author: Porter, J.,

text:
    Snyder v. Henry, Appellant.

      Landlord and tenant — Lease—Notice—Evidence—Bent.
    Where a tenant from year to year holds over at the end of the year, he becomes a tenant for an additional year, and will be liable as such, notwithstanding he wrote to the lessor more than thirty days before the termination of the year that he did not wish to renew the lease, but would rent from month to month, if satisfactory. To relieve himself from liability-he must go further and actually show that a new agreement had been made which superseded the terms of the lease.
    A tenant for years cannot relieve himself from his liability under the lease to pay rent, by vacating the demised premises during the term, and sending the key to his landlord.
    The fact that the landlord when a tenant.has abandoned the property and left it vacant, takes possession and repairs the house, does not discharge the tenant from his covenant to pay rent.
    Argued Oct. 10, 1906.
    Appeal, No. 132, Oct. T., 1906, by defendant, from order of C. P. No. 4, Phila. Co., March T., 1906, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Benjamin W. Snyder v. Thomas Henry.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladv and Head, JJ.
    Affirmed.
    Assumpsit for rent.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Superior Court states the case.

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

      Edgar J. Pershing, for appellant.
    — The affidavit of defense was sufficient: Rohbock v. McCargo, 6 Pa. Superior Ct. 134; Wilgus v. Whitehead, 89 Pa. 131; West v. Connell, 6 Montg. 196: Tate v. Reynolds, 8 W. &. S. 91; Greider’s App., 5 Pa. 422; Kiester v. Miller, 25 Pa. 481; Coe v. Hutton, 1 S. & R. 398 ; Whitehill v. Wilson, 3 P. & W. 405; Wilheim v. Caul, 2 W. & S. 26.

      November 19, 1906:

      Henry A. Hoefler, with him Joseph Ball, for appellee,
    cited: Greider’s App., 5 Pa. 422; Lipper v. Bouvé, 6 Pa. Superior Ct. 452; Breuckmann v. Twibill, 89 Pa. 58 ; Snyder v. Middleton, 4 Phila. 343; Auer v. Penn, 99 Pa. 370; Gardiner v. Bair, 10 Pa. Superior Ct. 74; Hastings v. Burchfield, 28 Pa. Superior Ct. 309.
   Opinion by

Porter, J.,

The statement of the plaintiff averred that the defendant went into possession of a dwelling house under the terms of a written lease, a copy of which was to the statement attached, for a term of seventeen months expiring March 31,1905, which lease contained a provision that either party might determine the lease at the end of said term, by giving the other notice thereof at least thirty days prior thereto, but in default of such notice the lease should continue upon the same terms and conditions for a further period of one year and so on from year to year, unless or until terminated by either party giving the required notice thirty days prior to the expiration of the then current term. The statement further averred that the defendant continued in possession of the premises after the expiration of said term, on April 1, 1905, without having given any notice of his intention to determine the tenancy, prior to the end of the original term, and so became a tenant for an additional year, which would expire on March 31, 1906 ; and that the defendant, on September 31, 1905, vacated the premises, which could not be rented and remained idle during the remainder of the term. The defendant failed to pay the rent accruing after September 31, 1905, and to recover the amount thereof this action was brought.

The defendant filed an affidavit of defense admitting the execution of the lease and the occupancy of the premises until September 31, 1905, but averred that, upon February 4, 1905, he wrote to the plaintiff as follows :

“ February 4, 1905.
“Mr. B. Snyder, agent
“ Holmesburg, Pa.
“ Dear Sir:—
“ My lease on No. 7827 Walker St. expires April 1, 1905. I hereby notify you that I do not wish to renew this lease, but if satisfactory to you, I will rent from month, to month, notifying you thirty days .prior to my wishing to vacate said property.
“ Yours very truly,
“ Thomas Henry, Jr.”

The affidavit then proceeds to ‘aver “ That several weeks after having written and mailed the above mentioned letter the defendant met the plaintiff, Snyder, on a street-car in the city of Philadelphia, at which time he asked the plaintiff why he did not receive a reply to the above mentioned letter; whereupon, the plaintiff replied, ‘Did you write me?’ and after some further conversation, admitted that he remembered the letter, and that he would look it up and that ‘ it would be all right; ’ ” that the plaintiff never sent the defendant any further communication upon the matter, and accepted the rent up to October 1,1905; that the defendant on August 2,1905, mailed a letter to the plaintiff notifying the latter that he intended to vacate the property on September 31,1905, that plaintiff replied to this communication by letter informing the defendant that his lease would not expire until April 1,1906. The affidavit then proceeds to aver that: “ The defendant alleges and expects to be able to prove that the last mentioned letter is the only communication which he had from the plaintiff after the above mentioned conversation, at which the plaintiff accepted the proposal of defendant’s letter dated February 4, 1905, and acknowledged by plaintiff to have been received by him, during the above mentioned street-car conversation; ” and that at the time the defendant removed from the premises, on October 1, 1905, the plaintiff accepted the keys, and immediately took possession thereof and made numerous repairs thereto.

When the defendant held over he became bound for an additional term of one year, according to the covenants of the lease under which he went into possession ; “ the actual continuance of such occupation is the best and most conclusive evidence of the intention to continue : ” Lipper v. Bouvé, 6 Pa. Superior Ct. 452. The mere fact that he sent a written notice to the plaintiff that he did not wish to renew the lease would not avail to relieve him from becoming bound for an additional year, under the covenants of the lease, if he continued, notwithstanding the notice, to occupy the premises after the end of the term, and to pay the rent, according to the terms of the original lease. The defendant having occupied the premises for several months of the additional year and paid the rent at the dates and in the amounts required by the original lease, could only escape payment of the rent for the balance of the term by showing that a new agreement had been made which superseded the terms of the lease. The only suggestion of an assertion, in the affidavit of defense, that the plaintiff had agreed to anything in the matter, is in the account of what the defendant calls the “ street-car conversation.” The defendant undertook, in his affidavit, to state the substance of that conversation and it was incumbent upon him to specifically assert the covenants mutually agreed upon. The affidavit does not specifically set forth that the plaintiff agreed to anything which could operate to modify the terms of the written lease. All that the third paragraph of the affidavit of defense can fairly be held to assert is that the defendant inquired of the plaintiff why he had not replied to the letter of February 4 ; that the plaintiff replied “ Did you write me ? ” and after some conversation, admitted that he remembered the letter, and said that he would look it up and that “ it would be all right.” This involved no covenant or agreement on the part of the plaintiff; it could only be fairly construed as an admission that the plaintiff had received the letter and that he would accept it as notice from the defendant, under the provisions of the lease, of the intention of the defendant to vacate the premises at the end of the original term. If in what the defendant is pleased to refer to as “ some conversation,” which occurred before the plaintiff admitted that he remembered receiving the letter, any agreement was made which bound the parties as to the character of the tenancy after April 1,1905, the defendant should not only have stated that fact, but he ought to have specifically averred the covenants of that agreement. The averment of the sixth paragraph of the affidavit of defense that the letter of September 4, was “ the only communication which he had from the plaintiff after the above mentioned conversation, ,.at which the plaintiff accepted the proposal of defendant’s letter dated February 4, 1905, and acknowledged by plaintiff to have been received by him, during the above mentionecl street-car conversation; ” is not a sufficient averment that the plaintiff had agreed to lease the premises to the defendant as a tenant by the month. The defendant had previously undertaken to state what the conversation was, and the words, in the sixth paragraph, “ at which the plaintiff accepted the proposal of defendant’s letter,” can only fairly be construed as used for the purpose of identifying the above mentioned conversation ” with which they stand in immediate connection ; they amount to nothing more than the defendant’s interpretation of a conversation the words of which he had set forth in the third paragraph of his affidavit, and the interpretation is one which the language will not bear.

“ Nothing is better settled in Pennsylvania than that a tenant for years cannot relieve himself from liability under his covenant to pay rent by vacating the demised premises during the term, and sending the key to his landlord:” Auer v. Penn, 99 Pa. 370; Gardiner v. Bair, 10 Pa. Superior Ct. 74; Hastings v. Burchfield, 28 Pa. Superior Ct. 309. The fact that the landlord, when a tenant has abandoned the property and left it vacant, takes possession and repairs the house, does not discharge the tenant from his covenant to pay rent: Breuckmann v. Twibill, 89 Pa. 58; Snyder v. Middleton, 4 Philadelphia, 343.

The judgment is affirmed.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Felin v. Conway.

      Mechanic’s lien — Bankruptcy—Judgment—Opening judgment.

    Where a contractor is adjudged a bankrupt, and the subcontractor files a mechanic’s lien against the owner and contractor, upon which judgment is entered against the contractor by default, the judgment is not to be opened because of the existing adjudication of bankruptcy, or because of the allegation that the effect of the judgment would give the subcontractor a preference over other creditors of the bankrupt.
    Argued Oct. 16, 1906.
    Appeal, No. 37, Oct. T., 1906, by William Y. Tripple, Trustee in bankruptcy of tbe Estate of George C. Dietrich, from order of C. P. No. 2, Phila. Co., June T., 1905, No. 516, M. L. D., discharging rule to open judgment in case of Ohaiies F. Felin, William L. Ludascher and Amos Y. Lesher, trading as Charles F. Felin and Company, v. James G. Conway, Owner, and George C. Dietrich, Contractor.
    November 19, 1906 :
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order discharging rule to open judgment.

      Joseph Hill Brinton, for appellant.

      Wayne P. Rambo, with him Ormond Rambo, for appellee.
   Opinion by

Beaver, J.,

Plaintiffs filed a mechanic’s lien against a certain building, and the leasehold estate of Conway, the owner, in a lot of ground upon which the building. was erected. The materials for which the lien was filed were furnished .to Dietrich, the contractor, under whom the plaintiffs were subcontractors.

