judgment, it was said in the opinion in Clark v. Morss, 142 Pa. 311, “There is no statute or rule of public policy which prohibits a sheriff from accepting such a bond, if it is voluntarily tendered to him by the plaintiff in the replevin. The warrant to confess judgment affects the remedy on the bond, but the liability of the obligors is measured by its lawful conditions.”

The order is affirmed at the cost of the appellant.


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    Floyd, Appellant, v. Kulp Lumber Company.

      Ejectment — Tax title — Seated and unseated lands — Question for jury.

    In an action of ejectment where the defendant relies on a tax sale of the lands as unseated lands in a particular year, and the plaintiffs claim that the lands were assessed on the seated list as well, and therefore exempt from sale as unseated lands, and the defendant claims that the lands on the seated list, although of the same acreage, and in the name of the same owner, were different lands, the disputed question is for the jury, and a verdict and judgment for the defendant will be sustained in the absence of any error as to rulings on evidence or instructions to the jury.
    Argued April 18, 1910.
    Appeal, No. 155, Jan. T., 1909, by plaintiffs, from judgment of C. P. Huntingdon Co., May T.,,1907, No. 11, on verdict for defendant in case of J. B. Floyd et al. v. Kulp Lumber Company.
    May 16, 1910:
    Before Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Ejectment for lands in Jackson township. Before Shull, P. J., specially presiding.
    The facts appear by the former report of the case in 222 Pa. 257, and in the opinion of the Supreme Court, infra.
    Verdict and judgment for defendant. Plaintiffs appealed.

      Errors assigned were various rulings on evidence and instructions.

      James S. Woods, with him W. H. Woods', for appellants.

      W. M. Henderson, with him A. Reed Hayes, for appellee.
   Per Curiam,

On the first trial of this case a verdict was directed for the plaintiffs. The judgment on it was reversed because we held that it was a question for the jury whether the property claimed by the defendant under a tax sale of it as unseated land was the same tract that was assessed the same year as seated land. If it was on the seated list, it was exempt from sale as unseated land: Floyd v. Kulp Lumber Co., 222 Pa. 257. On the second trial nothing was developed that changed the situation, and the case was submitted under instructions and answers to points which were free from error. The same is true of the rulings on offers of evidence. There is nothing in the assignments calling for any discussion, and the jury having found that the tax sale of the property as unseated land passed a good title under which the defendant holds, the judgment on the verdict is affirmed.


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    Commonwealth v. Short, Appellant.

      Criminal law — Newspapers—Failure to publish owner’s name — Act of May 2, 1907, P. L. 157.

    1. The Act of May 2,1907, P. L. 157, is a valid exercise of the police power of the state, and is applicable to a weekly newspaper.
    2. Printing at the top of the reading matter of a newspaper the words: “Clearfield Republican, John F. Short, Editor. Clearfield Republican Publishing Company, Publishers,” is not a sufficient compliance with the act of 1907. In such case if the company is a partnership, the names of the partners should be given, if a limited partnership, the names of the partners, officers and managers, and if a corporation, the names of the president, treasurer and secretary.
    Argued April 18, 1910,
    May 16, 1910:
    Appeal, No. 169, Jan. T., 1909, by defendant, from judgment of Superior Court, Oct. T., 1908, No. 122, reversing order of Q. S. Clearfield Co., Feb. T., 1908, No. 30, arresting judgment on verdict of guilty in case of Commonwealth v. John F. Short.
    Before Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from Superior Court.

      Error assigned was the judgment of the Superior Court.

      Singleton Bell, with him Howard B. Hartswick, for appellant.

      A. M. Liveright, with him James II. Kelley, district attorney, and A. L. Cole, for appellee.
   Per Curiam,

The defendant below was convicted in the court of quarter sessions of Clearfield county of a violation of the Act of May 2, 1907, P. L. 157, which requires all newspapers published in this commonwealth to print, in a conspicuous place, in every issue, the names of the owners, proprietors or publishers and the managing editors of the same. Judgment on the verdict was arrested by the court below, three reasons having been assigned in support of the motion to stay it: (1) The act of May 2, 1907, is not a valid exercise of the police power; (2) the act does not apply to a weekly newspaper; (3) the purpose of the act being to give notice to the public who are the persons interested either as owner, proprietor or editor, and John F. Short being the sole owner, proprietor and editor, the printing of his name at the designated point is a sufficient compliance with the act. The first two reasons were not regarded as good, but the third was. On the commonwealth’s appeal to the Superior Court (38 Pa. Superior Ct. 562) it was properly held by that court that the third was no better than the other two, and nothing need be- added to the following said of it by Judge Morrison: “This brings us to the third reason on which the learned court arrested the judgment and discharged the defendant. The reasons given by the court in his decision are not. convincing. The requirements of the act of assembly are very plain. The- defendant did comply with its requirements in so far as to publish in the proper place the name of the editor of the paper as follows: 'Clearfield Republican, John F. Short, Editor.’ Then follows: 'Clearfield Republican Publishing Company, Publishers.’ This embraces all that is said in regard to the names of the owner, owners, proprietor or proprietors of' the newspaper. If it is a partnership, the names of the partners should have been given. If owned by a limited partnership, the same rule would apply and the names of the partners, officers and managers of the partnership, or partnership- limited, should be given. If the Clearfield Republican Publishing Company is a corporation, the names of the president, secretary and treasurer should have been given. In brief, we consider the attempt of the defendant to comply with the act of assembly in question a failure in so far as a disclosure of anything except the name of the editor is attempted.”

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


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    Tressler’s Estate.

      Appeals — Interlocutory decree — Decree on citation — Order of inquest in partition— Quashing appeal.

    Neither a citation to an executor to file an inventory nor an order of inquest in partition is a final decree from which an appeal lies.
    Argued April 18, 1910.
    May 16, 1910:
    Appeal, No. 212, Jan. T., 1909, by J. L. Tressler, from decrees of O. C. Centre Co., making absolute rule on executor to file an inventory and making absolute rule for an inquest in partition in Estate of Daniel J. Tressler.
    Before Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Appeal quashed.
    Rule on executor to file inventory.
    Rule for order of inquest in partition. Before Orvis, P. J.
    The opinion of the Supreme Court states the case.

      Errors assigned were the decrees making absolute the rules in question.

      James A. B. Miller, with him John G. Love, for appellants.

      W. D. Zerby, with him S. D. Gettig and John J. Bower, for appellee.
   Per Curiam,

The appellee, as the widow of Daniel J. Tressler, after having filed her election to take against his will, presented two petitions to the court below. The one was for a citation to the executor to file an inventory and the other was for a citation directed to all parties interested in the real estate of the deceased to show cause why an inquest in partition should not be awarded for the purpose of fixing and setting out petitioner’s dower. On each of these petitions a rule issued to show cause why its prayer should not be granted. An answer was made to each rule, averring that, for ten years before the death of the decedent, he and the appellee had lived apart under articles of separation, by the terms of which she had relinquished all interest in his estate. Upon hearing on the petitions, answers and testimony taken, each rule was subsequently made absolute, and on one appeal the appellant seeks to have reviewed what was done by the court below in two separate and independent proceedings. As his appeal must be quashed, we need not further consider this. Neither a citation to file an inventory nor an order of inquest in partition is a final decree from which an appeal lies: Allen’s Est., 20 Pa. Superior Ct. 32; Palethorp’s Est., 160 Pa. 316; Christy’s App., 110 Pa. 538; Wistar’s App., 115 Pa. 241.

