author: Alessandroni, J.,

text:
    Sale v. Schwehm.

      Bell, Trinkle, Truscott & Bell, for plaintiff.

      Morgan, Lewis & Bockius, for defendant.
    March 17, 1930.
   Alessandroni, J.,

— The plaintiff filed a bill, averring that the defendant held certain property in trust for several parties, including the plaintiff, and further averring that the defendant had failed to account to him for his share of the proceeds realized from a sale of part of the property held in trust. Plaintiff, therefore, brought his bill for an accounting.

The defendant filed an answer, averring that the trust agreement relied upon by the plaintiff was obtained by fraud and misrepresentation, and that the plaintiff had not interest of any kind in the property in dispute. The answer further avers that the defendant is indebted to Martin P. Connor and Stacy White, and that the plaintiff is also indebted to these two men. The defendant, therefore, requests an accounting from the plaintiff of the money due him as trustee for Connor and White, or that the plaintiff pay directly to the said Martin F. Connor and Stacy White such sum or sums as may be shown to be due from the accounting to be rendered by the plaintiff.

Martin F. Connor and Stacy White then filed a petition; for leave to intervene, reiterating their interest as set forth in the defendant’s answer, and averring that they wished to intervene to protect their interest and obtain an accounting from the plaintiff of the sums due them. To this petition the plaintiff has filed an answer, setting forth that the defendant had already accounted to the petitioners for their interest in the property, and that, therefore, they had no right to intervene.

The right of intervention in equity rests upon Rule 25, which reads as follows: “By leave of court, any person or persons claiming an interest in a pending suit may be permitted to assert his, her or their right by intervention at any stage of the proceedings; but this shall be in subordination to, and in recognition of, the propriety of such suit.”

An analysis of the pleadings filed in this case discloses that the petitioners are endeavoring to assert their rights under the same state of facts as set forth by the defendant. The defendant in his answer has set forth that no moneys are due the plaintiff, and that, on the contrary, the plaintiff is indebted to him as trustee for Martin F. Connor and Stacy H. White, as a result of various sums received by the plaintiff from the property in question and of various sums advanced by the petitioners, Connor and White. The answer to the petition for leave to intervene merely avers that the defendant is not indebted to Connor and White, and does not refer in any way to the intervening petitioners’ claim for an accounting from the plaintiff, except averring that they are merely cestui que trusts. The claims of all three parties refer to the same subject-matter of dispute, to wit, their respective interests arising out of the purchase of a certain tract of laid. Equity Rule 25 is designed to permit parties interested in the same subject-matter to intervene and have the entire matter adjudicated at one time, thus avoiding a multiplicity of suits. The intervening petitioners have set forth enough facts to permit them to intervene and be given an opportunity to establish such claims as they might have. The right to intervene has been generally established by our decisions, the principle having recently been reiterated in Valmont Developing Co. v. Rosser, 297 Pa. 140, in which it is said: “Equity Rule 25 permits any person having an interest in pending litigation to intervene at any stage of the proceedings. Generally speaking, the question of intervention is a matter within the sound discretion of the court below, which ordinarily will not be interfered with unless there is a manifest abuse of discretion: Bole v. Belden Transmission Co., 239 Pa. 1; Streuber’s Appeal, 229 Pa. 184; Johnston v. Markle Paper Co., 153 Pa. 189.”

We feel that the facts in this case warrant the intervention of Martin P. Connor and Stacy H. White, in order to permit the rights of all parties in interest to be adjudicated in one suit.

And now, to wit, March 17, 1930, the rule is made absolute.


source: Caselaw Access Project

author: Patterson, P. J.,

license: Public Domain

text:
    Bardine v. Samuels et al.

      Robert A. Henderson, for plaintiff; J. Lee Plummer, for defendants.
    Dec. 6, 1929.
   Patterson, P. J.,

— This is a bill in equity brought by the plaintiff, who became the purchaser of certain real estate at a sheriff’s sale, to restrain the tax collector from levying upon and selling personal property belonging to tenants who occupied said real estate at the time said taxes were assessed, at the time of the sheriff’s sale and subsequent thereto, plaintiff averring that since the defendant tax collector had failed to file his claim for the taxes in question with the sheriff, with notice to the sheriff to pay the same out of the proceeds of the sale of the properties, and since the real estate was sold for a sum greater than the amount of the taxes, the lien of said taxes was thereby divested, and, therefore, there can be no recovery against said tenants. Defendants filed their answer, admitting the facts contained in the plaintiff’s bill, but averring that the sale of the real estate, which, under the law, divested the lien of the taxes from said real estate, did not in any wise affect either of the remaining two remedies for the collection of taxes which the defendants had, to wit, the right to levy upon and sell the personal property of the tenants in possession at the time the taxes were assessed and the property sold, or to proceed against the person of the former owner of said real estate. To this answer plaintiff filed certain exceptions in the form of a demurrer. We, therefore, have under consideration plaintiff’s bill, answer thereto, demurrer to answer and the arguments of the respective counsel.

Findings of fact.

1. That the plaintiff, Effie Bardine, purchased from Ira F. Baird, Esq., High Sheriff of Blair County, on Friday, Jan. 18, 1929, certain lots of ground in the Borough of Juniata, County of Blair and State of Pennsylvania.

2. That all taxes on said lands for borough, county and school purposes for the year 1928 were assessed, past due, and owing at the time of the sheriff’s sale.

3. That said lots of ground were sold for an amount more than sufficient to pay the costs of the sale and all taxes against said properties.

4. That W. J. Samuels, one of the defendants, was the tax collector of the Borough of Juniata, and the other defendant, H. W. Wiley, was a deputy collector for the collection of the taxes of said borough for the year 1928 and levied upon the personal property of certain tenants occupying the real estate sold by the sheriff and purchased by plaintiff, and is about to sell the said personal property of the said tenants for the payment of said taxes.

5. That the sale of said property under the levy of the tax collector and his deputy was restrained by a preliminary injunction by this court and has been postponed pending final disposition of this bill.

Discussion.

The Act of May 22, 1895, P. L. Ill, provides that a purchaser at sheriff’s sale becomes vested with the title to the lands described, divested from the lien of taxes due and owing at the time of the sale, provided the amount for which the land has been sold is greater than the cost of sale and the amount of taxes due.

And in the present case plaintiff contends that the provisions of this act are clearly applicable and that she owns the real estate in question divested of liens of all taxes due and owing at the time of the sale. It is admitted that the property sold for an amount greater than that required for the payment of the expense of sale and taxes. With this contention we agree. The plaintiff in her bill, however, seeks not only to make her property free from liability for the payment of the taxes in question, but undertakes to restrain the tax collector from proceeding against the tenants of said properties in possession at the time of the assessment of the taxes and the sheriff’s sale. The tenants are not parties to this suit. In fact, the pleadings do not disclose their names, but the plaintiff is apprehensive that in the event of the tax collector’s success in collecting said taxes from said tenants, they, the tenants, may defalcate the amount from the rent due her since she became the purchaser. The tenants at the time of the assessment and sale continue to occupy the premises as tenants of plaintiff. But this question need not concern us at this time. Whether or not the tenants may recover against the present owner for the amount of taxes they may be required to pay will be a matter to be determined between such tenants and the plaintiff. Their liability to each other can have no bearing on the rights of the parties to this bill. Counsel argues that since the tax collector failed and neglected to file his claim for said taxes with the sheriff, as provided by said act, he is now barred from recovering the taxes, either from the tenants or the former owner. However, from a careful examination of the several acts of assembly providing for the collection of taxes, we fail to find any law to this effect.

The Supreme Court, in Davis v. Beers, 204 Pa. 288, 293, holds: “It is the duty of the collector, in case the owner be a nonresident, to make demand upon the tenant for the taxes in his duplicate to which is appended his warrant, and on his refusal to pay, to seize and sell the personal property subject to seizure and sale for taxes.”

In Kean v. Kinnear, 171 Pa. 639, 642, it is held as follows: “It is clear that the law has established the order of liability for taxes to be, first, the personal property on the premises, secondly, demand on the owner individually, and, lastly, the land itself, and it is only on the failure to collect by either of the first two methods that resort can be had to the third and the land be legally sold or returned for sale.”

Other cases to the same effect are: Smeich v. York County, 68 Pa. 439, 441; Sitler v. Singer Manuf. Co., 14 Dist. R. 382; McGregor v. Montgomery, 4 Pa. 237.

Under the Act of June 4, 1901, P. L. 364, as amended by the Act of May 28, 1915, P. L. 599, unpaid taxes are a lien against premises sold by the sheriff, provided the tax collector gives the sheriff notice of the amount of the same and makes demand for payment before distribution. And the Act of May 22, 1895, P. L. Ill, which provides for the divestiture of tax liens, is not repealed by the Act of June 4, 1901, P. L. 364: Grigg v. Benson, 29 Dist. R. 853.

“The owner of seated lands who has failed to pay taxes duly assessed and levied upon such lands during his ownership is liable to be called upon, by a common law action, to reimburse the sureties of the tax collector who have been compelled to pay them with interest from date of such enforced payment:” Com. v. Mahon, 12 Pa. Superior Ct. 616.

“Payment of taxes may be enforced also by distress of the goods and chattels of the delinquent or his tenant, during the occupancy of the land by the tenant, and, in case goods and chattels sufficient to satisfy the taxes and costs cannot be found, the body of the delinquent may be taken and conveyed to jail to remain until the taxes and costs shall be paid or he shall be otherwise discharged by law: Acts of April 15, 1834, §§ 21 and 46, P. L. 514, 518, and April 19, 1883, § 3, P. L. 10; Smeich v. York County, 68 Pa. 439; Wright v. Wigton, 84 Pa. 163. This harsh method is also resorted to for the purpose of compelling payment of taxes on personal estate: Palmer v. McMahon, 133 U. S. 660:” Landreth v. McCaffrey, 17 Pa. Superior Ct. 272.

Conclusions of law.

1. The several lots of ground described in plaintiff’s bill became the property of plaintiff at the sheriff’s sale Jan. 18, 1929, divested of the lien of all taxes then due.

