author: Heiligman, J.,

text:
    Commonwealth v. Ward.

      John Monaghan, District Attorney, and Charles F. Kelley, Assistant District Attorney, for Commonwealth.

      Samuel N. Carpenter and Michael Saxe, for defendant.
    March 6, 1931.
   Heiligman, J.,

Vernon R. Ward, the defendant in the above-entitled case, was accused of the murder of his mother, but at a hearing before Quigley, J., specially presiding, and a jury, on March 15, 1923, Seymour De Witt Ludlum and Horace Phillips both reported that the defendant was then insane. Accordingly, he was sent to the Farview State Hospital, at Waymart, Pennsylvania, where he remained until he was discharged as cured in 1930. On November 13, 1930, the defendant was tried for the murder before Heiligman, J., and a jury, and was acquitted on the ground that he was insane at the time of the commission of the offense. It appeared at the trial that the defendant on February 7, 1923, killed his mother by striking her many times on the head with an ax, she having died almost instantly as a result thereof. It appeared from the evidence that a few months prior to the commission of the offense, which occurred on February 7, 1923, the defendant attempted to commit suicide by jumping from a mast of the ship, striking the deck of the vessel upon which he was engaged as a sailor. In this attempt he was unsuccessful, although he was very severely injured. It was shown conclusively at the trial that for a long time prior to February 7, 1923, the defendant had indulged excessively in the use of alcoholic liquor. At the conclusion of the trial the trial judge committed the defendant to the Philadelphia County Prison for further observation. There he has been examined by Doctor Ludlum again and by Dr. Charles W. Burr, another eminent alienist. The two doctors concur in the opinion that “Vernon R. Ward, who has passed through a period of insanity, is now sane; but is one of those individuals who is potentially insane in that if he should be given his liberty and should drink alcohol, his mind would again become insane.”

By letter dated December 20, 1930, addressed to the court, the defendant requested that he be released from prison, and the question here presented is whether or not the court must accede to this request.

Two statutes control the action of the court in the premises. The first is the Act of March 31, 1860, P. L. 427, section 66. This act serves as sufficient warrant for the commitment of one who has been acquitted of a criminal offense on the ground of insanity at the time of its commission: Com. v. Baginski, 85 Pa. Superior Ct. 47, 50; Com. v. Winter, 289 Pa. 284, 296. The other statute is the Act of May 11, 1911, P. L. 273, which permits, after such commitment as has been ordered herein, the release on parole of the person committed.

The Acts of April 20, 1869, P. L. 78, and March 19, 1903, P. L. 29, which deal with and regulate the “unconditional discharge” of prisoners who have been confined in an institution for the insane for a period of three months, after an acquittal on the ground of insanity, are not applicable, as defendant has not been in an institution for the insane since his trial on November 13, 1930.

Com. v. Baginski, supra, is the most recent case construing the Act of 1911, and it is said there that the act does not require the release of the prisoner, but leaves the question of the release of the prisoner on parole wholly within the discretionary power of the court wherein he was tried.

The Baginski case itself is an example of what circumstances warrant a refusal to release on parole. The prisoner had been examined by experts in mental diseases prior to his trial and again prior to the hearing on the petition for parole, and their report was that the prisoner had never been insane. The jury, however, had found him to be insane at the time of the commission of the crime. The upper court held that under the circumstances it was not an abuse of the trial court’s discretion to refuse the parole, because the verdict of the jury was sufficiently conclusive of the mental status of the prisoner to warrant further commitment in the- absence of proof of a substantial change in the mental status of the prisoner since the homicide.

In the case at bar, not only is there a verdict of insanity at the time of commission of the crime, but there is affirmative proof by experts that the prisoner was insane at that time. Since that time the authorities at Farview have discharged the defendant as cured, but the latest reports of Doctors Ludlum and Burr, mentioned above, is that defendant is potentially insane and will be rendered so upon imbibing alcoholic liquors. We are convinced by this latter report that there has been no change in the mental condition of defendant sufficiently substantial to justify his parole at the present time.

Accordingly, in view of the knowledge of the defendant obtained from the examination by experts, we deem it inadvisable to release the defendant on parole and order that defendant, the said Vernon R. Ward, be returned to the Farview State Hospital for continued observation.

Order.

And now, to wit, March 6, 1931, the report of two qualified physicians having been received by the court, the same is hereby approved, and the court finds that Vernon R. Ward, the above-named prisoner, is potentially, insane and that he is of criminal tendency. Accordingly, the court directs the said Vernon R. Ward be committed to the Farview State Hospital to be there detained and treated as an insane person at the expense of the County of Philadelphia until the further order of the court; and this shall be sufficient warrant for said commitment. And it is further ordered that the said county pay the costs of this proceeding, including the expense of removing the said prisoner to the said hospital and all maintenance charges.


source: Caselaw Access Project

author: Gordon, Jr., J.

license: Public Domain

text:
    Goodwin et ux. v. Hoberman et al.

      I. Finkelstein, for plaintiffs.

      Raymond A. White and Samuel Feldmam, for defendants.
   Gordon, Jr., J.

This is a bill in equity, brought by the plaintiffs, William F. Goodwin and Emma A., his wife, to restrain the defendants, Emma L. Walsh, Harry R. Hoberman and Joseph B. Hoberman, from operating a slaughter-house for chickens at No. 4929 North Fifth Street, in the City of Philadelphia, of which the defendant Walsh is the owner, and the defendants, Harry R. and Joseph B. Hoberman, trading as American Poultry Stores Company, are the lessees.

The bill avers that the plaintiffs own and occupy No. 4941 North Fifth Street, Philadelphia; that both they and the defendant Walsh, together with other property owners in the same block, derive their titles from the same common owner; that the deeds to all the properties in the neighborhood, including that of the defendant Walsh, contain the “express condition, restriction and agreement that . . . neither the said [grantee] nor his heirs or assigns, shall or will at any time hereafter, build, use or occupy, or cause or permit to be erected, built, used or occupied upon the above described premises, or any part thereof, any . . . slaughter-house ... ;” and that the defendants Hoberman have, since November, 1928, in violation of the aforesaid restriction, conducted, and intend to continue to conduct, on said premises a slaughter-house for the purpose of slaughtering chickens thereon.

The bill makes certain other averments respecting the fears of the plaintiffs that the conduct of the defendants’ business of selling and slaughtering chickens will become a nuisance in fact; but as they are irrelevant to the issue before us, which is confined to the alleged violation of the restriction indicated, they will not be here considered.

The bill then prays for an injunction to restrain the defendants from slaughtering or permitting chickens to be slaughtered upon the premises in question.

The defendants’ answers admit the averments of the bill above recited and that the premises are used for the sale and distribution of live poultry and the killing of chickens according to the Mosaic law. The defendants narrowly contend in their answers, however, that they are not violating the aforesaid restriction because no “animals” are slaughtered on the premises, but only poultry and such fowl as are bought by the public from them and for slaughtering which a fee is paid the shocJcet or slaughterer.

The testimony presented by the parties was substantially free from contradiction, and the single issue thus raised by the pleadings is whether the place for the sale and slaughter of chickens, which the defendants admit they conduct on the premises, is within the restriction already stated.

From the evidence, we make the following

Findings of fact.

1. The plaintiffs, William F. Goodwin and Emma A. Goodwin, are the owners of, and reside in, premises No. 4941 North Fifth Street, in the City of Philadelphia, situate on the east side of Fifth Street, between Rockland and Ruscomb Streets, title to which they obtained November 4, 1918.

2. The defendant, Emma L. Walsh, has, since January 19, 1922, been the owner of premises No. 4929 North Fifth Street, Philadelphia, situated on the east side of Fifth Street, between Rockland and Ruscomb Streets, in the City of Philadelphia.

3. The defendants, Harry R. and Joseph B. Hoberman, trading as American Poultry Stores Company, are now, and have been since September, 1928, tenants of the said defendant Emma L. Walsh, in said premises No. 4929 North Fifth Street, Philadelphia.

4. The plaintiffs and the defendant, Emma L. Walsh, acquired their respective properties under and subject to a restriction forbidding them to “build, use or occupy, or cause or permit to be erected, built, used or occupied upon the above described premises, or any part thereof, any tannery, slaughterhouse, skin-dressing or bone-boiling establishment, glue, soap, candle, starch, varnish or lamp black manufactory or building for other offensive use, purpose or occupation.”

5. This restriction was, in September, 1928, and still is, in full force and effect.

6. The defendants, Harry R. and Joseph B. Hoberman, are conducting and intend to continue to conduct on said premises the business of a retail live poultry store and slaughter-house, in which upwards of 800 chickens per week are sold to the public and slaughtered.

7. The slaughtering of chickens by the defendants, Harry R. and Joseph B. Hoberman, upon said premises, is in violation of the restriction upon said premises, and constitutes the use by the defendants of said premises as a slaughter-house.

8. Previous to commencing the business at premises No. 4929 North Fifth Street, the defendants were notified that the conduct of a slaughter-house for the slaughter of poultry at said place was a violation of said restriction, and would be objected to by the plaintiffs.

9. The plaintiffs began this action within approximately thirty days after the defendants started slaughtering poultry on the premises, and have not, therefore, been guilty of laches.

Discussion.