In endeavoring to enforce their lien, the plaintiffs issued a scire facias, summoning Conway, owner, and Dietrich, contractor, as defendants. The owner filed an affidavit of defense. The contractor failed to do so and judgment was taken against him for want of an affidavit of defense, in pursuance of the provisions of section 84 of the Act of June 4, 1901, P. L. 431.

Dietrich, the contractor, was adjudged a bankrupt and his trustee presented a petition to open the judgment against Mm, being substituted in his stead as defendant. The petition admits the indebtedness of Dietrich to the plaintiffs for the building materials included in the lien; it alleges the bankruptcy of Dietrich, the filing of the lien by the plaintiffs, the entry of the judgment for want of a sufficient affidavit of defense, the indebtedness of Conway to Dietrich in an amount equal to the amount of the plaintiffs’ claim, and alleges the entry of the judgment in contravention of the act of Congress relating to bankruptcy, and that, in case judgment should be secured against the owner, the money due from Conway, the owner, would be paid to the plaintiffs “ to the detriment of the general creditors of the said bankrupt.”

Testimony was taken, and the facts, as alleged in the petition, were proved.

We fail to see how these facts constituted ground for an appeal to the equitable powers of the court, for let it be said again : “ The application to open a judgment is essentially an equity proceeding; the relief demanded is in equity, and the application must make out a case which would justify a chancellor in entering a decree; it is his duty to satisfy the conscience of the judge, who sits as a chancellor, that, oii the whole case, not on his ex parte presentation, the judgment should be opened; the proceeding cannot be removed from the equitable jurisdiction of the common pleas by the contention that it is based purely on a legal ground: ” 10 P. & L. Dig. of Decisions, 16,084.

The indebtedness of Dietrich to the plaintiff is admitted. Whether the lien be good against the owner on technical grounds is no concern of the contractor or of his trustee. If good, the owner must pay, if the estate against which the lien is filed is sufficient, whether he owes the contractor or not. “If the owner pays any judgment finally recovered on the claim, the claimant shall, upon payment of costs, mark the personal judgment or judgments against the contractor to the use of the owner, and shall transfer to the latter any note or other collateral security he may have for his claim : ” Sec. 35, Act of June 4, 1901, P. L. 431.

Whether or not, in the event of a judgment against him and the payment of the said judgment to the plaintiffs, the owner can enforce this judgment, as against other creditors of Dietrich, the contractor, in the final adjudication of the bankrupt’s estate, is a question with which we are not now concerned. We assume that he will stand in no better relation to the estate of the bankrupt than the plaintiffs and we cannot see that the judgment against a contractor in a mechanic’s lien, which is not a lien upon his individual estate, can give the plaintiff any better standing, as a claim against a bankrupt’s estate than if no such judgment had been obtained.

We are in entire ignorance of the grounds upon which the court below discharged the rule to show cause why the judgment should not be opened, inasmuch.as no opinion was filed. Inasmuch, however, as no good grounds for opening the judgment were alleged or shown, we have no difficulty in reaching the conclusion that the court below committed no error.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Rice, P. J.,

text:
    De Silver’s Estate.

      Evidence — Witness—Competency of witness — Party dead.

    Where a party is called, to testify in support of her claim against a decedent’s estate, and objection is made to her competency, and her counsel examines her as to matters occurring both before and after the death of the decedent, in which examination the auditing judge joins, although reserving the right to pass upon the questions arising upon the objection, the fact that the adverse party cross-examines the witness as to matters occurring in the lifetime of the decedent, cannot be regarded as a waiver of the objection to which her entire testimony is taken.
    Argued Oct. 17, 1906.
    Appeal, No. 153, Oct. T., 1906, by Mary A. Wade, from decree of O. C. Phila. Co., July T., 1905, No. 231, dismissing exceptions to adjudication in Estate of Emily B. De Silver, deceased.
    Before Bice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    The opinion of the Superior Court states the case.

      JError assigned was in dismissing exceptions to adjudication.

      William I. Stanton, for appellant.
    — The appellant was rendered competent to testify as to facts occurring subsequent to decedent’s death by reason of her cross-examination: Shadle’s Estate, 30 Pa. Superior Ct. 151; Robinson v. Buck, 71 Pa. 386; Hood v. Prudential Ins. Co., 22 Pa. Superior Ct. 244; Laubach v. Laubach, 73 Pa. 387.
    November 19, 1906 :

      Francis Jiawle, with him Fdward A. Waters, for appellee.
   Opinion by

Rice, P. J.,

The claimant in the court below, the appellant here, was not a competent witness in her own behalf in this proceeding as to matters occurring prior to the death of the decedent, but was competent to testify as to matters occurring afterwards. Therefore the learned auditing judge, when he said “ the testimony of the claimant is accordingly disregarded,” was in technical error, if by the foregoing remark her entire testimony was intended. Looking at the context, however, we are warranted in concluding that he had in mind simply her testimony as to matters occurring prior to the death of the decedent, for in the opening of the discussion of the question he stated expressly that she was a competent witness to testify as to any occurrences since the death of the testatrix.”

The ground upon which it is argued that she was a comper tent witness as to matters occurring before the death is, that she was cross-examined to such matters. It is to be noticed, however, that she was not called for cross-examination under the statute, as was the case in Shadle’s Estate, 30 Pa. Superior Ct. 151, upon which the counsel for the appellant relies. But even though it was not expressly stated that she was called as if under cross-examination under the statute, yet if the adverse party under the guise of cross-examination went beyond the legitimate scope thereof, and required her to testify as to matters occurring before the decedent’s death, concerning which she had not been examined in chief, the authorities show that ordinarily this would render her competent to testify in her own behalf as to any relevant matter. But this is not such a case. When she was called to testify in support of her claim that the jewelry in question was given to her by the decedent, objection was made to her competency, whereupon her counsel stated that he did not propose to ask her as to anything that took place with the decedent. Her testimony was then taken subject, however, to the objection to her competency, and this appears affirmatively in the official record of the proceedings. But her counsel did not confine the examination of her to matters occurring after the death of the testatrix, but went into matters occurring before, and the auditing judge examined her still more fully as to such matters. This action of the claimant naturally led to cross-examination upon the same matters. Under the circumstances, the course of the adverse party in thus cross-examining her cannot, with fairness, be regarded as' a waiver of the objection subject to which her entire testimony was taken; nor does it bring the case within the principle of the common-law rule that a party calling and examining generally an incompetent witness, and having the benefit of his testimony cannot object to his competency when called by the other side as to other relevant matters. The case of Robinson v. Buck, 71 Pa. 386, upon which the appellant’s counsel relies, is not in conflict with the foregoing conclusion. There, there was no reservation of the question of competency, and yet it was said by SHARSWOOd, J., that if the testimony which the witness gave after his admission was such as he was incompetent to give, it should have been specially objected to, “ or the judge afterwards asked to direct the jury to disregard it.” Here, as we have seen, the auditing judge had expressly reserved the right to pass upon the questions legitimately arising under the objection when he came to a final decision of the case, and we think it sufficiently clear that both parties must have understood that the testimony was taken subject to this reservation. We therefore conclude that the auditing judge and the court were fully warranted in disregarding the testimony of the- claimant as to matters occurring before the death of the decedent. We remark in addition that it does not appear that there was any request for a reconsideration or rehearing of the case based upon the ground of surprise.

The incompetent testimony of the claimant being excluded there was no error in the conclusion that she had not established a title to the property in question.

All of the assignments of error are overruled, the decree is affirmed, and appeal dismissed at the costs of appellant.


author: Poetee, J.,

text:
    Tabor Manufacturing Company v. Lovell, Appellant.
    November 19, 1906 :

      Practice, C. P. — Affidavit of defense — Promissory note — Guaranty.
    In an action upon a promissory note given in pursuance of a contract of guaranty, an affidavit of defense setting forth a complicated state of facts, and various written and oral contracts, was held, under the circumstances stated, sufficiently to allege satisfaction in part of the note sued upon.
    Argued Oct. T., 1906.
    Appeal, No. 160, Oct. T., 1906, by defendant, from order of C. P. No. 4, Phila. Co., March T., 1906, No. 3,480, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Tabor Manufacturing Company v. Clifford S. Lovell.-
    Before Rice, P. J., Poe-tee, PIebdeesob, Moeeisob, Oelady, Head and BeaYEE, JJ.
    Reversed.
    Assumpsit on a promissory note.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

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

      Edward Austin Waters, for appellant.

      M. Hampton Todd, for appellee.
   OÍIBIOB BY

Poetee, J.,

The plaintiff’s statement alleged an indebtedness of the defendant upon a promissory note dated October 2, 1905, for $962.01, and that the defendant was entitled to credit on said note for certain amounts specified, which aggregated $430.43, but did not state how the several payments had been made. The last item of credit,'allowed defendant in the statement, was $377.87, which was admitted to have been paid on December 5, 1905.

The affidavit of defense admitted the making of the note and that the credits allowed thereon in the statement were correct as far as they went, but averred that defendant was entitled to an additional credit of §515.95, of the date February 28, 1906. The only question is whether the affidavit of defense states facts which, if true, would entitle the defendant to this additional credit. The affidavit of defense and the various contracts attached thereto as exhibits sufficiently aver that the indebtedness for which the note was given arose upon a contract of guaranty, dated January 31, 1905, under which the defendant guaranteed to pay one-half of any portion of the account of W. H. Storm & Co., for certain castings sold by the plaintiff to said W. H. Storm & Co., at the price of $2,000, which remained unpaid at the expiration of ninety days from the date of invoice, the defendant being entitled, under the terms of the contract of guaranty, after he had paid any portion of said account, to be repaid from current payments made by Storm & Co., in the proportion which the amount paid by him bore to the whole account. The ninety days from the date of invoice expired on July 17, 1905. Storm & Co. became involved and the machinery which the plaintiff had sold to them was by them delivered in mortgage to the Mechanics’ Iron Foundry Company, of Boston. Storm & Co. were also indebted to George R. Allen, who had brought suit and summoned the Mechanics’ Iron Foundry Company as trustee. The plaintiff company, the Mechanics’ Iron Foundry Company, and George R. Allen, on July 27, 1905, entered into a written agreement, to which this defendant and Walter H. Storm & Co., assented in writing, under the provisions of which it was agreed that all the security held under the mortgage to the Mechanics’ Iron Foundry Company, and under the attachments made or to be made by George R. Allen, or the Tabor Manufacturing Company, should be held for the benefit of all three of said parties, in proportion to the amount of their claims; and the Mechanics’ Iron Foundry Company, agreed to operate the plant and pay a certain proportion of the profits to George R. Allen, and a certain proportion to the Tabor Manufacturing Company, in liquidation of their respective claims against Storm & Co., and the plant was subsequently operated under this arrangement. When, on October 2, 1905, the defendant gave his note to the plaintiff company it was for the amount of the one-lialf of the indebtedness of Storm & Co. which he had guaranteed and which then remained unpaid; there was at the same time an oral agreement entered into between the parties, which was on October 19, 1905, reduced to writing and duly executed by the parties. Under this written agreement between the plaintiff company and the defendant, the former covenanted to credit and indorse upon the note in suit one-half of any and all amounts which it received from the Mechanics’ Iron Foundry Company, under the provisions of the agreement of July 27, 1905, and, also, that it would “ with like effect indorse on the back of said note, one-half the amount of any other, and all other payments whether principal or interest, which had been or which shall be received on account of the aforesaid debt .... the face value of the note to be reduced by the amount of the payments, as of the date when they had been or shall be made.” The credits allowed in plaintiff’s statement were for payments made, in liquidation of the claim of the plaintiff against Storm & Co., by the Mechanics’ Iron Foundry Company, under the provisions of the agreement of July 27, 1905. The plaintiff company, George R. Allen, and the Mechanics’ Iron Foundry Company, on December 5, 1905, entered into a new written contract under the provisions of which it' was agreed that the property of Storm & Co. should be sold upon the mortgage held by the Mechanics Iron Foundry Company for the- use of all the contracting parties, and that the Mechanics’ Iron Foundry Company sliould bid at the foreclosure sale of said property, the price to be left at the discretion of said foundry company; and in case the foundry company purchased the property it would continue to operate the plant and after deducting, as the cost of manufacture, certain specified rates per pound for castings from the money actually received from time to time upon the sale of said castings, the Mechanics’ Iron Foundry Company would pay an amount equal to one-third of the balance to the said George R. Allen, and an amount equal to one-third the balance to the Tabor Manufacturing Company, in liquidation of the indebtedness now due from the said Storm & Co., and in settlement of the interest of George R. Allen, and the said Tabor Manufacturing Company, in the property covered by said mortgage, until the said George R. Allen, and the said Tabor Mannfacturing Company shall be paid in full, at which time all rights of George E. Allen and the Tabor Manufacturing Company in the property covered by the said mortgage should cease. The Mechanics’ Iron Foundry Company became the purchaser of the property at the foreclosure sale, in accordance with the terms of the agreement of December 5, 1905. The plaintiff company, on February 19,1906, entered into an agreement, partly written and partly verbal, under the terms of which it released and conveyed to the Mechanics’ Iron Foundry Company all the interest in the property which the latter company had purchased as the property of Storm & Co. at the foreclosure sale, and released the foundry company from all further liability and accountability under the contracts of July 27, 1905, and December 5,1905, and as the consideration for said release the foundry company agreed to pay and, on February 23, 1906, did pay to the plaintiff company in cash the sum of $1,031.91.

These allegations of the affidavit of defense must, for the purposes of this case, be assumed to be true, and being so it is clear that the interest which the plaintiff company had in the property which it released to the foundry company was the right to have paid out of that property the amount of the claim which the plaintiff company held against Storm & Co. The only right or interest which the plaintiff company had in that property was founded in the indebtedness of Storm & Co.; any amounts which it might have, become entitled to receive from the use of that property was to be applied to the liquidation of the indebtedness of Storm & Co., and the consideration which it received for the cancellation of that right must be applied in the same manner. As between the plaintiff company and the defendant the $1,031.91 which the former received from the Mechanics’ Iron Foundry Company as the consideration for the release of its interest in and claim upon the property held by the foundry company was, under the provisions of the agreement of October 19, 1905, a payment upon the debt upon which the liability of the defendant, as a guarantor, was originally founded, and the defendant was entitled to have one-half of the amount so paid credited upon the note in suit.

The learned counsel for the appellee states in his brief that the credit of $377. 37 allowed upon the note in the plaintiff’s statement was the one-half of the plaintiff’s share of the proceeds of the property at the foreclosure sale, but that fact does not appear from a careful examination of the statement and the affidavit of defense. It may be that the defendant is not entitled to both the credit allowed in the statement and the credit for one-half of the $1,031.91 subsequently received by the plaintiff from the foundry company, but upon the case as now presented he is clearly entitled to credit for the item last mentioned. Whether he is entitled to credit for both items can be determined at the trial.

■ The judgment is reversed and a procedendo awarded.


text:
    Garman v. Gumbiner, Appellant.

      Affidavit of defense — Promissory notes — Failure of consideration— Notice.

    In an action on a promissory note given for a balance alleged to be due for work performed, an affidavit of defense is sufficient which avers that the payees had failed to complete the work according to the contract, and that the plaintiff, the indorsee of the note, took it with full knowledge of the failure of the consideration.
    Argued Oct. 11, 1906.
    Appeal, No. 20, Oct. T., 1906, by defendants, from order of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 3,716, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Adrian St. Gar-man v. Max Gumbiner.
    Before Rice, P. J., Porter, Henderson, Morrison, Oready, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a promissory note.
    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 for want of a sufficient affidavit of defense.

      William T. Connor, with him John R. K. Scott, for appellant.

      George P. Rich, for appellee.

      December 10, 1906:
   Opinion by

Porter, J.,

The amended statement filed by the plaintiff, stripped of immaterial matters, sufficiently averred that Robert Tarlo & Son did certain work for the defendant, who accepted the same and paid a part of the consideration therefor in cash and upon account of the balance gave to Tarlo & Son his promissory note, payable to their order, for $210; that Tarlo & Son, for a valuable consideration, indorsed and delivered said note to the plaintiff, who took the same without notice of any failure or want of consideration, either in whole or in part, as between Tarlo & Son and the defendant, that when said note became due on August 16, 1905, the plaintiff presented the same to the defendant for payment; that the defendant thereupon paid the plaintiff on account of said note the sum of $100, and made a new note of that date for $110 also to the order of said Tarlo & Son, which they then and there indorsed and delivered to the plaintiff; and that when the latter note became due it was duly presented for payment to the defendant who failed to pay the same.

The affidavit of defense states, in substance, that Tarlo & Son had not done the work for the defendant according to the terms of the contract between them; that the defendant had made payments as averred in the statement .upon account of said work and had given the note of June 17, 1905, upon account of the balance of the contract price as alleged in the statement ; that at the time said note was given the work had not been completed; that Tarlo & Son had failed to complete the work according to the contract, which because of said failure was worth less than $470, instead of $585, the contract price, and that the consideration for the note now in suit had failed.

The affidavit of defense, further, denies that the plaintiff took the note of June 17, 1905, as well as the subsequent renewal note, on which this suit is brought, without notice of the failure of the consideration, as between Tarlo & Son, the payees, and the defendant. Assuming the statements of the affidavit to be true, the defendant has a complete defense to the note as against the payees, Tarlo & Son, and the appellee took the note with knowledge of that fact. These facts, if established by evidence, constitute a defense as against the note in the hands of the appellee, and the court below fell into error in making absolute the rule for judgment for want of a sufficient affidavit of defense.

The judgment is reversed and a procedendo awarded.


text:
    Phœnix Press v. MacKenzie, Appellant.

      Appeals — Warrant of arrest — Evidence—Record—Revieio.
    An appellate court has no power to review an order of the common pleas quashing a warrant of arrest issued under the Act of July 12,1842, P. L. 339, where it appears that the order of the lower court was based upon the conclusion reached from an examination of the evidence, that the debt for which the warrant was issued was not fraudulently contracted. In such a case the evidence is not before the appellate court, and a reversal may be had only for errors manifest upon the face of the record.
    Argued Oct. 15, 1906.
    Appeal, No. 113, Oct. T., 1906, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 4,854, quashing a warrant of arrest in case of The Phoenix Press to use of Central Saving & Trust Company v. Robert H. M. MacKenzie.
    Before Rice, P. J., Pobteb, Hendebsok, Mobbisok, Oblady and Beaveb, JJ.
    Affirmed.
    Warrant of arrest under act of 1842.
    The opinion of the Superior Court states the case.

      Error assigned was order quashing the warrant of arrest and discharging defendant.

      Thomas D. Einletter, with him Charles L. Smyth, for appellant.