2. The failure or neglect of the defendant tax collector to collect said taxes by filing notice and demand on the sheriff before distribution of the proceeds of sale, as provided by the Act of May 22, 189'5, P. L 111, does not deprive him of pursuing other legal process for the collection of taxes.

3. The defendants have a legal right to levy upon and sell the personal property of the tenants in possession of said real estate at the time the taxes were assessed and the property sold and still in possession at the time the levy was made.

4. The plaintiff has no standing in a court of equity to interfere with due process of law for the collection of taxes from the tenants.

Decree nisi.

And now, Dec. 6, 1929, upon consideration of the foregoing case, it is ordered, adjudged and decreed that the injunction heretofore granted be dissolved and the bill in equity dismissed, at the cost of the plaintiff, this decree to be entered as a decree nisi, and unless exceptions thereto be filed within ten days after notice to the parties or their counsel of record, the same to become the final judgment of this court. Otherwise, to be placed upon the argument list as provided by Rules of Equity Practice.

Prom Robert W. Smith, Hollidaysburg, Pa.


author: Koch, Dep. Att’y-Gen.,

text:
    Employment of Physician by State Highway Patrol.
    Jan. 9, 1930.
   Koch, Dep. Att’y-Gen.,

— This Department has been requested to advise you concerning the right of the officers of the State Highway Patrol to engage physicians as witnesses in prosecutions instituted for violations of Section 620 (f) of the Motor Vehicle Code of 1929, P. L. 905.

This section of the Code makes it a misdemeanor for any person to operate a motor vehicle while under the influence of intoxicating liquor, or of any narcotic drug, or to permit any person who may be under the influence of intoxicating liquor or any narcotic drug to operate any motor vehicle owned by him or in his custody or control.

Upon the apprehension of a person accused or suspected of a violation of the above section of the Vehicle Code it has been the practice to promptly have a physician examine the person alleged to have been under the influence of liquor or of a narcotic drug, and the opinion of said physician is generally made the basis of the prosecution. If the physician is of the opinion that the operator is not under the influence of intoxicating liquor or of a narcotic drug, no prosecution for the violation of Section 620 (f) is instituted.

Discontent has arisen among the medical fraternity because in many cases it has happened that a physician has examined a defendant, has been subpoenaed to appear in court and testify for the Commonwealth, and then fails to collect his fees. Ordinarily, a physician who is called to testify may be compensated only by the witness fees and mileage provided by statute. Obviously, this is inadequate in the case of the average busy doctor, who is not only financially the loser but much of whose time is wasted by attendance at court waiting his turn to testify.

The Act of June 29, 1923, P. L. 973, authorizes any district attorney of the Commonwealth, or his assistants, or any ofiicer directed by him, to incur expenses necessitated in the investigation of crime and the apprehension and prosecution of a person charged with or suspected of the commission of crime, and provides that such expense shall be paid by the respective counties, upon the approval of the bill of expense by the district attorney and the court of the county concerned. In a case where a defendant is convicted and sentenced to pay the costs of prosecution, the expenses of the district attorney in connection with such prosecution shall be considered a part of the costs of the case and be paid by the defendant. It seems to us that compliance with the terms of this act furnishes the solution to the present difficulty facing the State Highway Patrol. The co-operation of the several district attorneys of the Commonwealth can no doubt be secured and a workable arrangement be agreed upon between the district attorneys and the commanding officers of the several troops.

You will note that the Act of 1923 warrants the payment of necessary expenses incurred in the investigation of crime. This provision would, in our judgment, cover a case where an operator, suspected of driving while under the influence of intoxicating liquor, is examined by a physician but is found not to have been under the influence of intoxicating liquor, and, therefore, not liable to prosecution for a violation of Section 620 (f).

Where, after a prosecution has been instituted and the case has been returned to court, a nolle pros, is entered, generally either the costs are paid by the county or the entry of the nolle pros, is conditioned upon the payment of the costs by the defendant. In either of these cases, the doctor’s fees can be taken care of in the manner provided by the Act of 1923.

From C. P. Addams, Harrisburg, Pa.


author: Landts, P. J.,

text:
    Sensenig v. Kauffman.

      Charles W. Eahy, for plaintiff; B. C. Atlee, for defendant.
    Jan. 18, 1930.
   Landts, P. J.,

— It is admitted that, about 11 o’clock on the evening of April 1, 1928, the plaintiff parked his Ford car on the west side of North Queen Street, in the City of Lancaster. It was parked in front of No. 440 North Queen Street, the place where he was then boarding, against the curb. He turned off his lights and intended that it should remain there all night. About 1.30 o’clock A. M., of the next morning, the defendant turned his tar from James Street, which runs east and west immediately north of this place, to the left, and drove southwardly down North Queen Street. In passing the place where Sensenig’s car was parked, he struck it and knocked it some distance — about twenty-five or thirty feet — over on the pavement. There was an arc light at the armory, about 138 feet from where the car was parked. It was testified by some of the witnesses that Kauffman was intoxicated at the time.

The sole question to be determined is whether, under this state of facts, the plaintiff can recover. It is urged that Sensenig had no right to park his car on the public street without lights, and that he, therefore, could not recover. We think this proposition is too broad. The court charged the jury: “It is true that no one at this place .(there being no municipal regulations here) has a right to park his automobile at night on the public highway without his lights turned on, and if he does so and this brings about or contributes to an accident, he cannot recover damages, and the verdict under such circumstances should be in favor of the defendant. If, however, the absence of lights had nothing to do with the accident; if a defendant, when he did or could see, recklessly and carelessly comes down a public street and strikes a parked car, even if its lights are off, and, without concurrent negligence on the part of the owner of the parked car, injures it, a jury can find in favor of the owner of that car, if a plaintiff, and render a verdict in his favor.” I conceive this to have been a fair statement of the law, and in this way all the facts were fairly submitted to the jury. In these days, when so many cars in every city and hamlet are parked along the highways, a person who wantonly and recklessly runs into such a car ought not to escape all liability and responsibility because an owner so parks his car and the accident is not caused by his so doing.

This question has, however, been conclusively settled by both the Supreme and the Superior Courts. In Lane v. Mullen, 285 Pa. 161, the very point raised in this case was at issue. The plaintiff was driving his automobile on Girard Avenue, in Philadelphia, on a dark night with headlights which carried but twenty-eight to thirty feet ahead of the car, owing to the fact that he had dimmers on. It was claimed on the part of the defendant that the statutory mandate was that a motorist on an unlighted highway must display lights furnishing a sufficient illumination to render clearly discernible any substantial object 200 feet directly ahead. A large steam shovel was parked on the street for the night, and when it loomed before the plaintiff he did not stop, but he swerved to the left, and while he cleared the main body of the steam shovel, he struck a coal box which projected from its left side. The court held that “the violation of a statute will not create a liability where it is not the efficient cause of the injury.” In Dolan v. Burke, 89 Pa. Superior Ct. 295, it was said: “A similar ruling that violation of a statute does not defeat the right to recover damages for injuries, unless it be the efficient cause of the injury, has been made by this court and the Supreme Court in cases involving violations of the motor vehicle laws: Williams v. D'Amico, 78 Pa. Superior Ct. 575; McIlhenny v. Baker, 63 Pa. Superior Ct. 385; Hart v. Altoona & Logan Valley Elec. Ry. Co., 79 Pa. Superior Ct. 180; Yeager v. Winton Motor Carriage Co., 53 Pa. Superior Ct. 202; Scorsoni v. Pittsburgh P. & P. Co., 272 Pa. 253.” Many other cases to the same effect might be added.

We are, therefore, satisfied that this case was properly submitted to the jury. The motion for judgment non obstante veredicto is accordingly overruled and the rule for a new trial is discharged.

Motion overruled. Rule discharged.

From George- Ross Eshleman, Lancaster, Pa*


author: Davis, J.,

text:
    Brown et ux. v. Williamson et al.

      Simon Pearl, for complainants.

      Harry A. Rutenberg, for James A. Williamson, Madeline C. Williamson and Mary Smith Brown, voluntary trustee for Elsie C. Brown, a minor.

      C. Brewster Rhoads, for Elsie C. Brown, a minor.
    April 11, 1930.
   Davis, J.,

— The complainants, Frederick H. Brown and Mary Smith Brown, his wife, were owners of the real estate described in the bill of complaint. Frederick H. Brown was a traveling man, and in order to protect the interests of his daughter, he and his wife decided to create a trust in favor of the daughter, Elsie C. Brown, a minor. It was not their intention to create an irrevocable trust. They consulted a real estate broker, who assured them that the deed was revocable. Subsequently, Mr. Brown having ceased to travel, it was the desire of the complainants, in which the daughter joined, to have the deed of trust revoked. It was then they learned there was no revocable clause in the deed; hence the bill in equity. We have set forth fully in our findings of fact and conclusions of law our reasons for granting the relief prayed for.

Findings of fact.

1. On Aug. 24, 1922, the complainants became seized as tenants by the entireties, in fee, by indenture bearing date Aug. 24, 1922, and recorded in the office for the recording of deeds in and for the County of Philadelphia, in Deed Book J. M. H., No. 1380, at page 88, &c., of “All that certain lot or piece of ground, with the buildings and improvements thereon erected, situate in the 46th Ward of the City of Philadelphia, on the southwest side of Forty-fifth Street (1012), at the distance of 183 feet northwest from the northwest side of Chester Avenue, containing in front on Forty-fifth Street 25 feet, and extending of that width in depth southwest between lines at right angles with Forty-fifth Street 161 feet 4 inches.”

2. In August, 1926, the complainants consulted one Raymond A. Collins, a real estate broker in the City and County of Philadelphia, and advised the aforesaid Raymond A. Collins that because of the hazards and risks of the employment in which Frederick H. Brown, one of the complainants, was then engaged, both complainants desired a trust to be created, wherein Mary Smith Brown, one of the complainants, should hold the said real estate in trust for their only daughter, Elsie C. Brown, who then was and now is a minor and the only child of the complainants.

