text:
    Brooke’s Estate
    July 15, 1908:
    (No. 2).
    , Imnacy — Committee of lunatic — Costs of audit.

    A trustee is not to be mulcted in costs in the absence of any evidence of bad faith or negligence, or gross mismanagement. • ■
    , The costs of an audit will not be imposed upon the committee of a 'lunatic where all the exceptions to his account have been dismissed, -excepting one relating to a small sum which should not have been included in the account.
    Argued Dec. 10, 1907.
    Appeal, No. 148, Oct. T., 1907, by Victorine H. Brooke, from decree of C. P. No. 1, Phila. Co., ■March T., 1903, No. 1,194, dismissing exceptions to auditor’s report in estate of James Brooke, trust for James Henry Brooke.
    Before Rice, P. J., Porter, Henderson, Morrison, ■ Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to auditor’s report.
    The facts are stated in the opinion of the Superior Court.
    . Error assigned was in dismissing exceptions to auditor’s report.

      Edwin F. Schively and Wm. W. Porter, with them Sidney E. Smith, for appellant.

      D. P. Hibberd, with him G. Henderson, for appellee.
   Opinion by

Porter, J.,

Samuel P. Tull, the accountant, was appointed a substitute trustee-of the trust estate created by a deed of James Brooke, ■in favor.of James Henry Brooke during life as to the property No. 1611. Waverly street.. James Henry Brooke having died, the trustee filed his final account of the trust as to that property, to which account the appellant filed exceptions. An auditor was appointed before whom much testimony was presented. The net result of the proceeding was to strike from the account a charge against the accountant of $21.25, which amount had been paid to the accountant by this appellant through an error and ought not to have been included in the account; and upon the other side of the account, the sum of $1.06 was deducted from the commissions of'the accountant, being the commission upon the above-named item included in the account through a mistake. The effect of those changes was to actually reduce the balance found to be in the’hands of the accountant in this account. The appellant had filed’ several other exceptions to the account, but they were all dismissed by the auditor, and properly so under the evidence. The only specification of error which the appellant presents, is that the auditor erred in failing to place the costs of the audit upon the accountant. There was no evidence that the accountant had not acted in perfectly good faith and with due diligence in the management of this estate. The only error in his account was one into which he had been led by the action of this appellant. Even if the accountant had been solely responsible for the error, it is manifest that he acted in perfectly good faith in introducing it into his account, for the effect of such introduction was to increase the apparent balance against him. This error could not have led to the incurring of more than a very small fraction of the cost involved in the. audit, because almost all the evidence was directed to exceptions which the appellant failed to sustáim A trustee is not to be mulcted in costs in the absence of any evidence of bad faith or negligence or gross mismanagement.

The decree of the court below is .affirmed and the. appeal dismissed at costs of the appellant.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Brooke’s Estate
    July 15, 1908:
    (No. 3).

      Lunacy — Committee of lunatic — Accounts—Surcharge—Loss of rent.

    A committee of a lunatic will not be surcharged for renting a house for $18.00 per month, instead of $20.00 per month, and for loss of rent from a tenant, and for amount of rental when the house was vacant, where it appears that the committee used every reasonable effort to collect the rent from the tenant in arrears, and to rent the property when vacant, and there is no evidence to show that the house was worth more than the rental which the committee actually received.
    Argued Dec. 10, 1907.
    Appeal, No. 149, Oct. T., 1907, by Victorine H. Brooke, from decree of C. P. No. 1, Phila. Co., March T., 1903, No. 1,195, dismissing exceptions to auditor’s report in estate of James Brooke, trust for James Henry Brooke.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to auditor’s report.
    The opinion of the Superior Court states the case.

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

      Edwin F. Schively and Wm. W. Porter, with them Sidney E. Smith, for appellant.

      D. P. Hibberd, with him George Henderson, for appellee.
   Opinion by

Porter, J.,

Victorine H. Brooke appeals from the decree of the court below overruling her exceptions and confirming the report of the auditor, appointed to pass upon exceptions filed to the account of Samuel P. Tull, trustee of the life estate of James Henry Brooke, created by deed of James Brooke, in the property, No. 1616 Waverly street. The first and second specifications assign for error the failure of the auditor to surcharge the accountant because of his alleged failure to obtain from the property all the rent that the appellant alleges it was worth during the entire period that the trustee had charge of the property. The appellant contends that the house was worth a rental of $20.00 a month and that the trustee ought to have collected that amount. The evidence shows that the trustee rented the house for $18.00 a month, and that this appellant had rented it at the same rate during the period immediately preceding the appointment of the trustee, while she herself had charge of the property. The appellant further avers that, while the property was occupied, the trustee permitted the tenant to become in arrears for between four and five months of rent, amounting to $83.75, which amount could have been collected had due diligence been exercised. The appellant, herself, had placed this tenant in the property, the trustee received the tenant with the property from the appellant, who admits that she said to the trustee, speaking of this tenant: “I have known her for a long time and I would not put a constable on her for one month’s rent.” The agent of the trustee called upon this tenant and attempted to collect the rent weekly, sometimes oftener, as found by the auditor and shown by the evidence. The tenant attempted to pay the rent in small sums, sometimes making payment of less than $1.00 when called upon. The trustee finally issued a landlord’s warrant, but failed to realize anything thereon, as the tenant was very poor and the property was not sufficient to pay the costs. The appellant further asserts that the trustee ought to have been able to more promptly procure another tenant when the property thus became vacant. The evidence shows that the trustee at once employed a competent real estate agent, and made all reasonable endeavors to rent the property. Notwithstanding this, however, the appellant contends that because the trustee placed the renting of the house “in the hands of a real estate agent some six or seven squares away from the neighborhood, instead of finding one somewhere near,” that the trustee was guilty of negligence and should be surcharged for the rent during the six weeks in which the property remained vacant. The auditor found that although the trustee might have made a mistake in accepting the recommendation of this appellant as to the first tenant, and might possibly have made more money out of the property by at once issuing a landlord’s warrant and dispossessing that tenant, yet that this was only a mistake of judgment made in good faith, and that the trustee was not guilty of such negligence as to justify surcharging him with the rent. After having considered the whole evidence upon the point we are convinced that the conclusion of the auditor was correct. The accountant made every reasonable effort to collect the rent, his agents calling upon the tenant with unusual frequency and urging payment, and we are of opinion that the accountant ought not to be surcharged under the circumstances presented by this case, for the rent lost because of the failure of this tenant to pay. When the property became vacant the trustee át once employed a real estate agent to find a tenant, and upon this branch of the appellant’s contention there is no evidence which would warrant a finding that the trustee neglected his duty. The evidence certainly did not establish that the trustee was guilty of negligence in renting the property at too low a rate; some houses on that street may have rented for $20.00 a month, $2.00 more than the rate at which this house was rented, but it was not shown that this house was worth more than the trustee actually received.

The decree is affirmed, and the appeal dismissed at costs of the appellant.


text:
    Eureka Knitting Company v. Snyder, Appellant.

      Replevin — Set-off—Defense.
    Set-off cannot be pleaded and allowed in an action of replevin.

      Affidavit of defense — Partnership—Accounting.
    An averment in an affidavit of defense that one partner had demanded an accounting from his copartner of the partnership assets received by the latter, and that it was found that the copartner was indebted to the partnership fund, is not a distinct averment that there had been a final settlement of the partnership accounts and property; all that is averred may be true, and yet if the partnership accounts were collected, the co-partner might have a substantial interest in the fund.
    If a partner with his own money buys a boiler and engine held by the firm under a lease, the partnership is not thereby released from its covenant to pay rent, and it must still pay according to the terms of the lease either to the partner who bought the property, or to his assignee.

      Trusts and trustees — Purchase of legal title — Personal property.

    Implied trusts will not be enforced against a bona fide purchaser of the legal title from an original trustee for a valuable consideration, and without notice of the equity of the person in whose favor the trustee holds.
    Argued Dec. 6, 1907.
    Appeal, No. 204, Oct. T., 1907, by defendants, from order of C. P. Schuylkill Co., May T., 1907, No. 29, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Eureka Knitting Company, Limited, to the use of Harry Deibert, to the use of John A. Sprenger, v. Charles P. Snyder and Wm. Seifert, trading as Snyder & Seifert.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Replevin for a boiler and engine.
    Rule for judgment for want of a sufficient affidavit of defense. ■
    The facts are stated in the opinion of the Supreme Court.

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

      C. E. Berger, for appellant. —
    The utmost good faith is required of partners in relation to each other: Featherstonhaugh v. Fenwick, 17 Vesey, 298; Lacy v. Hall, 37 Pa. 360; Latta v. Kilbourn, 150 U. S. 524 (14 Sup. Ct. Repr. 201).
    The action of replevin in this case is against the firm of Snyder & Seifert. The judgment is against Seifert only. The plaintiff, John A. Sprenger, can rise no higher, in his right of action, than the original parties. He took the assignment, subject to all the equities existing between the original parties: Faull v. Tinsman, 36 Pa. 108; Hall v. Logan, 34 Pa. 331; Sullivan v. Sweeney, 189 Pa. 474.

      July 15, 1908:
    There is another reason why this action cannot be sustained. If, as contended, the assignment to the said Charles P. Snyder, enured to the benefit of the firm of Snyder & Seifert, the property was firm property, and could not be' used by a member of the firm in payment of his individual indebtedness: Kutz v. Naugle, 7 Pa. Superior Ct. 179.
    If the plaintiff’s title be clearly and fully set forth with an averment of wrongful dispossession the defendant must meet this prima facie showing by setting forth in his affidavit of defense facts sufficient to justify his retention of the property: Drumgoole v. Lyle, 30 Pa. Superior Ct. 463.