      C. Wilfred Conard, with him Alvin J. Smallwood and Allen C. Middleton, for appellee.-
    — The Superior Court has no jurisdiction to review the order made in the case : Hart v. Cooper, 129 Pa. 297; Grieb v. Kuttner, 135 Pa. 281 ; Shoe Co. v. Saupp, 7 Pa. Superior Ct. 480; Miller v. Summers, 13 Pa. Superior Ct. 127; Gosline v. Place, 32 Pa. 520 ; Berger v. Smull, 39 Pa. 302; First Nat. Bank v. Crosby, 179 Pa. 63 ; Holland v. White, 120 Pa. 228; Wetherald v. Shupe, 109 Pa. 389; Slingluff v. Sisler, 193 Pa. 264; Bain v. Funk, 61 Pa. 185.
    December 10, 1906 :
   Opinion by

Rice, P. J.,

This is an appeal by the plaintiff from the order of a judge of the common pleas quashing a warrant of arrest issued under the act of 1842, and discharging the defendant. This order was based, not on any alleged defect, irregularity or informality in the affidavit or warrant, but on the judge’s conclusion from the evidence adduced at the hearing that the allegation upon which the warrant of arrest was obtained, namely, that the debt was fraudulently contracted by the defendant, was not sustained. The greater portion of the argument is directed to an attempt to show that this conclusion was not warranted by the evidence, and that in the consideration of the case the learned judge did not give due weight to certain facts. The manner in which the case was presented, both in the oral and printed arguments, makes it proper to repeat what we said in Hapgood Shoe Co. v. Saupp, 7 Pa. Superior Ct. 480, as to our revisory jurisdiction: “The practice in such cases, as laid down in Gosline v. Place, 32 Pa. 520, has been followed in subsequent cases : Berger v. Smull, 39 Pa. 302; Hart v. Cooper, 129 Pa. 297; Grieb v. Kuttner, 135 Pa. 281. Nor has the revisory jurisdiction of the appellate court been enlarged by the Act of May 9, 1889, P. L. 158, which provides that all appellate proceedings theretofore taken lay writ of error, appeal or certiorari, should thereafter be taken in a proceeding called an appeal. We are to consider the case as if the proceedings had been brought before us by certiorari. We are not to review the judge’s opinion on the proofs, because this writ brings up nothing but what appears on the record, and the evidence taken on the hearing is not part of the record, and because in addition, it is not the province of the reviewing court to pass upon the credibility of the witnesses or to decide as to the weight of the testimony, even though it be sent up with the record and printed. Our revisory power extends no further in such cases than to see that the judge has kept within the limits of his jurisdiction, and has exercised it with regularity, according to law.” See also Miller v. Summers, 13 Pa. Superior Ct. 127. It was clearly shown in Grieb v. Kuttner, 135 Pa. 281, that such order is reviewable, within the limits which restricted review in cases brought up by a certiorari prior to the act of 1889, and for error of law appearing on the record may be reversed. But in the same case the rule as we have stated it was distinctly recognized throughout the whole opinion of the present chief justice, and particularly in the remark, “ If the judge had heard the evidence and discharged the defendant, his action would not have been reviewable.” This appeal cannot be brought within the principle upon which the order in the case last cited was reversed, and for the reasons above suggested the order must be affirmed.

The order is affirmed, the appellant to pay the costs.


author: Per Curiam,

text:
    Gibbons v. Cochran.

      Municipal lien — Mortgage—Execution—Distribution—Priority of liens —Act of June 4, 1901, P. L. 364.
    Where property is sold in 1905, under a mortgage executed in 1890, the proceeds of the sale should be applied to the mortgage in preference to taxes and municipal hens which had accrued after the passage of the Act of June 4, 1901, P. L. 364.
    Submitted Nov. 9, 1906.
    Appeals, Nos. 226 and 229, Oct. Term, 1906, by the City of Chester and School District of the City of Chester, from orders of C. P. Del. Co., March T., 1905, No. 108, distributing proceeds of sheriff’s sale in case of Lydia Gibbons et al. v. I. Engle Cochran, Jr., et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Distribution of fund raised by sheriff’s sale.
    From the record it appeared that the sale was made on June 24, 1905, under a mortgage dated January 16, 1890. There was a sewer lien and tax liens which had accrued ' against the property subsequent to the Act of June 4, 1901-, P. L. 364. The court awarded the fund to the mortgagee in preference to the tax and municipal liens.
    December 10, 1906:

      Eitot assigned was the order of the court.

      George M. Booth and A. A. Qoohran, for appellants.

      Jos. II. Hinlcson, for appellee.
   Per Curiam,

The question raised upon these appeals has been considered and passed upon in Martin v. Greenwood, 27 Pa. Superior Ct. 245, Caner v. Bergner, 27 Pa. Superior Ct. 220, Oil City Building & Loan Association v. Shanfelter, 29 Pa. Superior Ct. 251, and as we remarked in the recent cases of Haspel v. O’Brien and Haspel v. Robinson, wherein we reconsidered the question, no useful purpose would be served by a further discussion of it by us.

The decree of distribution is affirmed, the costs of each of the above-mentioned appeals to be paid by the appellant therein.


author: Pee Cueiam,

text:
    Tobin v. Tobin., Appellant.

      Appeals — Interlocutory order — Divorce—Subpoena.
    No appeal lies from an order discharging a rule to show cause why-service of a subpoena in divorce should not be set aside. Such order is interlocutory.
    Argued Nov. 23, 1906.
    Appeal, No. 31, Oct. T., 1906, by defendant, from order of C. P. Del. Co., discharging rule to set aside subpoena in divorce in case of Mary N. Tobin v. Francis Tracy Tobin.
    Before Rice, P. J., Porter, Henderson, Morrison, Ort.ady and Head, JJ.
    Appeal quashed.
    Rule to set aside service of subpoena in divorce.

      Error assigned was order discharging rule to set aside service of subpoena.

      December 10, 1906 :

      Francis Tracy Tobin, p. p.

      O. B. Dickinson, with him A. F. Peterson, for appellee.
   Pee Cueiam,

This is an appeal from an order discharging a rule to show cause why service of the subpoena in divorce should not be set aside. Such order is clearly interlocutory, and not the subject of an independent appeal: Lycoming Fire Insurance Co. v. Storrs, 97 Pa. 354; Phila. & Reading R. R. Co. v. Snowdon, 161 Pa. 201; Platt v. Belsena Coal Mining Co., 191 Pa. 215. Therefore the motion to quash the appeal must be sustained.

Appeal quashed, the costs to be paid by the appellant.


author: Henderson, J.,

text:
    Todd’s Estate.

      Will — Legacies—Charge on land — Blending of real and personal estate —Intention.

    Where a testator blends his real and personal estate in a residuary-clause, the real estate becomes bound for the payment of legacies. The implication of the testator's intention so to charge it arises from the fact that the residue and remainder can only be arrived at when the, debts and legacies have been paid.
    Testator after providing for the payment of his debts, bequeathed to his wife a stated amount per week to be paid to her weeldy out of his estate during her natural life, and to his son a stated smaller sum per week to be paid to him weekly out of his estate during the son’s natural life. He also bequeathed to his wife the rents, issues and profits to be derived from a certain house and lot, with the further provision that in case of the death of his wife the house should be a home for his son during the latter’s natural life, free and clear of any taxes, lien or expenses so long as he might choose to live therein. The executor was directed to pay the taxes, water rents and cost of keeping the house in good order out of money derived from the residuary estate. “All the rest, residue and remainder” of the estate, real, personal and mixed, was devised and bequeathed to the person who was appointed executor. The personal estate was insufficient to pay the legacies to the widow and son. Held, that the real estate was charged with these legacies.
    Argued Oct. 8, 1906.
    Appeal, No. 240, Oct. T., 1905, by Annie L. Feigham, from decree of O. C. Phila. Co., Oct. T., 1900, No. 306, charging legacies on real estate in Estate of James Todd, deceased.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, PIead and Beaver, JJ.
    Affirmed.
    Petition for a decree to charge real estate with the payment of legacies. Before Ashman, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the decree charging the real estate of the decedent with $6.00 a week in favor of Arthur Todd.

      J. H. Brinton, for appellant.
    — Primarily, the personal estate is liable for the payment of debts and legacies, and where the real estate is specifically devised, it cannot be resorted to for the payment of legacies in case of the deficiency of personal estate: Bennett’s Estate, 148 Pa. 139; Haworth’s App., 105 Pa. 362.

      W. ff. Peace, for appellee.
    — Until the sums bequeathed to testator’s wife and son were fully paid, the residuary estate could not be ascertained. The testator must have had this thought in mind when he blended his real and personal estate in a residuary gift. He could not devise a residue of .his real estate, unless something were first paid out of it: Witman v. Norton, 6 Binney, 395; Gallagher’s Estate, 48 Pa. 121; Bennett’s Estate, 148 Pa. 139; Nicholas v. Postlethwaite, 2 Dallas, 131; Hassanclever v. Tucker, 2 Binney, 525 ; West Branch Bank v. Donaldson, 7 Watts and Sergeant, 407; Markley’s Estate, 148 Pa. 538 ; Sloan’s Appeal, 168 Pa. 422 ; Davis’s Appeal, 83 Pa. 348.
    When a testator provides that the beneficiary under his will shall have support and maintenance out of his estate, and the estate consists of land only, or of land and personal property plainly insufficient, to pay the legacy, then it becomes a charge on the land in whosoever hands it may be: Dickerman v. Eddinger, 168 Pa. 240; Linnard’s Estate, 24 W. N. C. 492; Monro’s Est., 9 Phila. 309; Davis’s App., 83 Pa. 348; Ripple v. Ripple, 1 Rawle, 386; English v. Harvey, 2 Rawle, 305; Wiltberger’s Estate, 24 W. N. C. 493 ; Cook v. Petty, 108 Pa. 138; West Branch Bank v. Donaldson, 7 Watts & Sergeant, 407.
    December 14, 1906:
   Opinion by

