author: Oblad y, J.,

text:
    Commonwealth v. Cannon, Appellant.

      Summary conviction — Justice of the peace — Record—Illegal hunting— Act of April 14, 1903, P. L. 178.
    A summary conviction must contain a finding that a specific act has been performed by the defendant, and it must describe or define it in such a way as to individuate it, and show that it falls within an unlawful class of acts. Without this a judgment that the law has been violated, goes for nothing. This is not merely a formal or technical rule of summary conviction, but most essential and substantial.
    A summary conviction for illegal hunting in violation of the Act of April 14, 1903, P. L. 178, cannot be sustained where the record of the justice merely shows that the defendant hunted in a particular county named without having procured a license from the county treasurer of that county. In such a case the defendant by the very terms of the act might lawfully hunt in the county named, if he has secured a proper license in any other county of the commonwealth.
    Argued March 13, 1906.
    Appeal, No. 8, March T., 1906, by defendant, from judgment of C. P. Cumberland Co., affirming judgment of a justice of the peace in case of Commonwealth v. II. P. Cannon.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beater, JJ.
    Reversed.
    Certiorari to judgment of a justice of the peace. Before Sadler, P. J.
    From the record it appeared that the proceeding before the justice was based upon the following information :
    “ State of Pennsylvania, County of Cumberland, } ss.
    “ Before me, the subscriber, one of the Justices of the Peace in and for the County and State aforesaid personally appeared C. S. Husler, Game Warden of Cumberland county, who upon his solemn oath according to law deposes and says that one Harry Cannon, being a. non-resident of this commonwealth of Pennsylvania did on Oct. 18, 1904, in Penn township, Cnmb. Co., Penna., unlawfully hunt without first procuring a license from the County Treasurer in said county, in which he hunted, as required by the Act of Assembly approved the 14th day of April, A. d. 1908.
    “ Deponent therefore desires that the said Harry Cannon be arrested and dealt with according to law, and further deponent saith not.
    “ C. S. Htjsler.”'1
    A portion of the finding of the justice was as follows :
    “ And now December 27, 1904, 10 o’clock, A. m., it manifestly appearing to me upon careful consideration of the truth of the charges contained in said complaint, that Harry Cannon is guilty of the offense charged against him in said complaint of having hunted in Penn township, Cumberland county, and state of Pennsylvania, on Oct. 18, 1904, without first procuring a license from the county treasurer in the county of Cumberland in which he hunted, contrary to the Act of General Assembly approved the 14th day of April, A. D. 1903, said Harry Cannon is convicted before me.”
    The court, in an opinion by Sadler, J., affirmed the judgment of the justice of the peace.

      Errors assigned among others were as follows :
    1. The learned court erred in overruling the first exception of the appellant to the record of the justice, viz.: “ The justice had not jurisdiction of said proceedings.”
    2. The learned court erred in overruling the fourth exception of the appellant to the record of the justice, viz.: “ The record fails to show that the defendant was guilty of any offense punishable under the laws of Pennsylvania.”

      Frank B. Sellers, Jr., and E. M. Biddle, Jr., for appellant.—
    The proceedings before the justice were defective and the record is not sufficient to sustain a conviction: Com. v. Davison, 11 Pa. Superior Ct. 130; Prine v. Com., 18 Pa. 103; Com. v. Gelbert, 170 Pa. 426 ; Com. v. Phelps, 170 Pa. 430 ; Com. v. Clauss, 5 Pa. Dist. Rep. 658 ; Com. v. Borden, 61 Pa. 272; Com. v. Nesbit, 34 Pa. 398; Reid v. Wood, 102 Pa. 312; Com. v. Linaugh, 18 Pa. Dist. Rep. 486; Com. v. Trout Co., 11 Pa. Dist. Rep. 349.
    November 11, 1906 :

      S. B. Sadler, with him Kerman Berg, Jr., for appellee.—
    Where the information or complaint in a case of summary conviction is so specific as to give the defendant notice of the substance, time and place of the offense charged, it is sufficient. “ And where the defendant appears and goes to trial, without any objection to the complaint and summons on account of indefiniteness, such a defect ought to he considered as cured : ” Com. v. Burkhart, 23 Pa. 521; Adams v. Com., 1 Woodward, 417.
    All that is requisite is that the substance of the acts committed by the defendant should be alleged somewhere in the proceedings of the justice: Adams v. Com., 1 Woodward, 417; Johnston v. Com., 22 Pa. 102; Byers v. Com., 42 Pa. 89; Com. v. Burkhart, 23 Pa. 521.
   Opinion by

Oblad y, J.,

This appeal is from the judgment of the common pleas of Cumberland county, affirming on certiorari the judgment of a justice of the peace for the penalty prescribed by the act of April 14,1903. The pertinent provisions of the act are as follows : “ Every non-resident and every unnaturalized foreign-born resident of this commonwealth shall be required to take out a license from the treasurer of the county in which he proposes to hunt before beginning to hunt in any part of this commonwealth.” After payment of a license fee of $ 10.00 to the treasurer of the county in which he proposes to hunt, the act further provides that a certificate should be issued to him in an approved form, “ which certificate shall authorize the owner thereof to hunt and kill game in any part of this commonwealth, during the period of that year when game may be legally killed under the restrictions and for the purposes allowed by law.” The complaint made by the gamewarden avers that “one Plarry Cannon, being a non-resident of this commonwealth of Pennsylvania, did on October 18, 1904, in Penn Township, Cumberland County, Pa., unlawfully hunt without first procuring a license from the County Treasurer in said county in which he hunted, as required by the act of assembly,” etc. It has been held in a number of cases that while many of the technical formalities of summary convictions have long since been dispensed with, there are some essentials which still exist and must appear upon the record. It is still necessary that a summary conviction shall contain a finding that a specific act has been performed by the defendant, and that it shall describe or define it in such a way as to individuate it, and show that it falls within an unlawful class of acts. Without this a judgment that the law has been violated, goes for nothing. This is not merely a formal or technical rule of summary convictions, but most essential and substantial. No citizen coyld have any sort of protection against the ignorance or wickedness of inferior magistrates if these were authorized to convict citizens of offenses, and yet allowed so to record their proceedings that the. very act done cannot be ascertained, and thus their judgment cannot be tested by their judicial superiors: Commonwealth v. Nesbit, 34 Pa. 398 ; Reid v. Wood, 102 Pa. 312. The written complaint on which this proceeding is founded is the substratum of the magistrate’s jurisdiction, and it is necessary in order to sustain his judgment that the complete statement of the offense charged is set out therein. It must contain a direct and positive charge against the defendant, not merely facts amounting to a presumption of guilt, however sufficient such facts may be as prima facie evidence against him, and the jurisdictional facts must appear on its face by a plain statement of them. Neither the warrant nor the docket entries can supply them, or dispense with their presence: Commonwealth v. Gelbert, 170 Pa. 426. The necessity of rigid adherence to certain forms is declared by our own court in Commonwealth v. Davison, 11 Pa. Superior Ct. 130: “ Whilst, as has been said, some of the technical formalities of a summary conviction have been dispensed with, and, indeed, never were insisted on with the same strictness where the penalty is recoverable as debts of like amount are recoverable, yet the essential principles governing such proceedings, necessary for the protection of the citizen, have never been relaxed, and many of them are as applicable to an action which in its true nature and effect' is a proceeding for the punishment of a criminal offense, although in form an action of debt, as to a summary conviction.”

The declaration of the magistrate, that “it manifestly ap~ pearing to me that Harry Cannon is guilty of the offense charged against him in said complaint,” does not in any way aid the defective complaint. It does not aver that this defendant did anything more than hunt in Cumberland county without having procured a license from the county treasurer of that county, whereas by the very terms of the act he might lawfully hunt in Cumberland county if he had secured a proper license in any other county of the commonwealth. This is not a question of shifting the burden of proof by requiring the commonwealth to prove affirmatively that the defendant did not have a proper license; the objection lies deeper, being to the complaint itself in not setting out that fact, which defect is substantial and'jurisdictional. A like defect in an indictment is ground for arresting a judgment upon it, and it seems reasonable that such a defect in the complaint which is the basis of a summary proceeding, would vitiate it. None of the common-law or statutory essentials of a summary conviction have been yielded, and “ they seem to be as necessary to bound arbitrary power and prevent oppression and injustice to the citizens of a republic, as to the subject of a crime:” Commonwealth v. Borden, 61 Pa. 272. It is not necessary to consider the other assignments of error. The first and second are sustained, and the judgment is reversed.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    Commonwealth, v. Striepeke, Appellant.

      Criminal law — Charge of court — Trial.'
    On a criminal trial it is proper for the court to charge as follows: “The commonwealth must make out a case which convinces the jury of the guilt of the defendant, and the various elements of it, and all of them, so that there is no reasonable doubt left in the minds of the jury that the commonwealth’s case is made out. The duty of the jury, therefore, is to take all the evidence they have heard, both of the commonwealth and the defendant, and apply it to their own common sense, their knowledge of human affairs, and to make up their minds whether or not they are convinced, they are sure, that there is no reasonable doubt that the defendant is guilty.”

      Criminal law — Improper conduct of counsel — Jury—Discretion of court.