Appeal quashed.


author: Mr. Justice Brown,

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    Gardner’s Estate.

      Banks and banking■ — Certificates of deposit — Statute of limitations— Partnership — Death of partner.

      A certificate of deposit issued by a banking house and payable to 'the order of the depositor upon the return of the certificate is not due or suable until return of it and demand has been made for the money, from which time the statute of limitations begins to run; and it is no defense against a claim on such a certificate that demand had not been made within six years from its maturity; but where the banking house consists of a partnership, and one of the partners dies after a certificate of deposit has been issued and has matured, demand for its payment from his estate must be made within six years from the date of the death of the partner, or it will be barred by analogy to the statute of limitations.
    Argued April 19, 1910.
    Appeal, No. 294, Jan. T., 1909, by John Leahey, Executor of Michael Morricy, deceased, from order of O. C. Blair Co., 1909, No. 261, dismissing exceptions to auditor’s report in Estate of James Gardner, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Exceptions to report of A. W. Porter, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

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

      J. Lee Plummer, for appellant.
    The individual estate of James Gardner was held by the Supreme Court to be liable for the certificates of deposit issued by the firm of Gardner, Morrow & Company: Gardner’s Est., 199 Pa. 524; Hawk v. Johnston, 5 Cent. Repr. 468.
    The claim of the appellant is not barred by the statute of limitations: McGough v. Jamison, 107 Pa. 336; Finkbone’s App., 86 Pa. 368; Riddle v. First National Bank of Butler, 27 Pa. Fed. Repr. 503; Cook v. Carpenter, 212 Pa. 165; s. c., 212 Pa. 180; Swearingen v. Dairy Co., 198 Pa. 68; Smith v. Bell, 107 Pa. 352; Taylor’s Admrs. v. Witman’s Admrs., 3 Grant, 138.
    Return of the certificate, and demand, within six years after the death of James Gardner was not required: Girard Bank v. Bank of Penn Twp., 39 Pa. 92; Humphrey v. Bank, 113 Pa. 417; McGough v. Jamison, 107 Pa. 336; Finkbone’s App., 86 Pa. 368; Cook v. Carpenter, 212 Pa. 180.

      W. I. Woodcock, with him O. 11. Ilewit, Stevens cfc Pascoe, Robert W. Smith, Edmund Shaw and II. A. McFadden, for appellees.
    The engagement of a bank with its depositors is not to pay absolutely and immediately, but when payment shall be required at the banking house; and therefore it is not in default, or to respond in damages, until demand and refusal; nor does the statute of limitations begin to run until demand has been duly-made. But if the bank has rendered an account claiming the deposit as its own, or if it has suspended payment and closed its doors against its creditors, or has done any act, that operates as a notice of its intention not to pay its deposit, a demand is dispensed with, and the statute begins to run from the date of such act: Watson v. Phœnix Bank, 49 Mass. 217; Farmers’ & Mechanics’ Bank v. Planters’ Bank, 10 G. & J. (Md.) 422; Morrison v. Mullin, 34 Pa. 12; Franklin Savings Bank v. Bridges, 20 W. N. C. 43; Swearingen v. Dairy Co., 198 Pa. 68.
    May 16, 1910:
    The claim was barred by sec. 19 of the act of assembly of April 19, 1794, 3 Sm. L. 143; Blackmore v. Gregg, 2 W. & S. 182; Man v. Warner, 4 Whart. 455; Campbell v. Fleming, 63 Pa. 242.
    The claimant was barred by laches: Hayes’ App., 113 Pa. 380; United States v. Beebee, 17 Fed. Repr. 36; Beecher’s Est., 46 Pitts. Leg. Journ. 84.
   Opinion by

Mr. Justice Brown,

James Gardner, Anthony S. Morrow and William Jack were partners, trading and doing business in Hollidaysburg as a private banking house, under the firm name of Gardner, Morrow & Company. On May 14, 1891, Michael Morricy deposited with them $3,050, and they delivered to him a certificate, of which the following is a copy:

“No. 7582. Banking House of Gardner, Morrow & Co.
“Hollidaysburg, Pa., May 14, 1891.
“Michael Morricy has deposited in this bank three thousand and fifty dollars, payable to his order, on return of this certificate, six months after date, with interest at 4 per cent per annum.
“$3050.00. Gardner, Morrow & Co.”

On April 5, 1894, James Gardner, then a member of the said banking firm, died, and letters testamentary were duly issued to executors named in his will. After his death Morrow and Jack, the surviving members of the firm, continued the banking business under the same firm name until September 18, 1896, when they executed a deed of assignment for the benefit of creditors. The assignee closed up the assigned estate, the creditors receiving a little less than twelve per cent on their claims. James Gardner, some time before his death, sold limestone in place, which was to be paid for as quarried, and his executors since his death have been in receipt of income from the sale of it. They have filed six partial accounts of his personal estate, including the income from the limestone, all of which have been duly audited by the orphans’ court below, and distribution has been made of the moneys in the hands of the executors to the decedent’s creditors, among whom were depositors in the banking firm of Gardner, Morrow & Company who made deposits prior to his death. The last distribution was of the funds in the hands of the surviving executor according to the sixth account. Michael Morricy failed to present his certificate of deposit for payment either at the banking house of Gardner, Morrow & Company during the lifetime of James Gardner or while it was conducted by his surviving partners after his death or at the distribution of the assigned estate of the surviving partners or at any of the distributions of the personal estate of James Gardner made on the first five accounts filed. He lived in the mountains some thirty miles from Hollidaysburg and could neither read nor write. He had no knowledge of the death of James Gardner, of the failure of the banking house, of the distribution of the assigned estate of the surviving partners or of the five distributions made on the estate of James Gardner until some time in 1907. On April 28, 1909, he presented his certificate for payment to the auditor making distribution on the sixth account. The auditor held that the claim was barred by the statute of limitations. While we cannot follow with approval some of the reasons given by the learned judge below for sustaining the report of the auditor, we do concur in his conclusion that the claim of appellant’s decedent was properly disallowed.