      J. A. Noecker, for appellee. —
    This balance of $174.84 was not a balance due to Seifert after a final settlement of the partnership business; but was, as stated in the affidavit, an. accounting of the partnership assets received by Charles P. Snyder. In other words, a balance due from Snyder to the firm, arising from moneys collected by him and not yet paid into the partnership fund. Seifert could not maintain an action of assumpsit against Snyder for this alleged balance: Andrews v. Allen, 9 S. & R. 241; Killam v. Preston, 4 W. & S. 14; Ferguson v. Wright, 61 Pa. 258.
    Consequently he cannot claim this alleged balance of $174.84, as a set-off: Russell v. Miller, 54 Pa. 154; Knerr v. Hoffman, 65 Pa. 126.
    A trustee buying property for another, but in his own name, may maintain an action for replevin in his own name for its recovery: Douglass v. Wolf, 6 Kansas, 88; Appleby v. Barrett, 28 Pa. Superior Ct. 349.
    A purchase by one partner of the property hired by the partnership, enures to the benefit of his copartner only upon payment of his share of the purchase money: Laffan v. Naglee, 9 Cal. 662; Moreau v. Saffarans, 35 Tenn. 595; Wheatley v. Calhoun, 12 Leigh (Va.), 264; Browne v. Scull, 27 Pa. Superior Ct. 513.
   Opinion by

Porter, J.,

The plaintiff in this action of replevin filed a statement averring that the Eureka Knitting Company, Limited, was, on April 22, 1905, the owner and in possession of an engine and boiler and on said day delivered the same, to the defendants under a written contract of bailment for the period of ten months, for the. sum of $200, $50.00 of which was paid upon the execution of the contract, and the defendants covenanted to pay ten installments of $15.00 each on the twenty-second day of each month, beginning with May 22, 1905; the said contract further provided, that at the end of the term for which the said engine and boiler was leased, the same was to be returned to the owners, the Eureka Knitting Company, Limited, and also provided further, that if the said defendants would comply with all the conditions of said contract of bailment, and make all the payments therein stipulated when due, then, and not otherwise, they might at their option purchase said boiler and engine within ten days after the expiration of the time for which the same was rented, by paying the party of the first part, $1.00 purchase money; and the contract further provided that the bailor might reclaim possession of said boiler and engine, whenever the defendants failed to' pay the rent stipulated. The statement further’ averred that the Eureka Knitting Company, Limited, on September 27, 1905, did sell and assign said lease and the boiler and engine therein described to Harry Deibert, and that the said Harry Deibert, on January 29, 1907, assigned the same to John A. Sprenger. Copies of the original lease, and of the several assignments thereof, were attached to this statement. The assignment from the Eureka Knitting Company, Limited, to Deibert was made in consideration of $58.74 paid to the knitting company, and the assignment from Deibert to Sprenger specifies the same amount as the consideration thereof, and the latter assignment was also under seal. The statement further averred that the defendants had failed in business, that their property had been sold at sheriff’s sale; that subsequently to the said sheriff’s sale William Seifert, one of the defendants, unjustly took possession of said engine and boiler, the property of the plaintiff, and wrongfully and unjustly detained the same although a demand was made upon him for the surrender of the possession. The statement averred that the defendants had not complied with the terms and conditions of the said bailment, in that they did not pay the monthly installments of rent reserved in the lease and that they had thereby forfeited their right to hold possession of the said engine and.boiler.

William Seifert, one of the defendants, filed an affidavit of defense in which he admitted that the defendants had acquired possession of the boiler and engine in the manner set forth in the plaintiff’s statement, and that the defendants had failed to pay the monthly installments of rent according to the terms of the contract of bailment. His affidavit averred, as a defense to this action of replevin, that: “Some time during the summer of 1906, the said William Seifert demanded an accounting from Charles P. Snyder of the partnership assets received by him, and Myer Strouse was mutually agreed upon by the partners to state' their account, from which it was ascertained that the said Charles P. Snyder was indebted to the partnership fund to the said William Seifert in the sum of $174.84, which he still owes.” The affidavit further averred, that Charles P. Snyder furnished to Harry Deibert, use plaintiff, the sum of $58.74, the consideration named in the assignment of September 27, 1905, and the said Harry Deibert took the said assignment for the said Charles P. Snyder, and transferred his alleged right, title and interest in said engine and boiler by assignment on January 29; 1907, to John A. Sprenger, the plaintiff, to secure the said John A. Sprenger for an indebtedness due him from the said Charles P: Snyder. The affidavit then states the ground upon which the appellant claimed the right to hold the engine, thus: “Your deponent avers that he is holding the said engine to secure him in part for the moneys due on said partnership account of said Charles P. Snyder.” The learned judge of the court below made absolute the rule for judgment for want of a sufficient affidavit of defense, and Seifert appeals.

. The affidavit of defense did not and could not allege that Seifert had a lien upon this boiler and engine for the debt of Snyder. Even had Snyder been the plaintiff in this action, Seifert could not have set off a debt due him against the demand for the return of specific property. The law is well settled in Pennsylvania that set-off cannot be pleaded and allowed in replevin: National Cash Register Company v. Cochran, 22 Pa. Superior Ct. 582. The affidavit of defense while it does inferentially state that the partnership had been dissolved, during the summer of 1906, does not aver that the partnership affairs had been finally settled. What it does state is that the appellant had “demanded an accounting from said Charles P. Snyder of the partnership assets received by him,” and that it was found that the said Charles P'. Snyder was indebted to the partnership fund. This is not a distinct averment that there had been a final settlement of the partnership accounts and property; all that is averred in this branch of the affidavit may be true and yet if the partnership accounts were collected, Snyder might have a substantial interest in the fund. This averment amounts to nothiñg more than a statement that Charles Snyder had received partnership assets, for which he had not accounted to the amount of $174.84. The affidavit did not sufficiently allege that upon a final settlement of all the partnership accounts and disposition of the firm property it had been ascertained that there was any definite amount due him from Snyder, and the claim as stated could not be made available as a set-off: Russell v. Miller, 54 Pa. 154; Appleby v. Barrett, 28 Pa. Superior Ct. 349. The appellant certainly had no lien upon the property for the amount which he insufficiently alleged to be due from Snyder. If, therefore, the affidavit of defense was sufficient, it could only be upon the ground that the facts as stated vested the title to the property in him personally, or in the partnership.

The learned counsel representing the appellant argues that this case is ruled by those authorities which- hold that a partner who takes a renewal of the lease of the premises where the joint trade is carried on, in his own name and for his own individual benefit, is a trustee for the partnership, and cites Johnson’s Appeal, 115 Pa. 129. That case was presented by a bill in equity for an accounting and settlement of the partnership business. The firm had been dissolved, but the term of the lease under which they held the premises where the business was carried on had not yet expired, and one of the partners obtained a renewal of the lease in his own name. It was held that the chance or opportunity of a renewal of the lease was in itself a distinct asset of the partnership in which all the partners had an interest, and that the value of that right must be determined as an expectancy only, and not as a certainty. The case here presented is wholly different. This is not a bill for an account. Even if Snyder, after the dissolution of the firm, furnished the money with which Deibert bought the engine and boiler from the knitting company, the firm of Snyder & Seifert was not thereby deprived of any right or expectancy. The firm still stood in relation to the property in the same position that it had formerly occupied. All that it had to do, in order to retain possession of the boiler and engine, was to pay the rent according to the covenants of the agreement under which it had acquired the possession. There is no allegation in the affidavit that the money which Snyder advanced to Deibert was the property of the firm. If a partner, with his own money, buys the store in which his firm carry on business and which they hold under a lease, the partnership is not thereby released from its covenants to pay rent, it must still pay according to the terms of the lease, although a member of the firm has become the landlord.

The affidavit of defense does not allege that Sprenger had notice or knowledge, at the time he acquired title to the boiler and engine, that Snyder had furnished the money with which Deibert bought of the knitting company. It is a well-settled rule that implied trusts will not be enforced against a bona fide purchaser of the legal title from an original trustee for a valuable consideration, and without notice of the equity of the person in whose favor the trustee holds. The assignment to Sprenger purported upon its face to be for a valuable consideration and the affidavit of defense does not aver that it was not so. The affidavit states that the assignment to Sprenger was made to secure him for an indebtedness due him from Snyder, but it does not state whether that indebtedness had been pre-existing or was contracted at that time. We must assume that the defendant made his affidavit as strong as the facts would permit, and upon the facts as presented Sprenger was an innocent purchaser for value, and his title was good as against any secret trust of which he had no notice.

The transactions between the knitting company and Deibert, and the latter and Sprenger did not involve a sale of a chose in action. The legal title to the boiler and engine, with the right to the rental and to take possession in case the defendants failed to pay, was what each of the purchasers in turn acquired. Seifert could have retained possession of the property by paying the rental according to the terms of the lease, but this he failed to do. The assignments of error are overruled.

The judgment is affirmed.


author: Orlady, J.,

text:
    Stephenson, Appellant, v. Dodson.

      Corporations — Officers—Foreign corporations — Registration—Bond— Individual liability of officers.

    The officers of a foreign corporation not registered in Pennsylvania, cannot be held individually liable for money paid for a bond of the corporation, where it appears that although they signed the bond in their official capacity, they did not sell, negotiate or deliver the bond, nor receive the money, and that when'the bond left their hands it was without validity because it was not certified by the trustee of the mortgage..
    The incorporators and members of a foreign unregistered corporation are not liable as partners for the debts of the corporation.
    When the execution of a contract is by written obligation, or sealed covenants, the agent signing it cannot be sued upon the instrument itself, unless there be apt personal, contractual words of his own, or he signs it as his own.
    Argued Dec. 5, 1907.
    Appeal, No. 185, Oct. T., 1907, by plaintiff, from judgment of C. P. Northampton'Co., Feb. T., 1906, No. 14, for defendants on case tried by the court without a jury in suit of L. B. Stephenson v. Truman M. Dodson and Josiah Bachman, partners, trading as The Dodson Lead and Zinc Co.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Assumpsit to recover money paid for a bond of a nonregistered corporation.
    Scott, P. J., filed the following opinion:
    THE PACTS.
    From admissions in the pleadings, and from testimony, where disputed, I find them to be:
    1. The plaintiff, above named, is the holder for value of a bond (No. 76), purporting to be the obligation of the “Dodson Lead and Zinc Company,” issued at Bethlehem, this county. It is one of a series of 200, each in the sum of $500, dated March 1, 1894, signed by Truman M. Dodson, as president, attested by Josiah Bachman, secretary (these two defendants), and payable “At its office in Bethlehem, Penna., on the first day of March a. d., 1914.” The payment of these bonds' was secured by a trust mortgage of the corporation, executed the same day, upon all its real estate, appurtenances and plant equipments in the state of Missouri. Coupons for semiannual payments of interest, on the first day of March and September, were attached to each bond, signed by “Josiah Bachman, Treasurer.”
    2. The Dodson Lead and Zinc Company is a corporation, created and organized in the state of West Virginia, September 8, 1891, “For the purpose of mining, preparing for market and selling lead, zinc and other mineral in Wright County, Missouri, and elsewhere; and manufacturing and selling the products thereof, and of purchasing lands, and erecting buildings and machinery for the purpose of such mining and manufacture.” The incorporators were all citizens of Pennsylvania. It was stipulated in the certificate of incorporation, approved and issued by the secretary of state of West Virginia, that it “Shall keep its principal office or place of business at Bethlehem in the County of Northampton and State of Pennsylvania.” It was admitted to do business in the state of Missouri, pursuant to certificate of the secretary of state, dated November 28, 1892. It was not then nor since registered in the state of Pennsylvania, as required by the Act of assembly, April 22. 1874, P. L. 108, relative to foreign corporations.

      3. The bonds contain, upon their face, the recital that they are issued in pursuance of the resolution of the board of stockholders, “Held at the principal office of the Company at Bethlehem, Penna.,” on January 22, 1894, and of the action of the board of directors of said company, held at the same place February 5, 1894. They contain also the following provision: “Upon default being made in the payment of any coupon or semiannual payment of interest hereon for the period of six months after the same is due, the whole principal sum hereof and interest to said date will become due and collectible upon the request of one or more bondholders holding an amount in the aggregate of Ten Thousand Dollars made to said Trustee, as specified in said Mortgage or Deed of Trust.”
    No request has been made to the trustee, according to this stipulation. Default has existed in payment of the interest aforesaid, since March 1, 1904, and this suit was instituted December 21, 1905.
    4. The money loaned upon the bond now held by plaintiff, and all others of the issue, secured by the mortgage aforesaid, was not loaned to, or received by, either of these defendants individually, nor as agents of the Dodson Lead and Zinc Company. It was borrowed by the company, and applied to the improvement and development of its property in the state of Missouri. Truman M. Dodson signed the bonds, as president, and Josiah Bachman attested them, as secretary, affixing the corporate seal thereto, in compliance with the instructions, and by virtue of the supposed authority, embraced in the resolutions of the meeting of stockholders, and board of directors, specified in the last preceding paragraph, and without any fraudulent purpose or deceit. I cannot find that either of them had any further or personal agency in negotiation of the bonds.
    5. The company’s property is situated in Missouri, and its capital, from the time of incorporation, invested there. But its funds were deposited here, and the treasurer paid out annually $6,000 for ten years, as interest on its bonds, issued as above mentioned. It maintained at that place a business office, with superintendent, who employed a clerk, in the city of Mansfield, where accounts were kept in ledger, journal and daybook, and the product of the mines and manufactory sold. The general superintendent was employed by resolution of the board of directors, at a meeting in Bethlehem. He made report of his business affairs at intervals of time, longer or shorter in duration, to the secretary in Pennsylvania, who from them kept accounts of his own. Stock was issued by corporate action at Bethlehem, largely for the property purchased in Missouri, but some of it was sold to subscribers here. Employees were hired and paid at the superintendent’s office, but money was.borrowed in considerable sums at Bethlehem, upon the company’s note, and the proceeds remitted to him for the pay-roll accounts, during the periods of development, and afterwards the machinery was purchased by him, and contracts made therefor, but the directors had set a limitation upon the price. More available assets were required, and the bonds were issued for that purpose by the action of stockholders and directors at Bethlehem, as hereinbefore stated. No corporate or business meeting of the stockholders or directors was ever held in Missouri, or West Virginia, but all of them in Pennsylvania, at the. office established at Bethlehem. This office building did not belong to the corporation, but to Dodson and Company, coal dealers, by whom it was used. The secretary was their employee. He kept in his desk there, the corporate seal, stock ledger, transfer books, ledger and daybook of the business affairs at the mines, made up in abbreviated form from the reports of the superintendent. The directors and other officers were all residents of Bethlehem, or near its vicinity; and all the stockholders, with one or perhaps two exceptions, were citizens of Pennsylvania. At the corporate meetings, the company was organized, and by-laws adopted, options accepted, stock issued and subsequently increased; land purchased by assessment of the shares and otherwise; an agent appointed in West Virginia to accept service; debenture bonds were exchanged for the first mortgage bonds; the price of the latter fixed with rebate allowance, and a sinking fund created. The superintendent’s authority in Missouri, was subject to that of the stockholders, and his action, at different times, was approved. These specific findings are not required to be prefaced by a statement of all the testimony, respecting them, in detail: Eichman, Receiver, v. Hersker, 170 Pa. 402. They are based upon the evidence, relating to a period of time prior to or closely contemporaneous with the date of these bonds. That which refers to time subsequent thereto, admitted under objection, is disregarded as irrelevant; the motion to strike it out is allowed, and under the reservation at the trial, it will be considered as again offered, and a bill sealed for the plaintiff. The operations of the company in Missouri ceased in 1898.
    If it be a fact, and not a conclusion of law, I further find that the Dodson Lead and Zinc Company was "doing business ” in Pennsylvania in January, February and March, 1894.
    CONCLUSIONS OF LAW.
    1. The Dodson Lead and Zinc Company, a foreign corporation, was “doing business” generally in' Pennsylvania (without registration), at the time the bond in suit was issued; and the issue of which it is one, was part of that business for the purpose expressed in the resolutions by which it was authorized: Steel Tube Co. v. Riehl, 9 Pa. Superior Ct. 220,
    2. The members of a foreign, and unregistered corporation in Pennsylvania are not liable as partners, upon negotiable bonds, issued under the seal of said company.
    3. The president and secretary, who affixed the corporate seal to them, and attested it by their signature in these capacities, pursuant to a resolution of stockholders, but did not negotiate the bonds personally, nor receive the money, are not individually responsible for payment to the holders, as agents, without authority from an unknown or unrecognized principal.

      Error assigned was the judgment of the court.

      George R. Booth and H. J. Steele, for appellant. —
    The fact that the bond in suit is in form the bond of the Dodson Lead and Zinc Company, a corporation of West Virginia, does not estop the plaintiff from recovering against the defendants: Sheble v. Strong, 128 Pa. 315; Eliot v. Himrod, 108 Pa. 569; Hopkins v. Mehaffy, 11 S. & R. 126; Swan v. Watertown Fire Ins. Co., 96 Pa. 37; Hagerman v. Empire Slate Co., 97 Pa. 534; Pittsburg Const. Co. v. West Side R. R. Co., 16 Pa. Dist. Rep. 670; Delaware River Quarry, etc., Co. v. Pass. Ry. Co., 204 Pa. 22; List v. Com., 118 Pa. 322; Thorne v. Travelers’ Insurance Co., 80 Pa. 15; Silk Mfg. Co. v. Reilly, 187 Pa. 526; West Jersey Ice Mfg. Co. v. Armour & Co., 12 Pa. Superior Ct. 443.
    July 15, 1908:

      W. S. Kirkpatrick, of Kirkpatrick & Maxwell, for appellee.—
    One who deals with a corporation as such cannot impeach its corporate character by showing that conditions precedent to the existence of the corporation had not been complied with: Johnston v. Elizabeth B. & L. Assn., 104 Pa. 394; N. Y., etc., Bank v. Crowell, 177 Pa. 313; Bond v. Stoughton, 26 Pa. Superior Ct. 483.
    No action can be maintained against the officers individually: Hopkins v. Mehaffy, 11 S. & R. 126; Hagerman v. Empire Slate Co., 97 Pa. 534; Swan v. Fire Ins. Co., 96 Pa. 37.
   Opinion by

Orlady, J.,

The plaintiff brought an action in assumpsit to recover from the defendants, jointly and severally, “by reason of their signing, executing, issuing and selling to him a bond, in the sum of $500.00 of the Dobson Lead & Zinc Company; the said defendants assuming to act as officers and agents of said company without lawful authority from it, and in violation of the laws of Pennsylvania, it not being registered in this commonwealth, as required by the Act of Assembly, April 22, 1874, P. L. 108, relating to foreign corporations.”

It was agreed by counsel that a trial by jury be dispensed with, and the case was submitted to the court, under the act of 1874. After a full hearing, a judgment was entered in favor of the defendants to which the plaintiff excepted and this appeal was then taken. The trial of the case took a wide range in the court below, as did its argument in this court, and after a careful examination of all the testimony, we fully concur in the findings of fact as determined by the court below, and the conclusions of law based thereon.

The plaintiff is a holder for value, of a bond purporting to be an obligation of the Dobson Lead & Zinc Company, dated March 1, 1894, signed by Truman M. Dobson, as president, and attested by Joshia Bachman, secretary (the two defendants), and payable at the company’s office at Bethlehem, Pennsylvania, on March 1, 1914. The payment of this, and of the other bonds of the series, was secured by a trust mortgage of the corporation, executed the same day, upon all its real estate, appurtenances and plant equipment in the state of Missouri. The conception and consummation of the business of this defendant company was quite out of the ordinary. The company was created and organized in the state of West Virginia on September 1, 1891: “For the purpose of mining, preparing for market and selling lead, zinc and other minerals in Wright County, Missouri, and elsewhere, and manufacturing and selling the products thereof, and of purchasing lands, and erecting buildings and machinery for the purposes of such mining and manufacturing.”

The incorporators were all citizens of Pennsylvania, and its certificate of incorporation provided that it “Shall have its principal office or place of business at Bethlehem, in the County of Northampton, and State of Pennsylvania.” None of its property was situated in Pennsylvania and its capital was all employed in Missouri, except a small part which was retained to pay the interest on the bonds. Moreover, it was never registered in this state, although the general management of its affairs was conducted at Bethlehem, Pennsylvania.

The court found specifically that the money loaned'upon the bond, now held by the plaintiff, was not a loan to) nor received by, either of these two defendants individually, nor as agents of the Dobson Lead & Zinc Company. It was' borrowed by the company and applied to the improvement and development of its property in the state of Missouri. The defendants signed the bonds as president and secretary and' affixed the corporate seal thereto in compliance with instructions given by virtue of a resolution passed at a regular stockholders’ meeting, and by the action of the board of directors pursuant thereto; and neither of the defendants had any further or personal agency in the negotiating of the bonds.

The plaintiff’s right to recover must be founded oh a contract, either express or implied, and the only question before us is as to his right to recover, in this form of an action, against these defendants as individuals. The court below properly held that the general rule respecting the liability as partners of incorporators and members of foreign unregistered corporations did not prevail in Pennsylvania. There is here, no statute, as exists in some states, which'imposes such an absolute individual responsibility. In reaching this conclusion, the learned judge relied for argument and authority on Guckert v. Hacke, 159 Pa. 303; N. Y. Nat. Exchange Bank v. Crowell, 177 Pa. 313; Montgomery v. Forbes, 148 Mass. 249; Merrick v. Van Santvoord, 34 N. Y. 208; Bond v. Stoughton, 26 Pa. Superior Ct. 483, which are to the effect that the defendants would not be liable to the plaintiff as partners merely because they were members of the corporation, nor by reason of their signatory designation as officers of the company, it nowhere appearing, either in the writing or at the time the bond was delivered, that the transaction was or purported to be their personal contract.

When the execution of a contract is by written obligation, or sealed covenants, the agent cannot be sued upon the instrument itself, unless there be apt personal contractual words of his own, or he sign it as his own: Story on Agency (9th ed.), sec. 264, and notes. These essentials are lacking in the case before us, in that there are no personal covenants of the defendants, nor is the instrument sealed by them, but by the corporation, and authenticated only by their signatures as president and ■ secretary, according to the instruction of the stockholders’ resolution: Hopkins v. Mehaffy, 11 S. & R. 126. And in these essentials it is therefore clearly distinguishable from Quigley v. DeHaas, 82 Pa. 267; Kroeger v. Pitcairn, 101 Pa. 311, and McConn v. Lady, 10 W. N. C. 493.

It plainly appeared by the uncontradicted testimony that by virtue of their implied agency, as president and secretary, they did not sell, negotiate or deliver the bond, which was without any corporate validity, even if registration of the company in this commonwealth had been effected, for the reason that it lacked the counter signature of the trustee, which, by the very terms of the bond, — “This bond shall not be valid unless countersigned by the Trustee” — was essential to its validity. Neither did they receive any money, and it does not appear that they had any further relation to it than as official representatives of the company. The rule which holds an agent responsible where he contracts for the benefit of a principal, without having due authority, is founded upon the supposition that the want of such authority, is unknown to the other party: Story on Agency, sec. 265. In the present case the bond carried on its face, the distinct notice that it required the signature of the trustee to give it validity, so that the case is clearly distinguishable, under these facts, from the case of Lasher v, Stimson, 145 Pa. 30. Whenever individual responsibility is imposed by statute upon officials for corporate actions, in excess of power, it is in the nature of a penal provision, and is not to be extended, by construction, to cases not clearly within the law: Chase v. Curtig, 113 U. S. 452.

It is not necessary to a decision of this case, to dispose of the other questions raised, as under the facts found by the court, which are fully supported by the evidence, the defendants neither jointly nor severally held any personal, contractual relation to the plaintiff. There is no direct evidence as to how, nor by whom the bond was delivered, nor to whom the money was paid, nor as to the person or persons who received the money for the bonds; and the court having specifically found that they did not sell, negotiate or deliver the bond, nor receive the money, and that when they left their hands they were without validity, the cause of action falls.

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


text:
    Trexler v. Kuntz, Appellant.

      Equity — Equity jurisdiction — Equitable assignment — Multiplicity of suits — Accounting. /] A

    Where a building (Mmfcractor assigns moneys due him from the/mer, and the assjgnuq notifies the owner, the ; ' ment is an equitable assignment, afrcFnas priority over an earli ¡ignment as to which no signments are followed by attachments against the moneys due by the owner to the contractor, and the fund is not sufficient to pay all of the ity against the' ownerHaaid the other claimants, for an accounting, and for a distribution of the fund. In such a case the remedy-in-equity-is jnore convenient aq.d. adequate, and the assignee will not be driven to his remedy at law. notice had been given to the owner. In a case where the two as-claims, and has notJn fast been definitely-ascertained as to amount, the owner of the equitable assignment having priority, may file a bill in equiSSl

      Constitutional law — Mechanics’ liens — Attachment execution — Act' of June 4, lfiOl^P. L. 431.
    The provisions of the Act of June 4, 1901, P. L. 431, which gives to a subcontractor or material man the right to issue an attachment execution against the owner or other party indebted to the contractor for labor or materials furnished, is special legislation in favor of a special class of creditors, and offends against art. 3, sec. 7, of the constitution which forbids the general assembly from passing any local or special law “ providing or changing methods for the collection of debts, or the enforcement of judgments.”
    Argued Dec. 3, 1907.
    Appeal, No. 22, Oct. T., 1907, by-defendants, from decree of C. P. Lehigb Co., June T., 1905, No. 2, on bill in equity in case of Harry C. Trexler et al., trading as Trexler Lumber Company, v. Laura M. Kuntz et al. and Jacob W. Grim et al., trading as Grim Brothers.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an account and to declare priority.
    The opinion of the Superior Court states the case.

      Error assigned was the decree of the court.

      Milton C. Henninger, with him Edwin H. Stine, for appellants. —
    It is the province of equity to protect legal rights that have first been established in a court at law. Legal rights are not established in equity. Nor can the bill in equity brought in this case be sustained as a creditor’s bill: Philadelphia Granite and Blue Stone Company v. Douglass et al., 14 Pa. C. C. Rep. 234; Patterson v. Lane, 35 Pa. 275.
    The assignment to the appellants was an equitable assignment: Beaumont Bros. v. Lane, 3 Pa. Superior Ct. 73; Hill v. Witmer, 2 Phila. 72; Botsford v. Lull, 30 Pa. Superior Ct. 292; Cooper Brass Works v. Nass, 30 Pa. C. C. Rep. 319.

      Reuben J. Buiz, with him J. Thos. Schantz, for appellees.—
    The court did not err in overruling the demurrer: Phœnix Iron Co. v. Phila., 2 W. N. C. 596.
    A partial__asgjgnment of a debt is not_enfprceable against the debtor by an action at law, but when made for a valuable consideration, it is enforceable in equity: Fairgrieves v. Lehigh Nav. Co., 2 Phila. 182; Jermyn v. Moffitt, 75 Pa. 399.
    When the remedy at law-is inadequate or incomplete or inGonvenien-t, the jurisdiction of equity is not ousted: Socher’s Appeal, 104 Pa. 609; Crawford County v. Bank, 164 Pa. 109; Bierbower’s Appeal, 107 Pa. 14; Johnston v. Price, 172 Pa. 427; Brush Electric Co.’s App., 114 Pa. 574; Bank of Virginia v. Adams, 1 Parsons, 534; Adams v. Beach, 1 Phila. 99; Apollo Trust Co. v. Safe Dep. Co., 31 Pa. Superior Ct. 524.
    The order offepwellees was an equitable assignment, 'while-that of appellamswas not: Greenfield’s Est., 24 Pa. 232; Farmers’ & Mechanics’ Ins. Co. v. Simmons, 30 Pa. 299; Lloyd v. McCaffrey, 46 Pa. 410; Com. v. American Life Ins. Co., 162 Pa. 586; Nesmith v. Drum, 8 W. & S. 9; Patten v. Wilson, 34 Pa. 299; Caldwell v. Hartupee & Co. for use, 70 Pa. 74; Lumber, etc., Co. v. Marsh, 91 Pa. 96; Ruple v. Bindley, 91 Pa. 296; Moeser v. Schneider, 158 Pa. 412; Beaumont Bros. v. Lane, 3 Pa. Superior Ct. 73; Cooper Brass Works v. Nass, 30 Pa. C. C. Rep. 319.
    Irrespective of the character of appellants’ order, the appellees are entitled to priority- on the question of notice to the holder of the fund assigned: Phillips’ Est., 205 Pa. 515, 525.
    July 15, 1908:
   Opinion by

Porter, J.,

Cyrus Kuntz, being thy oWner of a lot in the cRy of Allentown, on May 23,1903, entered into a contract wi|H0L J. Meixell for the erection of a building thereon, the contract containing a stipulation that no., mechanic’s lien, should be filed against said building for work done or material furnished in and about the erection of the same, which said agreement was entqred_ofrecord in the office of the prothonotary of Lehigh county on the day of its execution, and was duly indexed as required by law. Meixell at once began the work of erecting the building, which was in progress when, on July 8, 1903, Cyrus Kuntz died, having first made his last will and testament of which Laura M. Kuntz was appoinfm.sole executrix, which will was duly probated and letters testamentary issued thereon. Meixelroontinued the work, under the direction of the executrix, until March 17, 1904, when he became financially embarrassed and made an assignmen^foj the benefit of creditors. The building was at that time substantially completed and Laura M. Kuntz, executrix, took charge of the operation and completed some minor details. The building contract between Kuntz and Meixell required that the building should be completed on September 30, 1903, and that the owner, Kuntz, should be entitled to liquidated damages at the rate of $5.00 for every day thereafter that the work should remain unfinished. The plans were changed, by the executrix and her architect, in material respects during the progress of the work, and Meixell became entitled^to additional time on account of these changes. The principal part of the building was completed in October, 1903, and’of that part the executrix, by her tenants, then took possession. When the building was completed there was a balance due_from Laura M. Kuntz, executrix, for the erection thereof, but in order to ascertain the amount of that balance it was necessary to enter into an account of the various sums to be allowed for the additional work resulting from the changes in the plans and the damages to which the Kuntz estate was entitled because of the delay in the completion of the building, and for the expense of finishing the details; and there was a dispute as to who was entitled to receive this balance, whatever it might be. Meixell had executed and delivered to Grim Brothers, appellants, the following order:

“Allentown, Pa., January1904.

“Mrs. Kuntz Estate^:

“Please pay tc/Grim Brothers or order nine hundred, fifty /i one and sixty oneTiundredth dollars for brick furnished to Item Building and charged to M. J. Meixell. $951.60.” A

A

He had, on January 19, 1904, executed and delivered to the Trexler Lumber Company the following equitable assignment:

“Allentown, Pa., January 19, 1904.

“To the Estate of CyrusKuntz: "

“Please pay to th^MxLer-Lumber Company $1500 out of the moneys due me online contract for the erection of the Item Building, and charge the same to my account.

“M. J. Meixell.”

Thejkexler Lumber Company, on January 19, 1904, gave notic®oj? this assignment to Laura M. Kuntz, executrix. Grim brothers, on March 12, 1904, brought an action against M. J. Meixell in the court of common pleas of Lehigh county to recover the sum of $951.60 for materials furnished to said building and, having filed an affidavit setting forth the facts, summoned therein the said Laura M. Kuntz, executrix, as garnisheg, under the provisions of the mechanic's lien lajs^of June 4,1901, P. L. 431, secs. 28 and 29. On the same dajfsmgreaves, Swoyer & Company brought similar actions agSSnst the same defendants, the former claiming $199.73 and the latter claiming $433.20, for materials furnished the same building. The balance owing by Laura M. Kuntz, executrix, for the completion of the building was insufficient to pay the amount which had been assigned to the ^Ti^xler Lumberjpompany and the claims of Grimj£Brothers, Masters and S^g^reaves, Swoyer & Company. The plaintiffs, on April 22,1905^nled a bill in equity in this case, averring the foregoing facts, and praying (1) that the amount due by said Laura M. Kuntz, executrix of Cyrus Kuntz, deceased, for the erection of said building, be determined. (2) That it be further determined to whom said sum so found to be due shall in equity be paid. (3) That the order delivered by Meixell to the Trexler Lumber Company, above recited, be decreed to be an equitable assignment of $1,500, out of the money due by said Laura M. Kuntz, executrix, on the contract for the erection of said building, and that said assignment be prior and superior to all other claims against said fund. (4) That it be decreed that the said Laura M. Kuntz, executrix, pay to the Trexler Lumber Company the said sum of $1,500, with interest thereon from January 19, 1904. (5) That the balance of said fund be distributed to the parties entitled thereto in accordance with their respective rights. Grim Brothers, the appellants, demurred to the bill upon the ground that the complainants had a full and adequate remedy at law, and that the court was without jurisdiction in equity. The other defendants made no objection to the jurisdiction and filed answers. The demurrer of Grim Brothers having been overrul ed^thev also filed an answer. The cause proceeded to a final hearing and the court entered a decree determining the amount due by Laura M. Kuntz, executrix, for the erection of the building, and .awarding that amount to the Trexler Lumber Company. Grim Brothers alone appeal.

The first, second and third specifications of error relate to the action of the court below, in oyerr-ul-ing the Memilrrer of the appellants and entertaining jurisdiction of the bill. The averments of the bill disclosed that the amount of the fund in the hands of Laura M. Kuntz, executrix, was uncertain, but they also showed that it was not sufficient to pay all of those who were asserting claims upon it. ThiflTpxler Lumber Company held an order which was unquestionably an equitable assignment of $1,500 of the fund, and of this assignmeiyWhey had given notice to the executrix on January 19, 1904.\Jjb¡im Brothers held an order from Meixell upon “Mrs. Kuntz Estate,” whatever that estate might be, which they asserted was an equitable assignment of a part of the same fund. Three separate and independent actions had been brought, bjLQrim Brothers, <Mas\ers and Seagreaves, Swoyer & Company, in which attachments had been served on the executrix, claiming the right to participate in the distribution of the fund. The rights of these various claimants^were adverse to each other, yet in the various actions which had been brought, and which were proposed, they would not be brought face to face in one proceeding where all could be heard and where the rights of all could be determined. The» plaintiffs held an equitable assignment of a part of the fund. Slit is not necessary in this case to determine whether they could have maintained an action at law, against the executrix, to collect the part of the fund so assigned. At common law a chose in action could not be assigned. The assignee had no standing whatever in a common-law court; the assignment was null. In equity, however, whenever the assignment was founded upon a valuable consideration, and when it would therefore be unfair to allow a person to pay value without giving a substantial equivalent, an entirely ne;w title was created, distinct from and independent of the legal title, which still remained in existence, but was held by the assignor solely for the benefit of the assignee. The method of asserting this title was by allowing the assignee to use thejipTpfi nf gnnr in an action at law to recover the chose, and by restraining the latter from any interference in this suit. If the assignor refused to allow his name to be used, or any other reason existed which called for the direct interposition of chancery, the assignee was entitled to file a bill in equity and his title to the chose was immediately recognized and enforced: Bispham’s Principles of Equity (7th ed.), 27. “In the absence of chancery powers in our courts, equitable relief was afforded wherever practicable, in common-law forms. When later the legislature granted equitable powers it was held that if the subject of a bill was one within the proper and established jurisdiction of chancery the intervention of a new remedy in common-law form, or the extension .of an old one, would not necessarily oust the equitable jurisdiction:” Wesley Church-v. Moore, 10 Pa. 273. “The question raised in this case is not alone whether the plaintiff has a remedy at law for that remedy he clearly has, but whether in view of the facts it is an adequate one. It may be conceded that the time is not very remote in our judicial history when a wronged party sought the intervention of equity and he could be truthfully met by the reply, you have a remedy, at Jaw, in an action for damages, such reply would have been the end of his bill; he would have been turned out of court for want of jurisdiction. But this answer is no longer conclusive as to the jurisdiction; courts now go farther and inquire whether under the facts the remedy at law is not vexatiou&ly-inconvenient, and whether it is so proximately. certain as to be adequate to right the wrong complained of:” Gray v. Citizens' Gas Company, 206 Pa. 303. The questions turn in many cases on the complete'ness, adequacy and convenience of the remedy at law, and the decisions of the Supreme Court of Pennsylvania have been liberal in the consideration of all these elements. When the remedies, at law would be cumbersome, inconvenient and inadequate equity will entertain jurisdiction of the bill: Boyd v. American Carbon Black Company, 182 Pa. 206; Johnston v. Price, 172 Pa. 427; Crawford County v. Bank, 164 Pa. 109; Conemaugh Gas Company v. Gas Company, 186 Pa. 443; Pennsylvania Railroad Company v. Bogert, 209 Pa. 589; Cook v. Carpenter, 212 Pa. 165. The plaintiff held an equitable assignment of a part of the fund and these appellants asserted that they also held an equitable assignment of a part of the fund; the fund was not sufficient to pay both, and in addition there were other creditors who had attached the fund; it is manifest that the conflicting rights of these parties could most promptly and most satisfactorily be determined by a proceeding in equity, to which all were made parties. The demurrer was, therefore, properly overruled.

P equitable assignment of $1,500 of the fund to the Trexmber Company was entitled to priority in payment over wie order given by Meixell ta Grim Brothers for two reasons. the order held by Grim Brothers didjmt designate The iund-_nut of which the amount was to be paid, and for that reason did not operate as an equitable assignment of the amount for which the order was drawn: Bispham’s Principles of Equity, secs. 165 and 167; Greenfield’s Estate, 24 Pa. 232; Clemson v. Davidson, 5 Binney, 392; Farmers’ & Mechanics’ Insurance Company v. Simmons, 30 Pa. 299; Commonwealth v. American Life Insurance Company, 162 Pa. 586. Second, the court below originally found, “That Laura M. Kuntz as execu^x anc^ individualidad notice of the order of M. J. ^Meixell, the contractor, t</Grim Brothers on the 11th day of January, a. d. 1904, the day'when tn| order was given,” but subsequently corrected this finding anAVound as a fact, “That Grim Brothers never gave any legal.^ptigMio Laura M. Kuntz, executrix, of their order.” We have carefully examined the testimony and are convinced that the conclusion finally reached by the court below upon this point was correct. Therpswas no evidence which would have warranted a finding tha/Gnm Brothers had given notice of their order to Laura M. Kuntz, executrix. The order held by Grim Brothers was prior in date to that of the Trexler Lumber Company, but as the former had failed to give notice-of their alleged equitable assignmeah-to Laura M. Kuntz, executrix, and the Trexler Lumbef Company had given notice of their equitable assignment, upon the day of its date, the claim of the latter takes precedence to that of the former: Phillips’s Estate (No. 3), 205 Pa. 515, and Phillips’s Estate (No. 4), 205 Pa. 525.

The appellants were not entitled to participate in the distribution of the fund by virtue of their action under the mechanic’s lien law against the contractor, Meixell, in which they summoned Laura M. Kuntz, executrix, as owner, under the provisions of the twenty-eighth and twenty-ninth sections of the Act of June 4, 1901, P. L. 431. The provisions of that statute which give to a subcontractor or material man the right to issue an attachment execution against the owner, or other party indebted to the contractor for labor or materials furnished, is special legislation in favor of a special class of creditors, and offends against article 111, sec. 7 of the Constitution which forbids the general assembly from passing any local or speciaLlaw “providing or changing methods for the collection of debts, or the enforcement of judgments:” Vulcanite Portland Cement Co. v. Allison, 220 Pa. 382; Vulcanite Paving Co. v. Philadelphia Rapid Transit Co., 220 Pa. 603. All the specifications of error are overruled.

The decree is affirmed and the appeal dismissed at costs of the appellant.


text:
    Yeadon v. White, Appellant.

      Boroughs — Burial of the dead — Ordinances—Acts of April 3, 1851, P. L. 320 and May 1, 1905, P. L. 330.
    Where an undertaker who has obtained a permit from the board of health of a city for the burial of the body of a person who died in the city, undertakes to bury the body in a nc'ghboring borough, he must also obtain a burial permit from the board of health of the borough, and pay the fee therefor as required by the borough ordinance.
    There is nothing in the Act of May 1, 1905, P. L. 330, which renders invalid or abrogates a borough ordinance passed under the authority of the Act of April 3, 1851, P. L. 320, requiring permits to be taken out for the burial of the dead.
    Argued Nov. 22, 1907.
    Appeal, No. 195, Oct. T., 1907, by-defendant, from order of Q. S. Delaware Co., Sept. T., 1906, Miscellaneous Quarter Sessions Book, C. P. 263, affirming judgment of summary conviction in case of Yeadon Borough v. John J. White.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Appeal from summary conviction. Before Johnson, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      Morton Z. Paul, for appellant. —
    We contend the sovereign police power is in the state. The borough gets its police power from the state, which extends that power to it; and that if the state passes a health statute by reason of its sovereign police power, which does not detract from the protection given its subjects by local legislation, but gives them a greater oroteetion, the local authorities cannot resist the enforcement of the state police regulation, as has been done in the case at bar, by arresting and fining the appellant and hundreds of others who were trying to carry out the state law: Dobbins v. Los Angeles, 195 U. S. 223; Ex parte Campbell, 74 Cal. 20 (15 Pac. Repr. 318); Ex parte Roach, 104 Cal. 272 (37 Pac. Repr. 1044).
    July 15, 1908:

      V. Gilpin Robinson, with, him Isaac E. Johnson, for appellee. —
    The act of May 1, 1905, is unconstitutional if it tries to regulate burials in boroughs, being in conflict with art. Ill, sec. 3, of the constitution: Brazier v. Philadelphia, 215 Pa. 297.
    The act of May 1, 1905, is not exclusive in its terms, and therefore a borough ordinance not clearly inconsistent with the state act is not repealed.
   Opinion by

Orlady, J.,

The defendant, an undertaker, obtained from the board of health of Philadelphia a permit to bury the body of one Mary Walsh, who died in that city. He removed the body to Holy Cross cemetery in the borough of Yeadon, Delaware county, and there buried it without getting an additional permit from the board of health of that borough as required by its ordinance. He was arrested, and after hearing before a local magistrate, was fined $5.00 with costs. Leave to appeal to the court of quarter sessions was obtained by due allowance, and after hearing the judgment of the magistrate was affirmed.

There is no dispute about the facts. The defendant admitted that he ignored the provision of the ordinance, No. 9, of the borough of Yeadon, and his sole defense was that no prosecution can be maintained under it; first, for the reason that it is class legislation and unconstitutional, and, second, that the provisions of the ordinance have been superseded by the Act of May 1,1905, P. L. 330.

The authority to enact the ordinance has its foundation in the Act of April 3, 1851, P. L. 320, which vests in the corporate officers of the borough the power, among other things, "To prohibit within the Borough, burial or interment of deceased persons, or within such partial limits within the same as they may from time to time prescribe, and to regulate the depth of graves, and to make such other regulations as may be necessary for the health and cleanliness of the Borough.”

There are other ordinances which indirectly bear on this question, but they are not involved here, and the appellant's contention is confined to the alleged conflict between ordinance No. 9 and the act of May 1, 1905, the first assignment of error being that the court erred in holding “As to the Act of May 1, 1905, P. L. 330, it is a vital statistics act. It in no way affects the ordinance.” Section 5 of the act provides, inter alia, “But when a body is removed from a district in Pennsylvania to an adjacent or nearby district, for interment, not requiring the use of a common carrier, or the use of a transmit permit, then the registrar’s removal permit from the district where the death occurred may be accepted as authority for burial.”

The requirements for burial provided in this act of 1905, are not necessarily in conflict with the requirements of the borough ordinance. While each refers to the same subject-matter — the burial of a human body — the act does not prevent a borough from regulating interments within its limits, or the charging of a reasonable fee therefor. Whether the state may take from the borough the whole power of police regulation in such cases is a question not necessary to decide here. The state does not attempt to do it in this instance, and those who have charge of the interment and removal of dead bodies are required to comply with both the state and the municipal regulations.

The reasonableness and propriety for such a requirement is found in Brazier v. Philadelphia, 215 Pa. 297, and in the present case, as in that one, it does not appear that the statute was intended to furnish the sole rule of conduct and regulation for the subject-matter of the legislation. The statute and ordinance are parts of a system of vital importance to the health and safety of both city and borough. The supervisory care of collating statistics and insuring safety to the public by proper registration of the cause of death and transfer of bodies by common carrier and ordinary conveyances, from point to point, are fully provided for by the act of 1905, and after a careful examination of the statute we feel that while the state has power to annul the ordinance, it has not clearly declared such an intention, and that the requirement to procure the burial permit granted by the board of health of Philadelphia, as well as the permit of the board of health of the borough of Yeadon, in Delaware county, for the burial of the body in that borough, is not unreasonable, and that both the ordinance and statute may stand.

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


author: Portee, J., Morrison, J.,

text:
    Commonwealth v. House, Appellant.

      Criminal law — Assault and battery — Contradiction of defendant’s testimony — Incidental evidence as to another crime.

    Where the defendant on the trial of an indictment for assault and battery testified that he was at a particular place at a certain hour, and his testimony raises a doubt whether he could have reached the place of the assault at the time it was shown to have occurred, it is not reversible error to permit the commonwealth for the purpose of discrediting and contradicting the defendant to show that the defendant had not been at the place he designated, or at the time he had stated, but that he had been at another place near the place of the assault and at an earlier time, and this is so although the introduction of such evidence may incidentally show that he had committed another assault before he assaulted the prosecutrix.

      Criminal law — Charge—Adequacy of charge — Reference to evidence.

    It is not possible nor even desirable that the judge should refer to and emphasize every item of evidence on both sides in a way that counsel would consider adequate. In doing so he would run the risk of coming to speak as an advocate rather than a judge. Nor is he required to go over all the evidence on a particular point every time he refers to the point in the course of his charge. It is enough if he gives to the jury a general review of the evidence on the one side and the other, which fairly and adequately presents the respective contentions of the parties, with enough reference to the items of evidence to assist the jury in recalling it as a substantial whole, and to appreciate its bearing.

      Criminal law — Reasonable doubt — Good reputation — Charge.
    On the trial of an indictment for a crime it is not reversible error for the court to charge as follows: “If there is such a doubt that prevents your arriving at a satisfactory conclusion of guilt, then the defendant is entitled to the benefit of that doubt. On the other hand,— still speaking about this evidence with relation to reputation, — if upon the other hand you are satisfied in view of all the evidence in the case that the defendant is guilty, then the fact that he has previously had a good reputation is not a defense, that is the material that you make use of in ascertaining whether or not he is guilty and if, looking at that and looking at all the other evidence in the case, you are convinced that this is the guilty man, then your duty is plain and simple.”
    Argued Oct. 7, 1907.
    Appeal, No. 17, April T., 1908, by defendant, from judgment of 0. & T. Westmoreland Co., Feb. T., 1907, No. 12, on verdict of guilty in case of Commonwealth v. F. R. House.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for assault and battery. Before McConnell, J.
    The facts are stated in the opinion of the Superior Court.
    When Emma Byers was on the stand the following offer was made:
    Counsel for the commonwealth offers to prove by this witness that the defendant in this case attempted to assault her, or assaulted her on the porch of the house at the corner of East Pittsburg street and Alwine avenue about the hour of six o’clock on the evening of November 15, 1906. This for the purpose of contradicting the defendant, who denies having met anyone at that point, or having assaulted anyone at that point, or having been at ihat point at all at any time during that evening.
    Mr. Ogden: This is objected to, for the reason that it tends to establish an entirely different crime, and is not material to the issue involved in this case.
    The Court: This being offered in response to the defendant’s testimony with respect to his whereabouts during the time of his stay in Greensburg, his attention having been called to the particular circumstance on which this witness is called to testify about, it is admissible for the purpose named. The objection is therefore overruled. Exception noted.

