author: Fleming, P. J.,

text:
    Commonwealth v. Schaick.

      John G. Love, District Attorney, for Commonwealth.

      N. B. Spangler and Ivan Walker, for defendant.
    July 15, 1930.
   Fleming, P. J.,

This matter is before us upon a motion in arrest of judgment and for a new trial, the defendant having been convicted of larceny of a four-pronged buck deer.

The testimony discloses that, on December 5, 1929, the defendant, with others, comprised a party engaged in the hunting of deer in the mountains near Aaronsburg, in this county. The prosecutor, with others, was also engaged, on the same day, in a like pursuit. The prosecutor testifies, supported by the testimony of other members of his party, that as he was standing at the side of the road at the foot of the mountain, the deer in question appeared, running or leaping, in a rapid manner, and that when the deer was about ten or twelve feet from him he shot the deer and the deer fell to the ground; that as the deer attempted to rise upon his front feet, he, the prosecutor, walked around the deer and shot it again, killing the deer; that he walked to where the deer was lying and as he was standing over it, preparing to disembowel it, the defendant came up to him, made claim to the deer and in an angry manner, mingled with profane remarks, pulled the deer from beneath the prosecutor and took possession of it.

The defendant’s testimony was that, prior to the firing of the first shot by the prosecutor, and further up the mountain, one of defendant’s party, who appeared and testified, had shot the deer in question, one shot taking away one of the deer’s hind legs, the second grazing its belly and the third lodging in its shoulder; that an immediate pursuit of the wounded deer was begun, its path being traceable by a trail of blood; that before prosecutor fired the first shot the deer was prostrate upon the ground, the first shot of the prosecutor missing the deer entirely and cutting away some grape vines above it; that while the deer was prostrate upon the ground, the prosecutor fired a second shot into it and then took possession of it.

Defendant in support of his motion assigns the following reasons, to wit:

“(1) Because the evidence on the part of the Commonwealth fails to show the' animus fwrandi, or intent to steal.
“ (2) Because the evidence on the part of the Commonwealth, as well as on the part of the defendant, shows that the deer had been wounded prior to the two shots fired, as testified to by Paul Stover, and there being no contradictory evidence to the effect that at least two if not three shots had been previously fired by O. J. Auman, and that this deer was wounded by him. These facts being uncontradicted, the fair and proper inference to be drawn from all the evidence in the case is that the defendant and his party of hunters laid claim to this deer under a right of property.
“ (3) Because where a person takes possession of property under an honest claim of right, believing at the time that he is the owner of it, even though this fact may not be correct, such person cannot be convicted of larceny.
“ (4) Because the deer having been claimed by the defendant and his party under a claim of ownership, the defendant could be guilty, at most, of a trespass only.
“(5) Because more explicit instructions should have been given to the jury to the effect that if the defendant and his party claimed this deer under a right of ownership, and if the jury believed that this was an honest claim, the defendant could not be convicted of the crime charged.
“(6) Because under all the evidence in the cause, the court erred in not directing a verdict for the defendant.”

As to the sixth and last reason assigned, we pause here long enough to say that the record plainly discloses that no request for binding instructions was made, either at the close of testimony or when, after completing our charge, we inquired of counsel whether there was anything further which they desired us to say to the jury. We are fully cognizant of our right and plain duty to direct an acquittal where the evidence shows that the offense is not made out (Krause v. Com., 93 Pa. 418; Pauli v. Com., 89 Pa. 432; Com. v. Phila. & Reading Ry. Co., 135 Pa. 256; Com. v. Ruddle, 142 Pa. 144; Com. v. Harris, 168 Pa. 619), but we are as fully cognizant that such instructions should not be given when there is sufficient evidence to go to the jury (Cathcart v. Com., 37 Pa. 108), and our reasons for so holding will be later expressed herein.

Further, we see no merit in the fifth reason assigned. We asked counsel, at the conclusion of our charge, if there was anything further which they desired us to say to the jury and received from defendant’s counsel, not such a request as is embodied in the fifth reason, but another and a different request, with which we unhesitatingly complied. We said, however, in the main body of our charge that “if you find, as a matter of fact, that this defendant was under the honest misapprehension that the right of possession to this deer was in Mr. Auman, even though you find that Stover fired the shot that ended the career of the deer, the defendant would be entitled to acquittal at your hands.” This is exactly what defendant claims should have been stated, in his fifth reason. This is likewise the contention of the third reason assigned and the jury were so instructed.

With the fourth reason we cannot agree. It is not the mere making claim of ownership which relieves the defendant of larceny — it is a claim made bona fide or honestly, even though in error, which thus operates to excuse him. We instructed the jury that “an honest misapprehension of the ownership of a particular article alleged to have been stolen would defeat the charge of larceny.”

Reasons one and two present the vital question to be decided in disposing of these motions, to wit: “Was the question of the existence or non-existence of the elements of the crime of larceny a question for the jury?” We are of the opinion that it was and shall forthwith state our reasons therefor.

The deer which is the subject of this discussion is a part of that class of animals known as ferie naturse, and belonged to no one until it was reduced to possession, either by its capture alive or by its killing. Doubt no longer exists as' to such: Act of May 14, 1929, P. L. 1720, amending section 1117 of the Game Code of May 24, 1923, P. L. 359. To acquire such property right in the carcass of a deer, it must have been “lawfully . . . killed.” That all of the parties — both those in the party of the prosecutor and those in the party of the defendant — were lawfully engaged in deer hunting is not denied. But who killed the deer? The prosecutor contends it was the two shots which he alleges he fired which extinguished life. The defendant contends that, notwithstanding the admitted fact that the deer was moving rapidly at a distance of 500 yards away from his party, it was the shot of O. J. Auman- which inflicted the mortal wound. Surely such is a question of fact and an important one to be considered with other facts in leading to the determination of the existence or nonexistence of animus furamdi on the part of the defendant. We told the jury: “If you find that Mr. Auman fired the fatal shot, then, beyond question, the ownership of the deer was in Mr. Auman, and if Mr. Schaick, the defendant, took it into his possession on behalf of the real owner, that would not constitute the crime of larceny. On the other hand, if you find it was the shot fired by Mr. -Stover that ended the career of this animal, and that Mr. Schaick took it without claim of right, without an honest misapprehension of his ownership, and you are satisfied of that beyond a reasonable doubt, of which we will speak later, then he would be guilty of larceny, and we say to you that an honest misapprehension as to the ownership of a particular article alleged to have been stolen would defeat the charge of larceny.”

Further, at the specific request of counsel for the defendant, we said: “Members of the jury, what we intended to say, and what we say to you now, is that if you find, as a fact, that there were two shots fired at this deer, taking effect in the body of the deer, either of which would have mortally wounded the deer, then your further duty would be to determine who fired the first of those mortal shots. It is the contention of the defendant in this case that the shot fired by Mr. Auman which penetrated the back of the deer and broke several of his ribs was the mortal wound which ended the career of this deer. If that be true, as we have said to you before, the right to the possession of the deer would be in the person who fired the fatal shot.”

The jury heard all the testimony as to the manner in which the several shots were fired; they had an opportunity to observe the several witnesses while testifying and to duly weigh their evidence; in addition, they were accorded the privilege of inspecting the hide of the deer in question and thus observing the location of the several bullet penetrations therein. There was a plain issue of fact as to who had killed the deer, and the jury found that it was the prosecutor and not the defendant who had done so, and, as that finding is not contrary to the evidence, we have no jurisdiction to set aside such a finding.

This finding as to who was responsible for mortally wounding the deer, weighed in the light of the surrounding circumstances, as disclosed by the evidence, clearly supports the finding by the jury of a felonious intent necessary to support the charge of larceny. The manner in which the deer was shot, assuming defendant’s testimony to be true, furnished an opportunity for the jury to judge the bona, fide nature of the alleged claim of ownership. This fact, with the manner and demeanor of the defendant upon approaching the prosecutor, then in possession of the deer, the defendant’s testimony that he had not claimed ownership in the deer but that he (meaning the prosecutor) would “never take that deer unless you are a better man than I am,” the profane language used to the prosecutor, the exhibition of his hunting knife, the forceful pulling away of the deer from beneath the prosecutor, together with other evidences of a desire to settle the dispute in a belligerent rather than a peaceful manner, gave ample grounds to the jury to find the felonious intent necessary to support a conviction.

In Com. v. Eichelberger, 119 Pa. 254, 277, where the defendant was charged with larceny and it was contended that the felonious intent necessary to support the conclusion did not appear, Justice Paxson said:

“In this case it is claimed that there was no larceny because there was no felonious intent. It was the especial province of the jury to dispose of this question, and. they have settled it against the defendant. It was fairly submitted to them as a question of fact, with the instruction substantially, that they must be satisfied from the evidence, beyond a reasonable doubt, that the defendant took the check feloniously, with intent to convert it to his own use, or'that he obtained it by a trick or artifice, with a like felonious intent at the time he obtained it. Shall we say the jury were wrong, and reverse their finding? If there were no evidence of any felonious intent, or if the evidence greatly preponderated against such intent, we should feel bound to set aside this verdict. While we seek to administer the law impartially, we will not be astute in opening avenues of escape for criminals. We cannot say that there was not sufficient evidence of the felonious intent to sustain this verdict. . . . The jury having found the animus furandi, and, in the opinion of the court, upon sufficient evidence, our judgment is, that the offence committed by the defendant in this case was larceny.”