Henderson, J.,

After providing for the payment of his debts, the testator bequeathed to his wife $8.00 per week to be paid to her weekly out of his estate during her natural life, and to his son, Arthur, $6.00 per week to be paid to him weekly out of his estate during his natural life. He also bequeathed to his wife the rents, issues and profits to be derived from a certain house and lot, with the further provision that in case of the death of his wife the house should be a home for his son Arthur during his natural life, free and clear of any taxes, lien or expenses so long as he might choose to live therein. The executor was directed to pay the taxes, water rents and .cost of keeping the house in good order out of money derived from the residuary estate. “ All the rest, residue and remainder” of the estate, real, personal and mixed was devised and bequeathed to William Brown, who was also appointed executor. The personal estate was insufficient to pay the legacies to the widow and son, and the latter seeks to have his legacy charged upon the decedent’s real estate. In ascertaining whether a legacy is so chargeable the whole will should be taken into consideration, A charge may arise by implication from the terms of the will. The intent of the testator is the criterion by which the question is to be determined. It is a rule of law in this state, settled by a long line of cases, that where a testator blends his real and personal estate in a residuary clause, the real estate becomes bound for the payment of legacies, the implication of the testator’s intention so to charge it arising from the fact that the residue and remainder could only be arrived at when the debts and legacies had been paid : Hassanclever v. Tucker, 2 Binney, 525; Davis’s Appeal, 83 Pa. 348; Sloan’s Appeal, 168 Pa. 422. Applying this rule to the will under consideration the conclusion is irresistible that notwithstanding the lack of express words the testator intended the provision for his wife and son should be a charge on his real estate. Nothing was specifically devised to the residuary legatee — all he could take was what would remain after he had complied with the directions of the will by paying the expenses and the bequests to the testator’s wife and son. The testator’s circumstances, the amount of his property, the provision for payments to the wife "and son, which might continue for many years, and the direction that such payments be made by the executor, who was to receive any part of the estate which remained, manifest an intention to make the real estate responsible to the extent necessary to meet the provisions of the will for the appellee. Nor would the situation of the appellant be better if the personal estate had been sufficient to pay the debts and legacies; for unless it was so applied the legacies would remain a lien on the real estate: Cook v. Petty et al., 108 Pa. 138. It would be plainly inequitable to permit the residuary legatee, who is charged with administering, according to the will, to misappropriate the personal estate and then take the real estate discharged of the legacies. We do not interpret the provision of the will directing the payment of taxes, water rents, etc., to become due on the house out of the residuary estate to indicate an intention on the part- of the testator that the annuities to the wife and son should be paid from the personal estate. It was his evident purpose that the son should have a fixed income, not to be diminished by annual charges on the house in which he was to live. The intent was to put the burden of the maintenance of the house upon the residuary estate in aid of the son, not to benefit the residuary legatee by limiting the payment of the legacies to the personal estate.

The decree of the court below is well supported by authority, and is affirmed.


author: Moréis on, J., Rice, P. J.,

text:
    Goldstein v. Adams Express Company, Appellant.

      Carriers — Common carriers — Express companies — ■Loss of money — • Evidence — Charge.
    In an action against an express company to recover for the loss of a package of money, there was no evidence that the company contracted to ship the package on the first train. The defendant presented this point: “That inasmuch as the package of money did not go on the first train, it is not evidence of defendant’s negligence.” The court in affirming this point qualified the affirmance in such a way as practically to leave it to the jury to say whether there was negligence or not in failing to ship it by the first train. Held, that the defendant was entitled to an unqualified affirmance of the point, and that the judgment in favor of the plaintiff should be reversed.
    In the above case it appeared that the plaintiff signed a printed statement indorsed on the envelope that it was sealed with wax in his presence. This indorsement was not included in the printed terms and conditions on which the company agreed to carry the package, and to which the plaintiff agreed by acceptance of the bill of lading. The plaintiff was permitted to testify that the wax seals had not been placed on the envelope at the time the statement was signed, and the envelope was delivered to the defendant’s agent. The other oral testimony was such that the court could not declare it to be an admitted or undisputed fact that the contents of the package were in the same condition when it was received at the destination as when the seals were placed upon it at the place of shipment. Held, (1) that the plaintiff was not estopped by reason of his signing the certificate, from testifying that the seals were not on the envelope at the time he signed; (2) that the whole question was for the jury under appropriate instructions as to the weight to be given, in the first place to the plaintiff’s written statement indorsed upon the envelope, and in the second place to the appearance of the seals upon the envelopes at the time it was received at the destination.
    Argued May 2, 1905.
    Reargued May 9, 1906.
    Appeal, No. 239, April T., 1905, by defendant, from judgment of C. P. Cambria Co., March T., 1904, No. 424, on verdict for plaintiff in case of A. B. & H. S. Goldstein v. Adams Express Company.
    Before Rice, Porter, I-Ienderson, Morrison, Orlady, Head and Beaver, on reargument.
    Assumpsit for the loss of money from a package.
    O’Connor, P. J., charged as follows:
    In the issue you have been sworn to try, A. B. & H. S. Gold-stein seek to recover from the Adams Express Company the sum of $104, with interest from November 9, 1903. The ground upon which the plaintiffs seeks to recover, as stated in' the evidence, is that on November 9, 1903, the plaintiffs de; livered to the agent of the defendant company, at Portage, in this county, a package which they allege contained $1,100 in currency, commonly called paper money; that the Adams Express Company was paid for the delivery of this package to the First National Bank in Altoona, and that when the package was delivered to said First National Bank in Altoona it contained but $996, or $104 less than the amount originally placed in the hands of its said agent.
    ********
    The plaintiffs testify to the counting of the moneyone of them testified to the delivery of the package at Portage, and that at the time he delivered it to the agent of the express company it contained $1,100. You consider that testimony first, for the purpose of determining whether or not you believe, from the weight of the evidence in the case, that the plaintiffs, or one of them, delivered $1,100 to the agent of the Adams Express Company at Portage. If so, it was the duty of the Adams Express Company to deliver that package to the consignee in the condition in which it Avas delivered to them, or rather with its contents intact, unmolested, and not detracted from. That the package was delivered to the agent of the Adams Express Company is not questioned. That the same package was delivered to the First National Bank, in Altoona is not questioned, but the cashier or assistant cashier of the First National Bank of Altoona testified that when it was delivered it contained $104 less than $1,100. He says he called in a witness, after counting the money, who also counted the money and who found the package to contain only $996. The testimony in the case does not tend to show that when the package was delivered to Altoona it contained more than $996, but it does tend to show that the package, when delivered to Altoona, contained the same money that it contained when they received it; in other words, that the defendant company delivered the package intact, that it had not been tampered with.
    You must consider, then, whether or not you are satisfied, from the weight of the evidence in the case, that the package, when delivered to the Adams Express Company, contained $1,100. If you find that fact affirmatively, and you find that while in the custody of the Adams Express Company there Avere $104 extracted from the package, the company would be liable in this case. If you are not satisfied, by the weight of the evidence, that the package contained $1,100 when delivered, but only contained $996, then you need go no farther, but will render a verdict for the defendant.
    The question in this case is purely for you. You have heard all the testimony. Discover where the discrepancy of $104 has crept in. If you find, from the weight of the evidence, that the $104 .must have been taken out by some person after the package was delivered to the Adams Express Company and before it was delivered to the custody of the First National Bank in Altoona, then find for the plaintiffs for $104, with interest from November 9, 1903. If you are satisfied that $104 was not extracted from the package while it was in the custody of the Adams Express Company or its agents, then you would find for the defendant company.
    Counsel for the defendant company has asked us to specially charge you upon certain points:
    1. That inasmuch as the package of money did not go on the first train it is not evidence of defendant’s negligence. Ansiver: It is contended by counsel for the plaintiffs that the money should have gone on the first train and that it was mere carelessness that allowed it to remain in the office, and that that is likely where the loss occurred. We cannot say that this was carelessness or was not carelessness. There was no particular obligation on part of the Adams Express Company to ship the money on the first train; they could send it on the first, second or third train. The obligation resting on the Adams Express Company was to deliver the package with the contents intact, as they received it, to the First National Bank in Altoona, and with that explanation we affirm the point; that is, to the extent that there was no particular obligation on the company to ship the express money package on the first train. [1]
    2. That the defendant company cannot be held liable for the contents of the envelope if it was delivered in good order and the seals intact. Answer: The plaintiff in the case has testified that it was not sealed in his presence. If, before it was sealed, part of the money was extracted after it had been given into the custody of the agent at Portage, the company would be liable. If there is evidence of the seals being intact, which there is, and the envelope unmolested — you are not bound by the fact that the plaintiff denies that it was sealed in his presence — that would be at least strong evidence that the envelope had not been tampered with. The duty of the company was to deliver the envelope with the contents intact as received, and, as we said in the general charge, if the money was taken out while the package was in their custody they are liable for it and we cannot affirm the point as it is drawn, because of the testimony in the case. [2]
    3. That the burden is not on the defendant to show when or where the money was taken, if it was taken, if the envelope was delivered in the same condition as it was received from the consignor. Answer; If the company delivered the package intact as it received it from the consignor, nothing being extracted from it during the time it was in the company’s possession, the defendant would not be liable. With that explanation we affirm the point. [3]
    4. That the defendant company was in this case a bailee, and as such was required to give it due care, with all the usual and reasonable diligence and attention for its safe delivery, and to deliver it as it was received from the consignor. Answer: If there were nothing in the point but the last clause we would affirm it without any qualification. The company was a bailee and it was required to give due care, with all the usual and reasonable diligence and attention, and was required to deliver the package as received from the consignor, undoubtedly. We cannot affirm all that is in the point. We add that the company would be responsible for the loss of the $104 if that loss occurred while the package was in the possession of the company’s agents, and if you find that as a fact, from the weight of the evidence in the case, your verdict would be for the plaintiffs for $104, with interest from November 9, 1903. If you do not so find, your verdict should be for the defendant. It is purely a question for you. [4]
    5. Under all the evidence the verdict should be for the defendant company. Answer: We refuse to so charge you. You must determine the facts in the case, and, if you can, determine where the money was lost, and as you determine whether there was any money lost or whether it was a mistake on part of plaintiffs in counting the money they originally put into the envelope you will determine your verdict. [5]

      December 10, 1906 :
    Verdict and judgment for plaintiff for $109.40. Defendant appealed.

      Errors assigned were (1-5) above instructions, quoting them.

      R. W. Storey, for appellant.
    — An express company is not an insurer as to time, but it is the duty of the company to carry and deliver goods with reasonable promptness, and it is liable for any loss or damage occasioned by its failure to do so: 12 Am. & Eng. Ency. of Law (2d ed.), 548; Burke v. U. S. Express Co., 87 Ill. App. Ct. 505; American Express Co. v. Second Nat. Bank, 69 Pa. 394.
    We contend the court should have affirmed the first point without modification or qualification for the reason there was no contract that it should go on the first train, and secondly it was not delivered to the agent in time to prepare it and the accompanying waybills. The answer left it to the jury to say whether there was negligence or not.

      John E. Evans, with him J. W. Leech and Alvin Evans, for appellees.
    — It was the duty of the defendant to safely deliver the package, with its contents, to the First National Bank of Altoona. Having failed to do so the question of its responsibility and negligence arises under all the facts and circumstances of the case: Atwood v. Reliance Transportation Co., 9 Watts, 87; Laing v. Colder, 8 Pa. 479; Farnham v. Camden, etc., R. R. Co., 55 Pa. 53; American Express Co. v. Sands, 55 Pa. 140; Grogan v. Adams Express Co., 114 Pa. 523; Menner v. D. & H. Canal Co., 7 Pa. Superior Ct. 135; P. C. C. & St. L. Railway Co. v. Sheppard, 1 Am. Neg. Rep. 517; Pierce v. Southern Pacific Co., 1 Am. Neg. Rep. 211; American Express Co. v. Second Nat. Bank, 69 Pa. 394.
   Opinion by

Moréis on, J.,

The plaintiffs had conducted a general store at Portage for fourteen years, and it was their custom to send money to the banks in Altoona very frequently, sometimes once a week, by the defendant express company. To facilitate the transaction of the business the defendant furnished large manilla envelopes which were kept by the plaintiffs in their store, where they would count the money, place it in the envelope, and seal it with the mucilage lap and write the full address, with their consent to all the requirements of the contract as provided by the printed blanks. The plaintiffs would then bring the package to the office of the defendant company, where three wax seals would be placed thereon in the presence of the person delivering the package and a receipt given for the same. The form of the envelope used in the present controversy was: “Adams Express Company. Contents not counted by agent and envelope sealed with wax in my presence. Signed: H. S. Goldstein, Shipper. $1,100. From A. B. and H. S. Goldstein, Portage. For First National Bank, Altoona, Pa., November 9, 1903. To shipper: Agents of Adams Express Company are forbidden to count the contents or address this envelope and must stitch and seal with wax in presence of shipper.”

The testimony tended to show that on Saturday evening, November 7,1903, one of the plaintiffs counted $1,100, in paper money, putting the same in the envelope, the address of which is quoted above, and placed the envelope in the plaintiffs’ safe; that on Sunday both of the plaintiffs counted the money and found it to be $1,100, and it was then replaced in the safe. On Monday morning, November 9, H. S. Goldstein took the package to the express office where it was sealed, and he signed the following indorsement on the envelope: “ Contents not counted by agent and envelope sealed with wax in my presence.” The package was forwarded to the First National Bank, Altoona, Pa., and when opened it contained $996, there being a shortage of $104.

In this action of assumpsit to recover the $104, with interest, the above facts were in substance shown, without dispute, except that IT. S. Goldstein testified that he did not see the envelope sealed with wax. In this he is flatly contradicted by the written statement which he signed, and with which he had been familiar for many years, and by the testimony of the express agent, Hoover, who testifies that he did not count the money and that he sealed the package with three seals of wax in the presence of H. S. Goldstein.

The testimony of all the witnesses practically agrees that the . wax seals on the envelope, when received at Altoona, were intact, and that the money could not have been abstracted from the envelope in the condition in which it was found after the seals were placed thereon. Therefore, the pinch of the case was whether or not the money was in the package when H. S. Gold-stein delivered it at the express office on Monday morning. If the wax seals were placed upon it -in the presence of Goldstein, then it seems absolutely certain that the $104, was never in the envelope, or else it was abstracted before it was delivered to Hoover at the express office.

Under this condition of affairs, the only way the plaintiffs could get to the jury was on the testimony of PI. S. Goldstein to the effect that he did not see Ploover place the wax seals upon the envelope. This allowed the jury to infer that the money was abstracted after Hoover received the package and before he placed the seals thereon. Therefore, an important question in the case is the sufficiency of H. S. Goldstein’s testimony to carry this question to a jury over his own written certificate that it was “ sealed with wax in my presence,” and the positive.testimony of Hoover that he did seal it with wax in the presence of Goldstein.

This rule was evidently established by the express company to remove from its agents the temptation of counting and possibly of abstracting money from such packages. It is a reasonable rule and ought to be enforced in good faith. The plaintiffs had been shipping money by this company for many years and each time signed a certificate to this effect. Therefore, being familiar with the rule, a duty rested upon them to comply with it.

At the trial the defendant’s counsel presented five points and the five assignments of errror are based upon these points and their answers. The points are: “1. That inasmuch as the package of money did not go on the first train it is not evidence of the defendant’s negligence. 2. The defendant company cannot be held liable for the contents of the envelope if it was delivered in good order and the seals intact. 8. That the burden .is not on the defendant to show when or where the money was taken, if it was taken, if fhe envelope was delivered in the same condition as it was received from the consignor. 4. That the defendant company was, in this case, a bailee and as such was required to give it due care, with all the usual and reasonable diligence and attention for its safe delivery, and to deliver it as it was received from the consignor. 5. Under all of the evidence the verdict should be for the defendant company.”

In the opinion of the majority of the court the first assignment of error must be sustained. The first point giving rise to it was clear and concise and it should have been affirmed without qualification. The answer to this point covers nearly half of a printed page and we cannot say, with any degree of certainty, that it did not confuse and mislead the jury. To us this answer is not clear and we think it tends to confusion. When counsel presents a point so clear and concise as this one, he is entitled to a concise answer. The majority of the court is not in favor of sustaining the four remaining assignments and, therefore, we can only reverse the judgment with a new venire.

In the opinion of the writer there was error in the answers to the remaining four points, and I would sustain the assignments of error based thereon. But, inasmuch as the majority of the court is not with me in this, I refrain from discussing said assignments, and content myself with simply saying that the court is not unanimous in either dismissing or sustaining the second, third, fourth and fifth assignments. However, the concurring opinion filed herewith, shows that the majority of the court only sustains the first assignment of error.

The first assignment of error is sustained and the judgment is reversed with a .v. f. d. n.

Rice, P. J.,

concurring :

There was ample testimony of a positive nature that there were $1,100 in the envelope when the plaintiffs delivered it to the defendant’s agent at Portage for transmission to Altoona, and that there were only $996 in it when it was delivered to the consignee. Notwithstanding this testimony it is contended that the court ought to have given binding instructions for the defendant. This conclusion is based on the premises, first, that it is an admitted fact that no part of the money could have been taken out of the envelope in the course of transmission after it was sealed with sealing wax; secondly, that the plaintiffs are estopped to deny that the envelope was sealed in the presence of the member of the firm who delivered it to the defendant’s agent. If either one of these premises be unsound the court was right in refusing to give binding instructions for the defendant. I am of the opinion that neither is sound, and will briefly suggest the reasons which have led me to the conclusion, in which the majority of the court concurs, that none of the assignments of error excepting the first can be sustained.

Grant that the wax seals, which were upon the package when it reached the consignee, appeared to be intact, it is not beyond the range of possibility that the package had been opened in the course of transmission, and resealed in such manner as to prevent detection upon such examination as these witnesses gave. It would have been more satisfactory if the defendant had produced the envelope which was shown to have been delivered to its agent or employee after it had been opened by the consignee at Altoona. But apart from this consideration, the oral testimony was such that the court could not declare it to be an admitted or undisputed fact that the contents were in the same condition when it was received at Altoona as when the seals were placed upon it at the place of shipment.

