author: Davis, J.,

text:
    Bernstein v. Woodward et al.

      Foreign attachment — Rule to quash — Answer.

      1. Where no answer is filed to a petition for a rule to Quash a foreign attachment, the facts alleged in the petition must he taken as admitted.

      Negligence — Damages—Federal Employers’ Liability Act — Foreign attachment — Executors and administrators.

    2. Where a widow of a non-resident of Pennsylvania begins an action in Pennsylvania under the Federal Employers’ Liability Act of April 22, 1908, ch. 149, 35 U.
    S. Stat. 65, as administratrix of her husband, and the railroad company, defendant, pays her damages in settlement of her claim, such moneys are not subject to foreign attachment in a suit against the widow for her personal debt.
    3. The Federal Employers’ Liability Act supersedes the laws of the State upon all matters within its scope.
    Rule to quash writ of foreign attachment. C. P. No. 3, Phila. Co., March. T., 1927, No. 1006.

      Lemuel B. Schofield, for plaintiff; Barnes, Biddle & Morris, for defendants.
    Dec. 7, 1927.
   Davis, J.,

The plaintiff issued a writ of foreign attachment, naming Mabel Woodward as defendant and Allen Spangler and Girard Trust Company as garnishees. The writ was served upon the garnishees on Feb. 28, 1927. This is a rule by the garnishees to quash said writ. The plaintiff has filed no answer to the petition. Therefore, the facts alleged in the petition to quash must be taken as admitted.

The garnishees contend that there was no property of the defendant, Mabel Woodward, individually, in the possession of the garnishees when the writ was served and for that reason the writ should be quashed.

The plaintiff, a member of the bar, was employed by Mabel Woodward to bring an action against the Pennsylvania Railroad Company to recover damages for the death of her husband, Taylor J. Woodward, an employee of the Pennsylvania Railroad Company, accidentally killed while engaged in interstate commerce. The deceased was a resident of Wilmington, New Castle County, State of Delaware, and was survived by his widow, Mabel M. Woodward, and three minor children, who reside in the City of Wilmington, New Castle County, State of Delaware. The accident occurred at or near Marcus Hook, Delaware County, State of Pennsylvania. The plaintiff avers in his affidavit of cause of action that, at the instance of Mabel M. Woodward, he made an investigation of the facts surrounding the death of the said Taylor J. Woodward, and claims the sum of $3000 for the services so rendered. It does not appear that the plaintiff entered suit to recover damages for the death of Taylor J. Woodward.

Allen Spangler, one of the garnishees, in his petition avers that he is a member of the Bar of the County of Philadelphia, State of Pennsylvania, and that, on Jan. 12, 1927, letters of administration of the estate of Taylor J. Woodward were granted unto Mabel M. Woodward. Subsequently, Mabel M. Woodward, as administratrix of the estate, appointed Allen Spangler her attorney to institute and maintain an action against the Pennsylvania Railroad Company to recover damages for the death of her husband or to effect an amicable settlement. On Feb. 18, 1927, Spangler, on behalf of Mabel M. Woodward, administratrix, made settlement of the claim of the latter with the Pennsylvania Railroad Company. The defendant company paid to the administratrix the sum of $14,000, and delivered a check therefor to the said Allen Spangler, to the order of “Mabel M. Woodward, Widow and Adminis-tratrix of the Estate of Taylor J. Woodward, deceased, per Allen Spangler, her attorney.” The check was so endorsed by Spangler and deposited to the credit of his personal account in the Girard Trust Company.

At the time of the death of Taylor J. Woodward he was engaged in interstate commerce as an employee of the Pennsylvania Railroad Company. Under the Act of Congress of April 22, 1908, 35 Stat. at L. 65, 8 Fed. Stat. Ann. (2nd ed.) 1208, it is provided “that every common carrier by railroad while engaging in interstate commerce shall be liable in damages in case of the death of any of its employees to such employee’s personal representative for the benefit of the surviving widow and children of such employee for such death resulting, in whole or in part, from the negligence of such carrier.” Under the said act, the right to recover damages from the railroad company for the death of Taylor J. Woodward was in his personal representative, to wit, the administratrix of his estate. The Federal Employers’ Liability Act of April 22, 1908, ch. 149, 35 U. S. Stat. 65, supersedes the laws of the State upon all matters within its scope: Hogarty v. Phila. & Reading Ry. Co., 255 Pa. 236. Any sum coming into the hands of the administratrix of the deceased must be distributed in accordance with the laws of the State of Delaware.

There is no property in the hands of the garnishees belonging to Mabel M. Woodward as an individual, as the fund in the hands of the garnishees is the property of the administratrix of the estate of Taylor J. Woodward. Therefore, the fund is not subject to foreign attachment on a claim against Mabel M. Woodward individually. Any contract or agreement of the plaintiff was made with Mabel M. Woodward in her individual capacity. The fund in the hands of the garnishees belonging to the administratrix of the deceased cannot be attached by a creditor of Mabel M. Woodward, an individual.

The rule to quash the writ of foreign attachment is made absolute.


source: Caselaw Access Project

author: HARGEST, P. J.,

license: Public Domain

text:
    Peck v. Snyder.

      Wills — Construction—Gift for life with power of disposition — Fee.
    A gift to testator’s wife of all his property, real and personal, ‘‘to have, hold and enjoy during her life and to dispose of at or before her death as she is disposed or inclined,” passes a fee.
    Case stated to determine construction of will. C. P. Dauphin Co., Jan. T., 1927, No. 321.

      Metzger & Wickersham, for plaintiff; Earl V. Compton, for defendant.
    May 19, 1927.
   HARGEST, P. J.,

This matter comes before us on a case stated. The plaintiff, now the wife of Milton I. Peck, was the widow of Ralph R. Burd, who, at the time of his death, was seized of certain real estate. He left a will, which contained the following:

“I give, bequeath and devise to my beloved wife, Ethel R. Burd, all the property, real and personal, of which I die possessed, to have, hold and enjoy during her life and to dispose of at or before her death as she is disposed or inclined.”

He appointed the plaintiff as the executrix of his will. The plaintiff has agreed to sell the property to the defendant, who declines to take the title. The question, therefore, is whether, under this will, the plaintiff has (a) a fee simple title; (b) a life estate; or (c) a life estate with power of consumption and alienation.

In Kiefel v. Keppler, 173 Pa. 181, the will provided: “My husband shall have whole income while he lives. I also shall authorize my husband to have the right to sell any or all of the property belonging to me.” It was held that, under the Act of April 8, 1833, P. L. (1832-33) 249, the husband took a fee in the real estate.

In Schaaf v. Politowski, 276 Pa. 31, the testator devised the residue of his estate “of whatever nature and kind” to his wife, “to have and enjoy the same during the term of her natural life,” with “the privilege and full power, if she can get good prices for said real estate, to make sale of the same and give good title for the same as if I was alive.” It was held that the wife took only a life estate, and the case of Kiefel v. Keppler, supra, was distinguished.

In Gelb v. Weisberger, 247 Pa. 416, the will devised all of the testator’s estate to his wife for her life, “with the privilege to dispose of any and all of the real estate if she chooses,” and it was held that the wife took a life estate’ with power to convey the real estate in fee simple and that the purchaser from her acquired a good title.

The three foregoing cases are fair examples of the language which has been construed to vest the three kinds of estates to which we have referred. In the instant case there is no disposition made by the will after the death of the widow. She is given more than a life estate. She is given the right to “enjoy during her life,” but she is given more than the right to “enjoy.” She is given not only the right to sell during her life, but also the right to give away either during her life or at her death, because she is also given the right to.dispose of the property “at or before her death as she is disposed or inclined.” This includes the tight of disposition by will. There is no withholding of “the qualities usually recognized as inseparable from an estate of inheritance:” Stanton v. Guest, 285 Pa. 460-463. The differences which Chief Justice Mosehzisker pointed out in Schaaf v. Politowski, 276 Pa. 31, between that case and Kiefel v. Keppler, 173 Pa. 181, are emphasized in the instant case. In the Schaaf case the testator limited the devisee’s enjoyment of the corpus to a life estate. The right of disposition was limited to a right of sale and was not a power of consumption. The sale was conditioned upon securing a good price. We have no difficulty in concluding that the estate passing under this will is more than a simple life estate.

The question of determining whether it is a fee or a life estate with the power of sale is somewhat more difficult. But upon a careful analysis of the case of Kiefel v. Keppler, supra, which was held to pass a fee, we conclude that the will in the instant ease has the same effect. Here, the will is even stronger than in that case. There, the husband had the “whole income while he lives.” Here, the wife has all the property, both income and corpus, “to have, hold and enjoy during her life.” There, the husband had “the right to sell any or all of the property.” Here, the widow not only has the right to sell during her lifetime, but the right to dispose of it at her death, “as she is disposed or inclined.” There, as here, there was no limitation over, and no restriction on the appropriation of any proceeds of a sale, if made. Where the estate vested is a life estate with power of sale and not a fee, there is a disposition of the residue or remainder: Gelb v. Weisberger, 247 Pa. 416; Hege v. Ickes, 267 Pa. 57, as explained in Edwards v. Newland, 271 Pa. 1, 5.

We have not found any case where the will has been held to give only a life estate with power of sale, where not only the right to consume the estate but also the right to dispose of the property at death has been given.

For these reasons, we are of opinion that, under the Act of April 8, 1833, P. L. (1832-33) 249, the plaintiff took an estate in fee simple, and, therefore, has the right to convey a good and marketable fee simple title to the purchaser.

Now, May 19, 1927, judgment is hereby directed to be entered in favor of the plaintiff and against the defendant, at the costs of the defendant.

From Homer L. Kreider, