author: Ross, J.,

text:
    Shane Bros. & Wilson Co. v. Painter.

      Practice, C. P. — Pleading—Statement of claim — Copy of contract — Inferences — Act of May 14, 1915.

    1. Under the Practice Act of May 14. 1915, P. L. 483, the facts of plaintiff’s statement of claim must be set forth exactly and exhaustively, so that the defendant may similarly set forth the facts of the defence and thereby the issue be brought out with certainty and clearness.
    2. All the facts necessary to constitute a good cause of action must be set forth in the statement.
    3. If the allegations are so made that no concise or responsive answer can be made by the defendant, the statement is fatally defective.
    4. A statement of claim which contains inferences and conclusions of law violates the act and will be stricken off on motion.
    5. A statement of claim which refers to a contract and avers that it was accepted by plaintiff, and that defendant was given due and timely notice of such acceptance is insufficient.
    6. Such averments should state whether the notice was written or oral. If in writing, a copy of the writing should be attached or quoted in the body of the statement; if oral, the words used should be given.
    Motion to strike off plaintiff’s statement of claim. C. P. York Co., April T., 1921, No. 56.

      Niles & Neff, for plaintiff; Stewart & Gerber, for defendant.
    Jan. 30, 1922.
   Ross, J.,

A motion to strike off the plaintiff’s statement filed in this case was entered Feb. 15, 1921, and was argued at the regular argument court beginning Monday, Sept. 26, 1921.

The reasons upon which the motion is based are stated as follows: “1. The statement is not in concise and summary form of the material facts on which the party relies for their claim as required by the 5th section of the Practice Act of May 14, 1915, P. L. 483. 2. The allegations contained in the several paragraphs of the plaintiff’s statement are not consistent with the copy of the alleged contract attached thereto. 3. The remedies claimed in the plaintiff’s statement are different from, and contradictory to, those provided in the contract for a breach thereof. 4. The said statement avers that the contract declared on was accepted and confirmed by plaintiff, and defendant was given due and timely notice. But whether it was notice of such acceptance or when or whether in writing or not does not appear, and if in writing, no copy is attached. 5. The paper attached to said statement and alleged to be a copy of the contract is not marked ‘Exhibit A.’ It is in such fine print and so attached to said statement as to be illegible — and on account of certain cabalistic marks cannot be understood without explanation, and these marks are not explained in the plaintiff’s statement.”

The 5th section of the Practice Act of 1915 provides that: “Every pleading shall contain, and contain only, a statement in a concise and summary form of the material facts on which the party pleading relies for his claim.” An examination of the plaintiff’s statement discloses that it is divided into fourteen paragraphs. The fourteenth paragraph reveals the items and amount of the plaintiff’s claim as follows: “By reason of the premises, there is justly, legally and equitably due from the defendant to the plaintiff the difference between the purchase price at $12.90 per barrel on the 310 barrels, according to the contract, Exhibit A, and the said price of $8.75 per barrel, the price obtained on said resale, amounting to, to wit.$1286.50

Also the said demurrage charges accrued at New Freedom.. 87.00

Also said reconsigning charge at New Freedom. 7.00

Also said additional freight charges from New Freedom to Harrisburg . 102.76

Making a total of plaintiff’s claim of.$1483.26

with interest thereon from Jan. 14, 1921, and there are no items of set-off, defalcation or counter-claim justly, legally or equitably applicable thereto.”

That paragraph shows that it is a mathematical deduction from the premises, i. e., advance statements; consequently, we must go to the advance statements for explanation.

We find paragraph I. The plaintiff is a corporation doing business at Minneapolis, Minnesota. Paragraph III. This action is based upon a written contract, signed by the said defendant on or about Sept. 21, 1920, “C. H. Bollinger, salesman,” who solicited the said contract, “and, after its signature by the defendant, forwarded the same to plaintiff at Minneapolis, Minnesota, for acceptance by plaintiff and performance upon plaintiff’s part at Minneapolis, Minnesota. Said contract was . . . accepted and confirmed by plaintiff, of which acceptance and confirmation defendant was given due and timely notice.” The said paragraph III then states: “A true and correct copy of said contract is hereto attached and marked Exhibit ‘A.’ ” This requires us to examine the only exhibit attached to the statement, although it is not designated as an “exhibit” on its face, and we find a printed paper so attached that it is impossible to ascertain what it is, because the binding by which it is attached to the sworn statement conceals something of the printed matter. By an effort which nearly fractured the binding, we discover the word “contract.” Beneath, still concealed by the binding, we find the printed word “Dated,” followed by the typewritten “Sept.' 21, 1920.” The visible part of the exhibit then continues:

“Shane Bros. & Wilson Co., of Minneapolis, Minn., agrees to sell to People’s Baking Co., of New Freedom, Pa., who agrees to purchase from seller, at Minneapolis, Minn., at the price or prices, and in the quantity or quantities, stated below, and on the terms and conditions and subject to the agreements stated below and on the back hereof, the following described goods:

Number Bbls. Flour Tons Feed

Packages

310

Size Kind

,98’s cot.

Conf. 1441

9-21-20

Brand

Price Flour per Bbl. Feed per Ton

Gardner’s Best

Net

$12.90

“Ship to People’s Baking Co.

“Destination: New Freedom,

“To be shipped: 60 days.

“Question. Is buyer hereafter to furnish directions for shipment for the above goods within the time, or times, last above written? Ans. Yes. Railroad delivery desired at destination: Penna. R. R. Price terms: Net. Terms of Payment: Arrival. Draft with Bill of'Lading attached through First Nat. Bank of New Freedom, Pa. Freight allowed by seller to New Freedom, Pa., at Rate in Effect on Date Hereof.

“Par. 1. Subject to limitations herein, seller’s wrongful failure or refusal to substantially perform its part of contract shall authorize buyer to purchase, within 30 days after seller’s breach, in open market at manufacturer’s prices, in quantity equal to that which seller fails or refuses to ship, goods of the same quality as herein contracted for, and recover, as liquidated damages, excess of price so paid over purchase price herein. There are no representations, guaranties or warranties except such as may be written on face hereof, nor any collateral agreements. The agreements and provisions printed on the back hereof are made part hereof.

“Par. 2. On breach of contract by buyer, liquidated damages shall be recoverable by seller as follows:

“1st. As to any of above goods shipped which buyer wrongfully fails or refuses to pay for or accept, seller may resell same at public or private sale, without notice, and recover from buyer thereon difference between purchase price thereof herein contracted and price obtained on resale, if latter be less than former; also all incidental loss, such as salesman’s time and expense, demurrage, storage, cartage, additional freight, reconsigning charges, etc., and any carrying charges unpaid on such goods.

“2nd. As to any of the above flour remaining unshipped by reason of the buyer’s breach, seller shall recover damages as follows: (a) A sum equal to 4c multiplied by the number of bushels of grain required to make such unshipped flour, figuring 48 bushels to the barrel of flour; plus (b) a sum equal to 2c multiplied by the said number of bushels, which sum shall be calculated for each 30 days or fraction thereof intervening between date of this contract and date of breach; plus also (c) amount of decline, if any, per bushel from date of this contract to date of breach, in the highest closing price at Minneapolis of said grain, such price to be, except as to Durum and Rye flour, No. 1 Northern Spring Wheat; as to Durum Flour, No. 1 Amber Durum, and as to Rye flour, No. 2 Rye.

“In case of a rise in such price of such grain between said dates, instead of a decline, seller shall recover the sums at (a) and (b) above, less a sum determined by multiplying amount of such rise per bu., by said number of bus., such prices on date of contract and date of breach being taken to determine amount of decline or rise per bu. Any carrying charges paid on such flour only shall also be deducted from seller’s said recovery. If there is neither rise nor decline in such price, seller shall recover the sums at (a) and (b) above, less such carrying charges paid, if any. As to feed, or other mill products, so remaining unshipped, if any, seller shall recover difference (less freight allowed thereon, if any) between purchase price thereof herein contracted and value thereof, to seller, in carload lots, at Mpls., based on its minimum selling price on date of breach, if latter be less than former.

Shane BROS. & Wilson Co., Seller,

By C. H. Bollinger, Salesman,

People’s Baking Co., Buyer,

“No. 3029. By Ira S. Painter.”

On the back of this printed agreement are six other most intricate paragraphs, setting forth conditions, agreements, restrictions, requirements and exceptions, which, are most tiresome and puzzling when read in connection with the several paragraphs of plaintiff’s declaration or statement of claim.

In connection with the stated fact in the third paragraph of the statement, which informs us that the “action is based upon a written contract;” the fourteenth paragraph, which gives the amount which the action is brought to recover, we have examined the “written contract” as described and partly-analyzed in our foregoing observations, but we do not know just what the plaintiff expects to legally prove without a further examination of the statement of claim.

We find in the fourth paragraph of the statement that “on or about Nov. 10, 1920, being before the shipping date of the 310 barrels of flour, the subject of said contract, Exhibit A, defendant clearly informed plaintiff that he would not perform said contract, Exhibit A, and directed and requested the plaintiff to cancel said contract.”