Issues of fact- covering the question as to who had mortally wounded the deer in question, and as to whether the claim of ownership asserted by the defendant was an honest misapprehension or not, clearly convince us that the question of the existence or nonexistence of a felonious intent in the instant case was “the especial province of the jury.” After a careful reading and re-reading of our charge to the jury, we are of the opinion that, if such leans in any way, it is in defendant’s favor. The jury has decided against the defendant, and we are of the opinion that there is sufficient evidence to support such a finding. The laws relating to property rights extend to the unpopulated forests as well as to the cities. When disputes — honest disputes — arise therein, peaceable and orderly methods must prevail. No hunter, under any circumstances, is permitted to become a law unto himself. The question of the animus furandi was fairly submitted to the jury as a question of fact, with the instruction that they must be convinced from .the evidence, beyond a reasonable doubt, that the defendant took the deer in question without an honest misapprehension of his right thereto. We are without right to say that the jury was wrong. There was evidence, as we have shown, to support such finding. The evidence did not preponderate against such finding. The jury having found the animus fwrandi, and, in our opinion, upon sufficient evidence, our judgment is that the offense committed by the defendant in this case was larceny.

And now, July 15, 1930, motion in arrest of judgment and for new trial is dismissed and defendant is directed to appear in this court on Monday, August 4, 1930, at 10 A. M., for sentence.

Prom S. D. Gettig, Bellefonte, Pa.


source: Caselaw Access Project

author: Potter, P. J.,

license: Public Domain

text:
    Heiser et al. v. Fisher et ux.

      A. F. Gilbert, /or plaintiffs.

      Jay G. Weiser and Earl M. Roush, for defendant.
    July 30, 1930.
   Potter, P. J.,

On or about October 7, 1927, the plaintiffs brought suit against the defendants before John H. Willis, Esq., a justice of the peace at Middleburg, Snyder County, Pennsylvania, for the recovery of the sum of $264.42. This bill was originally $299.42, on which Mrs. George V. Fisher had a credit of $35, thus leaving a balance due of $264.42. It seems at the hearing of the case before Justice Willis, it appeared that Mrs. George V. Fisher was not served with the summons, so that, she not being in court, judgment was not given against her, she having been eliminated from the proceedings for that reason, but the justice gave judgment against the husband for the sum stated, viz., $264.42, this sum being for lumber furnished by the plaintiffs to the defendants to be used in the repair of the dwelling occupied by them, the title to which was in the wife.

There appears to have been nothing done on the judgment obtained before Justice Willis. On April 1, 1930, the plaintiffs again brought suit against these same defendants before Justice Bulick, of Selinsgrove, Snyder County, Pennsylvania, for the recovery of the same debt. And on April 9, 1930, judgment was by this justice rendered against the wife for the sum of $264.42. No judgment was rendered against the husband in this suit for the reason that in 1927, before Justice Willis, judgment had already been pronounced against him. It is to be noted that now we have judgment against the husband, rendered by Justice Willis in 1927, and judgment against the wife, rendered by Justice Buliek in 1930.

The wife has appealed her case to this court from the judgment of Justice Buliek. The plaintiffs have filed their statement. Mrs. George V. Fisher has filed her affidavit of defense in the way of a statutory demurrer, raising questions of law, the principal one being that inasmuch as Justice Willis rendered judgment in 1927 against the husband, no judgment can be recovered in a second suit before Justice Buliek. Or, in other words, the plea now is former recovery. In our judgment, this plea is well taken so far as concerns this husband, but we fail to see how it would be available for the wife, no former judgment having been rendered against her. From remarks of counsel for the plaintiff at the argument, we were led to believe it to be the contention that the judgment entered before Justice Willis, against the husband, had been discontinued, wherefore the second suit against him and the wife before Justice Buliek. A suit may be discontinued before judgment, but not after. It must then be satisfied in order to get it off the records.

The case of Butcher v. South et ux., 10 Phila. 104, seems to be greatly relied upon by counsel for the appellant to sustain their contention that, inasmuch as judgment had been rendered against the husband by Justice Willis in 1927, the plaintiffs are estopped from any proceeding against the wife in 1930 before Justice Buliek. In the case cited suit had been instituted against the husband and judgment given. • Some time after, a second suit was brought against both husband and wife, and on appeal it was held that the plea of former recovery was available for both. From the facts given in the ease as reported, we are led to the belief that this was the husband’s debt, with no obligation of any kind resting upon the wife to pay her husband’s debt. The facts in the case at bar are very dissimilar. The original bargain for the lumber was made by the husband, George V. Fisher, in Perry Township, at the home of the plaintiffs. If this was all, we could dispose of the contention with a few lines. But when the plaintiffs went to the home of the defendants with the first load of lumber, they asked who owned the house. The wife replied that she did, that the lumber was to be used to repair her house and that she would pay for it. The lumber was then, on the strength of that promise, delivered. It was not paid for. Then later the wife wrote the plaintiffs the following letter:

“Northumberland, Pa.
“Mr. H. J. Heiser, “Aug. 26th, 1924.
“Dear Sir:
“My Husband bought some lumber some time ago from you people, and if he does not pay the balance, please let me know a few weeks ahead of the date it is due and I’ll try and make settlement.
“I have my Nash Six Touring Car for sale and if I sell it will make settlement at once, if not, will borrow it when it is due. Should you know of any one on the market for a car, you can direct them here.
“Hoping to hear from you in regard to the lumber
“I remain
“Mrs. Geo. V. Fisher
“Northumberland R. F. D. 2.”

This lumber was bought and delivered prior to the date of this letter, viz., on July 31, 1924. We have two promises made by this wife to pay for it, one orally made July 31, 1924, when the first load was delivered, and the second on August 26, 1924, by letter. The oral promise of July 31, 1924, does not fall within the statute of frauds and perjuries because she had an interest of her own in the transaction and made it her own to serve a purpose of her own, viz., to repair her own separate estate: Duncan v. Shaw, 17 Pa. Superior Ct. 225; Baxter v. Hurlburt, 15 Pa. Superior Ct. 541; Crawford v. Pyle, 190 Pa. 263, and many other citations. The letter of August 26, 1924, being in writing, we think is sufficient even if the statute of frauds and perjuries did apply.

We think the case of Butcher v. South et ux., supra, is not applicable to the case at bar because the facts are not the same by any means.

There is also complaint that the statement of claim filed by the plaintiffs is not sufficient, in that no copy of the plaintiffs’ book entries is contained in it. This position we think is well taken. This claim is founded on a charge for lumber furnished by the plaintiffs to the defendants. There should be a book entry of this charge, and a copy of this book entry should be attached to the plaintiff’s statement of claim: section five of the Practice Act of 1915, P. L. 483.

To summarize, we have a lot of lumber bought on July 31, 1924, by this husband from the plaintiffs to be used in repairing the house of Mrs. George Y. Fisher, and it was so used. The same day she promised to pay for it. On August 26, 1924, she made a promise in writing to pay for it, she having an interest in it for the use of her separate estate. Judgment had been recovered against the husband in 1927 before Justice Willis for the balance due. In 1930, judgment was recovered against the wife for the amount of the bill before Justice Bulick. When she is the owner of the property, and the lumber went into the improvement of it, and she had promised to pay for it orally and in writing, we see no legal reason why she cannot be held to pay the bill. It is also to be noted that at neither of the hearings had before the two justices did either of these two defendants offer a word of testimony.

And now, to wit, July 30, 1930, the specifications set up in the statutory demurrer are dismissed. The plaintiffs are' given fifteen days from this date to file an amendment to their statement of claim containing a copy of the book entries of their claim against the defendants, as herein indicated.


author: Clark, P. J.,

text:
    Dumontier’s Estate.
    J. M. Sherwin and W. S. Carroll, for administrator. .

      W. Pitt Gifford, for alleged heirs; Sisson & Sisson, for escheator.

      Isaac J. Silin, for claimant; Enoch C. Filer, for surety.

      September 15, 1930.
   Clark, P. J.,

Exceptions were filed to the action of the court in directing that the controversy of whether there was an escheat or not be certified to the common pleas.

The jurisdiction of the orphans’ court in escheat proceedings was conferred by the Act of May 2, 1889, P. L. 66, and not by any prior legislation.

The orphans’ court does not have exclusive jurisdiction; proceedings may be carried on in that court, the several common pleas courts, in some instances •instituted in the Common Pleas of Dauphin County and in the Supreme Court, and when “instituted in the Supreme Court, such issue or issues shall be certified to, and shall be tried by, the court of common pleas of such county as the Supreme Court shall designate.”

The act cited above provides that “Whenever any proceedings in escheat shall have been instituted or shall be pending in any court of this Commonwealth, and there shall be any disputed fact or facts touching said escheat, then and in that case, the said court shall, upon application of the escheator, or any other person interested or claiming to be interested in the said proceedings, prior to the filing of a finding or adjudication therein, frame an issue or issues to determine said disputed question or questions of facts, which said issue or issues shall be tried in the court of common pleas of the same county in which the proceedings in escheat shall have been instituted.”

The proceedings in escheat were instituted in the Orphans’ Court of Erie County, Pennsylvania. There are disputed facts touching the said escheat. There has not been any filing of a finding or adjudication thereon. A person interested and claiming to be interested in the escheat proceedings has made application for an issue or issues to be framed for trial in the common pleas; he holds a judgment against the estate.

The act provides that “said issues shall be tried in the court of common pleas of the same county in which the proceedings in escheat shall have been instituted.”

In the instant case, all the essentials exist for the certification of the question of the escheat to the Common Pleas of Erie County, Pennsylvania.

In the argument on the exceptions counsel did not cite any judicial decisions bearing upon the duty of the court arising from the directions of the act relating to the framing of an issue or a certification to the common pleas.

Presumably, the language of the act is so plain that there was not any doubt concerning its interpretation, and any question for the court’s consideration was never raised.

We regard the provisions of the act as mandatory, have followed them and must continue to do so. The act must be strictly complied with, so that the final adjudication may be valid. The Supreme Court has said that the act requires certain action in the common pleas relative to escheat.

“The orphans’ court shall have power to send an issue to the court of common pleas of the same county, for the trial of facts before a jury, whenever they shall deem it expedient so to do:” Act of June 7, 1917, P. L. 363, section 21(a).

They can do so of their own volition and must in a certain class of cases: Cross’s Estate, 278 Pa. 170, 179.

In the case under consideration there was a request for an issue under the provisions of the Act of May 2, 1889, P. L. 66.

And now, to wit, September 15, 1930, the exceptions are dismissed and the issue is directed to be framed and filed as of this date.

From Otto Herfcst, Erie, Pa.


author: Van Dusen, J.,

text:
    Elverson’s Estate.

      Philip R. Hepburn and Charles J. Hepburn, for administrator d. b. ji. c. t. a. and Eleanor Elverson Patenotre.

      Allen Hunter White, R. Sturgis Ingersoll, Boyd Lee Spahr, Ellis Ames Ballard and Robert von Moschzisker, for John Green.
    June 5, 1931.
   Van Dusen, J.,

James Elverson’s will gave $500,000 in trust for his wife, Eleanore Mayo Elverson, for life, with remainder to his sister, Eleanor Elverson Patenotre, and gave the residue to his wife and appointed her executrix.

Eleanore Mayo Elverson died three months later; and her will, after certain legacies, gave the residue to John Green and appointed the Liberty Tijie and Trust Company executor. Herbert E. Blackman was appointed administrator d. b. n. c. t. a. of James Elverson’s estate. Because of these relations, the estates of husband and wife were administered more or less as one, and it is Green who will ultimately, after payment of Mrs. Elverson’s legacies, get the benefit, if any, of the residue of the husband’s estate. Among counsel appeared our former Chief Justice, whose forcible argument, directed to his client’s strongest points, was a great pleasure to us.

Exceptions of John Green.

1. James Elverson had a margin account at a broker’s and a collateral loan at a bank. His debts thus secured were large, and the securities were stocks of a speculative character. Whatever the nature of the stocks, it was the duty of the administrator d. b. n. c. t. a. at least to sell enough securities to pay the debts, expenses and taxes and provide for the legacies at once, and to take no chances on the market of the future. That he did not do so was due to the policy of Mrs. Elverson, his predecessor, in her lifetime, and later the requests of Green, her residuary legatee. The findings of the Auditing Judge to this effect are amply supported by the evidence and are approved by us. We shall, therefore, pass over intermediate events until we come to September 16, 1929.

On that day, the administrator informed Green that testator’s sister insisted on the sale of stocks so that her legacy might surely be provided for; and also that the creditors might insist at any moment on the sale of securities to pay them. Green then gave written authority and direction to sell the principal stocks at prices substantially below the market at that time, Hudson Motors at 78 and International Combustion at 65. At the same time, as the Auditing Judge in substance finds, he orally stipulated that this authority should not be used unless it was necessary to comply with demands of the creditors, and that otherwise sales, should only be made at 85 for Hudson Motors and 72 for Combustion, which was then about the market price. To this we add, with the consent of the Auditing Judge, a finding that Green further directed that the sales should be in small lots, that he said “the less you sell, the better I like it,” and that Edwin Gilfillan, an employee in the office of the attorneys for the administrator, was selected by the administrator, with the concurrence of Green, to direct the details of the sales.

The written authority would protect the administrator who acted on it, but its existence would not preclude the existence of other directions. Of course, the question of credibility arises, but that is for the Auditing Judge. The findings are made on the basis of the testimony of four witnesses, three of whom had no money interest, as against the testimony of Green alone, and they are supported by the immediate acts of Gilfillan and by the subsequent acts of Green.

Gilfillan on the two following days “fed out” the stock in small lots and got slightly better than the prices orally stipulated. On those days the volume of sales on the exchange was large. On the next day the volume of sales fell off somewhat, though there were sales at the prices in question. No stock was offered by the estate on this day or thereafter; and presently the price fell below the orally stipulated prices and never came back, and the stock was eventually sold at the prices of the October panic. Nevertheless, as we further find with the concurrence of the Auditing Judge, when the result of the September sales and the failure to make further sales was reported to Green, he expressed approval. He now seeks a surcharge because of failure to make sales of all stocks at the market prices of September 16 to 19, 1929.

Evidence was given by experienced brokers, and not contradicted, that all the stock could have been sold at the orally stipulated prices on the three days before the market broke. But it was a question of judgment as to how fast the stock was to be offered. Months had passed with very little done; no one then knew that the crash was about to come. Gilfillan (who was selected, with Green’s assent, as the man to exercise the judgment, though it does not follow that he was Green’s agent in the strict sense), says that he was afraid the market would not absorb the stock any faster when “the pool” discovered where it was coming from. We cannot say as a matter of law that it was negligence under the circumstances not to offer all the stock in those two or three days; especially when Green’s directions above referred to are considered. Green’s exceptions to the refusal of the Auditing Judge to surcharge the accountant for failure to make further sales are dismissed. . . . The foregoing discussion applies both to the stocks which belonged to the husband and to those which belonged to the wife, so far as alleged loss is concerned. The ownership of the latter is the subject of further exceptions.

2. Objections to all commissions to the administrator are based principally on his alleged negligence in selling securities; and as that charge fails, the objections to the commissions — reduced by the Auditing Judge to a reasonable amount — fall too. Green’s exceptions &, 10 and 11 are dismissed.

Exceptions of the administrator d.b.n. c. t. a. and Eleanor Elverson Patenotre.

These exceptions are identical. Some of them (as hereafter noted) are properly taken by Madame Patenotre alone, as she is the person affected, and not by the administrator, who is only a stakeholder.

1. At the time of testator’s death, a bank held his collateral note secured by 4000 shares of International Combustion stock, the certificates for which were in the name of Eleanore Mayo Elverson, his wife, with transfer in blank, and 4500 shares of Hudson Motors in a name not disclosed. These shares were sold and the estate of Mrs. Elverson (or Green acting in the name of her executor) claims the proceeds on the ground of ownership.

As to Combustion stock, we agree with the Auditing Judge in allowing the claim because the certificate in the name' of Mrs. Elverson was prima faoie evidence of ownership. That it was found, not in the husband’s possession, but pledged for his debt and assigned in blank is no evidence of transfer to the husband. The papers put the stock at the disposal of the pledgee, but do not show a delivery to the husband. Moreover, the confidential relation between husband and wife is such — a relation in which the husband is naturally the dominant member in most cases and which arises from a trait of human nature which all the married women’s acts cannot alter — that the burden is on the husband to justify a transfer of property from his wife to himself; and in the absence of evidence that it is for a consideration or a gift of full free will, it is ineffective: Darlington’s Appeal, 86 Pa. 512; Wormley’s Estate, 137 Pa. 101; Loeffler’s Estate, 277 Pa. 317.

As to the Hudson stock, the sole evidence in support of the claim is found in writings of Blackman, the administrator. One of these writings is a cablegram to Madame Patenotre’s son in which he states that certain shares of this stock had been bought for Mrs. Elverson’s account some months before her husband’s death, of which 2500 had been deposited at this bank as collateral for her husband’s note. The examination of Blackman as a witness referred only to the Combustion stock. The copy of the cablegram was produced by him at a later hearing among other communications, on call and over objection, for the light they might throw on the sale of the various stocks, and no claim of ownership of this item was then pending. The Auditing Judge thought that Blackman was bound by this admission. Assuming that the reference was to the stock in question, so he was. But the admissions of an administrator do not bind the parties: Orr’s Appeal, 7 W. N. C. 126; Rowland v. Clark, 250 Pa. 192; and we disagree with the Auditing Judge in concluding that Blackman was the agent or “special representative” of Madame Patenotre. She is now the party in interest, for the residue of the estate has disappeared and her legacy is impaired.

Blackman was vice-president of the “Philadelphia Inquirer,” of which she was principal owner, and her representative there. He was the administrator, and she as a legatee (through her son) had asked him for a report on the condition and assets of the estate. But this is not an agency to act for her in dealing with third persons with regard to the estate and its assets. It was an agency to give her information (if it was an agency at all) and not an agency to give others information as to the ownership of what purported to be assets of the estate. Blackman did not attempt to act beyond the request. There is no evidence that he communicated this statement to Green or anyone else or that Green or anyone else in interest ever acted on the faith of it so as to create an estoppel. The approval of Mrs. Elverson’s executors, known as Exhibit 1-68, of the sale of this Hudson and Combustion stock refers only to “shares registered in the name of Eleanore Mayo Elverson.” These executors had no authority at all to bind Madame Patenotre by an admission.

Blackman also wrote Mrs. Elverson’s executors a letter, stating that “securities belonging to said decedent” were held by the bank as security for her husband’s note. This is ambiguous, as it may refer to the Combustion stock alone; and the same objection applies to this letter as an admission binding on Madame Patenotre.

Exceptions Nos. 1 to 9, inclusive, of Eleanor Elverson Patenotre are sustained, and her exceptions Nos. 10, 11, 12 and 13 are dismissed. Exceptions Nos. 1 to 13, inclusive, of Herbert E. Blackman, administrator d. b. n. o. t. a., are dismissed because he has no standing.

2. Exceptions Nos. 14 and 15 of Madame Patenotre and Blackman, administrator, relate to the ruling of the Auditing Judge that an agreement of February 26, 1930, was not binding on John Green. These exceptions were withdrawn.

3. Exception No. 16 of Madame Patenotre relates to the refusal of the Auditing Judge to set off against the admitted claims of the estate of Mrs. Elverson for advancements of $196,742.25 made to the estate of James Elverson, the sum of $11,314.59 distributed by her during the short time she was executrix to herself individually. This matter is not discussed by the Auditing Judge; but in his adjudication of the account of Mrs. Elverson as executrix of her husband’s will (which was also before him) he deducted this sum from the amount awarded to Blackman as administrator. This seems to us incorrect, as there is no distribution for Mrs. Elverson as residuary legatee under her husband’s will until it is known, on the audit of the administrator’s account, that there is a residue. No distribution at all should be made at the audit of her account as executrix, because administration was not then finished. The exceptions taken to this action in the adjudication of her account will be sustained. The result is that the sum which will be awarded to Blackman as administrator d. b. n. o. t. a. exceeds by $11,314.59 what he actually got, and there is a deficit which he will be entitled to set off against the award of $196,-742.25. This is in the nature of a set-off of one judgment against another, and as it appears clear that the deficit exists, exception No. 16 of Blackman, administrator (he has standing for this purpose, as the sum of $11,314.59 is due him as administrator), is sustained, as is also exception No. 16 of Madame Patenotre.

4. The account claimed credit in distribution for $45,475.02, “amounts distributed for the account of Estate of Eleanore Mayo Elverson,” of which part was paid to John Green and part to others. The Auditing Judge regarded this as a distribution to Green or for his account, disallowed it as distribution here, and directed that a claim be presented for this sum against his distributive share of Mrs. Elverson’s estate. From the language of the account and the statements in the brief of opposing counsel, we assume that the sums were paid out at the request of Mrs. Elverson’s executor and that not all of them were for Green personally. Whether they were proper payments is not our concern here, but is the responsibility of the executor when its accounts are reviewed. The whole is a proper set-off against the item of $196,742.25 disbursed or advanced by Mrs. Elverson’s executor at the request of James Elverson’s administrator. Exceptions Nos. 17 and 18 of Blackman, administrator, and Madame Patenotre are sustained.

An order absolutely confirming the adjudication as herein modified will be entered by the clerk after fifteen days from this date, and leave is granted to John Green within that time to apply to the Auditing Judge for a rehearing and taking of further testimony with regard to the ownership of the Hudson Motors stock, in which case confirmation will be suspended and the account will be recommitted to the Auditing Judge for that purpose only on his order..


author: Stearne, J.,

text:
    Clark’s Estate.

      Joseph A. Culbert, for exceptant; Keller H. Gilbert, contra.
    May 1, 1931.
   Stearne, J.,

Exceptant performed domestic services for decedent and was compensated by a modest weekly wage. An increase in wages was sought, but testatrix told exceptant that if she would continue to serve at the existing wage testatrix would, by will, give her the house in which they resided. Exceptant continued to serve and was devised the premises in question. The register assessed a transfer inheritance tax upon said devise, and, on appeal, was sustained by the Hearing Judge.

The question involved is whether, under the facts, the devise was in liquidation of a proven debt. If it was, no tax is assessable.

Judge Penrose, in Quin’s Estate, 13 Phila. 340, very clearly and concisely stated the general rule in the following language: “A gift by a testator to a creditor and in satisfaction of his claim, of the precise sum due with interest, falls neither within the letter or spirit of these acts [i. e., collateral inheritance tax]. The right of such creditor is not dependent upon the bounty of the testator. What is paid to him forms no part of the ‘clear value’ of the estate, nor can it be said to pass to him under the will, any more than in case of a general testamentary direction to pay debts.”

But as Judge Penrose later pointed out in Gibbon’s Estate, 16 Phila. 218, quoting Quin’s Estate, supra: “But this principle cannot apply where ... no claim such as could have been enforced by suit exists. . . .”

Where a legacy was given for the faithful performance of services, where there was no legal liability on the part of the testator therefor, a tax was held to be due: Walters’s Estate, 8 Pa. C. C. 447.

To sustain a claim for services under an alleged contract of devisement, the proof must be clear and convincing, both as to the terms of the contract and as to performance by the claimant: 23 P. & L. Dig. Dec., Col. 41346. Thus, in Wiley’s Estate, 11 Dist. R. 416, the promise was that if the nephew would come to live with decedent, the claimant would not receive “more wages,” but that when decedent died the property would belong to claimant. It was held that the proofs were insufficient upon which to base a claim.

To sustain a claim against a decedent’s estate, the proofs must be as definite and precise as is required to recover a debt in an action at law: Hirst’s Estate, 274 Pa. 286; Shelton’s Estate, 95 Pa. Superior Ct. 363.

Exceptant has produced no evidence which would have sustained a valid claim against a decedent’s estate. She has not proved what services were actually performed nor given any evidence concerning the value of any. alleged service. In short, the record is barren of that precision and definiteness required in the proof of claims against the estates of decedents.

Exceptant having failed to sustain by a sufficiency of proof that the devise to her of the real estate in question was in satisfaction of a legal and provable debt in an amount equal to the value of the devised real estate and due by the testatrix to claimant, the exceptions are dismissed and the assessment of tax is affirmed.


author: Taulane, J.,

text:
    Katakura & Co., Ltd., v. Vogue Silk Hosiery Company.

      Dickson, Beitler & McCouch, for plaintiff.

      George J. Edwards, Jr., for defendant.
    May 25, 1931.
   Taulane, J.,

The plaintiff has presented its petition, alleging, in substance, as follows:

That plaintiff is a corporation organized under the laws of the Kingdom of Japan and maintains an office for the transaction of business in New York City;

That defendant is a corporation organized under the laws of the State of Pennsylvania with its principal office in the City of Philadelphia;

That the plaintiff and defendant entered into a certain agreement in writing whereby the plaintiff agreed to sell and the defendant agreed to purchase certain merchandise known as Japan filature at the price and upon the terms and conditions in said agreement set forth, and among said conditions are the following:

“All the terms and provisions of the Raw Silk Rules of the Silk Association of America, approved or adopted by its Board of Managers are expressly understood and agreed to be a part of this contract the same as if they were herein set forth in full.
“Every dispute, of whatever character, arising out of this contract must be settled by arbitration to be conducted in the manner provided by the by-laws, rules and regulations of said Association, governing arbitration;”

That pursuant to said agreement the plaintiff delivered to the defendant part of the merchandise therein described, which merchandise the defendant received and paid for, but thereafter the defendant refused to receive and pay for the balance of said merchandise, whereby a controversy has arisen and now exists between the plaintiff and the defendant under said agreement;

That the plaintiff has requested the defendant to join with it in referring the controversies and disputes between them under said agreement to arbitration in accordance with the by-laws, rules and regulations of the Silk Association of America, Inc., as provided in their said agreement, and also in accordance with the laws of Pennsylvania, but the defendant has refused and still refuses to submit the matter in controversy to arbitration in accordance with said agreement.

Plaintiff prayed for a rule on the defendant to show cause why the defendant should not be compelled to submit to arbitration the matters in dispute between them in the manner provided in their agreement and for such further relief as might be fit and proper in the premises.

The court granted the rule to show cause prayed for by the plaintiff, but the defendant, instead of answering the petition, filed a motion attacking the jurisdiction of the court to grant relief either under the Arbitration Act of April 25, 1927, P. L. 381, or by compelling the defendant to join in arbitration before the Silk Association of America, Inc., in New York.

An examination of the raw silk rules of the Silk Association of America, Inc., and the rules and regulations governing the conduct of arbitrations by said silk association satisfies us that they contemplate the holding of the arbitration proceedings in New York City under and subject to the laws of the State of New York regulating arbitration. If this be so, it is quite clear that the arbitration provided for in the agreement between the plaintiff and the defendant could not be conducted under or subject to our Arbitration Act of 1927, because that act necessarily only regulates and controls the procedure in arbitration conducted in Pennsylvania.

How could this court issue any order which would bind or control the parties or the arbitrators in an arbitration proceeding conducted in New York under the laws of New York. The powers of this court over arbitration are limited to proceedings instituted or conducted within our territorial jurisdiction.

While the question we are discussing seems to us free of doubt, yet a somewhat similar question arose in the case of The Silverbrook, 18 F. (2d) 144, 147, where the court refused to entertain a petition under the Federal Arbitration Act of February 12, 1925, 43 Stat. at L. 883, where the contract provided for arbitration in London. The court said:

“This court cannot direct and otherwise supervise and conclude an arbitration to be held in London, or assume to vacate, modify, or correct any award that might be made there, or, indeed, anywhere, except within this district.”

If the object of the plaintiff’s petition be to compel the defendant to join in arbitration under our Arbitration Act of 1927, we agree with the defendant that we are without authority to compel it to do so, and the plaintiff's petition should be dismissed for want of jurisdiction.

The prayer of the plaintiff’s petition, as we view it, is to compel the defendant to arbitrate before the Silk Association of America, Inc., as the defendant agreed to do in its agreement with the plaintiff. As the defendant entered into the agreement freely and voluntarily, without fraud or coercion, the defendant has not alleged or suggested any satisfactory or convincing reason why it should not be obliged to fulfill its agreement.

For reasons which are not persuasive today, the courts in the past turned their faces against arbitration agreements and refused to enforce them at law or specifically enforce them in equity. The reasons of policy for such an attitude are best expressed by Story, J., in his classical opinion of Tobey v. The County of Bristol, 3 Story, 800.

Whatever may have been the policy of the courts in the past, Pennsylvania has now adopted the Uniform Arbitration Act of April 25, 1927, P. L. 381, which is today the law of most of the states.

Section one of said act provides:

“A provision in any written contract, except a contract for personal services, to settle by arbitration a controversy thereafter arising out of such contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

An agreement to arbitrate is now “valid, irrevocable and enforceable.” This is a clear and unequivocal declaration of the policy of this state as to the validity of arbitration agreements. This declaration is complete in itself and independent of the other provisions of the act regulating matters of procedure. The defendant’s agreement to arbitrate is, therefore, valid, irrevocable and enforceable.

We have pointed out that the defendant’s agreement cannot be enforced in Pennsylvania, and if it cannot be enforced in New York, it cannot be enforced anywhere because the agreement limits arbitration in New York before the Silk Association of America, Inc.

The situation which confronts the parties in this case as to jurisdiction is a very common one and will be of frequent occurrence where arbitration agreements are entered into between parties, and particularly corporations, of different states.

It is the present policy of our courts to encourage and enforce arbitration agreements: Bashford v. West Miami Land Co., 295 Pa. 560; Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109; Berkovitz v. Arbib, 230 N. Y. 261.

We see no reason why the defendant, in accordance with its agreement, should not be compelled to go to New York and join with the plaintiff in arbitration of their differences before the Silk Association of America, Inc. This court has jurisdiction of the parties and jurisdiction of the subject matter, and we have full authority to enter such a decree. Such a decree amounts to no more than a decree for specific performance, and is in no way distinguishable from the ordinary proceeding for specific performance, except that the defendant is ordered to go without the jurisdiction to perform his contract.

Since the celebrated case of Penn v. Lord Baltimore, 1 Ves. Sr. 444, courts of equity have assumed jurisdiction to compel parties within their jurisdiction to do acts affecting lands and other property without the jurisdiction of the court, and it is a slight extension of that principle to compel the defendant to go without the state if it is necessary to do justice between the parties. This view of the powers of a court of equity is recognized in the recent restatement of the law of conflict of laws by the American Institute (March 10, 1930, page 138, § 101), where it is stated:

“A state can exercise through its courts jurisdiction to order a person subject to its jurisdiction to institute proceedings in a court or other governmental agency in another state, or to defend or appear in such proceedings.”

Similar views are expressed in 24 Columbia Law Review, 204, and in 14 Minnesota Law Review, 494, 529, it is said:

“Where the relief sought calls for the doing of some act in another state, where the court has personal jurisdiction over the parties, it is not a question of jurisdiction at all, but is merely a question of expediency as to whether or not in the particular case the court will exercise the power which is discretionary in all courts of equity.”

See Goodrich on Conflict of Laws, 151-156, where the subject is discussed and the authorities cited. See, also, 26 Harvard Law Review, 283, and 35 Harvard Law Review, 610.

It is no answer to our conclusion to say that our courts have no power to direct or control arbitration in New York. In ordering the defendant to appear in the New York arbitration proceedings, we are doing nothing more than directing the defendant to appear and submit itself to the jurisdiction of the New York proceeding. When the defendant has done this, the object of our order will have been accomplished, ii is immaterial whether the defendant further participates in the arbitration or not.

Neither this court nor the plaintiff will be in any way interested whether the defendant, after submitting itself to jurisdiction in New York, proceeds further in the arbitration. Once the defendant submits itself to jurisdiction in New York, any order or judgment thereafter entered against it would be binding on the defendant in Pennsylvania. The only purpose of compelling the defendant to appear and submit itself to arbitration in New York is to enable the plaintiff to proceed with the arbitration in a manner that will be binding on the defendant. If we cannot compel the defendant to submit itself to the jurisdiction of the New York arbitration tribunal, the plaintiff cannot enforce the defendant’s agreement to arbitrate.

It is true that the Appellate Division of the Supreme Court of New York in Re Inter-Ocean Food Products, Inc., 206 App. Div. 426, refused to order a citizen of New York to go into a foreign jurisdiction to arbitrate in accordance with his agreement. The reasoning of the Appellate Division is unsatisfactory and unconvincing, and we thoroughly disagree with its conclusions. Our conclusion, therefore, is that we have jurisdiction to compel the defendant to appear before the Silk Association of America, Inc., to arbitrate in accordance with its agreement.

The defendant has suggested a number of constitutional objections to the enforcement of arbitration statutes, but the answers to most of them are so obvious that we need not discuss them: Berkovitz v. Arbib, 230 N. Y. 261; Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109.

There is, however, a constitutional objection raised to our Arbitration Act of 1927 which we should notice. It-will be observed that the act excludes “a contract for personal services.” We are quite clear that this exception does not render the act unconstitutional. It is a little late to question the validity of classification of legislation based-on labor or personal services.

In International Harvester Co. of America v. State of Missouri, 234 U. S. 199, the Missouri anti-trust acts were held constitutional which applied only to combinations of manufacturers and vendors and exempted associations of wage earners from the prohibitions against combinations to lessen competition and regulate prices. The court said:

“Whether the Missouri statute should have set its condemnation or restraints generally, prohibiting combined action for any purpose and to everybody, or confined it as the statute does to manufacturers and vendors of articles, and permitting it to purchasers of such articles; prohibiting it to sellers of commodities and permitting it to sellers of services, was a matter of legislative judgment and we cannot say that the distinctions made are palpably arbitrary, which we have seen is the condition of judicial review. It is to be remembered that the question presented is of the power of the legislature, not the policy of the exercise of the power. To be able to find fault, therefore, with such policy, is not to establish the invalidity of the law based upon it.”

The arbitration statute of California was attacked in Pacific Indemnity Co. v. Insurance Co. of North America, 25 F. (2d) 930, because it excluded from its operation contracts pertaining to labor. It was held the classification was proper and the act constitutional. The court said:

“Laws granting special privileges to wage-earners or exempting them from burdens imposed upon others are of frequent occurrence and have been very generally sustained. Thus an involuntary petition in bankruptcy may not be filed against a wage-earner; he is often preferred in a'measure in the distribution of the assets of an insolvent; he is given a lien for his wages; he is granted exemptions appropriate to his calling; his freedom of contract is sometimes limited, as by laws regulating the hours of service or by laws requiring wages to be paid at stated periods, or only in lawful money of the United States. Classification is as much a rule as an exception, and the courts may not interfere, unless they are able to say that the classification adopted by the Legislature is arbitrary and without any reasonable basis.”

We wish to call attention to the case of Gilbert v. Burnstine, 255 N. Y. 348, where a complaint alleged that plaintiff and defendants entered into a contract whereby they agreed to arbitrate all differences arising thereunder at London pursuant to the arbitration laws of Great Britain; that differences having arisen, the plaintiff at London served notice upon defendants in New York to agree on*the nomination of an arbitrator; that on defendants’ failure to comply, proceedings were taken before an English court, notice having previously been served upon defendants in New York, resulting in the employment of an arbitrator, who, after further notice to defendants, proceeded with the arbitration, resulting in an award against defendants, and further alleging that all the proceedings were duly had in accordance with the English arbitration act. It was held that the complaint stated a good cause of action. The decision of the court was based on the ground that the defendants, in agreeing to arbitration in London, had consented in advance to the jurisdiction of the English courts.

The court likened the proceeding to the case where one signs a judgment note and therein authorizes an attorney anywhere to confess judgment against him. (See 31 Columbia Law Review, 679; 79 University of Pennsylvania Law Review, 478).

Under the Burnstine case, the plaintiff here could institute arbitration proceedings against the defendant in New York, with notice, but in its absence, and in the event of an award the plaintiff could institute an action in this state on the award against the defendant which would be conclusive if the proceedings were regular.

We agree with the Court of Appeals, but there is no decision on the point by our Supreme Court or by the Supreme Court of the United States.

The arbitration statute of New York is quite similar in its provisions to our Act of 1927; a copy of the New York statute is contained in the copy of the arbitration manual of the Silk Association of America attached to plaintiff’s petition.

And now, to wit, May 25, 1931, the defendant’s preliminary objections to the jurisdiction of the court and the subject matter are overruled, and the defendant is ordered to file an answer to plaintiff's petition within fifteen days.


author: Alessandroni, J.,

text:
    Lex et ux. v. Roberts and Mander Stove Company et al.

      Way land H. Elsbree and C. L. Cushmore, Jr., for Roberts and Mander Stove Company. J. J. Tunney for Philadelphia Rapid Transit Company, additional defendant.
    April 7, 1931.
   Alessandroni, J.,

An action was brought in trespass against the defendant corporation, averring injuries to the plaintiffs by reason of the negligence of the defendant’s agent in operating a motor truck. The defendant thereupon proceeded under the Act of April 10, 1929, P. L. 479, to scire facias the Philadelphia Rapid Transit Company as additional defendant. The scire facias avers that the defendant, without admitting liability to the plaintiffs, alleges that the Philadelphia Rapid Transit Company is jointly liable with the said defendant by reason of the fact that the trolley car in which the plaintiff’s wife was riding was negligently operated so as to cause the collision between the trolley car and the defendant’s truck. .

The Philadelphia Rapid Transit Company filed an affidavit of defense raising questions of law. The sole question is whether the scire facias is in proper order. The defendant avers that the Philadelphia Rapid Transit Company is jointly liable with it, due to the negligence of the Philadelphia Rapid Transit Company’s employee. The scire facias contains facts to show that the Philadelphia Rapid Transit Company is guilty of negligence in causing the accident and avers that joint liability exists between the defendant and the added defendant. The mere fact that a statement is made that the defendant does not admit liability to the plaintiff is but a restatement of the general rule that the burden is still on the plaintiff to prove its case. Under the Scire Facias Act and the decisions construing it, the defendant need only aver the facts necessary to bring the added defendant into the proceeding. This has here been done and the questions of law raised by the defendant cannot be sustained: Vinnacombe v. Philadelphia et al., 297 Pa. 564; Gilkey v. Montag, 13 D. & C. 717.

And now, to wit, April 7, 1931, the affidavit of defense raising questions of law is dismissed, with leave to the defendant to file a supplemental affidavit of defense within ten days from the entry of this order.


author: Broomall, J.,

text:
    Commonwealth v. Davis et al.

      James A. Cochrane, for petitioner.

      William J. MacCarter, Jr., district attorney, and Albert J. Williams, county solicitor, contra.
    August 15, 1930.
   Broomall, J.,

William A. McClurg, recognizor for Edward Davis, one of the above-named defendants, has presented his petition for the appointment of an auditor under the Act of July 30, 1842, P. L. 449, 454, 455, sections twenty-five and twenty-six, to order and decree a distribution of certain funds in accordance with said act.

It appears from the petition and records that said recognizor entered security in the sum of $5000, conditioned that defendant Davis appear at the next session to answer the charge of extortion and blackmail; that defendant Davis did not appear; that the recognizance was duly forfeited October 15, 1928; that this forfeiture was certified to the county commissioners October 19, 1928; that a scire facias was duly issued thereon on March 6, 1929; that judgment was entered thereon; that an attachment execution was issued on November 25, 1929, naming the Cambridge Trust Company as garnishee; that the amount of the recognizance, together with interest and costs, was duly paid to the county solicitor, and that the judgment has been satisfied of record and attachment discontinued.

Subsequently, to wit, on or about February 19, 1930,’ defendant Davis was apprehended by detectives working for the recognizor; he was re-arrested, incarcerated in the county jail and on April 3, 1930, was found not guilty by a jury, and the costs, amounting to $364.15, placed upon the County of Delaware. The petition further represents that recognizor paid some $2200 in bringing about this re-arrest of defendant Davis.

The Act of December 9, 1783, 2 Sm. Laws, 84, 2 Bioren’s Laws, 456, 11 Pa. Stat. at L. 222, provides in section two for suits in the common pleas on forfeited recognizance, inter alia: . . which courts may and they are hereby empowered to order the said recognizances to be levied, moderated or remitted, on hearing the circumstances of the ease, according to equity and their legal discretion.”

Sections twenty-five and twenty-six of the Act of 1842, supra (page 454), provide:

“Section 25. That where recognizances have heretofore, or shall hereafter be taken by any competent authority, for the appearance of persons charged with the commission of any crime or misdemeanor before any court, to answer to such charge or to appear before any judge, justice of the peace, alderman or other officer for further hearing, and the said recognizance shall have been, or may hereafter be forfeited on account of the person so charged, failing to comply with the condition therein, or where suits have been commenced for the purpose of recovering the amount of any recognizance heretofore forfeited, and not prosecuted to final judgment, it shall be lawful for any person having suffered loss or injury by the commission of such crime or misdemeanor, by themselves, their agents or attorney, to institute suit in the name of this Commonwealth, or to prosecute any suit or action now pending and undetermined, and proceed to final judgment thereon.
“Section 26. And be it enacted by the authority aforesaid, That where the amount or any part thereof, of any judgment recovered in pursuance of the provisions of the preceding section of this act, shall be collected by execution or otherwise, the same shall be taken into open court by the sheriff or other officer having received the same, and it shall be the duty of the judges of any court being notified of the payment of money as aforesaid, to order and decree a distribution of the same in the following order to wit:
“First. That so much thereof as shall be necessary to pay the legal costs on such judgment, and upon the proceedings before the magistrate, who shall have taken such recognizance shall be applied thereto.
“Second. That so much thereof as shall be deemed a reasonable compensation for the person, his agent or attorney who shall have prosecuted the same to final judgment shall be applied thereto.
“Third. That so much of the residue thereof as will pay the amount of damage sustained by any person, by reason of the commission of such crime or misdemeanor with interest thereon, to be counted from the date of the commission of such crime or misdemeanor shall be applied thereto.
“Fourth. And that the residue of any moneys collected as aforesaid be paid to the proper county, or into the treasury of the Commonwealth as the case may be.
“And it shall be the duty of the judges who shall make distribution of money as aforesaid, to order and decree the specific sum which shall be applied to each item. And it shall be lawful for the judges of any court to appoint one or more auditors to assess the amount of damages sustained by any person or persons, who shall claim any part of a sum of money arising from any recognizance forfeited as aforesaid, which said auditor or auditors shall have authority to administer oaths, and it shall be the-duty of said auditor or auditors to report the testimony taken before him or them to the court, together with a statement of the amount of damage sustained by such claimant: Provided, however, That a re-examination may be had of the proceedings, and report of any such auditors at the discretion of the court, and the order and decree of the court thereon shall be final and conclusive: Provided further, That nothing herein contained shall be construed to prevent the judges of the courts having jurisdiction over such recognizance, from exercising the authority heretofore exercised in respiting the same, but no recognizance taken as aforesaid shall, after the passage of this act, be respited or canceled without first giving notice to the person who shall have entered the complaint upon which such recognizance shall have been taken, such notice to be served as shall be directed by the court.”

It will be noted that “the amount of damage sustained by any person, by reason of the commission of such crime' or misdemeanor with interest thereon, to be counted from the date of the commission of such crime or misdemeanor shall be applied thereto” and “that the residue of any moneys collected as aforesaid be paid to the proper county or into the treasury of the Commonwealth as the case may be.” No provision is made that the same or any part thereof may be applied in relief of the recognizor.

In Com. v. Justice, 34 Pa. 165, 166, it was held that the Act of 1842, supra, gives relief only to a person who has suffered loss or injury by the commission of such crime or misdemeanor and confines the recovery to the party injured by the-specific offense charged.

In Com. v. Balsamo, 72 Pa. Superior Ct. 182, 184, it was held under the Act of 1783, supra, that the forfeiture of a recognizance fixes the absolute liability of the recognizors; that relief therefrom must be sought by petition to the court to respite it for cause shown, citing Foulke et al. v. Com., 90 Pa. 257, and, further, that distribution may be made under sections twenty-five and twenty-six of the Act of 1842, supra.

In Com. v. Becker, 1 Woodw. Dec. 297, the practice on a forfeited recognizance is set forth under the Act of 1842, supra, and a distribution made, but it was held that the power of the court under the Act of 1783, supra, is reserved. It was also held in this case that an application for remission of recognizance must be made before the money is collected and before judgment is entered, so that the court can control the situation by a final judgment for the proper amount. The court withheld final judgment in the suit on the recognizance until the parties exhibited the merits of their respective eases for the court to fix the amount which it believed ought justly and equitably to be paid.

In the instant case, there is a final judgment against the recognizor and, as we understand, the amount collected has been paid by the county solicitor to the county treasurer and the judgment satisfied.

Under the Act of 1842, supra, we do not see that the recognizor has any standing to petition for relief at this time, and this is especially true because he does not come within the provisions of the Act of 1842 as a person entitled to any portion of the fund.

This follows the decision of Judge Reno in Com. v. Meyers, 12 D. & C. 76, where a similar petition under similar circumstances, except that there was no final judgment, was refused and dismissed. A note, however, to that case, refers to the Act of July 11, 1917, P. L. 802. This act authorizes the county commissioners to repay moneys collected on forfeited recognizances in certain cases, and provides as follows:

“Section 1. Be it enacted, etc., That in all cases where the county commissioners of any county shall collect, or have collected, any money upon any forfeited recognizance, duly estreated to such county commissioners by the clerk of the proper court, and where the defendant in such case subsequently surrenders himself or herself to the jurisdiction of the proper court, the county commissioners may, with the consent of the district attorney, repay to the party from whom such money was collected the amount so collected on such forfeited recognizance, exclusive of all costs paid or incurred by the county in such proceeding.”

It would appear from the acts of assembly referred to and the decisions thereunder that the recognizor has no standing at this time to petition for a distribution by reason of a final judgment satisfied of record and that his remedy, if any, is under the Act of 1917, supra. It may be contended that recognizor is not within the provisions of the Act of 1917, supra, as it applies only where the defendant surrenders, but with this we aré not concerned at present. We are not deciding that petitioner may not, by proper proceedings, have the satisfaction stricken off and the judgment remolded. Neither are we deciding that such action can be successfully taken. We do decide, however, that with the record as it now stands petitioner is not entitled to have an auditor appointed under the Act of 1842, supra; that under this act relief may only be extended to a recognizor before final judgment; that after final judgment and payment, distribution must be made in accordance with this act and a recognizor is not a person entitled to receive any part of the fund.

The petition is, therefore, refused and dismissed without prejudice.

Prom William R. Toal, Media, Pa.


author: Atlee, J.,

text:
    Bowermaster et al., v. Rice et al.

      M. Edna Hurst, for petitioner; Harvey B. Lute, contra.
    January 10, 1931.
   Atlee, J.,

This matter comes before the court on the petition of James C. Rice, one of the defendants in the action of replevin, the other being W. G. Sweigart, constable, in which action John.R. Bowermaster and the Conestoga Stone and Lime Company are plaintiffs. This defendant asks the court to quash the writ of replevin issued in the said suit, for the reason that the plaintiffs’ replevin bond, executed with John C. Eidenmiller as' surety, is not good for the sum of $2000; that is, for twice the affidavit value of $1000 fixed by the plaintiffs, because, as is alleged, the said John C. Eidenmiller has no real estate worth the required amount over and above the debts against it.

This raises the question: Is the inadequacy of the surety on a replevin bond ground for quashing the writ?

There are three reasons why a writ of replevin may be quashed:

(a) Because the bond is void, and, therefore, the writ was issued without the fulfillment of the essential prerequisite of a bond: Henry v. Weidenhamer et al., 14 Pa. Justices’ Law Repr. 7; Sprague Sells Corporation v. Garrahan Canning Co., 11 D. & C. 659; Adams v. Young, 8 D. & C. 106; see section one of the Replevin Act; for a void bond is no bond, and this extends to the failure to furnish additional security when ordered by the court: Strouse v. McCouch, 10 W. N. C. 274.

(b) Because the writ is defective: Blake v. Fife, Sheriff, et al., 27 Pitts. L. J. 225.

(c) Because the writ has been issued in defiance of the Act of 1779: Yake v. Schmoll, 29 Dist. R. 107; and, therefore, is void: see Act of 1779, supra, chapter 11, section 20.

There is no other reason for quashing a writ of replevin. A writ of replevin may be quashed for technical irregularities in the proceeding only: Cummings v. Gordon, 29 Dist. R. 740.

It seems that exceptions to a plaintiff’s bond in replevin should, in the first instance, be heard by the prothonotary: Hogg v. Washington Oil Co., 17 Dist. R. 118; and if either party is dissatisfied with the prothonotary’s decision, he may appeal. But where an appeal from the prothonotary’s decision would be cumbersome and dilatory, and the ends of justice would be defeated by remitting the parties to that remedy, the court will strike off the bond and direct new bail on a rule to show cause; for the Replevin Act does not limit the remedy for insufficient bail to the appeal from the decision of the prothonotary, and the practice of compelling additional security by rule to show cause antedates the Replevin Act. Where exceptions are sustained and additional security is ordered and not furnished, the writ may be quashed on motion, but the better practice would be to nonsuit.

Therefore, the court discharges the rule to show cause why the writ of replevin in this case should not be quashed.

Prom George Ross Eshleman, Lancaster, Pa.


author: Shanaman, J.,

text:
    Kelvinator Sales Company v. Har et al.

      H. F. Weigand, for plaintiff; H. R. Matten, for defendants.
    September 13, 1930.
   Shanaman, J.,

Plaintiff replevied a “commercial unit or evaporator.” The sheriff served defendant, W. M. Har, and finding Sunset Hotel Company, Inc., in possession, added it as defendant and served it with the writ. Plaintiff subsequently, on December 24, 1929, filed his declaration and served counsel for the Sunset Hotel Company with a copy thereof on December 27th. On February 8, 1930, plaintiff took judgment against Har and the Sunset Hotel Company for want of an affidavit of defense. At that time no proof of the service of the declaration had been filed. On February 11th, Sunset Hotel Company, defendant, filed an affidavit of defense, and on February 13th filed a motion to strike off the judgment. On February 21st, plaintiff filed proof of service of declaration upon the Sunset Hotel Company. Defendant offers only one reason to strike off the judgment, namely, that the record contained no proof of service at the time it was entered. Defendant contends that the subsequent filing of the proof of service could not correct this irregularity so as to save the judgment entered before filing, even though service had actually been made before the judgment was taken.

The Replevin Act of April 19, 1901, P. L. 88, section 5, provides: “The defendant or party intervening shall, within fifteen days after the filing of such declaration, file an affidavit of defense thereto, setting up the facts denying plaintiff’s title and showing his own title to said goods and chattels; and in event of his failure so to do, upon proof that a copy of said declaration was served upon him or his attorney, judgment may be entered for the plaintiff and against the defendant or party intervening. . . .” The entry of judgment was, therefore, irregular because the statute only authorizes the entry of judgment “upon proof” and so forth. Does an actual service before judgment, proved, however, after judgment taken, save the judgment? “Judgment by default may be taken at any time after the commencement of a suit, when either party is in disregard of the provisions of a statutory rule:” Griesmer v. Hill, 225 Pa. 545, 548. But when such judgment depends on statutory authorization, its validity depends upon a faithful compliance with the statutory requirements by the party taking the judgment; he must not be asleep: Griesmer v. Hill, 36 Pa. Superior Ct. 69, 70. To support a judgment by default, the statutory requirements relative to issuance and service of citation must be strictly followed: Missouri Life Insurance Co. v. Rhyne (Texas), 276 S. W. 757. “Since the policy of the law is to have every litigated case tried upon its merits, judgments by default are not favored, and as such a judgment deprives defendant of substantial rights, it is lawful only when duly authorized:” 34 C. J. 147.

It is true that a merely irregular proof of service may be cured by amendment: Love v. National Liberty Insurance Co. (Ga.), 121 S. E. 648. “Since, however, the question of jurisdiction is dependent on the fact of service and not on the proof thereof, a return failing to show the necessary jurisdictional facts, although such facts really existed, may be amended so as to conform to the truth, not for the purpose of validating a void judgment, but to show that the judgment never was void:” 21 R. C. L. 1331. “The defective return might have been amended to conform to the facts and . . . such amendment when made would have related back so as to make the record complete and the judgment perfect:” Love v. National Liberty Insurance Co., supra, p. 651. The majority of cases hold, however, that where, as here, there was no return or proof of service filed at all, subsequent proof will not save the judgment. In the case of News Printing Co. v. Brunswick Publishing Co. (Ga.), 38 S. E. 333, the court said, at page 334: “Where there is upon the face of the record evidence showing prima facie that the defendant has been served . . . the return of service may be amended so as to show the authority of the person acknowledging service to sign the acknowledgment. .... But where there was . . . nothing whatever upon the face of the record showing that the person against whom the judgment was entered had, in any way, been served with process, the court . . . was without jurisdiction to enter the judgment, the same was void, and an amendment showing that the defendant was actually served would not have the effect of saving the judgment.” In the case of Whirl v. Reiner, 200 N. W. 977, proofs of service had been filed which, after judgment taken, were amended. The court set aside the judgment, saying, at page 978: “If parties are desirous of relying on and getting the benefit of the six months rule, they should see that the default is regularly entered. Unless the files show proper proof of service of process the default is irregular, though service has been actually and lawfully made. .... There is no question but defendant was personally and lawfully served, but the difficulty is the files of the court on the day of default lacked the proper proof of it.” Even Love v. National Liberty Insurance Co., supra, went only so far.as to say: “Where there has been valid service and no return, the deficiency may be supplied before taking further steps in the cause:” Id., 651. In the present case,' after the judgment was taken, several proceedings took place before plaintiff filed proof of service, to wit, defendant filed an affidavit of defense and a motion to strike off the judgment.

“No valid judgment by default can be taken when there is no return by the officer serving the writ, or when the return or other proof is so faulty or defective as not to show a legal service of the writ: ” 33 C. J. 1094. “It will not avail plaintiff to show by proper proof, on a motion to open the default or set aside the judgment thereon for lack of proper service of the summons, that due service was actually made. It is the evidence of legal service which authorizes the default judgment, and it must be made at the time of its entry or not at all:” Id., citing Reinhart v. Lugo (Calif.), 24 Pac. 1089. “An affidavit of the service of a copy of a declaration and notice of the rule to plead must be positive and sufficient at the time the default is entered thereon for not pleading, and it cannot be made good by a subsequent knowledge of the fact that the notice was received by defendant’s attorney at the time:” 34 C. J. 187, note 99 [b], citing Doolittle v. Ward, 5 Johns (N. Y.), 359.

Finally, the affidavit of defense filed in the present case suggests a meritorious defense, and we see no reason not to enforce the ordinary principle that in such case a judgment by default will be relieved against: Spinelli v. Costello, 271 Pa. 204; Nicholson v. Schaffer, 94 Pa. Superior Ct. 318. We do not, however, rule upon the sufficiency of the affidavit.

And now, to wit, September 13, 1930, defendant Sunset Hotel Company’s rule to strike off the judgment against it, entered to No. 560, January Term, 1930, J. D., is made absolute. Prom Charles K. Derr, Reading, Pa.


text:
    Newman’s Estate.

      George B. Reimensnyder, for petitioner; A. F. Gilbert, contra.
    July 23, 1930.
   Potter, P. J.,

John F. Newman died on July 18, 1929, intestate, without issue, leaving to survive him his widow, Nora Newman, who is administratrix of his estate, and collateral heirs, all of whom need not be named in these proceedings.

The widow applied to this court for the appointment of appraisers to appraise and set apart to her what property she was entitled to under her $500 and $5000 exemptions. We appointed M. A. Wenrich and W. L. Wehr as appraisers. They appraised the home at the sum of $2050 and a tract of woodland at $300, as well as other assets of this decedent going to make up her exemptions. The appraisement was later confirmed absolutely, no exceptions having been filed to it. The widow shortly thereafter sold the home for the sum of $3000, and she is asked to account to the estate for the difference between the appraisement of it at $2050 and the selling price of $3000, that being the main question before us.

We have personally and intimately known these appraisers for many years. When we appointed them, we knew them to be men of probity and good sound judgment, else we would not have appointed them. They appraised this home at what they thought it would bring at a public sale. This is what they were to do, and we expected them to do so. We are familiar with this home and have known it for years, and we do not consider it worth more than approximately $2000. We would not give more than that sum for it. If a purchaser paid $3000 for it, he certainly paid more than it is worth on the market. We think this appraisement of this home is about correct.

The petitioner seems to think this widow should pay back into the estate the difference between the appraised value of $2050 and the selling price of $3000, or $950. We fail to see why she should. If the property had sold for $950 less than the appraised value, would the petitioner make up to her the loss? We think not, and we know of no law that would compel the heirs to make up the loss, if any. Then, if the widow would need to bear the loss alone, why should she not also enjoy the benefit of the gain, if any? This rule, if it is one, should work both ways. Many times in the sale of property of a decedent, more or less money is realized from a sale than the appraised value.

It is also complained that money placed in bank was taken by the widow, but we find that the deposits were joint, made in the name of both husband and wife; consequently, on the death of the one, they pass in toto to the other.

It is also complained that no notice was given the petitioner of the time of holding the appraisement, in support of which we are cited to clause j of section eleven of the Fiduciaries Act of June 7, 1917, P. L. 447, and to clause d, section twelve of the same act, P. L. 472. We have examined these citations, and in neither one do we find it necessary that such notice be given by anyone. Nor do our rules of court provide for it. After the appraisement is made, advertisement of it is to be made in two newspapers for three successive weeks before being presented to us for confirmation. This gives notice to anyone interested. The advertisement in this case was made in the “Middleburg Post,” a weekly newspaper of wide circulation in Snyder County, which comes into the family of the petitioner and is read by her. At least, she says she reads it. We deem this to have been the legal notice required. Had the petitioner had any grievance relative to this appraisement, she should have secured counsel and filed exceptions to it. But we think she has let her day go by. However, if we saw any real merit in the contention of the petitioner, we might seriously consider the advisability of opening the confirmation. But we can see no reason for so doing in the light of the circumstances as we know them.

And now, to wit, July 23, 1930, the citation is discharged, at the costs of the petitioner.


author: Lamberton, J.,

text:
    Fetters v. Robinson.

      John G. Kaufman, for plaintiff; Wayland H. Elsbree, for defendant.
    March 27, 1931.
   Lamberton, J.,

Plaintiff has brought suit against defendant to recover damages which plaintiff claims to have suffered as the result of defendant’s negligence. Defendant has filed an affidavit of defense raising questions of law.

The statement of claim avers that plaintiff was employed by defendant as a bench hand on the premises of defendant, located at No. 49 to No. 63 Queen Lane, Philadelphia, defendant being engaged in the trade of cabinetmaker on said premises; that on February 28, 1928, while so engaged and while working at his bench on the third floor of said premises, plaintiff desired to go to the toilet, which was located in the yard on the same premises; that in descending the stairs from the third floor to the second floor, plaintiff slipped and thereby sustained the injuries complained of; that the injuries were caused by the negligence of defendant, in that defendant did not provide guards, rails, etc., about said stairs, as required by the regulations of the Department of Labor and Industry of the State of Pennsylvania, issued under authority of the statutes of Pennsylvania.

Defendant in its affidavit of defense contends that under the facts averred in the statement of claim plaintiff’s sole remedy is under the Workmen’s Compensation Law, and that this action in trespass will not lie. Plaintiff, on the other hand, contends: (1) that this question cannot be determined preliminarily as a matter of law; and (2) that the employer’s failure to comply with the law or regulations in regard to safety guards, if proven, takes the accident out of the province of the Workmen’s Compensation Law.

Section twenty of the Practice Act of May 14, 1915, P. L. 483, provides as follows: “The defendant in the affidavit of defense may raise any question of law, without answering the averments of fact in the statement of claim; and any question of law, so raised, may be set down for hearing, and disposed of by the court. If in the opinion of the court the decision of such question of law disposes of the whole or any part of the claim, the court may enter judgment for the defendant, or make such other order as may be just.”

This provision in the Practice Act is obviously designed to save the time of the courts, and litigants as well, by disposing of a case at an early stage, if it is evident, as a matter of law, that the decision must ultimately be against the plaintiff.

In the Workmen’s, Compensation Act of June 2, 1915, P. L. 736, section 301 of article three provides that when an employer and employee accept the provisions of article three, compensation for personal injury to the employee sustained in the course of his employment shall be made in all cases by the employer without regard to negligence. Section 302(a) of the same act provides that in every contract of hiring it shall be conclusively presumed that the parties have accepted the provisions of article three of the Workmen’s Compensation Act, and have agreed to be bound thereby, unless there be at the time of the hiring an express statement in writing to the contrary from either party to the other, and unless a copy of such writing be filed with the bureau within ten days after service upon the other party.

Section 303 of the same act provides: “Such agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of the employment, or to any method of determination thereof, other than as provided in article three of this act.”

Our courts have uniformly held that when the facts bring the parties within the Workmen’s Compensation Act, that act provides the sole remedy. The first question, then, is whether this matter can be disposed of on the pleadings. The case of Anderson v. Carnegie Steel Co., 255 Pa. 33, decided in 1916, shortly after the Workmen’s Compensation Act went into effect, is very much in point. In that case there was an affidavit of defense raising questions of law. The lower court sustained the affidavit of defense and entered judgment for the defendant. The court said: “This raised a question of law and'the court below disposed of it by entering judgment for the defendant in accordance with the provisions of section 30 of the Procedure Act of May 14, 1915, P. L. 483.

“Nothing appears in plaintiff’s statement of his claim to take his case out of the Workmen’s Compensation Act, and its constitutionality is the sole question involved in this appeal.”

We have found no decision to the contrary, and to our mind the case of Anderson v. Carnegie Steel Company is authority for defendant’s contention in this case, and holds that in a proper case a question such as is raised here may he disposed of on the pleadings. The case at bar. is of the very type that section twenty of the Practice Act was intended to cover.

The second contention of plaintiff is that the averments in the statement of claim to the effect that the accident was due to the failure of the employer to provide proper safeguards, as required by the law and regulations, remove this case from the province of the Workmen’s Compensation Law, and makes possible an action in trespass at common law. There is no intimation in any of the decisions of our higher courts that such a violation of law removes a case from the realm of the Workmen’s Compensation Act. In fact, it is hard to see how there could be such a decision. There is no such provision in the act itself, and if the legislature had so intended, it would have been an easy matter to so state.

The only case cited to the contrary is Lincoln v. National Tube Co., 268 Pa. 504, but that case is easily distinguishable on its facts. In the Lincoln case, a minor had been employed contrary to law, and while so employed was injured. The Supreme Court held that the employer was liable in an action in trespass, but the reason for so holding was that, since the employment was prohibited by law, there was in reality no contract at all, and, consequently, the presumption of acceptance of the Workmen’s Compensation Act never arose. In the ease at bar, by the averments of the statement of claim itself, it is plain that there was a contract of employment, and it is further plain that the injury occurred upon the premises of the employer and in the course of the employment. On the other hand, there is no averment that either party had given to the other notice that the contract of employment should not be governed by the Workmen’s Compensation Law.

Plaintiff further contends that this case is the converse of the many cases which hold that an employer is not liable under the Workmen’s Compensation Act when at the time of the injury the employee is deliberately disregarding some provision of the law or proper regulations made by the employer. Those cases also are easily distinguishable, for their basis is that when the employee does something prohibited by law or by proper regulations, he is acting outside of the scope of his employment, and, consequently, the implied contract to accept the provisions of the Workmen’s Compensation Law has no application.

The decisions do hold that the question whether an employee’s injury was received in the course of his employment is a mixed question of law and fact. See Schott v. Pennsylvania R. R. Co., 76 Pa. Superior Ct. 582. This can only be true, however, where there is a dispute as to the facts. Where all the facts are admitted, as in this case, and plainly show that the injury was received in the course of the employment, the question is purely one of law for the court.

And now, to wit, March 27, 1931, the affidavit of defense raising questions of law is sustained, and it is directed that judgment be entered for the defendant.