3. ■ In August, 1926, the complainants advised the said Raymond A. Collins, who acted as conveyancer for them, that it was their intention and desire that they might be able to obtain the reconveyance of the aforesaid real estate at their own will, and expressly advised him of their intention and desire not to create any irrevocable trust.

4. In reliance upon the verbal and written assurance of the said Raymond A. Collins that the trust created would be revocable at the will of the grantors, the complainants made a conveyance of the aforesaid real estate by indenture bearing date Aug. 18, 1926, and recorded in the office for the recording of deeds in and for the County of Philadelphia, in Deed Book J. M. H., No. 2399, page 335, &c., to James A. Williamson.

5. Said James A. Williamson merely acted as straw party and as a conduit for the transfer of title from the complainants to Mary Smith Brown, trustee for Elsie C. Brown.

6. By letter dated Aug. 12, 1926, said Raymond A. Collins, who acted as conveyancer for the parties, advised the complainant, Frederick H. Brown, that in the event Mary Smith Brown, one of the complainants, should at any time desire to use the power of revocation contained in the trust deed, the title would revert to her.

7. Complainants would not have executed the deed to James A. Williamson, nor procured the trust deed to be executed, had they believed or been of the opinion that the conveyance was irrevocable.

8. Upon the advice of their conveyancer aforesaid, complainants procured a conveyance of the premises to be made by James A. Williamson and Madeline C. Williamson, his wife, on Aug. 19, 1926, by deed recorded in the office for the recording of deeds in and for the County of Philadelphia, in Deed Book J. M. H., No. 2433, page 33, &c., to Mary Smith Brown, voluntary trustee for Elsie C. Brown, a minor.

9. Said deed and trust conveyance was purely voluntary and without consideration from any source whatsoever.

10. At the time of the execution of the trust conveyance, complainants had no desire, reason or motive for placing the said real estate in any irrevocable trust.

11. Complainants did not see the deed conveying the premises from James A. Williamson and Madeline C. Williamson, his wife, to Mary Smith Brown, voluntary trustee for Elsie C. Brown, a minor, until about a year subsequent to the recording thereof, the same having been recorded by Raymond A. Collins, the conveyancer.

12. Complainants had no legal advice in relation to the creation of the said trust, and believed that the said conveyance which they procured to be made was revocable and could be canceled at the will of the complainants.

13. Complainants never intended to execute any irrevocable deed of trust.

14. Complainants never knew, believed or suspected that the trust deed which they procured to be executed was irrevocable, and did not learn of the same until a considerable period of time thereafter.

15. The trust deed does not represent the complainants’ actual or deliberate intent.

16. Complainants were not advised that a deed of trust, without a power of revocation, is prima facie irrevocable, nor was it explained to them that the deed should contain a power of revocation if they desired to have the right of cancellation thereof, nor was any explanation of the said deed of trust ever given to the complainants at or prior to the execution thereof.

17. The trust conveyance was procured to be executed on behalf of the complainants under a misapprehension or a mistake of fact of the complainants, and of the conveyancer or scrivener who prepared the said deed.

18. The complainants procured the execution of the said deed of trust without a full knowledge of its nature, effects and consequences.

19. There was no reason, motive, intent or purpose to strip the complainants of the permanent control of their property.

20. Complainants’ daughter, Elsie C. Brown, the cestuA que trust of the said trust, resides with her parents, the complainants, and disclaims any interest or rights in the said real estate, and joins in the prayer of the complainants.

21. There exists no reason or justification for further continuing any trust in the aforesaid real estate.

Conclusions of law.

1. The complainants are entitled to the relief prayed for.

2. This was a voluntary trust and may be revoked by the settlors.

3. The trust was executed under a mistake of fact, and there never was any actual intention upon the part of the settlors to make the trust irrevocable.

4. The purpose and the motive of the settlement no longer exist. The complainants procured the deed of trust to be executed by James A. Williamson and Madeline C. Williamson, his wife, under a mistake of fact.

5. The evidence establishes a clear intention on the part of the settlors to execute a revocable deed of trust.

6. The deed executed by James A. Williamson and Madeline C. Williamson, his wife, to Mary Smith Brown, voluntary trustee for Elsie C. Brown, a minor, should be canceled.

7. The deed of trust was not executed by the complainants with full knowledge of its effects, nature and consequences.

8. The deed of trust should be revoked and the relief prayed for by complainants should be granted, because there was no intention on their part to make an irrevocable gift, because the whole motive and purpose of the trust was accomplished. The deed contained no power of revocation, as the complainants had no advice as to the necessity to insert a revocable clause. The ¡deed was prepared by a real estate broker and not by a lawyer or one learned in the law.

The prothonotary will notify the parties or their counsel of the filing of the above adjudication, and that unless exceptions thereto be filed within ten days, a decree -will be entered in accordance herewith.

Final decree.

And now, to wit, April 23, 1930, this cause came on to be heard at this term, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows, viz.:

1. That the deed from James A. Williamson and Madeline C. Williamson, his wife, to Mary Smith Brown, voluntary trustee for Elsie C. Brown, dated Aug. 19, 1926, and recorded in the office for the recording of deeds in and for the County of Philadelphia, in Deed Book J. M. H., No. 2433, page 33, &c., conveying all that certain lot or piece of ground, with the buildings and improvements thereon erected, situated in the 46th Ward of the City of Philadelphia, on the southwest side of Forty-fifth Street (No. 1012), at the distance of 183 feet northwest from the northwest side of Chester Avenue, containing in front on Forty-fifth Street 25 feet, and extending of that width in depth southwest between lines at right angles with Forty-fifth Street 161 feet 4 inches, be canceled and decreed void and of no effect.

2. Said defendants, James A. Williamson and Madeline C. Williamson, his wife, are directed to execute a reconveyance by fee simple deed, of the real estate aforesaid, to Frederick H. Brown and Mary Smith Brown, his wife, in fee, as tenants by the entireties, free, clear and discharged from any and all trusts whatsoever.

3. The trust purporting to be created by the aforesaid deed is canceled and declared void and of no effect.

4. James A. Williamson and Madeline C. Williamson, his wife, are directed to deliver to Frederick H. Brown and Mary Smith Brown, his wife, in fee simple, as tenants by entireties, an assignment and reconveyance of any and all their right, title and interest in said premises, free and discharged of any and all trusts and to execute any further assignments or documents required for the purpose of carrying into effect this decree.


text:
    Vogt v. Birch.

      J. E. Wilkinson, for plaintiff; John B. Gest, for defendant.
    Feb. 25, 1930.
   Arird, P. J., 37th judicial district, specially presiding,

— In the Court of Common Pleas No. 3 of the County of Philadelphia, No. 575, December Term, 1926, pursuant to a decision of our Supreme Court at No. 300, January Term, 1929, this case was argued by counsel for plaintiff and defendant at Philadelphia on Feb. 12, 1930. It was considered by both plaintiff and defendant that, under the decision of our Supreme Court, the balance due by defendant to plaintiff was $169.99, with interest thereon from March 13, 1926.

Counsel for defendant presented argument that the court should award to the defendant the cost of printing defendant’s paper-book on appeal to the Supreme Court, and that he should receive not only the cost of appeal but also the costs of litigation in the court below. In support of his application for costs, defendant relied entirely upon the case of Matthews v. Tyrone Coal Co., 74 Pa. Superior Ct. 588.

The plaintiff’s statement of claim shows that suit was brought to recover from the defendant the sum of $2317.92, with interest thereon from March 15, 1926. The 11th paragraph of plaintiff’s statement reads as follows:

“11. Plaintiff has demanded of defendant the sum of $2317.92, the sum of the amounts as set forth in paragraphs 9 and 10 hereof, but defendant refused and still refuses to pay said sum or any part thereof, except the sum of $136.27 which defendant offered to pay plaintiff in full settlement of his clown and which offer plaintiff refused.”

An affidavit of defense was filed by defendant, admitting that the defendant was indebted to the plaintiff in the sum of $91.55. Naturally, this sum would have borne interest from March 15, 1926, but plaintiff alleged in his statement that the defendant offered to pay to plaintiff $136.27. At the time of the trial of this case the court directed the jury to find a verdict in favor of plaintiff and against the defendant in the sum of $2545.84. The defendant took his appeal to the Supreme Court. The lower court was reversed, and Mr. Justice Schaffer, in writing the opinion of the Court, said:

“Taking all these matters into account, it would appear that there is a small balance due to plaintiff, the exact amount of which is the subject of calculation, which can best be made by the court below with the parties and their counsel before it.

“Therefore, the judgment entered by the court below is ordered to be modified in accordance herewith, with directions to enter such judgment for plaintiff as the parties may agree upon or as the state of the accounts between them may demonstrate to be due.”

It was found and not contradicted that the defendant was indebted to the plaintiff in the sum of $169.99', with interest from March 13, 1926. Now, the question of $169.99 was really not in controversy and not argued before the Supreme Court. The real question before the Supreme Court was whether or not, at the date when the second agreement was drawn between the parties, the defendant was indebted to the plaintiff in the sum of $3000, with interest, or $1000, with interest. The lower court held that it was simply $1000 and interest, and an appeal was taken from this decision, as above stated, in the Supreme Court. If we are informed correctly, this was the only question argued before the Supreme Court.

Since the decision of the Supreme Court was filed, counsel for plaintiff and defendant appeared before the lower court, and counsel for defendant claimed that the defendant was entitled to credit of $187, the amount which the defendant had paid for printing paper-books. The defendant relies upon the following case decided by our Superior Court: Matthews v. Tyrone Coal Co., 74 Pa. Superior Ct. 588. Counsel for plaintiff cited Haller Baking Co.’s Appeal, 295 Pa. 257; Weintrob’s Estate, 295 Pa. 374; Tressler v. Emerick, 84 Pa. Superior Ct. 461.

