text:
    Commonwealth, Appellant, v. Dougherty.

      Food, law — Adulteration—Evaporated peaches — External application of sulphur dioxide — Act of June 1, 1907, P. L. 386 — Constitutional law.

    1. The first proviso of subsection 5 of sec. 5 of the Act of June 1,1907, P. L. 386, violates sec. 6, art. Ill, of the Pennsylvania constitution relating to the amendment and extension of laws inasmuch as it attempts to introduce into the statute and make operative as a part of it an act of congress by a mere reference to its title, and also the rules and regulations that might be, from time to time, promulgated by the proper department of the federal government for the enforcement thereof. The unconstitutionality of the first proviso necessarily results in the unconstitutionality of the whole of the fifth subsection of sec. 5 of the act, because if the enacting portion of the clause were allowed to stand, persons would be drawn within the penalties provided by the statute who, the legislature declare by the terms of the proviso, should not be subject to such penalties.
    2. The unconstitutionality of subsection 5 of sec. 5 of the act of 1907, does not affect the validity and constitutionality of the other subsections of sec. 5, or of any other part of the act.
    3. A part of a statute may be unconstitutional and the remainder constitutional, and that which is constitutional will stand unless its provisions are so connected and dependent on each other in subject-matter that it must be presumed the legislature would not have enacted one without the other.
    4. Even if the enacting clause of subsection 5 of the act of 1907 were to stand, a person could not be convicted of violating, if it appears that he had complied with the provisions of sec. 8 of the act by producing a guaranty against adulteration signed by the person residing in the United States from whom the article was purchased.
    Argued Oct. 30, 1908.
    Appeal, No. 203, Oct. T., 1908, by plaintiff, from judgment of C. P. Clearfield Co., Dec. T., 1907, No. 210, for defendants on case stated in suit of Commonwealth v. Edward Dougherty and George Dougherty, trading as Dougherty Brothers.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated in the nature of a special verdict on an appeal from a judgment of a justice of the peace. Before A. O. Smith, P. J.
    The facts are stated in the opinion of the Superior Court,

      Error assigned was judgment of the court of common pleas reversing the judgment of a justice of the peace.

      A. H. Woodward, with him Cyrus Gordon, for appellant.—
    All statutes must be self-explanatory and complete in their provisions: Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627; Pittsburg’s Petition, 138 Pa. 401; Donohugh v. Roberts, 11 W. N. C. 186; In re Grant Street, 121 Pa. 596.
    It is well settled that a portion of an act of assembly may be void without destroying the entire act: Dorsey’s App., 72 Pa. 192; Allegheny County Home’s App., 77 Pa. 77; Dewhurst v. City of Allegheny, 95 Pa. 437; Rogers v. Improvement Co., 109 Pa. 109; Com. v. Shaleen, 30 Pa. Superior Ct. 1.
    If the guaranty provision of the eighth section so far as it refers to the national act is not mere surplusage and void then we contend that the word “or” in said section should be read “and” and that the guaranty to avail must be a guaranty under both national and state act.
    In asking that the word “or” be construed “and,” we are not without precedent: Rolland v. Com., 82 Pa. 306; Murray v. Keyes, 35 Pa. 384; Foster v. Com., 8 W. & S. 77; Diehl v. Perie, 2 Miles, 47.

      Singleton Bell, of Bell & .Hartswick, with him A. L. Cole, George H. Calvert and Samuel M. Clement, Jr., for appellees.—
    In all cases the function of a proviso is to limit and qualify the application of the affirmative enactment. It has been repeatedly held that the provision of the constitution in question refers to express amendments, etc., and not to original enactments. Admittedly this is an original enactment and refers to no other act: Com. v. Wickert, 19 Pa. C. C. Rep. 251; Com. v. Shelly, 2 Kulp, 300; Com. v. Arow, 32 Pa. Superior Ct. 1; State v. Connor, 55 S. E. Repr. 787; Coffee Compound, 17 Pa. C. C. Rep. 369; U. S. v. Cook, 84 U. S. 168; Greenfield Ave., 191 Pa. 290.
    The proviso in this case must be strictly construed, and limits or restricts the application of the affirmative enacting portion of the paragraph.

      May 10, 1909:
    If the proviso is invalid par. 5 of sec. 5 in its entirety must fall: Com. v. Shaleen, 30 Pa. Superior Ct. 1; Rothermel v. Meyerle, 136 Pa. 250; Cella Commission Co. v. Bohlinger, 147 Fed. Repr. 419; Holl v. Deshler, 71 Pa. 299; Com. v. Potts, 79 Pa. 164; Warren v. Charlestown, 68 Mass. 84.
    The word “or,” as used in penal statutes, can never be con•strued to mean “and”: Buck v. Danzenbacker, 37 N. J. L. 359; State v. Kearney, 8 N. C. 53.
   Opinion by

Head, J.,

This action was begun by the commonwealth to recover from the defendants the fine imposed by sec. 9 of the Act of June 1, 1907, P. L. 386, upon any person who shall have violated any of the provisions of said act. The magistrate before whom the suit was brought- entered judgment against the defendants for the statutory fine and costs. An appeal from the said judgment was allowed by the court of common pleas of Clearfield county, which court afterwards, in an opinion filed, reversed the judgment of the magistrate and entered judgment in favor of the defendants with costs. In the court below all of the material facts were agreed on by the parties, making practically a case stated for the opinion of the court on the questions of law arising upon the admitted facts.

The material facts thus agreed -upon may be summarized as follows: The defendants were retail grocers doing business in the county of Clearfield, and offered for sale, and had in their possession with intent to sell, “evaporated peaches,” which are articles of food. They sold to the agent of the commission of the dairy and food division of the department of agriculture of the commonwealth a portion of said “evaporated peaches,” which were subsequently submitted to a chemical analysis which showed that the same had been preserved by the use of sulphur dioxide; that the peaches thus sold-were taken from the box in which they had been purchased by the defendants, which box had a label thereon containing the following directions and instructions: “For the purpose of shipment the peaches contained herein are preserved by the external application of sulphur fumes which are. removed by maceration or soaking in water;” and the said peaches were in fact so preserved, and the preservative could have been removed by soaking in water. No such label, however, appeared upon the paper or sack in which the peaches were wrapped when sold by the defendants and delivered to the purchaser. The chemical analysis already referred to was made without first submitting the peaches to any process of maceration or soaking in water, as directed in the label on the box. The sulphur dioxide shown by the analysis is not native in peaches, but is added as a preservative, and is injurious to health. The rules and regulations promulgated for the enforcement of the act of congress approved June 30, 1906, known as “The Food and Drugs Act,” permit the use of sulphur dioxide as a preservative for peaches, and the amount thereof found in the peaches sold by the defendants was less than the amount allowed by such rules and regulations. The defendants purchased said peaches from a dealer residing in the United States, but outside the state of Pennsylvania, and received from him a guarantee in writing that said peaches were not adulterated or misbranded within the meaning of the said food and drug act, and the said guarantee was signed by the said dealer and contained his name and address.

Under the foregoing facts the commonwealth contended that the defendants had been guilty of a violation of the fifth clause or subsection of sec. 5 of the act of 1907 aforesaid, and as a consequence that the judgment of the magistrate ought to be affirmed. The defendants defended on three grounds: (a) that they were protected from prosecution by the terms of the first proviso of the said fifth clause or subsection of sec. 5 of the act referred to; (b) that under the second proviso to the same clause they could not be convicted unless it should appear that the foreign preservative remained in the article of food after it had been subjected to the process of maceration or soaking and when ready for consumption; and (c) that under sec. 8 of the said act, the liability to prosecution, if any existed in such case, was confined to the dealer who had sold to them the peaches, and that said liability must be enforced only in the manner provided in said sec. 8.

The learned court below held that the first proviso above referred to was unconstitutional because “it is a clear violation of sec. 6 of art. Ill, which provides that ‘no law shall be revised, amended, extended or conferred by reference to its title only, but so much thereof as is revised, extended or conferred shall be re-enacted and published at length. . . .’ In our judgment, with the first proviso clause decided unconstitutional, par. 5 of sec. 5 only is destroyed, and the balance of the act is operative.” Resting his conclusion on this ground, the learned court below found it unnecessary to consider the remaining defenses offered, and, as already stated, entered judgment for the defendants. The commonwealth then took this appeal.

The first section of the act of 1907 declares, “That it shall be unlawful for any person within this state to manufacture, sell, offer for sale, or have in possession with intent to sell, any article of food which is adulterated or misbranded within the meaning of this act.” Sec. 5 undertakes to declare, in six separate subsections or clauses, when an article of food shall be deemed to be adulterated within the meaning of the act, and it is in the fifth of these subsections or clauses that the provisos already referred to are contained. It may be here proper to remark that this act of 1907 was evidently intended to take the place of and be substituted for the earlier Act of June 26, 1895, P. L. 317, because, in its last section, it expressly repeals the said last named act. The subsections or clauses of the fifth section of the act of 1907, however, are almost literally the same as those of the third section of the act of 1895 dealing with the same subject-matter, to wit: defining when articles of food shall be deemed to be adulterated. The enacting portion of the fifth subsection or clause of sec. 5 of the act of 1907 is in the precise language of the seventh subsection or clause of sec. 3 of the act of 1895, and is in the following language: “Fifth. If it contains any added substance or ingredient which is poisonous or injurious to health.” Had the legislature stopped here, there could be no doubt as to the construction of the fifth subsection of sec. 5 already quoted. Indeed, since the case of Commonwealth v. Kevin, 18 Pa. Superior Ct. 414, s. c., 202 Pa. 23, there would be no room for discussion as to the meaning of such a clause. In that case Mr. Justice Mestrezat, speaking for the Supreme Court, says: “The learned trial judge held that the clause (clause 7 of see. 3 of the act of 1895) prohibited the addition to a food product of any foreign substance, poisonous or injurious to health, regardless of the quantity used or whether or not the quantity of the substance used was sufficient to make the adulterated article poisonous or injurious to health. In other words, it is not the quantity, but the nature of the substance added which the act prohibits. . . . The terms of the clause, therefore, declare against a compound that is formed by the addition of a poisonous or injurious ingredient, and not against a compound that is poisonous or injurious to health. This interpretation is supported by the plain and explicit language of the clause, as well as by the manifest purpose of the legislature in its enactment.” With this authoritative interpretation of the language of the act of 1895 before it, the legislature reconsidered the whole question in the act of 1907.

In the meantime, however, to wit: on June 30, 1906, the congress of the United States enacted a statute for the purpose of regulating this entire question in so far as it was within the domain of national legislation. Recognizing, no doubt, the vast extent of our territory, the great diversity of the soil and climate of the different sections of the country and the consequent variety of the food products produced therein, and the practical impossibility of transporting these products from one distant section to another without the aid of some artificial preservative, the congress declared, inter alia, that the use of sulphur dioxide, in certain quantities, as such preservative would, under certain conditions, be lawful. Our own legislature in 1907, legislating with the knowledge of the construction of the act of 1895, adopted by our own Supreme Court and of the act of congress referred to, was not content to simply re-enact the provision of the act of 1895, and thus leave the situation as it was before; but evidently sought to bring our legislation as nearly as possible into harmony with that enacted by the general government, and to relieve dealers in Pennsylvania from some of the hardships that would follow an enforcement of the act of 1895, as it had been construed by the courts. It accordingly declared, “that for the purpose of this act an article shall be deemed to be adulterated. . . . Fifth. If it contains any added substance or ingredient which is poisonous or injurious to health: Provided, however, that no action shall be brought or sustained for violation of the provisions of this section when the article alleged to be adulterated is not adulterated within the meaning of the provisions of the 'Food and Drugs Act’ of June 30, 1906, enacted by the Senate and House of Representatives of the United States of America in Congress assembled, and the rules and regulations promulgated from time to time for the enforcement of the same: And provided further that when in the preparation of food products for shipment, they are preserved by any external application, applied in such manner that the preservative is necessarily removed mechanically or by maceration in water or otherwise, and directions for the removal of said preservative shall be printed on the covering of the package, the provisions of this act shall be construed as applying only when said products are ready for consumption.”

The commonwealth rests its contention that the defendants in this case were properly fined on the ground that in selling, or having for sale, a food article containing “any added substance or ingredient which is poisonous or injurious to health,” to wit: sulphur dioxide, they were doing what was prohibited by the enacting clause of the fifth subsection of clause 5 of the act of 1907. In other words, they occupied the same position as if the sale complained of had been made whilst the act of 1895, as construed in Commonwealth v. Kevin, 18 Pa. Superior Ct. 414; s. c., 202 Pa. 23, was still in force.

It is manifest that this position is untenable as long as the first proviso above referred to is permitted to stand, because, it is agreed, that the peaches in question were not adulterated within the meaning of the provisions of the “Food and Drugs Act” enacted by congress, and therefore, under the terms of the proviso, no action can be brought or sustained for such adulteration. The commonwealth must, therefore, at the same time, uphold the enacting clause of subsection 5, and expunge from it the qualifying proviso in order to maintain its position. The learned court below held, and we think properly, that, under our constitution, our legislature could not introduce into a statute, and make operative as a part of such statute, an act of congress, by a mere reference to its title. Much less could it inject bodily into the same statute all of the rules and regulations that might be, from time to time, promulgated by the proper department of the government for the enforcement thereof. The soundness of this position seems to us to be so manifest as to require no argument to sustain it. The language of sec. 6 of art. Ill of our constitution is clear and plain. No one would contend that a former act of our legislature, or the rules and regulations of any department of our state government, could be incorporated into an act of assembly by a mere reference to the title of the former or the general designation of the latter contained in the proviso.

In Titusville Iron Works v. Keystone Oil Company, 122 Pa. 627, Mr. Justice Williams said: “But the constitution of 1874, sec. 6 of art. Ill, already referred to, requires all statutes to be self-explanatory and complete in their provisions, and forbids the extension, amendment, revival, or the use of any other method of conferring the benefits of previous legislation short of a re-enactment at length.” Innumerable cases reiterating this doctrine could be cited if necessary.

We must next consider to what extent the act of 1907, viewed as a whole, is affected by striking from it the unconstitutional proviso. It is clear, we think, that at least the whole of subsection 5 of the fifth section of the act must fall. As we have already seen, the enacting portion of this clause or subsection is precisely the same asrthat of subsection 7, sec. 3 of the act of 1895. If, notwithstanding the construction placed upon that act in Commonwealth v. Kevin, 18 Pa. Superior Ct. 414; s. c., 202 Pa. 23, and the passage of the act of congress of June 30, 1906, our legislature had been willing to continue the same policy that followed from the earlier act, it would have stopped with the enacting portion of clause 5, sec. 5 of the act of 1907. The very fact that it incorporated the proviso, along with the enacting clause in that subsection, clearly indicated its intention to withdraw from the advanced position previously taken and bring the legislation of this state, on this subject, in harmony with that adopted by the general government. If, therefore, we strike down the proviso, but allow the enacting portion of the clause to remain, we draw within the penalties provided by the statute those whom the legislature declared, by the terms of the proviso, should not be subject to such penalties.

We are necessarily led to the conclusion, therefore, that the whole of the fifth clause or subsection of sec. 5 must be stricken down. The only theory upon which the learned and ingenious counsel for the commonwealth urges us to declare the enacting clause operative, but the proviso inoperative, is that the latter is wholly unintelligible; that “it might as well be Greek or other dead language so far as the average citizen is concerned. It is surplusage. ... It is as though it consisted of unintelligible strokes and marks, meaningless and void. It is a mere blot upon the statute. It does not affect either preceding or succeeding language. It may be removed without destroying unity and without sacrificing intelligibility.”

We are unable to accept this theory as sound. It seems clear to us that the proviso is sufficiently intelligible, and unmistakably indicates that the legislature intended to withdraw, from the sweep of the earlier enacting clause, those who would be within the shelter of the provisions of the act of congress.

But it does not follow that the whole of the act, or even the whole of sec. 5 of the act, must be declared void. The rule on this subject is well stated by Henderson, J., in Commonwealth v. Shaleen, 30 Pa. Superior. Ct. 1, in the following language: “It is a familiar rule that a part of a statute may be unconstitutional and the remainder constitutional, and that that which is constitutional will stand unless its provisions are so connected and dependent on each other in subject-matter that it must be presumed the legislature would not have enacted one without the other.” Many cases are there cited in support of the principle which is indeed so familiar that it needs no citation of authorities to sustain it. Looking then at the whole of sec. 5, we cannot see that the proviso, which we now declare void, was intended to operate upon anything except the enacting clause of the fifth subsection or paragraph of that entire section. As previously stated, the section as a whole is subdivided into six subsections or paragraphs relating to articles of food, and one to articles of confectionery. Had the proviso been intended to operate upon everything covered by the entire section, its natural place would have been at the end of the section following all of the enacting portions of it. As already stated, however, it appears in the fifth subsection, and it seems to us that its operation may fairly be confined to that subsection.

Moreover, we are advised by counsel, in their printed briefs, that all of the other paragraphs of see. 5 are in harmony with the national act, and the proviso, as to them, would therefore be needless. But the enacting clause of subsection 5, standing alone, would not be in harmony with the national act, and hence the necessity of the proviso. The only objection, we think, that can be successfully advanced to this construction, is the fact that it will leave the act with a gap in it, a casus omissus. This, however, does not furnish to our minds any satisfactory reason for striking down the act as a whole. Every other part of it we think may stand and be operative without the fifth subsection of sec. 5, and if this be true, it is our plain duty so to hold. If that results in leaving the act less perfect and comprehensive than it was intended to be, the remedy is with the legislature.

Even if, however, it were possible to allow the enacting clause of subsection 5 to stand, and at the same time strike down the qualifying proviso, we think the court below was nevertheless right in reversing the judgment of the magistrate, because the defendants, under the facts of this case, were further protected by the provisions of sec. 8 of the act. That section provides that: “No prosecution shall be sustained under the provisions of this act for the selling, etc., of any article, when the same is found to be adulterated within the meaning of this act, when the accused can show a guarantee signed by the person, residing in the United States, from whom such article was purchased, to the effect that the same is not adulterated within the meaning of this act, designating it, or within the meaning of the 'Food and Drugs Act’ of June 30, 1906, etc.” The section goes on to provide the manner in which the accused vendor and guarantor may be punished. If residing in this state, he is of course amenable to the process of this state. If residing in some other state of the Union, the section provides that his name and address, as contained in his guarantee, shall be forwarded, by the dairy and food commissioner of this state, to the secretary of agriculture of the United States, or the proper officers appointed for the enforcement of the act of congress. The design of the legislature is, we think, thus plainly apparent. It is not, primarily, to punish those who, innocently pursuing a lawful business, according to the usual channels of trade and within the regulations adopted by the national government, shall purchase some article of food that might be deemed to be adulterated within the provisions of our own act of assembly on the subject; but to more effectually break up such traffic by the punishment of the general dealers in whose establishments the wrongdoing originates. For this reason also, we are constrained to hold that the learned court below was right in reversing the judgment of the magistrate and entering judgment in favor of the defendants.

Judgment affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Du Bois v. Sturch, Appellant.

      Landlord and tenant — Payment of taxes — Set-off—Mortgage—Affidavit of defense.

    In an action by a purchaser at a sheriff’s sale of leased premises, against a tenant in possession to recover the amount the defendant was obligated to pay under the lease for use and occupation from the date of the acknowledgment and delivery of the sheriff’s deed to the date when the plaintiff conveyed the premises to another, an affidavit of defense is insufficient which avers as a set-off the payment of taxes by the defendant, but does not in express terms aver that they were paid at the special instance and request of the plaintiff and does not set forth such facts as to show that the payment of the taxes inured to the benefit of the plaintiff.
    May 10, 1909:
    Argued Dec. 18, 1908.
    Appeal, No. 43, Oct. T., 1908, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 4,892, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry M. Du Bois, Executor of the Last Will and Testament of Eliza L. B. Wagner, deceased, v. Harry H. Sturch.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Superior Court states the case.

      Error assigned was order making absolute rule for judgment ffir want of a sufficient affidavit of defense.

      O. W. Payran, for appellant.

      Thomas A. Gummey, for appellee.
   Opinion by

Rice, P. J.,

Eliza L. B. Wagner, the plaintiff’s testatrix, was the holder by assignment of a mortgage, which was a first lien on the mortgaged premises and antedated the lease under which the defendant in this case held as tenant of the mortgagor. Upon judgment which she obtained by scire facias upon the mortgage an alias writ of levari facias issued under which the premises were sold by the sheriff and bought by the plaintiff, but it does not appear in the pleadings that he ever had any other interest in or title to the premises than as executor. He subsequently duly notified the defendant to surrender possession, and upon his failure to do so brought this action for the amount the defendant was obligated to pay under his lease, for use and occupation from the date of the acknowledgment and delivery of the sheriff’s deed to the date when the plaintiff conveyed the' premises to another. No question is raised as to the form of action, and it is enough to say without incumbering this opinion with a prolix recital of all the averments of the affidavit of defense, that in our judgment it sets forth no valid defense to the plaintiff’s claim unless it be by way of set-off.

The claim of set-off is based on the allegations, that upon a date subsequent to the issuing of the first levari facias and prior to the sale under the alias writ the defendant “with the knowledge, consent and at the special instance and request of said plaintiff, Henry M. Du Bois, who was the attorney of record of said Eliza L. B. Wagner, in the suit founded on the said writ of scire facias sur mortgage, paid the taxes on said premises for the year 1906, amounting to ninety-four and fifty-nine hundredths dollars ($94.59)and that this payment inured to the benefit of the plaintiff. There is much more in the affidavit of defense than this, but the foregoing is a condensed statement of the material averments relating to the set-off. Whether this alleged payment was made before or after the death of the mortgagee does not distinctly appear, but the more plausible inference from the uncertain averment of the affidavit of defense is, that it was made, or at least that the alleged request therefor was made, when H. M. Du Bois was acting as attorney for the mortgagee in the foreclosure proceedings. In this view of the above-quoted extract from the affidavit of defense, it is not equivalent, standing alone, to an averment that the defendant paid the taxes at the special instance and request of the mortgagee. Nor is it helped out by the subsequent averment “that the payment inured to the benefit of the plaintiff,” it not being expressly stated, nor certainly inferable from the other facts alleged, in what way it inured to the benefit of the mortgagee to have the tenant pay the taxes due from his landlord, the mortgagor. The fact that at that time he had a counterclaim against his landlord which more than equaled the rent then due, even if it be conceded that the affidavit shows such counterclaim enforcible against the latter, does not affect the question. Nowhere is it alleged that the defendant had actually paid in advance the rent for the period covered by the plaintiff’s claim. “An affidavit of defense should contain a clear, orderly and specific statement of the facts relied on by the defendant to prevent judgment; merely general averments or those which raise mixed questions of law and fact, are insufficient. Inferences or conclusions of law are for the court, and if it is desired that they should be drawn in favor of the defendant the court should be put in possession of the facts from which they are to be drawn:” Moore v. Susquehanna Mutual Fire Ins. Co., 196 Pa. 30. This well settled principle is applicable here. No certain inference or conclusion of law can be drawn from the facts alleged that the mortgagee incurred an obligation to repay the defendant the sum he paid to discharge his landlord’s primary obligation.

Judgment affirmed.


author: Orlady, J.,

text:
    Spangler v. Markley, Appellant.

      Negligence — Automobiles—Fright of horse — Duty as to use of highways.

    1. For the purpose of avoiding collision and accident, all travelers on a public highway should observe due care in accommodating themselves to each other. Their rights are mutual and co-ordinate, and it is the duty of each so to exercise his right of passage as not to cause injury to another, having a like right. Each is under the obligation to exercise ordinary care, and each has the right to expect that such ordinary care will be exercised by the other, and to rely upon this in determining his own manner of using the road. The mere fact that a horse, which had previously been gentle and easily controlled, shows signs of being unruly when driven in view of an automobile, does not impose upon the owner the duty to refrain from using him on the highway with ordinary care.
    2. If the operator of an automobile knows, or by the exercise of ordinary care may know, that the movement or noise of his machine will render an animal unmanageable, he must use all the care and caution which a careful and prudent driver should exercise under the same circumstances. He has the right to assume, and to act upon the assumption, that every person whom he meets will also exercise ordinary care and caution according to the circumstances and will not negligently or recklessly expose himself to danger, but rather make an attempt to avoid it, But when an operator has had time to realize, or by exercise of a proper lookout should have realized, that a person whom he meets is in a perilous position, or in a position of disadvantage, and therefore seemingly unable to avoid the coming automobile, he must exercise increased exertion to avoid a collision, or what is equivalent, the fright of a horse induced by an automobile.
    3. In an action to recover damages for personal injuries sustained as the result of a fright of a horse by an automobile, plaintiff, who was about seventy years of age, testified that while driving on a dark evening, he met the defendant coming from the opposite direction on a public road in an automobile; that the defendant had no lights on his automobile, and that he, the plaintiff, was unable to notice its approach until it was almost on him; that he was driving a perfectly tractable and gentle horse on the proper side of the road; and when the automobile was about twenty-five steps away he recognized it, and rising in his buggy, held up his hand as a signal to the driver of the car to stop, and called out: “Hold on, wait, stranger, until I get out and hold my horse.” The machine was either slowed down or stopped in obedience to this signal, and then the plaintiff attempted to get out of his buggy, in order to go to the head of the horse; and when in this situation, the machine was suddenly started and approached the buggy with considerable noise, which caused the horse to shy and run against the fence, so that the plaintiff was thrown out over the wheel, and quite seriously injured. This testimony was contradicted by the defendant and other persons who were in the automobile. Held, that the case was for the jury, and that a verdict and .judgment for plaintiff should be sustained.
    Argued March 8, 1909.
    Appeal, No. 4, March T., 1909, by defendant, from judgment of C. P. Adams Co., Aug. T., 1908, No. 165, on verdict for plaintiff in case of Samuel G. Spangler v. William D. Markley.
    Before Rice, P. J., Poetee, Hendeeson, Moeeison, Oelady, Head and Beavee, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Swope, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for 8640. Defendant appealed.

      Error assioned was in refusing binding instructions for defendant.

      William Hersh, with him Edward A. Weaver, for appellant.—
    If one deliberately drives a horse along the highway knowing he will frighten at certain objects, he assumes the risk of the frightening of the horse and must therefore take' the consequences: Winner v. Oakland Twp., 158 Pa. 405; Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; Keeley v. Shanley, 140 Pa. 213; Piollet v. Simmers, 106 Pa. 95; Hazel v. Pass. Ry. Co., 132 Pa. 96; P., W. & B. R. R. Co. v. Stinger, 78 Pa. 219.
    The weight of the evidence clearly showed that the defendant was observing all the restrictions of statute and using reasonable care in the operation of the machine and his equal rights to use the highway with a driver of a team, cannot be disputed: Indiana Springs Co. v. Brown, 165 Ind. 465 (74 N. E. Repr. 615); Huddy, Law of Automobiles, p. 27, 46.
    One who knows that a horse is afraid of automobiles, and yet deliberately drives behind the horse, toward the automobile, without exercising proper care for her own safety, is guilty of contributory negligence: L. & N. R. R. Co. v. Schmidt, 81 Ind. 264; Morgan v. Central R. R. Co., 77 Ga. 788.
    Injuries arising from mere fright of horse by a vehicle, do not render the owner of vehicle liable: Holland v. Bartch, 120 Ind. 46 (22 N. E. Repr. 83); Nason v. West, 31 Miss. 583; Yingst v. Ry. Co., 167 Pa. 438; P., W. & B. R. R. Co. v. Stinger, 78 Pa. 219; Hazel v. Pass. Ry. Co., 132 Pa. 96; Davison v. Tractison Co., 10 Pa. Superior Ct. 442; Eichman v. Buchheit, 128 Wis. 385 (107 N. W. Repr. 325); House v. Cramer, 10 L. R. A. (N. S.) 655.

      W. C. Sheely, with him J. L. Butt, for appellee. —
    One operating an automobile on the public highway owes to persons driving horses thereon the duty to carefully control and operate the machine so as to avoid causing needless injury; and this duty requires him to take into account the character of his machine, its general appearance, the noise accompanying its operation, its new use in the vicinity, its tendency to frighten horses, and, from such and all other pertinent considerations, to proceed with that speed and caution which reasonable care requires according to the place and presence of other travelers: Indiana Springs Co. v. Brown, 165 Ind. 465 (74 N. E. Repr. 615); Murphy v. Wait, 102 App. Div. 121; Knight v. Lanier, 69 App. Div. 454; Hennessey v. Taylor, 198 Mass. 583 (76 N. E. Repr. 224); Christy v. Elliott, 216 Ill. 31 (74 N. E. Repr. 1035); McIntyre v. Orner, 166 Ind. 57 (76 N. E. Repr. 750).
    May 10, 1909:
    If the plaintiff under the belief that he was in sudden danger attributable to the negligence of the appellant in the driving of his automobile did get out the buggy backwards, or even if he had jumped out of the buggy and had been injured thereby, he would not be guilty of contributory negligence even though the act would be regarded as a negligent one if performed under circumstances not indicating sudden peril: Clarke v. Pennsylvania Co., 132 Ind. 199 (31 N. E. Repr. 808); Penna. R. R. Co. v. Werner, 89 Pa. 59; Breunniger v. Penna. R. R. Co., 9 Pa. Superior Ct. 461; Bard v. Philadelphia & Reading Ry. Co., 199 Pa. 94.
    Under any circumstances the question whether this action on the part of the plaintiff constituted negligence was for the jury: Penna. R. R. Co. v. Ogier, 35 Pa. 60.
   Opinion by

Orlady, J.,

In this action of trespass the plaintiff recovered a verdict of $640, as damages for injuries which were caused by the negligence of the defendant in operating his automobile on a public highway. The case was tried with great care in the court below, the plaintiff submitting fifteen requests for instructions, and the defendant twenty-four; of the latter, nineteen were affirmed, three were refused, and two were answered with a qualification, so that all the disputed questions, which were purely of fact, were submitted to the jury, to determine whether the defendant was guilty of negligence or the plaintiff guilty of contributory negligence.