Although the certificate of deposit issued to Morricy by the banking firm of Gardner, Morrow & Company was payable on its face to his order upon its return six months after date, it was not due so as to give a right of action upon it until payment was demanded. The rule as to a certificate of deposit issued by a banking house and payable to the order of the depositor upon the return of the certificate is that it is not due or suable until return of it and demand has been made for the money, from which time the statute of limitations begins to run; and it is no defense against a claim on such a certificate that demand had not been made within six years from its maturity: Girard Bank v. Bank of Penn Twp., 39 Pa. 92; Finkbone’s App., 86 Pa. 368; McGough et al. v. Jamison, 107 Pa. 336; Riddle v. First National Bank of Butler, 27 Fed. Repr. 503; 1 Bolles Modern Law of Banking, p. 462. If the banking firm of Gardner, Morrow & Company had continued to be a going concern up to April 28, 1909 — nearly eighteen years after the certificate of deposit was issued to Morricy — and he had then presented it to the firm and demanded payment, the statute of limitations would have been no defense to it; but this is not the situation here presented. What we are to determine is whether, under the conditions existing when the certificate of deposit was presented fox-payment to the surviving personal representative of Gardner, the deceased partner, the right to recover upon it was barred by the statute of limitations. Changed conditions at times beget new duties to parties to an existing contract, and what might not have been a duty on the part of Morricy while the banking firm continued in existence might have become so when it ceased to exist. The claim as now made by Morricy’s personal representative is against the estate of one of the deceased partners who died fifteen years before the certificate was ever presented against his estate. His death ipso facto dissolved the partnership, and the law presumes that Morricy had notice of his death. Ignorance of it and ignorance of the dissolution of the partnership that followed upon it will not be regarded by the law as any excuse for the delay of the unfortunate depositor in presenting his claim. The law knows only that he delayed for .fifteen years from the time Gardner died in making demand for payment against his estate, and the question is whether he could thus sleep on his conceded right to make a demand during all that period and then be heard to say that the statute of limitations did not commence to run until 1909, because he had chosen not to make demand before that time. As stated, he is conclusively presumed to have known that Gardner died and that the partnership was dissolved. He is further presumed to have known that the law contemplates the settlement of a decedent’s estate and the payment of creditors within a year from the time of death. Such is the plain intendment of the statutes relating to the distribution of decedents’ estates. After two years the real estate of a decedent is absolutely discharged from unrecorded claims, but, if the contention of this appellant should prevail, a claim on a simple contract not heard of for fifteen years from the time of the death of the decedent is to be allowed to participate in the distribution of his estate under the general rule that the statute of limitations does not run against certificates of deposit issued by a bank except from the time demand is made. It is often said that there is no rule without its exception, and this is true in the case before us. To hold that the estate of a deceased member of a banking firm is to be indefinitely liable to a depositor to whom his firm may have issued a certificate, payable on demand, would be to permit the estates of the other partners, if deceased, to be distributed without any opportunity to compel contribution by the representative of the deceased partner against whose estate the claim might be made and allowed. The only true, reasonable and equitable rule to be applied in the present case is that laid down in Morrison’s Admr. v. Mullin, 34 Pa. 12: “But was the statute, therefore, never to close upon such an agreement —never to commence running, if the plaintiff chose to sleep on his rights? The statute fixes the period within which suit may be brought in case, to recover money, or to enforce a promise, to ‘six years next after the causes of action, or suit, and not after.’ ‘From the time the right of action accrues:’ Overton v. Tracey, 14 S. & R. 311. To give effect to the spirit of the statute, the law sometimes, in the absence of stipulation by the parties, fixes the time when the cause of action shall be taken to have accrued, by the duty of diligence required of the party. Where the time for doing an act, necessarily precedent to bringing suit, is indefinite, it allows a reasonable time. When that reasonable time has elapsed, the duty of diligence begins. And if this consists in the assertion of a legal right, then is the time from whence the statute should begin to run.”

It would not be an unreasonable rule to hold, where there is a right to demand payment from the estate of a decedent — such right as Morricy possessed when Gardner died — that the demand ought to be made within the time contemplated by the. statutes for the settlement of decedents’ estates; but, in any event, the time within which such demand ought to be made against a decedent’s estate should not exceed the period within which a right of action is enforcible. This conflicts with no settled rule. In the case at bar Morricy had a right to demand payment six months after the certificate was issued to him. As long as those who issued it continued to live he was not called upon to make any demand to prevent the running of the statute, but when the conditions changed, when the partnership was dissolved by the death of Gardner, and his estate became at once liable to pay the depositors, it offends reason to say that, notwithstanding the right of the depositor, Morricy, to make demand for the payment of his certificate from Gardner’s estate, he could sleep on that right for fifteen years and then for the first time make demand and have his claim allowed. The duty of diligence on the part of Morricy began with the death of Gardner, and the law indulged him in making demand for six years from the date that letters were granted upon the estate and there was someone upon whom he could make demand, but after that period, by analogy to the statute of limitations, it was too late to make the demand. For this reason the claim of the appellant was properly disallowed by the court below.

Decree affirmed at appellant’s costs.


text:
    Bierly, Appellant, v. Sener.

      Equity — Trusts and trustees — Findings of fact — Review.
    Findings of fact by the court below adverse to a complainant in a bill in equity for a declaration of trust will not be reversed by the appellate court whore such findings of fact although based upon disputed testimony are not manifestly erroneous.
    Argued April 19, 1910.
    Appeal, No. 366, Jan. T., 1909, by plaintiff, from decree of C. P. Clearfield Co., Dec. T., 1908, No. 3, dismissing bill in equity in case of John II. Bierly v. W. Z. Sener.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity to declare a trust in real estate. Before A. O. Smith, P. J.

      Errors assigned were in dismissing exceptions to adjudication, and in dismissing the bill.

      C. S. McCormick, for appellant.

      May 16, 1910:

      D. L. Krebs, of Krebs & IAveright, with him W. A. Hagerty, for appellee.
   Per Curiam,

This bill was for the declaration of a trust as to real estate, an accounting and a reconveyance. The plaintiff’s case rested entirely upon a writing alleged by him to have been signed by the defendant. All of the material allegations of the bill were denied in the answer and it was found by the court that the testimony produced by the plaintiff was wholly insufficient in character, clearness and credibility to overcome the effect of the answer and to establish a trust relation. If this finding stands it is conclusive against the plaintiff. It must stand unless clearly shown to be erroneous. It has been repeatedly said that a finding of fact by the court, from disputed testimony, will not be set aside unless error is manifest. The finding in this case was the result of a painstaking and intelligent effort to arrive at the truth and we find no reason to doubt its correctness.

The decree dismissing the bill is affirmed at the plaintiff’s cost.


author: Mr. Justice Moschzisker,

text:
    Benson v. Altoona & Logan Valley Electric Railway Company, Appellant.

      Negligence — P ersonal injuries — Evidence—M edical examination— Baring parts of the body.

    1. Where the plaintiff in an accident case has submitted to a private physical examination by three physicians representing the defendant, and they are prepared to give their testimony as to the marks upon the plaintiff’s body, the latter will not be required to bare parts of his body for the examination of the jury.

      Practice, C. P. — Trial—Remarks of counsel.

    2. Where counsel makes no request for the withdrawal of a juror because of an improper remark of his adversary, it will be assumed that he is satisfied with a warning given by the trial judge to the jury to disregard the objectionable remark.

      Negligence — Damages—Loss of earning power — Probability of life — Permanent injury — Evidence.
    3. On the trial of an accident case where the evidence tends to show a permanent loss of earning power by the plaintiff, and his health is discussed by numerous medical experts on each side, and it appears that before the accident he had been in good health, and that since the accident he had not been able to work, it is not error for the trial judge to tell the jury that they could “look at this man and determine on the weight of the evidence from his appearance and from the evidence how long ho would be likely to live, and if his injuries are permanent, then he ought to be compensated for the loss of earning power.”
    4. While life tables are admissible in evidence, the probability of life can be shown in other ways.

      Negligence — Damages—Charge—Use of figures.