Here was a declaration of the statement which requires the defendant to again consult the alleged basis of the action, the contract, Exhibit A. We find nothing there which gives us sufficient information as to what the term “clearly informed” means, or what language was used when defendant “directed and requested the plaintiff to cancel said contract.”

It is equally impossible to find out just what was the “shipping date of the 310 barrels of flour,” or whether the alleged information that defendant would not perform the contract was written or verbal. The defendant must have the information which would enable him to definitely answer these allegations. The allegations seem to be only matters of conclusion or conjecture and are not statements of facts such as the act requires: Scranton Axle and Spring Co. v. Scranton Board of Trade, 29 Dist. R. 783.

The other allegation of the same paragraph states that “in accordance with the terms and provisions of the said contract, Exhibit A, plaintiff entirely disregarded the said conduct of defendant, and on or about Nov. 16, 1920, notified the defendant that the car containing the said flour would be forwarded in accordance with the terms and conditions of the said contract.” Again we are forced to refer to the contract and tediously wade through the labyrinth of terms, conditions, requirements, agreements and parenthetic subdivisions before we discover that the contract gives no explanation of the statements.

So, after studying the statement with all its allegations, we must conclude that it does not give the defendant such a concise summary form of the material facts as would enable the defendant to concisely answer them in the manner required by the act. The Practice Act of 1915 must be held to mean that when actions are brought in the manner provided by law, the pleadings shall be conducted in the manner by that statute defined: Spang & Co. v. Adams Express Co., 75 Pa. Superior Ct. 107. “All the material facts necessary to constitute a good cause of action or defence must be stated; that is to say, every fact that must be either admitted by the other side or proved in order to establish the party’s case:” Pennsylvania Practice Act of 1915 (2nd ed.), by David Werner Amram, page 34. “The facts of plaintiff’s statement must be set forth exactly and exhaustively, so that the defendant may similarly set forth the facts of the defence, thereby the issue is brought out with certainty and clearness:” Pennsylvania Practice Act of 1915 (2nd ed.), by David Werner Amram, page 34.

A scrutiny of the plaintiff’s statement in this case will show that the allegations are so made- that no concise or responsive answer can be made by the defendant. Another defect in the statement exists in paragraph III, which alleges that the contract, as signed by the defendant, was forwarded to the plaintiff, was “accepted and confirmed by plaintiff, of which acceptance and confirmation defendant was given due and timely notice.” There is nothing in the statement or the copy of the contract exhibited from, which we can learn just what the person who drafted the statement, or the person who swore to the facts in the statement, meant by “due and timely notice.” If it was a verbal notice, the method or words used in giving the notice should be given. If in writing, a copy should be attached to or given in the body of the statement. No such requirements appear. The statement only leaves us in a quandary as to the significance of the terms “due” and “timely,” or in what terms the alleged acceptance was made.

Quoting from Smith on Pennsylvania Practice Act, page 44: “A statement which contains inferences and conclusions of law violates the provisions of section 6 of the Practice Act of 1915, and will be stricken off, on motion,” citing Kennedy v. Scranton Ry. Co., 29 Dist. R. 751. “A statement, under the Practice Act of 1915, must contain, and contain only, facts without mention of inferences, legal conclusions or any qualification whatever. The rule of strict construction applies, and the only safe course in pleading is to strictly adhere to the restrictions prescribed by the act,” citing Powell v. D., L. & W. R. R. Co., 20 Lacka. Jurist, 306; Delaney v. Chester, 26 Dist. R. 62.

The first, second, third and fourth reasons which the defendant assigns in support of his motion are sufficient to warrant the court in granting the motion.

And now, Jan. 30, 1922, the plaintiff’s statement is stricken off, and the plaintiff is granted fifteen days from this date to file another statement of claim in accordance with the foregoing opinion.

From Richard E. Cochran. York, Pa.


source: Caselaw Access Project

author: Hull, Dep. Att’y-Gen.,

license: Public Domain

text:
    Dog Licenses.

      Dog law— License fees — Deduction for damages to livestock — Act of May 11, 1921.

    1. Fees collected by county treasurers prior to Jan. 15, 1922, for dog licenses issued under the Act of May 11, 1921, P. L. 522, must be paid over to the State Treasurer.
    2. County treasurers are not permitted to deduct and withhold out of fees for dog licenses the amount of claims made prior to Jan. 15, 1922, upon county commissioners for damages done to livestock and poultry.
    Attorney-General’s Department. Opinion to Hon. Fred Rasmussen, Secretary of Agriculture.
    March 31, 1922.
   Hull, Dep. Att’y-Gen.,

The Attorney-General is in receipt of your communication, enclosing a letter from the County Treasurer of Washington County under date of March 3, 1922, and also of a communication from the Auditor General, enclosing a letter from the same official, written on the same date. These letters present the following questions:

1. What disposition shall be made by the several county treasurers of the fees paid to them prior to Jan. 15, 1922, for dog licenses issued under the Act of May 11, 1921, P. L. 522, known as the Dog Law of 1921?

2. Are the county treasurers permitted to deduct and withhold out of such fees the amount of claims made prior to Jan. 15, 1922, upon the county commissioners for damage done to livestock and poultry?

The first of these inquiries was answered in an opinion to you under date of Jan. 4, 1922 [Dog Licenses, 1 D. & C. 338], wherein you were advised that so much of the Dog Law of 1921 as related to the issuance of licenses for the year 1922, and the collection of fees therefor, became effective prior to Jan. 15, 1922, and “that all license fees collected by the several county treasurers in payment for dog licenses for the year beginning Jan. 15, 1922, should be paid over to the State Treasurer, in accordance with sections 3 and 15 of the Dog Law of 1921.”

The second inquiry must be answered in the negative. The Dog Law of 1921 supersedes the Dog Law of 1917 (Act of July 11, 1917, P. L. 818), except within cities of the first and second classes. Both of these acts provided for annual dog licenses and established a license year beginning and ending on Jan. 15th. Under the former, the licenses were issued by the county commissioners of each county through the county treasurer, the license fees were paid into the county treasury for the use of the county, and claims for damage done to livestock and poultry by dogs were paid by the county. Under the Act of 1921, the licenses are issued by the Secretary of Agriculture through the several county treasurers, the license fees are paid into the State Treasury and constitute a special fund, known as the “Dog Fund,” out of which claims for damage done to livestock and poultry will be paid. It was- the evident purpose of both enactments that the fees collected from licenses should furnish the funds for payment of damage claims. On May 11, 1921, when the new act was approved, the great majority of the licenses for the year ending Jan. 15, 1922, had already been issued and the fees paid into the treasuries of the several counties. These fees were not transferred to the State Treasury, but were permitted to remain in the general funds of the counties, evidently for the purpose of paying claims arising under the Act of 1917. The new act did not become effective immediately upon its approval, but it was provided in section 40 thereof as follows: “This act shall take effect on the fifteenth day of January, one thousand nine hundred and twenty-two, except that the Secretary of Agriculture may issue license blanks and tags, and the county treasurers may issue licenses for the year one thousand nine hundred and twenty-two, at any time after the passage of this act.”

Under this section, the provisions relating to the issuance of licenses and the payment of fees for the new year became effective at once, but the provisions relating to the payment of claims for damages, and other portions of the act not relating to the issuance of licenses, did not become effective until Jan. 15, 1922.

Accordingly, during the period from May 11, 1921, until Jan. 15, 1922, the several county treasurers were authorized to issue licenses and collect fees under both acts. Fees for the remainder of the current license year were receivable under the Act of 1917, and were properly payable into the county treasury. All fees received under the new act, however, were received as agent of the Secretary of Agriculture under the provisions of the new act. No part of such fees belonged to the counties or was liable for the payment of any damage claims arising prior to Jan. 15, 1922. They were moneys belonging to the Dog Fund of the State Treasury, expressly collected for the payment of such claims as might arise after the indemnity provisions of the new act became effective.

Although this clearly appears from a reading of the other provisions of the Act of 1921, the language of section 31 seems conclusive: “Any valid claims, or parts thereof, for loss or damage to sheep, horses, mules, cattle, swine or poultry, which have accrued under the provisions of the Act approved the eleventh day of July, one thousand nine hundred and seventeen (Dog Law of 1917), at any time prior to the taking effect of this act, shall not abate by reason of the repeal of such act, but shall be paid out of the general fund of the proper county, and, for such purpose, the provisions of said act are hereby saved from repeal.”

The time referred to in this section as the time of “the taking effect of this act” was not the date of the approval of the act, but the date specified in section 40, when all of the provisions of the new act become fully effective. It is clear, therefore, that all claims for damages arising prior to Jan. 15, 1922, must be paid by counties out of fees collected under the Dog Law of 1917, and that all fees collected for the new license year should be paid in full by the county treasurers into the State Treasury.

I, therefore, specifically advise you that the treasurers of the several counties should not deduct or withhold out of the fees received for 1922 dog licenses the amount of any claims made upon the county commissioners for damage done to livestock or poultry prior to Jan. 15, 1922.