The first assignment of error is founded upon the refusal of the court to affirm the third point as presented by the defendant, viz.: If the jury believe that the plaintiff was driving a horse likely to scare at automobiles, and knowing that he was about to meet an automobile could have gotten into the opening at the yard, and thus avoided the accident, he would be guilty of contributory negligence, and cannot recover a verdict.” Which was answered as follows: “This point we refuse to affirm, but leave for your determination whether or not under all the evidence, the plaintiff was guilty of contributory negligence.” The court refused to affirm the plaintiff’s fourth point, viz.: “If the plaintiff thinking his horse would take fright at an automobile, and admitting as he did, that he could have gotten into an open yard, for safety, he would be guilty of contributory negligence if he failed to take this precaution to avoid the accident.” And the third was as follows: “If the jury believe from the evidence that the defendant when within 150 yards of the plaintiff blew his horn, and slowing up, had his machine in control; the plaintiff gave him no signal to stop, and that the defendant believed that the plaintiff was about to drive into the yard, the verdict should be for the defendant.” Both of which questions were submitted to the jury, under all the evidence in the case, to determine whether or not the defendant was guilty of negligence.

The plaintiff, who was about seventy years of age, testified that he met the defendant coming from an opposite direction on the public highway at about eight o’clock on the evening of May 23,1907; and that at the time it was quite dark. That the defendant had no lights on his automobile, and that he was unable to notice its approach until it was almost on him; that he was driving a perfectly tractable and gentle horse on the proper side of the road; and when the automobile was about twenty-five steps away he recognized it, and rising in his buggy, held up his hand as a signal to the driver of the car to stop, and called out: “Hold on, wait, stranger, until I get out and hold my horse.” The machine was either slowed down or stopped in obedience to this signal, and then the plaintiff attempted to get out of his buggy, in order to go to the head of the horse; and when in this situation, the machine was suddenly started and approached the buggy with considerable noise, which caused the horse to shy and run against the fence, so that the plaintiff was thrown out over the wheel, and quite seriously injured. That immediately after the happening of the accident, the defendant came to him, and stated that he was the man who had been running the automobile, when he said: “Stranger, if you had just waited until I had got out and held my horse, the thing would not have happened, but you did not wait on me, you rushed up and scared my horse.” To which the defendant replied that it was too dark, and he could not see. This state of facts was contradicted directly and unequivocally by the defendant and other witnesses who were in the automobile with him; their contention being that the defendant had approached the plaintiff with the machine under control, and had believed that the plaintiff was about to leave the highway, which situation he described as follows: “I did not know but what the man lived at those buildings; it resembled very much a driveway in there. I know that it was an entrance to get up to the barn building, and I did not know but what the team might probably turn in there when I seen him stop, and drifted gradually toward him.”

The law applicable to the rights and duties of persons meeting on a public highway has been frequently announced. For the purpose of avoiding collision and accident all travelers should observe due care in accommodating themselves to each other. Their rights are mutual and co-ordinate, and it is the duty of each so to exercise his right of passage as not to cause injury to another, having a like right. Each is under the obligation to exercise ordinary care, and each has the right to expect that such ordinary care will be exercised by the other, and to rely upon this in determining his own manner of using the road. The mere fact that the horse, which had previously been gentle and easily controlled, showed signs of being unruly when driven in view of an automobile, did not impose upon the owner the duty to refrain from using him on the highway with ordinary care. The extraordinary contention that it is contributory negligence on the part of the owner of a horse of ordinarily gentle and tractable habits to use him on the highway, simply because the animal occasionally becomes frightened at an automobile, cannot be sustained.

Since automobiles have come into use on our streets and highways, it has been the experience of all that they tend to frighten some horses, and it is the duty of a person operating such a machine, in order to avoid accidents when a horse does become frightened, to exercise reasonable care; it is doubtless unpleasant to be obliged to slow down a rapidly running machine to accommodate a person driving or riding a country horse that does not readily become accustomed to the automobile innovation, but it is certainly well understood that if such a driver ignores a proper signal to stop and exercise ordinary care under the circumstances, then if an injury follows, he must respond in damages for the injuries which have been caused by his neglect.

Automobiles are lawful means of conveyance and have equal rights upon the public roads with horses and carriages, but their use must be accompanied with that degree of prudence and consideration for the rights of others which is consistent with safety. If the operator of an automobile knows, or by the exercise of ordinary care may know, that the movement or noise of his machine will render an animal unmanageable, he must use- all the care and caution which a careful and prudent driver should exercise under the same circumstances. He has the right to assume, and to act upon the assumption, that every person whom he meets will also exercise ordinary care and caution according to the circumstances and will not negligently or recklessly expose himself to danger, but rather make an attempt to avoid it. But when an operator has had time to realize, or by the exercise of a proper lookout should have realized, that a person whom he meets is in a perilous position, or in a position of disadvantage, and therefore seemingly unable to avoid the coming automobile, he must exercise increased exertion to avoid a collision, or what is equivalent, as in this case, the fright of the horse induced by the automobile.

The plaintiff testified that the horse was trustworthy; he had an equal right to the use of the highway with the automobile; he was bound by the same rules of law, and to exercise the same degree of care as the other users of the highway; whether he did so or not was purely a question for the jury. The degree of care required of each depended upon the circumstances. If one is using a young, nervous, skittish horse, unaccustomed to unusual sights or sounds, he must exercise care in proportion to the risk he volunteers to take; and even a staid and veteran horse may be liable to sudden fright induced by unusual conditions, as is well known by all drivers, but this does not imply that the driver of an automobile has any superior right on the road, and independent of any statute on the subject, requiring drivers of automobiles to stop on a signal, it is his duty to stop when he sees or should see that he is frightening a horse, by proceeding on his course.

The whole question was fully and' fairly submitted to the jury, and the verdict was fully warranted by the evidence.

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


author: Per Curiam,

text:
    Roberts v. Pennsylvania Loan & Trust Company, Appellant.

      Wages — Assignment of wages — Usury—Equity.
    Where an assignment of future wages is made at a time when a usurious loan is contracted, such assignment, after the loan with legal interest has been paid or tendered in full, will be set aside and canceled by a court of equity.
    Argued April 16, 1909.
    Appeal, No. 86, April T., 1909, by defendants, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1907, No. 141, in bill in equity in case of George T. Roberts v. Pennsylvania Loan & Trust Company, T. A. Gordon and E. A. Porter.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Bill in equity to cancel an assignment of wages.
    Young, J., filed the following opinion:
    This is a bill to rescind and cancel a certain assignment of salary and wages, executed and delivered by plaintiff to defendants.
    FINDINGS OF FACT.
    1. On December 9, 1905, the plaintiff made an application to the Pennsylvania Loan & Trust Company, one of the defendants then located at No. 404 Smithfield street in the city of Pittsburg, for a loan of $230, the negotiations for the loan being conducted by the plaintiff with T. A. Gordon, one of the defendants, who was manager' of the loan company, and the loan was negotiated for by plaintiff with defendants upon a pledge of the household furniture of the plaintiff as security.
    2. The plaintiff executed and delivered a note for $318, as security for the payment of $230, loaned by defendants to plaintiff, and which was to be repaid in monthly installments of $26.50 upon the fifteenth day of each month, beginning on January 15, 1906.
    3. At the time the plaintiff signed the note, he made an assignment in writing of such wages as he might be entitled to as an employee of the Pennsylvania Railroad Company.
    4. On December 9, 1905, at the time plaintiff made the note for $318, and made the assignment of his wages, he received from the defendant company the sum of $230, $118 of which was at that time applied to the payment of the balance of a loan which the plaintiff had previously, upon May 16, 1905, obtained from the defendant company, thus leaving for plaintiff the sum of $112 in cash.
    5. Beginning on January 15, 1906, about one month after the loan was made, the plaintiff paid monthly the sum of $26.50 to the loan company, until he had paid the sum of $238.50, or $8.50 more than he had received from the defendants.
    6. In October, 1906, when plaintiff applied for his wages owing him by the Pennsylvania Railroad Company as an employee, he was informed by that company that his wages for the month of October would be withheld by that company because of a notice received from one E. A. Porter, one of the defendants, who held an assignment in writing of plaintiff’s wages, and had notified the railroad company that he would claim the wages when due. He subsequently learned that his wages for the month of November, 1906, were withheld by the railroad company because of a notice of like tenor and character with the first, and there is now withheld by the railroad company from the plaintiff the sum of $100 upon said notices.
    7. Plaintiff has tendered to the defendants the sum of $5.80 in full of the balance of his loan and interest from its date, which tender has been refused by the defendants and a demand made of $74.00 in addition.
    8. The most that defendants could be entitled to, if the loan was made December 9, 1905, for the period of one year, would be the sum of $230, with interest at the legal rate, which would entitle the defendants to receive $243.80. The plaintiff, having paid the sum of $238.50, or within $5.30 of the whole amount that defendants would be entitled to, and having tendered the sum of $5.80, would be entitled to have his note returned to him, having paid his debt in full.
    CONCLUSION OP LAW.
    The plaintiff, having paid his debt in full, is entitled to have his note and pledge and assignment of wages returned to him, upon the payment of $5.80, the amount heretofore tendered, and the defendants are to be restrained from further seeking to collect the wages of the plaintiff from the Pennsylvania Railroad Company, the cost of this case to be paid by defendants.
    DISCUSSION.
    The evidence in this case clearly satisfies us that the contract was a usurious one. The defendants attempted upon a loan of $230 to collect from plaintiff the sum of $318 in twelve monthly payments of $26.50 each, beginning one month after the loan was granted. The evidence shows that there was at least the sum of $64.20 of usurious interest included in this note. The defendants attempted to justify this upon the ground that they were charges and not interest, but there is no evidence of any services that would justify any such charge. The case of Strohen v. Savings Fund and Loan Assn., 115 Pa. 273, is a complete answer to any such attempt. There, the court said:

      “ It is indeed wholly immaterial under what form or pretense usury is concealed. If it can by any means be discovered, our courts will refuse to enforce its payment.”
    There is no difficulty in this case in discovering the usury; the defendants have been more than paid the amount loaned by them and interest for the time for which the money was kept by the plaintiff. Clearly under the evidence the note, pledge and assignment of wages should be redelivered to the plaintiff, the sum having been completely paid.
    May 21, 1909:

      Error assigned was decree canceling the assignment.

      J. D. Hern, for appellants.

      E. W. Arthur, for appellee.
   Per Curiam,

The decree is affirmed at the costs of the appellants upon the opinion of the court below.


author: Pee Cueiam,

text:
    Scott and Union Township Road.

      Road law — Laying out public road — Plan of lots.

    1. Objection cannot be taken to the action of a jury of view in laying out a public road on the line of a street shown on a plan of lots, where there is nothing to show that such street, had ever been accepted as a public road by the public authorities.
    2. A jury of view may adopt as a part of a public road between two termini a street upon a plan of lots dedicated to the public and accepted by the municipal authorities as a public road.
    Argued April 15, 1909.
    Appeal, No. 26, April T., 1909, by Mary Snyder et al., from order of Q. S. Allegheny Co., March Term, 1907, No. 2, confirming reports of viewers and reviewers In re Road in Scott Township and Union Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to reports of viewers and reviewers.
    Haymaker, J., filed the following opinion.
    On March 23, 1907, a petition, signed by certain inhabitants of Scott and Union townships, was presented to this court, in which petitioners claim that they “labor under great inconvenience for want of a public road or highway to lead from a public road now known as Banksville Avenue, at the point of its intersection with Broadway, at street laid out in a plan by John Anderson, in said Township of Scott, to the macadamized county road, known as the Banksville macadamized road in the Township of Union, at or near land of John Munnigle,” and praying for the appointment of viewers. Viewers were then appointed to make report to the next (June) term of this court. On June 8,1907, their report was presented in court, approved, and ordered to be filed. The viewers reported in favor of the road. On August 9,1907, on the petition of various inhabitants of said townships, alleging that this road, if confirmed, will be injurious and burdensome, reviewers were appointed, and after various orders of extension their report was presented in court on February 8, 1908, approved and ordered to be filed. The reviewers found in favor of the road, and their report differed but slightly with the report of the viewers, as to the location of the road between the termini. The viewers assessed damages sustained by the Anthony Snyder heirs at $200, and the reviewers at $400, and in both reports was a recommendation that the damages be paid by the county. On February 21, 1908, the heirs of Anthony Snyder, by leave of court, filed a motion to quash both reports, and on March 9, 1908, filed exceptions to both reports. The exceptions raise but a single question, and the same one, inter alia, is raised in the motion to quash, so that the disposition of the questions involved in the motion to quash will dispose of the exceptions, and they may be considered together. The various reasons assigned in the motion to quash are in substance:
    1. That the viewers and reviewers located a road beginning at an angle in a public road, and thence, for some distance, along the center line of certain streets which had been theretofore dedicated to public use, and recommended that the width of the new road should be that of the width of these streets.
    *2* «i*
    The precept or order to the viewers and reviewers was for a road to lead from a public road known as Banksville avenue, at a point where it intersects with Broadway, to the macadamized county road known as the Banksville road, near land of John Munnigle or McMonagle. The eastern terminus begins at an angle in a public road laid out at No. 4, March Sessions, 1987. Some confusion is created in the frequent mention of “Banksville avenue” and “Banksville road” in the record, but it will be observed that the public road at the eastern terminus is called Banksville avenue and Broadway and is thirty-three feet in width. This public road is not to be confounded with the Banksville avenue fifty feet in width, appearing on the draft accompanying the report of the viewers and reviewers. This draft shows a plan of lots, through which the road runs. Beginning at the eastern terminus it is located on Banksville avenue a distance of 454 feet, then on Maple avenue 553.31 feet, thence on Walnut avenue 574.70 feet, and thence along Beech street for a short distance, when it passes out of the plan of lots, and by various courses and distances reaches the western terminus, on the Banksville road, near the residence of John McMonagle. According to the plan of lots, Banksville avenue is fifty feet wide; Maple and Walnut avenues, and Beech street, each forty feet in width. The reports recommended as the width of the road, where it is located on streets, that of the width of the streets, and from the point where it leaves the street a width of thirty-three feet to the western terminus.
    The exceptants, in their first reason, say that the streets over which the proposed road runs have been dedicated to public use, and the viewers, therefore, could not legally locate a public road upon them. The reports of the viewers and reviewers show a plan of lots between the termini of this road, upon some of the streets of which the proposed road is located. These reports do not show when the plan was made, that any of the streets have been opened, or used to the slightest extent, or that there is anything upon the ground to indicate their location or existence, and we are asked, from an inspection of the record, to set aside both reports because they locate a road upon streets dedicated to public use. There is nothing in the exceptions or motion to quash indicating a dedication of these streets to pub-lie use, other than that these reports show a plan of lots with streets therein. Assuming that the proprietor of this plan has expressly dedicated these streets to public use, this alone would not make them public streets or highways, without acceptance by the township authorities, — Steel v. Huntingdon Borough, 191 Pa. 627; Com. v. Moorehead, 118 Pa. 344; Weida v. Hanover Township, 30 Pa. Superior Ct. 424; Com. v. Shoemaker, 14 Pa. Superior Ct. 194, — and the record does not disclose any evidence that these streets have been accepted by the township authorities, or that they have exercised any authority or control over them; nor is it claimed in the motion to quash or the exceptions that there has been any acceptance of these streets by the public authorities, or any public user. The laying out of a plan of lots, with streets and alleys, will not alone make them public highways, and the burden was upon the complainants to prove by evidence that the streets upon which the road was located had been accepted by the township authorities: Steel v. Huntingdon Borough, 191 Pa. 627; Com. v. Moorehead, 118 Pa. 344; In re Vacation of Alley, etc., 104 Pa. 622; Wieda v. Hanover Twp., 30 Pa. Superior Ct. 424; Com. v. Shoemaker, 14 Pa. Superior Ct. 194; In re Road in Borough of Taylor, 3 Lack. L. N. 194. One of the termini of an unopened street in a borough cannot be adopted as a terminus in proceedings to lay out and open a public road in an adjoining township: Plainfield Township Road, 1 North. 369; Broadhead v. Supervisor, etc., 2 Leh. Val. 381; In re Road in Springfield Township, 14 Montg. 97. While there is no evidence that these streets were ever laid out, opened, or used by the public, or have an existence, except upon paper, yet assuming that they are public highways, there would be no objection to the viewers adopting them in part reaching the termini fixed in the order. In the case, In re Road in Sterrett Township, 114 Pa. 627, the viewers adopted Franklin street in Wilkinsburg for the greater part of the new road, while that street had been laid out, opened and used by the public, and the viewers’ report was sustained. To the same effect are the cases •of Reserve Township Road, 80 Pa. 165; Road in Springdale Township, 91 Pa. 260; West Chester Road, etc., 2 Rawle, 421; Ross Township Road, 5 Pa. Superior Ct. 85; Road in Greene Township, 21 Pa. Superior Ct. 418; Hess’s Mill Road, 21 Pa: 217; Triekett’s Pa. Road Law, pp. 6-9; Road in Hazle Twp., 6 Kulp, 463. In the case of Road in the Borough of Taylor, 3 Lack. L. N. 194, both ends of the road were placed on streets and highways, in order to reach the termini, and that case resembles this one in many of its features.
    May 21, 1909:

      Error assigned was order confirming the reports.

      Noah W. Shafer, for appellant, cited:
    Sadsbury Twp. Road, 147 Pa: 471; Milford Road, 4 Pa. 303.

      Hugh M. Stilley, for appellee, cited:
    Springfield Twp. Road, 14 Montg. 97; Hess’s Mill Road, 21 Pa. 217; Springdale Twp. Road, 91 Pa. 260; West Chester Road, 2 Rawle, 421.
   Pee Cueiam,

The order is affirmed upon that part of the opinion of the learned judge below which relates to the questions sought to be raised by the assignments of error.


text:
    Charter of Iron City Lodge No. 17. Improved Benevolent & Protective Order of Elks of the World.

      Corporations — Charter—Similarity of name.

