author: Hargest, P. J.,

text:
    Commonwealth v. Janesville Coal Company.

      Taxation — Corporations—Tax on loans — Promissory notes — Collection of tax — Act of June 17, 1918.

    1. Promissory notes issued by a corporation and held by individual residents of Pennsylvania were taxable prior to the Act of July 15, 1919, P. L. 955, under section 1 of the Act of June 17, 1913, P. L. 507, and not under section 17 thereof.
    2. Taxes due on promissory notes under section 1 are collectible through local authorities and are not required to be collected by the corporation.
    Appeal from settlement by the Commonwealth of tax on loans. C. P. Dauphin Co., Commonwealth Docket, 1920, No. 71.

      William, I. Schaffer, Attorney-General, and Frank M. Hunter and George Boss Hull, Deputy Attorneys-General, for plaintiff.

      Olmsted, Snyder & Miller, for defendant.
    Feb. 20, 1922.
   Hargest, P. J.,

This case arises upon an appeal from the settlement made by the Auditor General and State Treasurer of a tax on loans against the defendant company. A trial by jury was dispensed with, and the case heard by the court pursuant to the provisions of the Act of April 22, 1874, P. L. 109.

Facts.

1. The Janesville Coal Company is a corporation of the State of Pennsylvania.

2. On June 14, 1918, it issued two notes for $10,000 each. During the portion of the year 1918 in which these notes were outstanding, they were both owned by individual residents of the State of Pennsylvania. On Sept. 27, 1918, $1500 was paid on each note in reduction of the principal indebtedness, and three months’ interest was paid on said $3000; six and a-half months’ interest was subsequently paid on $17,000 to the two individual residents of Pennsylvania owning the said notes.

3. The tax was settled upon $17,000 for the period of six and a-half months, and $3000 additional for the period of three months. It is admitted that the amount of tax charged is correct if any tax is due.

Discussion.

The question raised in this case is whether the notes in question are taxable under section 1 of the Act of June 17, 1913, P. L. 507, or under section 17 of that act.

Section 1 enumerates the kind of personal property which is subject to taxation for city and county purposes, and among other obligations subjects to such taxation “all moneys owing by solvent debtors, whether by promissory note, or penal or single bill, ... all loans issued by any corporation, association, company or limited partnership created or formed under the laws of this Commonwealth. . . .”

Section 17 imposes a tax for State purposes “on all scrip, bonds or certificates of indebtedness issued by any and every private corporation.”

In the cases of Com. v. Roxford Knitting Co., 22 Dauphin Co. Reps. 89, afiirmed by the Supreme Court on the opinion of Judge Kunkel in 268 Pa. 266, and Com. v. Lehigh & New England R. R. Co., 22 Dauphin Co. Reps. 91, affirmed on the opinion of Judge Kunkel in 268 Pa. 271, it is held that a corporation is not taxable for State purposes on an indebtedness represented by promissory notes payable to a banking copartnership, or negotiated and discounted by private bankers under section 17 of the Act of 1913, because such obligations are taxable under section 1 of that act. The Commonwealth contends that, because the notes in question were held by individual residents and not by a banking copartnership or by private bankers, they are taxable under section 17, and that the cases above cited hold that such indebtedness is taxable under section 1 only when the obligations are held by banking copartnerships or individual bankers.

It is true that in the Roxford Knitting Company case the notes were held by Drexel & Company, a copartnership doing a banking business, and in the Lehigh & New England Railroad Company case the notes were discounted and negotiated by private bankers.

Judge Kunkel, in stating his reasons for holding promissory notes taxable under section 1, instead of section 17 of the Act of 1913, said: “In many instances the interest on bankable promissory notes is deducted when the loan is made or the note discounted, and never comes into the hands of the borrower or debtor.” But we think a careful reading of these decisions shows that they were based upon the language of the two sections, and that the conclusion is irresistible that not only promissory notes held by private bankers or banking copartnerships are taxable under section 1, but all promissory notes owned in any way so as to subject them to taxation. Section 1 specifically mentions “promissory notes” as subject to taxation, whilé section 17 uses the words “scrip, bonds or certificates of indebtedness.”

We are, therefore, of opinion that promissory notes issued by a corporation and held by individual residents of Pennsylvania were taxable prior to the Act of July 15, 1919, P. L. 955, under section 1 of the Act of June 17, 1913, P. L. 507, and not under section 17 thereof.

Conclusion.

We conclude:

1. That the defendant’s loans, represented by its promissory notes, are not taxable for State purposes.

2. That the tax thereon for the year 1918 is not required to be collected by the corporation, but is collectible through the local authorities.

3. That the settlement is without authority of law.

4. That the defendant is entitled to judgment.

Wherefore, judgment is hereby directed to be entered against the Commonwealth and in favor of the defendant, unless exceptions be filed within the time limited by law.

From William Jenkins Wilcox, Harrisburg, Pa.


source: Caselaw Access Project

license: Public Domain

text:
    Commonwealth v. J. B. Lippincott Company.

      Taxation — Corporations — Tax on loans — Promissory notes — Length of time outstanding — Act of June 17, 1913.

      1. Promissory notes issued by a corporation and held by individual residents of Pennsylvania were taxable prior to the Act of July 15, 1919, P. L. 955, under section 1 of the Act of June 17, 1913, P. L. 507, and not under section 17 thereof.
    2. The length of time a note is outstanding cannot determine whether it is taxable under section 1 or section 17. If it was a promissory note within the purview of section 1 when it was issued, its age would not transfer it for the purpose of taxation to section 17.
    Appeal from settlement by the Commonwealth of tax on loans. C. P. Dauphin Co., Commonwealth Docket, 1920, No. 72.

      William I. Schaffer, Attorney-General, and Frank M. Hunter and George Ross Hull, Deputy Attorneys-General, for plaintiff.

      Olmsted, Snyder & Miller, for defendant.
    Feb. 20, 1922.
   Hargest, P. J.,

This case comes before us on an appeal by the defendant company from a settlement made by the Auditor General and State Treasurer of a tax on loans for the year 1918. Trial by jury has been dispensed with by a stipulation filed pursuant to the Act of April 22, 1874, P. L. 109.

Facts.

1. The defendant is a corporation of the Commonwealth of Pennsylvania.

2. During all of the year 1918 the defendant company had outstanding certain promissory notes, payable on demand, issued to meet the current bills of the company, all of which were owned by individual residents of the State of Pennsylvania, and upon which, during the year 1918, a full year’s interest was paid.

The dates upon which the notes were issued and the amounts are as follows: Oct. 23, 1913, $45,000; Oct. 27, 1913, $38,000; Aug. 11, 1916, $20,000; Jan. 31, 1917, $10,000; Feb. 28, 1917, $40,000; April 27, 1917, $10,000; Sept. 1,1917, $10,000, making a total of $173,000.

Discussion.

For the reasons given in the opinion filed this day in the case of Com. v. Janesville Coal Co., No. 71, Commonwealth Docket, 1920 [1 D. & C. 562], we are of opinion that these promissory notes are taxable for the year 1918, under section 1 of the Act of June 17, 1913, P. L. 507, and not for State purposes, under the 17th section of that act.

At the trial, it was suggested on behalf of the Commonwealth that the length of time for which these obligations were outstanding might distinguish them from the promissory notes contemplated by section 1 of the act, and that section 1 contemplated short-term notes issued for current indebtedness and current expenses. This contention was not repeated in the brief. We are convinced that the length of time a note is outstanding cannot determine whether it is taxable under section 1 or section 17. If it is a promissory note within the purview of section 1 when it is issued, its age would not transfer it for the purpose of taxation to section 17.

Conclusion.

We conclude:

1. That the defendant’s loans represented by its promissory notes are not .taxable for State purposes.

2. That the tax thereon for the year 1918 is not required to be collected by the corporation, but is collectible through the local authorities.

3. That the settlement is without authority of law.

4. That the defendant is entitled to judgment.

Wherefore, judgment is hereby directed to be entered against the Commonwealth and in favor of the defendant, unless exceptions be filed within the time limited by law.

From William Jenkins Wilcox, Harrisburg, Pa.


author: Van Swearingen, P. J.,

text:
    Pratt v. Magee and McClure.

      Evidence — Burden of proof — Truth of a negative.

    1. In civil cases, with some exceptions, whosoever asserts a right dependent for its existence upon a negative must establish the truth of the negative.

      Practice, G. P. — Affidavit of defence — Statement of claim — Replevin.
    2. Judgment for want of a sufficient affidavit of defence will not be entered for a plaintiif who has not in his statement of claim shown at least a prima facie case in his favor.

      Bailment — Conditional sale — Lease—Final instalment.

    3. Where a motorcycle is leased by one person to another for a definite term, at a certain rental, with a provision in the lease that after the payment of the last instalment of rent the lessee may, at his option, purchase the motorcycle by paying to the lessor an additional nominal amount, the contract is one of bailment and not a conditional sale.
    Rule for judgment for want of a sufficient affidavit of defence. C. P. Fayette Co., June T., 1921, No. 235.

      Sturgis, Morrow & Sturgis, for plaintiff; Charles W. Rush, for defendants.
    Nov. 22, 1921.
   Van Swearingen, P. J.,

We are asked to enter judgment for the plaintiff for want of a sufficient affidavit of defence. The action is one of replevin for recovery of possession of a motorcycle valued at $225. By written contract under date of April 10, 1920, plaintiff leased the motorcycle to the defendant, G. E. Magee, for a period of four months from the date of the contract, “for the sum of $50 deposit, and the further sum of $48.75 per month” during the continuance of the lease, it being provided also in the contract that if all said payments be made when due, then, after the payment of the last instalment of rent, the lessee might, at his option, purchase the motorcycle by paying to the lessor an additional nominal amount designated in the contract.

In plaintiff’s statement of claim it is alleged that, “in violation of the bailment agreement, the defendant, G. E. Magee, wrongfully sold said motorcycle to the defendant, William McClure, and converted the proceeds; that the title to the motorcycle never was in the defendant, G. E. Magee; therefore, he could pass no title to the defendant, William McClure; that the possession of the motorcycle is now, and has been for some time, in the defendant, William McClure, who, by himself or his agents, and by force and arms, unlawfully detains same from the plaintiff.” The affidavit of defence by McClure alleges that the agreement between the plaintiff and the defendant, Magee, constituted a conditional sale, under which title to the motorcycle passed to Magee.

The specification of alleged insufficiency of the affidavit of defence was in construing the agreement to constitute a conditional sale agreement instead of a bailment contract.

We are of opinion that the transaction between the plaintiff and Magee constituted a bailment and not a conditional sale. “If from the contract we discover that the party who receives the possession of the goods receives them under an agreement that he is to retain them for a definite period, and if at or before the expiration of that period he pays for them, he is to become the owner, otherwise to pay for the use of them, this is but a bailment, and the title to the property, even as against creditors, remains in the bailor:” Edwards’s Appeal, 105 Pa. 103. “Where the possession of personal property is transferred under an express contract of lease or other bailment contract, the mere fact that there is a superadded executory agreement for the sale of the property to the transferee upon the payment of a certain price at any time during the bailment does not convert the bailment into a sale, and until the execution of the contract of sale by the payment of the price the title to the property remains in the bailor, even as against the bailee’s creditors:” Potter v. Stetson & Co., 11 Pa. Superior Ct. 627. “Where by a contract the vendee receives a chattel which he is to keep for a certain period, and if in that time he pays for it the stipulated price he is to become the owner, but if he does not pay the price he is to pay for its use, the vendee receives it as a bailee, and the right of property is not changed until the price is paid:” Enlow v. Klein, 79 Pa. 488. To constitute a bailment, payment for the use of the bailed goods is not always necessary. Neither is a stipulation for the return of the property on the expiration of the time during which the bailment is to operate necessary where the bailment is for a fixed period, for if it is not returned, the bailor may resort to his legal remedies and thus enforce the contract: Edwards’s Appeal, 105 Pa. 103; Painter v. Snyder, 22 Pa. Superior Ct. 603.

After reviewing many cases, the court below, in Ott v. Sweatman, 166 Pa. 217, 221, whose opinion was adopted by the Supreme Court, said: “A careful examination of these cases will show that they may be reduced to two classes, one in which the goods have been bailed to the defendant, with the right in him to purchase them during the continuance of the bailment or at its termination, and the other in which the goods have been delivered to the defendant under a contract of sale and the seller has sought to retain a lien on them for the price. In the former, the goods are not subject to the levy during the existence of the contract of bailment, nor until the title has actually vested in the bailee; in the latter, they are subject to the levy so soon as they reach the possession of the purchaser, thotigh no part of the price has been paid.”

In the present ease the contract was executory; it was a lease for a term, with a covenant that the lessee should acquire title to the property leased when he complied with the terms of the contract; it, therefore, was a bailment agreement: Automobile Finance Co. v. Brownstein, 76 Pa. Superior Ct. 197. As to the effect of a judgment for want of a sufficient affidavit of defence in an action of replevin, reference may be had to Painter v. Snyder, 22 Pa. Superior Ct. 603.

But we do not think the plaintiif is entitled to judgment on the record as it now stands. The action was not instituted until April 19, 1921, which was more than eight months after the expiration of the bailment period created by the contract between the plaintiff and Magee, and there is no allegation in plaintiff’s statement of claim of any default on the part of Magee in the payment of any of the instalments of rent specified in the bailment contract, or in the payment of the additional nominal sum required by the contract for the purchase of the motorcycle by Magee after the payment of the last instalment of rent. If Magee made all of these payments, his title to the motorcycle thereupon became complete and he could convey a good title to the motorcycle to McClure. It is true plaintiff in his statement of claim says that “in violation of the bailment agreement, the defendant, G. E. Magee, wrongfully sold said motorcycle to the defendant, William McClure, and converted the proceeds; that the title to the motorcycle never was in the defendant, G. E. Magee; therefore, he could pass no title to the defendant, William McClure.” But those statements are but mere conclusions of law, not based upon proper and necessary allegations of fact.

There can be no doubt that the contract between the plaintiff and Magee was entered into with the intention that the lessee should become the purchaser of the motorcycle. Fifty dollars of the rent specified in the lease was to be paid as deposit, and the remainder thereof in four equal monthly instal-ments of $43.75 each, making a total of $225, the full value of the property. It is not within the limits of probability that rent equal to the whole value of the motorcycle was to be paid simply as rent for the short period of four months, or that if all of the rent was paid, the lessee would not pay the additional nominal amount required by the contract to enable the lessee to acquire title to the motorcycle as a purchaser. Yet it is not alleged by the plaintiff in his statement of claim that Magee defaulted in the payment of any of these amounts. The nature of the transaction was such that unless Magee defaulted in the payment of the amount required as a deposit, or of some of the monthly instalments of rent, or that he neglected or declined to exercise his option to purchase the motorcycle by the payment of the additional nominal sum after the payment of the last instalment of rent, which it hardly can be conceived he would do if he paid all the rent, the plaintiff is not entitled to recover in this action. Plaintiff’s right'to recover, therefore, depends upon the appearance in the case of some of these negative facts. It must be plaintiff’s contention that at least some of these negatives are true. But the party whose contention requires proof of a negative fact has the burden of evidence to' prove that fact. In civil cases, with some exceptions not present here, “Whosoever asserts a right dependent for its existence upon a negative must estab- ' lish the truth of the negative by a preponderance of the evidence. This must be the rule, or it must follow that rights, of which a negative forms an essential element, may be enforced without proof:” 22 Corpus Juris, 80, note 33 (a).

Magee having acquired possession of the motorcycle legally more than a year before this action was brought, and thereafter having transferred possession of it to McClure, the latter, with the motorcycle in his possession, is not required to prove anything until his right to retain possession of the motorcycle has been impeached by evidence: Lenig v. Eisenhart, 127 Pa. 59; Vanormer v. Hornberger, 142 Pa. 575; Phillips’s Estate, 238 Pa. 423; Haberfeld v. Mayer, 256 Pa. 151; Bonistalli v. Bonistalli, 269 Pa. 8; United Security Life Ins. and Trust Co. v. Brown, 270 Pa. 264. And the plaintiff, having failed to allege default in any of the matters specified, would not be permitted to prove such default upon the trial of the ease without first amending his statement of claim. This question has not been raised by the affidavit of defence, but the court would not be warranted in entering judgment for a plaintiff who has not in his statement of claim shown at least a prima facie case in his favor. In Kaufmann & Baer Co. v. Rice, 30 Dist. R. 535, we held that judgment for alleged default in the performance of the provisions of a contract should not be entered without at least an affidavit in some form that the alleged default actually has occurred. Here, the default, if there be any, is not even alleged.

And now, Nov. 22, 1921, the rule for judgment for want of a sufficient affidavit of defence is discharged, but leave is given plaintiff, upon notice to defendants, to amend his statement of claim, if the facts of the case justify it and he desires to do so. From Luke H, Frasher, Uniontown, Fa.


author: Woodward, J.,

text:
    Dembiec’s Nomination.

      Election law — Nomination — Papers — Substituted nomination papers— Amendment — Duty of county commissioners — Mandamus.
    1. Under the Act of July 9, 1919, P. L. 832, in receiving nomination papers for filing, the county commissioners act in a judicial capacity. ~
    2. They should act on the papers forthwith, pass upon their validity, and if defective, permit an amendment.
    3. If they neglect or refuse to decide, an amendment will be allowed by the court, and mandamus may issue to compel the filing of an amended certificate of substituted nomination mme pro tunc.

    4. There is no statute specifying how many or what names shall be signed to a substituted certificate of nomination. The matter is governed by the party rules.
    Mandamus to county commissioners to file certificate of substituted nomination. C. P. Luzerne Co., Dec. T., 1920.
    Oct. 31, 1921.
   Woodward, J.,

The suggestion for a mandamus in this case alleges that on Oct. 14,1921, a certificate of nomination substituting the name of Jacob Dembiee, of Miner’s Mills, Luzerne County, Pennsylvania, as a candidate on the Democratic ticket for the office of Clerk of the Court of Quarter Sessions in place of Jerry A. McGinley, who had been nominated as a candidate for the said office at the September primaries in the year 1921 for election thereto at the November election, 1921, and who had withdrawn as such a candidate, was delivered to the county commissioners, received by them, but no action taken thereon; and prays for a peremptory mandamus, directing the county commissioners to file said certificate of substituted nomination as this day amended nunc pro tunc as of Oct. 14, 1921, and to print the name of Jacob Dembiee on the official ballot as a candidate on the Democratic ticket for the office of Clerk of the Court of Quarter Sessions of Luzerne County at the November election, Nov. 8, 1921, instead of Jerry A. McGinley.

No answer has been filed to the suggestion because the time was too short. But, on the argument, the petition to amend the certificate was opposed on the ground that the defects in the original certificate were not amendable, and the mandamus was opposed verbally, as counsel had'not had time to prepare a written answer, on the ground that the certificate of substituted nomination was not authorized by a majority of the county committee or by a duly constituted quorum at the meeting when the substitution was made, and that, therefore, it was void under the 6th section of the Act of July 9, 1919, P. L. 832, as having been filed by parties not entitled under the act to file the same.

The duty imposed upon the county commissioners on the filing of a certificate of substituted nomination with them is not merely administrative, but a judicial duty. The 6th section of the Act of 1919 says: “It shall be the duty of the officer or officers to whom any nomination paper is brought for the purpose of filing to examine the said paper, and if it lack sufficient signatures or be otherwise manifestly defective, it shall not be filed, etc.”

On the filing of the certificate of Jacob Dembiec, it was the duty of the county commissioners to decide there and then whether the petition was defective, and, if defective, they were further required by the same section of the act to permit the parties filing the same to amend the certificate wherein it was decided to be defective. Instead of doing this, the county commissioners’ clerk deposited the certificate in their safe and no decision was made, which necessarily prevented any amendment. So that if this were the only objection, the mandamus should be allowed.