    Where private counsel for the commonwealth in a criminal prosecution uses violent and inflammatory language against the defendant, but the court in a calm and dispassionate charge warns the jury not to be affected by prejudice, and subsequently refuses a motion for a new trial based on the language used by counsel, the appellate court will not under the circumstances review the discretion of the trial judge and reverse the judgment entered on a verdict of guilty.
    Argued May 9,1906.
    Appeal, No. 83, April T., 1906, by defendant, from judgment of Q. S. Allegheny Co., Dec. T., 1905, No. 980, on verdict of guilty in case of Commonwealth v. Charles S. Striepeke.
    Before Rice, P. J., Porter., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for aiding and abetting a misdemeanor. Before Shaeer, J.
    The opinion of the Superior Court states the case.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were as follows :
    1. The court erred in qualifying and not affirming without qualification defendant’s fourth point, which point and the answer thereto are as follows:
    “ A reasonable doubt may arise in a cause without springing from the evidence. It may arise from the lack of evidence, or it may arise from any cause operating to produce a doubt in the minds of the jurors; and if the jury, or any one of them, has a reasonable doubt as to the offense, or the grade of the offense, it is the property of the defendant, and he should have the benefit thereof. Answer: Refused because this would allow a juror to act upon a doubt raised by his own information about the case from hearsay or otherwise.”
    2. The court erred in not withdrawing the case from the jury, and continuing the same; and in not cautioning the jury and rebuking counsel; and in not subsequently granting a new trial because of the improper remarks of Mr. Marrón, attorney for the commonwealth, in his closing argument to.the jury, the same having been excepted to at the time and a request for a continuance made, by the counsel for the defendant, the speech written out in full by the court stenographer and sworn to by him, as required by the rulings of the Supreme and Superior Courts.
    October 22, 1906:

      Thomas M. Marshall, Jr., with him William J. Brennen, for appellant,
    cited: McClosky v. Dubois Borough, 4 Pa. Superior Ct. 181; Henry v. Huff, 1432 Pa. 548.

      John Marrón, with him B. B. Stewart, district attorney, and John 0. Haymaker, for appellee.
   Opinion by

Orlady, J.,

The defendant was indicted and convicted upon a charge of aiding and abetting a misdemeanor, to wit: maintaining a common bawdy house and place for the sale of liquor on Sunday and without a license. The first assignment of error is without merit. The answer to the point'; taken in connection with the general charge of the court, fully and fairly presented the defendant’s theory of the case. The rule to govern the deliberation of the jury was stated to be as follows : “ The commonwealth must make out a case which convinces the jury of the guilt of the defendant, and the various elements óf it, and all of them, so that there is no reasonable doubt left in the minds of the jury that the commonwealth’s case is made out. The duty of the jury, therefore, is to take all the evidence they have heard, both of the commonwealth and the defendant, and apply it to their own common sense, their knowledge of human affairs, and to make up their minds whether or not they are convinced, they are sure, that there is no reasonable doubt that the defendant is guilty. If they are so convinced, then it is their duty to find him guilty; and if not so convinced, then it is their duty to find him not guilty.”

The second assignment of error raises a question that is not free from difficulty, and it is important to consider the surroundings which developed it. One McElwain was the director of the department of public works ; one Scandret, the director of public safety, and this defendant, a commissioner of highways in the department of public works of Allegheny city, each being inducted into office in the spring of 1908.. Soon thereafter a crusade against the social evils in the city was begun through unofficial sources, and culminated in the prosecution of a number of public officials. At the same term of court at which this case was tried, and' before the same panel of jurors, a captain of police had been convicted of the crime of extortion (see Commonwealth v. Wilson, 30 Pa. Superior Ct. 26, 32), for taking money from the same class of persons with whom this defendant was alleged to have aided and abetted in committing the misdemeanor charged in this indictment.

The district attorney of the county had associated with him as assistants in the prosecution of' this case, two prominent members of the Allegheny county bar, and to whom he transferred the active management of the case. In the concluding argument before the jury, one of these counsel, speaking for the .district attorney, commented upon the crime with which this defendant was charged, and of his association with the two other public officials, in the language which is the subject of this assignment of error, and which has been regularly brought on the record for our review. The attention of the court was promptly called to it, and an exception was taken to the objectionable parts of the speech as being contrary to law, and calculated to .inflame the minds of the jury against the defendant.

The law on this subject has been so frequently declared that there can be no doubt as to the privilege of counsel and the duty of the court under such circumstances. The object of a trial at law is to do exact justice under the evidence between the parties. Allusions to the wealth or poverty of the parties, strength of municipal or private corporations, and the helplessness of ordinary citizens, are proper when they are. made in a spirit of fairness, and for the purpose of stimulating the jury to a careful and conscientious discharge of their duty in the particular ease; but when such allusions are made and changes are rung upon them, for the evident purpose of inflaming the passions and prejudices of the jurors, and leading them to disregard their duty and overlook the actual facts, or set aside the clear legal rights, they are improper and reprehensible, and the advocate who makes them forgets his official oath, and the judge who permits them neglects a clear official duty,. is the language of the Supreme Court in Henry v. Huff, 143 Pa. 548. It is. further said in Holden v. Penna. Railroad Co., 169 Pa. 1: “ When juries are so palpably regardless of their duty and of the sanctity of their oaths, that they permit their verdicts to be rendered in obedience to their prejudices or their sympathies, the trial court should deal with them in a firm and decisive manner, and should reject their erroneous verdicts, without the least hesitation or delay. Otherwise the administration of justice is brought into public contempt and dishonor.” It is not sufficient that the verdict rendered is a correct one if it is secured by improper methods. It should not only be a true verdict, but should be obtained in a legal and orderly method under the law and the evidence. As was said by Chief Justice Paxson in Commonwealth v. Nicely, 130 Pa. 261, “ It is difficult to measure the amount of zeal which is allowable, or at least excusable, on the part of counsel engaged in the defense of a man who is upon trial for his life. Writers upon professional ethics differ upon the subject, and I will not discuss it. We have no difficulty, however, in meásuring the extent of zeal which counsel for the commonwealth may properly display upon such occasions. The district attorney is a quasi-judicial officer. He represents the commonwealth and the commonwealth demands no victim. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers, as to see that no guilty man escapes. Hence he should act impartially. He should present the commonwealth’s case fairly, and should not press upon the jury any deductions from the evidence that are not properly legitimate. When he exceeds this limit, and in hot zeal seeks to influence them by appealing to their prejudices, he is no longer an impartial officer, but becomes a heated partisan. When he allows private counsel to assist him in the trial of a case, such counsel represents him to that extent, and should be governed by the same rule of propriety; ” see also Commonwealth v. Bubnis, 197 Pa. 542; Commonwealth v. Smith, 2 Pa. Superior Ct. 474; Wagner v. Hazle Township, 215 Pa. 219; Walsh v. Wilkes-Barre, 215 Pa. 226; Hale v. Hale, ante, p. 37. An interesting review of many authorities on this subject is found in 45 Central Law Journal, 292. Under all the authorities, counsel should be held to a strict accountability for language used in addressing the jury, and where wilful or reckless misstatements of the evidence are made, a juror should be withdrawn or a new trial granted: Dougherty v. Pittsburg Railways Co., 213 Pa. 346. The denunciation of the witness Scandret, for bringing admittedly innocent parties to corroborate his statement, was not warranted by anything in the evidence, and merited a prompt rebuke by the court. To give such a rebuke is certainly the right of the judge, and sometimes it is his imperative duty to exercise that right in an emphatic manner. This witness was not on trial, but his relations with the defendant were so officially intimate that the conduct of the one might fairly be held to be a reflex of the intention of the other in doing an act connected with their common administration of the department for which they were authorized to act. The circumstances of this case were so exceptional, and the crime of which the defendant stands convicted is so rare, that it is difficult to characterize, it in ordinary speech. It may be that such forensic displays rarely affect deliberate judgment, but it is well known that they sometimes do, and are frequently resorted to for that very purpose. But independent of any possible influence which may be credited to the language embraced in this assignment, there was abundant evidence in the case to warrant this verdict; and the remarks made by the counsel for the defendant which immediately preceded the argument of which complaint is now made, are not before us, and how much of this was responsive thereto, and a legitimate answer, is impossible of measurement. The rule is summarized by the present Chief Justice of the Supreme Court in Commonwealth v. Ezell, 212 Pa. 293, as follows : “ The arguments of counsel to the jury are not assignable .as error. ‘ We have had occasion to say on several occasions within the last few years that there is no way provided for excepting to the remarks of counsel: ’ Com. v. Windish, 176 Pa. 167. They are under the supervision and control of the judge, who is not bound to give attention to them unless called upon to do so. If the district attorney’s remarks can be made the subject of exception, then so must be those of the defendant’s counsel, and the appellate court would be asked to review the trial, not on the evidence, but on the talk. When counsel misstate facts or material evidence, or resort to comment unfair or unduly prejudicial to the other side, it is the duty of the opposing counsel at once to call the attention of the court to the matter, and the action of the court may then become the subject of exception. In general it is matter of discretion and re viewable only for abuse: Com v. Windish, 176 Pa. 167; Com. v. Weber, 167 Pa. 153.” In a doubtful case we will assume that the jurors acted upon the admonition of the trial judge, to disregard the questionable remarks, rather than that they were improperly influenced by them. In the case before us the trial judge, with a full appreciation of the defendant’s right, and the exception taken by the defendant’s attorney, endeavored to overcome every improper deduction to be drawn from the argument of the assistant district attorney while the incident was yet fresh in the minds of all, by his calm and dispassionate charge to the jury, as follows: “Now this case has taken more time than cases of this kind might ordinarily take, and I think I ought to warn the jury not to be affected by prejudice, and newspaper comments, for one thing, because I am sure the jury have seen, perhaps not comments, but a large amount of reports of this case in the newspapers, and perhaps comments in some of them. You must not have the idea that it is perhaps of some political consequence in some way or other. I think it is our duty to say to you that all such prejudice should be dismissed strictly from your minds, and you will pay no attention to anything the newspapers have said about it, or that you have heard said about it out of court, and dismiss from your minds that it has any political effect, or that it is intended to reform the city government of Allegheny, in any manner at all. It is to be tried and determined strictly upon its merits. Upon' the law and evidence in this particular case, and in no other way, because in no other way can justice be done between the commonwealth and the defendant.” We cannot reproduce the conditions attending the trial, nor accurately measure the effect of such a speech upon the average juryman; and while the opinion of the court below in refusing a new trial is not a part of this record, an examination of it gives a fair impression of the views of the trial judge at the time the words were uttered, viz.: “ The only doubt we have in this case is as to whether or not these instructions to the .jury, given immediately after the ending of the appeal complained of, ought to be sufficient to remove from their minds any prejudice which might have been raised by counsel’s appeal to them, not to let their verdict be affected or controlled by anything outside of the law and evidence in this case.” He concludes, “ Upon consideration of the circumstances we are of the opinion that this matter does not furnish sufficient reason for the granting of a new trial.” It is quite apparent that there was an intense public sentiment in regard to the verdict, and lightly so, as the crime charged was not only a dangerous assault on good government, but as found by the jury, it was made by those who were intrusted by the law with the preservation of the law. The charge of the court was so fair and dispassionate a statement of the case that every member of the jury must have realized that the verdict he was to return should be founded only on the evidence adduced on the trial, and the trial judge, after a further examination of the whole case, in the light of all the attending circumstances, believed that he had fully safeguarded the rights of the defendant, and refused a new trial. Under these cir■cumstances we are disposed to accept his judgment as a correct one. Many authorities in our state hold that the disposition of the question in controversj'- here is regarded very largely as a matter appealing to the discretion of the trial judge, and only in cases of manifest error is this conclusion overruled by the appellate courts. We cannot say, as a matter of law, on an inspection of the record as presented to us, that this defendant was unduly convicted on the trial in the court below.

The assignments of error are overruled, the judgment is affirmed, and it is ordered that the record be returned to the court below to the end that the sentence of the court may be carried into effect, and the defendant committed for .the term of his imprisonment which had not expired at the time this appeal was made a supersedeas.


author: Pouter, J.,

text:
    Davis v. Robinson, Appellant.

      Deed, — Delivery—Recording—Evidence.
    In an action of ejectment it appeared that the plaintiff, a church, claimed the land, designated as a numbered lot of a town under a deed from the founder of the town. The defendant claimed the land by mesne conveyances from the founder. It appeared that the deed to the church was not delivered until twenty-eight years after it was executed and acknowledged. About sixteen years after it was executed the founder executed a deed to defendant’s predecessor in title for the same land “subject to any previous conveyance” to the church, “if, on examination, such a previous conveyance exists.” Defendant took title several years thereafter, and her deed was recorded seven years prior to the recording of plaintiff’s deed. There was evidence that the defendant immediately fenced the land, and in the subsequent year erected thereon a dwelling. There was also evidence that five years before the deed to plaintiff, the church, with the consent of the founder, began the erection of a church building on the adjoining lot then owned by the founder, and to some extent used the lot in controversy as a means of access to the church. Held (1) that plaintiff’s deed was properly admitted in evidence; (2) that it was error to give binding instructions for plaintiff; (3) that the paper title of the defendant was superior to that of plaintiff, and (4) that the question whether the plaintiff had acquired an adverse'and exclusive possession of the whole or any part of the lot was for the jury.
    Argued May 9, 1906.
    Appeal, No. 125, April T., 1906, by defendant, from judgment of C. P. Somerset Co., Sept. T., 1903, No. 57, on verdict for plaintiffs in case of J. B. Davis et al., Councilmen of the Evangelical Lutheran Church at Ursina, Pa., v. Sarah Catharine Robinson, wife of Charles F. Robinson.
    Before Rice, P. J., Porter, Henderson, Morrison, Or-lady, Head and Beaver, JJ.
    Reversed.
    Ejectment for land in Ursian Borough.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiffs. Defendant appealed.

      Errors assigned among others were (1) in giving binding instructions for plaintiffs ; (2) in admitting in evidence the deed to plaintiffs.

      October 22, 1906:

      W. H. Rwppel, with him A. II. Ooffroth, J. R Scott and O. W. Walker, for appellant.-
    — The equities of the defendant rise higher then those of the plaintiff as to the rights of the parties under the unrecorded deed: Union Canal Company v. Young, 1 Wart. 410 ; Pringle v. Pringle, 59 Pa. 281; Trough’s Estate, 75 Pa. 115; Galbraith v. Zimmerman, 100 Pa. 374.

      W. H. Koontz, with him J. Gr. Ogle and J. A. Berkey, for appellee.
   Opinion by

Pouter, J.,

The plaintiffs brought an action of ejectment for lot No. 124 on the general plan of lots of the borough of Ursina, in the county of Somerset. Both parties claimed under William J. Baer, who originally laid out the town. The plaintiffs offered in evidence a deed from William J. Baer to their predecessors in the office of councilmen of the church, dated — 1875, acknowledged — 1875, and recorded April 22, 1903, conveying lots Nos. 124 and 125 in the plan of Ursina. This deed was properly admitted in evidence, the court could not determine, in advance, whether Baer had executed some other conveyance which rendered this deed inoperative : Hancock v. McAvoy, 151 Pa. 439. The second assignment of error is overruled. The plaintiffs themselves subsequently proved, however, thatthis deed was not delivered by Baer until April 22, 1903, and that the conveyance was made without consideration, and these facts were undisputed. The defendant claimed under a deed from William J. Baer to E. A. Yutzy, dated and acknowledged January 11, 1887, and recorded July 3, 1894, conveying, inter alia, lots 123 and 124 in the town of Ursina, which deed contained the following clause: “ Lots Nos. 123 and 124 according to the Lyon’s map, are hereby conveyed, subject to any previous conveyance, to the Lutheran congregation or its trustees, of any part thereof, if, on examination, such previous conveyance exists.” Yutzy conveyed to Noah Scott by a deed dated and acknowledged July 11, 1887, and recorded July 3, 1894; and Scott conveyed lots Nos. 123 and 124 to Sarah Catherine Robinson by deed dated and acknowledged December 4, 1895, and recorded February 24, 1896; the consideration named in this deed was $150, and the defendant produced evidence that this amount of purchase money was actually paid. It is an undisputed fact that the defendant fenced lot No. 124 in 1896, andinl897 erected thereon a dwelling house, in which she has since resided. The plaintiffs brought this action of ejectment on June 1, 1908.

The deed from Baer to the plaintiffs was not delivered until sixteen years after the same grantor had conveyed lot No. 124, among others, to Yutzy and over fifteen years after Yutzy had conveyed to Scott, and almost nine years after both those deeds had been recorded; and Sarah Catherine Robinson had become a purchaser for value and had recorded her deed more than seven years before Baer had delivered the deed upon which the plaintiffs rely. The deed from Baer to the plaintiffs did not become effective as a conveyance, was insufficient to bind the grantor or pass title to the grantee, until it was . delivered on April 22, 1903: Galbraith v. Zimmerman, 100 Pa. 374; Duraind’s Appeal, 116 Pa. 93; Riddle v. Armstrong, 179 Pa. 263. The clause in the deed from Baer to Yutzy, making the grant of lots Nos. 123 and 124 “ subject to any previous conveyance to the Lutheran congregation or its trustees of any part thereof, if, on examination such a previous conveyance exists,” indicated that Baer was uncertain whether he had conveyed to the congregation a part of the lot, and it would have been direct notice to Yutzy and constructive notice to the defendant and others who succeeded to his title of any conveyance to the congregation which had then been delivered but remained unrecorded: Hancock v. McAvoy, 151 Pa. 439; Jennings v. Bloomfield, 199 Pa. 638, but it afforded no notice to any person of any conveyance which Baer might make or attempt to complete in the future. The power of Baer to affect the rights of the parties was at an end the moment his deed to Yutzy was delivered, and his subsequent delivery of a deed to the plaintiffs had no effect upon the rights of the defendant, but it left these litigants in precisely the same position that they had previously occupied. The clause referred to in the Yutzy deed would have been notice to those claiming under that conveyance of any title which the church had acquired by an entry under a parol gift and a taking of actual and exclusive possession of the land and expending money in improvements thereon, and it is very clear that the plaintiffs had not, at the time Baer conveyed to Yutzy, acquired title to any part of this lot in any other manner. But to establish title under a parol gift, and a taking of actual possession and spending money on the land, parol evidence is necessary ; whether there is any evidence of the facts necessary to establish such a title may be a question of law for the court, the truth of the testimony is in such a case, however, always for the jury. We are constrained to hold that it was error for the court below to give binding instructions in favor of the plaintiffs, and that, under the undisputed facts, the paper title of the defendant was superior to that of the plaintiffs. The first and tenth specifications of error are sustained.

Yutzy, to whose title the defendant has succeeded, acquired all the rights which Baer possessed in 1887. The legal title to lot No. 124 was then undoubtedly in Baer, and passed by the deed to Yutzy. The only rights in the lot, or any part thereof, which the plaintiffs can successfully assert against this defendant are such as they might prior to 1887 have in like manner asserted against Baer. The nature and extent of those rights are wholly dependent upon oral testimony. The plaintiffs called witnesses whose testimony tended to establish that, in October, 1870, almost five years before the deed from William J. Baer hereinbefore referred to bears date, the congregation, with the consent of William J. Baer, the owner of the land, commenced the erection of a church on the corner of High and First streets in Ursina; the building was erected wholly within the lines of lot No. 125, the front was on First street, along the north side extended High street, the south wall extended back parallel to the line between lots Nos. 124 and 125 and eighteen inches distant from it; two doors opened from the south side of the building, next to No. 124, into the basement. Whether the plaintiffs, under the parol gift from Baer, entered upon and retained adverse and exclusive possession of the whole or any part of lot No. 124, and, if of a part only, then the lines of such portion were matters to be determined by the jury.'

The judgment is reversed and a venire facias de novo awarded.


author: Rice, P. J.,

text:
    Katharine Water Company.