    A charter for a proposed corporation to be known as “City Lodge No. 17, Improved Benevolent and Protective Order of Elks of the World,” will be refused where objection is made by another corporation the corporate name of which is “Pittsburg Lodge, No. 11, Benevolent and Protective Order of Elks,” and the evidence shows that the similarity of names of the two associations had already led to great confusion in connection with telephone messages, mail delivery and the clubhouse of the two associations, and that all the members of the lodge applying for the charter .were negroes, while the objecting corporation’s constitution confines membership to persons of the white race.
    Argued April 30, 1909.
    Appeal, No. 16, April T., 1909, by J. Welford Holmes et al., from order of C. P. No. 1, Allegheny Co., Sept. T., 1907, No. 8-4, refusing application for Charter of Iron City Lodge No. 17, Improved Benevolent & Protective Order of Elks of the World.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to application for charter.
    The court filed the following opinion:
    The purposes of the proposed corporation are proper, the organization is composed of worthy citizens of this county, and the charter should be granted unless the exceptions are well taken.
    They are filed by Pittsburg Lodge No. 11, Benevolent & Protective Order of Elks, a corporation incorporated by the court of common pleas No. 2, of this county in the year 1891, the lodge itself having existed since 1878, and they are in short that the application is made with intent to produce confusion in the public mind in respect to the identity of the proposed corporation and that of the exceptant and is a fraud upon the exceptant; and, secondly, that the effect of granting the charter would be to produce confusion in the public mind in respect to identity with consequent injury to the exceptant.
    A third exception is that the application is contained upon more than one sheet of paper. With reference to this exception it is to be regretted that the practice of the courts of this county has been relaxed, and the rule laid down by Chief Justice Lowrie In re Alexander Presbyterian Church, 30 Pa. 154, would be a wholesome addition to our rules of court. The writer of this opinion endeavored to enforce that practice but found that it was not uniform and has felt obliged to content himself with recommending that it be followed. This exception is not sustained.
    The date of the organization of the order of which the applicant lodge is a part does not appear, although the lodge itself was organized in 1902. It was charged in the testimony with being an imitation, and we may safely assume that had it antedated that of the exceptant the fact would have appeared. It is a palpable imitation of the other organization not only in name but in the denomination of its officers, in the insignia and emblems of the order, and it is apparent that an effort has been made to approach as nearly as possible without transgressing the line bounding the rights of the exceptant. It is to be regretted that with nearly the whole animal kingdom to choose from the applicants did not select some name not already preempted. With the enormous growth of social and fraternal organizations the time seems to be not far distant when the roll of names will be exhausted, but it is not yet at hand.
    The distinguishing as well as the common appellation of the exceptants is “Elk.” The members are known as Elks, their clubhouse as “Elk’s Lodge.” Its members wear a small metal elk’s head, and the device B. P. O. E. is used to indicate the name of the order. It is a fraternal order, and one of its principal purposes is beneficial in the aiding of sick members and the widows and children of those deceased.
    The applicants’ organization is in these respects identical except that the device was described by counsel as having a small I. before and a small W. after the B. P. O. E., and their house is known as “Elk’s Rest.” They have, of course, a perfect right to have the same purposes, and the testimony as to the other matters is important in showing that they aid in creating the confusion which exists.
    The exceptant’s constitution confines the membership to persons of the white race. There is no such limitation in that of the applicant, and thus far all of its members are of the negro race. This fact, if known by the public, would prevent confusion as to which order a member belonged, but the ground of the objection made is not that the exceptant would lose members or business. It is that confusion will result, in fact has already resulted.
    There is no doubt that confusion has arisen. Telephone calls to the wrong house, letters delivered to the exceptant’s place intended for that of the applicant, a case of whisky, which both parties repudiate, was delivered with the bill to exceptant’s clubhouse, and a large number of colored men have sought admission to the white men’s building.
    “But even without this, the authorities have settled that the exclusive right of a corporation to its name is one that of itself carries the presumption of injury by interference and will therefore be protected:” Mitchell, C. J., in American Clay Manufacturing Company v. American Clay Mfg. Co. of N. J., 198 Pa. 189. Although that was a case of a manufacturing corporation, it recognizes the right in a name. A beneficial society in a sense does business, and while it is not likely, as already said, that it will lose members the confusion in the minds of the public leading to mistakes in charging and delivering of goods, in the delivery of letters and in other ways will indoubtedly lead to financial loss. It was settled in that case that the intention was immaterial and cases were quoted and approved which held that the use of names not in all respects identical was an infringement upon the rights of those first to use them.
    There are many cases in this state refusing incorporation under somewhat similar circumstances as this, but it is only necessary to quote a few. In First Presbyterian Church of Harrisburg, 2 Grant, 240, the application for a charter in that name was refused because the chief justice knew of the existence of The English Presbyterian Church of Harrisburg "and he thought that each would be known as the Presbyterian Church of Harrisburg, leading to confusion. While this case would probably not now be so decided, the underlying idea has governed the courts. A charter to the “Grand Lodge of the Independent Order Sons of Progress” was refused on exceptions filed by the “Grand Lodge of the Order Sons of Progress,” Judge Arnold disposing of the case in the brief sentences, “But the word ‘Independent' is simply descriptive. The true name is Sons of Progress: ” 14 W. N. C. 31. So here the word “Improved” is simply descriptive, and the names of the two organizations are practically identical. In Polish National Catholic Church of St. Francis, 31 Pa. Superior Ct. 87, and Philadelphia Lying-In Charity v. Maternity Hospital, 29 Pa. Superior Ct. 420, the Superior Court would not interfere with the discretion of the lower court but approved the refusal of the charters. In the first case the objecting corporation's name was the St. Francis Roman Catholic Church, that of the applicant the Polish National Catholic Church of St. Francis. In the other the proposed name was “The Central Maternity and Hospital for Women,” and that of the exceptant, “The Maternity Hospital.” The court said, “The similarity of the name to that of another corporation having its hospital in the vicinity was a matter eminently proper for consideration by the court to whose sound legal discretion the application was addressed.”
    “St. Francis” were the prominent distinguishing words in each of the churches, and Benevolent & Protective Order of Elks are such here.
    We have considered the able argument and briefs of counsel with care but think we have demonstrated by the decisions of our own state that our refusal of the charter is based upon sound legal discretion.
    The application is refused.

      Error assigned was decree refusing the charter.

      J. Welford Holmes, for appellants. —
    It is a well-settled principle that the Superior Court will not review the discretion of the lower court in granting or refusing to grant a charter where there is nothing to show that the decree involved an abuse of discretion or where the decree of the lower court was based upon due consideration of local conditions and of all the pertinent facts and circumstances bearing upon the situation: Philadelphia Lying-In Charity v. Maternity Hospital, 29 Pa. Superior Ct. 420; Columbus Security Order, 27 W. N. C. 36; Colonial Dames of America v. Colonial Dames of N. Y., 71 N. Y. Supp. 1134; Coffeen v. Brunton, 5 McLean, 256; Gilman v. Hunnewell, 122 Mass. 139; Supreme Lodge Knights of Pythias v. Improved Order of Knights of Pythias, 113 Mich. 133 (71 N. W. Repr. 470); St. Joseph’s Beneficial Society, 35 Pa. Superior Ct. 80.

      J. E. O’Donnell, for appellees. —
    The granting of a charter is in the sound discretion of the court: Vaux’ Appeal, 109 Pa. 497.
    The use of similar name will be enjoined: Am. Clay Mfg. Co. v. Am. Clay Mfg. Co. of N. J., 198 Pa. 189; First Presby. Church of Harrisburg, 2 Grant, 240; Grand Lodge of the Order of Sons of Progress v. Grand Lodge of the Independent Order Sons of Progress, 14 W. N. C. 31.

    May 21, 1909:
    It has been held that though the applicant did not intend to deceive, if, as a matter of fact, its name was calculated to deceive, it must be restrained by injunction: Newby v. Ry. Co., 1 Deady, 609; Higgins Co. v. Higgins Soap Co., 144 N. Y. 462 (39 N. E. Repr. 490); Fort Pitt B. & L. Assn. v. Model Plan B. & L. Assn., 159 Pa. 308; North Cheshire & Manchester Brewing Co., Ltd., v. Manchester Brewing, Ltd., Law Reps. App. Cases (1899), 83.
    The rule is not confined to commercial corporations: First Presbyterian Church of Harrisburg, 2 Grant, 240; Penna. Baptist State Convention v. Penna. Baptist State Convention (colored), 53 Pittsburg Legal Jour. 74.
   Pee Cueiam,

The able and earnest argument of appellant's counsel has not convinced us that the order complained of was not based upon sound legal discretion. On the contrary, the opinion filed by the learned judge below shows so satisfactorily that it was that we do not deem it necessary to add anything further to the discussion.

The order is affirmed.


text:
    Kurtz v. Bubeck.

      Building and loan associations — Overpayments on matured series— Equity.

    1. Where a building and loan association has become insolvent by mistaken overpayments to members as a number of series matured, the assignee for the benefit of creditors of the association may maintain a bill in equity in which he makes all of the members of a particular series defendants, for the purpose of recovering from them the overpayments which they received.
    2. In such a case the jurisdiction of equity is established by reason of the intricate and complicated accounts involved, by the large number of persons liable, and by reason of the mutual mistake of the parties and the unintentional misapplication of trust funds.