The decisions cited by both plaintiff and defendant are not exactly on all fours with the instant case, but it seems to us these decisions, with the two acts of assembly cited, to wit, the Act of May 19, 1897, P. L. 67, and the Act of April 15, 1907, P. L. 83, clearly indicate that the losing party should pay for printing the paper-book of the party in whose favor the decision was finally rendered. When we note by the plaintiff’s statement that suit was brought to recover the sum of $2317.92, with interest from March 15, 1926, and the defendant had offered to pay, prior to that time, $136.27, this is in accordance with the plaintiff’s statement that under the decision of our Supreme Court the defendant clearly won every point made before our Supreme Court. It would also appear that the $169.99 was not in controversy in this appeal. At the final argument of this case there was no controversy between counsel for plaintiff and defendant but that the sum of $169.99 was the correct amount for which the judgment should be liquidated. Under all of the circumstances surrounding this case, in our opinion, the prothonotary should tax in favor of the defendant the cost of the appellant’s paper-book, to wit, $187. After argument and consultation with Honorable William C. Ferguson, which we consider as an argument of the question before the court in banc, we make the following order:

And now, Feb. 25, 1930, the prothonotary of the court is authorized and directed to enter judgment in favor of plaintiff, John H. Vogt, against the defendant, John Birch, for the sum of $169.99, with interest thereon from March 13, 1926, together with record costs, and also we award to John Birch, defendant, the sum of $187, the amount which defendant paid for printing his paper-book.


author: Stearne, J.,

text:
    Smith’s Estate.

      A. Carson Simpson and Brown & Williams, for exceptions.

      Robert F. Irwin and John B. Gest, contra.
    May 2, 1930.
   Stearne, J.,

— The exceptions relate to the ruling of the Auditing Judge in awarding a distributive share free from an assignment made by the distributee to his wife, for the benefit of herself and their children, because such assignment was in violation of the spendthrift clause in the will.

We have carefully reviewed the record and are convinced that the Auditing Judge was correct in his ruling.

Precisely the same question was decided adversely to the exceptant by this court in Schmidt’s Estate, 5 D. & C. 470. We declined to recognize an assignment by a husband to his wife for the benefit of his children, where such assignment was in violation of a spendthrift clause. All of the principles herein involved were carefully considered by Judge Van Dusen in his adjudication, and by Judge Lamorelle in the opinion of the court dismissing the exceptions, and we deem it unnecessary to repeat what was so accurately and comprehensively stated therein.

Two cases are relied upon by exceptant to sustain her contention: Hall’s Estate, 248 Pa. 218, and Moorehead’s Estate, 289 Pa. 542. The former case has no application because the court found that the spendthrift limitations were intended to apply only to income and not to principal. The latter case involved an order for support issued from a court of record of this Commonwealth. The language of the spendthrift trust, coupled with the attending circumstances, led the court to the conclusion that there was no intention on the part of the testator to exempt the grandson’s share from the support of the wife. We are of opinion that the principles in Moorehead’s Estate have no application, under the circumstances, to the present ease.

There are two other reasons why the exceptions should be dismissed. It is argued that the assignment is equivalent to an order for support. By analogy, we are asked to enforce the provisions of the 19th section of the Wills Act, and of the Act of May 10, 1921, P. L. 434, which, in effect, strike down testamentary spendthrift provisions, in protection of the support of a wife and child. The record discloses, however, that the wife and children are residents of the State of California. Everhart v. Everhart, 87 Pa. Superior Ct. 184, decides that these statutory provisions have reference only to the protection and relief of citizens of this state who might otherwise become a public charge.

Our examination of the assignment fails to convince us that it is a provision for the support of the wife and children. The expressed purpose is “of forever settling their [i. e., husband and wife] property rights.” Property standing in either name is declared to be the separate property of each. The husband then agrees to convey and does assign the one-half interest in all his property, both in possession and expectancy, to the wife for the purposes as therein expressed. It is provided that in the event of divorce such provision shall be in lieu of alimony, and be deemed a property settlement. Manifestly, such an agreement cannot be held to be a support provision analogous to a court order for proper maintenance and support under our statute. It may very well be that the separate and individual estate of the wife referred to by the agreement may have been sufficiently ample to have precluded any support order whatever from any court of competent jurisdiction.

The exceptions are dismissed and the adjudication confirmed absolutely.


author: Wickersham, J.,

text:
    Rubin v. Pennsylvania Securities Commission.

      Benjamin Stenzler, for petitioner.

      Michael E. Stroup, Deputy Attorney-General, for Securities Commission.
    Dec. 31, 1929.
   Wickersham, J.,

— This is a petition by the plaintiff, alleging, inter alia, that his employers, Strabo V. Claggett & Co., Inc., of Boston, Mass., certified to the Pennsylvania Securities Commission that the plaintiff, being suitable, had been appointed agent or salesman for them and requested the defendant to register him as such; that the plaintiff filed with said certificate his sworn statement, as required by the Securities Act; that he appeared before the defendant commission, was interrogated, and that the commission declined to register him as an agent authorized to deal in securities; that under date of June 1, 1929, plaintiff’s employers, Strabo V. Claggett & Co., Inc., wrote him that after June 15, 1929, he would no longer be associated with them because the defendant refused to allow him to sell securities in Pennsylvania.

The plaintiff further alleges that no official notice was given him of the refusal of the defendant commission to register him as an agent until Aug. 28, 1929, and prays for reversal of said order of the commission rendered as under date of May 8, 1929.

The defendant appeared and filed an answer, alleging, inter alia, that Strabo V. Claggett & Co., Inc., a registered dealer in securities, by whom application was made for the registration of the plaintiff, M. P. Rubin, as a salesman, was advised by the commission, by letter dated May 8, 1929, that the said application for registration was refused for the reason that the commission failed to find that the said M. P. Rubin, by reason of former violations of the Securities Act by him, was fit and qualified for registration; that no request for a rehearing was made at any time by Strabo V. Claggett & Co., Inc., the applicant; and no such request was made by the plaintiff until Sept. 6, 1929. That the decision of the commission is based on the record of this case after hearing held May 2, 1929, before the said commission, upon the application of Strabo V. Claggett & Co., Inc., for the registration of M. P. Rubin as a salesman, and that the order and decision of the commission is in accordance with the weight of the evidence and in conformity with law; that no appeal has been taken by the applicant, Strabo V. Claggett & Co., Inc., whose application for the registration of M. P. Rubin as its salesman was refused; furthermore, that the petitioner, M. P. Rubin, is not a proper party to appeal from the decision of the commission refusing the application of Strabo Y. Claggett & Co., Inc., for his registration as a salesman; that the plaintiff may not file such an application for registration with the commission, and is not a party to the present application for his registration; and, although the plaintiff had notice of the refusal of the commission to •register him as a salesman upon the application of Strabo V. Claggett & Co., Inc., this appeal has not been taken by him either within thirty days after the order of refusal by the commission, as prescribed by the act of assembly, or within thirty days of the time he had actual and constructive notice of the order of the commission refusing him registration as aforesaid. The coim mission prays that the appeal be dismissed at the cost of the petitioner.

This case came on to be heard before the court in banc, and after very careful consideration of the briefs of the parties, the oral arguments before the court in banc, and the evidence submitted at the hearing of the commission, we are of the opinion that the order of said commission refusing to register the plaintiff as an agent and salesman of the applicant, Strabo V. Claggett & Co., Inc., must be confirmed.

It must not be overlooked that the application of Strabo V. Claggett & Co., Inc., for the registration of the plaintiff as a salesman and agent was not the application of the plaintiff, but the application of a registered dealer under section 10 of the Securities Act, notifying the commission that it had appointed the plaintiff as an agent to transact its securities business in Pennsylvania, and requesting his registration as such. We are clearly of the opinion, therefore, that he was not entitled to notice that the appplication of his employer to have him registered as an agent had been refused. It was the clear duty of the commission to notify the employer that, for the reasons given in said notice, the commission did not consider him a fit person to be registered as its agent. The duty then shifted to the employer to notify the plaintiff, its employee, of the refusal, which was done. It is conceded that the plaintiff had this notice as early as June 7, 1929, as appears in paragraph 7 of. plaintiff’s petition. We think the plaintiff has no reason to complain, therefore, that an official notice was not served upon him. If he had been registered and his registration had been revoked by the commission, as provided in section 17 of the Securities Act of 1927, then he would be entitled to notice of such revocation. We are of the opinion, therefore, and so decide, that, in a case such as this, where the application of an employer, being a registered dealer, is made to the commission for the registration of an agent to act for it in Pennsylvania, and has been refused, notice to the employer of such refusal by the commission is all that is required by the said act.

We think the appeal was not taken within the time specified in section 19 of the Securities Act of 1927, which provides: “Any dealer, salesman, or agent, aggrieved by any decision of the commission, may file, within thirty days thereafter, in the Court of Common Pleas of Dauphin County, a petition against the commission, officially as defendant, alleging therein, in brief detail, the action and decision complained of and praying for a reversal thereof.” The plaintiff admits in paragraph 7 of his petition that he had notice from his employer of the action of the commission refusing to register him as its agent on June 7,1929. The petition for a reversal of the act of the commission was not filed with this court until Sept. 21, 1929. We think this is too late. We find, further, that the plaintiff has not alleged in his petition or in the testimony taken any legal reason why an appeal was not taken within thirty days from June 7, 1929, at which time he had notice from his employer of the adverse action of the commission. As we have before observed, he was not entitled to official notice from the commission, but he had actual notice from his employer, which we think was sufficient.

The applicant, Strabo V. Claggett & Co., Inc., did not appeal from the decision of the commission. We do not now decide whether the plaintiff, under the circumstances, was entitled to an appeal. Our present impression is that he was not, but a decision of this question is not vital to our conclusion in the instant case.

It is further contended by counsel for the plaintiff that “those sections of the Securities Act giving the commission the right to refuse to register salesmen and not providing for the right of judicial review are unconstitutional.” This contention is in answer to the suggestion in the brief of defendant that an appeal from the action of the commission in the present case cannot be taken by the plaintiff. We cannot agree that the Securities Act of 1927 is unconstitutional. The said act is clearly an exercise of the police power of the Commonwealth of Pennsylvania. It does not take away the right of the citizen to earn a livelihood; it provides only what that citizen’s qualifications shall be before being entitled to registration as an agent or as a dealer in securities in this Commonwealth. The plaintiff has no vested right to sell securities as an agent until he is registered so to do by the Pennsylvania Securities Commission. If he is so registered and his registration is revoked by the commission, the act then provides, in section 17, that he shall receive notice of such revocation, and he shall have the right to appeal to this court, as provided in section 19. The plaintiff’s rights are fully protected when he is registered as a dealer in securities or agent; but until so registered he has no vested rights and can obtain none until he has established his right to be so registered as a dealer or agent. We think the act is constitutional, and this objection is overruled.