Nor would the court have been justified in charging the jury that there could be no recovery unless they found that the money was abstracted from the envelope after the wax seals were placed upon it. True, the plaintiff signed the printed statement indorsed on the envelope that it was sealed with wax in his presence, and his oral testimony in opposition to this ought to be closely scrutinized by the jury. Perhaps the court would have been warranted in saying to the jury that it ought not to be accepted unless they were clearly convinced that it should prevail over his written declaration. But it is to be borne in mind that the terms and conditions on which the company agreed to carry the package, and to which the plaintiffs agreed by acceptance of the bill of lading, are set forth in the latter paper, which was at once a receipt and a contract. The correctness of the statement indorsed on the envelope which was signed by the plaintiff was not included in these terms and conditions. I am warranted in saying, therefore, that it was not a term or condition of the contract on which the package was shipped. Further, it is to be noticed that according to the testimony of the defendant’s own witness the wax seals had not been placed on the envelope at the time the statement was signed and the envelope was delivered to the defendant’s agent. The question, therefore, in dispute between these parties was as to whether it was sealed in the plaintiff’s presence after he had delivered it to the defendant’s agent, and before the latter had delivered to the plaintiff the bill of lading. This being so I am unable to agree that the statement estopped the plaintiff from showing the truth as to this matter of fact in dispute. But even if it must be presumed, contrary to the fact which a jury might find from the testimony, that the envelope was sealed with wax in the plaintiff’s presence, it does not necessarily and conclusively follow that it must be presumed to have been so sealed at the very instant it was delivered into the hands of the defendant’s agent, and, therefore, that the contents were not disturbed in the meantime. -It was not incumbent on the plaintiff to show at what period of time between the delivery of the package for transmission, and its delivery to the consignee, the money was abstracted. The whole question was for the jury under appropriate instructions as to the weight to be given, in the first place to the plaintiff’s written statement indorsed upon the envelope, and in the second place to the appearance of the seals upon the envelope at the time it was received at Altoona.


text:
    Commonwealth v. Lamar, Appellant.

      Criminal law — Recognizance—Bail—Affidavit of defense.

    In an action against a surety on a recognizance, an affidavit of defense is insufficient which avers that the defendant never became surety for the appearance of anybody of the name of the principal in the recognizance, or whose name resembled or was similar to it, where the defendant does not deny that he signed the recognizance, nor that the giving of the recognizance resulted in the release from imprisonment of the very person for whom he intended to go bail.
    A recognizance in a criminal case is not invalid because the principal fails to sign the recognizance together with the surety.
    In an action upon a recognizance taken by a justice of the peace to release a prisoner charged with larceny, where it appears that the bail was taken before the beginning of the term at which the prisoner was to appear, and before indictment, the surety cannot allege as a defense that the recognizance is invalid because it had been taken after the transcript of the justice had been returned to the quarter sessions.
    Argued Oct. 28,1906.
    Appeal, No. 252, Oct. T., 1905, by defendant, from order of C. P. Lebanon Co., Sept. T., 1905, No. 54, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth v. Michael Lamar and J.ulius Barbini.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Af-. firmed.
    Scire facias sur recognizance.
    Ehrgood, P. J., found the facts to be as follows:
    The writ of scire facias in this case has been served on only one of the defendants, J. A. Barbini.
    A person by the name of Michael Lamar was arrested on a charge of larceny, and brought before an alderman, who, under said name, committed him to the county jail for a hearing, and, as appears by the transcript, gave him a hearing under that name in which Barbini, one of the defendants in this case, was sworn as an interpreter. The person so charged, after the hearing, in default of bail, was committed to the county jail under the name of Michael Lamar, to answer said charge of larceny at June sessions, 1905, of the court of quarter sessions, or until he finds security for his appearance at said court. As appears from the transcript, Barbini afterwards became the security for the appearance of the person under the name of Michael Lamar at the June sessions of court. When the case against said Lamar was called for trial, he did not appear, and the court was informed by the said Barbini that Lamar had gone to Itaty. The recognizance was then forfeited. After a motion had been made to remit the forfeited recognizance upon the payment of costs, Barbini, in open court, stated, in answer to questions put by the court, that he had $115 cash money and a judgment exemption note for the balance to secure himself against liability on the said recognizance. After suit was brought on the recognizance, the said defendant, Julius Barbini, by his attorney, filed a demurrer, in which his first reason was : “The recognizance on which the above sci. fa. has issued, as appears from the copy thereof, embraced in the prsecipe, is not signed by any principal, but only by the said J. A. Barbini as security for Michael Lamar, principal.” The demurrer was afterwards withdrawn, and the affidavit of defense filed, in which the affiant neither affirms nor denies that he signed the forfeited recognizance in question, and that it was for the appearance of a person therein designated, who was arrested and who had a hearing under the name of Michael Lamar, but makes the evasion and, in view of the statements contained in the demurrer, the remarkable statement that he never knew nor was acquainted with any person by the name of Michael Lamar; that he never became surety for the appearance of anybody by the name of Michael Lamar at the June sessions, 1905, of the court of quarter sessions and oyer and terminer of Lebanon county; and that he never became surety for the appearance, at said court, of any one whose name resembled or was similar to Michael Lamar. It is quite evident that the affiant did not intend’ to deny his signature to the recognizance, nor could he deny it, but that the real name of the person for whose appearance he became surety, is not Michael Lamar, but some other name which, for some reason best known to the affiant himself, he is not willing to disclose to the court. That the prisoner failed to disclose his real name, and took a hearing under the assumed name, and that the affiant became his bail under that assumed name for his appearance, when he knew that it was not bis real name, is no defense in this case, but was a deception, practiced on the alderman, of which neither the prisoner nor his surety ought to or can be permitted to take advantage. The affidavit of defense, in so far as it relates to the name of tbe person charged with the larceny, is too vague and indefinite, and in other respects is insufficient to prevent judgment.
    And now, December 6, 1905, judgment is directed in favor of the plaintiff, and against J. A. Barbini, for the sum of $200 and costs, for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      George B. Woomer, for appellant,
    cited: Touhill v. Dayton Construction Co., 12 Pa. Dist. Rep. 560 ; Houck v. Whitaker, 10 Pa. Dist. Rep. 244; Com. v. Basendorf, 153 Pa. 459; Moore v. Com., 6 W. & S. 314.

      December 10, 1906 :

      Warren 6r. Light, for appellee,
    cited: Com. v. Hart, 12 Pa. Superior Ct. 605; McMicken v. Com., 58 Pa. 213; Pox v. Com., 81* Pa. 511; Com. v. Finney, 17 S. & R. 282 ; Com. v. Basendorf, 153 Pa. 459 ; Mishler v. Com., 62 Pa. 55 ; Foulke v. Com., 90 Pa. 257 ; Com. v. Flomenhaft, 3 Pa. Superior Ct. 566.
   Opinion by

Rice, P. J.,

Tbe appellant’s statement of the question involved is as follows : “ Question of the sufficiency of an affidavit of defense to sci. fa. sur recognizance, which alleges that defendant never became surety for the principal named therein ; that the recognizance was forfeited on the first day of the term to which the principal was bound to appear; that the principal never signed the recognizance ; and that the recognizance was taken by the magistrate after the case had been returned to court.”

The statement that the affidavit of defense alleges that the defendant never became surety for the principal named in the recognizance is broader than the affidavit. The recognizance shows on its face that it was conditioned for the appearance of Michael Lamar, and that it was signed by the appellant. A careful examination of the affidavit of defense shows that he does not deny that he entered into and signed the recognizance, nor that he was cognizant of the fact that the name given therein as the name of the principal was Michael Lamar, nor that the giving of the recognizance resulted in the release from imprisonment of the person for whom he intended to go bail; nor does he aver that that person appeared in accordance with the conditions of the recognizance. His averment that he “ never became surety for the appearance of anybody of the name of Michael Lamar,” or “ whose name resembles or was similar to Michael Lamar,” read in the light of the significant omissions above referred to must be deemed to mean no more than that the name given in the warrant of arrest, the justice’s record, the commitment and the recognizance is not the true name of the defendant. But the recognizance having served the purpose for which the appellant gave it, namely, the release from imprisonment of the person who had been committed by the justice, and he being the person for whom the appellant intended to go bail, it does not lie in the appellant’s mouth to say that he was not bound, merely because the name of his principal was not correctly given.

A recognizance is an obligation of record, entered into before a court or officer duly authorized for that purpose; and although it is not uncommon in practice, and for certain purposes is a wise precaution, to have the principal and his surety sign, this is not essential to the validity of a recognizance for the appearance of a defendant in a criminal case: Commonwealth v. Emery, 2 Binney, 431. Nor is it a valid defense in an action brought against the bail upon a recognizance entered into after commitment, that the person for whose appearance he became bound did not also join in the recognizance. “ It seems by no means necessary in such case that the magistrate should visit the prison for the purpose, since the bail of others is good in that case; though where the person charged is not an infant or in prison he ought to be bound in the recognizance as well as the bail: 2 Hale’s P. C. 126 : ” Moore v. Commonwealth, 6 W. & S. 314.

The proposition that the recognizance could not be forfeited on the first day of the term at which the defendant was to appear is clearly wrong, and need not be discussed.

The remaining objection to be considered is that the authority of the justice to take the recognizance was gone after the transcript of his proceedings had been returned to the quarter sessions. The facts are that the defendant was committed on April 24,19,06, “ to answer said charge .... at June Term, A. D. 1905, or until he find security for his appearance at said court,” that the transcript was returned to court on April 26, 1905, that the recognizance was taken on May 17, 1905, and was forfeited, on June 5, following. The statute provides that in all cases the party accused shall be admitted to bail by one or more sufficient sureties “ to be taken before any judge, justice, mayor, recorder, or alderman where the offense charged has been committed, except such persons as are precluded from being bailed by the constitution of this commonwealth : ” Act March 31, 1860, sec. 7. P. L. 427. This case is one in which bail could be taken by a justice of the peace. Upon the question of the authority of the justice to take the bail at the time he did, the case of Moore v. Commonwealth, 6 W. & S. 314, is pertinent. It was there decided that a justice of the peace may discharge from prison one committed by him for a bailable offense whether felony or misdemeanor, taking a recognizance for his appearance at court to answer. There, as here, the question was raised upon defense to an action upon the rceognizance. And the same ruling has been, followed in other cases. See Aldermen and Justices of the Peace, 2 Parsons’ Select Equity Cases, 458; Commonwealth v. Basendorf, 153 Pa. 459. We cannot see that the fact that the justice had returned the transcript of his proceedings to the quarter sessions requires a different ruling in this case, the bail having been taken before the beginning of the term at which the defendant was to appear and before indictment. It certainly does not constitute a valid defense to the action upon the recognizance under which the accused was released from imprisonment.

Judgment affirmed.


author: Head, J.,

text:
    Deaven’s Estate.

      Trusts and trustees — Security—Orphans’ court — Jurisdiction.
    Where a testamentary trustee petitions the orphans’ court for an order to compel the executor of the will under which the trust was created to pay over the trust fund to him, the court may, upon finding that the trustee is wholly insolvent, provide in the order that no money shall be paid to the trustee until after he shall have entered security.
    Argued Oct. 22, 1906.
    Appeal, No. 245, Oct. T., 1905, by William F. Nye, 'trustee of Moonshine church, from decree of O. C. Lebanon Co., June T., 1904, No. 1, directing payment of money in Estate of Peter Deaven, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for an order to pay over money. Before EhrGOOD, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the following order :
    “ And now, June 24, 1905, it is ordered and directed that if the petitioner, W. F. Nye, enter in a recognizance in the sum of one thousand dollars with sufficient surety, to be approved by the court for the faithful performance of the duties of the-trust, the said executor is ordered and directed to pay said trust fund to said petitioner. The costs of this proceeding to be paid out of the said fund.”
    December 14, 1906.

      Paul G. Adams, with him Robert L. Adams and J. G. Adams, for appellant.
    — The executor of Peter Deaven’s estate had no interest whatever in the trust fund bequeathed to the trustee of the Moonshine church, and, therefore, had no standing in court to compel the trustee to answer as to his solvency or competency : Wheatly v. Badger, 7 Pa. 459 ; Gallagher’s App., 89 Pa. 29; Craig’s App., 38 Pa. 330 ; Gumbert’s App., 110 Pa. 496 ; McGirr v. Aaron, 1 P. & W. 49 ; Price v. Maxwell, 28 Pa. 23 ; Domestic and Foreign Missionary Society’s App., 30 Pa. 425 ; Evangelical Assn’s App., 35 Pa. 316 ; Yard’s Appeal, 64 Pa. 95.
    This was not a proceeding instituted under the Act of May 1, 1861, P. L. 680, for the purpose of requiring security or removing the trustee, and, therefore, nothing could be inquired into or done in this proceeding touching or concerning the solvency or competency of the trustee. Chew v. Rawle, 2 Phila. 282; Hano’s Est., 8 Pa. Dist. Rep. 353; Mason’s Est., 12 Pa. Dist. Rep. 717.

      H. Rank Biclcel, for appellee,
    cited : McDowell’s Estate, 10 Pa. Dist. Rep. 223.
   Opinion by

Head, J.,

The record in this case shows that Peter Deaven, late of Lebanon county, died in 1903, having first made his last will in which he provided, inter alia, as follows :

“ I give and bequeath unto the trustees of Moonshine Church in Union Township, Lebanon County, Pa., the sum of $500.00 and I direct that the same shall be securely invested and the interest thereof applied towards keeping said cemetery and the graves in a neat condition.”

The testator had previously provided that his body should be buried in the cemetery named in the foregoing bequest. The record further shows that this cemetery “ is composed of the same land which Henry Moonshine, in and by his last will and testament, dated May 13, 1831, donated to the public, generally, for burial purposes, under provision as follows, viz : ‘I, the subscriber, have given one acre of ground on my land for a graveyard or burying place for the deceased people which shall be free for the public to bury their dead persons.’ ” Manifestly this devise vested no title or property right to the cemetery in Moonshine Church or any congregation worshiping there. It was, as its terms declare, a gift to the public of a burying ground in which any citizen of that community might claim the right of free sepulture: Kitchen v. Wilkinson, 26 Pa. Superior Ct. 75.

The learned court below therefore reached the conclusion, not here complained of as we understand it, that “ the bequest in the will of the testator (Peter Deaven) is not to the Moonshine Church nor for its benefit.” In other words, the language of the bequest “ unto the trustees of Moonshine Church ” was merely descriptive of the person or persons who were to execute the trust for the benefit of all those who had then acquired, or might thereafter acquire, an interest in “keeping said cemetery and the graves in a neat condition.”

In due time the executor settled his account, showing a considerable balance in his hands, and an auditor was appointed to make distribution. He filed his report on July 25,1904, which was confirmed nisi and, no exceptions thereto having heen filed, the decree of confirmation became absolute in due course on August 4, 1904. In this report the sum of |500 was awarded, in pursuance of the bequest already quoted, “ to the trustee or trustees of Moonshine Church.” There was no finding fixing the number of such trustees or identifying the person or persons to whom the money was to be paid.

Thus matters remained until October 3,1904, when the present appellant, William F. Nye, filed his petition in the orphans’ court, setting forth the bequest under the will of Peter Deaven, the award made by the report of the auditor and the confirmation thereof; averring that he was the duly elected and sole trustee of Moonshine Church entitled to receive said fund and asking for a citation to the executor or rule on him to show cause why the legacy should not be paid over. The executor, thus brought into court by adversary process, answered that he had no knowledge that petitioner was, as he claimed to be, the person entitled to receive the fund; that demand had been made on him by two other persons, each claiming to be the trustee of Moonshine Church; that the petitioner was totally insolvent; that he, the respondent, had the money in his hands and was ready to pay it over to such person as the court might, by its order, direct. After a healing and ascertaining of the facts the court determined that the petitioner was the trustee of Moonshine Church and consequently the person named by description in the will of the testator. Here, then, was a proceeding where the court undoubtedly had jurisdiction both of the parties and the fund and that jurisdiction was invoked by and grounded on the petition of a party in interest, viz.: the appellant himself. What powers then did the orphans’ court possess that could properly be exercised in such a proceeding to determine whether or not the petitioner should have the decree he prayed for ?

In Johnson’s Appeal, 114 Pa. 132, the orphans’ court is said to be “ a court which, in its limited sphere, is a court of equity powers, and in all matters within its jurisdiction has as full authority to grant relief as any chancellor ever had.”

“ The orphans’ court has jurisdiction to determine all questions necessary to a proper disposal of matters as to which jurisdiction has been expressly conferred:" Lowry’s Appeal, 114 Pa. 219.

In Appeal of Miskimins, 114 Pa. 530, Mr. Justice Trunkey, speaking of the powers of the orphans’ court, says: “ It is often, though not properly, named a court of equity; and upon principles in equity may dispose of every question that arises in the determination of matters within its jurisdiction.”

Here, then, was a court invested with the power and enjoined .with the duty of disposing of every question that would properly enter into the determination of the propriety of granting the prayer of the petitioner. Its jurisdiction, as we have seen, had been invoked by a party in interest, and its powers were ripe for exercise if the disposition of the question before it upon equitable principles demanded that they be brought into action. The learned court below having found that the trustee petitioner was totally insolvent, this fact not being contested, made an order directing that the fund should be paid over to him only upon his giving’ security “ for the faithful performance of the duties of the trust,” and from that order this appeal is taken. It is argued that the court was powerless, in the present proceeding, to do anything but turn the money over to the appellant without conditions, even though the very existence of the trust might be gravely imperiled thereby. At the same time it is freely conceded that, under the Act of May 1, 1861, P. L. 680, the same court would have had ample power, in the next moment, on the petition of any party in interest, to have summoned the trustee and made the very order now complained of. But wherein is the reason or necessity for such circuity of action ? It is a familiar principle in equity that when a chancellor has once acquired jurisdiction of the parties and subject-matter his decree will not always be confined to the specific relief prayed for in the bill, but, for the verjr purpose of avoiding multiplicity of actions, may extend to the disposition of every question necessary to finally end the controversy. We cannot, think, therefore, that the order of the court below, made for the manifest purpose of protecting the trust fund and securing its benefits to those who were the real objects of the testator’s bounty, was even an irregular exercise of a power with which it was invested by the statute.

But even if the proceeding were not strictly according to the mode recognized by good practice, where a court is asked to make such an order as the one appealed from, what is the duty of an appellate court in a ease like the one now before us ? The second section of the Act of June 16, 1836, P. L. 682, provides : “ It shall be the duty of the Supreme Court of this commonwealth, in all cases of appeal now made, or that may hereafter be taken from the decrees of the several orphans’ courts, to hear, try and determine the merits of such cases, and to decree according to the justice and equity thereof.”

In Van Dusen’s Appeal, 102 Pa. 224, an executrix, having refused to obey an order of the court, was, on petition, summarily removed from her office without any citation or day in court. Upon appeal the decree was affirmed, Mercur, C. J., giving the following reasons for the judgment: “It is true a citation should have been issued stating the specific object, and no removal should have been made without notice. The facts averred in the petitions of the appellees, and in her answer thereto, exhibit such a dereliction of duty, and such a danger of loss to the estate as to clearly justify her removal after citation. The act of June 16,1836, makes it our duty, in all cases of appeals from the several orphans’ courts, to hear, try and determine the merits of such cases and to decree according to the justice and equity thereof. While the manner of removal in the present case is objectionable and should not be followed, yet in view of the command of the statute, and of the manifest justice and equity of the case, we do not feel that the decree should be reversed.”

Following the broad path thus marked out for ,us we reach the conclusion that the decree complained of was just such a decree as a chancellor should and would have entered had the relief here prayed for been sought in a purely equitable proceeding ; and such as this court, following the mandate of the statute and the spirit of the decision quoted, should itself have entered had it 'not already been done by the learned court below. The assignments of errror are therefore overruled.

Judgment affirmed.