It is unnecessary to discuss the facts of this case at length. It is admitted by the defendants Hoberman, that they are engaged in the business of selling and killing fowl upon the property in question, which they have altered and reconstructed in such a manner as to adapt it to that purpose, and that they have provided people whose exclusive employment is to kill fowl at the request of their purchasers. The business has grown to such an extent that an average of 800 chickens per week are slaughtered on the premises. If this killing of chickens for the public is a slaughtering of animals for the market, then, obviously, this business falls within the restriction, and the prayer of the bill must be granted. A slaughter-house is a house in which animals are slaughtered: Ford v. State (Ind.), 14 N. E. 241 244; and in 3 C. J. 16, we find “domestic fowls generally, doves, chickens, turkeys,” etc., are included under the definition of animals. It would, therefore, seem to follow that the defendants are violating the restriction referred to, and the plaintiffs are entitled to the relief which they seek.

The defendants, however, ask us to draw a distinction between the killing of fowl and four-footed animals, contending that the former is not within the restriction. This contention is untenable.- No such distinction appears in the language used, nor is there anything in the nature of the business which would justify its being drawn. Those objectionable features of the business of slaughter-houses, which determine their character and render them nuisances per se in certain neighborhoods, are as much present in the slaughtering of the feathered family as of the four-footed beasts. The accumulations of offal, the odors which emanate from dead matter, and all the problems of disposition of such waste, are present in both activities. In the case of the larger beasts, the likelihood of an intensified offensiveness may generally be greater than in the case of fowl. On the other hand, the comparative volumes of business transacted may result in a reversal of this condition. In their offensive characteristics, however, there is no fundamental difference between the slaughtering of chickens and of beasts. In giving effect to a l'estriction which is clear and comprehensive in its language, the court is not at liberty to decline to enforce it fully merely because the degree of the resulting nuisance might not be so great when one, rather than another, kind of animal is killed, or to speculate upon the possibility that a particular slaughterer might minimize, or even eliminate, the objectionable features of such a business. Such businesses, however well conducted, are a constant menace to the peaceful and comfortable enjoyment of neighboring properties, especially in a residential section, and the purpose of such a restriction is, by an absolute bar to the business, to insure against the possibility of such annoyances being brought into the locality to be protected. The distinction which the defendants seek to draw is, therefore, unsound, in view of the unqualified nature of the restriction.

From the foregoing discussion, it follows that the slaughter-house conducted by the defendants upon the property in question falls within the restriction against such use of the premises, so that the plaintiffs’ bill should be sustained and the defendants restrained from conducting and maintaining the said slaughter-house.

We, therefore, reach the following

Conclusions of law.

1. The restriction against a slaughter-house contained in the defendant Walsh’s deed to the property in question is still in full force and effect and has not been waived or released.

2. The slaughtering of poultry for the market as conducted and intended to be conducted at premises No. 4929 North Fifth Street, Philadelphia, is prohibited by the restriction in the deed of the defendant Walsh.

3. The defendants are conducting, and intend to conduct, a slaughter-house at premises No. 4929 North Fifth Street, Philadelphia.

4. The prayer of the bill should be granted and the defendants, their servants, agents and employees, enjoined from conducting the slaughter-house complained of on premises No. 4929 North Fifth Street, Philadelphia, or permitting the same to be conducted thereon.

5. The defendants should pay the costs of this proceeding.

The court, therefore, enters the following

Decree.

And now, to wit, March 14, 1929, this cause having come on to be heard at this term of court upon bill, answer and proofs, upon consideration thereof, it is ordered, adjudged and decreed:

1. That the bill be sustained and the defendants, their servants, agents and employees are perpetually enjoined and restrained from conducting, or permitting to be conducted, a slaughterhouse for the killing of fowl on premises No. 4929 North Fifth Street, Philadelphia.

2. The defendants shall pay the costs of this proceeding.

The prothonotary will enter this decree nisi and give notice of the same to the parties or their counsel, and if no exceptions are filed within ten days thereafter, either party may present to the court a form of final decree then to be entered.


author: Sinkler, J,,

text:
    Vetter’s Estate.

      John M. Abbott and Earl W. Thompson, for petition.

      Robert W. Archbald, Jr., contra.
    March 13, 1931.
   Sinkler, J,,

The question raised in the present phase of the litigation now before us grows out of a petition to which an answer has been filed, for a citation to show cause why a commission should not be issued to take the testimony of the petitioner, who is now residing in California. A master, superseded by an auditor, was appointed and before him the petitioner appeared on April 16, 1929. His report was filed and exceptions thereto were argued before us in October, 1930. The court, in an opinion by Gest, J., recommitted the matter to the auditor for the taking of further testimony. The petitioner now desires to contradict the statements made by certain witnesses before the auditor since the order was made recommitting the matter to him. The petition should be dismissed.

Section twenty (b), 3 of the Orphans’ Court Act of 1917 provides that in the case of witnesses residing outside of this Commonwealth the court may, on the application of any party, provide for the taking of the testimony of such witness orally before an examiner appointed by the court. The act also provides that in granting the application the court may impose such terms, as it deems proper as to the payment of costs, etc.

Rule twelve (a) of this court sets forth the practice which must be followed pursuant to the provisions of the act of assembly. It is quite evident that the commission issues only if in the discretion of the court it is proper that the testimony should be taken in this manner, and it is not to be obtained as a matter of right on the part of any party to the proceeding. It should further be observed that it is her own testimony that the petitioner wishes to take by commission. In our judgment, if the petitioner desires to offer her further evidence, she should appear before the auditor in order that he may have the opportunity to pass upon her credibility, that he may, if he desires, examine her himself as to the matter in dispute, and that counsel for the respondents may have such opportunity.

The procedure in taking depositions as provided by the statute and the rule of this court above cited is in aceord with the gradual development in equity proceedings. By the ancient method, evidence in chancery eases was taken secretly and remained sealed until publication occurred. With certain formal exceptions, such as the proof of a document, testimony was taken by commission or by an examiner appointed by the court in response to interrogatories prepared by counsel. The answers of the witness were reduced to writing. The clerk or examiner made publication by exhibiting the depositions to the parties and by giving them copies thereof. The present method of taking depositions is usually regulated by statutes and rules of court. The requirement of secrecy is no longer observed. Examination of witnesses orally is permitted under proper restrictions, and persons who are entitled to be present should not be excluded. While in some jurisdictions a party may have his commission for the taking of depositions as of right, usually, if the opposing party objects, the court exercises its discretion in relation to issuing the commission.

Generally speaking, the depositions of a nonresident party to a proceeding may be taken on his own motion or at the instance of the other party. A distinction is made between the right of a plaintiff and that of a defendant in this respect. If the former, he must make a strong showing of necessity; if the latter, he is prima fade entitled but not of right. This distinction is based upon sound reason, for the plaintiff has brought the proceeding, while the defendant has been compelled to join: 21 Corpus Juris, 533; 18 Corpus Juris, 598, 642; Mills v. Mills, 12 Ont. Pr. 473; Gray v. Braden, 13 Dist. R. 481; Brandon v. George, 4 Schuylkill, 24; Asch v. West Phila. Pass. Ry. Co., 4 W. N. C. 571; Sims v. Cooper, 27 Dist. R. 471; 47 Pa. C. C. 18; Bleakley’s Estate, 28 Dist. R. 289; Vetter’s Estate, 12 D. & C. 665.

The witness in the case before us is in a position relative to that of a plaintiff in a proceeding at law. She has asked that the trust created for her by her father’s will be terminated and the corpus awarded to her free of any trust.

In the exercise of our discretion, we find that the prayer of the petition should be denied, and it is so ordered.


author: Broomall, J.,

text:
    Hughes v. Hughes.

      Robert W. Beatty, for plaintiff; Frank M. Hunter, for defendant.
    March 10, 1931.
   Broomall, J.,

The bill in this case was filed under the provisions of the Act of May 23, 1907, P. L. 227, and the amendments thereof. When the bill was filed the plaintiff presented to the court a motion for an order to serve the defendant with the bill of complaint as a nonresident under the provisions of the Act of Assembly approved April 6, 1859, P. L. 387, at the same time filing an affidavit, in which she set out that “to the best of her knowledge, information and belief, defendant has no known residence within this Commonwealth.” The court thereupon entered an order that the bill and other papers might be served by leaving a copy at No. Ill Walnut Street, in the City of Philadelphia, where the defendant was alleged to transact business, and such service was made.

Thereafter the defendant presented his petition setting out the above facts, averring that this court was without jurisdiction to grant an order or decree against the defendant personally, and praying for a rule “to show cause why the bill in equity, in so far as it prays for orders or decrees against defendant personally, should not be dismissed and the said service as to defendant personally should not be set aside or otherwise declared null and void.” The rule was granted as prayed for. When it was called for argument before this court, defendant’s counsel, in answer to questions from the court, stated definitely and specifically that there was no objection to the bill, so far as it was a proceeding in rem against the real estate of the defendant and his other property situated in this county, and that the service to that extent was valid; but that a service ordered against him as a nonresident would not sustain a subsequent order or decree against the defendant personally, and that the bill, in so far as it asked for a personal order and a decree in rem, contained conflicting and repugnant provisions. Neither in the petition nor in the oral argument was there any suggestion that the service made was defective generally.

Accepting these statements from defendant’s counsel as setting out his true contention, the court considered that the question involved was a procedural one only, as the service was admittedly good to sustain a substantial part of the relief prayed for, and that the remedy of the defendant, if he thought there was any danger under the pleadings and service as they stood of a decree being entered against him personally, was to proceed under Rule 48 of the Equity Rules rather than under Rule 29, which in substance and effect is, so far as a proceeding in equity is concerned, substantially identical with the provisions of the Act of March 5, 1925 [P. L. 23].

Taking this view of the case, the court discharged the pending rule, without prejudice to the right of the defendant to raise the question which he suggested was then involved either in the manner there suggested to him by the court or in such other manner as he might see fit.

If the service in question had been attacked, as a whole, as insufficient and ineffective to sustain any of the prayers for relief, an entirely different question would have been before us. Under the order as made, in view of defendant’s statements, we think his rights are fully protected.

From William R. Toal, Media, Pa.


author: Dickinson, J.,

text:
    In re Henry & Kirkbride.

      Roland S. Morris, Morris Duane, John Arthur Brown and J. Howard Reber, for receiver.

      John Hampton Barnes, Maurice B. Saul, Walter B. Saul, Earl G. Harrison, Boyd Lee Spahr, George S. Munson and George F. Baer, for creditors.
    June 10, 1931.
   Dickinson, J.,

The discussion in this cause has taken a wide range. It is in truth limited to a very narrow question. The bankrupt was the owner of so-called investment securities which he had pledged to different banks for loans. The pledge was accompanied with the usual form of collateral note. “This gives the pledgee in effect the power to sell the pledge at will, to apply the proceeds to the repayment of the loan, and to turn over to the pledgor the surplus, if any. The order of the referee restrains the pledgees from exercising the power to dispose of what is termed the collateral. Othewise there has been no interference with the rights of the pledgees. There is in consequence no need for the arguments addressed to us in support of the lawfulness of the pledge, the right of the pledgees to hold the pledge for the debt due or their right to the proceeds of any sale. The whole question is whether, after the assets of the debtor have passed into the custody and control of the bankruptcy court, anyone will be permitted without the consent of the bankruptcy court to interfere with such custody by a sale of the assets or otherwise.

We are not impressed with the objection to the exclusive control of the bankruptcy court on the ground that the control given to the pledgee was given by contract and, hence, any interference with it by the bankruptcy courts impairs the obligation of a contract. If a bankruptcy court has no lawful power to do anything which impairs the obligation of contracts, there is very little left which a bankruptcy court can do. We have nothing to do with the doctrine of the inviolability of contracts. The whole question is embraced in these fact situation propositions. The loan for which the pledge was given must be paid; it cannot be paid without a sale of tlie pledge. The sole question is whether the bankruptcy court has exclusive jurisdiction to make the sale or whether, in defiance of the bankruptcy court, some other court or the pledgee himself can sell. It is admitted that the case of Isaacs, Trustee, v. Hobbs Tie and Timber Co., 282 U. S. 734, rules that another court cannot decree the sale of assets in the possession and under the control of the bankruptcy court without the leave of the latter court.

The ruling in the cited case can be readily understood. Its propositions are very clearly stated. The only differences of opinion are over the implications and whether the doctrine of that case extends to another case in which the fact situation is different. The cited case was one of a pledge of land for the payment of a loan with the right to sell the land pledged through the processes of a court. After the land had become bankruptcy assets, the cited case rules that it could not, without the leave of the bankruptcy court, be sold by another court under the pledge.

In the instant case there is a like pledge, not of land but of personal property, and the pledgee has the right to sell, not merely through the processes of a court but to sell himself without recourse to any court.

In the cited case it was ruled that the pledgee could not sell the pledged land through an execution, but that it could be sold only by the bankruptcy court (or by its leave). Should a like ruling be made in the instant case? The learned referee thought that under the cited case it should and so ordered. This is the order under review.

We are in full accord with the proposition that the possession of the pledge cannot be disturbed by any summary action of the bankruptcy court but the right of the pledgee is open to attack only by plenary suit. This, however, is not the question before us. The question is the quite different one of the right of the pledgee to take the assets of the bankrupt estate out of the control of the bankruptcy court by selling them. The power to stop such sales is exercised daily by bankruptcy courts. Mortgagees to whom seized lands have been conveyed are so restrained; likewise judgment creditors who have taken lands in execution; in like manner landlords who have distrained property for rent; plaintiffs in attachment in execution proceedings are also so restrained. No such pledgees are permitted to enforce their pledges by sale.' Is the pledgee under a so-called collateral loan an exception to the general rule? The only theory, so far as we can discover, on which his ease can be differentiated from that of other pledgees is that the collateral holder is not a pledgee in the lien-holder sense but is an owner. As he is such owner, the thing pledged is his and forms no part of the bankruptcy assets, or at the most the bankruptcy court does not have possession but only the right to possession which can be reduced to actual possession only by a plenary suit. This theory is provocative of a discussion which has no end. The property here is theoretically of the type known as choses in action. The pledgee of bonds or of stocks holds possession of nothing except the evidence of a debt due the pledgor or of his right to share in the assets of a corporation. A mortgagee is in form not a pledgee, but the owner of the land described in his mortgage subject to a defeasance. All which is left to the mortgage owner is a right of redemption. None the less, the now-accepted view is that the mortgagee is a pledgee or lienholder. The ordinary form of corporate bonds and certificates of stock, it is true, have come to be regarded not as evidences of debt or of a share in corporate assets but as in themselves property. Pledgees of bonds or stocks are none the less pledgees with a right of lien. This is the only real right they have. We see no difference in this respect between them and the pledgees of land. We are not unmindful of the difference between the possession of a power and the propriety of its exercise. A bankruptcy court is as much bound to have regard to the rights of pledgee creditors as of any other creditors and not to forget that the latter may have priority of right. A pledgee, because of this, should always be at liberty to apply to the court for leave to enforce his pledge.

As indicated, we think the order of the referee should be confirmed but that it should be modified by the allowance of leave to any pledgee of the investments of the bankrupt to apply for leave to enforce the pledge by sale or otherwise. It can then be determined in each instance whether the pledgee should be permitted to sell or have terms imposed. Doubtless the learned referee thought the pledgee would have this right anyhow, and, hence, did not incorporate it in the order entered. It would, however, be well to make it clear that the pledgees are not concluded by the order.

An appropriate order may be submitted.


author: Arird, P. J.,

text:
    In re Tax Sales by County Treasurer.

      W. J. Knupp, for county treasurer.

      John Siggins, Jr., for school board and tax collector of Warren Borough.
    S'. D. Blackman, for Warren Borough.

      Warren M. Stone, for county commissioners.
    Jan. 26, 1931.
   Arird, P. J.,

On Nov. 20, 1930, we filed an opinion in the above entitled case, and at that time we made the following finding:

“We, therefore, find that it is not the duty of the county treasurer at the first term of a Court of Common Pleas of Warren County, Penna., succeeding such sale to make a report and return wherein he shall set forth a brief description of the land or property sold, the name of the person, etc., i. e., in our opinion, R. E. Waid, County Treasurer of said Warren County, Penna., is not in duty bound to comply with section 9 of the Act of May 9, 1929, P. L. 1684, as, in our opinion, this section violates the 14th Amendment to the Constitution of the United States and deprives persons of their property without due process of law.”

On Dec. 30, 1930, W. J. Knupp, attorney for R. E. Waid, county treasurer, moved for a reargument of the case. Motion was granted, and on Jan. 9, 1931, the case was called and argument heard.

The Act of April 15, 1834 [P. L. 509], requires assessors to give notice to every taxable inhabitant, and also requires the commissioners to give notice by advertisement of the time and place of such appeal; also, it is their duty to hear appeals at any subsequent time when in session previous to the payment of the tax: Shafer v. Marsh, 22 Pa. C. C. Reps. 33, 23 Pa. C. C. Reps. 321.

The courts are bound to hear such appeals: Rockhill I. & C. Co. v. Fulton County, 204 Pa. 44. How can it be said that the Act of May 9, 1929 [P. L. 1684], is unconstitutional when the taxpayer has his remedy up to the time of sale. Said act is only an enforcement act and the legislature is not obliged to provide an appeal for each and every step in said proceeding: Voigt v. Detroit City, 184 U. S. 115.

Due process of law does not require that a person should have an opportunity to be present when a tax is assessed against him or that the tax should be collected by suit: McMillen v. Anderson, 95 U. S. 37. It is sufficient if he has an opportunity to question the validity or amount of tax before that amount is determined or in proceedings for its collection: Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 526. A tax law which grants to the taxpayer the right to be heard on assessment of his property before final judgment provides due process: Pittsburgh C. C. & St. Louis Ry. Co. v. Backus, 154 U. S. 421.

When a state seeks directly or by authorization to others to sell land for taxes upon proceedings to enforce a lien for the payment thereof and the owner is unknown, it may proceed directly against the land within the jurisdiction of the court, and a notice which permits all interested who are “so minded” to ascertain that it is to be subjected to sale to answer for taxes and to appear and be heard, whether to be found within the jurisdiction or not, is due process of law: Leigh v. Green, 193 U. S. 79.

Personal notice or notice in pais is not essential; a statute which fixes the time and place at which the assessment is to be made or complaints are to be held is itself sufficient notice.

In proceedings for the assessment and collection of general taxes, all that is necessary is that the usual course prescribed by the state laws should conform to natural notice and should require notice to the taxpayer and afford him an opportunity to be heard at some stage of the proceedings to contest the validity of the charge imposed upon him: Hagar v. Reclamation District, 111 U. S. 701.

The general system of procedure for the levy and collection of taxes established in this county is due process of law: Kelly v. Pittsburgh, 104 U. S. 78.

It has been held due process of the law is secured when the laws operate on all alike and do not subject the individual to the arbitrary exercise of the powers of government: Giozza v. Tiernan, 148 U. S. 657; Marchant v. Pennsylvania R. R. Co., 153 U. S. 380.

The essential elements of due process of law are notice and an opportunity to defend, and in determining whether such rights have been denied, the court is governed by the substance of things and not by mere form; if the party complaining has in fact had proper notice and a due hearing, or an opportunity to be heard, there is no color for the contention that he has been denied due process of law: Iowa Central R. R. Co. v. Iowa, 160 U. S. 389; Wilson v. North Carolina, 169 U. S. 586.

This amendment does not control mere form of procedure in state courts or regulate practice therein. Each state has full control over the procedure in its courts, both in civil and criminal cases, subject only to the qualification that such procedure must not make a denial of fundamental rights or conflict with specific and applicable provisions of the Federal Constitution: Ex parte Reggel, 114 U. S. 642.

This clause does not require a trial by jury under all circumstances, and proceedings without a jury if according to the usual and settled course of procedure in such matters will still be valid: Walker v. Sauvinet, 92 U. S. 90.

This clause does not require that proceedings in a state court should be by any particular mode if they constitute a regular course of proceedings in which notice is given of the claim asserted and an opportunity afforded to defend against it: Simon v. Craft, 182 U. S. 427.

Summary process, whether civil or criminal, to enforce collection of taxes or to punish the violation of a valid municipal regulation, if according to the usual course of such proceedings at common law, is due process: Murray v. Hoboken Land & Imp. Co., 18 How. 272.

Proceeding by rule does not conflict with due process of law if the fundamental rights secured by the amendment are not denied: Louisville & Nashville R. R. Co. v. Schmidt, 177 U. S. 230.

I do not find where section 9 of the Act of May 9, 1929, P. L. 1684, violates the 14th Amendment to the Constitution of the United States in that it deprives persons of their property without due process of law, for the reason a day is fixed for any taxpayer to appeal from the valuation placed on the property by the assessor, and, again, the taxpayer has the right to appeal to court for relief — Act of April 15, 1834 [P. L. 509]. The taxpayer has the right to file exceptions when the treasurer’s deed is acknowledged, and, lastly, he cannot be deprived of his property except by an action of ejectment. This section only relates to the proceeding of the treasurer. The legislature in its wisdom wished to guard the taxpayers’ rights and especially provided that the court is to pass on the proceedings of the treasurer to see that he has fully complied with it in every detail prescribed by the statute. The court does not confirm the sale but only the report of the treasurer, the same as in a report of sale of lands in the orphans’ court or other proceedings.

If a taxpayer files exceptions to said sale which are overruled by court, he surely has the right to appeal; this right is not denied. The act has not repealed a single defense that could be raised to a seated tax sale prior to this act. I also find that the act is retroactive so as to apply to all taxes assessed prior to and including 1929.

A state may adopt new remedies for the collection of taxes and apply those remedies to the collection of taxes already delinquent; and may provide that taxes already delinquent shall bear interest from date of delinquency: League v. Texas, 184 U. S. 156.

We have examined the decisions cited in plaintiff’s brief, and, in our opinion, at the present time, we rescind the former order made in this case.

Again, under existing circumstances, the time for filing a report by the county treasurer is extended to Feb. 20, 1931.

We now decline to adopt the opinion written by Judge Fleming in the case of Bowers v. Smith, 14 D. & C. 220, and we now hold that R. E. Waid, County Treasurer of said Warren County, Pennsylvania, is in duty bound to comply with section 9 of the Aet of May 9, 1929, P. L. 1684, and at present, in our opinion, this section does not violate the 14th Amendment of the Constitution of the United States, and it does not deprive persons of their property without due process of law: Blood v. Mercelliott, 53 Pa. 391; Yeager & German v. Weaver, 64 Pa. 425; In re Road in the Borough of Phœnixville, 109 Pa. 44; Sugar Notch Borough, 192 Pa. 349; Buffalo Branch, Mutual Film Corp., v. Breitinger, 250 Pa. 225.

Prom' Joseph H. Goldstein, Warren, Pa.


author: Cummins, J.,

text:
    Hallam v. Minnemeyer-Thompson Motor Company.

      Lloyd O. Hart, for plaintiff; Joseph C. Spriggs, for defendant.
    September 29, 1930.
   Cummins, J.,

Judgment having been given in favor of the plaintiff and against the defendant for $52.50 before a magistrate, an appeal was taken by the defendant from said judgment to the court of common pleas, a motion to strike off which appeal is now before the court in banc. The reason assigned in support of the motion to strike off is that the appeal bond is defective.

The appeal bond reads as follows: “And now, July 9, 1930, . . . bail justified on oath defendant held in $25 as bail absolute for the payment of debt, interest and costs that have accrued or will accrue on affirmance of the judgment, or that may be legally recovered against the appellant.” Signed “Minnemeyer-Thompson Motor Co., M. G. Thompson.”

Under the Act of March 20, 1845, P. L. 188, upon appeal from a judgment of a magistrate, the appeal bond required was “bail absolute, in double the probable amount of costs accrued and likely to accrue in such cases, with one or more sufficient sureties, conditioned for the payment of all costs accrued or that may be legally recovered in such cases against the appellants.” By the Act of June 24, 1885, P. L. 159, as amended by the Aet of May 29, 1907, P. L. 306, it is provided that upon such appeal the alderman shall be entitled to demand the costs of the case: “Provided, however, That if any appellant shall give good and sufficient bail absolute, for the payment of debt, interest, and costs that have and -will accrue on affirmance of the judgment, the appellant shall not be required to pay any costs before taking an appeal.” So now an appellant has the option either (a) of paying the costs accrued and giving bond as required by the Act of June 24, 1885, or (b) of giving the bond required by the Act of May 29, 1907, where the costs are not paid: Lentz v. Kittanning Real Estate Company, 72 Pa. Superior Ct. 513, 517.

It appears from the magistrate’s transcript, that appellant, electing to proceed under the Act of 1907, gave an appeal bond, absolute, “for the payment of debt, interest, and costs that have and will accrue on affirmance of the judgment.” Complaint is made that this bond is not sufficient in amount and is without security. We are of the opinion that the hail required by the magistrate is not sufficiently large, and that surety should have been furnished, although not expressly required by the latter act; but these are not such defects as would justify the striking off of the appeal; appellee’s remedy is to call upon appellant by rule to perfect his bail: Means v. Trout, 16 S. & R. 349, 350; Koenig v. Bauer, 57 Pa. 168, 171; Kerr et al. v. Martin et al., 122 Pa. 436, 438.

And now, September 29, 1930, motion to strike off refused.

Prom Harry D. Hamilton, "Washington, Pa.


author: Wickersham, J.,

text:
    Bradermann v. Pennsylvania Securities Commission.

      Sterling G. McNees and Robert F. Irwin, Jr., for plaintiff.

      Michael E. Stroup, Deputy Attorney General, for defendant.
    July 14, 1930.
   Wickersham, J.,

This is an appeal by the plaintiff from the decision of the Pennsylvania Securities Commission refusing to register him as an “agent or salesman” of Otis & Co. After hearing the testimony of the plaintiff, the commission, on February 5, 1930, notified Otis & Co. as follows:

“You are hereby notified that at a meeting of the Pennsylvania Securities Commission held this day, your application for the registration of MerwinWolff Bradermann as your agent or salesman was refused because the commission is unable to find satisfactory evidence of his good repute, fitness and qualifications.”

Thereafter, on request of Otis & Co., the commission, in accordance with section eight of the Securities Act, held a further hearing and heard additional testimony. Thereafter, on March 14, 1930, the commission adopted the following resolution, notice of which was sent to Otis & Co.:

“Whereas, a registration having been refused and hearing held at the request of the applicant, in accordance with the provisions of section 8 of the Securities Act, and the commission having found after full and due consideration that the evidence submitted does not justify or warrant a reversal or modification of its previous findings of fact whereby the application of Otis & Company for the registration of Merwin-Wolff Bradermann as its agent or salesman was refused because the commission was unable to find satisfactory evidence of his good repute, fitness and qualification,
“Therefore, it is ordered that the former order of the commission be affirmed and the application of Otis & Company for the registration of Merwin-Wolff Bradermann as its agent or salesman be and is hereby refused.”

From the said final order of the commission this appeal was taken.

We find two questions involved in the appeal:

1. Where a dealer’s application for registration of a salesman is refused by the Securities Commission, and the dealer refuses to appeal, may the salesman do so?

2. If this petition may be determined on its merits, should the Securities Commission be reversed?

We think the first question must be answered in the affirmative. It appears from the record that Otis & Co. notified the Pennsylvania Securities Commission that the plaintiff, Merwin-Wolff Bradermann, had been appointed as agent or salesman for the said applicant. Accompanying the application and making a part thereof, in compliance with section ten of the Securities Act of 1927, was the sworn statement of the said agent. An examination of this “sworn statement” shows that, in the form thereof, it was evidently prepared by the Securities Commission. The said plaintiff, Merwin-Wolff Bradermann, answered the questions contained in the said form entitled “Statement of Agent or Salesman,” to which he signed his name on the line over the printed words “Applicant for Registration as Agent or Salesman.” It was also sworn to by him. He now claims the right to appeal from the said final refusal of the Securities Commission so to register him, as an “aggrieved person” under section nineteen of the Securities Act of 1927, which provides, inter alia:

“Any dealer, salesman or agent aggrieved by any decision of the commission may file, within, thirty days thereafter, in the Court of Common Pleas of Daphin County, a petition against the commission, officially as defendant, alleging therein, in brief detail, the action and decision complained of and praying for a reversal thereof, . . .”

Is an agent or salesman “aggrieved” by the refusal of the defendant commission to so register him? We think he is.

The word “aggrieved” is defined in Webster’s New International Dictionary to be: “adversely affected in respect of legal rights; suffering from an infringement or denial of legal rights.” An “aggrieved party” or person is one who is injured in a legal sense; who has suffered an injury to person or property: Veon v. Creaton, 138 Pa. 48, 56; 2. C. J. 973. It is said, with reference to the right of appeal, that a person aggrieved is one whose pecuniary interest is directly affected by the adjudication: Andress v. Andress, 46 N. J. Eq. 528, 22 Atl. 124; Wiggin v. Swett, 6 Metc. (Mass.) 194, 39 Am. Dec. 716; State of Vermont v. Central Vermont R. R. Co., 81 Vt. 459, 21 L. R. A. (N. S.) 949. And in Switzer v. Switzer et al. (Supreme Court of Missouri), 98 S. W. 461, 463, it was said by Fox, J.:

. . Every person aggrieved includes every person whose rights are in any respect concluded by the judgment. . . . Furthermore, it is right and just that any person whose interests are injuriously affected and concluded by a judgment should have the right to review by the appellate court of the proceedings which resulted in such judgment.”

And in McKenna v. McKenna (Supreme Court of Rhode Island), 69 Atl. 844, 845, it was said by Johnson, J., quoting from Tillinghast v. Brown University, 24 R. I. 179, 183:

“. . . The rule generally adopted in construing statutes on this subject is that a party is aggrieved by the judgment or decree when it operates on his rights of property or bears directly upon his interest: 2 Cye. 633. The word ‘aggrieved’ refers to a substantial grievance; a denial of some personal or property right, or the imposition upon a party of a burden or obligation,” citing many authorities, among them Lewis v. Bolitho, 6 Gray (Mass.) 137; Lawless v. Reagan, 128 Mass. 592, and others. In New Jersey Building, Loan and Investment Co. v. Lord et al., 58 Atl. 185, 187, it was said by Green, J., writing the opinion of the court:
“. . . A defendant is truly aggrieved only when, by appropriate pleadings or pleadings and proofs, he has become an active party to an issue or a controversy which is adjudged against him,” citing many authorities.

Applying these well-established definitions of the term “aggrieved,” used in section nineteen of said Securities Act of 1927, to the facts, it appears that the plaintiff was very much a party to the proceedings had before the commission. As we have heretofore suggested, he signed the sworn statement or questionnaire submitted to him by the commission, and under his signature were printed the words “Applicant for Registration as Agent or Salesman.” Was he a party to the proceeding? Certainly he was. It was the plaintiff who was called before the commission to testify — see notes of testimony, pages 3 to 16, both inclusive — at which time the commission probed deeply into his prior business and his business failures. Again, on request of Otis & Co., after a rather lengthy statement on the part of counsel for the plaintiff, he was again interrogated — see notes of testimony, page 26, et seq. — and was carefully examined by his counsel and members of the commission. It cannot, therefore, be said that he is not a party to this record.

Was he an interested party? He has testified that he sought employment as a salesman with Otis & Co. in order that he might make or win a livelihood. He claims to be an experienced salesman of securities. The order of the commission deprives him of the right to earn a livelihood in that way in Pennsylvania. Evidently, therefore, he was an interested party to the proceeding. Was he aggrived? We think he was, because the final order of the commission deprives him of the right so to earn a livelihood; it takes away from him the legal right to act as an agent or salesman of securities. ■

The plaintiff has no vested right to sell securities as an agent until he is registered so to do by the Pennsylvania Securities Commission: Rubin v. Pennsylvania Securities Commission, 33 Dauph. 205, 209. Prior to the passage of the Securities Act of 1923, an agent or salesman could sell securities without interference on the part of the state; but since the passage of the Securities Act of 1923 and the amendatory Act of 1927, one desiring to sell securities must possess and prove qualifications so to do satisfactory to the commission. This, however, does not deprive him of the right to appeal to the Court of Common Pleas of Dauphin County if he feels that he is aggrieved by an order of the commission refusing to register him as such.

It is very clear that the terms “dealer,” “salesman” and “agent” are all used in the ordinary acceptation of those words. Therefore, when the act provides that a salesman or agent aggrieved by any decision of the commission may file a petition for the reversal of an order of the Securities Commission, it in no wise restricts such right to a registered salesman or agent.

There does not appear to be any ambiguity in the provisions of section nineteen of the act. If it was the intention of the legislature that only the principal was aggrieved by the failure of the commission to register its appointee, or if it had been the intent of the legislature that a salesman or agent could appeal only when his commission was revoked, as provided in .section seventeen of the act, it could have so provided in the act. No such provision was written into the Securities Act by the legislature. It is very clear to us, therefore, that it was the intention of the legislature that not only the “dealer” was aggrieved by the action of the commission in refusing to register its appointee as its “salesman or agent,” but the “salesman or agent” is also aggrieved if the commission refuses to register him on the application of the dealer. No other construction of section nineteen of the act would be logical or justified. We are of the opinion that when the commission refuses to register an agent on application of a dealer, not only is the “dealer” aggrieved, but the “salesman or agent” also is aggrieved, and has a right to appeal under section nineteen. We cannot, therefore, agree with the contention of the learned Deputy Attorney General that the “salesman or agent” is not a party to the record and has no right to appeal from the decision of the commission refusing to so register him.

The second question involved in this appeal must be answered in the negative. Section ten of said act provides, inter alia,, that:

“Upon written application by a registered dealer, and upon satisfactory evidence as to good repute, fitness and qualifications, the commission shall register, as agents or salesmen of such dealers, such persons as the dealer may request. . . .”

We think the burden of satisfying the commission as to the good repute, fitness and qualifications of the plaintiff was upon him. The commission has found that he has not met that burden. He has not supplied satisfactory evidence as to his good repute, fitness and qualifications.

Our duty, under the statute, is to determine whether there is evidence to sustain the finding of the commission and our duty ends there. To illustrate: If a case were presented showing that an agent had an unquestionable reputation for integrity and business dealing from which no possible inference of the lack of good repute, fitness and qualification could be drawn, and the commission had determined that the agent had not submitted satisfactory evidence as to these matters, it would be our plain duty to reverse the commission. If, .on the other hand, an agent had not presented the commission with .any evidence, the burden being on him to show that he is fitted in these respects to become an agent, it would be our plain duty to sustain the commission. It follows, also, that where an agent has presented evidence from which inferences may be drawn either way, it is our duty to support and sustain the commission whichever way it happens to have drawn the inferences and found the facts.

We have read the evidence produced before the commission by the plaintiff and are satisfied with the conclusions reached by the commission, and its order refusing to register the plaintiff as an agent or salesman in securities is affirmed. The petition of the plaintiff is dismissed, at the cost of the plaintiff.

From Homer L. Kreider, Harrisburg, Pa.


author: Smith, P. J.,

text:
    Danzig & Romain v. Aldine Trust Company et al.

      Evans & Wemick, for plaintiff.

      J. K. Willing and J. W. McWilliams, for defendants.
    February 16, 1931.
   Smith, P. J.,

In this case the complainants filed a bill of complaint wherein they averred that the complainants made a deposit at the Aldine Trust Company, Fortieth Street and Lancaster Avenue, on Saturday, December 27, 1930, of $1215.54, and that the Aldine Trust Company did not open for business after Saturday, December 27, 1930; that on Monday morning, December 29, 1930, at 9 o’clock A. M., a notice appeared on its door stating that the Aldine Trust Company had suspended further business and had been taken over by Peter G. Cameron, Secretary of the State Banking Department. Complainants further aver that as soon as this was brought to their attention they sent notice to the Aldine Trust Company and to the Secretary of the State Banking Department, calling attention to the deposit made by them and asked that it be returned. The complainants further aver that they are informed, believe to be true and expect to be able to prove that when the deposit was made the officers of the Aldine Trust Company knew or should have known that the Aldine Trust Company was insolvent and should not have received the deposit from the complainants.

The bill further avers that when the deposit was made one of the complainants had some information regarding the possibility of the closing of the doors of the bank and its suspension of business and brought this information to the attention of the receiving teller to whom the deposit was given and the receiving teller assured the complainant that the bank was in good financial condition. The complainants aver that the deposit was made upon the sole reliance and assurance of the receiving teller that the Aldine Trust Company was solvent and would not suspend business. Complainants further aver that they are informed that the deposit was not mixed with the other assets of the trust company but held separate and apart, and that at the time the deposit was made the officers of the Aldine Trust Company knew or should have known that the company was insolvent and by reason thereof were in duty bound to advise the complainants of the same and not to receive the deposit. Complainants aver had they known this fact the deposit would not have been made. Complainants further aver that the deposit can be identified with reasonable effort, particularly by the Aldine Trust Company and by the Secretary of the State Banking Department; that the complainants expect to be able to prove that the action of the receiving teller of the Aldine Trust Company in receiving the deposit as of Saturday, December 27, 1930, constituted a fraud on the complainants and as a result thereof the complainants are entitled to the return of the deposit.

Complainants aver that the remedy at law is not as adequate, sufficient, complete and convenient as afforded by equity, and that unless the Aldine Trust Company and the Secretary of Banking are restrained from mixing the said deposit with the other assets of the bank, they may not be able to recover the said full deposit at law; that they are, therefore, in need of equitable relief and pray:

(a) For the issuance of an injunction, preliminarily until hearing and permanently thereafter, restraining and enjoining the said Aldine Trust Company, its agents-, servants or employees, and Peter G. Cameron, Secretary of Banking, his agents, servants or employees, from using said deposit of $1215.54 made by the complainants as of Saturday, December 27, 1930, and from mixing the said deposit with the other assets of the Aldine Trust Company.

(b) That your honorable court order and decree that the title to the said deposit of $1215.54 made by the complainants was and is in the complainants and that the title thereto never passed to the Aldine Trust Company.

(c) That your honorable court order and decree that the said Aldine Trust Company and/or Peter G. Cameron, Secretary of Banking, forthwith return to the complainants the said sum of $1215.54.

(d) That your honorable court order and decree that the accepting and receipt of the said deposit from the complainants for $1215.54 under the circumstances mentioned heretofore constitute a fraud on the complainants which entitles the complainants to a return of the said money.

(e) That your honorable court grant such other and further relief as the circumstances of the case may require.

There was no answer filed to this bill in equity. To it the Secretary of Banking filed preliminary objections, setting forth his authority and appointment by the court on December 31, 1930. In the preliminary objections, the Secretary of Banking sets forth that he has a full, complete and adequate defense to the complainants’ cause of action; that he interposes these preliminary objections without any purpose to hinder and/or delay; and that the complainants have a full, complete and adequate remedy at law.

Upon argument before the court in banc on January 16, 1931, it developed that the complainants deposited with the Aldine Trust Company on the evening of Friday, December 26, 1930, between the hours of 7 and 9 o’clock, the sum of $1215.54, of which amount $1168 was cash and the balance contained in five checks; that this deposit was placed in the work of the bank on Saturday, December 27, 1930, and cleared the same day; that up to this time the Aldine Trust Company was a banking institution conducting its business as a going concern; that on the morning of the following Monday, December 29, 1930, the Aldine Trust Company was taken over by Peter G. Cameron, Secretary of the Department of Banking, under the authority and provisions of the Act of Assembly of June 15, 1923, P. L. 809, as amended by the Act of May 5, 1927, P. L. 762.

Disregarding the facts adduced at the time of the argument before the court, we are of the opinion that when the Secretary of Banking took legal possession of the Aldine Trust Company and its effects, the determination of the rights of depositors was for him. He is given the same rights as a receiver appointed by the courts of equity with the few exceptions mentioned in the act of assembly:

“. . . and he shall be vested, in his official capacity, with all the rights, powers, and duties of such corporation or person and with all the property of such corporation or person, including debts due, liens, or securities therefor, and rights of action or redemption, whether or not the property of such corporation or person, including debts due, liens, or securities therefor, and rights of action or redemption, are held in the name of such corporation or person, or in, the name of some other corporation or person, hut actually the property of the corporation or person of which, or of whom, the secretary has possession.
“He shall be the representative of the creditors of the corporation or person, and entitled, as such, to have vacated and set aside, for the benefit of the creditors, any judgment, execution, attachment, sequestration, payment, pledge, assignment, transfer, conveyance, or incumbrance, which could have been avoided by the creditors or any of them, or by which it is attempted to give any creditor unlawful preference over another:” Section twenty-nine, Act of June 15, 1923, as amended by the Act of May 5, 1927, P. L. 762.

Section thirty of the Act of 1923, as amended by the Act of May 5, 1927, provides that “The court having jurisdiction shall have power to make and enforce any and all orders necessary and appropriate to enable the secretary to discharge his duties in connection with the business, property and affairs of any corporation . . . taken into possession by . . . [him] upon petition of the secretary acting personally or through his duly authorized deputy. . . .”

It becomes at once apparent from a reading of the statutes of 1923 and 1927 that these acts of assembly contain ample and comprehensive powers to safeguard the rights of a depositor under the conditions as they exist in this case.

It would be inequitable to other depositors and prejudicial to an orderly and careful investigation by the Secretary of Banking were individual depositors able to compel a preliminary adjudication of their rights without regard to the rights of all others. The moment the deposit becomes intermingled with the general funds of the bank, such depositor bears, prima facie, the same relationship as do other depositors to the bank. If there should arise a state of facts making clear any difference in this relationship, the Secretary of Banking in his discretion may make a preliminary determination of the question.

In the event that the Secretary of Banking in his sound discretion shall deem it necessary to have determined whether or not a banking institution accepted a deposit as a trustee ex maleficio, he may certify such facts to a court for a proper adjudication. In the event that he fails so to do, when the account of the Secretary of Banking is filed with the court providing for a distribution of the funds among the claimants, the petitioners here may then present their claim to this court, where they may be heard and their rights determined.

In Cameron v. Carnegie Trust Co., 292 Pa. 114, Mr. Justice Simpson said (pp. 117, 118) :

“. . . the proper procedure on questions affecting a distribution of the funds collected by the secretary, is to present a claim when his account has been filed and is before the court, at which time all the distributees can be heard, and from the decree .which follows they alone have the right to appeal: Cameron v. City Bank of York, 284 Pa. 187. Section 40 of the Banking Act of June 15, 1923, P. L. 809, 827, relied on to sustain the course pursued here, obviously refers only to technical and continuing trusts, for it prescribes that substituted fiduciaries shall be appointed, in place of the insolvent banking institution, to take over and thereafter administer the trust. This is the only section of the act which provides for a preliminary determination regarding any claim on the funds in the hands of the secretary, and hence, — expressio unius est exelusio alterius, — excludes the idea of a right to so proceed in any other instance.”

Section thirty-five of the Act of 1923 provides as follows:

“He [the Secretary of Banking] shall be liable to suit, in his representative capacity, by any person seeking to recover specific property, if such property could have been recovered as against the creditors of the corporation or person levying an execution thereon.”

The petitioner advances this language as authority that a depositor may proceed independently of the Secretary of Banking, and that was done in the case of Cameron v. Carnegie Trust Co., supra. A reading of that decision shows that the only matters permitting of a preliminary determination are matters of technical and continuing trusts, and only then when such determination is sought by the claimant with the consent of the Secretary of Banking. There being no such request here, the only method of procedure provided is through the regulations of the Banking Department as is hereinbefore described.

The petitioner having a full and adequate remedy under the statutes of 1923 and 1927, there is no need, at this time, for the intervention of a court of equity.

Decree.

And now, to wit, February 16, 1931, the exceptions to the bill are sustained and the bill in equity is dismissed.


author: Lamberton, J.,

text:
    Wotherspoon v. Wotherspoon.

      W. A. Gray, for libellant; J. R. K. Scott, for respondent.
    February 16, 1931.
   Lamberton, J.,

James R. Wotherspoon filed his libel as of the above term and number, asking that a decree be entered divorcing him from his wife, Rene M. Wotherspoon, on the ground of adultery. An answer was filed, and subsequently a rule on libellant was granted to show cause why certain issues should not be tried by a jury, these issues being, in brief: (a) Whether or not an act of adultery was committed by the respondent with a corespondent named at a certain time and place; and (b) whether the libellant has by connivance, planning or agreement brought about a set of circumstances indicating that such adultery had been committed.

An answer to this rule was filed, setting forth that a trial by jury of such issues would prejudice public morals and giving an outline of the very lascivious evidence on which libellant’s case would be founded.

The case came before the court and was heard on petition and answer on February 6, 1931.

We are of opinion that a trial by jury cannot be had without prejudice to public morals, and consequently the rule should be discharged.

And now, February 16, 1931, the rule on libellant to show cause why a jury trial should not be had and certain issues tried is discharged.


author: Van Dusen, J.,

text:
    Costello’s Estate.

      Michael J. Geraghty, for exceptant; Edward F. Hitchcock, contra.
    March 20, 1931.
   Van Dusen, J.,

The informant in a successful proceeding for escheat gets his compensation from the State Treasury and not the orphans’ court: Act of May 2, 1889, P. L. 66, section 24, as amended by Act of May 11, 1911, P. L. 281, section 4. In the present case there has not even been an escheat — the Commonwealth having the right to claim payment into the State Treasury under the Act of May 16, 1919, P. L. 169, even though information has been given looking toward an escheat: Apsley’s Estate, 8 D. & C. 345.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: SinkIaER, J.,

text:
    Esling’s Estate.

      John H. Lucas and Rawle & Henderson, for exceptant.

      Toumsend,, Elliott & Munson, contra.
    March 13, 1931.
   SinkIaER, J.,

In a bequest or devise to A, his heirs, executors, administrators and assigns, the phrase is usually construed as one of limitation. In a bequest or devise to A or his heirs, executors, administrators and assigns, the phrase is usually construed as one of substitution.

The devise made by the testatrix by paragraph seven of her will, to take effect in case of the death of her son and daughter without leaving issue them surviving, is to her deceased husband’s cousin, “Henry C. Esling, his heirs, executors or administrators.” Paragraph eight begins “to prevent any possible intestacy,” and provides that any fund in any way undisposed of or falling back into the residue shall be given to the Hospital of the Protestant Episcopal Church, etc. The third paragraph of the second codicil to the will recites the devise of certain real estate or the equivalent thereof in the event of her children dying without issue to her husband’s cousin, Henry C. Esling, and gives her residuary estate to four charities, including the Hospital of the Protestant Episcopal Church. The Auditing Judge has found that the words used in the devise to Henry C. Esling are words of limitation and that by reason of his death before the testatrix, her two children having likewise predeceased her, the devise lapsed, and he awarded the corpus to the charities named in the third paragraph of the second codicil.

The argument presented in behalf of the exceptant does not, in our judgment, cite any legal authorities or provisions in the will which take the present case out of the general rule. The cases relied upon by the Auditing Judge were examined by counsel for the exceptant in an attempt to distinguish them from the present case. We find that these cases all contain phrases which make them distinguishable from those in which the general rule has heen applied. For example, in Gilmor’s Estate, 154 Pa. 523, the testator, when he republished his will and altered its language, added the words “to their heirs;” and it was held that he intended the phrase as words of substitution and not of limitation. In Wettach v. Horn, 201 Pa. 201, the court found from other clauses in the will that the word “heirs” meant “children.” In Barnwell’s Estate, 29 Dist. R. 317, a bequest to one Anne Kennedy “and to her heirs and assigns” was held by the Auditing Judge to have lapsed. An exception to his finding was sustained, the court in banc referring to another bequest to one Rebecca Gaston, “but not to her heirs and assigns,” which the court finds is an indication that the testator was not using the words “heirs and assigns” as words of limitation.

We think that the Auditing Judge has correctly set forth the general rule of construction, and agree with him that no words are to be found in the present will which take it out of the general rule.

The exceptions are dismissed and the adjudication confirmed absolutely.

Lamoreule, P. J., and Henderson, J., did not sit.


author: Schnader, Attorney General,

text:
    Salaries of Common Pleas Judges.
    February 27, 1931.
   Schnader, Attorney General,

I have your favor of January 28th, relative to the effect of the 1930 United States Census upon the amounts of the salaries respectively payable to the judges of those judicial districts in which the salary payable is dependent upon the population.

You state that several judges have called to your attention the fact that under the 1930 census, as published by the Census Bureau of the Department of Commerce of the United States, their judicial districts have advanced to a class in which higher salaries are paid to judges. The census was taken as of April 1, 1930, under an act of Congress, which did not provide upon what date the enumeration should become official. However, the Director of the Census advises that on December 13, 1930, the Bureau of the Census of the United States Department of Commerce officially issued a population bulletin, entitled “Pennsylvania: Number and Distribution of Inhabitants.”

You desire to know as of what date, if any, salaries of judges of our courts of common pleas were increased as the result of the 1930 census.

The salaries of our common pleas judges are fixed by section four of the Act of May 16, 1929, P. L. 1780, which provides definite salaries for judges of the first and fifth judicial districts (Philadelphia and Allegheny Counties, respectively) regardless of population, and then provides that the annual salary of each common pleas' judge learned in the law, in judicial districts having a population of 100,000 or more, shall be $12,000; in districts having a population of 65,000 or more, but less than 100,000, $10,000; and in districts having a population of less than 65,000, $9000.

The act does not make any provision for any change subsequent to 1929 in the determination of the population of the respective districts.

Whether under these circumstances the executive officers of the Commonwealth are justified in recognizing a change in the population of judicial districts for the purpose of increasing judges’ compensation is one which is not free from difficulty.

A number of cases have arisen in our courts under somewhat similar- circumstances, none of which, however, involved judicial salaries.

In Lewis v. Lackawanna County, 200 Pa. 590, the Supreme Court had before it for consideration the Act of March 31, 1876, P. L. 13, which fixed the salaries of county officers in counties with more than 150,000 inhabitants, but, as Mr. Justice Mitchell stated, the act “unfortunately made no provision for determining the population in case of change or dispute.” It was claimed that, as the result of the census of 1900, Lackawanna County had come into the class in which county officers’ salaries were governed by the Act of 1876. The census taken as of June 1, 1900, was first announced in a press bulletin from the Census Bureau on November 19, 1900, and was, on December 13, 1900, submitted to Congress through an official bulletin giving the population of the several states by counties.

The question was whether on November 6, 1900, Lackawanna County’s status was that disclosed by the 1900 census. The Supreme Court held that it was not, as the earliest possible date at which the fact of population, on which the status of Lackawanna County was to be changed, could be considered as legally ascertained was December 13, 1900.

In reaching this conclusion, Mr. Justice Mitchell called attention to the fact that the Supreme Court had previously determined that article five, section five, of the Constitution, directing that every county containing 40,000 inhabitants should constitute a separate judicial district, and article five, section twelve, directing that in Philadelphia there should be established a magistrate’s court for each 30,000 inhabitants, were not self-executing and could not be enforced by the courts without legislative action, citing Com. v. Harding, 87 Pa. 343, Com. v. Handley, 106 Pa. 245, and Cahill’s Petition, 110 Pa. 167.

Other cases have held that the passage of a county into a higher class by an increase in population will not entitle existing officers to receive the compensation fixed for officers of counties of the higher class: Guldin v. Schuylkill County, 149 Pa. 210, Com. v. Comrey, 149 Pa. 216, and Com. v. Walter, 274 Pa. 553; but these cases rest upon article three, section thirteen, of the Constitution, which provides that “No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment.” And the Supreme Court has held in Com. v. Mathues, 210 Pa. 372, that within the meaning of this section of the Constitution judges are not “publicíofficers.”

Accordingly, there is no constitutional inhibition against the payment of increased compensation to judges serving in judicial districts the population of which was shown by the 1930 census to have increased so as to advance certain judicial districts into higher classes.

The only question before us is a question of construction.

Did the legislature by the Act of 1929 intend to fix the compensation of judges of the several judicial districts as they existed on the date of the passage of the act and to permit this compensation to remain until modified by subsequent legislative action, or did the legislature intend that the salaries specified by the Act of 1929 should apply from time to time as the population of the several districts should appear after the latest decennial census?

If the latter was the legislature’s intention, it knew how by apt language to express it. In the County Code, enacted at the same session (Act of May 2, 1929, P. L. 1278), the legislature provided for determining the classification of counties according to population. In section thirty-one it fixed- the classification as of 1929, and in section thirty-two it provided that “The classification of counties shall be ascertained and fixed according to their population by reference from time to time to the last preceding decennial United States- census. . . .” It then made it the duty of the Governor after each census by certificate under the great seal of the Commonwealth to certify the fact that any county had advanced in classification as the result of such census.

We are forced to the conclusion that the omission of such a provision in the act of the same session fixing judicial salaries evidences the legislature’s intention to permit salaries to continue to be paid to judges on the basis of the population as known in 1929 until further action by the legislature. In confirmation of this intention is the further fact that no provision was made in the general appropriation act for any increase in the amount set apart for the payment of salaries to common pleas judges as the result of an increase in the salary rate due to the census enumeration which it was known would be taken in 1930.

Accordingly, you are advised that until further action by the legislature, you cannot lawfully pay to common pleas judges salaries at rates higher than those payable during that part of the current biennium which preceded the taking of the 1930 census. From C. P. Addams, Harrisburg, Pa.


author: Glass, J.,

text:
    Englerth v. Battersby.

      Joseph A. Keough, for plaintiff; A. L. Mulhern, for defendant.
    February 19, 1931.
   Glass, J.,

This is an action of assumpsit by the plaintiff to recover the sum of $300 for professional services in performing a surgical operation upon one Naomi Prendergast, who, while a passenger in an automobile of the defendant which was driven by him, was injured in an accident. The case was tried by a judge without a jury, and a finding was made in favor of the plaintiff in the said sum. We have before us motions for a new trial and for judgment for the defendant non obstante veredicto.

In view of the finding, all the evidence and proper inferences therefrom favorable to the plaintiff must, under the familiar rule, be taken as true, and all unfavorable to him rejected: Hunter v. Pope, 289 Pa. 560, 562; Frank v. Reading Co., 297 Pa. 233; Snyder v. Penn Liberty Refining Co., 302 Pa. 320.

Viewed from this standpoint, the trial judge, who was the trier of the facts, could reasonably have found'as follows: In the early part of March, 1927, the defendant, while driving an automobile on the pike near Pottstown, and having Miss Naomi Prendergast as a passenger, was involved in an accident in which she was seriously injured. The defendant took her to the Pottstown Hospital and requested that she be treated there. After a consultation with the surgeon of the hospital, Doctor Wills, and a Doctor Nassau, of Philadelphia, who had been called in at the request of the defendant, it was decided that amputation of the right leg between the thigh and the knee was imperative in order to save her life. Neither Doctor Nassau nor Doctor Wills wanted to operate; and Doctor Nassau, on being asked to suggest another surgeon, mentioned Doctor Englerth, the plaintiff, who was summoned and who performed the surgical operation successfully. This suggestion was made in the presence of the defendant and acquiesced in by him. The defendant had called another consultant prior to consulting Doctor Nassau, and paid him a fee, and also paid Doctor Nassau a consultation fee of $100, The hospital bills, which were charged to the defendant, were paid by him. The reason he assigned for paying the bills was that he felt he was liable: The defendant, Battersby, testified as follows:

“Q. Did you ever sign any commitment slips at the hospital at Pottstown, wherein you agreed to be responsible for the care— A. No, I don’t think I did, but I told them, and I paid everything right as it went along. . . .”

By the Court: “Q. Do you mean you told them you were liable? A. I told them that I would pay the hospital bills. Q. Why would you have to pay the hospital bills? A. Why, because she was injured in my car. Q. You felt you were liable? A. I felt I was liable. I was insured, and I felt I was liable, and that’s what I thought would be right to do, and I done that — about $1100.”

The bill for the surgical operation which was presented by the plaintiff was $300.