We think we might here rest our decision that the appeal of the plaintiff must be dismissed for the legal reasons above stated, but we are also of the opinion that the plaintiff’s case is not sustained on its merits. The commission finds that M. P. Rubin is not of good repute, and that, by reason of his previous history, record and association in the securities business, as established by his own admissions, he is unfit and disqualified for registration as a salesman. With this conclusion we are in accord. Section 10 of the Securities Act of 1927 provides: “Upon written application by a registered dealer, and upon satisfactory evidence as to the good repute, fitness, and qualification, the commission shall register, as agents or salesmen of such dealers, such persons as the dealer may request.” We think the term “good repute” means good character: Com. v. Davis, 3 Dist. R. 271, in which case the defendant was indicted for felonious rape under the Act of May 19, 1887, P. L. 128. Commenting upon the meaning of the words “good repute” in the act, it was said by President Judge Waddell, of the Court of Quarter Sessions of Chester County: “The Legislature meant to allow the defendant to show what the woman really was. This would establish her character. This character might not be known to the public, and, hence, her reputation might be one thing and her actual character another.”

We think this decision is applicable and controlling in the case at bar. The plaintiff may be of good repute with the banks and lawyers with whom he deals, but the commission must ascertain his real character as a salesman of securities by what he has actually done. He admitted in the testimony given before the commission on May 2, 1929, that on at least two occasions he was dealing in securities without being registered as an agent or dealer, in violation of section 3 of the Securities Act of 1927, which act he admits he read, and with the contents of which he was familiar. His explanation of this conduct did not satisfy the commission, nor does it satisfy us. He further admitted that in effecting an exchange of securities with a client he accepted from the client a division of the profits made by such transfer, which was unethical and wrong, as testified by another witness. As soon as he learned that his employer knew of this transaction, he returned the money to his client, which, in our opinion, was an admission that he knew it was wrong. Be that as it may, the commission has found the fact that he is not of good repute and that he is not a person of such fitness and qualification as would justify the commission to register him as an agent, under section 10 of the Securities Act of 1927. We think this finding of fact is amply supported by the weight of the evidence, and where the finding of fact of the commission is so supported, this court has no authority to overrule it.

For the reasons above given, the order of the Pennsylvania Securities Commission, denying the application of Strabo Y. Claggett & Co., Inc., for the registration of M. P. Rubin, and refusing registration under said application, is hereby aifirmed, and the petition of the plaintiff for a reversal of said action of the Pennsylvania Securities Commission is dismissed, at the cost of the plaintiff. Exception to the plaintiff.

Prom Homer L. Kreider, Harrisburg:, Fa.


author: Potter, P. J.,

text:
    Esterbrook v. The Fisk Tire Company, Inc.

      A. F. Gilbert and Jay G. Weiser, for plaintiff.

      Arthur H. Hull and Henry J. Sommer, for defendant.
    Oct. 8, 1929.
   Potter, P. J.,

— On April 5, 1928, a summons in trespass was issued in this case. The defendant being a corporation of another state, the summons was served by the Sheriff of Dauphin County on April 13, 1928, on the Secretary of the Commonwealth, as is provided by statute. On May 14, 1928, this summons was returned by the Sheriff of Snyder County “non est inventus.” Just why this return was made we fail to understand, as the service was lawfully made, in our judgment, upon the Secretary of the Commonwealth. Be that as it may, on Feb. 15, 1929, we find an alias summons issued, which was also served on the Secretary of the Commonwealth on Feb. 21, 1929. No appearance was entered for the defendant- within the usual time for so doing. On Sept. 13, 1928, judgment was entered in the sum of $1000, with interest thereon from June 27, 1927, with costs, for want of an appearance, and on June 17, 1929, we find another judgment of like amount entered against this defendant. Or, we have two judgments of $1000 each standing against this defendant upon the same cause of action. On July 22, 1929, upon petition presented, we granted a rule to show cause why these judgments should not be opened and the defendant let into a defense, and on the same day- an appearance was entered for the defendant. On July 30, 1929, an answer to the rule was filed. Arguments were duly heard on the rule and on the answer, and now we have before us the question whether or not these judgments shall be opened. '

This suit arises by reason of an automobile collision, a discussion of the merits of which does not enter into the question before us. The plaintiff claims $1000 damages to her automobile. Of course, as in all like cases, each party casts the fault upon the other. In the plaintiff’s answer to the rule she says her automobile was damaged to the amount of $772.01, and, in addition to this sum, she claims for the loss of the use of her machine for several months, thus, we presume, making up the sum total of her claim of $1000. This sum is not itemized, but is stated as a lump sum, being, we presume, the plaintiff’s estimate, which is rather an unsafe method of arriving at a sum on which judgment may be entered.

In an action of assumpsit, where the amount claimed arises from business transactions, we can see clearly that the amount for which judgment can be entered may be approximately correct, but in an action of trespass, for injuries to the person or property, we are inclined to the opinion that more than the estimate of the plaintiff should be submitted on which to enter a money judgment. In the case at bar, the defendant alleges a good and legal defense.

It seems that so far back as July 1, 1912, this defendant filed with the Secretary of the Commonwealth a letter of attorney designating him and his successors in office as its agent upon whom legal process could be served in actions against it, and designating as the place where notice of the service of such process could be made as No. 258 North Broad Street, Philadelphia. In the year 1917 the defendant removed from this place of business to No. 666 North Broad Street, Philadelphia, and on Oct. 1, 1917, again removed to No. 3001 North Seventeenth Street, Philadelphia. Upon none of these removals did this defendant notify the Secretary of the Commonwealth of the change of address, in which it was at fault. In both instances, when the summons was served upon the Secretary of the Commonwealth, prompt notice of such service was sent to the defendant at No. 258 North Broad Street, Philadelphia, and in both instances the notice was returned, the defendant not being found there. It will thus be noted that this defendant, through its own fault, had no knowledge of the entry of these judgments.

On June 17,1929, a testatum fieri facias was issued out of this court to the Court of Common Pleas of Dauphin County, by virtue of which the Sheriff of Dauphin County levied upon the contents of the defendant’s store in Harrisburg, when the defendant learned for the first time of the existence of these judgments. Then steps were immediately taken to have the judgments opened. In one sense this defendant is at fault. In another it is not. It is at fault in not sending to the Secretary of the Commonwealth its new address upon removal, and, had this been done, this contention would not be before us. It is not at fault in view of its prompt action to preserve its legal rights after having learned of the entry of the judgments.

Taking into consideration all the elements herein recited, we feel that this defendant should not be required to pay the judgment or judgments entered against it without an opportunity of presenting its defense. In this view we are well fortified by appellate authorities.

Where a defendant in a judgment entered for want of an appearance comes forward in a reasonable time, puts in a sufficient affidavit of defense and makes a proper excuse for his non-appearance, the court will open the judgment and let him into a defense, and thus afford him the constitutional right of trial by jury: Remick v. Letterle, 89 Pa. Superior Ct. 322; Howland v. Home Insurance Co. of New York, 67 Pa. Superior Ct. 276. And in the case of Sockett v. Philadelphia Toilet and Laundry Co., 92 Pa. Superior Ct. 254, a case on all fours with the case at bar, the judgment was opened. In Rule of Court No. 139 of our old rules we find that “judgments by default may be set aside or opened, at the discretion of the court, when deemed necessary for the purposes of justice.” Our old rules of court are still in force as to matters wherein the new ones are lacking.

The equitable powers of this court are appealed to in this instance, in the exercise of which we think these judgments should be opened.

And now, to wit, Oct. 8, 1929, the rule is made absolute, the judgments are-opened and the defendant is let into a defense. Let the case proceed to trial. An exception is noted for the plaintiff and a bill is sealed.


author: Koch, P. J.,

text:
    O’Hare, Attorney, v. Marateck.

      B. V. O’Hare and Felix O’Hare, for plaintiff.

      L. R. Enterline, for defendant.

      M. J. Ryan and Henry Arronson, for N. Piboavi.
    Jan. 6, 1930.
   Koch, P. J.,

— Upon the petition of Alfred I. Reese and A. Schwartz & Sons a rule was issued upon the plaintiff, the defendant, the sheriff and two other persons to show cause why the sheriff’s sale of the defendant’s stock of merchandise should not be declared void and of no effect, and why the said stock should not be delivered into the possession of, and title vested in, one of the petitioners, namely, Alfred I. Reese, receiver in bankruptcy of the said defendant, Marateck.

Marateck was engaged in the shoe business in Shenandoah, and, on July 12, 1929, confessed a judgment in favor of the plaintiff for $826.40. The judgment was entered Saturday, July 13, 1929, execution was issued the same day, and the entire stock of the defendant was levied upon by the sheriff, but the store was not closed by the sheriff, nor, the petitioners allege, were the sheriff’s bills of sale to be seen there or elsewhere in the county. On Monday morning, July 22, 1929, at about 9 o’clock, the entire stock of merchandise was sold to the plaintiff for $50. Petitioners claim that the stock was worth $4200. The stock was all removed to Philadelphia two days after the sale by one Nathan Piboavi (or Piwovar), who, it is alleged, offered to sell the stock to one John Hirsch, an auctioneer in the City of Philadelphia, for the price of $4200. Reese, as receiver, made demand on Hirsch and Piboavi for delivery to him of the said stock. Petitioners also claim that no notice was given to creditors of any sale or intention to sell by O’Hare, and that the sale was in fraud and in violation of the rights of creditors and wholly illegal and void.

The rule was not obtained until Aug. 7, 1929.

It appears from the answers of O’Hare and Piboavi that O’Hare held the judgment as attorney for four different shoe companies, whose separate claims aggregated the amount of the judgment, namely, $826.40.