    5. While the use of figures by way of illustration in charging the jury as to a method of ascertaining the present value of a loss of future earnings is dangerous practice, yet such use is not a ground for reversal, if the judge tells the jury that he is only using the figures by way of illustration, and that he did not want them to think that he was figuring on any verdict, or that they indicated what he thought about the case.
    6. On the trial of an accident case a trial judge cannot be convicted of error in saying that one is only bound to take such medical treatment as a man of ordinary prudence would be likely to undergo.
    7. In a case to recover damages for personal injuries sustained in a railroad accident where the evidence shows that about five months after the accident the plaintiff was stricken with apoplexy and consequent paralysis and plaintiff’s five medical experts testify that the accident was the cause of the paralysis and the defendant’s six experts deny it, the case is for the jury, and the trial judge is not called upon to give any particular instructions on the sujbject of the weight of the evidence as he would be where there is a great preponderance of evidence on one side.
    Argued April 21, 1910.
    Appeal, No. 400, Jan. T., 1910, by defendant, from judgment of C. P. Blair Co., June T., 1907, No. 59, on verdict for plaintiff in case of Forrest W. Benson v. Altoona & Logan Valley Electric Railway Company.
    Before Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. •
    The facts are stated in the opinion of the Supreme . Court.
    Verdict and judgment for plaintiff for $3,200. Defendant appealed.

      Errors assigned were (1-20) various rulings on evidence and instructions sufficiently set forth in the opinion of the Supreme Court.

      Thomas H. Greevy, with him E. G. Brotherlin, for appellant.
    Improper remarks of counsel are grounds for reversal: Holden v. R. R. Co., 169 Pa. 1; Fisher v. Pennsylvania Co., 34 Pa. Superior Ct. 500; Wagner v. Hazle Twp., 215 Pa. 219; Saxton v. Rys. Co., 219 Pa. 492.
    No mortality tables were offered in evidence in this case, nor was any evidence offered tending to show the probable longevity of plaintiff, his habits, liability to contract disease, his social conditions, etc. Such evidence is a prerequisite to the introduction of mortality tables; even then, they are not conclusive: Dooner v. Canal Co., 164 Pa. 17; Emery v. Philadelphia, 208 Pa. 492; Seifred v. R. R. Co., 206 Pa. 399.
    A charge suggesting capitalization of the plaintiff's earnings and that a sum be given which will support him from year to year is erroneous, although the suggestion is only by way of illustration: Gregory v. N. Y., etc., R. R. Co., 55 Hun (N. Y.), 303.
    It was the duty of the court under the facts in the case, to decide as a matter of law that the accident was not the proximate cause of the paralysis: Sallie v. New York City Ry. Co., 110 App. Div. 665; Douglass v. R. R. Co., 209 Pa. 128; West Mahanoy Twp. v. Watson, 116 Pa. 344; Hoag v. R. R. Co., 85 Pa. 293; Pennsylvania R. R. Co. v. Kerr, 62 Pa. 353; Thomas v. R. R. Co., 194 Pa. 511; Gudfelder v. Ry. Co., 207 Pa. 629.

      J. Banks Kurtz, for appellee.
    A judgment on a verdiet will not be reversed because of alleged improper and injurious remarks of counsel, where it appears that the verdict was not excessive, and that the court instructed the jury to disregard the objectionable remarks: Com. v. Sarves, 17 Pa. Superior Ct. 407.
    May 16, 1910:
    The sixth assignment of error is a complaint by the appellant that no mortality tables were produced by the plaintiff. The production of mortality tables is entirely unnecessary: Steinbrunner v. Ry. Co., 146 Pa. 504; Omaha St. Ry. Co. v. Emminger, 77 N. W. Repr. 675; Louisville & Nashville R. R. Co. v. Williams, 20 Ind. App. 576; O’Neill v. Kinken, 8 N. Y. Supp. 554; Texas & Pac. Ry. Co. v. Davidson, 3 Tex. Civ. App. 542 (21 S. W. Repr. 68); Scott Twp. v. Montgomery, 95 Pa. 444; Wilson v. R. R. Co., 132 Pa. 27; Haines v. Pearson, 75 S. W. Repr. 194; Norfolk & Western Ry. Co. v. Phillips, 41 S. E. Repr. 726; Gulf, etc., Ry. Co. v. Compton, 13 S. W. Repr. 667; Emery v. Philadelphia, 208 Pa. 492.
   Opinion by

Mr. Justice Moschzisker,

The plaintiff, a married man twenty-one years of age, was injured while a passenger on one of the cars of the defendant company. About five months after the accident he was stricken with apoplexy which paralyzed his entire right side. The liability of the defendant was admitted, and the real controversy at the trial was as to whether the paralytic condition of the plaintiff was the result of the injuries received at the time of the accident or was due to a disease with which the defense claimed he was afflicted.

The first three assignments go to the refusal of the trial judge to compel the plaintiff to bare parts of his body for the examination of the jury. The plaintiff had submitted to a private physical examination by three physicians representing the defendant, and they were prepared to give their testimony as to the marks upon his body. An exhibition of this kind to an unlearned jury is apt to do more harm than good, and the trial judge committed no error in refusing to order it in this case.

The fourth assignment has been withdrawn and need not be considered.

The fifth assignment covers certain alleged objectionable remarks made by counsel for the plaintiff in the presence of the jury. It is sufficient to say that no exception was taken to the final remark complained of, and the court warned the jury to disregard the others. Since counsel made no request for the withdrawal of a juror, it must be assumed that he was satisfied with this warning.

The sixth assignment complains that in the course of the charge the trial judge said: “There is no table of life probability adduced here in evidence, and I suppose counsel are afraid owing to the recent rulings of the Supreme Court to put in a life table, but it would be for you to look at this man and determine on the weight of the evidence from his appearance and from the evidence how long he would be likely to live, and if his injury is permanent, then he ought to be compensated for the loss of earning power and for any pain and suffering that the weight of the evidence shows he would endure in the future.” While life tables are admissible in evidence, the probability-of fife can be shown in other ways. In answering a request the court told the jury that they should take into consideration the plaintiff’s age, state of health, business habits, and manner of living. The suggestion that they might look at the plaintiff was expressly coupled with the instruction that their determination must rest upon the weight of the evidence in the case. The health of the plaintiff was discussed during the course of the trial by numerous medical experts On each side, and although the evidence on this subject was conflicting, there was considerable testimony to the effect that his injuries were permanent. There was also testimony that the plaintiff had enjoyed good health prior to the accident; that he had been a drag clerk at a salary of $45.00 per month, which occupation he was obliged to discontinue for about one month after the accident, and that since his stroke he had not been able to work. If the jury believed the testimony of the plaintiff and that of his experts, they would have been justified in drawing the conclusion not only that he had been permanently injured, but that his earning capacity was entirely gone. The trial judge made no suggestion as to the time that the plaintiff would be likely to live, but left it to the jury to determine that question on all the evidence in the case; he expressly told them that they were to take the wages which the plaintiff was earning at the time of the accident as the outside value of his services, and gave them elaborate instructions as to the proper method of reducing the worth of future services to a present value. We see no merit in this assignment.

The seventh assignment is to the effect that the court below committed error in using figures by way of illustration in charging the jury as to how they were to get at the present value of the plaintiff’s loss of future earnings. It is always better practice not to illustrate to a jury with figures, lest they may bo misled into taking the particular figures as their guide in fixing the amount of the damages. But here the court said to the jury: “I do not want you for a moment to think that these figures that I am illustrating are any indication of what I think about this case. ... I do not want in the least to indicate that I am figuring on any verdict. ... I am simply illustrating the thought in my mind.” After careful consideration we have concluded that in view of this warning it is not at all probable that any harm was done to the cause of the defendant.