      Water companies — Condemnation—Appeals—Certiorari.
    While no appeal lies from an order refusing to approve the bond of a water company, such proceedings may be reviewed by certiorari. If the proceedings are regular in form the order of the lower court must be sustained.
    Where one water company tenders a bond in proceedings to condemn the lands of another water company, and it does not appear in the bond itself, or in the petition for its approval, or otherwise in the record, that the company has no right in law to appropriate the land and waters described therein, and the court without passing upon the question of the sufficiency of the bond, dismisses the proceedings, the order will be reversed, and the case remitted to the court below in order that it may pass upon the sufficiency of the bond.
    Argued May 7, 1906.
    Appeal, No. 130, April T., 1906, by the Katharine Water Company, from order of C. P. Cambria Co., June T., 1904, No. 658, dismissing condemnation proceedings in the matter of condemnation by Katharine Water Company of land and water of Spangler Water Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Exceptions to bond in condemnation proceedings.
    The facts appear by the opinion of the Superior Court.

      Error assigned was the order dismissing the proceedings.

      John E. Evans, of Evans Evans, with him Hannis, Williams Bunting and E. J. Hartman, for appellants.
    — The decree of a court approving a bond filed in condemnation proceedings is interlocutory in its nature, and from it no appeal lies: Slocum’s Appeals, 12 W. N. C. 84; Getz v. P. & R. R. R. Co., 1 Walker, 427; Market Co. v. Railroad Co., 142 Pa. 580; McManus’s Appeal, 5 Pa. Superior Ct. 65; Myers v. D., L. & W. R. R. Co., 2 Del. County Rep. 384.
    Ownership of riparian land does not include ownership of the water which flows over or passes it: Lord v. Meadville Water Co., 135 Pa. 122; Irving v. Media Borough, 10 Pa. Superior Ct. 132.

      November 12, 1906:
    The making of an appropriation under the right of eminent domain, so as to give title to one corporation against another, involves some corporate action on the part of the company making the appropriation: Williamsport, etc., R. R. Co. v. Railroad Co., 141 Pa. 407; Johnston et al. v. Callery, 173 Pa. 129; Lord v. Meadville Water Co., 135 Pa. 122; P. & R. R. R. Co. v. Pottsville Water Co., 182 Pa. 418; Philipsburg Water Co. v. Citizens’ Water Co., 189 Pa. 23; Haupt’s Appeal, 125 Pa. 211; Com. v. Yost, 197 Pa. 171; Standard Plate Glass Co. v. Butler Water Co., 5 Pa. Superior Ct. 563.
    A water company organized under the act of 1874, and its supplements, has the right to appropriate and condemn the property of another corporation: Natural Gas Co. v. Butler Water Co., 210 Pa. 177.

      Thomas H. Murray, with him M. F. Kitted, Hazard Alex. Murray and James P. O'Laughlin, for appellee.
    — The court was not bound to approve the bond, without the inquiry raised by the second exception: Penna. R. R. Co.’s Appeal, 93 Pa. 150; Appeal of Pittsburg Junction R. R. Co., 122 Pa. 511; Sharon Ry. Co’s. Appeal, 122 Pa. 533 ; Twelfth St. Market Co. v. R. R. Co., 142 Pa. 580; Pittsburg Junction R. R. Co. v. Allegheny Valley R. R. Co., 146 Pa. 297 ; Scranton Gas & Water Co. v. Coal & Iron Co., 192 Pa. 80; Independent Natural Gas Co. v. Water Co., 210 Pa. 177.
   Opinion by

Rice, P. J.,

The Katharine Water Company, incorporated under the act of 1874 and its supplements, for the supply of water to the public in a certain district, claims to have appropriated to its use, in the exercise of the right of eminent domain, the waters of certain streams, rivulets and creeks flowing through the lands of the Spangler Water Company, and the streams in and upon said lands, together with the lands “ along and through which the said streams flow immediately connecting thereto,” and also “all the water and water rights on the lands of L. J. Bearer, as conveyed to the said Spangler Water Company by deed dated June 19,1901.” Alleging by affidavit that it had failed to agree with the Spangler Water Company upon the compensation to be received by it for the damages done, or likely to be done or sustained, by reason of the appropriation, and that the Spangler Water Company declined to accept the bond .when duly tendered, the Katharine Water Company, after due notice, presented to the common pleas its bond with sureties, in the penal sum of $100, conditioned for the payment of such damages as the Spangler Water Company “ shall be entitled to receive in consequence of the appropriation of the said streams of water, and the necessary land adjoining the same, .... whether it exceeds the amount of the penalty or not.” The Spangler Water Company excepted to the bond upon two grounds : first, that it was insufficient in amount; second, that the Katharine Water Company had no right in law to appropriate the stream in question, as the Spangler Water Company is a corporation of public nature, supplying ivater to the borough of Springdale therefrom, and from other streams in the vicinity. Depositions were taken on both sides, and upon the evidence thus submitted, and consideration of the questions of fact and law arising thereon, the court in an opinion filed sustained the latter exception, and dismissed the proceedings without passing upon the other exception as to the sufficiency of the bond.

The conclusion of the learned judge that it was unnecessary to pass upon the question of the sufficiency of the bond was warranted, provided he had jurisdiction to determine the questions in this proceeding raised by the other exception. This is the first matter to be considered; the question is distinctly raised by the appellee’s counsel and must be passed on.

The statute gives no right of appeal from an order refusing to approve such bond of a water company, and dismissing the proceedings. But the modes of reviewing cases by writ of error, by appeal, and by writ of certiorari, which were in use prior to the Act of May 9, 1889, P. L. 158, still remain applicable in the same kinds of cases, within the same limits, and with the same effect as before, the only difference being that now they are all called by the same name : Rand v. King, 134 Pa. 641. The general rule was, that where a new jurisdiction was created by a statute, and the court or judge exercising it proceeded by summary method, or in a new course different from the common law, the mode of review was not by writ of error, but by certiorari: Ruhlman v. Commonwealth, 5 Binney, 24. The rule is still the same, and, in the absence of statutory provision' otherwise, the right of review, and the jurisdiction of the appellate court in cases within the rule, as this case is, are subject to all the restrictions which applied thereto before the name of the appellate proceeding was changed from certiorari to appeal. In such cases the appellate court cannot review the findings of fact, or the merits; so that, granting, the jurisdiction of the court below in this proceeding to determine the. questions of fact arising upon the evidence adduced in support of the second exception, and the questions of law arising upon its findings of fact, the order must be regarded as final and not reviewable upon appeal — the proceedings being regular in form. The statute relating to the exercise of the right of eminent domain by water companies provides that if the bond be not accepted as tendered “ the said corporation shall then give the party written notice of the time when the same will be presented for filing in court, and thereafter the said corporation may present said bond to the court of common pleas..... and, if approved, the bond shall be filed in said court for the benefit of those interested.” This is the limit of the court’s jurisdiction ; there is no suggestion, certainly no clear implication, of a duty on the part of the court to approve or disapprove the proposed condemnation, or to adjudicate the legality thereof, where the determination of that question depends upon extrinsic evidence. The fact that no mode is'provided for bringing the evidence or the court’s findings of fact and conclusions of law upon the record, so that the latter may be reviewed, gives force to the argument that the adjudication of that important question, upon an application for the mere approval of the bond, was not contemplated by the legislature. And this view is in harmony with decisions in analogous cases. In the report of the case of Getz v. Philadelphia & Reading R. R. Co., 1 Walker, 427, it appears, that the plaintiff filed a bill in equity to restrain the company upon the ground that it had not the right under its charter to appropriate his land. The court dissolved the injunction upon the company’s filing a bond for plaintiff’s damages, and subsequently approved the bond. The plaintiff then took certiorari, and in the Supreme Court complained of the action of the court below in entertaining jurisdiction of the application to approve the bond, and in approving it. In an opinion quashing the writ the Supreme Court said: “ The approval of the bond is not a subject of review in this court. The question whether the railroad company had authority to enter upon the land of Hiram L. Getz & Co. to make the branch cannot be decided on this certiorari. If the company had the right, the bond was an essential prerequisite to the exercise of it. The approval of the bond settled nothing as to the right. It decided merely the question of the sufficiency of the sureties, and the amount of the bond. These other matters are not before us.” In Slocum’s Appeals, 12 W. N. C. 84, the landowner excepted to the approval of the bond upon the ground that the taking of his land was not for a public purpose, and depositions were taken upon the exceptions. The appeal from the order approving the bond was quashed for the reason that, we quote from the opinion of the Supreme Court, “ no appeal is given to this court, the order is interlocutory only, and not the subject of review. It is not conclusive as to the right of the railroad company to enter upon the appellant’s land.” In Twelfth Street Market Co. v. Philadelphia & Reading Terminal Railroad Company, 142 Pa. 580, the court cited the two foregoing cases as authority for the ruling that from the decision of the court below that the bond was adequate in amount, and the sureties sufficient, there was no appeal. We also followed these decisions in McManus’s Appeal, 5 Pa. Superior Ct. 65, where the appeal was taken after the court had approved the bond, and appointed viewers in a turnpike case, but before the viewers had reported. We are not to be understood as holding that the court is bound to approve the bond of a water company even though it is regular in form, sufficient in amount, and the sureties are satisfactory, where it appears upon the face of the bond, or in the petition for its approval that the company has no right in law to appropriate the land or waters described therein. Philadelphia, Morton & Swarthmore Street Railway Co.’s Petition, 203 Pa. 354, was a case similar in principle to the one last suggested. The court did not have to go outside of the record proper in order to determine that the condemnation proposed was not authorized. It is argued that this is such a case, but in that conclusion we cannot concur. It is true, it appears by the bond itself, that the streams and land proposed to be taken are owned by a water company, but that alone does not necessarily compel the conclusion that they were not subject to appropriation by the appellant; nor, on the other hand, does the fact that the Spangler Water Company acquired them by grant, instead of condemnation, compel the conclusion that they were subject to such appropriation. The consequence of holding that the mere ownership of land or water by a water company renders them immune from appropriation by another company tends strongly to show the fallacy of the proposition. Other facts are to be considered in the determination of that question besides the mere fact of ownership, on the one hand, and the mere mode in which it was acquired on the other hand. We, however, do not intend to go into a discussion of that question; we are not to be understood as intimating that the conclusion of the learned judge below that the lands and waters propoged to be appropriated were not subject to condemnation was not warranted by the evidence before him, and the facts which he found therefrom. The point is, that the determination of the question depended upon testimony outside the record, and for that reason we are of opinion that the proceeding was not the appropriate one therefor. The foregoing conclusion is not in conflict with the cases cited by the appellee’s counsel in support of the proposition, that “ in a case proper for the exercise of the right of eminent domain,” the effect of the approval of the bond is to vest in the company tendering the bond the title to the easement and remit his adversary to an action on the bond. The distinction between such a case, that is, where the company has the power of eminent domain and the property is subject to appropriation by the company for the proposed use, and a case where the question is whether, under the special facts, the right of appropriation exists, is pointed out in Semple v. Cleveland and Pittsburg R. R. Co., 172 Pa. 369.

It appears with sufficient certainty without reviewing the evidence, that the order dismissing the proceedings was not based upon a determination of the insufficiency of the bond, and that that question was not passed upon by the court. As shown in the late case of Independence Party Nomination, 208 Pa. 108, we have the jurisdiction to determine from the whole record whether the court below kept within the limits of its jurisdiction; and if its action in dismissing such a proceeding as this was based exclusively ou its adjudication of a question which it was not within its powers to adjudicate in that proceeding, it is our duty to send the cause back to be proceeded with according to law. See also Knoblauch’s License, 28 Pa. Superior Ct. 323. We conclude from an inspect tion of the record before us and application thereto of the principles above suggested, that the cause must be remitted to the court below in order that it may pass upon the question raised by the exception to the sufficiency of the bond.

The order dismissing the proceedings is reversed and set aside, and the record remitted with a procedendo.


author: Per Curiam,

text:
    Roeser, Appellants, v. German National Building and Loan Association.

      Building and loan associations — Illegal premium — Usury—Interest.
    Where the by-law of a building and loan association provided that the premiums on all loans “shall be fixed at fifty cents per month for each $100 borrowed,” and at a regular and open meeting of the board of directors a member, through one acting for him and by his authority, bid a premium of that amount and was awarded the loan he applied for, without any other bid having been made, the court below held that the monthly premiums paid were illegal and usurious because they were not determined by competitive bidding, and that in the accounting between him and the association upon repayment of the loan the borrower was entitled to have them credited upon the loan, but was not entitled to have them credited as of the date of payment, nor to interest on them as of that date. Held, by divided court on the appeal of the member, the association not appealing, that the decree stating the account and crediting the payments as of the date of the decree, should be affirmed.
    Argued May 10, 1906.
    Appeal, No. 101, April T., 1906, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., April T., 1905, No. 537, on bill in equity in case of John J. Roeser etal. v. German National Building and Loan Association of Pitts-burg.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an account.

      Yoinsro-, J., filed the following opinion :
    The bill in this case was filed by the plaintiffs, alleging that John J. Roeser was a stockholder and a borrower from the defendant association to the amount of $2,600, for which loan he gave his bond and mortgage, dated May 7, 1897, on his leasehold situate in the city of Allegheny; that on April 25, 1900, he assigned said leasehold to Peter and J. F. Relin ; that about the same date he assigned to them his twenty-six shares of stock in the association; all of which was done with the knowledge and consent of defendant. That the plaintiffs have, from April 14, 1897, to February 5, 1905, paid to the defendant upon the mortgage ninety-four months’ dues upon the stock at the rate of $18.00 each month, or fifty cents upon each share, amounting to- $1,222; and during the same time ninety-three monthly premiums of $13.00 each, being 'at the rate of fifty cents per share of $100, as fixed by the by-laws, amounting to $1,209; and also ninety-three monthly installments of interest of $13.00 each, amounting to $1,209, and that the defendant has credited the plaintiff with $353.24 dividends, altogether amounting to $3,993.24. That the premiums are illegal, and that the plaintiffs are therefore entitle'd to have said sums of $13.00 monthly paid as premiums credited to the principal as of the date of payment, and either to have the interest correspondingly reduced as of the date of payment or to have interest on account of said payments of premiums, from the date of payments, added to their credit. That all these payments have more than paid the amount of the mortgage, but that defendant claims there is a balance of $1,084.76 still due from plaintiffs to defendant.
    The prayers are to permit plaintiffs to pay into court the sum of $1,084.76, the balance claimed by defendant, and therefore the mortgage be ordered satisfied; that an account be stated between the plaintiffs and the defendant, and if any balance be found due to the defendant that it be paid out of the money in court; but if the mortgage be found to be overpaid, then the amount of overpayment to be paid by defendant to plaintiffs and the money in court returned to plaintiffs. The money was paid into court and the mortgage was satisfied of record.

      This raises practically the single question, “ Are the premiums illegal ? ” If they are legal, then the money in court must be paid to the defendant. If they are not legal, then an account must be stated, which will raise the subsidiary questions as to whether or not plaintiffs are entitled to have the payments of premiums applied to the reduction of principal and to have interest upon such payments, or its equivalent.
    The facts bearing upon the question of the payment of premiums show that John J. Roeser, desiring a loan of $2,600 upon his leasehold, applied to the defendant, and by the direction of the defendant became a subscriber for twenty-six shares of stock of defendant association at the par value of $100 each, and that thereupon he signed a written application for the loan, stating the value of the leasehold and improvements, rental value, and many other particulars as to it.-
    There is some evidence that Roeser authorized Waldschmidt, a director of the association, through whom he was negotiating for the loan, to attend to all matters for him, including the bidding for the money, although there was no written authority presented as proof in this case. The evidence also indicates that Waldschmidt appeared at the meeting and bid fifty cents for each $100 borrowed, or $13.00 per month for the money, although there is no evidence showing that there were any other bidders present or that there was any competitive bidding whatever for the money. Section 39 of the by-laws of the association contains the provisions:
    “ The rate of interest on all loans shall be 6 per cent, per annum, and the premium shall be fixed at fifty cents per month for each $100 borowed.”
    From the evidence we conclude that the loan was made to the plaintiff at a premium of fifty cents per month on each $100 borrowed, without any lower bid having been asked for and without any competition in the bidding whatever. Under the rule in the case of Stiles’s Appeal, 95 Pa. 122, this is illegal and usurious, and can be set up by way of defense in an action against a borrowing stockholder. If it can be there set up, there can be no question that in a proceeding in equity to have the mortgage satisfied and the incumbrance removed from the property, the court will state an account and apply the same rules as though it were a defense to the mortgage or bond or an action to recover the loan. If this be so, then the only question is whether the act of June 4, 1901, “ conferring upon mutual savings fund or building and loan associations, now incorporated or hereafter to be incorporated, the right to receive, in writing, bids of premium for priority, and making valid all such bids heretofore accepted,” affects this case.
    It is true that the act provides, “ And all such bids heretofore accepted by any such associations, and loans made thereon, are hereby confirmed and made valid; and no premium or bonus heretofore collected, or which may be hereafter payable on such loans, shall be deemed usurious by reason of the fact that any such bid was made or authorized in writing ; ” but we do not think the act permits the money to be loaned at a premium unless there is competitive bidding. It may have been intended to do away with competition, and so meet the condition in Stiles’s Appeal and the other cases since that time. It does authorize submission of bids in writing, but does not authorize the practice of fixing a minimum premium, and receiving no bids below that, or of awarding the money at the premium bid, unless there were no other bids either in writing or by viva voce made for the money. In short, it does not warrant the charge of a premium unless there was competitive bidding.
    The language of Judge Shabswood, “ They are bound to offer all that is in the treasury to open competition, so that members may obtain a loan at a low premium, if there should be no bid at a higher ” (Stiles’s Appeal, 9,5 Pa. 122), is just as true to-day as it was when written, notwithstanding the act of June 4, 1901. Nor can the defendant set up in answer to the claim of usury that each payment of the premium was a distinct transaction, and -that the limitation would run from that time, and thus prevent the plaintiff from setting it up as a defense to the mortgage. Stiles’s Appeal is authority for the rule that it can be set up. Plaintiffs claim also that they are entitled to interest upon the premiums paid, as their payment was a reduction of the amount of the principal, and that therefore they have paid interest on money which had been paid. We cannot sustain that claim. Section 21 of defendant’s bylaws, “ Exhibit No. 1,” provides:

      “Running stock shall be paid for in monthly installments of fifty or seventy-five cents per share, with the privilege to members of paying additional sums at any time and receiving credit therefor, together with interest at the rate of 6 per cent, for the average time, amounts so paid are in advance. Installments are due and payable on the last day of each and every month until the stock matures.”
    But this certainly applies to payments made by members upon stock and receiving credit therefor at the time of such payment. The plaintiffs neither said at the time of bidding the premium that they were to be applied to the stock, nor did they request any credit therefor, nor did either the plaintiffs or the defendant eyer suppose when the payments of premium were made that they were to be applied to the stock, but both supposed they were just what they purported to be, the payments of premium for the loan, in addition to the interest; and it was not likely that, until this case was prepared for filing, the plaintiffs ever supposed that the premiums were illegal. The plaintiffs, having come into a court of equity, must do equity, and it would be against equity to charge the defendant with interest, ignorant as it was that it was receiving monej^ upon which interest would be required, and especially after it has distributed this money in dividends to the stockholders. Plaintiffs áre clearly estopped by their application for the loan, by the bond wherein Roeser promises for himself, and, if he was acting for the other plaintiffs, promises for them to pay the premiums, and having paid them, while the law will allow him to have credit for them upon the loan, it will not enrich him by awarding him damages; that is, interest for his voluntary payments, even though they were illegal. The plaintiffs having waived at trial all right to any part of the dividends or profits, this credit allowed them by the computation of defendant will not be allowed. All that plaintiffs are entitled to have credit for is the amount paid by way of premiums, §1,209, which will be applied to reducing the principal.
    From the pleadings in this case, and the evidence, the court finds the following facts :
    FINDINGS OF FACT.
    1. The defendant, the German National Building and Loan Association, is an association incorporated under the laws of the state of Pennsylvania.
    2. The 89th section of the by-laws of this association provide:
    “ Loans will be made as fast as the funds of the associátion will permit. Members holding stock upon which three months’ installments have been paid are entitled to borrow on proper security the face value of their stock, or $100 per share. The rate of interest on all loans shall be fixed at fifty cents per month for each $100 borrowed. In addition to the interest and premium, the monthly installment paid by the borrower shall be fifty or seventy-five cents' per share, and from such payment the premium and interest due on the loan shall be deducted and the balance credited as an installment on the stock on which the loan is borrowed.”
    3. John J. Roeser, of plaintiffs, became a stockholder of twenty-six shares of the par value of $100 each of the stock of the defendant association in April, 1897, and about the same time applied for a loan of $2,600, for which latter, on May 15, 1897, he gave his bond and mortgage, by which he became bound to pay defendant association monthly the sum of $13.00 upon his twenty-six shares of stock, $13.00 interest upon his loan pf $2,600 and $13.00 premium for the loan.
    4. That John J. Roeser assigned his stock to Peter and J. F. Rehn, his coplaintiffs, some time in April, 1900, and they, with the knowledge and consent of the defendant, assumed the payment of the loan, at the same time taking an assignment of the leasehold, on which the mortgage was an incumbrance.
    5. That John J. Roeser, Peter Rehn and J. F. Rehn from April 14, 1897, to February 5,1905, have paid into the association the following sums of money: dues upon the twenty-six shares of stock, being for ninety-four months at $13.00 per month, $1,222; ninety-three monthly premiums of $13.00 each, $1,209, making a sum of $2,431; ninety-three monthly installments of interest of $13.00 each, $1,209 ; and that they, Peter Rehn and J. F. Rehn, were at that time furnished with a statement showing the balance of $2,172.93 claimed by the association upon the loan, and that they continued thereafter to pay said dues, premiums and interest.
    6. That at the time of making application for the loan John J. Roeser authorized Frederick Waldschmidt, a director of the defendant association, and through whom he was trying to borrow money, to bid a premium for him of fifty cents per month on each $100 borrowed, and .that Waldschmidt did so bid at the regular and open meeting of the board of directors of the association ; and the money was thereupon awarded to Roeser; and that Waldschmidt reported this action to Roeser, who thereupon signed the bond, mortgage and other necessary papers and commenced and continued the payments of dues, premiums and interest, as set out in the fifth finding of fact.
    7. That at the meeting when the bid of Roeser was submitted by Waldschmidt no other person bid for the money, and no other bid was offered for the money, and the money was awarded to Roeser upon his bid of fifty cents per month for each $100 borrowed, although no other bid was made for the money.
    8. That prior to the filing of the bill in this case none of said plaintiffs ever either requested or demanded that the money paid as premiums should be applied to the stock or mortgage debt.
    9. That the plaintiffs are indebted to the defendant in the difference between
    The amount of the loan, ........$2,600
    And the interest thereon,........1,200
    And the insurance premiums paid,..... 60
    • Or the sum of.....„.....$8,869
    And the credit of the following sums:
    Amount paid on stock,......$1,222
    Premiums paid on loan,......1,209
    Interest paid .on loan,.......1,209
    Or the sum of,........ $3,640
    Or the sum of,........ $ 229
    10. The plaintiffs paid into court pursuant to order of the court, dated February 18, 1905, the sum of $1,084.76 and the prothonotary’s commissions upon the same.
    CONCLUSIONS ON LAW.
    1. The premiums charged plaintiffs and paid by them to defendant are illegal and usurious, because they were not determined by competitive bidding as required by law.
    2. The plaintiffs are entitled to credit on their loan for the sums paid as premiums, to wit: the sum of $1,209, being for ninety-three months at $13.00 per month.
    3. The plaintiffs are not entitled to have the premiums credited on the loan or stock as of the time of payment, thereby reducing the loan or amount due on the stock as of those dates respectively, thereby reducing the amount of interest payable as of those dates; nor are they entitled to interest on those payments as of the date of their payment.
    4. The plaintiffs are indebted to the defendant as follows :
    To loan,..............$2,600
    To interest, ninety-three monthly installments of $13.00 each,.....”......1,209
    To insurance premiums paid,....... 60
    Making a total of.......$3,869
    And plaintiffs are entitled to credit for the following payments :
    By ninetjr-four monthly installments of dues of $13.00 each,...........$1,222
    By ninety-three monthly installments of interest of $13.00 each,...........1,209
    By ninety-three monthly installments of premiums charged for loan of $13.00 each, .... 1,209
    Making a total of.......$3,640
    And therefore plaintiffs are chargeable with the sum of..............$3,869
    And are entitled to credit for the sum of ... 3,640
    And plaintiffs are still indebted to defendant in the sum of..........$ 229
    5. The costs of this proceeding are placed upon plaintiffs, and are to be deducted from the money in court.
    6. The money paid into court, as per order of this court, at this number and term, dated February 18, 1905, to wit: the sum of $1,084.76, shall be distributed as follows :

      To the prothonotary for the costs of this proceeding.
    To the defendant in full payment of its loan, $229.
    To the plaintiffs the balance of said sum in court, after deducting the costs of this case and the amount due defendant as above mentioned.

      Error assigned was the decree of the court.

      A. E. Weger, for appellants,
    cited: Bates v. Peoples’ Savings, etc., Assn., 42 Ohio, 655; Moore v. Cameron B. & L. Assn., 74 Mo. App. 468; Endlich on Bldg. Assn., 2d ed., sec. 407; Gray v. Baltimore B. & L. Assn., 48 W. Va. 164 (37 S. E. Repr. 533) ; Floyd v. Nat. Loan, etc., Co., 49 W. Va. 327 (38 S. E. Repr. 653) ; McConnell v. Cox, 50 W. Va. 469 (40 S. E. Repr. 349) ; Washington Nat. B. & L. Assn. v. Andrews, 95 Md. 696 (53 Atl. Repr. 573); Brown v. Archer, 62 Mo. App. 277; Lewis v. B. & L. Assn., 183 Mo. 351 (81 S. W: Repr. 887); Post v. Mechanics’ B. & L. Assn., 34 L. R. A. 201; Spinney v. Miller, 114 Iowa, 210 (86 N. W. Repr. 317) ; Com. v. Globe Mut. B. & L. Assn. 13 Pa. Dist. Rep. 477; Twin Cities Nat. B. & L. Assn. v. Lepore, 17 Pa. C. C. Rep. 426; Mercantile Trust Co. v. Jones, 48 Pitts. L. J. 266; Bosler v. Rheem, 72 Pa. 54; Duquesne Bank’s App., 74 Pa. 426; Mellon’s App., 7 Atl. Repr. 201; Trusdell v. Dowden, 47 N. J. Eq. 396 (20 Atl. Repr. 972) ; Earnest v. Hoskins, 100 Pa. 551; Blim v. Wilson, 5 Phila. 78; Butler v. Mutual Aid, etc., Co., 94 Ga. 562 (20 S. E. Repr. 101) ; Douglass v. Kavanaugh, 90 Fed. Repr. 373; Schutt v. Evans, 109 Pa. 625 ; Hawkins v. Welch, 8 Mo. 490 ; Phelps v. Bellows, 53 Vt. 539.

      Joseph A. Langfitt, of Langfitt McIntosh, for appellee,
    cited: Stiles’s App., 95 Pa. 122; Orangeville Mut. Savings Fund & Loan Assn. v. Young, 9 W. N. C. 251; North America Bldg. Assn. v. Sutton, 35 Pa. 463; Spring Garden Assn. v. Tradesmen’s Loan Assn., 46 Pa. 493; Phila. Mercantile Loan Assn. v. Moore, 47 Pa. 233 ; Economy Bldg. Assn. v. Hungerbuehler, 93 Pa. 258; Watkins v. Building & Loan Assn., 97 Pa. 514; York Trust, etc, Co. v. Gallatin, 186 Pa. 150; Hazel Loan & Bldg. Assn. v. Groesbeck, 17 Phila. 242; Good v. Grant, 76 Pa. 52; Maher’s App., 91 Pa. 516.

      November 19, 1906:
   Per Curiam,

The six judges who heard this case being equally divided in opinion, the decree is affirmed.


author: Porter, J.,

text:
    McCullough v. Philadelphia, Appellant.

      Negligence — Municipalities—Accident in school yard — School law— Infant.

    The city of Philadelphia is not liable for personal injuries sustained by a child as the result of a defect in the pavement of a school yard, where it appears that the school yard in question was under the control and management of the board of public education of the first school district of Pennsylvania and a sectional board, as established by law.
    Argued Oct. 4,1906.
    Appeal, No. 178, Oct. T., 1905, by defendant, from judgment of O. P. No. 4, Phila. Co., Dec.-T., 1904, No. 483, on verdict for plaintiff in case of Barbara McCullough by her mother and next friend, Mary A. McCullough, and Mary Á. McCullough v. City of Philadelphia.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. 'Before Carr, J.
    The opinion of the Superior Court states the oase.
    Verdict for plaintiff for #2,800 on which judgment was entered for #1,500, all above that amount having been remitted.

      Error assigned was in submitting the case to the jury.

      W. C. Wilson, assistant city solicitor, with him Charles E. Bartlett and John L. Kinsey, city solicitor, for appellant,—
    This case is ruled by Rosenblit v. Phila., 28 Pa. Superior Ct. 587.

      Eatimer Painter Smith, with Mm Maxwell Stevenson for appellees.
    — -The ownership of this property by the city being undisputed, the city, having failed to produce evidence that it was not in control of the premises at the time of the accident, is clearly liable under the decisions in Powers v. Phila., 18 Pa. Superior Ct. 621; Briegel v. Phila., 135 Pa. 451; Kies v. Erie, 169 Pa. 598 ; and Barthold v. Phila., 154 Pa. 109, that decide that a municipal corporation is liable for injuries occurring because of the defective condition of property owned by the municipality.
    November 19, 1906:
   Opinion by

Porter, J.,

The plaintiff, Barbara McCullough, was playing in and about a swing in the yard of a public schoolhouse at the southwest corner of Sixteenth and Moore streets, in the city of Philadelphia, and while pushing the swing slipped or tripped on a depression in the bricks of the pavement of the school yard, fell to her knees, and while in that position was struck by the returning swing and her leg was broken. It may be assumed that the verdict of the jury establishes that the fall of the plaintiff was occasioned by a defect in the pavement of the school yard and that those whose duty it was to repair said defect had been guilty of negligence.

The duty to maintain and repair the public school buildings and the premises thereto appurtenant, in the city of Philadelphia, rests upon the board of public education of the first school district of Pennsylvania, and the sectional boards, as established by law; and there is no duty upon or power in the city to control the public schools as one of its affairs: Board of Public Education v. Ransley, 209 Pa. 51. The officers of the school district are not officers of the city of Philadelphia, a municipal corporation, nor are they invested with municipal powers nor charged with the performance of municipal functions: Chalfant v. Edwards, 173 Pa. 246. There was no evidence that the authorities of the school district had made any arrangement with the city authorities, under the provisions of the Act of June 26, 1895, P. L. 331, under which the former abandoned and turned over to the municipal authorities the control, management and care of the public school grounds, “ for park and recreation purposes by the public.” The only evidence in the case referring to the subject was to the effect that the control and management of the property remained in the authorities of the school district, in whom it is under the law presumed to be. This case is ruled by Rosenblit v. Philadelphia, 28 Pa. Superior Ct. 587; and the city of Philadelphia, as a municipal corporation, cannot be held liable for the injuries of which the plaintiff complains.

The judgment is reversed.


author: Head, J.,

text:
    Vallee Brothers Electrical Company v. North Penn Iron Company, Appellant.

      Practice, C. P. — Pleading—Statement—Evidence—Book of original entries.

    In an action founded on a book account the statement filed and supported by affidavit contained a true and correct copy of the plaintiff’s book of original entires showing the transaction in full detail, and set forth the usual averments that the goods therein charged for were sold and delivered .to the defendant at the latter’s instance and request, that the prices charged were usual and reasonable, and that the defendant had agreed to pay the same. None of these averments were denied in the affidavit of defense, but it was therein ’averred that the goods were sold on different orders from the defendant which had been accepted in writing by the plaintiff, and that plaintiff had failed to attach to his statement copies of such orders and acceptances. Held, that, at the trial, the court was right in admitting in evidence the book of original entries, and in rejecting the orders referred to in the affidavit of defense.
    Because a sale of goods is founded on an order in writing signed by the purchaser and accepted by the seller, the sale does not thereby cease to be the proper subject of a book account.
    Argued Oct. 4, 1906.
    Appeal, No. 18, Oct. T., 1906, by defendant, from judgment of C. P. No. 5, Phila. Go., Sept. T., 1906, No. 3,624, on verdict for plaintiff in case of Yallee Brothers Electrical Company v. North Penn Iron Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. Before Ralston, J.
    The facts are stated in the opinion of the Superior Court.
    Defendant presented the following points:
    1. If the jury believe that the goods for which the plaintiff sues to recover, were furnished under written contracts, or orders, the plaintiff not having declared ■ on such orders, or contracts, but on a book acount, cannot recover in this action and your verdict must be for the defendant. Answer: Refused. [1]
    2. Under all the evidence of the case your verdict must be for the defendant. Answer : Refused. [2]
    The court charged in part as follows :
    [The defendant does not deny that these goods were furnished and that the prices charged for them were the prices agreed upon, but puts in evidence certain orders in writing directed to the plaintiff, in which defendant orders the goods in question; and defendant claims that these orders being in writing, the plaintiff is technically not entitled to recover on the book account.
    A book account is made up of items of charge for goods sold and delivered, and, of course, no goods can be sold unless they are ordered^ and these orders may be either verbal or in writing. If they are in writing, it does not change their character; it simply insures certainty and enables the parties to avoid any dispute as to what the orders were. In effect, these orders are nothing more than what a verbal order would be.] [8]
    The defendant ordered goods at a certain price, and upon these orders the goods were furnished, and in my opinion the plaintiff is entitled to recover if you believe the testimony, which has not been contradicted.] [4]
    Verdict and judgment for plaintiff for $1,118.41. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them.

      Qlifton Maloney, for appellant.
    — A book of original entries is not evidence of the performance of a special contract, whether oral or in writing, for the delivery of goods: Hall & Co. v. Woolen Co., 187 Pa. 18; Nickle v. Baldwin, 4 W. & S. 290; Wilkinson Mfg. Co. v. Welde, 196 Pa. 508; Eshleman v. Harnish, 76 Pa. 97; Corr v. Sellers, 100 Pa. 169; Holt v. Pie, 120 Pa. 425.

      A. W. Horton, for appellee,
    cited: Carpenter v. Vulcanite Portland Cement Co., 211 Pa. 551; Knowlan v. Clopp, 29 Pa. Superior Ct. 424.
    November 19, 1906 :
   Opinion by

Head, J.,

The single question presented by this record arises from the following averment in the affidavit of defense, viz: “ The lamps for which suit is brought were furnished by the plaintiff upon twelve different orders from the defendant which were accepted in writing by the plaintiff. The plaintiff has failed to attach to his statement of claim copies of said orders and acceptances.” The action was founded on a book account. The statement, filed and supported by affidavit, contains a true and correct copy of the plaintiff’s book of original entry, showing the transaction in full detail, and sets forth the usual averments that the goods therein charged for were sold and delivered to the defendant at its instance and request, that the prices charged were usual and reasonable and that defendant had agreed to pay the same. None of these averments were denied in the affidavit of defense. At the trial the plaintiff, under the rules of court and general practice, offered in evidence the sworn copy of its book account, the correctness of which had not been denied, proved by one of its officers that no part of the balance therein shown to be due had been paid and rested. The copy of the account offered in evidence supported the cause of action declared on. The objection made to it, even if otherwise meritorious, was not then available because it rested on an allegation of fact which must have been first established by way of defense before it could be properly considered by the court. The learned court was, therefore, right in admitting the offer and the plaintiff had then made out a complete prima facie case: Carpenter v. Cement Co., 211 Pa. 551; Knowlan v. Clopp, 29 Pa. Superior Ct. 424.

The defendant then offered in evidence the several written orders on which the goods were shipped and asked for binding instructions in its favor on the ground that its contract was special and in writing, and that plaintiff having failed to declare on the special contract and attach copies of the orders to the statement, could not recover. The court refused to so instruct, held that the evidence showed but the ordinary commercial transaction of a sale of merchandise and that plaintiff could and ought to recover.

The learned counsel for the appellant contends that under the pleadings and evidence in this case, the books of the plaintiff were neither competent nor sufficient to establish the sale and delivery of the goods and relies, to support this contention, on Lonergan v. Whitehead, 10 Watts, 249; Hall & Co. v. Woolen Co., 187 Pa. 18; Wilkinson Mfg. Co. v. Welde, 196 Pa. 508, and kindred cases. We are unable to adopt the conclusion thus urged upon us. As was well said in the oldest of the above-cited cases, “ from the first settlement of the country, books of original entries, verified by the oath of the party, have been received as evidence of the sale and delivery of goods. . . . The evidence has been admitted from necessity; for, according to the usual mode of doing business, the sale and delivery being contemporaneous acts, commonly take place when no other persons are present, and are consequently susceptible of no other proof.” If the application of this rule, was thus held to be necessary in early days when commercial transactions were comparatively few in number and small in amount, it is not apparent why it should now be relaxed or abandoned when such transactions have increased in number and amount a thousand fold. If the modern manufacturer or jobber in a large city who ships his goods to purchasers scattered through a dozen states and usually upon written orders, must be prepared, before he can collect an account, to transport his entire office and shipping force to a remote county seat in a distant state, to prove, by living witnesses, the shipment or delivery of goods -ordered, a condition wholly intolerable and destructive of business would result.

It is true the orders in this case were in writing specifying the number, kind and price of the various articles and the destinations to which they were tó be consigned, but all this in no wise leads to the conclusion that there was, in the legal sense, presented anything but the usual and ordinary sale of merchandise. The orders themselves, written on blanks prepared for that purpose, seem to indicate that the parties themselves regarded their dealing as within the familiar lines of an everyday commercial transaction.

In none of the cases cited can we find authority for the conclusion that because a sale of goods is founded on an order in writing signed by the purchaser and accepted by the seller, the sale thereby ceases to be the proper subject of a book account, and that in an action to recover the price the ordinary rules of evidence applicable to the trial of actions founded on book accounts should not be enforced. In Lonergan v. Whitehead, supra, it was held that the books of the seller were not admissible to prove the delivery of the articles where “ the contract was in writing for the delivery of a quantity of bottles as they were manufactured, at different times and at distant periods, and the only question is whether the vendor performed the contract.” In the present ease the plaintiff company appears to have been engaged in the sale of articles of the kind embraced in the order. Blanks were prepared and used to enable the purchaser to designate briefly and conveniently just what he desired to buy. The orders did not contemplate a manufacture of goods not then in existence and their delivery at future and distant periods, but a present purchase of goods in stock and their immediate shipment. “ Please ship the following, subject to conditions on back, to this company ” is the language of the order.