      “ Q. Will you state to the court and jury where you were along about six o’clock of the evening of November 15, 1906? A. Well, I was through work about twenty-five minutes of six and whenever I was going home from work I was going up there by East Pittsburg street, and this young fellow was coming down and I was going on up putting on my gloves, and this here fellow he went upon a porch as if he was going to the door. Q. Whose porch, now? A. I don’t know the people’s name; the second house. Q. What house is it? A. The second house from Alwine avenue. Q. Is it the house at the corner of Al-wine avenue and Pittsburg street? A. No, sir; the one up this way; high porch on it. Q. The one with a high porch on? A. Yes, sir; a high porch. He went up on the porch and as I got there he jumped down and grabbed me by the shoulders. Then I screamed and got loose from him, then he struck at me, then he run. Q. Is that man in court who assaulted you? Is he in court now? A. Yes, sir. Q. Who is it? A. There he sits (indicating). Q. Is this the man, the defendant here? A. Yes, sir. [3]
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned among others was (3) ruling on evidence, quoting the bill of exceptions; (4) that the charge as a whole was inadequate on the question of identity; and (6) portion of charge, quoted in the opinion of the Superior Court.

      Denna C. Ogden, with him John B. Keenan and Philip K. Shaner, for appellant. —
    That the court erred in the third assignment of error, is found in Shaffner v. Commonwealth, 72 Pa. 60.
    Upon the fourth assignment of error, we think the charge of the court was inadequate in not properly presenting to the jury the law and the evidence upon the question of identity; the only dispute between the commonwealth and the defendant: Bryant’s App., 176 Pa. 309; McCord v. Whitacre, 8 Pa. Superior Ct. 277; Ensminger v. Hess, 192 Pa. 432; Rice v. Com., 100 Pa. 28; Turner v. Com., 86 Pa. 54; Meyers v. Com., 83 Pa. 131.
    July 15, 1908:
    The court erred in the sixth assignment, for good reputation is always a defense: Com. v. Sayars, 21 Pa. Superior Ct. 75.

      Chas. C. Crowell, with him John F. Wentling, Jr., district attorney, and Wm: S. Rial, for appellee,
    cited as to the sufficiency of the charge: Com. v. Zappe, 153 Pa. 498; Kuntz v. R. R. Co., 206 Pa. 162; Kehoe v. Traction Co., 187 Pa. 474; Com. v. Morrison, 193 Pa. 613; Burkholder v. Stahl, 58 Pa. 371; Blank v. Barnhart, 17 Pa. Superior Ct. 214; Provident Life & Trust Co. v. Philadelphia, 202 Pa. 78.
    Cited as to good reputation as an element of defense: Com. v. Harmon, 199 Pa. 521; Com. v. Dingman, 26 Pa. Superior Ct. 615; Com. v. Miller, 31 Pa. Superior Ct. 309; Com. v. Brubaker, 13 Pa. Superior Ct. 14; Borham v. Davis, 146 Pa. 72; Serfass v. Dreisbach, 141 Pa. 142.
   Opinion by

Portee, J.,

The testimony embraced by the first specification of error was admitted without an exception having been taken in the court below, and the specification is dismissed. The evidence offered by the defendant, the rejection of which is the subject of the second specification of error, was manifestly founded upon mere hearsay and it was properly excluded. The second specification of error is overruled.

The defendant had in his direct testimony given a minutely detailed statement of his whereabouts and actions between the time of his arrival in Greensburg and the time of the assault with which he was charged. This was manifestly deemed important by his learned counsel — and it would seem correctly so, to draw out the facts. The defendant had testified that during a considerable portion of the time which he spent in Greensburg he had been at the Fisher House, a hotel. There is no necessity for referring to his testimony as to his whereabouts during the earlier hours of the afternoon, but his testimony was very specific as to his whereabouts and acts during the hour immediately prior to and including the time of the assault. He testified that he recalled taking a drink with a young gentleman at the bar of the Fisher House, that that was the last drink which he took there, and that that drink was taken at about five o’clock in the afternoon. The time having been thus fixed, the examination proceeded, after giving details not necessary to set forth, and the defendant testified as follows: Q. That was the last drinking you did in Greensburg? A. That was the last drink I had in Greensburg. Q. You came upstairs and stayed in the hotel until about six or after six? A. A few minutes after six. Q. You went downstairs and washed your hands and Mr. Lewis was there? A. Yes, sir.” Then followed certain details as to who helped him put on his overcoat, and then came this question and answer: “Q. You had some liquor in you. Well, when you left the Fisher House — what is your best judgment of the time you left the Fisher House? A. I left the Fisher House about ten minutes after six I should say.” The prosecutrix, Miss Baker, had testified that the assault occurred on Saint Clair avenue, near East Pittsburg street. The store at which the prosecutrix was employed closed at six o’clock, she left the store a little after six o’clock, went along Main street to East Pittsburg street and down that street to Saint Clair avenue, where she separated from her companions, started home along Saint Clair avenue and was shortly afterwards taken hold of and stabbed. The assault must have occurred within a few minutes after six o’clock. If the testimnoy of the defendant, that he was at the Fisher House from five o’clock until ten minutes after six, was true, he might possibly have had time to reach Saint Clair avenue at the time the assault was committed, but his testimony, if the jury believed it, certainly tended to raise a doubt whether he had time after leaving the Fisher House to go to Saint Clair avenue and there quietly wait until the prosecutrix arrived. This being so, it was not reversible error, for the purpose of discrediting and contradicting his testimony, to permit the commonwealth to prove that the defendant had not been at the Fisher House during the time that he had stated, and that he had at twenty-five minutes before six o’clock, been on East Pittsburg street within a short distance of Saint Clair avenue and had run in the direction of that street, although the introduction of that evidence might incidentally show that he had assaulted another female. The third specification of error is overruled.

The fourth assignment, in which the charge as a whole is brought up for review, avers that it did not adequately present to the jury the law and the evidence upon the question of identity, that it failed to refer to the fact that another man was seen to flee from the place of the assault immediately after the occurrence, and that it limited the question of reasonable doubt to that which grew out of the evidence of good reputation alone. With reference to the first complaint, we deem it only necessary to quote the language used by the learned judge of the court below in his charge: “But where the emphasis of this case does rest is upon the question of whether the defendant in this case has been the guilty agent in committing these assaults. It is not enough that some one has done this. It must be this defendant in order that he be found guilty, because the inquiry that we are prosecuting here is prosecuted for the purpose of ascertaining whether or not we have before us the man upon whom the heavy hand of legal punishment should be laid for his discipline and for the example of others. That of course makes it essential that it appear from a consideration of the whole case that this was the man who perpetrated those offenses on that day.” This was certainly a clear and full presentation of the controlling issue of fact in the case, the identity of the defendant with the perpetrator of the offense. As to the complaint of the failure of the court to refer to a certain detail of the evidence, it is only necessary to say that the jury could not have failed to understand the relevancy of the evidence referred to. The learned judge did not in his charge pretend to review the evidence in detail, and said to the jury that he was referring to it “only in vague outline.” It has not been suggested that the reference to the facts was partial or one-sided, and a careful study of it has convinced us that it was absolutely fair. The learned judge after referring to many of the points in the evidence favorable to the defendant said: “In addition to these circumstances and many others that will occur to you, he calls to his aid the testimony of persons who have known him before.” And again, referring to the questions of fact: “You are the court of final appeal. The judge of this court has not anything to do with the determination of that question. The law trusts you to do that which is just to every citizen of the commonwealth and just to the defendant, who is as much under the protection of the laws of the commonwealth as any one else.” It is not inappropriate in this connection to quote the remarks of the Supreme Court in Commonwealth v. Kaiser, 184 Pa. 493: “It is not possible nor even desirable that the judge should refer to and emphasize every item of evidence on both sides in a way that counsel would consider adequate. In doing so he would run the risk of coming to speak as an advocate rather than a judge. Nor is he required to go over all the evidence on a particular point every time he refers to the point in the course of his charge. It is enough if he gives to the jury a general review of the evidence on the one side and the other, which fairly and adequately presents the respective contentions of the parties, with enough reference to the items of evidence to assist the jury in recalling it as a substantial whole, and to appreciate its bearing.” The charge delivered by the learned judge in the case at bar fully meets this test. The complaint that the charge limited the question of reasonable doubt to that which grew out of the evidence of good reputation alone is not well founded. The court said, upon the general question: “This defendant when he came into court here, and you were sworn to be his triers, was an innocent man. Every man is so presumed until the proofs in the case remove that presumption,” and again, in the concluding portion of the charge: “There is a substantial thing to be dealt with here and that substantial thing is the question of the defendant’s guilty agency in the perpetration of this offense. If he is not guilty you should say so. The commonwealth don’t ask for conviction about which there is a reasonable doubt. . . . While we keep this in mind we are not to act rashly from any impulse of the heart that our own minds do not follow and thus conclude that this is the guilty man, unless the evidence in the case justifies that conclusion, leads you to that conclusion beyond a reasonable doubt.” The fourth specification of error is overruled.

The record having been remitted by this court to the court below for correction and having been returned properly certified, the fifth specification of error has no foundation in the record as it now stands.