In the eighth assignment the appellant suggests that the court below fell into error in affirming the plaintiff’s seventh request: “If the jury find for the plaintiff they may allow him for expenses which have been actually paid or such as are reasonably necessary to be incurred. Also damages for the pain and suffering plaintiff has undergone in the past and is likely to undergo in the future, and for permanent injury which the jury may deem plaintiff has suffered and will suffer in the future; and also the loss of earning power up to the present time and in the future consequent upon the injury sustained by the negligence of the company.” When we consider the plaintiff’s testimony and that of his medical witnesses together with the nature of his injuries, and look at this request in connection with the instruction given to the jury as to plaintiff’s earning capacity and the reduction of the worth of future earnings to their present value, it is clear that no error was committed in affirming the point as drawn: Scott Twp. v. Montgomery, 95 Pa. 444; Schenkel v. Traction Co., 194 Pa. 182.

In assignments nine to twelve and fifteen to nineteen, inclusive, the appellant complains of the refusal to affirm certain of its requests for charge. Owing to the conflict in the testimony on all the matters covered by these requests, the court could not have answered them as desired by the appellant without usurping the function of the jury.

The thirteenth and fourteenth assignments find fault with the answers given to the defendant’s sixth and seventh requests. These requests were properly refused since they put too great a burden upon the plaintiff. The trial judge rightly said that one is only bound to take such medical treatment as a man of ordinary prudence would be likely to undergo.

Lastly, it is contended that the whole charge is inadequate in several particulars. We do not so view it. No request was made for instructions on the subject of the weight of the evidence, and the case is not in that class where the preponderance of the evidence is so plainly on one side that such instructions would suggest themselves as essential to its just and adequate presentation. The plaintiff had five medical experts and the defendant six, and the testimony generally on the plaintiff’s side was to the effect that the injuries received in the collision were the cause of the subsequent paralysis, while the defendant’s witnesses attributed his condition to other causes. Under the circumstances the jury were sufficiently instructed upon their duty in passing upon the interest and credibility of the witnesses. The entire case was presented with care and impartiality, and it cannot justly be said that any of the issues were minimized. During the course of the charge the trial judge repeatedly called attention to the question of the cause of the paralysis, and in denying the plaintiff’s thirteenth request he went so far as to say pointedly that if the plaintiff had the disease attributed to him by the defense, this disease, and not the blow received in the collision, should be taken as the proximate cause of his present paralytic condition.

While it may be that we as jurymen would have reached a different conclusion, we cannot say after a careful reading of all the testimony that the evidence is insufficient to sustain the verdict rendered.

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


text:
    Alexander, Appellant, v. Shalala.

      Real estate — Husband and wife — Married women — Deed from wife to husband — Ejectment—Mesne profits.

    1. A married woman cannot make a valid conveyance of her real estate to her husband as grantee, although he may join in the deed with her as a grantor.
    2. Where defendants in an ejectment rely upon an invalid deed from a wife to a husband, they are not entitled to have a conditional verdict rendered to cover the amount of their improvements.
    3. When one desires to recover mesne profits in an action of ejectment he should give notice in his declaration or prior to the trial.
    Argued April 21, 1910.
    Appeal, No. 11, Jan. T., 1910, by plaintiffs, from judgment of O. P. Clearfield Co., Sept. T., 1907, No. 374, for defendants on case stated in suit of C. G. Alexander to use of L. E. Boyer and Jos. F. Sprankle v. Michael Shalala and' Abraham Shalala.
    May 16, 1910:
    Before Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Case stated in ejectment for land in DuBois borough. Before A. O. Smith, P. J.
    At the trial it appeared by sundry conveyances that Lizzie Alexander who at one time was the owner of the land in dispute executed a deed to her husband, Emory Alexander, for the land, and that her husband joined in the deed as a grantor. The defendants claimed the land under conveyances from Emory Alexander.
    The court entered judgment for the defendants on the case stated.

      Error assigned was in entering judgment for defendants on case stated.

      A. L. Cole, with him L. E. Boyer, for appellants.
    The rule of construction in those states wherein the statutes require the joinder of the husband in the wife’s deed, to convey her separate property, seems to be, without exception, that a deed from the wife to the husband direct, as grantee, even when joined in by him in the precise statutory mode, is void and passes no title: Rico v. Brandenstein, 98 Cal. 465 (33 Pac. Repr. 480); Johnson v. Jouchert, 124 Ind. 105; 8 L. R. A. 795; Cook v. Walling, 117 Ind. 9; 2 L. R. A. 769; Bunch v. Bunch, 26 Ind. 400; Gebb v. Rose, 40 Md. 387; Preston v. Fryer, 38 Md. 221; Riley v. Wilson, 86 Tex. 240 (24 S. W. Repr. 394); Graham v. Stuve, 76 Tex. 533 (13 S. W. Repr. 381); Switzer v. Switzer, 26 Gratt. 574; Ogden v. McArthur, 13 U. C. Q. B. 246.

      W. C. Pentz, with him W. L. Calkins, for appellees.
   Opinion by

Mr. Justice Moschzisker,

■The controlling question in this case is, Can a married woman when her husband joins in the deed as a grantor make a valid conveyance of her real estate directly to such husband as grantee?

While the married women’s property acts of the different states are not precisely alike in phraseology, they are all directed to the same end; and when they contain a requirement, such as in the Act of June 8, 1893, P. L. 344, that the husband shall join in the deed of the wife, the thought seems to be general (where the point has been raised) that a direct conveyance from the wife to the husband is void even though joined in by him: Johnson v. Jouchert, 124 Ind. 105; Riley v. Wilson, 86 Tex. 240; Trawick v. Davis, 85 Ala. 342; Rico v. Brandenstein, 98 Cal. 465; Brooks v. Kearns, 86 Ill. 547; Kinnaman v. Pyle, 44 Ind. 275; 21 Cyc. 1292; and it has been so held in New York under a statute which did not contain the requirement: White v. Wager, 25 N. Y. 328. It is true that in a number of jurisdictions the opposite rule has been adopted: Savage v. Savage, 80 Me. 472; Wells v. Cay wood, 3 Colo. 487; Robertson v. Robertson, 25 Iowa, 350; Burdeno v. Amperse, 14 Mich. 90; but the statutes in those states do not require the husband to join in the deed.

The common law considered the husband and wife so nearly one that the husband could neither directly convey to his wife nor be a direct grantee from her: 21 Cyc. 1284, 1291. To render such a conveyance from the wife to the husband valid the statute must confer the power upon her, and thereby remove his common law disability: 21 Cyc. 1292, sec. 3; 1 Bishop on Married Women, secs. 710-711; Rico v. Brandenstein, 98 Cal. 465; and the fact that a valid conveyance can be made indirectly through the medium of a third person will not alter the rule: 21 Cyc. 1292, sec. 4; 1 Bishop on M. W., secs. 712-713; White v. Wager, 25 N. Y. 328, and Riley v. Wilson, 86 Tex. 240. However interesting, it will serve no useful purpose to theorize upon this subject; the question is one of public policy for the lawmaking power of the state, and up to this time our legislature has not seen fit to go as far as the appellees contend. In Wicker v. Durr, 225 Pa. 305, a married woman made and delivered a deed to her husband, signed by herself alone, and we held it void, saying: “The acts of 1848 and 1893, materially enlarge a married woman’s control of her separate estate, but they leave undisturbed the mode of its exercise in a conveyance of her real estate.” We are of opinion that there is no statute in Pennsylvania which authorizes or permits a direct conveyance of the wife’s real estate to her husband, and the deed in question should have been held unauthorized and void.