But it was objected on the argument, by way of answer to the suggestion for the mandamus, that the paper objected to was not filed by parties entitled under the act to file the same, and, therefore, should be declared by the court wholly void.

There is no statute specifying how many or what names shall be signed to the certificate. The matter is governed by the party rules which are attached to the certificate in this case, and do not specify how many shall constitute a quorum. The minutes of the meeting accepting the resignation of Jerry A. McGinley and substituting Jacob Dembiec as a candidate in McGinley’s place show who were present at the meeting, and a comparison with the names attached to the petition to amend shows that a majority of the committee were not present. It may be that, in the absence of a statute or a party rule, the presence of a majority would be necessary to constitute a quorum, and this objection might be raised by any one within the party who objected to the procedure; but it is not a matter of public concern, nor of the concern of a rival party in the absence of any statute, as the Democratic Party is the best judge of its own rules and whether they have been violated or not.

Peremptory mandamus is awarded as prayed for, and the county commissioners are directed to file the certificate of nomination of Jacob Dembiec in place of Jerry A. McGinley as the Democratic candidate for Clerk of the Court of Quarter Sessions of Luzerne County, as changed by the amendment this day allowed nunc pro tunc as of Oct. 14, 1921, and to print the name of Jacob Dembiec on the official ballot as a candidate on the Democratic ticket for the office of Clerk of the Court of Quarter Sessions of Luzerne County at the November election on Nov. 8, 1921.

Objections to certificate substituting Dembiec.

The petition for the rule in this case sets forth:

That on Oct. 14, 1921, the County and Executive Committee of the Democratic Party of Luzerne County delivered to the Luzerne County Commissioners a certificate of nomination substituting the name of Jacob Dembiec, of Miner’s Mills, as a candidate on the Democratic ticket for the office of Clerk of the Court of Quarter Sessions of Luzerne County in place of Jerry A. McGinley, who had been nominated at the primaries and had withdrawn.

That objections were filed by Frank J. Keiser, the Republican candidate for the office, on the ground that the certificate failed to name all the members comprising the Executive Committee of the Democratic Party, and was not verified by the affidavit of two members of the committee or two citizens who made affidavit to the nomination petition of McGinley.

The prayer is for a rule to show cause why the certificate of substituted nomination shall not be amended to meet the objections raised.

The rule was granted Oct. 28th, returnable forthwith, and was argued before the court in banc.

The Act of July 9, 1919, P. L. 832, provides that it is the duty of the county commissioners, when a certificate of substituted nomination is filed, to examine the same, and, if it is defective, to refuse to file it, but that such action may be reviewed by the Court of Common Pleas, upon an application for mandamus to compel its reception as of the date when it was brought to the office.

It also provides: “That if the court decide that the paper objected to was not filed by the parties entitled under this act to file the same, it shall be wholly void; but if it be adjudged defective only, the court shall indicate the matters in which it requires amendment and the time within which such amendment must be made, and every paper amended after the time when names therein contained should have been sent to the sheriff shall be subject to the provisions of this act concerning substituted nominations. The officers with whom nomination papers have been filed shall permit the political parties or bodies who have filed them to amend them, of their own motion, at any time prior to the printing of the ballot.”

The ballot has not yet been printed, and, under this provision of the act, the party presenting the petition might have amended it of their own motion if it had been refused by the county commissioners as defective when presented to them, and it was made the duty of the county commissioners by the act to permit such amendment.

The court will now do what the county committee might have done of its own motion had the county commissioners followed the instructions of the act.

Rule to amend is made absolute.

From F. P. Slattery, Wilkes-Barre, Pa.


author: Koch, J.,

text:
    Baker v. Philadelphia & Reading Coal and Iron Co.

      Equity — Jurisdiction—Remedy at law — Culm—Mines and mining.

    1. A hill in equity for an injunction to prevent interference with the removal of culm from a culm bank, will not lie where the bill does not aver that the plaintiff is the owner of the real estate on which the culm has been placed.
    2. Culm is personal property, and a bill in equity is not the proper remedy to prove title to it.
    3. The plaintiff in such case has an adequate remedy at law by trespass to recover the value of the culm which the defendant has prevented him from taking.
    Demurrer to bill in equity. C. P. Schuylkill Co., July T., 1921, No. 1.

      George W. Geise and George F. Brumm, for plaintiff.

      John F. Whalen and George Ellis, for defendant.
    Dec. 30, 1921.
   Koch, J.,

The plaintiff avers that he owns certain large coal or culm banks located upon a number of lots in Donaldson, Frailey Township. Contemplating to take the coal out of said banks for the purpose of marketing the same, on April 14, 1921, he erected upon said banks a small building to be used as temporary living quarters and a tool-house during the progress of his operation. After he had completed said building and was in peaceful possession of and occupying the same, he was set upon at about 10.30 o’clock in the night-time by a number of armed men who represented themselves as special Philadelphia and Reading Coal and Iron Police, and he was forcibly ejected from the premises, and the said building was demolished and carried away. He avers that the said ejectors entered upon said banks and, as an armed guard, prevented the complainant’s return to the banks, and that by relays of armed men his return to the banks is still being prevented. The plaintiff also avers that the defendant has no warrant or authority for entering upon said banks or for preventing him from occupying or using the said coal or culm as he sees fit. The prayer of the bill is for an injunction.

The defendant has demurred to the bill, and for causes of demurrer avers as follows:

“1. The bill does not state how Harry Baker became the owner of the culm banks referred to therein, or how his title thereto was acquired, or that he owns the ground on which the culm banks are located.

“2. It does not appear from the averments in the bill of complaint that the complainant has not an adequate remedy at law, or that he will sustain irreparable injury. There is no allegation of irreparable injury.

“3. If complainant was forcibly ejected from the premises, he has a remedy at law for such forcible ejection.

“4. The bill is not sufficient to warrant the granting of an injunction.

“5. The bill of complaint does not set forth sufficient to warrant equitable relief.

“6. A court of equity will not interfere by injunction on a bill whose aver-ments are as meager as those in the present bill in equity.

“7. The bill of complaint indicates clearly that an adequate remedy at law exists.

“8. The bill of complaint does not aver that the defendant is not financially responsible.”

The demurrer clearly raises the question of jurisdiction in this case in a court of equity, and the Act of June 7, 1907, P. L. 440, obliges us to decide that question in limine. For, in effect, the demurrer avers “that the suit should have been brought at law,” although no averment in the demurrer is couched in those words.

The ownership of the lots upon which the culm is located is not made to appear. The complainant nowhere in his hill of complaint makes any averment of title to the lots in himself, nor does he show by what right he entered upon the lots and erected thereon the building referred to. He fails to name any of the persons who ejected him and demolished his building. Nor does he directly say that the defendant company, by its officers, agents or employees, committed the wrong complained of. He only complains that the men who did the injury represented themselves “as special Philadelphia and Reading Coal and Iron Police.” He does not aver that they were or are such police, or that they were or are acting under and by the directions of the only defendant named in this case, to wit, the Philadelphia and Reading Coal and Iron Company, which in its demurrer avers that it can show it is not the party who did the acts complained of in the bill of equity.

The complainant ought to show some right of entry upon the lots described in his bill of complaint. His bill leaves us wholly in the dark on that subject. When he presented his bill, together with two injunction affidavits and an injunction bond, and asked us to restrain the defendant “by writ of preliminary injunction until hearing and perpetually thereafter from maintaining the aforesaid guard of special police,” we declined'so to do, stating verbally our reasons therefor, but we directed a rule to issue to the defendant to show cause why a writ of preliminary injunction should not be issued. The complainant’s right to the order prayed for did not appear to be clear to us, and it is only in a clear case that a chancellor should make a restraining order: Minnig’s Appeal, 82 Pa. 373. For aught we know, the plaintiff may have no right of entry whatever upon the lots in question, and if he has none, then the owner of the lots may prevent his entry upon the land and may take down and remove therefrom whatever the plaintiff unlawfully erects thereon, if no breach of the peace be committed in such taking down and removal. An owner of land is not obliged to stand silently by and let a stranger enter upon his land to do as he pleases there. It may have been in the exercise of such right that the real owner of the Donaldson lots personally employed special police to do for him what he hesitated or feared to do himself.

Now if, perchance, the plaintiff owns the lots as well as the culm banks, and several persons have entered upon and taken and hold possession thereof under a claim of right and title or otherwise, an action of ejectment offers an adequate remedy at law; whereas, if they have committed only certain acts of trespass, the Common Pleas offers an ample remedy for that; and the criminal court is not without cognizance in an action in the form of forcible entry and detainer or malicious mischief to punish those offences.

If this case is intended to try the title to the coal bank, the plaintiff has mistaken his remedy. Coal dirt or culm is personal property (The Lehigh Coal Co. v. Wilkes-Barre and Eastern R. R. Co., 187 Pa. 145), and a court of equity rarely takes cognizance of the misappropriation of, injuries done to or threatened against personal property, especially where the lack of financial responsibility is not averred. See Kramer v. Slattery, 260 Pa. 234, and 13 Schuyl. Legal Rec. 302. If the plaintiff owns the culm, but not the land upon which it is located, and he has no lawful right to enter the land to remove culm, he still has a right to arrange with the owner for permission to enter the land for the purpose of removing the culm, and if the owner should refuse permission upon request made, under proper conditions, such refusal would be evidence of conversion, and an action of trespass (formerly trover) would lie to recover the value of the culm: Lykens Valley Coal Co. v. Dock, 62 Pa. 232. Nor does one lose title to personal property just because that property may happen to be located on another’s land: Russell v. Howe, 30 Pa. Superior Ct. 591.

If parties playing at ball were to bat the ball into another’s man’s garden or grain field, the owner’s title to the ball would not be lost thereby, nor would the title to the ball pass to the owner of the garden or the field; and if the owner of the garden or the field arbitrarily refused the owner of the ball permission to recover the ball, or refused to give up the ball, it would be evidence of conversion, and an action would lie to recover the value of the ball. Surely the owner of the ball could not obtain an order from a court of equity to restrain the owner of the garden or the field, were the latter owner to threaten to prevent the former owner from entering the garden or the field without the latter owner’s consent.