By Piboavi’s answer it appears that he paid O’Hare $1354.60 for the said stock. He denies that he offered to sell it to Hirsch for $4200, and says that he added $2500 in value of other stock to that. In what purport to be depositions by O’Hare, he testified that he received only $1350 from Piboavi. O’Hare also deposed that the deputy sheriff who conducted the sale made public outcry thereof and that at least three others besides the sheriff’s deputy and himself were present and that O’Hare’s bid of $50 was the only bid.

By the sheriff’s answer we find that public hand-bills of the sale had been put up and due public notice of the sale given. But' we may say, in passing, that, although but six days’ public notice is required under the law, we believe the general practice in this county has been to give a longer notice. It is not likely that the sale-bills were printed on Saturday, July 13th, and put up at once, and, as the sale took place on Monday, July 22nd, at the early hour of 9.30 A. M., we conclude that no time was lost in making the sale in this case. Two Sundays intervened between Saturday, July 13th, and Monday, July 22nd.

The sheriff admits in his answer that Marateck’s place of business was not closed after he levied on the stock, and says it was left open because the plaintiff in the execution requested it. He also avers that the bills giving notice of the sale were placed upon the defendant’s premises and at other places in Shenandoah.

This court has the power to inquire into- the regularity and fairness of the sale of personal property when made by a sheriff under its writ, but it must be done at the instance of an interested party before the delivery of the goods: Placita 69 and 70, 2 Purd. 1551.

Now, it is not shown how the creditor, who petitioned for the rule, is interested in the proceeds of the sale! Had that firm also issued a writ of fi. fa. it would be so interested. But it does not even appear that it had reduced its claim to judgment. And as to Reese, who claims to be receiver under the proceedings in bankruptcy, it appears that he was not a party in interest before the sale, because he did not become the receiver until some days after O’Hare, the purchaser at the sheriff’s sale, had sold and delivered the merchandise to Piboavi and Piboavi had taken it from Shenandoah to Philadelphia, well out of the jurisdiction of this court. The merchandise was moved well out of our jurisdiction two weeks before the pending rule was obtained.

Parties who have obtained no judgments are not entitled to share in a sheriff’s distribution of the proceeds of a sale: Smith v. Reiff, 20 Pa. 364; Rudy’s Appeal, 94 Pa. 338. True enough, these citations refer to sales of real estate, but the principle is the same. Nor is mere inadequacy of price a sufficient reason to set aside a sheriff’s sale: Stroup v. Raymond, 183 Pa. 279; Snyder v. Snyder, 244 Pa. 331.

In order to set aside such a sale, the Act of April 10, 1849, P. L. 59,7, requires that “it appear that the sale shall have been so irregular or fraudulent as, in the opinion of the court, to have produced a sacrifice of the property to the prejudice of any such party,” namely, a party interested.

The sheriff’s return shows nothing irregular or fraudulent, and he is presumed to have complied with the law in all respects. Nor does the evidence persuade us that the plaintiff is guilty of any fraudulent intent or conduct. And without proof that the plaintiff or the sheriff is guilty of irregularity or fraudulent conduct, we do not feel that it lies within our power to set aside the sale. Besides, the act requires that the application to set aside such sale shall be made “before delivery of the goods.” The rule is discharged.

From M. M. Burke, Shenandoah, Pa.


author: Arird, P. J.,

text:
    Corydon Township Election.

      Frank J. Lyons, for petitioners.
    Jan. 18, 1930.
   Arird, P. J.,

— This proceeding is based on the provisions of an act entitled “An Act providing for the opening of ballot-boxes after general, municipal, special, or primary elections, upon petition to the Court of Common Pleas, or a judge thereof, under certain circumstances, and imposing certain duties in connection therewith upon the court, the prothonotary and the county treasurer,” approved April 23, 1927 (P. L. 360).

A requisite number of persons presented their petition, in which they averred that a general election was held in the First Voting Precinct of the Township of Corydon, County of Warren, State of Pennsylvania, on Tuesday, Nov. 5, 1929. The petitioners also allege, upon information which they have received, and which they consider reliable, that fraud was committed in the computation of the votes cast in said election precinct in the Township of Corydon, or in the marking of the ballots, or otherwise in connection with said ballots for the office of supervisor, then to be voted upon in the Township of Corydon.

The petitioners respectfully prayed the court to order and direct the opening of the ballot-box of said voting precinct of Corydon Township, as provided by the act of assembly. This petition was presented on Nov. 29, 1929, on which the following order was made:

“And now, to wit, Nov. 29, 1929, upon hearing the within petition and upon due consideration thereof, and it appearing that the petitioners have filed in the office of the Prothonotary of the County of Warren, State of Pennsylvania, the sum of fifty dollars cash, as required by the act of assembly in such case made and provided, it is ordered that H. H. Jefferson, Sheriff of Warren County, Pennsylvania, forthwith take into his custody and possession the ballot-box of the First Voting Precinct of the Township of Corydon, in the County of Warren and State of Pennsylvania, used in the general election held on Tuesday, Nov. 5, 1929, and cause the same to be produced before this court on Wednesday, Dee. 4, 1929, at 10 o’clock A. M., at which time it is ordered that the entire vote cast in said First Voting Precinct of said Township of Corydon aforesaid at said election held on Nov. 5, 1929, shall be counted by this court, as provided by law; it is further ordered that a copy of this order be served by the Sheriff of Warren County, Pennsylvania, on O. C. Sparks and Burr K. Garvin, candidates for the office of supervisor at said election hereinbefore referred to. D. U. Arird, P. J.”

The ballot-box having been brought into court, the same was opened by the court, and the votes were corrctly counted by assistants, as provided by the act of assembly. O. C. Sparks had been nominated for supervisor on three tickets, Republican, Democratic and Prohibition. It appears that one Burr K. Garvin was an independent candidate for the office of supervisor of said township. In some votes cast Garvin’s name had been written in the vacant space provided by law under supervisor, but it was written B. K. Garvin, Burr K. Garvin and Burr Garvin. Also, Garvin received votes where the voters had used what are commonly known as stickers. Many of these stickers were not placed on the ballot in the space provided for that purpose, but when this ballot-box was opened, the one question raised at that time was whether or not the tickets voted for B. K. Garvin, Burr K. Garvin or Burr Garvin could all be counted for one person. Through error or mistake on the part of the court, the ballots whereon stickers had been used for Garvin and pasted on said ticket improperly at that time did not receive attention. Consequently, the court ordered the ballot-box to be reopened on Wednesday, Jan. 15, 1930, and gave Frank J. Lyons, attorney for petitioner, notice that said ballot-box would be reopened for the purpose of re-examining the returns made by the election board. After the recount had been completed on Dec. 4, 1929, the ballots were properly returned to the ballot-box, which was tied and sealed in the presence of the court, as ballot-boxes are required to be sealed by election officers. Said box was returned to the Sheriff of Warren County and remained in his custody until Jan. 15, 1930, when said box was again ordered to be brought into court. The same persons that had formerly recounted the vote were present and acted in the presence of the court as a board for recounting and re-examining the ballots cast in said First District of Corydon Township, Warren County, Pennsylvania.

It was found by the board that O. C. Sparks had received 29 Republican votes, 12 Democratic votes and 1 Prohibition vote in said voting precinct of said township. That B. K. Garvin received 4 votes, Burr K. Garvin 27 votes and Burr Garvin 4 votes, making a total of 35 votes. The board further found that Garvin received 20 votes which were placed on the ballot by stickers, but the stickers were not placed in the space on the ballot provided for that purpose, but the stickers as they were stuck on the ballot were scattered over the different names printed on the ballot under the heading of supervisor. Also, they found 8 ballots on which Garvin’s name had been written, and the name written on these 8 ballots was not written in the space provided for that purpose. Consequently, the board threw out the 28 ballots, leaving the said Garvin with 35 ballots only. Out of these 35 ballots as aforesaid, Burr K. Garvin received 27 ballots, B. K. Garvin 4 and Burr Garvin 4 ballots.

So far as we have examined decisions of our higher courts we have not been able to find any decisions to declare whether or not, under the circumstances, these 35 votes could all be counted for Burr K. Garvin, but, in our opinion, that would be error. From the decisions of our higher courts, there is no question in our mind but that the votes where stickers were used and scattered over the ballot under the name of supervisor, but were not pasted on the space provided for that purpose, could not be counted as votes for Burr K. Garvin. Neither could the 8 votes written on the ballot for Burr K. Garvin, but not written on the space provided for that purpose, be counted as votes for him. In examining the return made by the election board, we find that, in our opinion, it was fatally defective. The election board found that O. C. Sparks had received in the First Voting Precinct of said township 44 votes; two of these votes were defective and were thrown out at the time the recount was made, leaving O. C. Sparks with 42 votes. Again, the return of the election board showed that Burr K. Garvin received 50 votes. This appears to be for the reason that the election board gave Burr K. Garvin all the votes that were cast for him, without regard to the part of the ticket on which the stickers had been pasted or the name Burr K. Garvin written on said ballot. The recount found that Burr K. Garvin received 27 legal votes.

Again, we consider it error in the election board’s return that they made no return showing that B. K. Garvin had received any votes for supervisor and also failed to show that Burr Garvin had received any votes for supervisor of said township, but the recount gave B. K. Garvin 4 votes, which were legal votes, and Burr Garvin 4 votes, which were legal votes.

From said examination of said ballots and computation of the votes cast in said election district at said election as shown by the opening of said ballot-box, the court finds that there was no intentional fraud or intention of fraud on the part of the election officers of said district at said election, but everything, so far as shown by said ballots and computation thereof, shows there was substantial error in the computation of the votes cast and also in keeping tally of said votes for supervisor of said township. The tally-sheet and the return-sheet fail to show that there were any legal votes cast for B. K. Garvin or Burr Garvin. The tally-sheet kept by the election board and the return-sheet made by the election board simply show votes cast for O. C. Sparks and Burr K. Garvin, and we conclude from the examination of the ballots cast that the election board gave Burr K. Garvin all the votes that were cast for him, whether legal or illegal, but did not give him credit in the 50 votes returned for the votes cast for B. K. Garvin or Burr Garvin. Also, the election board in its return showed, neither on the tally paper nor the return-sheet, that they made any memoranda in the tally-sheet of the votes cast for B. K. Garvin or Burr Garvin, but simply ignored the votes cast for Burr Garvin or B. K. Garvin, whether cast legally or illegally.