In Hall & Co. v. Woolen Co., 187 Pa. 18, a written contract signed by both parties, it was held that the contract was so palpably ambiguous that it could not support a verdict without the aid of explanatory evidence. The court below, in refusing to permit the plaintiff to prove, by its books of account, deliveries according to its construction of the contract, uses this language which was adopted by the Supreme Court: “ The contract of sale is an express contract for the sale of an article not in existence at the time of the sale, but to be manufactured and made in the future. No property therein passed to the vendee until made or manufactured and either actually delivered to the defendants or at least set aside to them and accepted by them, and, therefore, except upon proof of such acceptance it could not be the subject of book entry.” This statement of the rule of law which must control points out, with such clearness as to prohibit further discussion, why the sale we are now considering should not be regarded as a special contract the performance of which the plaintiff must prove by the general rules of evidence, but should be classified with those ordinary commercial transactions that become the proper subjects of book accounts, in the trial of which the long-established rules of evidence pertaining to actions founded on book accounts should be applied and enforced. As the defendant neither averred nor proved any failure to deliver the goods charged for, we think the conclusion, reached by the learned trial court was right.

Judgment affirmed.


text:
    Sternberg v. Sklaroff, Appellant.

      Appeals — Assignments of error — Charge of court — Failure to except.

    Where the record on an appeal fails to show that the charge of the court was excepted to, the appellate court will not consider assignments of error based upon the charge.

      Appeals — Assignments of error — Refusal to grant a new trial — Abuse of discretion.

    The refusal to grant a new trial upon the alleged ground that the verdict was against the weight of the evidence, is not cause for reversal unless there be manifest and flagrant abuse of discretion.
    Argued Oct. 9, 1906.
    Appeal, No. 100, Oct. T., 1906, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1904, No. 1,249, on verdict for plaintiff in case of Phillip Sternberg v. Solomon Sklaroff.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Willson, P. J.
    Verdict and judgment for plaintiff for 1171.06. Defendant appealed.

      jErrors assigned were as follows:
    1. The learned trial court erred in submitting to the jury the question of whether the note in suit was executed by the defendant, because the execution was denied in the affidavit of defense and was not proved upon the trial of the case.
    2. The learned trial court erred in charging the jury on the question of estoppel, because there was not sufficient, evidence to justify a verdict for the plaintiff on the ground’ of estoppel.

      November 19, 1906:
    8. The learned trial court erred in refusing to grant a new trial because the verdict was against the weight of the evidence.

      John Wilson, with him William B. Davis, for appellant.

      J. O. Levi, of Bamberger, Levi ¿f- Mandel, for appellee.
   Per Curiam,

The record fails to show that the charge of the court was excepted to, therefore the first two assignments must be dismissed upon the authority of Curtis v. Winston, 186 Pa. 492, and many later cases. As to the first assignment, it may be added that there was no request for binding instructions, and that such instructions would not have been warranted. There was ample evidence to carry the question of the execution of the note to the jury. As to the third assignment it is enough to say, that the refusal to grant a new trial upon the alleged ground that the verdict was against the weight of the evidence is not cause for reversal unless there be manifest and flagrant abuse of discretion, and that nothing of the kind appears here. In one of the latest cases upon the subject it is said, “ It was pointed out in Smith v. Times Publishing Company, 178 Pa. 481, that the power of this court to grant a new trial under the act of May 20, 1891, P. L. 101 is exceptional in character, and only to be exercised in very clear' cases of wrong or injustice which the court below should have remedied : ” Murtland v. English, 214 Pa. 325.

The judgment is affirmed.


text:
    Levy v. Singer Manufacturing Company, Appellant.

      Appeals — Assignments of error — Evidence—Exceptions—Quashing appeal.

    Where the single matter assigned as error is the refusal of the court to charge that under all the evidence in the case the verdict should be for the defendant, the appeal will be quashed, if the record shows that neither a bill of exceptions was sealed nor a certificate signed by the judge.

      November 19, 1906:
    Argued Oct. 10, 1906.
    Appeal, No. 249, Oct. T., 1905, by defendant, from judgment of O. P. No. 1, Phila. Co., Dec. T., 1899, No. 415, on verdict for plaintiff in case of Israel Levy v. the Singer Manufacturing Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Appeal quashed.
    Trespass for foreeable removal of a sewing machine. Before Brégy, J.
    Verdict and judgment for plaintiff for $150. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      Arthur B. Eaton, for appellant.

      A. S. Ashbridge, Jr., with him David Phillips, for appellee.
   Per Curiam,

The single matter assigned as error is the refusal of the court to charge, as requested in the defendant’s point, that under all the evidence in the ease the verdict should be for the defendant. Therefore it became necessary for the appellant to bring the evidence upon the record by bill of exceptions taken in the established form, or to have the same certified .by the judge in the mode prescribed in section 2, rule VI. But there is neither bill of exceptions sealed, nor certificate signed, by the judge. On the contrary, the judge, upon the appellee’s objection, refused to certify the transcript of the notes of testimony furnished by the official stenographer, because the application for such certificate was not made within the time prescribed by the rule of his court for the presentation of bills of exceptions. It is apparent, therefore, that in the present state of the record there is nothing before us to review, and that appellee’s motion to quash the appeal must prevail.

The appeal is quashed.


author: Beaver, J.,

text:
    Mansfield, Appellant, v. Mansfield.

      Trusts and trustees — Surcharge—Action.
    In an action by a trustee against the executors of a co-trustee to recover one-half of a surcharge made by the orphans’ court against the trustees, the plaintiff cannot recover if he fails to show the payment of the surcharge out of his own funds.
    Argued Oct. 16, 1906.
    Appeal, No. 136, Oct. T., 1906, by plaintiff, from judgment of C. P. No. 1, Pbila. Co., June T., 1903, No. 2,093, for defendant non obstante veredicto in case of Job R. Mansfield v. Harry K. Mansfield, Susie G. Mansfield and John Cooper, Executors of the will of John H. Mansfield, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, 'Orlady, Head and Beaver.
    Affirmed.
    Assumpsit to recover one-half of a surcharge. Before BeitLER, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      Samuel H. Kirkpatrick, with him William H. B. Lukens, for appellant.
    — As co-trustees are in the position of co-sureties, with respect to contribution, it follows that all the trustees, together with their privies in estate, their personal representatives, are concluded by the decree of the orphans’ court unless they appeal. In this case the personal representatives of John H. Mansfield had the right to appear and object to the decree, and they cannot be said to have been without notice, even if it were required, because Harry H. Mansfield, one of the defendants, as the record shows, was personally present and represented by counsel at the audit: Schwan v. Kelly, 173 Pa. 65 ; Taylor v. Cornelius, 60 Pa. 187.
    The record of the orphans’ court shows that Job R. Mansfield and John H. Mansfield, co-trustees, neglected to collect rent.due the trust estate to the net amount of $882.72, for which both were alike held accountable and surcharged, and also that this surcharge was made good to the trust estate by the means of credits for expenditures made in its behalf by one trustee, Job R. Mansfield, the appellant, alone.
    November 19, 1906 :
    The appellant is entitled to recover from the estate of his co-trustee one-half of the loss sustained by appellant in consequence of the surcharge: Bacon v. Camphausen, 58 Law Times Rep. 851; Chillingworth v. Chambers, L. R. [1896] 1 Ch. Div. 685; Robinson v. Harkin, L. R. [1896] 2 Ch. Div. 415 ; Armstrong County v. Clarion County, 66 Pa. 218; Pearson v. Skelton, 1 Meeson & Welsby, 504.

      James MeMullan, with him Henry 8. Drinker, Jr., for appellee.
   Opinion by

Beaver, J.,

Plaintiff and defendants’ testator were executors of, and joint trustees under, the will of their brother, C. C. Mansfield. They filed a joint account in the orphans’ court of Philadelphia county, showing a small balance due the estate. A second account was filed by the surviving trustee in 1899, after the death of the defendants’ testator, as the “ second account of John H. and Job R. Mansfield, trustees under the will of Charles C. Mansfield, as stated by Job R. Mansfield, the surviving trustee.” Upon exceptions to this account and an adjudication by the orphans’ court, various surcharges were made, amounting in all to $882.72, and, in the final adjudication and restatement of the account by the orphans’ court, a balance is-found to be due the trustee of $29.18, “ to be paid to the trustee out of the income to be collected and hereafter accounted for.”

The action here is in assumpsit, by the plaintiff, to recover from the defendants the one-half part of the surcharge made by the orphans’ court against the co-trustees of $882.72, together with an amount of $67.40, alleged by the plaintiff to have been received by the defendants’ testator in goods from a tenant of the real estate, belonging to the estate of which they were joint trustees, and which had not been accounted for.

Upon the trial, the defendants, “ moved for a nonsuit on the ground that the record does not show that the plaintiff has paid in the surcharge.” This was a distinct notice to the plaintiff that the defendants required him to- show that he had actually paid the amount of the surcharges, the one-half of which he sought to recover from the estate of the defendants’ testator.

At the end of the trial the case- was fairly submitted to the jury, as to the facts in controversy, and a verdict was found for the plaintiff for $617.90. Subsequently, upon exceptions filed and a motion for judgment, non obstante veredicto, the court entered judgment for the defendant, stating, as the reason therefor: “While the orphans’ court, upon the adjudication of the account of the trustees under the will of Charles C. Mansfield, as stated by Job R. Mansfield, surcharged them with the sum of $882.72, there was no evidence presented on the trial to prove that the plaintiff had in fact paid the surcharge or was in anywise injured thereby.

“ In the absence of such evidence, the defendants were entitled to have had their point for binding instructions affirmed.”

A careful examination of the testimony given at the trial fails to show even an effort on the part of the plaintiff to prove that he had actually paid the amount sought to be recovered from the defendants, as the one-half of the surcharge made by the orphans’ court against the trustees jointly.

The effort is made by the plaintiff to argue from the record of the orphans’ court, that the surviving trustee had paid the amount of this surcharge, because, in the final adjudication the orphans’ court found the estate indebted to the trustee to the amount of $29.18, but that the surviving trustee paid this amount out of his own pocket does not appear in the adjudication, and it is mere inference that such was the case. In order to enable him to recover, it was necessary for him, by affirmative, substantive proof, to show the payment of the surcharge out of his own funds. The burden was upon him to do so, and, having failed even to make an effort in this direction, we can see no error in the action of the court in entering judgment for the defendant, non obstante veredicto.

Judgment affirmed.