From Guy H. Davies, Harrisburg, Pa.


author: Endlich, P. J.,

text:
    Eakins et al. v. Doty.

      Mortgages — Affidavit of defence — Collateral security — Failure of consideration.

    An affidavit of defence filed to a scire facias stir mortgage is sufficient to prevent judgment where it alleges that the defendant, the president of a corporation, gave the mortgage individually as collateral security to guarantee jDayment by the corporation of a certain sum of money to the plaintiffs, a committee representing its creditors; that the consideration for the giving of the mortgage was the agreement of the plaintiffs to grant an extension to the corporation for a certain length of time; and that, before the expiration of the time, the creditors of the corporation, including the plaintiffs, filed a bill in equity against the corporation and obtained the appointment of a receiver, thereby preventing the corporation from making the payments agreed upon.
    Rule for judgment for want of sufficient affidavit of defence. C. P. Berks Co., Sept. T., 1921, No. 35.

      William Abbott Witman, Jr., and John B. Stevens, for plaintiffs and rule.

      C. H. Buhl, for defendant.
    Dec. 24, 1921.
   Endlich, P. J.,

This is a rule for judgment for want of a sufficient affidavit of defence in a scire facias upon a mortgage given by the defendant to the plaintiffs. The supplemental affidavit of defence (which is in question here) avers in substance that the defendant, at the time of the execution of the mortgage, was the president of the Doty & Scrimgeour Co., Inc.; that at a meeting of the creditors of the company, held prior to Oct. 20, 1919, it was agreed to give to said corporation an extension of its indebtedness for a period of one year from that date, upon condition that the company pay its creditors in four equal quarterly instalments on or about Oct. 29, 1920; that the plaintiffs in this suit were appointed by said creditors as a committee to carry out said agreement; that the debtor, the Doty & Scrimgeour Co., Inc., on Oct. 15, 1920, the date of the execution of the mortgage, had made two payments to its creditors, as provided in said agreement, in full, and had paid on account of the third instalment all but $8000; that on that date the plaintiffs and defendant agreed that the balance due on the third instalment should be paid on or before Oct. 29, 1920, and the payment of the fourth instalment was extended to Jan. 29, 1921; that the plaintiffs, for their principals, the creditors of the company, then and there agreed to extend the payment of the fourth instalment due upon said agreement of Oct. 20, 1919, to Jan. 29, 1921, and further agreed that no proceedings should he taken against the company prior to said date which in any way would interfere with or prevent the company from carrying on its business of manufacturing paper in the City of Reading, or in any way interfere with its business or its assets so as to prevent the said company from complying with the terms of the agreement and paying the fourth instalment on the day specified; that it was in consideration and upon the faith and credit of the agreement so entered into between the plaintiffs and the company and the defendant in this case that the defendant consented to execute the mortgage in suit to the plaintiffs as collateral security for the payment of said unpaid third and fourth instalments of the claims of its creditors, and only because said agreement was entered into and said representations were made by the plaintiffs did she so execute the mortgage for the purposes aforesaid; that the company paid the balance due on the third instalment on or before Oct. 29, 1920, and was continuing to operate the plant; that on Dec. 17, 1920, the plaintiffs and their principals, to wit, creditors of the Doty & Scrimgeour Co., Inc., the plaintiffs being creditors also, held a meeting and selected another committee to represent them and displaced the plaintiffs in this case as their representatives, and the latter named committee and their principals, with full knowledge of the agreement which had been entered into between the former committee, the plaintiffs in this case, and the defendant, and without which the mortgage in suit would not have been executed by the defendant, did, in violation of said agreement, on Jan. 19, 1921, cause a bill in equity to be filed in this court to No. 1284, Equity Docket, 1921, for the appointment of a receiver to take charge of the assets, management and affairs of the company,-in pursuance of which such receiver was appointed, and by a decree of this court was placed in charge of all its affairs and in possession of all its assets, the defendant and all other officers of the company being restrained and prohibited by said decree from operating the plant of said company and controlling or disposing of any of its assets, and restrained also from complying with the terms of the agreement of extension referred to above; that but for the interference with and dispossession of the officers of the company from its plant and the taking possession of all its assets, the company had paid the fourth instalment as agreed upon between it and the plaintiffs and the defendant, the said company having had sufficient available assets to pay the same; that because of the violation of the agreement hereinbefore recited, entered into between the plaintiffs, the company and the defendant, when the defendant executed the mortgage in suit, by reason of which the company was prevented from carrying out its agreement to guarantee the mortgage in suit, the defendant is not liable to pay the said mortgage, and the consideration of the same has wholly failed.

It can hardly be doubted at this day that the facts set forth in the supplemental affidavit of defence, if sufficiently proven on the trial before a jury, would constitute an available defence against the present enforcement of the mortgage in suit. It may, however, be proper to refer to the decisions in Donner v. Clark, 253 Pa. 514, and Marquis v. McKay, 216 Pa. 307, as peculiarly applicable in this case. The former, in an action by the endorsee of a promissory note against the maker, holds an affidavit of defence sufficient which admits the execution and delivery of the note, but alleges that, prior thereto, the plaintiff, the payee of the note, and the defendant agreed that the note should be given by defendant to the payee, a lumber company, as advance payment for lumber to be sold and delivered to defendant, and that the note should thereupon be endorsed by the lumber company to plaintiff, to whom it was largely indebted, and who held a mortgage on the entire plant of the lumber company; that plaintiff agreed he would not interfere with the shipments of lumber to the defendant, but that, in violation of his agreement, he caused foreclosure proceedings to be brought on the mortgage against the lumber company, thereby preventing the lumber company from fulfilling its contract to deliver to defendant the lumber for which he had given the note. The other decision, Marquis v. McKay, was in an action upon a promissory note, in which the affidavit of defence averred that the note was given and accepted as a guarantee for the payment of certain money loaned by plaintiff to a corporation in which both plaintiff and defendants were alike interested financially; that the makers of the note were to be called on to pay only in the event that the corporation was unable, and then only such amount as was not recoverable from the corporation; that the corporation had assets more than sufficient to answer its liability; and that the plaintiff himself was debtor to the corporation in an amount exceeding the amount of the note in suit — the ruling being that the affidavit of defence was sufficient to prevent judgment, inasmuch as the true result in the case could only be reached by a broad and full inquiry into the facts averred.

It seems fairly clear from what has been said that the rule for judgment cannot be made absolute. The rule to show cause is discharged.

From Wellington M. Bertolet, Reading, Pa.


author: Bell, P. J.,

text:
    Commonwealth v. Shultz.

      Liquor law — Warrant of arrest — Search—Seizure of still and whiskey.

    1. A sheriff who enters with a warrant of arrest the residence of an alleged offender against the liquor laws may search the premises and lawfully seize a still and whiskey which he finds on the premises.
    2. Upon the making of an arrest, it is the duty, as well as the right, of the arresting officer to take into custody any articles found in the possession of the prisoner which may fairly be used as evidence bearing upon the commission of the offence charged.
    ' Rule to show cause why one still, one three-gallon jug and two quarts of whiskey should not be returned by the sheriff who took possession of the same when the defendant was arrested for violation of the liquor law. Q. S. Clearfield Co., Feb. Sess., 1922, No. 26.

      O’Laughlin, Fenerty & Kelley, for rule.

      John C. Arnold, District Attorney, Smith & Smith and Chase & Chase, contra.
    Feb. 7, 1922.
   Bell, P. J.,

Various matters of interest are not here in dispute. The Volstead Act provides for a search warrant upon strictly defined terms, which must be rigidly obeyed. The Federal courts hold as illegal all searches made which are not authorized, and require the return of the property seized. The provisions of the Volstead Act have no application to prosecutions brought for violation of the laws of Pennsylvania, and the search warrant so provided for cannot be employed.

There is no provision in the statute law of Pennsylvania which authorizes a search warrant to seek for liquors or equipment for manufacturing whiskey supposed to he in the premises in the actual possession of some person. At common law, the right to cause a search warrant to issue applied to cases of felony or reasonable suspicion thereof, and usually arose in connection with larcenies. In Pennsylvania this power is practically wholly statutory, there being a question whether it exists independent of the statutes; but whether it does or not, such power has no application to the kind of criminal charge here asserted. The decisions of the Supreme Court are based upon the provisions of the Federal Constitution, which do not control the action of the State (Com. v. Cameron, 42 Pa. Superior Ct. 347), and the decisions of the Federal courts are only entitled to such weight as respect for the tribunals or the soundness of their reasoning justify. The decision upon which most of the recent Federal decisions rest is Weeks v. United States, 232 U. S. 383, in which the Supreme Court said: “It involves the right of the court in a criminal prosecution to retain for the purposes of evidence the letters and correspondence of the accused seized in his home in his absence and without his authority by a United States marshal, holding no warrant for his arrest and none for the search of his premises.” As the United States has no common law power, and as the seizure in this case was by an officer who had neither search warrant nor warrant for arrest, and the search and seizure was made in the defendant’s home in his absence, we scarcely see how any judicial tribunal could have sustained it. The Supreme Court did not therein disapprove of Adams v. New York, 192 U. S. 585, saying of it: “The decision in that case rests upon incidental seizure made in the execution of a legal warrant,” etc. It may be noted that this aspect of the case does not appear in the opinion of the Adams case, but is the ground on which the Supreme Court distinguished that case from that involved on the petition of Weeks.

An examination of nearly all of the cases cited by counsel for the petitioner leads to the conclusion that what is guarded against alike by the Federal and State Constitutions is the invasion of the defendant’s tenement; as was said by Chatham, “the rain may enter, but the King may not.” It may not be entered and searched except upon due process, and even the legislature cannot authorize searches which are unreasonable. At the argument it was stated by both sides that the question here involved was whether or not this case fell within what was termed by the Supreme Court of the United States “incidental seizure,” and with this we fully concur.

In addition to the facts stated in the petition and answers, evidence was taken in open court, and the facts as we find them to be are that on Dec. 17, 1921, A. M. Gorman, Sheriff of Clearfield County, on information received by him, made a complaint before F. G. Chorpening, a justice of the peace of the County of Clearfield, charging the defendant with divers violations of the liquor laws; that a warrant for the arrest of the said defendant was issued by the said justice and delivered to the sheriff, who, with the said warrant, went to the house of the defendant between 7 and 8 o’clock P. M that evening and then and there arrested the defendant in his house, and immediately following thereto examined the premises, finding in the room where the defendant was at the time of his arrest a barrel of corn in process of fermentation, upstairs three barrels of mash and a jug containing two quarts of whiskey, and found in the barn a still used for the purpose of making whiskey, the search of the barn being made after the defendant had denied to the sheriff that he had a still. All of this property was found and the still and whiskey taken away by the sheriff with the prisoner then under arrest. The evidence does not indicate that the defendant either consented or objected to the examination of the premises made by the sheriff. The defendant, on the stand, testifies that all of these articles were his, that they were used for the purpose of making whiskey, and that he had been so employing this still for a number of months, so that no question exists as to his guilt of the particular charge upon which he was arrested by Sheriff Gorman. The legal question now involved hinges entirely upon whether or not this was a proper search. The petitioner’s counsel does not assert that there may not be some search made of a person who has been put under arrest, but avers that the search in this case went entirely outside of what is authorized.

We have not been able to find that any of the cases cited by the petitioner’s counsel in the very full and careful brief sustain the averment that a search made under such circumstances is unlawful or that the officers may not lawfully take property, nor do we find any of them which undertake to state the physical limits within which such search may properly be made. “It is well settled that an officer making an arrest upon a criminal charge may also take into his possession the instruments of the crime and such other articles as may reasonably be of use as evidence upon the trial. The officer not only has the lawful power to do so, but he would be blameworthy if he failed to do so. The maintenance of public order and the protection of society by efficient prosecution of criminals require it:” Getchell v. Page (Me.), 18 L. R. A., N. S., 253. We understand this general doctrine to be so firmly established as to be practically universal. In the recent case of United States v. Murphy, 264 Fed. Repr. 842, the District Judge said: “The right of a seizing officer to search a defendant under ordinary circumsances, when the defendant is under arrest charged with a violation of law, cannot be questioned.” In Smith v. Jerome, 93 N. Y. Supp. 202, it was said by Judge Gaynor: “The police have the power, and it is also their duty, to search the person of one lawfully arrested and also the room or place in which he is arrested, and also any other place to which they can get lawful access, for articles that may be used in evidence to prove the charge on which he is arrested. We have no statute defining this power or prescribing this duty, but the ends of justice require that they should exist, and they have been exercised under the common law from time immemorial.” In Newberry v. Carpenter, 107 Mich. 567, the court said: “It is not only the right but the duty of an officer making an arrest to take from the prisoner not only stolen goods, but any articles which may be of use as proof in the trial of the offence with which the prisoner is charged.” In Holker v. Hennessey, 39 L. R. A. 165: “In the absence of a statute, the officer has no right to take any property from the person of a prisoner, except such as may afford evidence of the crime charged or means of identifying the criminal or may be helpful in making an escape. The officer has the undoubted right to make the search, and, considering the nature of the accusation, he may, when acting in good faith, take into his possession any articles he may suppose will aid in securing the conviction of the prisoner, or will prevent escape. . . . We find no statute in this State giving the arresting officer authority to search a prisoner, but no statute is necessary. The power exists from the nature and objects of the public duty the officer is required to perform.”

Whilb we do not find "any direct decisions in Pennsylvania in the brief space of time which we have been able to extend to the subject, and none are indicated by counsel, the practice here, as indicated in the decisions cited, which can be added to extensively, is that, upon the making of an arrest, it is the duty as well as the right of the arresting officer to take into custody any articles found in the possession of the prisoner which may fairly he used as evidence bearing upon the commission of the offence charged. Unless this right is to be restricted to a search of the person of the prisoner, the sheriff in this case seems to have acted entirely in accordance with the general and long-established practice. That such was not the thought of the courts which have had this question before them is manifest from the language used in dealing with the eases, as in some of them there was used, by way of illustration, the securing of the evidence of guilt in a trunk or other receptacle locked and controlled by the defendant, and it was indicated how readily justice could be thwarted if there was no power to inquire into the contents thereof; The defendant here, though an alien, is entitled to the protection of the provisions of the Constitution of Pennsylvania, and these must receive a fair interpretation; but it must also be kept in mind that this provision does not rest upon a natural right, but is purely one of public policy, as was indicated by the Superior Court of Pennsylvania in Com. v. Cameron. And as we view this matter, the sheriff did nothing but his duty. It would certainly be a policy greatly crippling the administration of the criminal law if a sheriff or other officer, upon making an arrest, must close his eyes to all the physical evidences of guilt which are upon the premises and under the control of the defendant, and may neither take them in possession nor acquaint the Commonwealth with the facts, and, as a corollary thereto, the Commonwealth be deprived of the right to use the knowledge thus obtained. "We do not conclude that such is or ought to be the law.

Now, Feb. 7, 1922, rule is discharged, petition dismissed, exception noted and bill sealed to the defendant.

From John M. Urey, Clearfield, Pa.


author: Potter, P. J.,

text:
    Stahlnecker v. Stahlnecker.

      Judgment — Revival — Decedents’ estates — Death of defendant — Act of June 7, 1917.

    Under the Act of June 7, 1917, P. L. 447, a scire facias to revive a judgment will be quashed where it has been issued more than two years after the death of the defendant in the judgment.

      Scire facias to revive judgment. C. P. Snyder Co., Feb. T., 1922, No. 67.

      H. H. Grimm, for writ of scire facias; A. F. Gilbert, contra.
    April 25, 1922.
   Potter, P. J.,

This is a writ of scire facias issued out of the Court of Common Pleas of Snyder County to revive judgment No. 24, of December Term, 1902, in which David Stahlnecker is the plaintiff and Aaron Stahlnecker is the defendant.

Aaron Stahlnecker died on Oct. 16,1918, and no administration of his estate has been had up to the present time. The praecipe for the writ of scire facias is dated Feb. 2, 1922; the writ of scire facias is dated the same day, and was served upon J. E. Stahlnecker and upon Carrie Moyer on the 4th day of the same month by the Sheriff of Snyder County, and upon J. L. Stahlnecker by the Sheriff of Allegheny County on the 14th day of the same month.

The Fiduciaries Act of June 7, 1917, § 15, cl. (f), P. L. 447, 476, provides as follows: “Judgments which were not liens on the real estate of the decedent by entry or revival, by due process of law, within five years prior to the death of such decedent, shall not be revived as liens of record against real estate by the death of the defendant, but shall rank and be treated simply as ordinary debts not of record; and the lien thereof shall be continued, after the expiration of one year from the decease of such debtor, only by a writ of scire facias to revive, issued within one year after the death of the decedent, indexed as provided in clauses (a) and (d) of this section, and duly prosecuted to judgment; and then to be a lien only for the period of five years, unless the same be revived by writ of scire facias as provided in clause (a) of this section.”

Aaron Stahlnecker died on Oct. 16, 1918. The year during which the writ of scire facias might have issued expired on Oct. 16, 1919. It is plainly seen that this writ of scire facias is over two years too late and will have to be quashed.

An administration could have been raised, if necessary, in order to expedite matters, and the act hereinbefore cited states how it can be done.

And now, to wit, April 25, 1922, the writ of scire facias in this case is quashed, the costs incident to it to be paid by the use-plaintiff.

From Charles P. Ulrich, Selins Grove, Fa.


author: Koch, J.,

text:
    Lutz et ux. v. Tamaqua Borough.

      Practice, C. P. — Trespass—Affidavit of defence — Waiver of objection to statement of claim — Act of May 3, 1917.