I consider the second cause of demurrer as futile, because the 17th equity rule says, concerning structure of a bill in equity, that “the combination clause, the interrogatories and the allegation of want of remedy at law and similar averments shall be omitted.” Therefore, it was not necessary that the plaintiff allege the want of an adequate remedy at law or that he will sustain irreparable injury. As in the case of Kramer v. Slattery, 260 Pa. 234, the subject-matter of the bill in this case relates to culm or coal dirt and not real estate, and it is, therefore, not properly cognizable in a court of equity. Therefore, we shall make an order conformably to the requirements of the Act of June 7, 1907, P. L. 440, and certify the ease over to the Common Pleas.

And now, Dec. 30, 1921, it is decided that the suit in this case should have been brought at law, and the case is hereby certified to the law side of the court, at the costs of the plaintiffs.

From M. M. Burke, Shenandoah, Pa.


author: Schaeffer, P. J.,

text:
    Siegfried’s Estate.

      Decedents’ estates — Real estate — Judgments improperly indexed — Judgment notes — Identity of maker — Lien.
    1.'Decedent, prior to her death, took title to property under the name of Annie Phillips Siegfried. Having been divorced, she sometimes used her maiden name of Annie R. Phillips, and executed three judgment notes by that name, which were recorded. She also gave a promissory note in the name of Annie R. Siegfried. At audit the holder of the promissory note objected to the allowance of the judgments as preferred claims against the fund, on the ground that they were improperly docketed and were not a lien upon the real estate: Held, that the identity of the person being the same, the real estate was bound by the judgments, and that they were entitled to payment before the claims of common creditors.
    2. The purpose of the judgment docket and judgment index is to give notice to purchasers, subsequent encumbrancers, and all others in interest, but where no one has been harmed or misled by the want of proper notice, the validity of the judgment is not impaired, and it is good against the defendant. An unsecured creditor holding a promissory note has no standing to question the lien of such judgments unless he specifically shows that he dealt with the maker of the note on the credit of the real estate.
    Audit. Objections to allowance of preferred claims. O. C. Berks Co.

      Wm. Kerper Stevens, for objectors.

      Edgar S. Richardson and Ralph H. Mengel, contra.
    Oct. 29, 1921.
   Schaeffer, P. J.,

The balance for distribution represents a fund realized from the sale of real estate. There is no balance in the personal estate. Of the secured claims presented against the fund at the audit, the following are objected to:

Judgment entered to No. 78, August Term, 1920, for the sum of $300 against Annie R. Phillips, in favor of the Reading Industrial Loan and Thrift Company.

Judgment entered to No. 79, August Term, 1920, for the sum of $200 against Annie R. Phillips, in favor of the said thrift company. The balance due on these two judgments is $234.40.

Judgment entered to No. 113, December Term, 1920, for the sum of $260 against Anna R. Phillips, in favor of Mengel & Mengel. Amount due on said note, principal and interest, is $275.

Among the unsecured claims is a promissory note dated March 19, 1920, for $105, payable sixty days after date at the Reading National Bank to W. K. Stevens, Esq. This note is signed by Annie R. Siegfried. Counsel for the holder of this note objects to the allowance of the above three judgments as preferred claims against the fund in this account, on the ground that the judgments are improperly docketed and indexed, the decedent having signed the judgments as Annie R. Phillips and taken title to the real estate as Annie R. Siegfried.

It appears that the decedent up to 1919 was married to Fred W. Siegfried, when she was divorced from him, as shown by the record to No. 37, April Term, 1919, filed in the prothonotary’s office. After she was divorced, she appears in various business transactions as either Annie R. Phillips Siegfried — married name — or Annie R. Phillips — maiden name. The deed to the property, from the sale of which the balance here was realized, was in the name of Anna Phillips Siegfried, and is dated Feb. 17, 1920. A mortgage given to the Pennsylvania Trust Company on or about the time the decedent took title to the property was signed by Annie R. Phillips Siegfried. The three judgments above set out — two in favor of the loan company and one to Mengel & Mengel — are signed Annie R. Phillips and Anna R. Phillips. The promissory note of W. K. Stevens, Esq., is signed by Annie R. Siegfried.

The question presented is whether the three judgments were liens on the real estate of the decedent.

It is admitted that Annie R. Phillips, Anna R. Phillips, Anna Phillips Siegfried and Annie R. Siegfried are the same person. It is clear, therefore, that the real estate in the hands of that person would be bound. Having signed her name in the form in which it appears on the judgment index, she could not object to the enforcement of the judgment against her property. As between her and her creditors, it is a question of personal identity: Crouse v. Murphy, 140 Pa. 335, 340; Delaney v. Becker, 14 Pa. Superior Ct. 392. But the representatives of decedent’s estate are not objecting. A common creditor, who holds a promissory note against decedent, contends that because the signatures to the judgments and the entries in the index vary from the name in the deed by which decedent acquired title, the judgments were not properly docketed and indexed, and, consequently, were no lien on the real estate.

The purpose of the judgment docket and judgment index is simply to give notice to purchasers, subsequent encumbrancers and all others in interest: The York Bank’s Appeal, 36 Pa. 458; and, hence, a defective entry in either fails to be such notice: Ridgway’s Appeal, 15 Pa. 177. But where no one has been harmed or misled by the want of proper notice, the validity of the judgment is not impaired, and it is good against the defendant: Wood v. Reynolds, 7 W. & S. 406. Consequently, a judgment that is improperly and defectively indexed is good between the parties and binds the real estate, unless a subsequent purchaser, judgment creditors, mortgagee or other person interested in the real estate was prejudiced in his rights or injured by failure to fully and properly index the same.

If the objection against the lien of these judgments were raised by a purchaser of the real estate or subsequent judgment creditors or mortgagees, who had either bought or loaned money after a search of the records and with no actual notice of the existence of these judgments, there could be no question that the judgments indexed in the name of Phillips, when the recorded title stood in the name of Siegfried, would not be binding as against the purchaser and should be postponed to the other judgment creditors: Crouse v. Murphy, 140 Pa. 335; Smith’s Appeal, 47 Pa. 128.

But here we have an unsecured creditor, who had no lien on decedent’s real estate during her lifetime, and who has not shown that he dealt with her on the credit of her real estate, or that he was misled or deceived by the record, urging that because the judgments were not properly indexed, they were not liens and can only participate as common claims.

As we have already stated, the judgment docket and index are the instruments of constructive notice to all persons of the judgments entered in them, and unless the party complaining of a defective entry can show that he was entitled to notice, he is not in a position to attack the lien of a judgment erroneously indexed. An unsecured creditor holding a simple promissory note has no standing to question the lien of a judgment improperly indexed, unless he specifically shows that he dealt with the maker of the note on the credit of his real estate.

That such was not the case here is not only shown by the absence of any testimony on this point, but also by the fact that the note of Mr. Stevens is dated March 19,1920, and the judgments were entered to August and December Terms, 1920.

In view of these facts and the additional circumstance that the money raised on two of the judgments in question was used to purchase the property, the sale of which produced the assets in this account, we cannot say that these judgments were not liens and are entitled to a preference as such in this distribution.

From Wellington M. Bertolet, Beading, Pa.


author: Hull, Dep. Att’y-Gen.,

text:
    Appropriations to Boards of Health.

      Health law — Boards of health — Failure of council or commissioners to make appropriations — Act of June 12, 1918.

    The mere failure of the council of a borough or of the commissioners of a first class township to make an appropriation to the hoard of health for the administration of health laws, regulations and ordinances, is not in itself sufficient cause for the Commissioner of Health to take charge of the local health administration under the provisions of the Act of June 12, 1913, P. L. 471.
    Attomey’s-General Department. Opinion to Col. Edward Martin, Commissioner of Health.
    Dec. 10, 1921.
   Hull, Dep. Att’y-Gen.,

This department is in receipt of your recent letter, inquiring whether the mere failure of the council of a borough or of the commissioners of a first-class township to make an appropriation to the board of health for the administration of health laws, regulations and ordinances is in itself sufficient cause for the Commissioner of Health to take charge of the local health administration under the provisions of the Act of June 12, 1913, P. L. 471. I am of the opinion that it is not.

Section 10 of that act provides that the Commissioner of Health may take full charge of the administration of health laws in any borough or township of the first class, (1) whenever, in his opinion, “conditions found by him to exist in any borough or township of the first class in this Commonwealth shall constitute a menace to the lives and health of people living outside the corporate limits;” or (2) “if it be known to him that any borough or township of the first class is without an existing or efficient board of health.”

Neither of these conditions precedent is met by the mere failure of the council or commissioners to appropriate money. Such failure is not in itself a menace to the lives and health of people living outside the corporate limits, nor would it necessarily and inevitably result in the local district being without an efficient board of health. An efficient board is one acting or having power to act effectually, one actually producing results. It would be possible, although perhaps not probable, for a board of health to secure necessary funds by enlisting the support of public-spirited citizens and of private organizations or corporations interested in the public welfare, and thereby to administer the health laws effectively without any aid from the council or commissioners. In such case it could not be said that the board of health was not efficient, was not acting effectively. Under the act of assembly, the intervention of the Commissioner of Health is authorized only when the local board of health is not effectively enforcing the health laws. If, however, the board of health, by reason of the lack of appropriations, should fail to function efficiently, it would be the duty of the Commissioner of Health to take charge immediately.

I, therefore, advise you that the mere failure of the council of a borough or the commissioners of a first-class township to make an appropriation to the board of health for the administration of health laws, regulations and ordinances is not in itself sufficient cause for the Commissioner of Health to take charge of the local health administration under the provisions of the Act of June 12, 1913, P. L. 471.

From Guy H. Davies, Harrisburg, Pa.


author: Ryan, P. J.,

text:
    New Castle Trust Company v. Fehl.

      Practice, C. P. — Pleading—Promissory notes — Protest notice — Manner of service — Statement of claim — Act of May U, 1915.