The question of title is the only one to be decided on this record. The deed being null and the principles of estoppel inapplicable, the defendants are not entitled to have a conditional verdict rendered to cover the amount of then improvements: McKee v. Lamberton, 2 W. & S. 107; Glidden v. Strupler, 52 Pa. 400; Kirk v. Clark, 59 Pa. 479; McClure v. Douthitt, 6 Pa. 414. The present case is distinguishable from McCoy v. Niblick, 221 Pa. 123, where such a conditional verdict was allowed; there the contract of the wife was valid although nonenforcible. No proper claim for mesne profits was made by the plaintiffs; when one desires to recover mesne profits in an action of ejectment he should give notice in his declaration or prior to the trial: Cook v. Nicholas, 2 W. & S. 27; Bayard v. Inglis, 5 W. & S. 465; Carman v. Beam, 88 Pa. 319; Act of May 2, 1876, P. L. 95.

The assignments of error are all sustained; the judgment is reversed and is here entered in favor of the appellants.


author: Mr. Justice Mestrezat,

text:
    Commonwealth ex rel. v. Sheatz.

      Public officers — State treasurer — Death of treasurer elect — Holding over —Vacancy—Constitutional law — Act of May 9, 1874, P- L-

    1. The state treasurer is a constitutional officer whose term is limited by the constitution to two years, and such term cannot be extended by an act of assembly.
    2. The Act of May 9, 1874, P. L. 126, which provides that “the term of office of the state treasurer shall hereafter commence on the first Monday of May next succeeding his election, and shall continue for two years, or until his successor shall be duly qualified,” is an unconstitutional exercise of the legislative power in so far as it attempts to extend the term of the office beyond the period of two years.
    3. The death of the treasurer elect before he qualifies creates a vacancy in the office at the end of the incumbent’s term on the first Monday of May, and the incumbent is therefore not entitled to hold over until a successor be elected and qualified to fill the office. In such a case the governor has the right to appoint and commission another person to fill the vacancy at the end of the incumbent’s term.
    Argued May 2, 1910.
    May 16, 1910:
    Miscellaneous Docket No. 2, No. 350, in case of Commonwealth of Pennsylvania ex rel. M. Hampton Todd, Attorney General, v. John I. Sheatz.
    Before Pell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Original jurisdiction.
    Quo warranto to the defendant requiring him to show by what authority he holds possession of the office of state treasurer.

      M. Hampton Todd, attorney general, for the commonwealth.

      William U. Hensel, for respondent.
   Opinion by

Mr. Justice Mestrezat,

This is a suggestion for a writ of quo warranto filed in this court by the attorney general against John O. Sheatz to determine his right to the office of state treasurer. The case was heard on the information and answer and demurrer thereto.

The suggestion sets forth that John O. Sheatz was elected state treasurer at the general election held November 5, 1907, for the term of two years, commencing on the first Monday of May, 1908, and entered upon the performance of the duties of his office on that date; that Jeremiah A. Stober was elected state treasurer at the general election held on November 2, 1909, for the term beginning the first Monday of May, 1910, and died on January 10, 1910; that notwithstanding the expiration of Sheatz’s term as state treasurer he retains possession of the office contrary to law and to the prejudice of the commonwealth, and refuses to surrender the same and admit thereto Charles Frederick Wright who was duly appointed and commissioned as state treasurer on April 11, 1910, by the governor of the commonwealth for the term to begin on the first Monday of May, 1910; that said Wright duly filed his bond and took the oath of office as state treasurer as required by law, and demanded of Sheatz” possession of the office which was refused.

The answer admits the election and service of Sheatz as state treasurer and the election and death of Stober as averred in the suggestion. It also admits the appointment of Wright as state treasurer by the governor, the filing of a bond by him and his taking the oath of office and the refusal by Sheatz to surrender possession of the office to Wright as averred in the suggestion. The answer concludes as follows: “I claim the right to retain possession of said office by virtue of the constitution and laws of the Commonwealth of Pennsylvania.”

The attorney general demurred to the answer and assigned as causes therefor that it showed no sufficient cause authorizing the respondent to retain the office of state treasurer; and that the term of office of state treasurer is limited by the constitution to two years and cannot be extended by an act of assembly. We heard the case on May 2, 1910, the day on which the term immediately succeeding that for which Sheatz was elected began, and after due consideration sustained the demurrer and entered judgment of ouster against the respondent.

The contention of the commonwealth is that the constitution having fixed the term of office of state treasurer at two years, Sheatz’s term expired at the end of that period, and that the Act of May 9, 1874, P. L. 126, is, in so far as it attempts to extend the term, an extension of a constitutional term which it is beyond the power of the legislature to make. The respondent contends that the act of 1874, providing that a state treasurer shall continue in office for two years “or until his successor shall be duly qualified,” governs the case; that the act does not extend the constitutional term but provides for the holding over of the elected incumbent until his successor is duly qualified; and that as Stober, elected in November, 1909, never qualified, there was no such vacancy in the office that the governor could fill by appointment.

When the respondent was elected state treasurer and during his term of office, the present constitution of 1874 was in force. His term was not abridged or extended by the amendments to the constitution adopted in 1909. Article IV, sec. 21, of the constitution provides: “The term of the secretary of internal affairs shall be for four years; of the auditor-general, three years; and of the state treasurer, two years. These officers shall be chosen by the qualified electors of the state, at general elections. No person elected to the office of auditor-general or state treasurer shall be capable of holding the same office for two consecutive terms.” By art. IV, sec. 8, of the constitution and the amendment of 1909, the governor is empowered to fill any vacancy that may happen in the office of state treasurer, with the advice and consent of the senate if it be in session. By the act of assembly, approved April 28, 1873, P. L. 77, it was provided that the term of office of the state treasurer shall be two years “from the first Monday of May next succeeding his election;” and by the act of May 9, 1874, P. L. 126, it was provided that “the term of office of the state treasurer shall hereafter commence on the first Monday of May next succeeding his election.” It will, therefore, be observed that at the time the respondent was elected and entered upon the duties of the office of state treasurer it was a constitutional office, the term was fixed by the constitution at two years, and began, as provided by law, on the first Monday of May, 1908. Did the term of office of the respondent expire in two years from the first Monday of May, 1908, and thereby create a vacancy in the office on the first Monday of May, 1910? We are of the opinion that this question must be answered in the affirmative.

The constitution is the supreme law of the commonwealth, and its command must be obeyed. It is only when the constitution fails to deal with a subject that the general assembly may legislate upon it. These are fundamental and basic principles from which there can be no departure. As well said by Chief Justice Black in Sharpless v. Philadelphia, 21 Pa. 147, 161, “the constitution has given us a list of the things which the legislature may not do. ... If we can change the constitution in any particular there is nothing but our own will to prevent us from demolishing it entirely.” This admonition was given by the great jurist more than half a century ago, but the necessity for heeding and enforcing it both in state and federal jurisdictions has never been’ greater since the establishment of the government than at the present time.