    The filing of an affidavit of defence in an action of trespass constitutes a waiver of defendant’s right to attack the regularity or sufficiency of the statement of claim, even though the defendant, being a municipality, was relieved from filing an affidavit of defence by the Act of May 3, 1917, P. L. 149.
    Motion and rule to strike off plaintiff’s statement. C. P. Schuylkill Co., Sept. T., 1921, No. 449.

      R. P. Swank and J. B. Reilly, for plaintiff.

      R. J. Graeff and J. O. Ulrich, for defendant.
    March 20, 1922.
   Koch, J.,

The plaintiff’s statement was filed on Aug. 26, 1921, and the defendant filed an affidavit of defence on Sept. 12, 1921. Later the case was put on the January trial list, but continued, and, on Feb. 6, 1922, the present rule was obtained, the borough council having elected a new solicitor. The case is now on the March trial list.

The borough was not required to file an affidavit of defence (Act of May 3, 1917, P. L. 149), but having done so anyhow, the affidavit of defence amounts to a plea, and, the case being on the trial list, we see no reason for delaying the trial. If the statement of claim does not conform with the Practice Act of 1915, P. L. 483, a motion to strike it off should have been promptly made in accordance with the 21st section of that act. “One who seeks to avail himself of technical objections to pleadings must do so at the earliest opportunity. He cannot be permitted by those pleadings to raise an issue on the merits of the case and thereafter to attack the sufficiency of his opponent’s pleadings. . . . The filing of the affidavit of defence to the plaintiff’s statement of claim was an abandonment of the defendant’s right to attack the regularity or sufficiency of the statement:” Boyle v. Breakwater Co., 239 Pa. 577. See, also, Fuller v. Stewart Coal Co., 27 Dist. R. 512, and Noll v. Insurance Co., 34 York Leg. Record, 137.

The motion and rule are respectively denied and discharged.

From M. M. Burke, Shenandoah, Pa.


author: Lamorelle, P. J.,

text:
    Allen’s Estate.

      Decedent’s estate — Insolvency—Transfers by decedent to executrix and legatee — Setting aside — Issue to Common Pleas.

    1. Where decedent, a short time before his death, conveyed to his executrix and residuary legatee real and personal property, and the real estate was converted into cash by the executrix, the Orphans’ Court is without jurisdiction to surcharge her with the value of the personal property and cash received from the sale of the realty at the request of a creditor upon the ground that decedent, being insolvent at the time of the transfers, they were void as against creditors.
    2. Under such circumstances, the court should direct an issue to the Common Pleas to determine the validity of the transfers as provided by the Act of March 29, 1832, P. L. 190, thus preserving the right of the transferee to trial by jury.
    Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1920, No. 69.

      E. Spencer Miller, for exceptions.
    June 28, 1922.
   Lamorelle, P. J.,

The matter comes before the court on exceptions; one set filed by Miriam L. Parren to the auditing judge’s failure to take jurisdiction to set aside a transfer of real estate and shares of stock in a building association, or at least to compel the grantee and transferee to refund to the estate the money thereafter received by her from sale of such property. This exceptant is a creditor of the estate, and her claim has been allowed by the auditing judge.

One other exception was filed by the executrix, who is also the sole legatee under the will. This exception goes to the allowance of this particular claim. It might well have been dismissed, as no affidavit was attached thereto; but we treat it as if filed by the individual legatee. No argument was made, nor was a paper-book submitted. We find no merit in it, and it is to be dismissed.

We will now consider the jurisdictional fact raised by the first set of exceptions.

Admittedly, Thomas J. Allen, a week or so prior to his death, made an absolute conveyance to his sister, Elizabeth L. McNulty, of premises No. 1900 North 11th Street, wherein he and his sister had lived for upwards of ten years prior to his death. At the same time he transferred to her certain shares of stock of a building and loan association which had lent money on a second mortgage secured upon this real estate. A will was also executed, wherein the sister was given the estate and appointed executrix. The deeds were received in evidence subject to exception. The record also shows by the admissions on the part of the sister that she afterwards sold the property, receiving from such sale $3000 in excess of the mortgages secured thereon.

The auditing judge, on the authority of Cutler’s Estate, 225 Pa. 167, and of Williams’s Estate, 236 Pa. 259, ruled as follows: “The transactions occurred between living parties; they involve the title to property, and the accountant is entitled to the benefit of a trial by jury. . . .”

Exceptant’s contention is that such transfer within a few days prior to the date of the death of testator was a palpable attempt to deprive his creditors of a substantial part of his estate, that the testator was hopelessly insolvent at the time, and that this was in effect fraudulent, or, in the alternative, that the grantee took title for the purpose of facilitating a sale under some arrangement or understanding by which the proceeds of the property, when the same should be sold, should be used for the payment of debts.

Exceptant relies, in the main, upon authorities hereinafter referred to.

In Fink’s Estate, 77 Pa. Superior Ct. 267, these were the facts: The husband was the executor, and at the time of the audit he claimed that certain property was his and not his wife’s. The testimony went to show that at the time of her death the property in dispute, being cash, articles of furniture and livestock, was in the possession and control of the wife. Judge Head, who wrote the opinion for the court, after stating that the decree wherein the lower court took jurisdiction was in no way out of harmony with the decision in Cutler’s Estate, 225 Pa. 167, said: “But in a case like the one before us, where the decedent was in actual physical possession of personal property at the time of her death, the law relates that possession to the title and ownership of the property, and the burden is upon him who claims that the ownership is in another to support his claim by the preponderance of the evidence.”

In Marsteller’s Estate, 76 Pa. Superior Ct. 377, the facts were as follows: Notes were given by John Y. C. Marsteller to his father, and the father, in turn, assigned them to a bank as additional collateral for obligations which the bank at the time held. After the father’s death, some adjustment was made with the bank, and these notes, on which judgment had been obtained, were reassigned to the executors, one of whom was John Y. C. Miarsteller. Thereafter a legatee sought by citation to compel the executors to file a supplemental account. The executors contended that the Orphans’ Court was without jurisdiction, as these notes formed no part of the estate, and that they were, therefore, entitled to the benefit of a jury trial. The lower court, which supported this view, was reversed, and Judge Trexler, speaking for the court, distinguished between the facts and those in Cutler’s Estate, 225 Pa. 167, and Cooper’s Estate, 263 Pa. 37. In the course of the opinion it is said, at page 380: “When the judgments against J. Y. Cowhick Marsteller were reassigned to the executors, prima facie, they were due and owing and assets in the hands of the executors. They were an acknowledgment of indebtedness under seal. That they had been deposited as collateral did not divest the title of the decedent, except to the extent required for the pledge, and when that was canceled his title was clear. Any one interested in the estate had a right to have the matter determined. If the maker gave the notes as an accommodation, that may be a defence to the notes, but it does not vest title in him. The Orphans’ Court has exclusive jurisdiction pertaining to the settlement and distribution of decedent’s estates, including the claims of creditors, next of kin and legatees: Linsenbigler v. Gourley, 56 Pa. 166.”

Turning now to Cutler’s Estate, 225 Pa. 167, we find that therein there was a real dispute and a real contest. The daughter of testatrix was executrix. In her father’s lifetime, as his agent, she had received sundry securities, receipting for the same as agent. As executrix, she filed no account of these various investments, and it was sought to surcharge her. Sustaining her title, she offered in evidence deeds of transfer, and other parties in interest contended that, at the time of the alleged execution of these papers, the father was mentally incompetent. She was in possession as an individual, not as an executrix. The lower court took 'jurisdiction, and Mr. Justice Stewart, in an illuminating opinion, reversed. It was further held that it was the duty of the Orphans’ Court in the circumstances, without the request of either party, to direct an issue for trial by jury in the Court of Common Pleas, and that no duty devolved upon the executrix to ask for such issue.

There is obviously a distinction, although it may be narrow.

Counsel for the exceptant earnestly contends that there is no question of fact at issue; that a transfer of property by a debtor, where his creditors are seriously affected, is in effect invalid, and that this court has the power, in the first instance, so to declare, and then to surcharge accordingly.

We cannot concur in this view; and, while the question is close, we find no reversible error in the action of the auditing judge.

A bill in equity may be maintained by a fiduciary to set aside a conveyance in fraud of creditors: Trust Co. v. Pugh, 241 Pa. 124; and it would seem to follow that where the grantee has resold the realty and has received the proceeds from such sale, an action at common law will lie. It necessarily follows that where the fiduciary, in this case the executrix, is the grantee and defendant, such suit may be brought in her name as executrix, or by the creditor herself.

While a fraudulent conveyance may be a nullity, it does not follow that the Orphans’ Court may so determine, or, on the other hand, treat the conveyance as invalid, and, therefore, hold that the proceeds are technically in the hands of the accountant, where, as in the present case, she is executrix as well as grantee. We would have to so hold to bring this case within the rulings of the Superior Court, as above set forth.

All exceptions are dismissed, and as we all agree that the auditing judge should have awarded an issue, as is required by the ruling in Cutler’s Estate, 225 Pa. 167, the record is remitted to him for that purpose.


author: Landis, P. J.,

text:
    Moore v. Moore.

      Husband and wife— Suits against each other — Statute of limitations — Incarceration in insane asylum — Acts of March 27, 1718, June 8, 1898, and March 27, 1918.

    1. A husband and wife may sue and recover from each other their individual property.
    2. The statute of limitations does not apply as between husband and wife.
    3. The statute of limitations does not run against a claimant during his confinement in an insane asylum.
    The Acts of March 27, 1713, 1 Sm. Laws, 76, June 8, 1893, P. L. 344, and March 27, 1913, P. L. 14, considered.
    Statuory demurrer. C. P. Lancaster Co., April T., 1915, No. 49.

      John A. Coyle and B. F. Davis, for plaintiff; John E. Malone, for defendant..
    Jan. 14, 1922.
   Landis, P. J.,

The statement in this case alleges that, in the month of June, 1907, the defendant, as the agent of the plaintiff, received from Mrs. Harriet Houltry $75, which she refused to turn over to him; that in the early part of March, 1908, a lot of farm implements and stock belonging to him was sold for about $850 by the defendant, and she received the money and retained it; that in the spring of 1906 the plaintiff loaned $600 to one John Werner on a promissory note, and that, on April 1, 1906, Ephraim Werner, the endorser on the note, paid this money, with interest, to the defendant, who kept it and refused to pay the same to him; that in the spring of 1906 the plaintiff loaned the sum of $1000 to John Y. Weidner on a promissory note, which sum was repaid to the defendant in April, 1908, with two years’ interest, and that she refused, and continues to refuse, its payment to him; that the plaintiff was the owner of various furniture in his home in Denver, Pennsylvania, valued at about $.500, which she also took and converted to her own use; that on April 28, 1908, he was removed to the Lancaster County Insane Asylum, where he was detained for five years, during which time he was unable to assert and protect his rights. The total amount claimed to be due to the plaintiff is $3025, with interest. By an amendment filed, it is also alleged that they, the parties, are living separate and apart from each other, and also that, by forcing him to leave their joint domicile and causing him to be removed to the Lancaster County Insane Asylum, the defendant deserted the plaintiff and placed him under disability for five years. The amendment, we think, covers the first two specifications of the affidavit of defence, so that we will not further consider them.

The only remaining question raised in the affidavit of defence is whether the claim is barred by the statute of limitations, the cause of action arising during the years 1906, 1907 and 1908.

In Towers v. Hagner, 3 Wh. 48, it was said that “a married woman having a separate estate may give or lend the income of it, if at her disposal, to her husband as to any other person.” And in Marsteller v. Marsteller, 93 Pa. 350, Mr. Justice Trunkey said: “In contemplation of law, the wife is scarcely considered to have a separate existence; she and her husband constitute but one person, and the unity of persons is the source from which her disability to maintain suit is derived.” The converse of the proposition, whereby the husband could not maintain a suit against his wife, necessarily follows.

The legislature has, however, long since relaxed the strictness of the common law in this regard. Now, under certain prescribed conditions, husband and wife may sue and recover from each other their individual property. By the Act of June 8, 1893, § 3, P. L. 344, it was provided that “hereafter a married woman may sue and be sued civilly in all respects and in any form of action, and with the same effect and results and consequences, as an unmarried person; but she may not sue her husband, except in a proceeding for divorce, or in a proceeding to protect or recover her separate property whensoever he may have deserted or separated himself from her without sufficient cause, or may have neglected or refused to support her; nor may he sue her, except in a proceeding for divorce, or in a proceeding to protect or recover his separate property, whensoever she may have deserted him or separated herself from him without sufficient cause. . . .” The Act of March 27, 1913, P. L. 14, enlarges their rights by enabling them to sue each other in proceedings for divorce or in a proceeding to protect and recover their separate property without limitation as to desertion or other cause. The plaintiff, therefore, conceding, as alleged in the statement, that he was suing his wife to recover his separate property, had a right to maintain an action against her, unless time and the statute of limitations have abrogated that right.

In section 5 of the Act of March 27, 1713, 1 Sm. Laws, 76, it is enacted that, “if any person or persons who is or shall be entitled to any such action of trespass, detinue, trover, replevin, actions of account, debt, actions for trespass, for assault, menace, battery, wounding or imprisonment, actions upon the case for words, be, or at the time of any cause of such aetion given or accrued, fallen or come shall be, within the age of twenty-one years, feme covert, non compos mentis, imprisoned or beyond sea, that then such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as are hereby before limited, after their coming to or being of full age, discoverture, of sound memory, at large, or returning into this province, as other persons.”

The law has been (and I see nothing in any act of assembly to change it) that, as between husband and wife, the statute of limitations does not apply. But, in addition, the Act of 1713 especially excepts persons non compos mentis or under imprisonment: Kauffman v. Kauffman, 1 York Leg. Record, 194. In the same way, a cause of action accruing during infancy may be commenced any time within six years after the plaintiif attains his majority: Pugh v. Powell, 8 Sadler, 515; Spencer v. Jennings, 139 Pa. 198; Fassitt v. Seip, 249 Pa. 576.

In the statement the plaintiif asserts that he was imprisoned in the Lancaster County Insane Asylum for five years from April 28, 1908. It could only have been on the grounds that he was non compos mentis, for otherwise he would not have been kept confined there. But, be that as it may, he was imprisoned, and, of itself, imprisonment prevented the statute from running against his claims. This suit was brought on March 15, 1915, which was within six years of his discharge, and was, we think, in time. We are, therefore, of the opinion that the claim was not barred by the statute, and that the point of law should be determined in favor of the plaintiff.

The defendant is permitted to file a supplemental affidavit of defence to the averments of fact of the statement within fifteen days.

From George Ross Eshleman, Lancaster, Pa.


author: Hargest, P. J.,

text:
    Mertz v. Mertz.

      Divorce — Proclamation—Publication — Legal periodicals — Advertisements —Act of April 5, 1917 — Dauphin County.

    1. A proclamation in divorce is an advertisement required by law to be published in one or more newspapers.
    2. The Dauphin County Reporter is the weekly legal periodical for Dauphin County, and Dauphin County has more than 150,000 inhabitants.
    3. It is a statutory requirement, under the Act of April 5, 1917, P. L. 49, that a proclamation in divorce must be published in the legal newspaper, if such newspaper exists, in all counties having a population of 150,000 or more.
    4. The act of assembly provides that the court may dispense with such publication by special order, and in this case such publication was dispensed with in order not to work confusion and hardship, although it is stipulated that hereafter such publication will be required.
    Divorce. C. P. Dauphin Co., June T., 1921, No. 335.

      R. Sherman Care, for libellant.
    March 3, 1922.
   Hargest, P. J.,

This is a proceeding in divorce. The master has found facts sufficient to justify a decree, but he has raised the question whether the proclamation in this case should have been published in the Dauphin County Reporter. The master feels that it is not within his power to determine this question of law.

The subpoena and alias subpcena were returned non est inventus, and a proclamation was published once a week for four weeks in the Harrisburg Telegraph, a newspaper of general circulation. The Act of April 5, 1917, P. L. 49, provides, in section 1: “That hereafter in all counties of the Commonwealth having 150,000 inhabitants or more, every notice or advertisement required by law or rule of court to be published in one or more newspapers of general circulation, unless dispensed with by special order of court, shall also be published in the legal newspaper, issued at least weekly, in said county, designated by rules of court for the publication of court or other legal notices, if such newspaper exists.”

Rule 38 of this court designates “The Dauphin County Reporter” as the legal periodical for the publication of all notices required by law to be made in a legal periodical. The Act of 1917, above referred to, is also made part of Rule 38. Section 3 of the Act of March 13, 1815, 6 Sm. Laws, 286, requires the publication of notice in one or more newspapers “for four weeks successively,” requiring the respondent in a proceeding in divorce to appear on the first day of the next term of court, if, upon the return of the subpoena and alias subpoena, proof is made that the party could not be found in the county. This notice subsequently came to be designated a proclamation. The Dauphin County Reporter is published weekly, and Dauphin County has now more than 150,000 inhabitants. It, therefore, appears that the proclamation is an advertisement required by law to be published in one or more newspapers, and, under the Act of 1917, it must be published in the Dauphin County Reporter, which has been designated as the legal periodical for Dauphin County.

This act of assembly provides that the court may dispense with the publication by special order. Therefore, to prevent any confusion or hardship, the court will dispense with the publication in the Dauphin County Reporter in every case in which proclamations have heretofore been awarded, but proclamations hereafter awarded will be required to be published as provided by the act of assembly and the rule of court above referred to.

It is specially ordered that the publication in the Dauphin County Reporter of the proclamation in this case be dispensed with.

The master’s report is approved. A decree will be signed, upon payment of costs, on the application of counsel.

From William Jenkins Wilcox, Harrisburg, Pa.


author: Wilhelm, P. J.,

text:
    Kolb’s Estate.

      Practice, O. C. — One proceeding involving two estates — Removal of executor and trustee.