    1. It is not necessary, under the Practice Act of May 14, 191S, P. L. 483, to attach a copy of the protest notice to the statement of claim in a suit upon a promissory note.
    2. The statement of claim must set forth the manner in which the notice of protest was served upon the defendant.
    3. An averment in the statement of claim that “the defendant was duly notified on the 31st day of March, A. D. 1921, of the said protest,” is not sufficient.
    Motion to strike off statement of claim. C. P. Bucks Co., Oct. T., 1921, No. 6.

      Hiram H. Keller, for plaintiff; Harry E. Grim, for defendant.
    Dec. 12, 1921.
   Ryan, P. J.,

This is a suit on a promissory note against an endorser. The affidavit of, defence, which is in effect a demurrer, raises three objections to the sufficiency of the statement of claim, to wit: (1) That it does not set forth a copy of the protest notice; (2) that it does not set forth “the manner the notice of protest was served upon the defendant;” and (3) that the plaintiff is described as “a corporation of New Castle and the defendant is informed that New Castle does not have the authority to create corporations.” The first ground is not well founded. The copy of the notice of protest is merely evidence of the fact of protest and is not a note, contract or book account, copies of which alone are required to be attached to the statement by section 5 of the Practice Act of May 14, 1915, P. L. 483. The second ground must be sustained. The statement avers, inter alia, that “the defendant was duly notified on the 31st day of March, A. D. 1921, of the said protest,” etc. It is contended by the defendant that, as notice of protest may be given in several different ways under the Negotiable Instruments Act of May 16, 1901, P. L. 194, 208, the particular way in which notice was given should be stated. Such notice may be oral or written, may be given by the party holding the note or his agent, may be served by mail or personally, etc. As the statement must be self-sustaining, it should set forth a legal service of notice of dishonor in order to establish the liability of the endorser. The third ground set forth is trifling and captious and not entitled to consideration.

And now, to wit, Dec. 12, 1921, judgment is entered in favor of the defendant upon the second question of law raised by the affidavit of defence, and leave is given the plaintiff to amend in accordance with this opinion within ten days from this date, otherwise the statement to be stricken off.

From Calvin S. Boyer, Doylestown, Pa.


author: Broomall, J.,

text:
    Lesley v. Deeter.

      Accord and satisfaction — Payment on condition — Landlord and tenant— Termination of lease — Notice of intention to terminate.

    1.' To constitute a good accord and satisfaction there must be a dispute, payment offered in satisfaction, accompanied with a declaration equivalent to a condition that if accepted it shall be in satisfaction, and the payee must be informed at the same time it is to be in full settlement.
    2. Where a tenant sends to his landlord a check for less than the stipulated rent, with an entry on its face that it is in payment of rent, less a deduction for a credit claimed, the use of the check constitutes an accord and satisfaction, notwithstanding the landlord, before using the check, endorsed on it that it was accepted on account.
    3. Where a written lease provides that it is for a term of one year and until a notice of ninety days is given, and thereafter from year to year, and an agreement is made by the parties at the end of the term for a further term of one month, and if the lessee continues after such period, then the lease to continue for a further term of eleven months, and all other provisions of the lease to stand, it is not necessary for the lessee to give ninety days’ notice prior to the expiration of the eleven months’ term. The special agreement constituted such notice.
    Motion for judgment on points reserved. C. P. Delaware Co., June T., 1920, No. 887.

      W. R. Fronefield, for plaintiff; 3. E. McDonough, for defendant.
    Nov. 26, 1921.
   Broomall, J.,

This suit was brought by the plaintiff against the defendant for the purpose of recovering rent alleged to be owing under the terms of a lease dated March 7, 1917. Upon the trial, a verdict was rendered in favor of the plaintiff for the full amount of her claim, consisting of two sums, amounting to $249.64, with interest from Aug. 15, 1920, and the sum of $500, with interest from the same time, subject to the following two points of law reserved, to wit:

1. If the court be of the opinion that the rent was paid by the checks referred to, then your verdict is to be reduced by the sum of $249.64, with interest from Aug. 15, 1920; and

2. If the court be of the opinion that the defendant is not liable in law for the rent referred to subsequent to April 15, 1920, then there shall be deducted from the verdict the sum of $500, with interest from Aug. 15, 1920.

If the court be of the opinion that in law the defendant is not liable on either of these claims, then the court shall enter judgment in favor of the defendant.

The lease demises certain property to the defendant for a term of one year, beginning April 15, 1917, at an annual rent of $1380, payable quarterly on the 15th days of April, July, October and January, and gives to the lessee the option of renewing it for another year at the rent of $1500 per annum, payable quarterly in advance. It also contains a provision that, if the lessee holds over after the expiration of the term thereby created with the consent of the lessor, “It shall be deemed and taken to be a renewal of this lease and of all of the terms, conditions, covenants and provisos therein contained for the term of another year, and so on from year to year until either party shall give ninety days’ previous notice to the other of an intention to determine the tenancy at the end of any term.”

The sum of $249.64, referred to in the first reservation, refers to a claim of the plaintiff against the defendant for non-payment of the full amount of the rent from Aug. 15, 1919, to April 15, 1920. The defendant contends that this rent was paid by an accord and satisfaction. A dispute arose between the parties with respect to the following clause in the lease: “The lessor agrees to install an engine for additional water supply.” The defendant contended that, on account of this not being done, there was an insufficient water supply, and then followed payments of rent with deductions as heretofore stated.

On Aug. 15, 1919, the defendant sent to the plaintiff a check for $110, drawn to the order of the plaintiff, with the following entry on its face, “In payment of rent to 9-15-19,” with a letter accompanying it stating, “In payment of rent to September 15, less $15, which have been deducted on account of insufficient water supply.” This check was endorsed by the plaintiff, “Accepted on account” and paid. On Sept. 18, 1919, the defendant sent a check to the plaintiff for $110, drawn to her order, with an entry on its face, “Rent to October 15, 1919,” which was endorsed by the plaintiff, “Accepted on account” and paid.

On Oct. 15, 1919, the defendant mailed a check to plaintiff’s attorney for $110, drawn to plaintiff's order, with a letter stating that it was in payment of rent for the month beginning Oct. 15, 1919. This check was endorsed by plaintiff and paid.

On Nov. 15, 1919, the defendant sent a check to the plaintiff’s attorney for $110, drawn to her order, with an entry on its face, “Rent to December 15, 1919,” which is endorsed by the plaintiff, “Received on account” and paid. This check was accompanied with a letter stating that it was for rent from Dec. 15th.

On Jan. 22, 1920, defendant sent a check to plaintiff’s attorney for $100.86, drawn to plaintiff’s order, with an entry on its face, “In full settlement of rent to February fifteenth, 1920,” which was endorsed by the plaintiff, “On account of rent from 12-15-19 to 1-15-20, and on account of rent from 1-15-20 to 2-15-20.” The check was paid. It was accompanied with a statement showing that it was made up by crediting two months’ rent, $250, and deducting $20 for lack of water, and $130.64, cost of installing a new engine.

On Feb. 14, 1920, she sent a check to plaintiff’s attorney for $100, drawn to plaintiff’s order, with an entry on its face, “Rent in full to March 15, 1920, which was endorsed by the plaintiff, “On account of rent February 15, 1920, to March 15, 1920.” This check was accompanied with a letter showing that it was made up by crediting one month’s rent, $125, and deducting $15 for lack of water, and $10 are in deduction for lack of water in last remittance.

On March 18, 1920, the defendant sent a check to the plaintiff for $110, drawn to her order, with an entry on its face, “Rent to April 15, 1920,” which was endorsed by the plaintiff, “Received on account” and paid.

The question which arises on this branch of the case is whether these checks constitute an accord and satisfaction.

To constitute a good accord and satisfaction, there must exist the following circumstances:

1. A dispute. 2. The payment offered in satisfaction. 3. Accompanied with a declaration equivalent to a condition that if accepted it shall be in satisfaction. 4. The payee must be informed at the same time it is to be in full settlement.

There is no question but that these requirements exist in this case and constitute a good accord and satisfaction: Christman v. Martin, 7 Pa. Superior Ct. 568; Bernstein v. Hirsch, 33 Pa. Superior Ct. 87; Washington N. Gas Co. v. Johnson, 123 Pa. 576. It is not essential that the payer shall notify the payee that, unless accepted, his remittance shall be returned. This only has the effect of emphasizing the payment as a full settlement, and where it appears that the payment is undoubtedly offered as a full settlement, a notice to return if not accepted is not necessary, because it is the duty of the payee to return it if it is not accepted. All this is true unless the plaintiff’s qualified acceptance of them derogates from their effect.

“Where an offer of an accord is made upon the condition that it is to be taken in full of demand, the party to whom it is made has no alternative hut to refuse it or accept it upon such condition, and if he takes it, no protest or declaration made by him at the time can affect the case:” 1 Am. & Eng. Ency. of Law, 422.

“The party paying money has the right to direct its appropriation. It is the duty of the recipient to accept a check stated to be in full, for the purpose for which it is offered, or to return it:” Washington N. Gas Co. v. Johnson, 123 Pa. 576.

“It is essential in such cases that there shall be a valid dispute, that the tender and acceptance of the sum offered is in settlement of the controversy between the parties before it can operate as an accord and satisfaction:” Slocum Co. v. St. Clair, 52 Pa. Superior Ct. 98.

In Polin v. Weisbrot, 52 Pa. Superior Ct. 312, Henderson, J., citing cases, says: “These cases hold that, where in case of dispute a payment is offered in satisfaction of a demand, the party to whom it is made must refuse it or accept it, or the condition on which it was made goes with it. It is necessary that the offer he accompanied with such a declaration or statement as is equivalent to a condition that if the payment be accepted it shall be in discharge of the claim.”

We have been referred to no Pennsylvania authority upon the subject of conditional acceptance by endorsing up on the check that it is on account.

In Kerr v. Sanders, 122 N. C. 635, 29 S. E. Repr. 943, the law is stated that, where a check bearing the words “In full for service” was accepted, although when cashed the payee endorsed thereon the words “Accepted for one month’s services,” the mere use of the check was such an acceptance as to constitute a full satisfaction.

In Goodloe v. Empson Packing Co. (Mo.), 122 S. W. Repr. 771, 27 L. R. A. (N. S.) 439, where the cheek was unmarked, hut the receipt attached to the voucher for the account which accompanied the check was marked, “In full payment for above account,” and the payee scratched out the word “full” and wrote over it in ink the word “part,” it was held that the mere receipt of the remittance was such an acceptance as to constitute an accord and satisfaction.

Where an agent received from his principal a check bearing the words “Payment in full for commissions” without objection, and there had been a dispute as to the exact amount due him, it was held in Gribble v. Raymond Van Praag Supply Co., 124 App. Div. 829, 109 N. Y. Supp. 242, that there was an accord and satisfaction, notwithstanding that he struck out the words “Payment in full for commissions” before he had the check cashed: 27 L. R. A. (N. S.) 439.

The acceptance of such check is an acceptance of the condition, notwithstanding any protest that he may at that time or afterward make to the contrary: Canadian Fish Co. v. McShane (Neb.), 14 L. R. A. (N. S.) 443.

Of course, there must appear in an accord and satisfaction an aggregatio mentium, but a payee has no right to accept the payment upon any other terms than those made by the payer, and, hence, the endorsement of a conditional acceptance is treated as a nullity. Therefore, the receipt of the money upon the terms proposed constitutes a meeting of the minds upon those terms.

We, therefore, conclude that, as to the arrears of rent, there has been an accord and satisfaction, and that, therefore, the defendant is not further liable.

Upon the question presented in the second reservation, there are two clauses in the lease with respect to holding over.

The first of these, which is in the printed form, is: “If the lessee shall hold over after the expiration of the term hereby created with the consent of the lessor, it shall be deemed and taken to be a renewal of this lease and of all the terms, conditions, covenants and provisos therein contained for the term of another year, and so on from year to year until either party shall give ninety days’ previous notice to the other of an intention to determine the tenancy at the end of any term.”

The second of these, which immediately follows the above and is in writing, is: “The lessee is hereby given the option of renewing this lease for one more year, at the rental of Fifteen hundred dollars per annum, payable quarterly in advance.”

At the end of the first year, which expired on April 15, 1918, the defendant, having the right to hold over for one year at the rent of $1500 per annum, continued in possession. This made the end of the term April 15, 1919. On April 9, 1919, the defendant requested of the plaintiff to be allowed to stay another month, to wit, from April 15, 1919, to May 15, 1919, at the same rent. This was followed by a letter from defendant to plaintiff’s attorney on April 14, 1919, enclosing a check for $250. This was for $80 arrears of rent due April 15, 1919, and the $125 for rent of one month from April 15, 1919, to May 15, 1919, and this was followed by a letter from defendant’s attorney under date of April 15, 1919, saying: “We will pay you to-day two hundred and five dollars for the occupancy of the property in Middletown Township leased until May 15, 1919, with no further liability after that time for rent unless my client, Dr. Deeter, stays over after the fifteenth day of May, 1919, in the property, and if she does, then the lease to continue until April 15, 1920, at one hundred and twenty-five dollars per month from May 15, 1919, under the terms of the old lease.”

This was answered by plaintiff’s attorney to defendant’s attorney under date of April 17, 1919, stating: “With the permission for Dr. Deeter to occupy the Middletown Township property known as that part of the Clothier property leased to her by Mrs. Lesley until May 15, 1919, without any further liability, unless Dr. Deeter holds over after the fifteenth of May, 1919, and if she does, then the lease is to continue until April 15, 1920, with rent at one hundred and twenty-five dollars per month from May 15, 1919, until April 15, 1920,” and “all the other terms of the old lease stand if she holds over after May 15th until April 14, 1920.”

The question, therefore, is this: “Where there is a stipulation in a lease that if the tenant hold over after the end of the term with the consent of the lessor, the lease, with all of its covenants, is renewed for another year, and so on from year to year until either party gives to the other ninety days’ previous notice of an intention to determine the tenancy at the end of any term, and the parties during a hold-over term, and more than ninety days prior to its termination, agree that the end of the current year is the end of the tenancy, although they agree that the present occupancy is under all of the other terms of the lease, does the fixing of the end of the lease by the parties conclude the right to assert a hold-over?”

The tenant stipulates to the landlord for a continuance of the lease to April 15, 1920, under the terms of the old lease. The landlord acquiesces in a continuance of the lease to April 15, 1920, with all the other terms of the old lease to stand. The tenant moves out on April 15, 1920, and the landlord endeavors to find a tenant.

The parties have thereby agreed that the right to occupy ends with April 15, 1920, and this is done more than ninety days prior to that date. It follows that neither can assert an occupancy after April 15, 1920.

We are, therefore, of opinion that the plaintiff is not entitled to require the defendant to pay rent arising after April 15, 1920.

It follows, therefore, that we enter judgment on the points reserved in favor of the defendant and against the plaintiff, with costs.

From A. B. Geary, Chester, Pa.


author: Stewart, P. J.,

text:
    Bilheimer v. Herman.

      Practice, C. P. — Removal of case in trespass to Federal court — Time limit —Fifteen days — Time for filing affidavit of defence — Act of May 14, 1915.

    1.The petition for the removal of a cause from a state to a Federal court must he filed in the state court at or before the time when the defendant is required to make any defence whatever, either in bar or in abatement.
    2. As the Act of May 14, 1915, P. L. 483, requires a defendant in trespass to file an affidavit of defence within fifteen days from service of statement, or in default thereof certain matters averred in the statement will be taken as admitted and the case be automatically at issue, the fifteen days is the time limit within which the petition for removal must be filed.
    3. In such case the point of time is fixed and certain, irrespective of the defendant’s action or non-action.
    Petition for removal of suit in trespass to District Court of the United States. C. P. Northampton Co., June T., 1921, No. 92.

      Asher Seip, for plaintiff; Kirkpatrick & Maxwell, for defendant.
    Sept. 26, 1921.
   Stewart, P. J.,

The defendant, on Sept. 14, 1921, presented his petition, alleging that the plaintiff was a resident of Pennsylvania, and that he was a resident of New York; that plaintiff had brought suit in this court is not bound to surrender its jurisdiction of a suit on a petition for of the United States for the Eastern District of Pennsylvania. The plaintiff filed an answer, setting forth in effect that the case could not be removed because the petition was filed too late. In Gregory et al. v. Hartley et al., 113 U. S. 742, it was held: “A state court is not bound to surrender its jurisdiction over a suit until a case is made which shows that the petitioners are in law entitled to a removal. The mere filing of a petition is not enough, unless, in connection with the rest of the record, it shows on its' face that the petitioner has, under the statute, the right to take the suit to another tribunal.” In Stone v. South Carolina, 117 U. S. 430, it was held: “A state court against him, and praying that the suit be removed to the District Court removal until a case has been made which on its face shows that the petitioner has a right to the transfer. All issues of fact made on the petition for removal must be tried in the Circuit Court, but the state court is at liberty to determine for itself whether, on the face of the record, a removal has been effected; and if it decides against the removal, its action will, after final judgment, be reviewable in this court.” In Donovan v. Wells, Fargo & Co., 169 Fed. Repr. 363, it was held: “A petition for the removal of a case to the Federal court presents to the state court a question of law as to whether, admitting the facts stated in the petition to be true, it appears on the face of the record, which includes the petition, pleadings and proceedings down to that time, the petitioner has complied with the statute and is entitled to removal of the suit.” The record shows that a prascipe for summons in trespass and plaintiff’s statement were filed in this court on May 16, 1921. Same day, writ issued. Next day, service of the writ and statement was made on the defendant. May 25, 1921, defendant, by his counsel, entered his appearance. The writ was returnable to the second Monday of June, 1921, which was on June 13th. No affidavit of defence was filed by the defendant, and nothing was done in the suit until the petition for a rule was presented. The Judicial Code, § 29, as amended by Act of Congress of Jan. 20, 1914, ch. 11, U. S. Compiled Stats., 1916, § 1011, provided as follows, regarding the procedure for removal of causes to the District Court of the United States: “Whenever any party entitled to remove any suit mentioned in the last preceding section (section 1010, Judicial Code, § 28), except suits removable on the ground of prejudice or local influence, may desire to remove such suit from a state court to the District Court of the United States, he may make and file a petition, duly verified, in such writ in such state court at the time or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the District Court to be held in the district where such suit is pending. . . .” The words italicized are an exact copy of the Act of 1875, as amended by the Act of 1887. The Practice Act of May 14, 1915, P. L. 483, provides, in section 10, as follows: “The statement of claim shall be endorsed as follows: ‘To the within defendant: You are required to file an affidavit of defence to this statement of claim within fifteen days from the service hereof.’ ” Section 13 provides as follows: “In actions of trespass, the averments in the statement of the person by whom the act was committed, the agency or employment of such person, the ownership or possession of the vehicle, machinery, property or instrumentality involved, and all similar averments, if not denied, shall be taken to be admitted in accordance with section 6; the averments of the other facts on which the plaintiff relies to establish liability, and averments relating to damages claimed, or their amount, need not be answered or denied, but shall be deemed to be put in issue in all cases unless expressly admitted.” Section 18 provides as follows: “In actions of trespass, when the defendant fails to file an affidavit of defence within the required time, the ease shall be deemed to be at issue, and may be ordered upon the trial list.” It is essential that the party seeking to remove the case file his petition in the state court within the time prescribed by the statute. In Moon on the Removal of Causes, § 153, it is said: “The requirement as to the time when the petition shall be filed is an inexorable one; no excuse will be accepted for a failure to file the petition in apt time, where there is no waiver by the plaintiff. The state court cannot, after the time for filing a petition for removal has expired, confer jurisdiction on the Federal court by permitting a petition to be filed nunc pro tunc as of a date before the expiration of such time. The petition for removal must be filed in the state court at or before the time when the defendant is required to make any defence whatever, whether in bar or in abatement. The decisions to the contrary by inferior Federal courts and a state court are in conflict with the views of the Supreme Court.” In A. Overholt & Co. v. German-American Ins. Co., 155 Fed. Repr. 488, it was held: “Under the removal statute, as amended by the Act of Aug. 13, 1888, ch. 866, 25 Stat. at L. 433 (U. S. Compiled Stats., 1901, § 5081), which permits a petition for removal to be filed on or before the time when the defendant is required by the laws of the state or rules of the state court to answer or plead to the declaration or complaint, a petition must be filed by the time an affidavit of defence is required by the Pennsylvania practice, which, under the rules of the court, is an answer to plaintiff’s claim and frames the issues to be tried.” In Fidelity Trust and Safety-Vault Co. v. Newport News and M. V. Co., 70 Fed. Repr. 403, it was held: “A state statute required the answer or defence to be filed within twenty days after service of the summons: Kentucky Statutes, §§ 1003 and 1004; Bullitt, Code Practice, §§ 20 and 21. By a rule of the state court, a party desiring to have a case set down for trial was required to leave a memorandum to that effect in the clerk’s office, and the clerk placed the cause on the trial docket on the succeeding Monday. It was claimed that, under this rule, the practice was to permit a defence to be filed on the day the case was called on the trial docket. Held, that such a practice did not entitle defendant to file his defence at time as of right, and, consequently, did not operate to extend the time for removal beyond the twenty days fixed by the statute.” Allen v. Sewanee Fuel and Iron Co., 268 Fed. Repr. 219 (Sept. 13, 1917), under Shannon’s Code (Tenn.), §§ 6076-6077, “requiring a plaintiff to file his declaration within the first three days of the term to which process is returnable, and defendant to answer within two days thereafter, and the established state practice by which plaintiff may file his declaration later as of right, unless a motion to dismiss has been interposed, where a plaintiff so filed his declaration later in the term, defendant held required to file a petition for removal within two days thereafter.” In Kansas City, Fort Scott & Memphis R. R. Co. v. Daughtry, 138 U. S. 298, it was held: “Application to remove a cause from a state to a Federal court must be made at or before the time when the plea therein is due, and the time for removal cannot be extended because a plaintiff in error does not take advantage of his right to take judgment by default; it is too late to remove a cause after the lapse of four terms after the plea was due.” In Goldey v. Morning News, 156 U. S. 518, Mr. Justice Gray said: “It has been held by this court, upon full consideration, that the provision of this act that the petition for removal shall be filed in the state court at or before the time when the defendant is required by the local law or rule of court ‘to answer or plead to the declaration or complaint’ requires the petition to be there filed at or before the time when the defendant is so required to file any kind of plea or answer, ‘whether in matter of law, by demurrer, or in matter of fact, either by dilatory plea to the jurisdiction of the court or in suspension or abatement of the particular suit, or by plea in bar of the whole right of action,’ because, as the court said, ‘construing the provision now in question, having regard to the natural meaning of its language and to the history of the legislation upon this subject, the only reasonable inference is that Congress contemplated that the petition for removal should be filed in the state court as soon as the defendant was required to make any defence whatever in that court, so that, if the case should be removed, the validity . of any and all of his defences should be tried and determined in the Circuit Court of the United States:’ Martin’s Admin’r v. B. & O. R. R. Co., 151 U. S. 673.” The only Pennsylvania case that we have found on the subject is Muir v. Preferred Accident Ins. Co. of N. Y., 203 Pa. 338, where it was held: “The petition for the removal of a ease from the state court to the Federal court should be filed before the defendant is required to file an affidavit of defence.” Mr. Justice Mitchell, on page 341, quotes the words that we have italicized, and refers to Martin’s Admin’r v. B. & O. R. R. Co., 151 U. S. 673, to which we have just referred, and also to Wabash Western Ry. Co. v. Brow, 164 U. S. 271, and said: “Under this rule, the necessity of an affidavit of defence was clearly within the requirement that some defence should be made.” This case and A. Overholt & Co. v. German-American Ins. Co., 155 Fed. Repr. 488, were both actions in assumpsit, and the effect of a failure to file an affidavit of defence in assumpsit is quite different from a failure to file same in a trespass case. None of the cases cited by either party present the exact question which is raised in the present case, which is in trespass, but when the history of all off the legislation on this subject is looked at, it will be perceived that the tendency of the Federal statutes is to narrow the point of time when the petition for removal must be presented. Under the early acts, it could be presented at any time before trial. The later act uses the phraseology quoted above. When was the present defendant required to answer or plead? Surely at the end of fifteen days, and when he did not do that, the status of the case was changed automatically by virtue of the 13th section quoted above, and the defendant was confronted with the fact that by his default he had admitted certain things in the plaintiff’s statement, and again, by the 18th section, the case automatically was at issue. It will not do to say that because he was not required to file an answer that, therefore, there is never any point of time to which the Federal statute will apply. In every case of trespass there is a point of time fixed by the Practice Act, and that is fifteen days. Whether the defendant -will deny the facts by filing an affidavit of defence, or whether he will admit them by not filing same, is immaterial. The point of time is fixed and certain, irrespective of the defendant’s action or non-action. The learned counsel for the plaintiff has cited many cases in his very helpful brief, which we have examined and which support our view, but it is not necessary to refer to them. We are clearly of opinion that the defendant is in default in filing his application after the time prescribed by our statute for filing an affidavit of defence had expired and after two terms had intervened.

And now, Sept. 26, 1921, petition is denied, and order transferring said suit to the District Court of the United States for the Eastern District of Pennsylvania is refused.

From Henry D. Maxwell, Easton, Pa.


author: Endlich, P. J.,

text:
    Commonwealth v. Folk.

      Criminal law — Motor-vehicles — Bailments — Refusal to furnish des&rip-tions — Act of June SO, 1919.

    1. The bailee of a motorcycle, held under lease with option to purchase, is not punishable under the Act of June 30, 1919, P. L. 702, for failure or refusal to give to the bailor, after forfeiture of the lease and repossession of the machine, the descriptions of such motorcycle specified in the act.

      Practice, Q. S. — Motion in arrest of judgment — Insufficiency of evidence— Conversion of motion in arrest of judgment into rule for new trial.

    2. A motion in arrest of judgment can be granted only upon defects apparent on the face of the record, and never on an allegation of insufficiency of evidence. Where, however, the evidence does not warrant a conviction, the motion should be converted into a rule for a new trial, and as such made absolute.
    Motion in arrest of judgment. Q. S. Berks Co., June Sess., 1921, No. 112.

      William B. Bechtel for defendant and motion; Rothermel & Mauger, contra.
    Nov. 21, 1921.
   Endlich, P. J.,

The defendant in this case was indicted under the Act of June 30, 1919, P. L. 702. That statute provides in section 2: “That from and after the passage of this act, it shall be unlawful for any person to sell, convey, transfer or pass title to any used motor-vehicle, unless he shall at or before such sale, conveyance, transfer or passage of title, deliver to the vendee, buyer or transferee thereof a full description of such used motor-vehicle in duplicate,” etc.; and section 10 makes a violation of any of the provisions of the act a misdemeanor, punishable, upon conviction, by a fine or imprisonment, or both. On the trial of the case there was no conflict in the evidence. The defendant, in May, 1920, had received' from the prosecutor a motorcycle under a contract of lease or hiring providing for weekly payments of $10 each. Thereupon the defendant, being rightfully in possession, secured from the State Highway Department a license in his name to operate the motorcycle. In April, 1921, the defendant was in arrears in his payments for the motorcycle, and was also indebted to the prosecutor for repairs to the same. On April 23rd' he executed and delivered to the prosecutor a paper transferring his interest in the motorcycle, which paper is as follows:

“Reading, Pa., April 23, 1921.

“I, Clarence Folk, of 1716 No. 3rd St., Reading, Pa., hereby make statement that I transfer the instalment account Excelsior 1920 model motorcycle No. 103,516, and side car, over to my brother, Hiester Folk, of same address, with the understanding that he make payment in full before April 27, 1921, also repair bill of March 7, 1921, amounting to $95.45; otherwise the machine be forfeited. (Signed) Clarence C. Folk.”

“In witness thereof: Thomas Bohn.”

Hiester Folk, named in this paper, did not make the payments designated therein before April 27, 1921, nor at any time thereafter, nor did he or the defendant at any time, before prosecution or since, offer to make any payment on account of said indebtedness. The prosecutor, on the basis of this default, repossessed himself of the machine, and, in pursuance of the transfer as set forth in the paper of April 23, 1921, and after failure of Hiester Folk-to make the payments specified, demanded of the defendant a written statement, verified by affidavit, as prescribed in section 2 of the Act of 1919. The defendant refusing to deliver the descriptions to the prosecutor, this prosecution was brought, the verdict rendered by the jury being one of guilty.

It will be noted that what is prohibited and punished by the Act of 1919 is the selling, conveyance, transfer or passing of title to any used motor-vehicle without observing the directions of the statute. All of the words employed except the word “transfer” indicate that the command of the statute is addressed to the owner of the machine when disposing of his right of property therein, and the act, being highly penal, falls under the rule of strict construction. It seems very clear that the word “transfer,” in the connection in which it is used, takes its meaning from the words with which it is associated. The rule “noscitur a soeiis” is one of construction which is well-recognized in our law, and for illustrations of which it is enough to refer to Com. v. Navigation Co., 66 Pa. 81, 83, and Taggart v. Com., 102 Pa. 354, 364. It is, however, at least equally clear that, at the time of the transaction evidenced by the paper of April 23rd and of the prosecutor’s repossessing himself of the machine, the defendant was not the owner of and could not pass a title to it. He was the bailee of the prosecutor with an option to buy. The owner of it was the prosecutor himself. Whatever else may be the defendant’s liability, he cannot be said to have committed the crime declared and punished by the Act of 1919.

If what has been said is correct, it follows that the verdict of conviction rendered by the jury cannot properly be sustained. But the motion in arrest of judgment hardly reaches the needs of the case. It can be granted only upon defects apparent on the face of the record, and never upon an allegation of insufficiency of evidence. See cases cited in Com. v. Cotter, 5 Berks Co. L. J. 254, 260. Under these circumstances, it seems legitimate to resort to the expedient adopted by Judge Woodward in Gring v. Burkholder, 2 Woodw. 82, of converting one application into another and granting the latter — a practice familiar in this court.