      Argued May 3, 1909.
    Appeal, No. 7, April T., 1908, by William Ellwood, from decree of C. P. Jefferson Co., Aug. T., 1905, No. 7, on bill in equity in case of T. M. Kurtz et al., Assignees of Punxsutawney Mutual Building & Loan Association, v. John J. Bubeck and William Ellwood et al.
    Before Rice, P. J., Pouter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an account and to compel repayment of overpayment.
    Reed, P. J., filed the following opinion:
    FINDINGS OF FACT.
    1. The said Punxsutawney Mutual Building and Loan Association was incorporated May 21,1885, under the laws of the commonwealth of Pennsylvania, and carried on business as such association until February 3, 1904, when it made an assignment of all its property to the plaintiffs in trust for the benefit of creditors, under the provisions of the Act of June 4, 1901, P. L. 404.
    2. That at the time of the assignment by it, the said association was insolvent in that it was unable to pay back to its stockholders the amount of their contributions, dollar for dollar.
    3. The cause of its insolvency was due to erroneous methods of bookkeeping in past years, to wit: the failure to charge off in the general accounts of the business the profits applied in maturing the stock of borrowing stockholders in the several matured series, which occasioned an apparent balance of accumulating undivided profits in excess of the actual balance of profit earned by the association, and a consequent overpayment and overcredit of profit to every subsequent series when matured and canceled.
    4. This error began with the maturity of the first series, and was continued with the maturity of the following series until the thirteenth series, overpayments and overcredits being made to each series from the second to the fifteenth.
    5. No attempt has been made to collect the overpayments and overcredits in the second, third, fourth and fifth series, for the reason that more than six years had elapsed between the dates of payment and the date of the assignment by said association to the plaintiffs as stated, and by reason thereof a right of action by the plaintiffs to recover the same was barred by the statute of limitations.
    6. Suits have been brought from time to time, in the form of bills in equity, against those who were stockholders at maturity in each series from the sixth to the sixteenth, setting forth, inter alia, the history of the transactions, the names of the stockholders, the dates and amounts of payment or credit, the actual value of the stock as determined by expert accountants since the assignment for the benefit of creditors was made, the excess of overpayment or overcredit accordingly as made and allowed to each stockholder, nonborrowing or borrowing, the demand for repayment made by the assignees for the benefit of creditors, the refusal on the part of the defendants to repay, the assertion of the necessity of a court of equity to hear and determine the issues involved, and making prayer for relief as fully set forth in the copy of the bill hereto attached, to which the defendants have filed demurrer and have made answer, copies of which are also attached hereto and made a part hereof.
    7. The eighth series of stock, the holders of which at maturity are the defendants in this bill, was declared matured August 22, 1899, when the shares were computed by the officers of the association to have reached the value of $200 per share, whereupon a division was made among the several series, and to the stockholders in the eighth series was paid or credited the sum of $200 for each share of stock held by them, and to the borrowing stockholders their securities were returned with the same fully satisfied and discharged of record, and thereupon the eighth series ceased and determined.
    8. After the appointment of the plaintiffs as assignees for the benefit of creditors, expert accountants were employed, who made a thorough examination of the business of the association throughout its corporate existence, and found, as shown at the time of their examination, that the real value of the stock in the eighth series at the time it was matured was $179.75, wherefore there was appropriated to the said eighth series, and divided among its stockholders, the sum of $20.25 per share in excess of its real value, amounting in all to $4,675.50 to nonborrowers, and $2,369.25 to borrowers.
    9. The following named defendants have been legally served with the bill in this case, or have appeared and joined in the demurrer or answer filed thereto, or have otherwise submitted themselves to the jurisdiction of the court, and admit that they were paid, August 22, 1899, and severally received, over and above the value of their stock at that date, the amounts attached to their names respectively, on the supposition and belief of all parties concerned, that their said stock at that date was fully matured, and therefore of the value of $200 per share, when in truth and in fact it was not fully matured, and was only worth $179.75 per share at that date, so that the overpayment or overcredit to each one of them, on the number of shares of stock owned and held by them respectively, was as follows: John J. Bubeck, $20.25; Elizabeth Cooper, $20.25; J. Grant Dunmire, $60.75; Martha C. Davis, $40.50; Jacob Dunmire, $182.25; William Elwood, $101.25; Elizabeth Eackiner, $40.50; David Haag, $101.25; J. N. Haag, $60.75; Philip Haag, $405; Mrs. E. E. Hummel in trust, $141.75; Laura E. Hamilton, $384.75; John Lang, $101.25; Lunetta J. Miller, $20.25; Levi McGregor, $405; W. A. Neal, in trust, $20.25; Elizabeth North, $202.50; Lillian North, $81.00; J. P. Oswald, $405; A. C. Robinson and R. J. Robinson, $101.25; A. C. Robinson, $101.25; A. C. Robinson and Brother, $60.75; Hiram Reese $40.50; Samuel A. Rinn, $101.25; E. L. Raifstanger, $202.50; G. A. Weiss, $20.25; Mary Weber, $101.25; P. J. Weber, $101.25; Philip Weaver, $20.25; W. W. Winslow, $101.25; J. Boyd Allison, $81.00; J. L. Allison, $121.50; Lalia Brauns, $40.50; Rachel L. Boucher, $40.50; S. J. Coulter, $101.25; Theodore Deutman, $20.25; J. Harry Evans, $20.25; James Gribben, $81.00; J. S. Gray, $20.25; Nancy Gray, $40.50; Irvin N. Graffius, $20.25; Fred Jordonnia, $20.25; John H. London, $101.25; John McQuown, $20.25; H. W. McClincy, $40.50; Hannah K. Marshall, $40.50; Elizabeth M. North, $20.25; W. E. Rodgers, $40.50; J. F. Sprankle, $60.75; Esther L. West, $121.50; Hettie Whitesell, $20.25; the following of whom have paid the amounts claimed in full, and have received receipts therefor, abiding the result of this suit: Philip Haag, Levi Mc-Gregor, Theodore Deutman, W. W. Winslow, Jacob Dunmire and J. Grant Dunmire.
    10. Demand was made on each of said defendants, July 15, 1905, for a return of the amount of the overpayment or over-credit, made or given to him as aforesaid, which was refused, and thereupon this bill was filed to compel payment of the same, with interest thereon from the date of said demand.
    11. On August 22,1899, there were in existence and in active operation twenty series of stock, from the eighth to the twenty-seventh inclusive, the first seven series having been matured and canceled.
    12. Upon the maturing of the eighth series, which was declared by the board of directors in accordance wth the figures of the secretary and the auditors, the nonborrowing shares were paid in full and the borrowing shares were canceled, the bonds and mortgages given as security for advancements to-borrowers being satisfied of record; whereupon the said series ceased and determined as provided in art. XVI of the by-laws.
    13. Thereafter, prior to the annual election of each year, and from time to time prior to the issue of a new series of stock, the auditors of the association audited the books and accounts, which audit was reported to the stockholders, with a faithful and ample exhibit of the state of the treasury and the value of the shares as indicated by the books, which report being approved was recorded in the minutes of the association, published and distributed among the stockholders for their information as ■' to the financial condition of the association, as provided for and in accordance with sec. 6, art VIII of the by-laws.
    14. Each of said reports of the auditors to the stockholders after August 22, 1899, showed the maturing and canceling of the stock of the eighth series, which reports were duly approved by the directors and stockholders at their regular meetings.
    15. All of the property, real and personal, belonging to said association on August 22, 1899, prior to the maturity of the eighth series, was retained by the said association for the benefit of the remaining series of stock, except such portion of the general assets of the association as the audit showed to be the distributive share of the said eighth series on said date which portion was set apart to said eighth series, and was found to be sufficient to mature the shares in said series.
    16. At the time the eighth series was matured the association was solvent, and there were no general creditors; nor was there any outside indebtedness incurred prior to August 22, 1899, for which the eighth series was liable.
    17. During the time the several series from the first to the eighth were in active operation, there was paid out by the association upwards of $140,000 on account of withdrawing stockholders, who were paid the withdrawal value of their stock according to the by-laws, and as represented by the published annual report as belonging to all the other stockholders in the several series mentioned.
    18. About August, 1902, the secretary of the association discovered that an erroneous method of bookkeeping had been carried on for a number of years during the incumbency of his predecessor in office, and that excessive profits had been paid and credited on all series from the second to the thirteenth inclusive, but that the association was still solvent, which facts he made known to the president, the treasurer and two directors of the association, and then resigned his office. Thereupon a new secretary was elected, but he was not informed of the situation, and the association continued to transact business until January, 1904, when the new secretary, having discovered the facts, informed the solicitor and the board of directors, when steps were at once taken to make an assignment and wind up the business of the association. Up to this time none of the defendants named in this bill were made acquainted with the condition of the association.
    19. The defendants in this bill, being stockholders in the eighth series, fully complied with the by-laws of the association, and made payments as therein provided until the directors, under sec. XVI of the by-laws, declared the stock "matured, August 22,1899, and the said eighth series then ceased and determined in accordance with the by-laws.

      20. The accounts, books, titles, securities and other papers and property of the association were in the exclusive custody of the officers of the association, who were chosen annually by vote of all the stockholders, borrowers and nonborrowers, all of whom were eligible to vote and to hold office. No stockholder, however, ever demanded and was refused the free opportunity and privilege of examining the books, accounts, etc., at any time, personally or with the help of experts, prior or subsequent to the said assignment for the benefit of creditors. Two examinations were made by the state banking department examiners during the period covered by these suits.
    21. Since the maturing of the stock in the eighth series, its cancellation and the satisfaction of the bonds and mortgages of borrowing stockholders in said series, up to the date of filing this bill, the relation of the parties have been altered in the manner indicated by the facts already stated, and many of the former stockholders are dead, gone from the jurisdiction, insolvent, or otherwise immune to legal process.
    22. The amounts of the overpayments and overcredits to stockholders in the second to the fifteenth series inclusive, as shown by the schedules submitted by the expert accountants, which are not called in question, are not in any case sufficient to consume or demand the refunding of the entire profit paid or credited to the stockholders in the several series. The present condition of the business of the association, however, is such that, unless something is recovered in the various hills in equity identical with this one, less than fifty per cent of the amounts paid in by nonborrowing stockholders whose accounts were alive at the time of the assignment for the benefit of creditors can be realized for them in the final distribution.
    23. The defendants who have been brought within the jurisdiction of the court are severally indebted to the plaintiffs in the amounts specified in paragraph nine of these findings, and are liable in this proceeding to a decree for the refunding, or payment to the plaintiffs, of the said sums paid to them respectively in excess of the amount to which they severally were entitled, August 22,1899, on the shares of stock held and owned by them at that date.

