author: Hildebrand, P. J.,

text:
    Armstrong Grocery Company v. Hutchison.

      Aiken & Braham, for plaintiff; Alvan M. Shumaker, for defendant.
    July 31, 1929.
   Hildebrand, P. J.,

— This is an action under the Fraudulent Debtors’ Attachment Act of March 17, 1869, P. L. 8, and its supplements, and, having come before the court on a motion to quash the attachment, was argued before the court in banc.

The defendant bought of H. C. Turner, on or about March 11, 1929, the merchandise and fixtures of a grocery business without compliance with the Bulk Sales Law of May 23, 1919, P. L. 262. The writ having been issued May 20, 1929, the sheriff levied upon and attached personal property of the defendant consisting of merchandise and fixtures, the writ being served personally upon the defendant.

Defendant’s counsel entered a special appearance and moved to quash the attachment, the motion being based upon a number of reasons, among which are: (1) That the praecipe for the writ is signed Aiken & Braham, averring that that signature is of no efficacy, that it is an assumed or fictitious name and that there has been no compliance with the Fictitious Names Act; (2) that the proceeding is improper as the action does not lie against the defendant; and (3) that plaintiff’s bond, filed previous to the issuance of the writ of attachment, was not approved as required by the act.

The Bulk Sales Law of March 28, 1905, provided that a sale, where the act has not been complied with, “shall be deemed fraudulent and voidable against the creditors of the seller.” The Bulk Sales Act of May 23, 1919, P. L. 262, provides that when the sale is not in conformity with the act, “then such sale or transfer shall be fraudulent and void, and such purchaser, auctioneer or agent shall, at the suit of any creditor, be held liable to the creditors of the said vendor as a receiver for the fair value of all the property so bought or sold by him.”

Neither of these acts relating to bulk sales provides a method of procedure for having a sale in violation of the act determined to be void and for following the property which was the subject of the sale.

In Albert Ochse’s Co. v. Drda, 16 Dist. R. 409, 34 Pa. C. C. Reps. 151, the present Chief Justice von Moschzisker held that in the case of violation of the Act of March 28, 1905, P. L. 62, the Act of March 17, 1869, P. L. 8, together with its supplement of May 24, 1887, P. L. 197, formed a complete system for carrying into execution the Bulk Sales Law, saying that: “With the seller, the purchaser and the creditors, all as parties to the action, the goods in controversy are taken into the custody of the law and relief worked out in a most expeditious and inexpensive manner, whereas relief by way of a bill in equity and the appointment of a receiver, with all the limitations which are put upon that office, would make a much more expensive and cumbersome system.”

While recognizing that instances may arise where the benefit of the Act of 1905 may be invoked by bill in equity as the most convenient and appropriate remedy, it was held that procedure under the Act of 1869 furnished a plain, complete and adequate remedy at law and the bill in equity was dismissed.

In West Shoe Co. v. Lemish, 279 Pa. 414, a bill in equity, filed by creditors within the statutory period for attacking a sale, was sustained. The purpose of the bill was to have set aside the transaction of sale because of failure to comply with the statute, and it asked that the purchaser be declared a receiver for the fair value of all the property bought by him and that he account to the creditors for the true worth.

The remedy in equity was also recognized in Gibbon v. Arronson, 80 Pa. Superior Ct. 36. The bill in that case, however, was dismissed because the action was not begun within the ninety-day period following the consummation of the sale.

It seems, therefore, that, under the Bulk Sales Law of 1919, the creditors may proceed by attachment under the Fraudulent Debtors’ Act of 1869 or by bill in equity to have the sale declared void and the purchaser held to be receiver for the benefit of the creditors.

Defendant concedes that plaintiff might have proceeded by attachment under the Fraudulent Debtors’ Act of 1869 if plaintiff had made Turner*, the vendor in the sale, a defendant. Defendant, however, contends that plaintiff cannot proceed directly against defendant. In the various cases cited by both plaintiff and defendant, both the seller and the purchaser have been made parties to the action. The Act of May 24, 1887, P. L. 197, provides that the attachment shall issue upon proof by affidavit of the plaintiff that the defendant is justly indebted to the plaintiff “and that said party defendant is about to move his, her or their property out of the jurisdiction of the court in which said attachment is applied for with intent to defraud his, her or their creditors, or that said party defendant has property, rights in action or interest in any public or corporate stock, money or evidences of debt which he, she or they fraudulently conceal, or that said party defendant has or have assigned, disposed of or removed, or is about to assign, dispose of or remove, any such property, money, rights in action, interest in public or corporate stock or evidences of debt, with the intent to defraud his, her or their creditors, or that he, she or they fraudulently contracted the debt or incurred the obligation for which such claim is made.”

The allegation in the present case is “that the defendant fraudulently contracted the debt and incurred the obligation for which claim is made, contrary to the Bulk Sales Law of the Commonwealth'of Pennsylvania.”

The Fraudulent Debtors’ Attachment Act contemplates and provides a special remedy against one who is actually indebted to claimant. The special remedy becomes available against a debtor who intends to defraud either at the time the debt is incurred or subsequently. The debt, however, exists separate and distinct from the fraud. In the present case, there is no debt except as the purchaser is made liable to the creditors of the vendor under the Bulk Sales Law as a receiver. If the liability may be termed a debt, it is inseparably joined with what is made legal fraud by the statute. Under the Act of 1869, goods of the debtor may be seized whether they be in his possession or in the possession of others. In the present case, it certainly could not be contended that the goods of the defendant in the hands of others could have been rightfully seized under the attachment issued. The defendant’s obligation is not such as to constitute a debt for which an attachment may issue under the Act of 1869. Her liability as fixed by the Bulk Sales Act is neither personal nor general, but it is limited to that of a receiver for the fair value of the property bought. Although the goods purchased while in her hands may be subject to attachment in a proper proceeding, the defendant’s liability becomes fixed only after the vendor’s indebtedness has been determined, and that may only be determined in an action to which the defendant’s vendor is a party. The proceeding here followed is improper and plaintiff cannot maintain its present action against the defendant: Felix v. Urquhart Manuf. Co., 5 D. & C. 93.

The bond filed by the plaintiff was not approved by one of the judges, as required by the Act of 1869, and this, too, is advanced by defendant as a reason why her motion to quash the writ of attachment should prevail. The act is positive in its requirement that a bond approved by one of the judges shall be executed and filed before the attachment shall issue. As has been indicated, the statute provides a special remedy and its requirements must be strictly adhered to.

It is urged by the plaintiff that while the reasons assigned for the quashing of the writ might be sufficient for dissolving the attachment, they are not sufficient to warrant quashing the writ, there having been personal service on the defendant. Biddle v. Black, 99 Pa. 380, is cited in support of this position. That was a proceeding under the Act of 1869, in which the debtor and garnishees were summoned and where defendant entered a rule to dissolve the attachment and quash the writ because of the insufficiency of the affidavit filed by plaintiff setting out the cause of action. The appellate court held that the lower court was right in dissolving the attachment, but committed error in quashing the writ, holding that, there having been personal service on the defendant, the action might be pursued against him although the property was justly released. In that case, the right of action remained against the defendant although the writ of attachment had been improperly issued.

In discussing the distinction between a motion to quash a writ of foreign attachment and one to dissolve the attachment in Pasquinelli v. Southern Macaroni Manuf. Co., 272 Pa. 468, 477, the following rule is laid down: “It is sufficient to say that the broad, or general, distinction is this: Where, notwithstanding the defects pointed out, the suit may remain as a pending action, a motion to dissolve is correct practice; on the other hand, where the defects depended on are fundamental in character and such as to put plaintiff completely out of court, a motion to quash the writ is proper.”

It has been held fatal to the writ of attachment and grounds for dissolving the attachment that the bond was not approved by the judge of the court before the attachment issued: Wallace Elliott & Co. v. Plukart, 6 Pa. C. C. Reps. 151; McMasters v. Majewski, 5 D. & C. 279. In Thomas v. Herr, 29 Montg. Co. Law Repr. 165, the writ of attachment .under the Act of 1869 was quashed, for the reason that the bond filed had not been approved by a judge. In Security Finance Co. v. Murray, 7 D. & C. 463, the garnishee secured a rule to show cause why the attachment should not be quashed because the bond filed in an attachment under the Fraudulent Debtors’ Attachment Act had not been approved by the court before issuance of the attachment. It was held that the garnishee had no standing to move to quash, for this reason, the court, however, saying: “If the present rule had been granted at the instance of the defendant, we would have no hesitation in making it absolute.”

In Parks v. Watts, 112 Pa. 4, the writ of attachment issued under the Act of 1869 was held to be properly quashed, for the reason that it was not made returnable on the first return-day next after the issuing thereof, as commanded by the statute. In that case, service had been had upon the defendant. It was held that the “shall” of the statute was imperative and that, there having been a failure to comply with the requirements of the statute, the writ of attachment was properly quashed.

Having reached the conclusion that the failure to have the bond approved by a judge and the fact that plaintiff’s pleadings disclose no right of action directly against the defendant are fundamental in character and such as to put plaintiff out of court, we conclude that the motion to quash the writ is proper and that it should be granted.

It thus becomes unnecessary to discuss the matter of the use of the firm name of “Aiken & Braham” in securing the issuance of the writ of attachment. Without attempting or intending to pass upon the effect of this use of the firm name, one of the names being that of an honored member of the bar now deceased, we call attention to the propriety of the practice followed in the appellate courts of having the names of the individual members of the firm appear along with the firm name wherever it may be necessary for the names of counsel to appear.

Now, July 31, 1929, the rule granted on June 3, 1929, to show cause why the writ of attachment should not be quashed is made absolute, and the writ of attachment is quashed.

Now, July 31, 1929, bill of exception sealed to the above order for plaintiff.

From William MeElwee, Jr., New Castle, Pa.

NOTE. — In the instant case, the litigation was conducted in the firm name (Aiken & Braham) by an attorney whose name did not appear in the title of the firm.


source: Caselaw Access Project

author: Landis, P. J.,

license: Public Domain

text:
    Studebaker Sales Company v. Conestoga Traction Company.

      John E. Malone, for rule; Charles W. Eaby and J. Glenn Anderson, contra.
    April 13, 1929.
   Landis, P. J.,

— On Sept. 28, 1928, the plaintiff brought suit against the defendant to recover the value of an automobile injured by reason of a collision with a car of the defendant. The plaintiff’s statement avers that, on May 28, 1928, about 8.15 P. M., a man by the name of Prank Perrier was driving a six-cylinder Studebaker Dictator roadster, belonging to the plaintiff company, at a lawful rate of speed southward on a public road leading from Reading to Lancaster, and at the same time the defendant company was operating a trolley car northward on the said road, at or near the village of Reamstown, carelessly, recklessly and negligently, and at an improper rate of speed, and that the defendant’s trolley car, without warning, suddenly crossed from one side of said public road at grade to the other side and in doing so ran into and damaged beyond repair the plaintiff’s automobile.

The motion on which this rule is based avers that the statement is vague, indefinite and uncertain; that it fails to set forth the definite location of the accident; that it does not set forth the negligence of which the defendant is alleged to have been guilty; and, while it avers that the trolley ear was running at a high rate of speed, it does not set forth what the speed was or why it was improper at the time and place.

It must be remembered that a trolley car runs on its own right-of-way. If its track crossed the public road, it had a right to cross at that place. As it is alleged that the automobile was within the vision of the motorman, certainly the trolley car was within the vision of the driver of the automobile. At the time of the accident, the lights must have been on, and some special reason should have been averred why the driver could or did not see or know, if he had looked, that the trolley car was coming. Therefore, under the circumstances, I think the statement is defective.

The defendant, too, is entitled to know where the collision took place. To say that it was at or near the village of Reamstown conveys no definite information. Was it to the north or to the south of the town, and about what distance?

The plaintiff should also assert what the negligence of the motorman consisted of, and, if he was driving too fast, relatively, the speed of the trolley and why it was that that speed caused the accident. I do not mean that the plaintiff in its statement as to these matters must be exact; but it should be sufficiently definite, so that the defendant shall be informed as to what it will be called upon to meet on the trial.

The rule is now made absolute.

Rule absolute.

Prom George Ross Eshleman, Lancaster, Pa.


author: Niles, P. J.,

text:
    Arch Manufacturing Company v. Stumph.

      Stewart & Gerber, for exceptions; John A. Hoober, contra.
    May 14, 1929.
   Niles, P. J.,

This matter comes before the court upon exceptions to the execution and return of a commission issued on behalf of the plaintiff to take the testimony of witnesses in St. Louis, Mo.

One substantial exception is, because of the failure to obey the instructions requiring the commissioner to subscribe her name at the bottom of every page of testimony. This was not done. The name of each witness is subscribed upon the last page of his testimony, and the name of the commissioner is subscribed below the name of the witness; but the commissioner did not subscribe her name at the bottom of every page of testimony also. This is a substantial requirement, the neglect of which is liable to cast doubt upon the integrity of the evidence.

Another objection is that the last interrogatory violates the express requirements of Rule 86 of this court on the subject. That rule is: “The last of the interrogatories to take testimony shall be stated in substance thus: “Do you know, or can you set forth any other matter or thing which may be of benefit or advantage to the parties at issue in this case, or either of them, or that may be material to the subject of this, your examination, or the matters in question in this cause? If yea, set forth the same fully and at large in your answer.” In this commission the last interrogatory is: “If there is anything further material to the issue in this matter that is within your knowledge you may state the same as fully as though specially interrogated, and if exhibits are involved, please attach thereto, properly marked on such.” This interrogatory is not in substantial compliance with the above-quoted Rule 86. It is materially important that a witness examined on a commission, which, if properly executed, is in the absence of parties and counsel, should have specifically brought to his attention the obligation [to] “set forth any other matter or thing which may be of benefit or advantage to the parties at issue in this case, or either of them.”

Another substantial exception is: The failure of the commissioner to obey the instruction “If the party plaintiff or defendant be not the witness or witnesses examined, then after the word ‘Present’ add ‘Neither of the parties litigant being present either personally or by agent.’ ” This requirement was not obeyed by the commissioner. It is substantial.

These objections are of substance and not merely matters of form which might be disregarded in the absence of injury to either party.

Therefore, the exceptions are sustained and the commission is suppressed, at the costs of the plaintiff, May 14, 1929.

From Richard E. Cochran, York, Pa.


author: Henderson, J.,

text:
    Child’s Estate.

      W. Horace Hepburn, Jr., for exceptions; Robert T. McCracken, contra.

      Jan. 24, 1930.
   Henderson, J.,

— We have carefully studied the record in this estate and the briefs of counsel and are of opinion that the Auditing Judge was correct in his conclusion in disallowing this claim and for the reasons given by him.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Smith, J.,

text:
    Stroud et al. v. Kramer.

      Bernard J. O’Connell (with him W. Nelson L. West and C. Raymond Ireland), for complainants.

      Robert T. McCracken (with him Theodore E. Nichterlein), for defendants.
    Dec. 24, 1929.
   Smith, J.,

— A bill of complaint on the part of William F. Stroud and Horace B. Wilgus was filed against Edwin A. Kramer and Adelaide R. Kramer, praying that an injunction issue enjoining and restraining Adelaide R. Kramer from transferring or otherwise encumbering the title to certain real estate which the complainants averred she held in trust for the complainants; and further praying that a decree and order be entered requiring the said Adelaide R. Kramer to convey the said premises to the complainants by a proper deed on the payment to Edwin A. Kramer or to Adelaide R. Kramer of the sums advanced by the said Edwin A. Kramer for the purchase of the property, with interest on said sums, etc.

The answer to said bill was filed by the defendants, and the case came on for hearing on Wednesday, June 19, 1929, at which time such evidence as the parties chose to introduce was taken before the Chancellor. After reviewing the testimony submitted in the case, we find the following facts:

Findings of fact.

1. In 1913 Stroud and Wilgus purchased a tract of ground for a lumber yard, at Beach Street and Montgomery Avenue, in the City of Philadelphia, and being desirous of enlarging their plant, they came in touch with Edwin A. Kramer, a real estate agent, who as such agent sold" them premises No. 522 Richmond Street, which was contiguous to their property and gave them an entrance on Richmond Street.

2. Sometime after the purchase by the plaintiffs of premises No. 522 Richmond Street, they had interviews with Edwin A. Kramer, in which they outlined to him a plan by which they wished to acquire all the properties on both sides of Montgomery Avenue between Richmond Street and Beach Street, and arranged with him to act as their agent in buying, for their firm, from time to time, these properties, -with the view of inducing the city authorities to close Montgomery Avenue and consolidate their holdings in one contiguous tract.

3. Plaintiffs also consulted with Edwin A. Kramer in regard to acquiring other properties on the northerly side of Richmond Street for lumber storage purposes.

• 4. In pursuance of these arrangements, Edwin A. Kramer purchased the property of No. 911 East Montgomery Avenue, property of Nos. 913 and 917 East Montgomery Avenue, property of Nos. 919 and 921 East Montgomery Avenue and the property of No. 608 Richmond Street, which adjoined them on the rear, and settlement was made by the said Kramer in 1917, but no bill was rendered by him to plaintiffs for advances made by him for expenses incurred until July 24, 1919, when his bill, amounting to $225, was presented and paid.

5. In 1918 Edwin A. Kramer purchased the property of No. 530 Richmond Street and the property at Nos. 524-26-28 Richmond Street; in 1920 he purchased the property No. 525 Richmond Street, property No. 527 Richmond Street and property No. 523 Richmond Street, and for his services and the advancements made by him in the purchasing of these properties he rendered a bill for his 1918 and 1920 purchases on April 11, 1922, in the sum of $658.58, this representing advancements made by him, commissions and compound interest, and said bill was paid by the plaintiffs. It further appeared that the city opened Delaware Avenue and took the bed of Richmond Street at Montgomery Avenue, so that the Richmond Street properties became known as Delaware Avenue properties.

6. Edwin A. Kramer, as agent for the plaintiffs, attempted to purchase the properties Nos. 1901, 1903, 1905 and 1909 East Montgomery Avenue from one Donnelly, but failed to consummate the deal, after which the plaintiffs purchased these properties in 1925 direct from the owners. In his answer Kramer claimed commission for the purchase of these properties, but there is nothing in the evidence submitted by him that would show that he was entitled to any commission for negotiating the purchase of any of said properties.

7. In 1921 Joseph F. Slocum, who was the tenant of “A” and “B,” from the Casey Estate, owning property at the northeasterly corner of Delaware and Montgomery Avenues, which is .the subject-matter of the bill of complaint, attempted to purchase the properties in question from the Casey heirs and spoke to Wilgus about the same, and told him that he would not stand in the way of Stroud and Wilgus if they were interested in the property; whereupon Wilgus, one of the plaintiffs, told Stroud, the other plaintiff, and in turn Stroud saw Edwin A. Kramer and asked him to buy the property for Stroud and Wilgus; whereupon Edwin A. Kramer entered into negotiation with the Casey heirs and purchased the said property, subject to a ground rent, for the sum of $1200.

8. The Casey heirs were able to give a clear title to that portion of the lot fronting on Montgomery Avenue (tract “B”), but could only give a squatter’s title to the small comer (tract “A”). Then Kramer was asked to take title in a “straw” name; whereupon he suggested his sister’s name for the purpose, and title was taken in her accordingly, Edwin A. Kramer advancing the whole of the purchase money.

9. Stroud and Wilgus promptly, upon the settlement with the Casey heirs, entered into the possession of all the property except that portion that was occupied by Slocum, tore down the other buildings and fences on it and took possession of it at once for the purposes of their business. Edwin A. Kramer, as agent for Stroud and Wilkus, gave Slocum three months’ notice to quit and collected the rent from him for the three months’ period as agent for Stroud and Wilgus and paid the rent over to them. When the three months expired, Slocum moved and Stroud and Wilgus took possession of that portion which Slocum occupied and incorporated it into their other holdings, placing a high board fence around the same, and from Dec. 15, 1921, up to the present time have continued in the exclusive possession and use of the property as part of their lumber yard.

10. In the negotiations for the purchase of the property in question and the preparing of the agreement and the deeds of conveyance for it from the Casey heirs, prior to and at the time of the settlement of the property in question, Edwin A. Kramer was constantly in touch with W. N. L. West, attorney for Stroud and Wilgus, and followed his instructions and advice. It was deemed wise by the parties in interest that the title should be taken in the name of a “straw” person in order that a tax sale might be arranged for on the piece as to which the Casey heirs could only convey a squatter’s title. The taxes for 1921 having been paid, it was arranged that the 1922 and 1923 taxes were to remain unpaid and a tax sale held in 1924. However, Edwin A. Kramer paid the taxes in 1922 by mistake and thus postponed the possibility of a tax sale until 1925. Stroud and Wilgus, on account of their business, did not care to have a sheriff’s sale in their name, and for that reason the title was taken in the name of a “straw” man.

11. Stroud and Wilgus dissolved partnership in 1923, and as a result of this dissolution, numerous questions were left open between the members of the firm. Wilgus was to buy Stroud out, and some question arose as to the division of the real estate or as to the expenditures in connection therewith. A deed was made, delivered and recorded for Stroud and Wilgus, copartners, to Stroud and Wilgus as tenants in common, which included their right, title and interest in tracts “A” and “B,” and thus placed their name on the assessor’s book as owners, and taxes were then assessed against them. This complicated the situation as to making title by a tax sale without getting their names on the sheriff’s sale list, so that no active arrangements were made with Kramer to take over the title until the end of 1926 or the beginning of 1927.

12. Both Wilgus and Stroud, on several occasions, requested the defendant, Edwin A. Kramer, to give them a statement of the amount that was due, so that they could pay him off. Edwin A. Kramer put them off until,' finally, Stroud saw Kramer in January of 1927 and insisted that he see West, the attorney, and give the latter the necessary information to clear the title up and get the title in some one else for the purpose of a tax sale in a new name. Accordingly, Kramer saw West and gave him a statement of the amount he had paid out, but it was not complete. However, in February of 1927, Kramer presented his full account. However, at that time arrangements between Stroud and Wilgus were not completed for the selection of a new “straw” name until June of 1927, when West, having been notified by Wilgus that his check was ready at any time, wrote to Stroud for his one-half of the amount, but, owing to a misdirection of the letter, the check was not received, and in the meantime Kramer called West on the telephone and told him that if he did not get the check by July 1, 1927, then “the whole matter was off;” whereupon he was informed that he could not do that, as he was a trustee and merely holding the title for Stroud and Wilgus as their agent.

13. Kramer knew that the plaintiffs took possession of the .property, tore down the buildings and erected fences, and knew that they were in complete possession thereof. He never demanded rent from them, never ordered them from the premises and he never at any time prior to his communication wi£h West in June of 1927 claimed that the property belonged to him.

14. Kramer sent a written three months’ notice on behalf of Stroud and Wilgus to Slocum, the tenant, notifying him to vacate the property for Stroud and Wilgus, collected the rent for three months at $7 per month, and turned the rentals thus collected over to Stroud and Wilgus.

15. Wilgus, in a letter dated May 5, 1924, to Kramer, impliedly asserted his title to the property, and Kramer admits the receipt of a letter dated May 21, 1925, in which West, as counsel for Stroud and Wilgus, asserted the title in Stroud and Wilgus, and Kramer made no reply to either letter.

16. At no time did Kramer, either orally or in writing, assert any title to the property until, having ascertained that Wilgus, in December of 1926, had purchased two properties without consulting him, he, in June of 1927, apprised West, the attorney, that unless settlement was made by July 1, 1927, the matter was off.

17. In the purchase of the particular properties in question, Slocum, the tenant, called the attention of Wilgus to it, Wilgus called Stroud’s attention to it, and Stroud arranged with Kramer to purchase it for Stroud and Wilgus.

18. The case was adjourned from-June 6th, the original date fixed for trial, to June 18th, in order to give the defendant an opportunity to produce his books. At the trial he admitted this fact, but failed to produce the books, yet, under cross-examination, he said that they would have shown the accounts between himself and Stroud and Wilgus covering this particular property, but later he said that they would not.

19. Wilgus, relying on the ownership of Stroud and Wilgus of the corner tract “A” in the plan attached to the bill, and tract “B,” which runs across the entire rear lots of Nos. 604 and 606 Richmond Street, purchased these for himself in 1925 and 1926 with the idea of thus completing the entire consolidation so long under way. He was thus led to spend this money by reason of his belief in the fact that he and Mr. Stroud owned the tracts “A” and “B,” and paid a much higher price for these properties for that reason.

Conclusions of law.

1. The defendant, Adelaide R. Kramer, is the sister of Edwin A. Kramer and holds the “straw” title to the properties, which are the subject of this suit, for him.

2. The said Edwin A. Kramer was the trusted and confidential agent of the plaintiffs in the purchase of the properties in question, and by reason of the trust reposed in him and the circumstances surrounding the purchase of said property, he is a trustee ex maleficio for the plaintiffs and their assigns.

3. That the defendant, Edwin A. Kramer, as trustee ex maleficio, and his sister, Adelaide R. Kramer, who holds the straw title to said real estate, are, therefore, bound to reeonvey the title to the premises in question to the plaintiffs or their assigns upon the repayment to them of all the sums of money advanced to date, together with interest upon such sums.

4. That the defendant, Edwin A. Kramer, should pay the costs incident to these proceedings.

Discussion.

It appears from the facts in this case that William F. Stroud and Horace B. Wilgus were partners and conducted a lumber business at Richmond Street and Montgomery Avenue, in the City of Philadelphia, and for the purposes of the business in which they were engaged, they acquired from various individuals certain pieces of ground on both sides of Montgomery Avenue with a frontage on Delaware Avenue.

That Edwin A. Kramer, a real estate dealer, was employed by them for the purpose of negotiating the purchase of certain properties for them from time to time with the view of enlarging their lumber yard. Among a number of other properties which the said Edwin A. Kramer purchased for the account of the plaintiffs, there were two properties at the corner of Delaware Avenue, formerly Richmond Street, and Montgomery Avenue, marked on the plan as plots “A” and “B,” which formed a part of the said tract of ground and lumber yard which plaintiffs have consolidated. Plot “A” was conveyed to Adelaide R. Kramer, the sister of Edwin A. Kramer, she being selected by him for the purpose of holding the title in trust, either for the plaintiffs or for her brother, and plot “B” was similarly conveyed to her for the same reason. The said Adelaide R. Kramer does not contend that she is the real owner of said lots. Both of these deeds were delivered on Dec. 15, 1921, and recorded on Dec. 29, 1921. The plaintiffs in their bill aver that these two pieces of property were acquired for the plaintiffs by and through their duly accredited agent, Edwin A. Kramer.

It was further alleged, and not denied, that, after the properties were purchased, the plaintiffs took possession of the same, excepting that part of said premises which was occupied by a tenant by the name of Slocum, who retained possession for three months after the properties were purchased, and then removed from said premises in pursuance of a notice that had been given him to deliver up possession, after which the plaintiffs also took possession of that portion of the property and fenced it in. Certain old buildings that were on the premises as purchased were torn down by the plaintiffs, and they have used and exercised absolute control and possession of said premises from that time up until the filing of the bill.

The defendant, Edwin A. Kramer, paid the purchase money, $1200, and also paid some taxes on the property, and it would appear from the evidence in the case was at all times ready and willing to have the properties deeded over to the plaintiffs up until July 1, 1927.

The evidence also shows that after these properties had been purchased, Edwin A. Kramer gave notice on behalf of the plaintiffs to the tenant Slocum to remove within three months’ time; that during that three months’ period Kramer collected the rent at the rate of $7 a month from this tenant and turned it over to the plaintiffs; that on more than one occasion he admitted that the property had been purchased for the plaintiffs, and went so far as to submit an itemized bill for the «amount of the purchase money, taxes and interest compounded on the moneys advanced, demanding payment of the same, and it was not until after Wilgus in December of 1926 had purchased two other properties without consulting Kramer that Kramer, in the month of June, 1927, told West, the attorney for the plaintiffs, that unless settlement was made by July 1, 1927, the matter was off.

It would appear that during the time that Kramer acted as the confidential agent for the plaintiffs, he would purchase properties, advance some of the purchase money and subsequently, at convenient times, render bills to the plaintiffs for the moneys advanced, together with the interest thereon, and his earned commissions, these bills being honored when presented. Thereby a course of dealing, duly recognized by the plaintiffs and Edwin A. Kramer, had been pursued between them; such a course as would justify either of the plaintiffs or the defendant to rely on any transaction such as was had in this case.

There is no doubt in the mind of the Chancellor that at the time Kramer purchased these properties he was a duly authorized and accredited agent for the plaintiffs, and while acting in that capacity any properties purchased by him would be for and on behalf of his employers, and, unless section 4 of the Act of April 22, 1856, P. L. 533, known as the Statute against Frauds, precludes the plaintiffs from recovering in this case, the defendants must be held to have taken the properties in question as trustees for the plaintiffs.

There is a provision in the Act of 1856 as follows: “Provided that where any conveyance shall be made of any lands or tenements by which a trust or confidence shall or may arise or result by implication or construction of law, or be transferred or extinguished by act or operation of law, then and in every such case such trust or confidence shall be of like force and effect as if this Act had not been passed.”

We think that the instant case comes clearly within the exception embodied in the proviso to the Statute of Frauds. The evidence adduced in this case clearly shows that there was a conveyance “by which a trust or confidence” arose “by implication or construction of law” and that the defendants must be held to be trustees ex maleficio.

In the case of Seiehrist’s Appeal, 66 Pa. 237, in which there was a bill to compel conveyance, it appeared that Zirkenbach agreed to buy a tract of ground from one Marvin. Unable to complete his payments, he arranged with Seichrist to take over the title to the entire tract from Marvin, with an oral agreement with Seichrist that the latter would convey to him a certain portion of the land upon payment of a sum stipulated. The appellate court said: “If nothing more existed in the case than a mere bargain between the parties that Seichrist should take a title for the land from Marvin and after-wards convey to Zirkenbach on payment of the proportionate share of the purchase money, the arguments would be irresistible. Undoubtedly the Act of 1856 cuts up by the root all parol trusts by bargain or contract. It is intended to prevent frauds in relation to the title of real estate by requiring the evidence of it to be witnessed by a writing. But we are of opinion this case falls within the proviso to the 4th section of the Act of 1856, that where any conveyance shall be made of any lands or tenements by which a trust or confidence shall arise by implication or construction of law, such trust or confidence shall be of like force and effect as if the act had not been passed. Among the trusts thus resulting from the operation of law are those arising from the fraud of the party who has the title. Although no one can be compelled to part with his own title by force of a mere verbal bargain, yet when he procures a title from another which he could not have obtained except by a confidence reposed in him, the case is different. There, if he abuse the confidence so reposed, he is converted into a trustee ex maleficio. The statute which was intended to prevent frauds turns against him as the perpetrator of a fraud. It is not, therefore, the fact that the bargain by which he was enabled to obtain the title is verbal which governs the case, but the fact that he procured the title to be made to him in confidence, the breach of which is fraudulent and in bad faith. Clearly, such is the case before us.”

In the case at bar, the defendant, Erwin A. Kramer, although called as a witness, did not deny any of the facts relied upon by the plaintiffs. In other words, all of the facts and circumstances testified to by the plaintiffs in the case were practically admitted, and this silence upon his part is a practical admission that he was a trustee of the plaintiffs; and the further fact that he rendered an account demanding settlement confirms the contention of the plaintiffs that the defendant was acting for and on behalf of the plaintiffs in the purchase of this property: Williard v. Williard, 56 Pa. 119; Hatcher v. Hatcher, 264 Pa. 105; Kauffman v. Kauffman, 266 Pa. 270.

In the latter case, Mr. Justice Walling said: “We find nothing to justify disturbing the decree. The facts found are fully warranted by the evidence and the question of equity jurisdiction is not raised. Merely as an express trust of land resting in parol, it could not be enforced against the trustees (section 4 of Act of April 22, 1856, P. L. 533; Purdon’s Digest, 13th ed., vol. 4, p. 4838), except that they confess it in open court. A parol trust becomes valid when in the course of litigation it is confessed by the trustee: Hatcher v. Hatcher, 264 Pa. 105, 110; Christy v. Brien, 14 Pa. 248; Houser v. Lamont, 55 Pa. 311, 317; Rockland & Venango Coal, etc., Co. v. McCalmont, 72 Pa. 221, 226.”

Neither does, the fact that the defendant advanced any purchase money matter. The fact that an agent advances money for his principal does not preclude the principal from securing the benefit of a consummated deal.

“Where an agent to buy land uses his own money to complete the purchase, the transaction will be regarded as a loan to the principal. Nor does the fact that he pays in full out of his own funds necessarily exclude the operation of the principle:” Schrager v. Cool, 221 Pa. 622.

In the case of Gates v. Keichline, 282 Pa. 584, Mr. Chief Justice Moschzisker (page 592) said: “While the law contemplates payment of the purchase money by the beneficiary at the time of the creation of the trust, yet the funds may be advanced by another on his account (Kauffman v. Kauffman, 266 Pa. 270, 276), and this other may be the trustee himself where, as in the present case, the payment is made under an arrangement which contemplates the refunding of the amount advanced in a subsequent accounting between the trustee and his cestui que trust; particularly is this true if, as here, the person in whose name title is taken acts at the time as agent for the claimant: Cook v. Cook, 69 Pa. 443, 447, 448; Schrager v. Cool, 221 Pa. 622, 625. There are cases in which the trustee agreed at the time of acquiring title that the one for whom he was to hold should refund the purchase money to him in instalments, and the trust was sustained: Gilchrist v. Brown, 165 Pa. 275, 283; Kauffman v. Kauffman, 266 Pa. 274, 275, 276.”

In the above case it was also held (quoting from the syllabus):

“A parol trust will be established where the evidence to support it is so clear, precise, convincing and satisfactory that it will satisfy the mind and conscience of a court sitting as a chancellor reviewing the testimony.

“In a proceeding to establish a parol trust in land, the trust will be established against defendant where the evidence shows that the property was purchased at sheriff’s sale by defendant for his sister with money advanced to her from him, but which was subsequently repaid; that there was an agreement between them at the time of the sale that he would in this manner purchase the property on her account, and that at this period he was acting generally as agent for her affairs.

“In such case, the fact that the proofs relied on by plaintiff consisted largely of declarations made by defendant after he acquired title is a circumstance to be considered by the jury, but it neither rendered such proofs incompetent nor the body of the evidence legally insufficient to sustain the findings in plaintiff’s favor.”

In the case of Kern et al. v. Smith et ux., 290 Pa. 566, Mr. Justice Kephart, in affirming the decree of the lower court, said (page 570): “As agent of the fraternity, he could not obtain title for himself against their interest. This would have been a fraud, and where one employed to buy land for another uses the opportunity to his own advantage, a trust relation will spring from such fraud: Schrager v. Cool, 221 Pa. 622. Even if the arrangements were altogether oral, Smith could not have held title as against his principals as the purchase money was paid by the fraternity. A resulting trust arises from such payment when it is proved by competent evidence, as it was in this case: Lloyd v. Woods, 176 Pa. 63; Gates v. Keichline, 282 Pa. 584; Hoover v. Strohm, 44 Pa. Superior Ct. 177. The fact that the agent was to, and did, advance additional money to enable title to pass will not change the result so far as the enforcement of the trust is concerned: Schrager v. Cool, supra,

Prom the evidence adduced at the time of the hearing, it appeared beyond question that the defendants have title to the properties in suit only by reason of the trust and confidence reposed in them by the plaintiffs, and that at the time the property was transferred to Adelaide R. Kramer, her brother, Edwin A. Kramer, who now claims the real title, was the duly accredited confidential agent of the plaintiffs, and in consummation of the deal was acting for and in their behalf, and in pursuance of the arrangements made at that time, the plaintiffs took the physical possession of this property and have been and remained in the absolute continuous possession, using the same in their business for a period of eight years and 'upwards, and the money that was paid for the property, together with the taxes thereon, was made and considered as made by the defendant, Edwin A. Kramer, as a loan; and these facts, in addition to the failure of the defendant to deny the allegations of the plaintiffs with respect to the acquisition of this property and the relation existing between him and the plaintiffs, amounts to a confession upon his part that he was and is a trustee ex malefioio of the property for the plaintiffs in the bill. Therefore, for the reasons above stated, the prayer of the petitioner, asldng that the said Adelaide R. Kramer be enjoined and restrained from transferring or otherwise encumbering or invalidating the title which she holds in trust for the plaintiffs, should be granted; also, that the said Adelaide R. Kramer should be ordered and decreed to convey the said premises to the plaintiffs by a good and sufficient deed, upon the payment to Edwin A. Kramer or to Adelaide R. Kramer, for the account of the said Edwin A. Kramer, of the sums advanced by the said Edwin A. Kramer for the purchase of the property for the account of the plaintiffs, with simple interest thereon on each item thereof from the date of the payment by the said Edwin A. Kramer to the date of the repayment by the plaintiffs.

And now, to wit, Dec. 24, 1929, after due consideration of the bill, answer, the evidence adduced at the time of the hearing and the briefs of the respective parties, it is ordered and decreed that the said Adelaide R. Kramer be enjoined and restrained from transferring or otherwise encumbering or invalidating the title which she holds in trust for the party plaintiffs to any other than the party plaintiffs or their nominees, heirs and assigns, the description of the said properties being known and designated in plaintiffs’ bill as two properties at the corner of Delaware Avenue (formerly Richmond Street) and Montgomery Avenue, marked on the plan as plots “A” and “B,” which form an integral part of the said large tract of ground and lumber yard so consolidated and more particularly and fully described in the plaintiffs’ bill of complaint.

It is further ordered and decreed that the said Adelaide R. Kramer convey the said premises to the plaintiffs or their heirs or assigns by a good and sufficient deed, upon the payment to Edwin A. Kramer or to Adelaide R. Kramer, for the account of the said Edwin A. Kramer, of the sum or sums advanced by the said Edwin A. Kramer for the purchase of the property for the account of the plaintiffs, together with any and all taxes paid on said property by him, together with legal interest on each item of said advancements thereof from the date of the payment by the said Edwin A. Kramer to the date of its repayment by the plaintiffs.

It is further ordered that the said Edwin A. Kramer pay the costs incidental to these proceedings.


author: Chambers, J.,

text:
    Patton v. Lawrence County Commissioners.

      Randall B. Luke, for petitioner.

      John P. Lockhart, County Solicitor, for respondents.
    Aug. 29, 1929.
   Chambers, J.,

This case comes before the court on petition of plaintiff for writ of mandamus against Thomas J. McCullough, P. 0. Elder and Calvin C. Boyd, County Commissioners of Lawrence County, and W. A. Eakin, their chief clerk, commanding them to place the name of Charles V. Patton upon the ballot for the coming primary election to be held on Sept. 17, 1929, as a candidate for nomination for the office of justice of the peace in and for the Borough of Ellwood City.

The Borough of Ellwood City, as originally incorporated, was within Lawrence County. There has been annexed to said borough, however, a portion of land adjoining the original borough and lying within the County of Beaver. The plaintiff resides within that part of the borough which lies in Beaver County. On July 22, 1929, the said Charles Y. Patton presented to W. A. Eakin, chief clerk for the County Commissioners of Lawrence County, a petition in regular form to have his name placed upon the official ballot for the fall primary of the year 1929 as a candidate for justice of the peace in Ell-wood City Borough. This petition was signed by twenty-nine persons admitted to be qualified electors of the Republican Party of the Borough of Ellwood City. On the day of its presentation it was stamped as follows: “Filed July 22, 1929, W. A. Eakin, Chief Clerk.” On Aug. 16, 1929, the county commissioners, through their chief clerk, notified plaintiff by letter that he would not be eligible to have his name placed on the ballot, for the reason that he was not a resident of Lawrence County. The petition for a writ of mandamus on the part of the plaintiff was then presented.

Section 2 of the Act of July 9, 1919, P. L. 832, provides as follows: “It shall be the duty of the officer or officers to whom any nomination paper is brought for the purpose of filing, to examine the said paper, and if it lacks sufficient signatures or be otherwise manifestly defective, it shall not be filed; but the action of said officer or officers in refusing to receive such paper may be reviewed by the Court of Common Pleas of the county upon an application for mandamus to compel its reception as of the date when it was brought to the office. All nomination papers which have been filed shall be deemed to be valid unless objections thereto are duly made, by writing filed in the Court of Common Pleas of the county in which the paper objected to has been filed and with the officer or officers with whom such papers have been filed and within the following periods. . . .”

The plaintiff contends that the paper presented met the requirements of this act; that it had sufficient signatures; that it was not in any way manifestly defective, and that no written objections to the petition were filed.

If the plaintiff by reason of his residence being in that part of Ellwood City which is in Beaver County is not eligible to the office of justice of the peace in the Borough of Ellwood City, then we cannot hold with the contention of the plaintiff. It appears that Division Avenue, upon which the plaintiff resides, in its centre line is the dividing line between that part of the borough which lies in Lawrence County and that part annexed from Beaver County. If no one residing in that part of the borough which lies in Beaver County is eligible to the office of justice of the peace, then it would be the duty of the county commissioners to examine the paper and if they found the residence of the candidate to be in such part of the borough to refuse to receive it. The paper would be manifestly defective. The petition sets forth the residence of the plaintiff as being at No. 523 Division Avenue, Ellwood City, Pennsylvania. This number is on that side of the street which lies in Beaver County, and to that extent the paper is manifestly defective. The evidence taken shows that the stamp placed on the nominating petition was placed thereon by the clerk in the absence of any action on the part of the commissioners. It was the duty of the commissioners to act upon the paper as a board. And until they so acted it could not be said to be filed. When the paper was called to their attention and the place of residence of the candidate became manifest, they refused to accept it and so notified him. As county commissioners they would be presumed to know the territorial limits of the county as well as of the Borough of Ellwood City, and on examination of the paper itself, showing that the candidate resided out of the county, they would be warranted in refusing to receive it.

The question of the eligibility of a candidate for the office of justice of the peace in that part of the Borough of Ellwood City annexed from Beaver County we find more difficult. The question presented to us, as far as we are able to find, has not been passed upon. It will be necessary, therefore, to notice the constitutional provisions, the statutes and the decisions of our courts in relation to the office and reach such conclusion as we may.

Section 11 of article 5 of the Constitution of Pennsylvania provides as follows : “Except as otherwise provided in this constitution, justices of the peace or aldermen shall be elected in the several wards, districts, boroughs and townships at the time of the election of constables by the qualified electors thereof, in such manner as shall be directed by law, and shall be commissioned by the governor for a term of five years. No township, ward, district or borough shall elect more than two justices of the peace or aldermen without the consent of a majority of the qualified electors within such township, ward or borough; no person shall be elected to such office unless he shall have resided within the township, borough, ward or district for one year next preceding his election. In cities containing over fifty thousand inhabitants, not more than one alderman shall be elected in each ward or district.”

Section 1 of the Act of June 28, 1923, P. L. 903, provides as follows: “That where lands situated in one county now are or hereafter shall be annexed to a borough situated in an adjoining county, said lands which are so annexed shall be governed for borough and school purposes as a part of the borough to which they are annexed, and for county and poor purposes they shall be governed as a part of the county or poor district in which they are actually situated, which said government shall be administered according to the general law relating to boroughs, school districts, counties and poor districts, except as hereinafter otherwise provided.”

Section 6 of the Act of June 28,1923, P. L. 903, provides as follows:

“Jurisdiction of Courts in Actions Arising in Such Territories. — All prosecutions and summary convictions for violations, within land situated in one county and annexed to a borough situated in an adjoining county, of borough ordinances and the school laws and the laws relating to motor vehicles shall be had only in the county wherein is situated the borough to which the said land is annexed, and the several courts, both of record and not of record, in said county are hereby given jurisdiction thereof.

“All civil suits (except those arising out of reports of viewers as hereinafter stated) and all prosecutions and summary convictions for all other offenses, misdemeanors and crimes committed within land situated in one county and annexed to a borough situated in an adjoining county shall be had in the court wherein the same would have been tried if said land had not been annexed to the said borough, and the jurisdiction of the several courts of this Commonwealth to hear and determine the same shall not be affected in any way by the annexation of such land to such borough, except that the courts of the county wherein is situated the borough to which the land has been annexed shall have exclusive jurisdiction to hear and determine all prosecutions and summary convictions for violations within such land of borough ordinances, the school laws and the laws relating to motor vehicles.”

The office of justice of the peace is an ancient and honorable one and has existed in some form throughout the history of the common law. In Bowman’s Case, 225 Pa. 364, Mr. Justice Brown, speaking for the court, on page 368, says: “Under all of our constitutions a justice of the peace has been a constitutional officer, and by the 11th section of the judiciary article of the present one he is a judicial officer. This appellant was as much a judge, though in a limited sphere, as the judicial officer by whose decree the appellees would have him removed from office. He was duly elected by the people, and, by the mandate of the constitution, commissioned by the governor to serve for a term of five years as the head of a court not of record.”

While our justices of the peace are to be elected by the electors of the several wards, districts, boroughs and townships, their jurisdiction extends over the entire county. So while elected by the electors of such district, he is not a borough or township officer but a county officer: Com. ex rel. Graham v. Cameron, 259 Pa. 209; Com. ex rel. Brunner, 6 Pa. C. C. Reps. 323; Stapleton v. Greist, 26 Pa. C. C. Reps. 134; Com. ex rel. Lentz, 13 Dist. R. 388.

While the office of justice of the peace as originally established in England was exclusively an office to keep the peace, in our own State he has extensive civil jurisdiction, exclusive up to $5.33, mandatory on penalty of costs to the amount of $100, and concurrent with the Common Pleas in amounts exceeding $100 and not in excess of $300. This jurisdiction, while extending all over the county, is confined to the county in which the justice has his office.

In the case before us, the Borough of Ellwood City, while lying mostly in Lawrence County, has annexed to it a part of Beaver County. The candidate lives in Beaver County. His civil jurisdictions, if elected, would be confined to Lawrence County. It is a constitutional requisite that a justice of the peace shall have resided within the township, borough, ward or district for one year next preceding his election. It is true that under the provisions of the Act of 1923, above cited, a justice of the peace in a borough, which has annexed to it lands from another county, has a limited jurisdiction in prosecutions and summary convictions relating to borough ordinances, school laws and laws relating to motor vehicles, but it is confined to this. And all civil suits, prosecutions and summary convictions for all offenses, misdemeanors and crimes committed within such annexed district are excluded. We are, therefore, of opinion that the residence required by the Constitution would be confined to that part of the borough which lies exclusively within the territorial limits of Lawrence County. The Act of June 28, 1923, P. L. 903, above cited, specifies that lands from an adjoining county annexed to a borough within another county shall be governed for borough and school purposes as part of the borough to which they are annexed, and for county and poor purposes they shall be governed as a part of the county or district in which they are actually situated. The jurisdiction of a justice while having to do with violation of borough ordinances, school laws and violations of the Motor Code, is more extensively concerned with general civil actions and violation of general criminal laws. He is not a borough officer, but a county officer, and in the Borough of Ellwood City he is a Lawrence County officer. If this candidate were elected, he should have the right to maintain his office where he lives. We would then have a resident of Beaver County subject to the laws of Beaver County in everything except matters relating to borough ordinances, school laws and violations of the Motor Code, sitting in Beaver County, exercising jurisdiction over the citizens of Lawrence County. We are of opinion that the framers of our Constitution did not intend any such situation as this. We are, therefore, of opinion that in order to be eligible to the office of justice of the peace in the Borough of Ellwood City, the candidate being otherwise qualified, must have resided within that part of the borough which is in Lawrence County for a period of one year next preceding his election, and that the petitioner in this case, not possessing these qualifications, is not entitled to have his name placed upon the ballot at the coming primary election as a candidate for justice of the peace in the said Borough of Ellwood City.

In according with the foregoing opinion, we make the following

Order.

Now, Aug. 29, 1929, the writ of alternative mandamus issued Aug. 19, 1929, is discharged and the petition ©f Charles V. Patton is dismissed, at the costs of the petitioner.

Prom William McElwee, Jr., New Castle, Pa.


author: Koch, P. J.,

text:
    Commonwealth v. Harris et al.

      C. A. Snyder, District Attorney, for Commonwealth.

      C. E. Berger, M. A. Kilher and C. M. Palmer, for defendants.
    Nov. 11, 1929.
   Koch, P. J.,

— The information in this case was laid before a committing magistrate on April 27, 1928, and his return is marked filed by (the clerk of this court as of the 3rd day of May, 1928. But the bill of indictment was not found until March 8, 1929, so the defendants filed a motion to quash the bill on Sept. 14, 1929. ■ The recognizance shows that the defendants waived a hearing before the committing magistrate and were held to bail for their appearance at the May Sessions of 1928. The grounds of the motion to quash may be briefly stated as follows:

(1) The bill was not found at the term to which the case was returned; (2) the bill was found at a later term without prior notice to the defendants ■that the bill would then be submitted to the grand jury; (3) the bill was found without the hearing of witnesses in support of it; (4) the names of no witnesses are endorsed on the bill; (5) the indictment is fatally defective, in that it does not aver that the person alleged to have been libeled is the person referred to and described in the alleged libelous article and no extrinsic facts are averred in said indictment to connect said person with the alleged libelous article by way of inducement and colloquium; (6) the indictment is fatally defective, in that the article set forth therein is not libelous or defamatory per se, and it does not aver by way of innuendo, or otherwise, that said article has any libelous or defamatory meaning, or what the libelous or defamatory meaning of the article is; and (7) the indictment does not charge any indictable offense.

The Commonwealth insists that its subpoena, which was issued in this case for the March Sessions of 1929, shows that the defendants did have notice that the bill of indictment would be submitted to the grand jury at that term of court. An inspection of the subpoena shows that it was dated Feb. 20, 1929, and was served on Charles A. Snyder, whose name is endorsed as the prosecutor in the case. No other witnesses are named in the subpoena. But on the face of the subpoena we find stamped the words “Notify defendant.” However, there is nothing to show what that notice to the defendants was to be. Nor is there anything else to show that the defendants were notified that a bill would be presented against them at said March Sessions of the court in 1929. There is nothing on the record to show that the defendants had been notified of anything concerning the case. The calendar shows that March 2nd was on a Saturday, and we take judicial notice of the fact that the grand jury began its hearings on the following Monday, to wit, March 4th. Therefore, the notice can hardly be called a reasonable notice in point of time.

If a bill of indictment be not found at the term to which a criminal ease is returnable, the defendant is entitled to prior reasonable notice of the time when the bill of indictment will be submitted at a subsequent term of court.

That a defendant is entitled to reasonable notice prior to the submission of a bill against him at a term subsequent to the one to which the case has been returned is settled by numerous authorities, of which we will cite a few, to wit: Com. v. Hacker, 40 Pa. C. C. Reps. 98; Com. v. Rice, 15 Dist. R. 604; Com. v. Brown, 12 Dist. R. 316; Com. v. Haefner, 21 Dist. R. 866; Com. v. Holt, 21 Dist. R. 714; Com. v. Wilhelm, 23 Lanc. Law Rev. 402. In the case of Com. v. Haefner, 21 Dist. R. 866, the defendant contended that, as the record showed no notice to him or consent on his part, the indictment should be quashed; and the Court of Quarter Sessions of Lancaster County held that the point was well taken, and quashed the indictment.

As the indictment must be quashed, under the above authorities, no discussion of the other reasons in support of the motion to quash is necessary.

Prom M. M. Burke, Shenandoah, Pa.


author: Wickersham, J.,

text:
    Johnson v. Johnson.

      Victor Braddock, for exceptions.
    Oct. 18, 1929.
   Wickersham, J.,

— The libellant in this case prays to be divorced from her husband, the respondent, upon the ground that “he hath wilfully and maliciously deserted and absented himself from the habitation of Cora B. Johnson, libellant, without a reasonable cause, for and during the term and space of two years and uwards.”

After hearing the testimony, the master found the facts which we have examined and find that they are supported by the testimony. We, therefore, adopt them as our own.

The master was of the opinion, however, that the motion for the appointment of a master was insufficient to confer jurisdiction upon him to hear the .case and take the testimony. With this conclusion we cannot agree. Counsel for the libellant certified “that the said action is ready for hearing, all requirements of the law and rules of court having been strictly complied with by the libellant.” We think this certificate is in substantial compliance with the law.

It appears from the record (see Notes of Testimony, page 1) that a subpoena was awarded on March 20, 1929; that, on March 21, 1929, the subpoena was served personally upon the respondent; that, on May 23,1929, the master was appointed. It further appears (see Notes of Testimony, page 2) that the master mailed a notice of the time and place of hearing to the respondent by registered letter, as required by rule of court, and from the respondent the master received the receipt card, duly signed, showing that the same had been received by the respondent. It appears from the master’s report (see page 2) the respondent did not appear in person or by counsel. The master also certified that the pleadings in the case were all attached to and made a part of his report. These we have examined and find that the respondent was notified of the proceedings in the manner required by law, and that he did not appear in person or by counsel. He did not file an answer, nor did he take a rule upon the libellant to show cause why the issue of fact set forth in the said rule should not be tried by a jury.

The statute does not require either party to a divorce to request a jury trial; in fact, the statutes set forth that those parties who shall desire any matter that is affirmed by the one and denied by the other to be tried by a jury, may take a rule, after which the court decides whether or not a trial by jury may be had. Furthermore, the awarding of a trial by jury must be founded upon some substantial dispute. The courts have never demanded that rules issue for jury trials before appointments of masters, when facts are not disputed or when respondent fails to appear. We are of the opinion, therefore, that the certificate of counsel for the libellant in his motion for the appointment of a master is sufficient.

The exceptions to the master’s report filed by the libellant are sustained. Under the findings of fact, we are of the opinion that the divorce should be granted; in fact, we find the master was of the same opinion, providing the certificate in the motion for the appointment of a master was sufficient.

And now, Oct. 18, 1929, a decree will be signed upon application of counsel upon payment of the costs.

From Homer L. Kreider, Harrisburg, Pa.


author: MacDade, J.,

text:
    Commonwealth v. Boyer.

      William R. Tool, Assistant District Attorney (with him William J. Mac-Carter, Jr., District Attorney), for Commonwealth.

      Wm. Cloud Alexander, for defendant.
    Nov. 18, 1929.
   MacDade, J.,

— The defendant, James Boyer, appeals from the taxation of costs in the above recited case and files the following specifications of the items to which he excepts and the reasons therefor:

“1. The amount allowed to the Heyburn Detective Agency, One hundred thirty-eight dollars and fifty cents ($138.50), and the amount allowed to the chemist, Twenty Dollars ($20.00), these not being proper items chargeable as costs against a defendant who is found ‘Not Guilty’ and the costs placed on him.

“2. There is no law requiring a defendant who is found ‘Not Guilty’ and the costs placed on him to pay such costs.”

The Act of March 31, 1860, § 62, P. L. 427, provides: “In all prosecutions, cases of felony excepted, if the bill of indictment shall be returned ignoramus, the grand jury returning the same shall decide and certify on such bill whether the county or the prosecutor shall pay the costs of prosecution; and in all cases of acquittals by the petit jury on indictments for the offenses aforesaid, the jury trying the same shall determine, by their verdict, whether the county, or the prosecutor, or the defendant, shall pay the costs, or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportions; and the jury, grand or petit, so determining, in case they direct the prosecutor to pay the costs or any portion thereof, shall name him in their return or verdict; and whenever the jury shall determine, as aforesaid, that the prosecutor or defendant shall pay the costs, the court in which said determination shall be made shall forthwith pass sentence to that effect, and order him to be committed to the jail of the county until the costs are paid, unless he give security to pay them in ten days.”

It seems that the defendant was charged with a violation of the liquor laws under the Act of 1923, and the jury, after trial, found the defendant “Not Guilty,” but imposed the costs of prosecution upon him.

In the costs of prosecution the Commonwealth is endeavoring to have taxed, as part of the same, detectives’ services as well as the services of a chemist in analyzing the liquor found in the possession of the defendant for the purpose of using their testimony in the trial, which was so used. There isn’t any question at all but that the jury had authority to place the costs upon the defendant after acquitting him of the charges preferred against him under the authority of the above act, which says, “and in all cases of acquittals by the petit jury on indictments for the offenses aforesaid, the jury trying the same shall determine by their verdict whether the county or the prosecutor or the defendant shall pay the costs, etc.”

Evidently, the jury intended that the defendant should pay the costs.

The verdict in the present case turned upon the credibility of testimony. Evidently, the defendant was acquitted because the jury did not regard the testimony as strong enough to exclude all reasonable doubt. It was within their discretionary power, under those circumstances, to impose the costs upon him: Com. v. Tilghman, 4 S. & R. 127; Com. v. Bishop, 14 Pa. C. C. Reps. 404; Com. v. Jones, 11 D. & C. 207.

The propriety of imposing costs upon a defendant is a matter for the exercise of discretionary judgment by the jury on the basis of the view they take of the evidence, and it is not the province of the court to retry the question and assume the place of the jury: Com. v. Wagner, 1 York Leg. Record, 24; Com. v. Gabby, 5 Dist. R. 159.

Indeed, the court may not set aside costs imposed by the jury on defendant indicted for manufacturing, sale and possession of intoxicating liquor in his home: Com. v. Tremeloni, 93 Pa. Superior Ct. 432; Com. v. Fedulla, 89 Pa. Superior Ct. 244; Com. v. Dombkowski, 86 Pa. Superior Ct. 468; Com. v. Bixon, 67 Pa. Superior Ct. 554; Linn v. Com., 96 Pa. 285; Com. v. Shaffer, 52 Superior Ct. 230; Com. v. Lederman, 14 Lanc. Law Rev. 185; Com. v. Meekes, 15 W. N. C. 450.

We have come to the conclusion after careful examination of the record and the law on the subject of costs that the same are exclusively a matter of statutory law, and, in fact, could not be recovered at common law: Com. v. Cooper, 9 D. & C. 358.

So, therefore, we have to look to the statutes for authority to impose any costs at all and we find that in 1923 the Assembly of the Commonwealth of Pennsylvania passed a law June 29th, which will be more particularly found in our Pamphlet Laws, 1923, P. L. 973, and particularly section 1 thereof, which is to the effect that all necessary expenses incurred by the district attorney of any county of this Commonwealth or his assistants, or any officer directed by him in the investigation of crime and the apprehension and prosecution of persons charged with or suspected of the commission of crime, shall be paid by the respective counties, out of moneys in the county treasury, upon the approval of the bill of expense by the district attorney and the courts of their respective counties. And in cases where a defendant is convicted and sentenced to pay the costs of prosecution and trial, the expenses of the district attorney, in connection with such prosecution, shall be considered a part of the costs of the case and be paid by the defendant.

It will be noticed that there is no provision made in the said Act of 1923 for the imposition of costs or expenses of the district attorney in connection with the investigation of crime and apprehension and prosecution of persons charged with or suspected of the commission of a crime in cases of acquittals and the petit jury exercising its discretion under the Act) of March 31, 1860, § 62, P. L. 427, imposing the costs upon the defendant after such acquittal. Unless there is statutory authority for the imposition of such costs, including the expenses aforesaid, after an acquittal of the defendant, we cannot affirm the judgment of the Clerk of the Court of Quarter Sessions in taxing such expenses as part of the costs thereof. Such a principle of compensation is contrary to the genius of the common law, which does not give even costs, and the Statute of Gloucester does not embrace it: Smith v. Equitable Trust Co., 215 Pa. 413; Whitney et al. v. Jersey Shore Borough, 266 Pa. 537; Kaufmann v. Kirker, 22 Pa. Superior Ct. 201; Com. v. Wilson, 4 D. & C. 302.

It will be seen from an examination of those cases that the Supreme Court has been reluctant to extend the term “costs” beyond its accepted meaning. The expression “necessary expenses” is a very elastic one, but in the present case, it seems to us, there is a clear distinction between what the district attorney may do before trial and what is done on the trial. The language of the act is, “in the investigation of crime and the apprehension and prosecution of persons charged with or suspected of the commission of crime.”

Inasmuch as the present act excludes cases of acquittals and only refers to the inclusion of the expenses of the district attorney in cases' of a conviction, we must hold that the words “necessary expenses” cannot extend the term “costs” beyond its accepted meaning, and that, therefore, these expenses are not legitimately part of the costs if there be an acquittal. However, we do not want to be misunderstood in this respect, and would say that if the defendant had been found guilty, these “necessary expenses” would have been properly taxed as part of the costs of the case which the defendant would haye been obliged to pay as costs following the imposition of sentence upon a verdict of guilty rendered against him.

Therefore, we make the following

Order.

And now, Nov. 18, 1929, the above case coming on to be heard by the court in banc upon appeal from the taxation of costs, after due consideration thereof, we do order and decree that the appeal from the taxation of costs with respect to “expenses of the detectives and chemist” be and is hereby allowed; the said items stricken from the costs in the said case and the taxation of costs in all other respects be and is hereby affirmed.

Prom William R. Toal, Media, Pa.


author: Gest, J.,

text:
    Dreer’s Estate.

      Byron, Longbottom, Pape & O’Brien, for Volunteers of America, exceptant.

      Charles F. Eggleston, for the Philadelphia Federation of Churches, contra.
    Feb. 21, 1930.
   Gest, J.,

— This case was carefully heard and considered by the Auditing Judge, before whom much testimony was produced. We are satisfied that his conclusions were correct, and the exceptions are, therefore, dismissed for the reasons stated in the adjudication, which it is not necessary' to elaborate.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Henderson, J., did not sit.


author: Lewis, J.,

text:
    Catsiff v. Elanore Rothschild Building and Loan Ass’n.

      Felix & Felix, for plaintiff; S. Englander and V. II. Blanc, for defendant.
    March 19, 1930.
   Lewis, J.,

— Plaintiff sues in this action of assumpsit as a stockholder of the defendant building and loan association to recover the value of her stock, which, she avers, was, by the board of directors of the defendant, declared matured on the first Monday of October, 1928. To the statement of claim filed, the defendant replies that it “was insolvent prior to and since October, 1928, and, therefore, said stock never matured.” It also resists payment upon the ground that in June, 1929, the stockholders agreed upon a voluntary liquidation of the association. The matter is before the court on a rule for judgment for want of a sufficient affidavit of defense.

“The usual scheme or plan of such (building) association is that a member shall pay into the treasury thereof a certain stated sum weekly or monthly for each share of stock issued, and that such payments shall be continued until therefrom and from premiums, fines and interest, and from other sources of profit, the capital of the corporation shall be sufficient to pay on each share of stock a sum previously agreed upon, at which period each stockholder shall be entitled to have his share so paid to him and to withdraw from the corporation or association:” 4 Ruling Case Law, § 2, page 343.

“In their original conception, the object of such associations was to enable those of small means and income to acquire homes and build houses, and thus become better citizens and more identified with the growth and welfare of the country, and the loan feature was a mere incident to effect this primary object. The theory was that persons whose earnings were small might become, by a system of compulsory saving, the owners of homesteads either at the end of a certain time or in anticipation of it:” McCauley v. Building and Saving Ass’n, 97 Tenn. 421.

“Building and loan associations are peculiar corporations, in that at the inception a share therein has only a nominal value and payment therefor is made at the end, rather than at the beginning, and in that the capital may be diminished at the will of the stockholder by his withdrawal:” 9 Corpus Juris, § 4, page 921.

The association is bound to mature the stock as soon as it can do so from its earnings and other resources in which the members are entitled to share: 9 Corpus Juris, § 49, page 944.

It is urged upon us that the board of directors having declared as matured the stock of the plaintiff, she ought to have a judgment. While a declaration of maturity by directors is necessary and sufficient for the bringing of suit for the value of the shares, such declaration is not otherwise a condition precedent to maturity, nor, where made, is it conclusive: Callahan’s Appeal, 124 Pa. 138.

“A mistaken declaration of maturity when stock is, in fact, not matured will not make the stockholder a creditor nor put him in a position of the holder of matured stock in subsequently winding up the affairs of the association when insolvent:” Sundheim’s Law of Building and Loan Associations (2nd ed.), page 56.

What is insolvency, in so far as the term is applicable to the operation of building associations?

Mr. Sundheim, in his work on building and loan associations, at page 180, makes this statement: “The insolvency of building and loan associations is unpleasant to contemplate or to write about. Fortunately, instances of insolvency have been few, and the losses, in comparison with other business or bank failures, have been slight.”

Against that statement we have the recent decline in the value of real estate and the extraordinarily large number of foreclosure proceedings which have culminated in a condition where we have a sheriff’s sale list of over a thousand properties per month in Philadelphia County. That the value of the assets of many building and loan associations have been impaired, if not utterly destroyed, cannot be doubted. The unprecedented number of foreclosures on first mortgages, which ordinarily are prior to the liens of the building and loan associations and which result in the wiping out and discharge of their liens and security; the failure on the part of the members to continue payment on their shares; and the extraordinary number of requests for withdrawals have created a temporary condition of chaos in the relations of the public to these financial associations.

“When a bank fails it is taken as a matter of course and results in no serious disturbance in the business of other banks. People still have faith and confidence in, and entrust their savings and capital to, other banks, but the insolvency of a building and loan association is a reflection on all associations and becomes a family and local tradition:” Sundheim’s Law of Building and Loan Associations, § 176, page 180.

The losses incurred by some building associations within the last several years have been occasioned by the reductions in the real estate market and the impairment in the value of the securities taken by these associations for the money advanced to the borrowers. Not only have these losses greatly affected the profits of these building and loan associations but they have brought about a condition of market insolvency of a large number of such institutions.

While corporations are generally held to be insolvent when the assets are insufficient to pay their creditors exclusive of stock subscription, building and loan associations are sui generis and are said to be insolvent when they cannot, besides paying their general creditors, pay back to their stockholders the amount of their contributions dollar for dollar: Kurtz v. Bubeck, 39 Pa. Superior Ct. 370; People v. New York Building Loan Banking Co., 41 Misc. 363; 84 N. Y. Supp. 844; Globe Building, etc., Co. v. Wood, 110 Ky. 4; 22 Ky. Law, 1500; 60 S. W. Repr. 858.

The language of District Judge Maxey, in Gunby v. Armstrong, 133 Fed. Repr. 417, 426 (Circuit Court of Appeals, 5th Circuit, 1904), is quite instructive. During the course of his opinion, he says: “If the term ‘insolvency’ as applied to a building association be construed to mean mere inability to pay its creditors, then the association was not insolvent at the time the court took charge of its affairs by the appointment of a receiver. But such is not the true meaning of the term in its application to corporations of that character. The insolvency of a building association, to employ the words of another, is a peculiar thing. ‘It is the inability of the building association not to pay its outside debts (for that does not seem to have ever occurred, and in the nature of things can scarcely be thought of), but to satisfy the demands of its own members, that has been recognized as an insolvency:’ Endlich on Building Associations (2nd ed.), page 511; Towle v. American Building L. & Invest. Society (Circuit Court), 61 Fed. Repr. 446. And when in the course of its business it reaches a point where it finds itself unable to carry to completion the purposes of its creation — in a word, when the consummation of the scheme becomes impracticable, it may be said to be unable to satisfy the demands of its own members.”

In Towles et al. v. American Building L. & Invest. Society (Circuit Court, N. D., 111), 61 Fed. Repr. (1894) 446, Grosscup, District Judge, said: “These associations are essentially corporate copartnerships. They have no function except to gather together, from small stated contributions, sums large enough to justify loans. Their officers are the agents of every stockholder. They have no debtors or creditors except the stockholders, and whether the stockholder is a creditor or debtor depends on whether he has exercised his privilege of borrowing money from the common fund. The insolvency of such an institution is sui generis. There can be, strictly speaking, no insolvency, for the only creditors are the stockholders by virtue of their stock. The so-called insolvency is such a condition of the affairs of the association as reduces the available and collectible funds below the level of the amount of stock already paid in. The association is said to be insolvent when it cannot pay back to its stockholders the amount of their actual contributions dollar for dollar.”