Under the well-settled rules of interpretation, the constitution of the commonwealth having fixed the term of office of state treasurer at two years, the respondent’s term expired at the end of that period, and thereafter he could not exercise the functions of the office. The term of office fixed by the constitution is expressly limited to a definite number of years, and it is not within the power of the legislature, directly or indirectly, to extend it beyond the prescribed period. There is no implied right tó hold beyond the fixed tenure or of the legislature to extend the term; on the contrary, under the established rule of constitutional construction, there is an implied prohibition against the right of the legislature to add to the term where the constitution has definitely prescribed the duration of the tenure. This inhibition prevents the incumbent holding over which is simply the prolongation of the old term. The legislature is without power to abridge or extend the term or to change or add to the qualifications of a constitutional office unless it is expressly or by necessary implication conferred by the constitution. This is a settled principle of construction necessarily resulting from the supremacy of the organic law. It is recognized in the adjudicated cases.

In State v. Howe, 25 Ohio, 588, Chief Justice Mc-Ilvaine after reviewing all the authorities on the subject said (p. 589): “After a careful examination of the question, in the light of both principle and authority, we are led to the conclusion that the general assembly may provide against the occurrence of vacancies by authorizing incumbents to hold over their terms in cases where the duration of their tenures is not fixed and limited by the constitution. ... In cases where the duration of the tenure of office is limited by the constitution, of course its duration cannot be extended by statute.” The authority of this case was recognized and followed in State v. Brewster, 44 Ohio, 589, which was a quo warranto to oust the defendant from the office of county auditor after the end of his constitutional term of three years. The court said (p. 594): “The term of office of Brewster having been fixed and limited by the constitution, there is no power in the general assembly to extend his term or tenure of office beyond the time so limited.” In Wilson v. Clark, 63 Kan. 505, in discussing the subject the court said (p. 510): “It is true, as was held in State v. Thoman, 10 Kan. 191, and Peters v. Board of State Canvassers, 17 Kan. 365, that when the constitution fixes the duration of a term it is not in the power of the legislature either to extend or abridge it.” The constitution of Indiana provides that the treasurer shall continue in office two years and no person shall be eligible to the office more than four years in any period of six years. In Howard v. State, 10 Ind. 99, in speaking of the term of treasurer the supreme court' of that state said: “Thus, the term of office of treasurer is fixed. And though it may be conceded that the legislature may have the power to fix the time at which such term shall commence, still, in order to effect that object, they are not authorized either to shorten or lengthen it. The answer to this (power of the legislature to fill a vacancy created by designating the time at which the term of office shall commence) is, that the term being expressly limited by the constitution, the legislature have no power to enact a law which, in its effect, would create a vacancy.” The same principle is announced in Gertum v. Kings Co., 109 N. Y. 170; Andrews v. State, 69 Miss. 740; People v. Burbank, 12 Cal. 378; Gemmer v. State, 163 Ind. 150; People v. Knopf, 198 Ill. 340; State v. Police Commrs., 88 Mo. 144; Standeford v. Wingate, 2 Duv. (Ky.) 440; State v. Douglas, 26 Wis. 428; State v. Maloney, 92 Tenn. 62; People v. Van Gaskin, 5 Mont. 352; State v. Stewart, 52 Neb. 243. It results that an act of assembly is without force or effect to change the constitutional term of an office; and in consonance with that principle and the familiar rule in constitutional law that a statute may be good in part and void in part, it has been held that in case the legislature provides for a longer term than is permitted by the constitution, the act is good as to the term permitted by the constitution, and is void as to the excess: People v. Perry, 79 Cal. 105; Sinking Fund Commrs. v. George (Ky.), 84 Am. St. Repr. 454.

The learned counsel for the respondent contends that the Act of May 9, 1874, P. L. 126, passed since the adoption of the present constitution, rules the case, and that the respondent holds over until a successor is elected and qualified to fill the office. Section 2 of the act provides: “The term of office of the state treasurer shall hereafter commence on the first Monday of May next succeeding his election, and shall continue for two years, or until his successor shall be duly qualified.” The third section provides for filling a vacancy in the office by appointment, and that the person so appointed shall perform the duties of the office until the first Monday in May, first succeeding the next general election, or until his successor shall be duly qualified.” In support of the contention it is argued that under the act of 1874, the respondent had the right to hold over until his successor was duly qualified, and Stober having died before he qualified there was no vacancy in the office after the expiration of the constitutional term for which the respondent was elected. The conclusive answer which entirely refutes this contention is that the constitution fixes definitely the respondent’s term of office, and not having provided that the incumbent should hold over until his successor is qualified, it is not within the power of the legislature to so provide and thereby extend the term of the office and prevent a vacancy. This is settled on reason and, as noted above, also by authority. Holding over till a successor is qualified is, as conceded, not a new or another term, but a prolongation of the elected incumbent’s term, and, hence, the argument of the respondent’s counsel must necessarily rest upon the fallacious theory that an act of the legislature is paramount to a command of the constitution. It is idle to say that the provision of the act of 1874, permitting the incumbent to hold over until his successor is duly qualified, does not conflict with the constitutional provision that the term of the state treasurer shall be two years. There is neither express nor implied authority in the constitution for extending the term of state treasurer by permitting him to hold the office beyond the limit fixed by that instrument.

The respondent relies on Com. v. Hanley, 9 Pa. 513; Com. v. Wise, 216 Pa. 152, and cognate 'cases to sustain his position that the death of the treasurer elect before he qualified did not create a vacancy in the office on the first Monday of May, 1910, and that, therefore, he, the respondent, holds over and is entitled to perform the duties of the office. This discloses a misapprehension of the doctrine of these cases, as well as a failure to recognize the distinction between the constitutional provisions relating to the terms of office of state and county officers. Since the adoption of our first constitution this distinction has been consistently maintained in our organic law. The constitutions of 1790, 1838 and 1874, each provided that elective county officers should hold their offices for a specified time “and until a successor be duly qualified.” On the other hand, the terms of state officers were definitely fixed with no provision for holding over until their successors were qualified. While, therefore, for more than a century by express constitutional provision the tenure of state officers has been fixed at a definite period, the tenure of a county officer has been for the designated term “or until his successor was duly qualified.” For reasons appealing to the framers of the several constitutions and the people who adopted them, this distinction between the two classes of officers has been uniformly recognized in the organic law, and it has become the settled policy of the state to limit the term of service of a state officer strictly to the tenure prescribed by the constitution. Accordingly, in Com. v. Hanley, 9 Pa. 513, it was held that where a person had been elected to a county office and died before he qualified, there was no vacancy and the incumbent held over. In that case, the person who had been elected to the office of clerk of the orphans’ court, a county office, died before he was commissioned or qualified to fill the office. The relator was appointed by the governor to fill the supposed vacancy. The answer averred that the respondent, the incumbent, had been elected and commissioned to hold the office for three years, “and until his successor should be duly qualified,” and that as the party elected had failed to qualify, the respondent was entitled to hold over and there was no vacancy. The respondent’s contention was sustained by this court. We held that until the person elected had qualified, the constitution authorized the incumbent to hold over and, hence, there was no vacancy which the governor could fill by appointment. In the opinion it is said (p. 516): “The relator assumes that the respondent was elected and commissioned only for three years; but this is a mistaken view of the constitution, and is only plausible by obliterating several important words from the constitution. The constitution reads thus: 'They shall hold their offices for three years, if they shall so long behave themselves well, and until their successor shall be duly qualified.’ The obvious meaning of this clause is, that they cannot hold office less than three years, if they so long behave themselves well; although, on the happening of certain contingencies, they may hold office for a longer period. . . . That the respondent is entitled to hold until his successor is duly qualified are the words of the constitution.” Com. v. Wise, 216 Pa. 152, was a quo warranto to determine the title to the office of county commissioner and, hence, the right of a state treasurer or other state officer to hold the office beyond the term prescribed by the constitution did not arise and was not considered. The right of a county officer to hold over “until his successor shall be duly qualified” was discussed and affirmed. In all our cases where the right to hold a county office was involved, we have recognized the constitutional right of the elected incumbent to hold over until his successor was duly qualified. A county officer is not elected or commissioned for only three years, but for such additional period as may intervene between the end of the three years and the time when his successor is duly qualified. The additional period is, by an express provision.of the constitution, as much a part of his official term, as the definite number of years fixed in his commission. When he holds over, therefore, his term is extended in exact compliance with the constitution, and the period during which he holds over is a part of his constitutional tenure. It necessarily follows that no vacancy can occur in a county office so long as the elected incumbent continues to perform the duties of the office. This rule prevails when the officer elected or appointed has for any cause whatever failed to qualify, and is recognized not only in our own but in other jurisdictions of this country.. It is the settled interpretation of such constitutional provisions. Of course, in the ab- . sence of a fixed and definite term or other constitutional restriction, it is competent for the legislature to authorize a public officer to hold over until his successor is qualified. In such cases, like those .where the right to hold over is expressly authorized by the constitution, the additional period during which the incumbent performs the duties of the office is a part of his official term, and there is no vacancy to be filled by the appointing power.

From what has been said it follows that the legislature cannot abridge or extend the constitutional term of the state treasurer, and that the act of 1874 is void in so far as it proyides that he shall continue in office beyond the term of two years fixed by the constitution.

We are of the opinion that under the constitution and laws of the commonwealth, the respondent's term of office as state treasurer had expired on the first Monday of May, 1910, thereby creating a vacancy in said office which the governor of the commonwealth was empowered to fill.


text:
    Leech’s Estate.

      Will — Construction—Intestacy—Issue—Trusts and trustees — Vested and contingent estates — Income.
    Testator by his will, after authorizing his executors and trustees to advance certain sums of money to his sons and daughters and directing that such sums should be deducted from their respective shares of his estate which he was about to set apart for their benefit so that no inequality should occur or injustice be done, gave the residue of his estate to his executors in trust to pay to his wife one-third of the net income for life, and provided further, “The remainder of the net income and profits thereof is to be paid in like manner to my three children, share and share alike, during their respective lives and to the issue of such of them as may die leaving issue (during the respective minorities of such issue), the said issue taking their deceased parent’s share. The property is to be held in trust. . . . After these trusts have been fully executed then the said property shall descend and go as my estate according to the then existing laws of Pennsylvania.” Power was given to the sons of the testator to appoint by will a share of his income to his widow. One of the sons died leaving a will by which ho appointed a certain sum per annum out of the income of his father’s estate to his widow. The balance of such income was paid to his only child, a daughter, during her lifetime. This daughter subsequently died without issue, but leaving to survive her a husband. Held, that the balance of the income was payable to the husband.
    Argued Jan. 18, 1910.
    Appeals, Nos. 216 and 217, Jan. T., 1909, by David C. Leech and James S. Swartz, Executors of the will of Henry S. Leech, deceased, and of David C. Leech and S. Josephine Loftus, from decree of O. C. Phila. Co., Jan. T., 1879, No. 448, sustaining exceptions to adjudication in Estate of William F. Leech, deceased.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that the testator after authorizing his executors and trustees to advance certain sums to his sons and daughters directed by his will as follows:

      “In any event, the sum or sums which may be so advanced for either of my sons, or expended for my daughter, shall be deducted by my executors in such a way from their respective shares of my estate which I am about to set apart for their benefit so that no inequality shall occur and no injustice done to any of my children for I have the same affection for each of them and desire only to do the best that can be done for their welfare.
    “I give, devise and bequeath all the rest and residue of my estate, whatsoever and wheresoever unto my executors and the survivor of them, in trust to receive the income and profits thereof, to pay the taxes thereon, to keep the real estate in repair, and to pay over one third of the net income thereof, in at least quarterly payments to my wife, for and during the term of her natural life, subject however to the limitation or condition mentioned in the third clause of this Will, and I declare the bequests contained herein, to be in lieu or bar of dower or. thirds at law in my estate. The remainder of the net income and profits thereof, is to be paid in like manner to my three children, share and share alike, during their respective lives, and to the issue of such of them as may die leaving issue (during the respective minorities of such issue) the said issue taking their deceased parents share. This property is thus to be held in trust, and these payments are to be made to and for the sole and separate use of my wife and of my children in the manner aforesaid, free from all liability for their debts, contracts or engagements, by attachment or execution or assignment or anticipation, or in any other manner whatever. After these trusts have been fully executed, then the said property shall descend and go as my estate according to the then existing laws of Pennsylvania. Provided however that if either of my sons should die leaving a widow, I direct the said Trustees to pay to such widow during life, if she shall so long remain my son's widow, such part of the income of my estate which would have been coming to such son, as he may by any last Will and Testament in writing direct and appoint.”
    Henry S. Leech, one of the testator’s sons, died leaving a will by which he appointed the sum of $5,000 a year to his widow. The balance of his share of the income was paid to his only child, Marie, during her lifetime. Marie subsequently died without issue, but leaving her husband Jameson Cotting, surviving, he being her sole legatee and administrator of her estate. Lamorelle, J., being of the opinion that the testator died intestate as to the balance of the income awarded it to his next of kin.
    Exceptions were filed to the adjudication.
    The exceptions were heard before Dallett, Lamorelle and Anderson, JJ., — the opinion of the court being handed down by Anderson, J., sustaining the exceptions filed on behalf of Jameson Cotting, awarding to him all the accumulated income and all income hereafter accruing (excepting the sum of $5,000 per year appointed to the widow of the said Henry S. Leech) and dismissing all other exceptions. The opinion of the court was concurred in by an opinion filed by Lamorelle, J., who receded from his former view that the income in question passed by intestacy. Dallett, J., filed a dissenting opinion holding the appellants, David C. Leech and S. Josephine Loftus, to be entitled to all of the said income as surviving children of the original testator William F. Leech.

      Errors assigned were in sustaining exceptions to the adjudication.

      William W. Porter, for appellants, David C. Leech and James S. Swartz, executors of the will of Henry S. Leech, deceased.

      John G. Johnson, for appellants, David C. Leech and S. Josephine Loftus.

      John C. Bell, with him William N. Trinkle and Joseph D. Redding, for appellee, Jameson Cotting.

      May 24, 1910:
   Per Curiam,

We are of one mind that the court below correctly concluded that, upon the death of Henry S. Leech, his share in the income from the trust created by the testator, less the $5,000 appointed to his widow, passed to his only issue, Mary Leech Cotting, and the same having become part of her estate, it was properly awarded to her administrator. Both appeals are dismissed and the decree is affirmed at appellants’ costs.