Counsel for the defendant, in his motions for a new trial and for judgment for the defendant n. o. v., contends that the evidence did not establish a contractual relation between the parties, either express or implied. A careful review of the testimony convinces us that there is no merit in that contention. There is ample authority to sustain the plaintiff’s claim. It has been held that a person may by express contract make himself liable for medical services rendered to himself or another, and the rendering the services is sufficient consideration to support the contract. It has also been held that the law does not raise an implied promise on the part of a person who requests, a physician to perform services for another to pay for the services so rendered, unless the relation of such person to the patient is such as puts him under a legal obligation to provide medical attention for the patient, or unless the circumstances, including acts and conduct, are such as to show an intention on his part to pay for the services, and it is immaterial whether or not the case is one of emergency: 48 C. J. 1163; see, also, 40 Cyc. 2809. In the instant case the defendant felt that he was liable and was vailing to pay the medical expenses. An implied promise was, therefore, raised on his part to pay for the reasonable value of the services, the amount to be paid not having been expressly agreed upon: 48 C. J. 1166. The employment of a physician, surgeon or dentist without express agreement as to compensation raises an implied agreement on the part of the party employing him to pay him the reasonable value of his services: 48 C. J. 1157.

The plaintiff operated as a result of the consultation between the defendant and Doctor Wills, who had charge of the case as resident surgeon. It was imperative, in order to save the patient’s life, to amputate her leg. The operation had to be performed ; some one had to do it. Neither Doctor Wills nor Doctor Nassau, who was the consultant, and whom the defendant paid, wanted to operate. The plaintiff was then called in to do so, and performed the operation successfully, and he is entitled to recover. He is in the same category as a consultant. It has been held that a physician or surgeon summoned in consultation by another may recover of the patient compensation for his services: 48 C. J. 1162; Tyson v. Baizley, 35 Pa. Superior Ct. 320; Richter's Estate, 11 D. & C. 485; Sherman’s Estate, 6 Pa. C. C. 225. In this case, the defendant having agreed to pay for all medical services in connection with the treatment of the patient, and the surgical operation being incident to that treatment, he became liable for its payment, provided the charges were reasonable.

The promise to pay for medical services in this case is not within the statute of frauds. In 27 C. J. 144, § 30, it is said an oral promise to pay for medical services rendered to another is not within the statute, if such services are rendered at the request and on the sole credit of the promisor: Boston v. Parr, 148 Pa. 220. In that case the promise was treated as an original undertaking to pay, not as a guaranty, and, therefore, not within the statute of frauds: Patton v. Hassinger, 69 Pa. 311. In Banfield v. Davidson (Tex. Civ. App.), 201 S. W. 442, where the defendant injured a boy and took him to the plaintiff's hospital and requested plaintiff to treat the boy’s broken leg, the defendant’s agreement to pay plaintiff for services was held to be an original undertaking and not within the statutes.

In Lake View Hospital Association, etc., v. Nicholson, 202 Ill. App. 205, where hospital services were furnished to a person at the request of the physician who had run over such person with his automobile and had brought her to the hospital in an unconscious condition, and such physician agreed to be responsible for her bill, and statements of account were made out to the physician and mailed to him, the promise of the physician was held to be an original undertaking. See, also, Kirby v. Kirby, 248 Pa. 117, where it is held that when the leading object of the promisor is to subserve some interest or purpose of his own, notwithstanding the effect is to pay or discharge the debt of another, his promise is not within the statute.

The testimony clearly shows an unequivocal engagement of professional services by direction of the defendant, and the law implies liability to pay therefor: Tyson v. Baizley, supra; Boston v. Farr, supra; Klopp v. Stern-berg, 76 Pa. Superior Ct. 209.

The fee of $300 charge by the surgeon in this case was reasonable. The question of what is a reasonable charge is one of fact, and that has been resolved in favor of the plaintiff, and it is amply supported by the evidence.

After a careful consideration of the case, the court, en banc, finding that no error was committed by the trial judge in his rulings on evidence, dismisses the motions for a new trial and for judgment for the defendant non obstante veredicto.


author: Coughlin, J.,

text:
    Bethlehem Fabricators, Inc., v. Sisters of Mercy et al.

      J. Q. Creveling, for plaintiff.

      Neil Chrisman, James M. Stack and James L. Morris, for defendant.
    May 13, 1930.
   Coughlin, J.,

A mechanic’s lien was filed by the Bethlehem Fabricators, Inc., against the Society of the Sisters of Mercy of Wilkes-Barre, a corporation, owner, and Shepherd Construction Company, a corporation, contractor, for the sum of $3359.42, with interest from Sept. 5, 1928. Scire facias sur mechanic’s lien subsequently issued and an affidavit of defense was properly filed by the Society of the Sisters of Mercy, one of the defendants above named.

The defendant admits in said affidavit that there was due and owing to the plaintiff by the Shepherd Construction Company the sum of $3359.42, as averred by plaintiff, but avers that the principal contractor, Shepherd Construction Company, was duly adjudicated a bankrupt Sept. 10, 1928, in which proceedings the plaintiff filed its proof of claim in the sum of $21,959.42, which amount included the said sum of $3359.42, and that said plaintiff did receive a first and final dividend thereon, amounting to $149.09. If this is true, a deduction from the claim would be proper.

Defendant denies, however, that the sum of $3359.42, with interest from Sept. 5, 1928, is chargeable against the defendant’s property by reason of filed stipulations against liens.

Defendant avers that on or about July 16, 1928, it entered into a written contract with the Shepherd Construction Company, contractor, for the erection of a building in accordance with drawings and specifications, and that the contract contained, inter alia, a provision wherein it was stipulated that no lien should be filed against the building by the contractor or subcontractor, nor by any of the materialmen or workmen. It is not averred, however, that said contract was filed of record, nor does it appear that the same was done ; hence, said stipulation was ineffective in estopping lien of plaintiff contractor.

Defendant, however, further avers that it did enter into a separate written agreement or stipulation with the Shepherd Construction Company, defendant contractor, wherein it was agreed that no lien should be filed against the building referred to in plaintiff’s statement of claim by the contractor or by any subcontractor, or by any of the materialmen or workmen, or by any other person, for any labor or materials furnished for the erection of said building, the right to file such liens being expressly waived. This written agreement was filed and indexed in the judgment index on July 26, 1928, in the Profchonotary’s Office of Luzerne County, Pa., to No. 69, October Term, 1928, M. L. D.

Defendant avers that the building was commenced on the ground by the principal contractor, said Shepherd Construction Company, on or about July 17, 1928, and that the written contract between contractor and plaintiff subcontractor was entered into July 17, 1928. The materials thereunder are admitted by plaintiff to have been furnished July 24, 1928.

Since the contract between the Shepherd Construction Company and defendant owner is alleged in the affidavit of defense to have been entered into July 16, 1928, and the stipulation against liens filed on July 26th, it would defeat the subcontractor’s right to file a lien if said stipulation was in accordance with the law.

However, the date appearing in the stipulation agreement, a copy of which is attached to defendants' affidavit of defense, was July 9, 1928. Therefore, plaintiff contends it must have been executed on that date, and since it contains the clause: “Now, July 9, 1928, at the time of and immediately before the execution of the principal contract, and before any authority has been given by the said Sisters of Mercy Society............... it is agreed that no lien shall be filed against the building by the contractor or any subcontractor, nor by any of the materialmen,” etc., the principal contract must have been dated July 9, 1928, and, hence, the stipulation filed July 26th was filed too late. Plaintiff brings the question before the court on a rule for judgment for want of sufficient affidavit of defense.

Plaintiff contends that the affidavit of defense discloses the contract to have been entered into July 9th, and, hence, is insufficient to prevent judgment. The quotation aforesaid from the stipulation supports plaintiff’s contention. If the contract was entered into July 16th the affidavit of defense is effective and would prevent summary judgment. The date of the contract, a copy of which is attached to the affidavit of defense, is July 16th, and supports defendants’ contention.

The requirement of the law, section 1 of the Act of April 24, 1903, P. L. 297, amending section 15 of the Act of June 4, 1901, P. L. 431, is that such a stipulation shall be filed within ten days after the execution of the principal contract. We do not see how, therefore, summary judgment can be entered against the defendant owner as long as the stipulation against liens was filed on July 26th, and the affidavit of defense avers that the principal contract was catered into July 16th. At the trial it may develop that the plaintiff had the right to assume that July 9th was the date of the principal contract, but it may also develop that plaintiff had such notice as to place him on inquiry as to the date of the principal contract, since the statute provides for the filing within ten days thereafter: Cutter v. Pierson, 26 Pa. Superior Ct. 10.

Assuming, as we must, that the claimant is entitled to file its lien against the building, unless met by a valid waiver filed- of record, is there anything alleged in the affidavit of defense which requires submission to a jury? The validity of the stipulation against liens is the only question involved, and one question raised by the exceptions is, that it was not filed in time, and this depends upon a question of fact, which should be submitted to a jury. .

Another exception taken to the stipulation is, that it does not sufficiently describe the property or building against which the lien is filed. The description in the stipulation, standing by itself, is somewhat meager. It is as follows: “A three-story dormitory building on a lot of land, situate at Dallas, Pa.” Dallas is a country town of a small number of inhabitants, where the Sisters of Mercy have a college, whose property is well known, it being the only college there, and they being the only owners of realty in the town having a dormitory. While a contract containing a stipulation against a mechanic’s lien filed in the prothonotary’s office must contain such a description of the property as may be necessary for the purpose of identification, yet, whether in a particular instance the description meets the requirements of the statute is ordinarily a question for the jury: Cribbs v. McDowell, 48 Pa. Superior Ct. 39; Kyle v. Graham, 46 Pa. Superior Ct. 6, 11 (1911), affirming 11 Del. Co. Reps. 217. We do not feel that we should, as a matter of law, declare the description insufficient. Therefore, rule for judgment for want of sufficient affidavit of defense is denied.

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