Is the defendant building association insolvent within the legal definition of the term? The affidavit of defense does not give sufficiently the facts from which that conclusion can be drawn. Voluntary liquidation does not necessarily indicate insolvency, and were this the only question to be decided, it may be that plaintiff would be entitled to judgment upon the pleadings. However, the court is of the opinion that plaintiff cannot have a judgment in the form of action which she has begun.

In Pennsylvania, the exclusive remedy for the recovery of the value of shares upon alleged maturity lies in equity, and this court would have no jurisdiction to enter any judgment in the present assumpsit action. In this regard, the right of members at maturity is not to be confused with the right of withdrawal which may be enforced by action at law.

In Thornton and Blackledge’s Building and Loan Associations, § 330, page 352, it is said: “Suit to recover the amount due on matured or prepaid stock must be brought in equity and not at law.”

Again, in Laurel Run Building Ass’n v. Sperring, 106 Pa. 334, 338, Mr. Justice Paxson said: “As a result of this somewhat questionable proceeding he held two shares of stock of the fixed value of $116 each, $232, upon which he owed the company $141.40, leaving an apparent balance due him of $90.60, which he would be entitled to receive upon the final winding up of the first series. That he was not entitled to sue for it at law was settled in O’Rourke v. West Penn Loan and Building Ass’n, 93 Pa. 308.”

Turning to O’Rourke v. West Penn Loan and Building Ass’n, 93 Pa. 308, we have an action in assumpsit brought for the recovery of the matured value of the plaintiff’s shares in the defendant association. The court, upon motion, granted a non-suit and subsequently refused to take it off. Yerkes, J., in an opinion, which was affirmed per curiam by the Supreme Court, said:

“The plaintiff brought his action at law. Upon the trial he showed that he was the owner of the stock in the building association; that by the report of auditors, distributed at an annual meeting in November, 1878, each share of stock in the series to which he belonged was worth $200, and that thereafter the officer whose duty it was to receive monthly dues refused to receive them, on the ground that the stock was fully paid up. He was non-suited, upon the ground that the rights which he sought to enforce being those of a stockholder only, he had no remedy at law. The general principle that a stockholder qua stockholder must resort to a court of equity is conceded by the plaintiff’s counsel, but he contends that a stockholder in a building association, as soon as his stock is announced to be fully paid, becomes a creditor and ceases to be a stockholder, or that the announcement that the stock is fully paid is equivalent to a declaration of a dividend of the par value of the shares. His proposition, as found in the paper-book, is: ‘The stock in question increased in value and continued to be merely stock until the series ran out, after which time it stood in the position of a declared dividend.’ It is true that it is the design and practice of associations to wind up as soon as can conveniently be done after the stock becomes of the value of $200 a share. Stock and loans are canceled and cash is paid to the non-borrowers. There is nothing in this to change the status of stockholders. The corporation certainly exists until the final act of dissolution, and to exist there must be stock and stockholders. The argument of the plaintiff would leave no corporation to be sued and no authority to divide the funds, and the assets would be in the hands of mere individuals. It is no answer to this to say that these associations generally issue several series of stock and that because of outstanding series the corporation would exist to wind up a series that was fully paid, although stock of that series .. . and these corporations are of limited duration; the time must come with all of them when there will be but one series of stock outstanding. Nor can it be said that the stock of a fully-paid series retains enough of the elements of stock, and its holders sufficiently those of stockholders, to keep alive the corporation, for the purposes of suit, whilst at the same time the stock becomes a debt and the stockholder a creditor, sufficiently to bring the suit. It is not possible for either the stockholder or the stock to have the dual character ascribed. . . . Much remained for the corporation to do before the series could he wound up. If any of the money was loaned otherwise than upon the stock of the series, there would be another obstacle to the winding up. An immediate conversion of assets would probably result in loss, a result which the association should avoid. The stockholders have the right to share equally in the assets, which would hardly be possible if the association was liable to suit and execution by every shareholder of a fully paid-up series. The assets would be so eaten up' by costs of litigation and the forced sales of property that little would be left for those who came last. We cannot see that building associations are exceptions to the general law governing corporations — that a shareholder cannot sue at law qua, shareholder. It follows that, if he wishes to participate in all of the profits of the association, he must wait until the corporation winds up the series to which he belongs. If he is not content to await their action, his only remedy is to withdraw and to bring a suit at law as a withdrawing stockholder. Of course, there may be cases where he may invoke the ai'd of a court of equity. . . . Rule to take off non-suit discharged.”

In his excellent treatise on “The Law of Building Associations,” Mr. Endlich, § 118, page 107, states the rule:

“Membership in a building association gives ground to no exception to the general rule relating to corporations that a shareholder, qua, shareholder, cannot maintain an ordinary action at law for the value of his paid-up stock. If he desires to participate in all the profits of the concern, he must wait until the society, or the series to which he belongs, is wound up; an operation which, on account of sales of real estate and other arrangements necessary to be made in order to realize the money required to pay the advanced shares in cash, may call for some indulgence in the matter of time. The only method of obtaining the money’s worth of his shares from the association is that already pointed out, viz., withdrawal under the statute or by-laws, and suit at law for the amount legally coming to him. The value of any member’s stock, as has before been shown, is not a present subsisting claim against the building association in the member. Its value, if he continues in the society, depends upon his going through the whole course of the scheme and can be ascertained only upon and after complete winding up. As a member, therefore, he cannot sue for it at law at any time. He can become a claimant for a definite amount only by withdrawal, i. e., by surrender of his membership, substituting in its place the character of creditor, at least in a qualified sense, and the principle which forbids such a suit applies- equally to purely terminating and to serial associations, the claim in the latter being for the value of stock in a series which has been declared matured. The argument that, when this event occurs, the stockholder ceases to be a member and becomes a mere creditor proves too much. If it were true, there would be no corporation left to be sued and no authority to divide the funds. And if it be said that, upon the maturity of but one series, the corporation continues to exist for the running of the others, the answer is that, even in a serial association, the time will come when there is but one series of stock outstanding, when its position must be the same as that of a purely terminating society. Certainly, the members of one series cannot have any other or greater rights than those of all the others or the last.”

And, finally, in Eaton v. Eastern Building and Loan Ass’n et al., 7 Dist. R. 440, 442, Bittinger, P. J., said: “In the case of stockholders against a corporation involving intricate accounts, questions of acts ultra vires by the officers, calculations of losses in real estate, deduction from withdrawal value of shares of stock, payment of dues, insolvency and marshaling of assets, we consider this proceeding in equity, not only the appropriate remedy, but necessary for the equitable adjustment of the rights of parties. An action of law in such a case, with a trial before a jury, however intelligent, would afford a bungling and inadequate remedy and be entirely out of place.” See, also, opinion of this court in Katz v. David Fine Building and Loan Ass’n, 13 D. & C. 217.

The court is of the opinion that the plaintiff has mistaken her remedy: Parry v. First National Bank of Lansford, 270 Pa. 556.

The rule for judgment is discharged.


author: Broomall, J.,

text:
    Commonwealth v. Catania.

      William R. Tool, Assistant District Attorney, for Commonwealth.

      John E. McDonough, for defendant.
    Oct. 18, 1929.
   Broomall, J.,

— This proceeding was commenced by warrant issued in the name of the Commonwealth before Linvill, justice of the peace, upon oath, charging the defendant, according to the transcript, with “violation of section 1001 of the Auto Laws of Penna.” It further appears by the transcript that defendant was arrested on sight and signed a ticket to appear. Defendant appeared at the time fixed and waived a hearing, whereupon he was held in his own recognizance for appearance at the next term of court. The matter came before us for hearing de novo.

At the hearing, counsel for defendant moved to quash the proceedings upon the ground that defendant had not been furnished with a copy of the complaint. We then ruled that defendant by waiving a hearing and entering into a recognizance for his appearance at court, also waived any irregularity in his arrest. This is in line with the decision of Judge Knight in Com. v. Wahle, 9 D. & C. 719. Had the defendant submitted to a hearing before the magistrate, then appealed from his summary conviction, a different question would be presented. See Com. v. Nottage, 11 D. & C. 719.

It appears that the proceedings were commenced under the Act of May 11, 1927, P. L. 886, section 1001, which relates to reckless driving; section 1003, to ignoring railroad signals; section 1036, to ignoring signals by officers, and section 1208 gives the defendant the right to appeal from summary proceedings and provides that defendant “may waive summary hearing and give bond . . . for appearance for trial.”

The evidence produced shows that on Dec. 11, 1928, at 10.30 A. M., defendant, in approaching the tracks of a railroad, failed to heed the bell signals alleged to have been given by the watchman at the crossing, in that he did not bring his motor vehicle to a full stop, but continued across the tracks and narrowly escaped being struck by the crossing gates as they were lowered. There was some evidence that the polite officer, upon whose complaint defendant was arrested, had signaled him to stop prior to crossing the tracks. The transcript charges reckless driving and refers to section 1001 only. What defendant actually did was to ignore the railroad signals, which is made an offense under section 1003, or refused to stop when signaled to do so by the officer, which is made an offense under section 1036. This is a material variance between the offense charged and the proof, and we cannot possibly construe the ignoring of railroad signals or signals of a police officer into reckless driving, as they are made specific offenses under the act.

And now, to wit, Oct. 18, 1929, defendant is hereby found not guilty of reckless driving under section 1001 of the Act of May 11, 1927, P. L. 886; is discharged from his recognizance, and it is further directed that no costs be paid by the County of Delaware in this case.