      FINDINGS OF LAW.
    1. The assignees stand as trustees for all existing stockholders, and such former stockholders as may be found still to be interested in the association, and it is necessary that they secure a legal determination as to the standing of each stockholder in the eighth series of said association as of August 22,1899, when that series was matured. The accounts between the said association and the said defendants are so intricate, complicated and voluminous that it would be impracticable to try the question of the said defendants' indebtedness by a suit at law, and inasmuch as a court of equity is better adapted to hear and determine the issues involved in such way as to secure justice to all parties in interest, the contention that this court is without jurisdiction cannot be sustained.
    2. A court of equity has jurisdiction to hear and determine the controversy between the plaintiffs and defendants.
    3. The proper parties have been made defendants.
    4. The association was legally insolvent on February 3,1904.
    5. The association had a legal right to make an assignment for the benefit of creditors.
    6. Overpayments and overcredits made under a mistake of fact as to the actual condition of the accounts of the association are recoverable.
    7. The overpayments and overcredits being an unintentional misapplication of trust funds, restoration is under the control of a court of equity.
    8. The plaintiffs have established their right to the relief prayed for in their bill.
    9. The defendants must refund the amounts of overpayments and overcredits received by them.
    10. The plaintiffs are entitled to a decree for the amounts demanded, with interest thereon from July 15,1905, and costs of suit.
    OPINION.
    The questions raised in this case are precisely the same that were raised and determined in the bill filed at No. 3 of August Term, 1904, to compel the stockholders of the sixth series of the stock, issued by this association, to refund or pay back the difference between the value of their stock, at the time of payment, and its matured value, the latter having been paid to them through an error of bookkeeping, whereby their stock was matured at a date earlier than it should have been, the same as in the present case. I have again given these questions careful consideration, but am unable to reach any other conclusion than the one reached in the case referred to, and therefore adopt the opinion delivered in that case as my opinion in this case. It seems to me that the plaintiffs’ right to recover from each defendant the excess sum paid or credited him is so clear that there ought to be no question about it. Numerous reasons, however, have been suggested why they should be relieved from such payment, and why this bill should be dismissed. In the first place it is contended that the plaintiffs’ remedy, if any exists, is by an action of law against each defendant, and that a court of equity is without jurisdiction to hear and determine the controversy. Conceding that an action at law would lie against each defendant, it does not follow that a court of equity may not exercise its jurisdiction. It is not sufficient to induce equity to refuse its aid to a suitor that he may also have a remedy at law: Gray v. Citizens’ Gas Company, 206 Pa. 303. The remedy at law must be complete and adequate to meet all the requirements of the case: Penna. Railroad Co. v. Bogert, 209 Pa. 589. The complicated character of the accounts to be considered in this case; the fact that the cause of complaint is common to all the defendants; that their liability to refund arises out of the same facts and circumstances, and is to be determined upon the same principles of law and equity, and that more than eighty actions at law would be required to reach the result that can be more conveniently reached in a single suit in equity, and substantially at less than one-eighth part of the costs and trouble, is sufficient for equity to maintain its jurisdiction: Bank of United States v. Biddle, 2 Parsons, 31; Bank of Kentucky v. Schuylkill Bank, 1 Parsons, 180; Bank of Virginia v. Adams, 1 Parsons, 534; Anderson et al. v. Lehigh Coal & Navigation Company et al., 23 Pa. C. C. Rep. 343; Simpson v. Summerville, 30 Pa. Superior Ct. 17; Appeal of The Brush Electric Co. et al., 114 Pa. 574. It is also contended that the bill (1) is multifarious by reason of the joinder of too many defendants, and (2) that it is defective for want of parties defendant. Where the cause of complaint against the defendants, as in this case, is the same as to all, and where all are interested in the same right, and the defense set up is common to all, and the testimony, proofs and decree are alike as to all, a bill filed against a number of defendants so situated is not multifarious: The Cumberland Valley Railroad Company’s Appeal, 62 Pa. 218; Rafferty et al. v. Central Traction Co., 147 Pa. 579. In my opinion all persons materially interested have been made parties defendant to the bill. All parties holding stock in the eighth series have been named as defendants, and it is not apparent why stockholders in other series, to whom overpayments and overcredits were also made, should be named as defendants in this bill. As was said by the learned counsel for the plaintiffs: “ It is evident that the recapitulation of the accounts and distribution of profits in the association on August 22, 1899, at which time twenty series were in existence, had then and has now only a passing and inconsequential interest to the stockholders in every series except the eighth, which on that day was matured and retired.” Each series in its relation to the corporation is a separate entity, and the accounting on August 22, 1899, affects only the eighth series. It had no final or binding effect upon any other series. To bring in as defendants the several hundred persons holding stock in other series could serve no useful purpose, and the bill is not rendered defective by reason of the failure to do so: Wood v. Dummer, 3 Mason, 308; Equity Rule No. 22 of the Supreme Court of Pennsylvania. It is further contended that there can be no insolvency of a building and loan association, and that the plaintiff association could not make an assignment for the benefit of creditors. These questions do not properly arise in this proceeding, but if they did I would have no hesitancy in ruling in favor of the affirmative of both propositions. Building and loan associations are in a class by themselves, and it has been held that they are insolvent when they cannot pay back to their stockholders the amount of their contributions, dollar for dollar: Endlich on Building Associations (2d ed.), sec. 511. The Federal bankruptcy law does not apply to such associations. Being corporations they cannot become voluntary bankrupts, and not being engaged in manufacturing, trading, printing', publishing, mining or mercantile pursuits they cannot be adjudged involuntary bankrupts. See Federal Statutes; also In re N. Y. Building-Loan Banking Co., 127 Fed. Rep. 471. Hence the Pennsylvania insolvency law of 1901 is in force in such cases, and an assignment made thereunder by a building and loan association is valid: Christian’s Appeal, 102 Pa. 184. The defendants make the further contention that the plaintiffs’ remedy against the defendants as defaulting or derelict stockholders is prescribed by statute, and that this remedy must be strictly pursued. I fail to see the application of the principle invoked to the facts of this case. The right of the plaintiffs to pursue the remedy adopted is so apparent that further comment on this contention .is deemed unnecessary. I believe all of the foregoing questions were raised and disposed of on the demurrer filed to this bill.
    The only remaining question that need be considered is whether the plaintiff association can recover back these excess payments and credits made on stock. They were made under a mutual mistake of fact, and the authorities in Pennsylvania that money so paid may be recovered back are very numerous. One or two citations, however, analogous in principle to the case in hand, will be sufficient to answer this inquiry: Callahan’s Appeal, 124 Pa. 138. In this case a mortgage was marked satisfied under the mistaken belief that the mortgagor’s stock had matured, and that he was entitled to have the mortgage canceled and delivered up to him. The court below, on application showing the mistake, struck off the satisfaction, and the Supreme Court affirmed the judgment: Mutual B. & L. Association’s Appeal, 2 Atl. Repr. 859. In this case by errors of the officers of the association shareholders made overpayments of dues. Upon a bill in equity for relief, it was sustained upon the general principle of mistake. The principle enunciated by these cases rules the case under consideration. Numerous cases from other jurisdictions, almost identical with this case, might be cited in support of the general principle that dividends prematurely paid by mistake can be recovered back.
    Two grounds of injury to the defendants are suggested: 1. That if the plaintiff association had not blundered in its bookkeeping and thereby matured preceding series of stock ahead of time, the defendants’ stock would have been matured approximately at the date it was apparently matured; or if the association had been diligent in discovering its errors and had compelled the stockholders in preceding series, before the bar of the statute of limitations had intervened, to refund the excess payments and credits made to them, the defendants would not have been injured as they are by such erroneous payments and credits. 2. That the association by reason of its negligent bookkeeping terminated the defendants’ relations with it, and thereby prevented them from participating in the future earnings of the association in maturing their stock. Regarding the first "suggested ground of injury, it is only necessary to say that the equities of the stockholders in series subsequent to the eighth must be considered, and the defendants cannot escape liability to refund money to which they are not entitled because stockholders in series preceding the sixth have succeeded in doing so. If the errors in bookkeeping had been discovered prior to August 22, 1899, the defendants could not have compelled the payment to them in full of their stock at that date, although it would have been matured but for such errors. But as a fact it would not have been matured at that date, and was only apparently matured because of said errors. They are in no better position now to insist that their stock shall be considered as matured on August 22, 1899, and by reason thereof they are entitled to retain the full matured value of the same, than they were at that date. The error terminating the defendants’ relations with the association before their stock had matured affords no basis for their retaining the money paid them under an honest misapprehension of the true situation. If the error had been discovered in time, and the excess payments and credits refunded, the defendants no doubt would have been entitled to be placed in statu quo. This result may follow now upon refunding the excess payments or credits, that is to say, they may resume their position as stockholders and be so treated and considered in winding up the affairs of the insolvent association, if they would benefit thereby. It must be remem.bered that the errors or mistakes complained of were committed by the officers of the association, and these officers represented the stockholders in the eighth series as well as in all other series at the time of the commission of the error which is sought to be corrected by this bill.
    May 21, 1909:
    In accordance with the foregoing findings of fact and conclusions of law, the prothonotary will enter the subjoined decree nisi, and give notice to the parties or their counsel, and unless exceptions are filed within ten days secundum regulum he shall enter the same as the final decree of the court.

      Error assigned was decree enforcing repayment of overpayment.

      H. Clay Campbell, for appellants.

      Cadmus Z. Gordon, with him W. W. Winslow, J. L. Fisher and W. M. Gillespie, for appellees.
   Per Curiam,

The decree is affirmed at the costs of William Elwood, the appellant, upon the findings of facts, conclusions of law and opinion filed by the learned judge below.