The sixth specification assigns for error the following language of the court, used when charging the jury as to the effect of evidence of good reputation, — “On the other hand, — still speaking about the evidence with relation to reputation, if upon the other hand you are satisfied in view of all the evidence in the case that the defendant is guilty, then the fact that he has had a good reputation is not a defense.” Had this been all that the learned judge said upon the subject it might have been fairly subject to the criticism, by the Supreme Court, of the charge in Commonwealth v. Cate, 220 Pa. 138, that: “It would be confusing to jurors and might lead them to disregard evidence of good character altogether, if from all the other evidence in the case they reached the conclusion that the defendant was guilty. This would clearly be error. ” The specification of error in the present case, however, wrests a single sentence of the charge from the context, while the charge as a whole is clear and unambiguous. A complete answer to the construction attempted to be put upon this single sentence, by the specification of error, is to be found in the immediate context. The learned judge, having in the opening of his charge stated as strongly as could be desired the legal presumption of the defendant’s innocence until that presumption was overcome by proofs, used the following language when instructing the jury as to the effect of testimony as to the good character of the defendant: “For that very reason it is then when a man is so attacked, and he has hitherto deported himself as to give his neighbors a good opinion of him in that respect, that he may call on that good opinion and bring it in here as part of his defense. Although it is different in character from the other testimony in the case, it is not to be regarded as a mere makeweight to be thrown carelessly into a case, but is a part of the testimony that is to be considered in the case, because, as we shall presently tell you, it is the business of the commonwealth to make out a case beyond a reasonable doubt, and it may be in some cases, that where a man has previously borne a good reputation, and that is shown to the jury, that the existence of that good reputation may of itself generate a reasonable doubt in your minds as to whether he was the guilty man or not. That is one of the items of evidence in the case and it is to be considered along with the other evidence in the case.” The charge then proceeds to define a reasonable doubt, and does so in a manner of which even this appellant does not complain. Having thus satisfactorily explained the nature of a reasonable doubt, the court recurred to the effect of such a doubt resulting from the introduction of evidence as to good character, and in this part of the charge occurs the sentence assigned for error. The whole of this part of the charge is in the following language: “If there is such a doubt that prevents your arriving at' a satisfactory conclusion of guilt, then the defendant is entitled to the benefit of that doubt. On the other hand, — still speaking about this evidence with relation to reputation, — if upon the other hand you are satisfied in view of all the evidence in the case that the defendant is guilty, then the fact that he has previously had a good reputation is not a defense, that is the material that you make use of in ascertaining whether or not he is guilty and if, looking at that and looking at all the other evidence in the case, you are convinced that this is the guilty man, then your duty is plain and simple.” These instructions certainly made it clear to the jury that they were to consider good character, if established, as a substantive fact, which might of itself give rise to a reasonable doubt of the guilt of the defendant and entitle him to an acquittal; that they were not to consider the testimony of good character as a mere makeweight, but were to weigh it with all the other evidence in the case in determining the question whether or not the defendant had been proved guilty beyond a reasonable doubt. That it, testimony as to good character, was the material that they were to make use of in ascertaining whether or not he was guilty, and that they must look at that and all the other evidence in the case in passing upon the question. The charge upon this branch of the case was a correct statement of the law: Commonwealth v. Eckerd, 174 Pa. 137; Commonwealth v. Harmon, 199 Pa. 521; Commonwealth v. Beingo, 217 Pa. 60; Commonwealth v. Dingman, 26 Pa. Superior Ct. 615; Commonwealth v. Miller, 31 Pa. Superior Ct. 309. The sixth specification of error is overruled.

The judgment is affirmed, and it is ordered that the defendant appear in the court below and that he be by that court committed to serve such part of his sentence as had not been performed at the time this appeal was made a supersedeas.

Morrison, J.,

dissenting:

The third assignment of error raises the question of the competency of the rebuttal testimony of Miss Emma Byers in substance that on the evening of November 15, 1906, at twenty-five minutes before six o'clock, the defendant assaulted her at the corner of East Pittsburg street and Alwine avenue, in Greensburg. This was at a different time and place than the assault on Miss Baker, and it was in no way connected with the latter assault, which occurred on St. Clair street a few minutes past six o’clock, nor was it material as to the identity of the person who assaulted Miss Baker. In short, the assault on Miss Baker was a separate and independent crime and, in my opinion, no sufficient reason appears to warrant the admission of Miss Byers’ testimony in rebuttal, while the defendant was on trial for assaulting Miss Baker. I think this evidence ought to have been excluded and the jury cautioned not to be influenced by the offer. The testimony of Miss Byers was admitted on the theory of contradicting the defendant. The assault on Miss Byers was not at the time and placó of the assault on Miss Baker and the former knew nothing material about the assault on the latter. I think the testimony of Miss Byers was very prejudicial to the defendant and that it was illegal. It was offered in rebuttal, after the defendant had gone on the stand and admitted his presencce so near the place of the Baker assault, at the time it was committed, that it was quite apparent that he might have been her assailant. Moreover, there was plenty of other evidence, already in, that the defendant was where he might have assaulted Miss Baker. In my opinion, the proof of the Byers’ assault was so in conflict with the general rule on this subject that citation of authorities hardly seems necessary. That there are exceptions to the general rule is not important because I can discover nothing in the evidence to take this, case out of the rule. It is difficult for me to escape the inference that the representatives of the commonwealth sought to get before the jury some evidence that the defendant committed a similar crime shortly before the alleged assault on Miss Baker, for which he was on trial. I think proof of a separate and distinct crime was allowed without any sufficient reason whatever. See Shaffner v. Commonwealth, 72 Pa. 60. I would sustain this assignment.

The sixth assignment of error is from the charge as follows: “On the other hand, — still speaking about the evidence with relation to reputation, — if upon the other hand, you are satisfied in Anew of all the evidence in the case, that the defendant is guilty, then the fact that he previously had a good reputation is not a defense.” The question here is how would the jury be likely to understand this summary of the law by the court. I think there is danger that it was understood to withdraw from their consideration the evidence of good character, if all the other evidence satisfied them of the guilt of the dev fendant; and it may have, practically, been an instruction to the jury that they could find him guilty from the weight of the evidence without giving him the benefit of a reasonable doubt. It is true that the learned court had previously told the jury, in the charge, that the defendant was entitled to the benefit of a reasonable doubt, yet it is likely that this summary (sixth assignment) may have found a lodgment in the minds of the jury and influenced them to find a verdict on the weight of the evidence, disregarding the reasonable doubt and dismissing the evidence of reputation as no longer presenting a defense. The defendant had made a strong showing in favor of his good reputation as a peaceable, law-abiding citizen. If the jury believed the evidence as to his character and reputation, they were asked to find that a young man of good education and excellent reputation, up to November 15, 1906, had on that day attempted to murder a young lady, an entire stranger to him, on a public street in Greensburg, without any apparent motive. It would probably seem to the jury unnatural and unreasonable to suppose him guilty. Surely then, in his hour of peril, he was entitled to have the court accurately instruct the jury as to the effect of evidence of good character as well as the rule of law on reasonable doubt.

The learned counsel for the commonwealth cites Commonwealth v. Miller, 31 Pa. Superior Ct. 309; Commonwealth v. Eckerd, 174 Pa. 137; Commonwealth v. Harmon, 199 Pa. 521; Commonwealth v. Dingman, 26 Pa. Superior Ct. 615, and argue from these authorities that the learned court did not err as alleged in the sixth assignment. But each and all of these cases and many others that might be cited, hold that the jury should be told, “that evidence of good character is substantive and positive proof in the prisoner's behalf, and may give rise to a reasonable doubt, which would not otherwise exist, by making it improbable that a man of such character would commit the offense charged; but when the jury is satisfied beyond a reasonable doubt under all the evidence, that the defendant is guilty, evidence of previous good character is not to overcome the conclusion which follows from that view of the case.”

No case has been cited and I have found, none, satisfying me that the court’s instructions to the jury (sixth assignment) ought to be sustained. I cannot agree that the evidence of good reputation on behalf of the defendant would ever cease to be a substantive defense till a verdict was found. It might not be sufficient in the opinion of the jury, to overcome the other evidence and raise a reasonable doubt, and work an acquittal, but the defendant was entitled to have it correctly submitted to the jury. There were several other items of evidence that might have gone on the scales with the evidence of good reputation, and, together, they might have raised a reasonable doubt. But if the case of Commonwealth v. Cate, 220 Pa. 138, is to be followed something more is required than has been heretofore understood by many judges from the cases last above referred to. In the latter case, the learned judge below charged that “where the jury is satisfied beyond a reasonable doubt of the defendant’s guilt under all the evidence, evidence of previous good character is not to overcome the conclusion which follows from that view of the case.” Of this instruction the Supreme Court said: “While this instruction might be understood by the legal mind as fairly within the rule above stated, it would be confusing to jurors and might lead them to disregard evidence of good character altogether,- if from all the other evidence they reach the conclusion that defendant was guilty. This would clearly be error. Under these circumstances we cannot say no harm was done appellant in this respect although the case in other respects was tried with exemplary care and the rulings of the learned trial judge were fair and impartial. For this reason the judgment must be reversed.”

It is contended that the court did properly instruct the jury in other portions of the charge, but that does not render harmless what I regard as error stated in the sixth assignment: Where the court, in its charge to the jury, states the same proposition of law twice, the first time correctly, the second time incorrectly, it will be inferred that the latter statement is likely to have made a lodgment with the jury, and in some instances, the judgment will be reversed on this ground: Syllabus of Rice v. Commonwealth, 100 Pa. 28.

I would sustain the third and sixth assignments of error, and reverse the judgment and remit the record to the court below for a new trial of the defendant.

Henderson, J., unites in this dissent.