    It is improper practice to file a petition in the Orphans’ Court for the removal of an executor and trustee, where it appears that the petition embraces within it a complaint concerning the management of two estates.
    Petition for removal of executor and trustee. O. C. Schuylkill Co.

      R. J. Graeff, for petitioners; John McGurl, for demurrer.
    March 6, 1922.
   Wilhelm, P. J.,

This is the petition of Julius Kolb and George Kolb, legatees under the last will and testament of Philip Kolb, Sr., for an order removing Otto Kolb as one of the executors of said will, and removing him as one of the trustees to whom was devised the interest of Philip Kolb, Jr., in the estate of Philip Kolb, Sr.

It so happens that said petitioners are two of the three executors appointed by said will of Philip Kolb, Sr., the other executor being Otto Kolb, and the interest of Philip Kolb, Jr., was bequeathed to said three executors in trust.

It will be noted, therefore, that the petition has embraced within it a complaint concerning the management of two estates. This is not good practice, because the complaint may be sustained by testimony as to one estate and not sustained as to the other, and it is improper to embrace in one and the same petition proceedings that are independent. It is important that pleadings should be intelligible, and the complaint in the demurrer that it is impossible to ascertion which estate is embraced within several paragraphs in the petition is well founded.

Therefore, it is unnecessary at this time to discuss the averments contained in the petition, and the demurrer should be sustained.

The demurrer is sustained and the petition is dismissed without prejudice.

From M. M. Burke, Shenandoah, Pa.


author: McIlvaine, P. J.

text:
    Commonwealth v. Lawbowitz.

      Automobiles — Reckless driving — Summary proceeding — Contributory negligence of pedestrians — Act of June 30, 1919.

    1. Where a person is shown to have violated the Act of June 30, 1910, P. L. 678, by recklessly driving an automobile and injuring pedestrians, it is immaterial that the parties injured may have contributed to their injuries by their own negligence.
    2. Nor in such a case is it necessary to show that the defendant “wilfully and intentionally” ran down the persons injured.
    3. It is the driver’s business to know and see that he does not exceed the speed limit; and if he exceeds it, he is guilty of violating the act.
    Hearing on transcript of justice of the peace. Q. S. Washington Co., Nov. Sess., 1921, No. 35.
    In re hearing on transcript of W. S. Miller, justice of the peace, wherein the above-named defendant is charged with “operating a motor-vehicle on the public road in Carrol Township, Washington County, Pa., in a reckless manner, thereby endangering the lives of the general public, contrary to an Act of Assembly, No. 283, § 19, P. L. 1919.”

      Warren S. Burchinal, for Commonwealth; Harry A. Jones, for defendant.
   McIlvaine, P. J.

On Aug. 27, 1921, an information, under oath, was made against the above-named defendant, Morris Lawbowitz, alias James Lawbowitz, before W. S. Miller, justice of the peace of Carroll Township, Washington County, Pennsylvania, wherein he was charged as hereinbefore recited, and a warrant was issued for his arrest. On Sept. 3, 1921, the defendant appeared and waived a summary hearing before the justice and gave bond for his appearance for trial before a judge of the Court of Quarter Sessions, as provided by the 33rd section of the act of assembly hereinbefore recited.

The justice’s transcript having been returned to this court, Oct. 7, 1921, was fixed for the day of hearing.

The hearing was had at the time appointed, Harry A. Jones, Esq., appearing for the defendant, and Warren S. Burchinal, Esq., First Assistant District Attorney, appearing for the Commonwealth.

The defendant having pleaded not guilty, the district attorney called twelve witnesses, who were sworn and testified in behalf of the Commonwealth, and the defendant’s counsel called three witnesses, including the defendant, who were sworn and examined in behalf of the defendant.

Summary of the testimony.

The defendant keeps a store in the Pigeon Creek Valley, on the public highway which leads from Bentleyville to Monongahela City, in this county, and the place where his store is located is about five miles distant from Monongahela City. He makes his deposits in Alexander’s Bank, located in said city, and on Saturday evening, Aug. 27th, left his place of business about half-past eight (daylight saving time) for the purpose of making a deposit in Alexander’s Bank, which kept open on Saturday evenings to receive deposits as late as nine o’clock (daylight saving time). At a point on the highway over which he traveled in his Essex car, between Dunkirk and Frye’s Bridge, he overtook five boys who were walking on the road ahead in the same direction that he was going. It was dusk or almost dark, and as he approached the boys, and when only about twenty-five feet from them, he quickly and repeatedly sounded his horn, but did not stop his ear until he had struck two of the boys in the back and ran some twenty-five feet beyond where he struck them. Having stopped at'this point and seeing that two of the boys, were injured, he took them in his car for the purpose of taking them to their homes or to a doctor, but one of them being unconscious, he was taken to the hospital at Monongahela City, where he remained for a period of two weeks. No bones were broken or internal injuries inflicted, and the boys were about again in a short time. Four of these boys, at the time of the accident, were walking single file, one close behind the other; the fifth boy was not far from them, and they were all walking on the extreme right side of the road. The road at this point some years ago was improved, and in the construction of the improved road some fourteen feet of the centre of the road were bricked, while at the sides of this brick driveway was an unbricked surface fit for travel, and the four boys were walking about four feet to the right of the edge of the brick driveway. The defendant was evidently driving at a very rapid rate of speed, the estimate of many of the witnesses for the Commonwealth being that he was driving as fast as fifty miles an hour, while the defendant, however, who was the only witness called for the defence on the question of speed, estimated that his speed did not exceed twenty miles an hour. This road is traveled a great deal, not only by vehicles of all kinds, but by many pedestrians, and the defendant had knowledge of this fact.

The road in some places on the part that was bricked was out of repair and full of holes.

Immediately after the accident, the defendant was upbraided by a bystander for running into the boys, when he replied, “I wish I had killed some of them, for they are always in the way of some one,” or words to that effect.

Finding of fact.

Taking into consideration the rate of speed at which the defendant was driving, whether it be twenty miles an hour or fifty miles an hour; taking into consideration the fact that it was dusk or nearly dark; taking into consideration that the defendant was driving his car at the extreme right of the road and off the brick driveway, and that he did not blow his horn until within twenty-five feet of the boys who were traveling in front of him, where he ought to have seen them, we find as a matter of fact that the defendant did, at the point on the highway in Carroll Township indicated in the complaint filed before the justce, drive his motor-vehicle or ear at a rate of speed greater than was reasonable and proper under the circumstances and so as to endanger the life and limb of persons there traveling.

Conclusion of law.

That the defendant is guilty of having violated that part of the 19th section of the Motor Vehicle Act of June 30, 1919, P. L. 678, which reads as follows: “No person shall operate a motor-vehicle on the public highways of the State recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway, or so as to endanger property or the life or limb of any person.”

Comments.

At the hearing the defendant testified that after he blew his horn and immediately before he struck two of the boys, the four boys, who were marching single file before him, separated, two of them stepping to the right and two stepping to the left immediately in front of his machine, where they were struck and injured. Whether this testimony is true and correct, we do not determine, for the reason that it is immaterial in this case, the court having found that the defendant, when he struck the boys, was driving in a reckless way under the circumstances, whether his speed was not more than twenty miles an hour or as much as fifty miles an hour.

If he was violating the provisions of the 19th section of the act and was driving at a rate of speed greater than was reasonable and proper under the circumstances, then it would be no defence to say that the parties whom he may have injured contributed to the injury by their own negligence or recklessness. That defence might be available in a civil suit, where the injured parties were seeking to recover damage done to them by the defendant; but this is a quasi-criminal prosecution by the Commonwealth, charging recklessness against the defendant in driving a ear, and it does not minimize his recklessness in the eyes of the law to show that some other person traveling the highway was also reckless. Again, it was argued by defendant’s counsel that, although the defendant’s car had struck these two boys, still he should be acquitted on the ground that there is no sufficient evidence in the case to show that he “wilfully and intentionally” ran into the boys.

The purpose of the legislature in the enactment contained in the 19th and 33rd sections of the Motor Vehicle Act was to induce, by the infliction of a penalty, those who drive motor-vehicles upon the public highways to exercise reasonable and proper care not to injure others who are using the same highway. Therefore, if the driver of a car, even accidentally or for want of attention to the business in hand, does what the act forbids, he is clearly guilty. He cannot acquit himself of any wrongdoing, by saying that his intentions were good. In other words, if a man with no speedometer and with but little judgment as to the speed that the car which he is driving is making drives a car forty miles an hour, he could not defend against a charge of exceeding the speed limit by saying that it was his honest intention while driving on the road, and on that particular occasion, not to exceed thirty miles an hour, and that he honestly believed at the time he was not driving forty miles an hour, that he was not going more than twenty-five. It is the driver’s business under the law to know and to see that he does not exceed the speed limit, and if he does, he is guilty. In other words, the act puts the burden upon those who obtain license from the Commonwealth to use motor-vehicles on the public highways of seeing that they do not violate the law; or, to express it in another way, the license to drive a car is granted by the Commonwealth on the express condition that they who are licensed shall not do the things which the act prohibits.

Judgment.

And now, Oct. 10, 1921, this complaint came on to be heard in due course, and the defendant appearing with his counsel at the time named for hearing and pleading not guilty, and the Commonwealth appearing by Warren S. Burchinal, First Assistant District Attorney, and twelve witnesses having been sworn and examined on behalf of the Commonwealth, and three witnesses having been sworn and examined on behalf of the defendant, after and upon due consideration, the court, J. A. Mcllvaine presiding, finds from the testimony produced, a summary of which is hereinbefore given, that the defendant, Morris Lawbowitz, alias James Lawbowitz, is guilty as charged in said complaint returned by the said justice, W. S. Miller, and filed in this court; and the defendant, the said Morris Lawbowitz, alias James Lawbowitz, is sentenced to pay a fine of $10 and the costs of $108.92 as taxed by the clerk of this court, and in default of the payment of said fine and costs for ten days, it is ordered that the said defendant be committed to the county jail for a period of five days or until he is discharged according to law.

From Harry D. Hamilton, Washington, Pa.


author: Berger, J.,

text:
    B. F. Ginley & Sons v. McDonald.

      Practice, C. P. — Amendment—Statement—Replevin.
    1. In an action of replevin, a new cause of action may be introduced unless it is barred by the statute of limitations.

      Practice, C. P. — Pleadings—Statement of claim — Lost instrument — Act of April 19, 1901.

    2. Where a written instrument has been lost and the plaintiff is not able to attach a copy of it to his statement of claim, as provided by the Act of April 19, 1901, P. L. 88, it is sufficient if he sets out in his statement the substance of the lost instrument.
    Rule to amend statement of claim. C. P. Schuylkill Co., Sept. T., 1920, No. 215.

      H. A. Haag and J. A. Noecker, for plaintiffs.

      M. M. Burke, P. H. Burke and J. F. Minogue, for defendant.
    Feb. 27, 1922.
   Berger, J.,

The plaintiffs brought an action of replevin against the defendant and filed their statement, to which the defendant has filed an affidavit of defence. After the case had been reached for trial and the jury had been sworn, on application of the plaintiffs, a juror was withdrawn and the case continued for the purpose of enabling them to amend their declaration. Subsequently, a petition for leave to amend was filed by the plaintiffs, upon which a rule to show cause issued upon the defendant, whereupon she filed an answer to the petition. The matters of fact set up in the answer need not be considered, since the defendant at the argument rested her objection to the allowance of the amendment upon the legal grounds set out in the answer, thus:

“Respondent says further and generally, in answer, that she is informed, believes, and therefore avers, plaintiffs are not entitled to have filed the amended statement prayed for and attached to the petition, because (a) same introduces a new basis of action, or new cause of action, to wit, a new additional lease or title paper therein referred to; and (b) because in this action of replevin for recovery of personalty the written title paper, or lease, must appear as part of the statement of claim, either the original or proved copy thereof.

“Wherefore respondent prays that the rule be discharged, with costs, etc.”

In our opinion, the amendment proposed, if allowed, introduces no new cause of action. The ground of action is the wrongful detention of personal property belonging to the plaintiffs by the defendant. Besides, a new cause of action may be introduced unless it is barred by the statute of limitations. No such bar exists in this case. This disposes of the first objection to the allowance of the amendment.

It is true, as the defendant contends, that the plaintiffs’ declaration, in conformity with the requirements of the 4th section of the Act of April 19, 1901, P. L. 88, should contain a copy of the written instruments upon which the title to their property depends, namely, the leases between the plaintiffs and the defendant. The plaintiffs explain their failure to set out the leases in the declaration by an allegation of their loss and a statement of their essential substance. It is a general rule of pleading, applicable to all actions upon lost instruments, that it is sufficient if the substance of the lost instrument is set out. This the plaintiffs have done. For the reasons stated, the rule to amend will be made absolute.

And now, Feb. 27, 1922, rule absolute, and amendment allowed as prayed for.


author: Reno, J.,

text:
    Borger v. Jones.

      Husband and wife — Sheriff’s interpleader — Proof—Act of May 26, 1897.

    1. Under the Act of May 26, 1897, P. L. 95, and the amendments thereof, the Court of Common Pleas may not inquire into the merits of the respective claims more than to see that they are not colorable, frivolous or collusive, but may be the basis of tona fide suits. If they be, the interpleader must be granted, even though upon the merits the court be of the opinion the claim cannot finally prevail.
    2. Where goods levied upon as property of the husband are claimed by the wife, and on an interpleader rule the wife testifies that she purchased the goods through money obtained from an inheritance and through allotments made for her support by the Government while her husband was in the army, an issue will be awarded, even though there are circumstances which throw grave doubt upon the good faith of certain transactions.
    Sheriff’s rule for interpleader. C. P. Lehigh Co., Oct. T., 1921, No. 313.

      Edgar C. Nagle, for plaintiff; J. M. Rapoport, for Mary S. Jones, claimant.
    April 3, 1922.
   Reno, J.,

The case comes to us upon the rule granted upon petition of the sheriff, requiring the claimant, Mary S. Jones (the wife of the defendant), and the parties to the judgment to show cause why an issue should not be framed. To that rule the claimant and the execution plaintiff have filed answers, and depositions of witnesses have been taken and filed.

When a wife claims property, acquired during coverture, against her husband’s creditors, she is required to substantiate her claim by proof sufficient to repel all adverse presumptions, and this proof must be clear, full and satisfactory. The family relation is such, and the probabilities of ownership on the part of the husband so great, that a plain and satisfactory case should be made out before the wife can be permitted to hold property against creditors of her husband. Therefore, the courts rigorously insist that the evidence of her claim must be so clear, full, satisfactory and unequivocal as to exclude all reasonable suspicion that the property belonged to the husband: Hilton v. Liebig Manuf. Co., 59 Pa. Superior Ct. 460; Taylor v. Paul, 6 Pa. Superior Ct. 496; Rhinesmith’s Case, 25 Pa. Superior Ct. 300; Heiges v. Pifer, 224 Pa. 628; Earl v. Champion, 65 Pa. 191.

But this rule applies only upon the trial of an issue. The test supplied by these authorities is not to be employed when the court is determining whether an issue in interpleader shall be awarded. At that stage of the proceeding “the court is not to inquire into the merits of the respective claims further than to see that they are not merely colorable or frivolous or collusive, but maybe the basis of bona fide suits:” Book v. Sharpe, 189 Pa. 44, 47. If they may be, the interpleader must be granted, even though the court be of the opinion that the claims cannot finally prevail: Book v. Sharpe, 189 Pa. 44. Only when the facts are undisputed, or if the inferences deducible from the facts are clear, may the .court pass upon the merits of the controversy: Tygard’s Appeal, 7 Pa. Superior Ct. 388; Com. v. Burns, 14 Pa. Superior Ct. 248. If the facts are disputed, the parties are entitled to an issue: Gillespie v. Agnew, 22 Pa. Superior Ct. 557.

Testing the testimony by these standards, we feel that we are obliged to award an issue. The claimant testifies that she purchased the goods from Edward L. Brandmeier for the sum of $500. This sum represented, partly, an inheritance from the estate of her mother, and, partly, an accumulation of allotments made for her support by the Government while her husband was in the army. This testimony is uncontradicted, and the doctrine of Gillespie v. Agnew, 22 Pa. Superior Ct. 557, requires us, we believe, to regard this as prima facie evidence entitling the claimant to an issue. Certainly that testimony might be the basis upon which could be founded a bona, fide suit within the meaning of Book v. Sharpe, 189 Pa. 44. It is true that she had previously lent this sum to her husband, and that he later repaid it to her out of his business, in order that she might be protected in the event of a financial disaster to him. It is also true that Brandmeier had purchased part of the goods from the husband by a bill of sale without taking actual manual possession of the goods. It seems likely, also, that the bill of sale from the defendant to Brandmeier and that from Brandmeier to the claimant were executed on the same day. These circumstances, of course, throw grave doubt upon the good faith of the transaction, and if not satisfactorily explained may, upon the trial of the issue, require us to rule against the claim. But we do not understand that they are, upon this preliminary determination, sufficient to overcome the prima facie case established by the payment admittedly made out of the separate funds of the wife, and, therefore, we think that a jury must pass upon the question of title. If we were permitted to pass upon the merits of the case, we should probably arrive at another conclusion, but the authorities heretofore cited distinctly instruct us that we must heed the prima facie showing, even though we think the claim cannot finally prevail. Of course, as to that we are expressing no opinion at this time.

Now, April 3, 1922, the rule to show cause why an issue should not be framed to determine the ownership of the goods is made absolute; an issue is hereby granted and framed between the claimant and the plaintiff in the execution, the sole question thereof being the ownership of the goods claimed by the claimant; bond to be filed and further proceedings to be had in the form and manner prescribed by the Act of May 26, 1897, P. L. 95, and the amendments thereof.

From James L. Sehaadt, Allentown, Pa.