And now, Nov. 21, 1921, it is ordered that a rule for a new trial be entered as of June 17, 1921, nunc pro tunc, that the motion in arrest of judgment be denied, and that the rule for a new trial be made absolute.

From Wellington M. Bertolet, Reading, Pa.


author: Ford, J.,

text:
    Marcus v. Woods.

      Pleading and practice — Practice Act of 1915 — Affidavit of defence — Counter-claim — Notice—Expenses of trial — Damages.
    1. A counter-claim alleging damages caused by the filing of the suit cannot be set-oil.
    2. Under the Practice Act of May 14, 1915, P. L. 483, where an affidavit of defence is not endorsed and plaintiff not notified to reply, plaintiff is not required to reply and defendant cannot prove his set-off.
    Rule to strike off counter-claim. C. P. Allegheny Co., July T., 1921, No. 715.

      Levy & Levy, for plaintiff; John F. Glockner, for defendant.
    Oct. 5, 1921.
   Ford, J.,

This action is to recover commission alleged to be due on account of the sale of real estate. The answer filed by defendant denies that plaintiff was employed or that he procured a purchaser to whom the property was sold. He further alleges that he was damaged by the filing of this suit, said damage consisting of his loss of time, payment of witness fees and attorney’s fees, a total damage of $500, for which defendant asks a certificate.

The case is now before the court on a rule to show cause why the averments of the affidavit of defence relating to a set-off or counter-claim should not be stricken from the record. The affidavit was not endorsed, nor was plaintiff notified to reply thereto, in compliance with the Practice Act of May 14, 1915, P. L. 483. The cause is now at issue. The statement of damages is vague, indefinite and lacks the clearness necessary to make a complete set-off. It includes a reference to expenses not incurred and matters dependent upon the length of trial. There is force in the contention that damages caused by the “filing of this action” cannot be set off, otherwise such a counter-claim might be urged in any action. The affidavit not having been endorsed, plaintiff was not required to reply, nor has he made answer. On trial, the defendant could not prove his set-off; the mere averment could do plaintiff no harm. However, the set-off, as alleged, does not conform to the provisions of the Practice Act nor state a good cause of action, and the rule must, therefore, be made absolute.

Order.

And now, Oct. 5,1921, rule absolute, and so much of the affidavit of defence as reads “defendant claims damages from the said plaintiff for the filing of this suit, said damages consisting of his loss of time, payment of witness fees and attorney fees, total damages $500,” for which defendant asks a certificate, is stricken from the record, with leave to defendant to amend.

From Edwin L. Mattern, Pittsburgh, Pa.


author: Gest, J.,

text:
    Rutherford’s Estate.

      Collateral inheritance tax — Intangible assets of foreign decedent upon ancillary accounting — Act of May 6, 1887.

    1. Where the accounting: is ancillary, the determining factor as to liability for collateral inheritance tax is whether distribution is to be made within and under the law of the Commonwealth.
    2. If, upon the accounting of an ancillary administrator of a foreign decedent, the legatees request distribution to be made directly to them by the Pennsylvania court, without paying the fund to the foreign executor, intangible assets, so distributed, are subject to collateral inheritance tax.
    Exceptions to adjudication. O. C. Phila. Co., July T., 1921, No. 443.

      Stevens Heckscher, for exceptant.

      Abraham Berkowitz, for Commonwealth, contra.
    June 9, 1922.
   Gest, J.,

Margaret Rutherford died on March 28, 1912, domiciled in Ireland, where her will was admitted to probate in the same year, letters testamentary being granted to George Rutherford, also domiciled in Ireland. By her will she provided, inter alia: “I bequeath to my sisters, Mary, Agnes Jane and Elizabeth, all my property whatsoever in the United States of America bequeathed to me by the late Emily Gowen Tozzi, share and share alike.” These persons are also the residuary legatees, and are resident in Ireland.

The property thus specifically bequeathed had been acquired by the decedent from the estate of Emily Gowen Tozzi, deceased, who died in 1908, a resident of Italy, leaving a will, by which she bequeathed her residuary estate, consisting of an interest in the estate of Mary Gowen, of this city, to the said Margaret Rutherford. The assets consisted of certain mortgages secured on Philadelphia real estate, corporate stock and cash, and the securities are stated to have been transferred into the name of Margaret Rutherford. Her income was collected here by her agent from that time until her death, and thereafter was collected for her legatees until Aug. 26, 1920, when, in order to satisfy certain mortgagees and assign certain stocks, ancillary letters d. b. n. c. t. a. were granted to the present accountant, who filed this account, and in his petition for distribution asked that the balance for distribution, composed entirely of these assets originally derived from the estate of Emily Gowen Tozzi, be awarded to the three sisters of the testatrix, Mary, Agnes Jane and Elizabeth Rutherford; George Rutherford, the executor at the domicil, having previously died in 1912. The auditing judge so awarded the fund, but held that the award was subject to the payment of collateral inheritance tax to the Commonwealth, with interest, and this award of tax is the basis of the exceptions filed by the accountant.

The question has not escaped us whether the accountant has any status to except to this award, Farrell’s Estate, 1 D. & C. 128, but as the parties interested are not residents of this country, the accountant might perhaps file exceptions in their behalf, at least pro tempore, as in Koch’s Estate, 4 Rawle, 268; in connection with which, see Wick’s Estate, 50 Pa. Superior Ct. 614.

Passing over this matter of practice to the question of taxation, we are all of opinion that the auditing judge, in his adjudication, correctly stated the law in accordance with the decisions. It may be conceded, as the learned counsel for the exceptant has argued, that personal property, such as stocks, bonds and mortgages, derive their situs from the domicil of the owner, according to the maxim mobilia personam sequuntur, and, of course, if the auditing judge had been requested to award the balance in the hands of the accountant to the executor or administrator of the domicil, he would have so awarded it, free of tax. The law in such a case as the present is well stated in our earliest decision, Alexander’s Estate, 3 Clark, 87 (1845), in the Orphans’ Court of Philadelphia, where King, P. J., said, in speaking of the legatees who demanded distribution in this jurisdiction (page 90): “They elect to consider the fund as ‘being within this Commonwealth’ for the purpose of distribution to themselves. It must, on equal principle, be regarded as such by the State government for the purpose of tax. They invoke and obtain the aid of our laws, and properly ought to share their burdens as well as their benefits. Under similar circumstances, the English Government demand their legacy duty.” And, after discussing the English cases, this learned judge continued (on page 92): “This rule seems to me to hold equally good in Pennsylvania. Its establishment rules this case against these exceptants and subjects their legacies to the duty. In adopting this rule, neither the English courts nor our own in any way intrench on the fundamental principle that the descent and distribution of personalty is regulated by the law of the proprietor’s domicil. We simply hold that when our laws are resorted to for the obtainment of letters testamentary, when the assets are within our jurisdiction, and the legatees ask and obtain payment of their legacies out of those assets under the authority of our tribunals, they so far give the assets a domestic character as to subject them to domestic taxation.” This principle was the real, or at least the solid, foundation of Lewis’s Estate, 203 Pa. 211, criticised, in other respects, in Shoenberger’s Estate, 221 Pa. 112, as was shown by the Supreme Court in de Noailles’s Estate, 236 Pa. 213; and in this court the settled practice has been followed in Galli’s Estate, 21 Dist. R. 763; Gulick’s Estate, 22 Dist. R. 249, and Craig’s Estate, 27 Dist. R. 49. Hatfield’s Estate, 43 Pa. C. C. Reps. 510, decided by the Orphans’ Court of Allegheny County, was cited to the contrary, but, in view of the authorities above referred to, our opinion is not affected by that decision.

The learned counsel for the exceptant seemed apprehensive lest, if the tax should be awarded, it would carry interest at the statutory rate of 12 per cent, from the death of the testatrix; but, as the attorney for the Commonwealth has informed us that he does not ask for this, the question need not be discussed or decided. The adjudication will accordingly be modified by striking out the allowance of interest, and, it being thus modified, the exceptions thereto are dismissed and the adjudication is confirmed absolutely.


author: Per Curiam,

text:
    Trefz’s Estate.

      Practice, O. C. — Petition to dismiss appeal from Register — Laches.

      A petition to dismiss an appeal from the decree of the register of wills admitting a will to prohate on the ground of the appellant’s laches in prosecuting the appeal, must he filed before the case is at issue, or at least before the case has been placed on the audit list for trial.
    Petition and answer. O. C. Phila. Co., Oct. T., 1917, No. 34.
    On Nov. 30, 1917, a decree was entered granting a citation to show cause why the decree of the Register of Wills should not be set aside and an issue awarded. On March 5, 1918, an answer thereto was filed. On April 4, 1922, a replication was filed. On April 21, 1922, a decree was entered to show cause why the appeal from the Register of Wills should not be dismissed. On May 2, 1922, an answer thereto was filed.

      The petition prayed that the appeal be dismissed on the ground of laches, but did not aver that the petitioner had been injured in any way. The answer averred that the respondent had taken the appeal in good faith, and not for delay, and averred that the petitioner had suffered no loss or injury, because the appeal had not been prosecuted more expeditiously, and that she had not been put to any disadvantage by reason of the delay. Respondent also denied that he had been guilty of laches, because he had repeatedly requested his attorney to have the case disposed of.

      William R. Nugent and Henry A. Craig, for petitioner.

      Michael J. O’Callaghan, for respondent.
    May 18, 1922.
   Per Curiam,

After the appeal from the Register was actually at issue, the respondent filed a petition for a citation, directed to the petitioner, to show cause why the appeal should not be dismissed on the ground of laches in failing to prosecute. In the meantime, the case being at issue was, in accordance with our practice, placed on an audit list for hearing the week beginning May 1st of this year.

In applications of this character we have ruled that the person apparently in default should proceed with due celerity and have entered a decree fixing a time limit. (See Hoopes’s Estate, 23 Dist. R. 249; Kris’s Estate, 29 Dist. R. 447.)

In the circumstances of the instant case, such decree is unnecessary.

The petition is dismissed.