Mr. Lyons, attorney for the petitioners, made argument and submitted a well-written brief. This brief related principally to the question as to whether or not all of the votes east for one Garvin should be counted for Burr K. Garvin. The later decisions that he cited and the decisions carrying the greater weight in regard to the matter are found in the defendant’s brief, Quinn’s Contested Election, 14 Dist. R. 386, and East Taylor Township Supervisor’s Election, 17 Pa. C. C. Reps. 657. In the latter case the lower court decided that votes cast for J. Keiper, J. B. Keiper and John Keiper could be counted as votes for John Keiper. The election board threw out the tickets where the name of Keiper had been inserted and afterwards no cross had been placed opposite his name. The return showed that Albert Snyder received 59 votes, Mr. Stanton 39 votes and 41 votes were received by John Keiper. John Keiper’s name was not printed om the ballots. The election board was in error when the board held that it was necessary to put a cross after the name of John Keiper where John Keiper’s name had been inserted in the column provided for that purpose. It does not appear in this case, except by a remark of the court in writing the opinion, whether or not the different names for Keiper were written in the proper space left for that purpose, or whether they had been scattered in different places under the title of supervisor.

The next decision is found in Quinn’s Contested Election, 14 Dist. R. 386. The county commissioners had prepared the ballots as follows: William D. Bahr, Republican; Patrick Quinn, Democratic; William Bahr, Union. There were two voting precincts. In the first voting precinct William D. Bahr received 119 votes, Patrick Quinn 133 votes and William Bahr 9 votes. In the second voting precinct William D. Bahr received 84 votes, Patrick Quinn 94 votes and William Bahr 34 votes. The election board refused, in computing the returns, to add the votes cast for William D. Bahr, Republican, and William Bahr, Union. In the recount the court added the votes cast for William D. Bahr and William Bahr; consequently, he received the majority of votes and was declared elected treasurer of said township.

The reason given by President Judge Terry in writing the opinion and rendering the decision was that the voters voted the ballot as provided by the county commissioners, and for his authority he very largely cited the Act of Assembly of April 14, 1897, P. L. 23; he also cited the Act of April 29, 1903, P. L. 338, amending the Act of June 10, 1893, P. L. 419, as amended July 9, 1897, P. L. 223. The court, in writing the opinion, said: “As the ballot on its face was in accord with the provisions of the law, and, therefore, prima facie legal, the election officers were not in strictness bound to refuse to count the votes cast for William Bahr by the use thereof.”

The court further said: “Section 27 of the Act of June 10, 1893, P. L. 419, as amended by the Act of April 29, 1903, P. L. 338, provides that ‘If a voter has marked his ballot otherwise than as directed by this act, so that for any reason it is impossible to determine the'voter’s choice for any office to be filled, his ballot shall not be counted for such office,’ etc.”

The court further said: “The principle that the intention of the voter, if it can be learned, shall govern has not been altogether discarded.”

Now, this opinion was written March 29, 1905, and simply held that the two names, William D. Bahr and William Bahr, should be counted together, for the reason that the ballots were prepared by the county commissioners.

Now we have a number of Supreme Court decisions which govern the question, where stickers should be placed, and also where names should be written, where their names are not printed on the ballot. The latest case we have is Rodgers’ Contested Election, 234 Pa. 512, where Mr. Justice Moschzisker said:

“[The act] prescribes the form of the ballot as follows: ‘Make a (X) in the square to the right of each candidate for whom you wish to vote. If you desire to vote for a person whose name is not on the ballot, write or paste his name in the blank space provided for that purpose.’

“Here, the voters who cast the ballots in question did not adhere to the provisions of the act or the requirements of the law. They desired to vote for a person who was not on the official ballot, but instead of writing or pasting his name under the proper designation of the office to be filled in the space beneath the printed name of Elwood, they placed a sticker directly over that name; one class making the sticker fast so as entirely to obliterate the name of Elwood.”

The court further said: “We feel that under the doctrine of our decisions, the votes in question were void and should not have been counted.”

The court cited Lawlor’s Contested Election, 180 Pa. 566, at page 570, and quoted from the decision. There the court said: “The only prescribed mode of voting for persons whose names are not already on the ballot is by inserting their names in the blank spaces prepared therefor.”

Mr. Justice Moschzisker further said: “Where slips resembling a party column with names, designations of offices and directions how to vote were pasted over such a column, the court held the ballot invalid.”

The court also cites Little Beaver Township Election, 165 Pa. 233, at page 237: “The name, or names, as the case may be, cannot be inserted anywhere . . . but only in the appropriate blank spaces prepared therefor. ... In so far as the mode of voting is thus specifically prescribed by the act, all other modes are by necessary implication forbidden.”

We have before us “The Voter’s Guide,” as prepared by William G. Johnston Company, Pittsburgh, Pa. Section 85 reads as follows:

“Section 85. Ballot Decisions. Names of the candidates not on the printed ballots may be inserted by writing or pasting a printed slip with a name on it in the space provided for that purpose,” here citing a number of decisions of our Supreme Court.

Section 14 of the Act of June 10, 1893, P. L. 419', provides for what we might term a blanket.ballot. In part, section 14 reads as follows: “There shall be left at the right of the groups of candidates for presidential electors, and of the lists of candidates for other officers (or under the title of the office itself for which an election is to be held, in case there be no candidates legally nominated therefor), as many blank spaces as there are persons to be voted for by each voter for such office, in which spaces the voter may insert the name of any person whose name is not printed on the ballot as a candidate for such office, and such insertion shall count as a vote without the cross-mark hereinafter mentioned.”

Then we come to the Act of April 29, 1903, P. L. 338, relating to amendment of the 9th and 14th sections of the former act. This 14th section is re-enacted almost word for word by the amending act. Then we come to the recent Act of July 9, 1919, P. L. 829, an amendment to the Act of 1893, as amended by the Act of 1903, by providing a manner in which voters may designate their choice of candidates, and repealing acts or parts of acts inconsistent therewith. In part, section 22, page 831, reads as follows: “He may vote, according to the above provisions, for the candidate of his choice for each office to be filled, according to the number of persons to be voted for by him for each office, or he may insert in the blank space provided therefor, in accordance with section 14 of this act, any name not already on the ballot.”

The Act of Assembly approved June 10, 1893, P. L. 419, with its amendments, provides what may be called a system for holding elections in Pennsylvania. Among other things, it provides:

First. Duties of the county commissioners.

Second. Duties of the Secretary of the Commonwealth.

Third. Duties of the election board.

Fourth. Duties of the voter in order to cast a legal ballot, i. e.: 1. By a cross opposite the name of the candidates printed on the ticket. 2. A blank space in which the voter may insert the name of any person whose name is not printed on the ballot as a candidate for such office.

These four seem to be the principal features.

The title of the Act of June 10, 1893, P. L. 419, reads as follows: “To regulate the nomination and election of public officers, requiring certain expenses incident thereto to be paid by the several counties, and punishing certain offenses in regard to such elections.”

The first line of this title reads: “To regulate the nomination and election of public officers,” and this act includes thirty-six sections. The last section reads as follows: “All laws and parts of laws inconsistent herewith shall be and the same are hereby repealed.”

Now, so long as this act with its amendments provides a general election law, in our opinion, the courts cannot take into consideration whether or not there are but a few voters or a large number of voters in the voting precinct. In our opinion, the voter must have some knowledge, or some assurance, relating to the person for whom he is voting. Take it in our large cities, if a man was running for a city office under the name of John Smith, we cannot comprehend, if his name is not printed on the ballot, how votes could be counted for him if cast under the names of John Smith, John A. Smith, J. Smith or John Andrew Smith. Of course, where a name is printed on the ballot by the county commissioners, then the voter has some assurance that he is voting for the candidate of his choice; but where a name is not printed on the ticket by the commissioners and voters simply write the name or use stickers, then, especially in our cities, numerous fraudulent votes could be cast where the voters use, as above illustrated in John Smith, different given names or initials. So long as the Act of 1893, with its supplements, provides a general law relating to elections, and our Supreme Court has enunciated the law relating to the question of legal and illegal ballots, it is simply the duty of the lower court to follow the act of assembly, with its amendments, and the construction placed upon it by our Supreme Court.

While no question is raised here in regard to the votes east for supervisor of said township in the second voting precinct of said township, the returns in said second voting precinct show that O. C. Sparks received 14 votes and Burr K. Garvin received 1 vote.

In our opinion, it would be waste of time to write further in regard to this matter. In our mind, there is no question but that O. C. Sparks was duly elected supervisor of said Corydon Township, Warren County, Pennsylvania, and, if we are informed correctly, the election board of said township duly issued a certificate to O. C. Sparks, showing his election as supervisor of said township.

It is, therefore, found by the court that substantial error was committed in the computation of the votes cast on the ballots contained in said ballot-box, and also in keeping the tally-sheets in said First Voting Precinct, and therefore, Jan. 18,1930, it is hereby certified by said court that substantial error has been discovered in said matter, and the sum of $50, cash deposit with the prothonotary by said petitioners, be returned to the petitioners, and the prothonotary of said county is directed to pay the same to the said petitioners, or their attorney, and the County of Warren is authorized and directed to pay the costs of this proceeding.

From Joseph H. Goldstein, Warren, Pa


author: Schnader, Special Dep. Att’y-Gen.,

text:
    Fictitious Names of Corporations or of Individuals in Corporate Form.
    April 24, 1930.
   Schnader, Special Dep. Att’y-Gen.,

— We have your request to be advised regarding certain questions which have arisen in the administration of the Act of June 28, 1917, P. L. 645, which requires the registration of fictitious names in certain cases.

You ask:

“1. May a Pennsylvania corporation register in this Department and do business under an assumed or fictitious name?

“2. May a foreign corporation registered in Pennsylvania register in this Department an assumed or fictitious name?

“3. May a foreign corporation unregistered in Pennsylvania register an assumed or fictitious name in this Department?

“4. May individuals or partnerships register in this Department an assumed or fictitious name containing the abbreviation ‘Inc.,’ ‘Incorporated,’ ‘Corporation’ or any other word tending to denote incorporation?”

Section 1 of the Act of 1917 provides:

“That no individual or individuals shall hereafter carry on or conduct any business in this Commonwealth, under any assumed or fictitious name, style or designation, unless the person or persons conducting or carrying on the same shall have first filed in the office of the Secretary of the Commonwealth . . . a certificate, under oath, and signed by such person or persons, setting forth the real name or names and addresses of all the persons owning or interested in said business, and also the name, style or designation under which said business is being or will be carried on or conducted.

“Where any of the owners of said business live outside of the Commonwealth of Pennsylvania, and carry on or conduct any such business through an agent, such certificate shall also show the name and address of such agent.”

Section 3 of the act provides that “any person carrying on or conducting any business in violation of this act shall be guilty of a misdemeanor” and punishable by a fine or imprisonment, or both.

While the Act of 1917 was amended by the Acts of May 10, 1921, P. L. 465, and June 29, 1923, P. L. 979, the language above quoted was not modified.

Section 806 of The Administrative Code of 1929 (Act of April 9, 1929, P. L. 177), provides that “the Department of State shall have the power, and its duty shall be, to register . . . the assumed or fictitious names under which individuals carry on or conduct business, upon application duly made. . . .”

The Act of 1917 and its amendments have been construed in a number of cases, none of which, however,' furnishes a specific answer to your questions; but in Lamb v. Condon et al., 276 Pa. 544, the language used by Mr. Justice Sadler in rendering the opinion of the Supreme Court is significant in the consideration of your first, second and third questions. At page 547, Mr. Justice Sadler said: “An examination of the act discloses an intention on the part of the Legislature to deal with two classes of individuals who might use assumed names; one, covered by the first paragraph of section 1 of the act, being those who are residents of the State, and the other, individuals who are nonresidents. . . .”

In an earlier case decided by the Superior Court (Engle v. Capital Fire Ins. Co. of Concord, N. H., 75 Pa. Superior Ct. 390), Judge Henderson, speaking of the same act, said: “. . . It is a penal regulation and should be so construed as not to extend its operations beyond the purposes for which it was evidently enacted. . . .”

The act in express terms applies only to individuals engaging in business under assumed or fictitious names. Clearly, a corporation is not an “individual,” and the act does not, therefore, apply to corporations. That being the case, there is no distinction between a domestic corporation and a foreign corporation, as far as concerns a corporation’s duty to register under the act.

We have quoted from section 806 of The Administrative Code of 1929, which outlines in a general way the duties of the Department of State in connection with such registrations as were formerly required by law to be made or filed with the Secretary of the Commonwealth. It is to be noted that in mentioning the duty of your Department in connection with the registration of assumed or fictitious names, your Department was directed to register only the assumed or fictitious names “under which individuals carry on or conduct business.”

Except for the Act of 1917 and its amendments and The Administrative Code of 1929, there is no statutory law on the subject; and your Department is, therefore, without authority to register a fictitious or assumed name under which a corporation seeks to transact business in Pennsylvania.

In view of the interpretation which we have placed upon the Act of 1917, it is not important to consider the question raised in your letter whether a corporation may lawfully transact business under an assumed name. With respect to this question, we take it that the extent of a corporation’s power to conduct its operations in a name or in names other than that contained in its charter or certificate of incorporation must be determined under the laws of the state in which the corporation was created. We do not hesitate to express the opinion that under the laws of Pennsylvania a corporation does not have the right to transact business under an assumed or fictitious name. In Pennsylvania a corporation is required in its certificate of incorporation to state “the name of the corporation” and “the purpose for which-it is formed” (section 3 of the Act of April 29, 1874, P. L. 73). Pennsylvania corporations can be formed for only one purpose. Under our law it has been repeatedly held that the name of the corporation should be indicative of its purpose. Were it possible for a Pennsylvania corporation at will to adopt names other than that stated in its certificate of incorporation, the object of our law in confining a corporation to one purpose and requiring its name to be indicative of that purpose could, and would, readily be defeated. Further, the very first section of our Corporation Act of 1874, in stating the powers of a Pennsylvania corporation, provides that it shall “have succession by its corporate name for the period limited by its charter, and when no period is limited thereby, or by this act, perpetually. . . .” The Legislature clearly indicated that a Pennsylvania corporation should not have succession for any period of time otherwise than by its proper corporate name.

We realize that there are two decisions of our courts which have been cited to you as indicating that a corporation may, under the law of this State, assume and use a name other than that stated in its certificate of incorporation. One of these cases is Phillips v. International Text Book Co., 26 Pa. Superior Ct. 230, in which the court declined to permit a corporation to escape liability on a contract admittedly executed by it, but in a name other than that stated in its certificate of incorporation. In deciding the case, Judge Porter said (page 232) : . . The evidence indicates that there was no

corporation or firm in existence named the ‘International Correspondence Schools,’ but for purposes which were entirely proper the International Text Book Company had for its own convenience carried on one branch of its business in that name. . . .” And in Berg Co. v. Douredoure Bros., 5 D. & C. 597, Judge Gordon, of Court of Common Pleas No. 2 of Philadelphia County, held that although it had made a contract in a fictitious name, a corporation suing in its own name could recover on a contract where the defendant admitted having received the benefits of the contract and was seeking to escape liability upon the technicality that the contract was not made by the corporation in its proper name. The court stated, at page 599, that to escape liability “. . . the defendants should at least show, if it be true, that they were in some manner prejudiced or injured by the use by the plaintiff of an assumed name in the execution of the contract.”

Clearly, the conclusions reached in these cases have no bearing upon the consideration of the question whether in the administration of our corporation laws your Department should, under any circumstances or for any purpose, recognize the use by a Pennsylvania corporation of a name other than that stated in its certificate of incorporation; and for the reasons which we have indicated, it is our view that your Department must take the position in administering the corporation laws that a Pennsylvania corporation cannot lawfully adopt or use a name other than that contained in its certificate of incorporation.

With respect to your fourth question, we have been unable to find any authority which furnishes a decisive answer. The Act of 1917, as amended, does not give to your Department any jurisdiction to determine the propriety of a name which an individual seeks to register in your office. The registration of a fictitious name used by an individual or individuals is a ministerial act. At the same time, we are clearly of the opinion that the Legislature did not intend to authorize your Department to assist an individual to work a fraud upon the public. The use of an assumed or fictitious name which concludes with “Inc.” or “Incorporated” or “Corporation” must necessarily deceive the public into believing that the business conducted under such name has been incorporated. Whether a business is conducted by an individual, a partnership or a corporation may or may not be important, but in any event public policy would seem to require that official recognition should not be given in any way, shape or form to the use of a name which on its face is calculated to deceive the public.

We, therefore, advise you that you may properly decline to register as the assumed or fictitious name of an individual or of individuals a name which indicates that the business conducted has been incorporated when on the face of the papers presented to you such is not the case.

It would, of course, be better for the Legislature expressly to prohibit the use of such names by individuals, and your Department should, in our judgment, recommend such action to the next session of the General Assembly.

From C. P. Addams, Harrisburg, Pa.


author: Landis, P. J.,

text:
    Acker v. Creswell.

      J. Andrew Frantz, for rule; William C. Behm, contra.
    Jan. 18, 1930.
   Landis, P. J.,

— On April 29, 1929, a suit in assumpsit was commenced before a magistrate against the defendant to recover the amount due to the plaintiff on a bond given by Harry F. Acker as principal and John H. Creswell as surety. On a hearing duly had judgment was entered in favor of the plaintiff for $207.10. The defendant appealed from this judgment and entered the same to the above number and term.

On Aug. 30, 1929, the plaintiff filed her statement, which was duly sworn to by her. Counsel for the defendant raises the point that the statement should be stricken off because the plaintiff in her affidavit to the same avers that the facts set forth therein “are true and correct, to the best of her knowledge and belief,” without at the same time deposing and saying that she expects to be able to prove them on the trial of the case.

Section 9 of the Act of May 14, 1915, P. L. 483, which now applies to appeals from justices, provides that “the statement of claim shall be as brief as the nature of the case will admit. In actions on contracts, it shall state whether the contract was oral or in writing. It shall be sworn to by the plaintiff or some person having knowledge of the facts, and, if there be an attorney, shall be signed by his attorney.” All of this was done in this case.

It will be observed that the act of assembly does not require that the plaintiff shall swear that she expects to be able to prove the facts set forth in her statement on the trial; but in Cohen v. Snyder, 30 Dist. R. 1008, it was 'held by Judge Broomall, of Delaware County, Pennsylvania, that “an affidavit to a statement of claim which fails to set forth that the facts alleged in the statement are true, but only that they are true and correct according to the best of the plaintiff’s' knowledge, information and belief, is not sufficient, and in such case the statement will be stricken off.” The same conclusion was arrived at by Judge Ryan in Dayhoff v. Masland, 29 Dist. R. 393, and there are some other cases to the same effect.

In the case of affidavits of defense, where a defendant is required to make affidavit of the facts constituting his defense, the rule has been established by the Supreme Court that a party must make affidavit as to the facts, if they are within his knowledge, absolutely, or, if he relies upon information, he may allege them upon information and belief, together with an averment of his expectation of proving them: Newbold v. Pennock, 154 Pa. 591; Wakely v. Sun Ins. Office, 246 Pa. 268; Mendenhall v. Jackson, 268 Pa. 123. It is claimed that, by analogy, the same rule should be applied to the plaintiff’s statement. I confess I can see but little merit in this contention, for the only effect that it brings about is delay in the trial of the case. However, there ought to be some uniformity in practice, and on this account only, I am constrained to follow the rule thus laid down.

The rule is, therefore, made absolute and the plaintiff’s statement is stricken off, with leave to file a new statement in accordance with this opinion.

Prom George Ross Eshleman, Lancaster, Pa.

NOTE. — See following case.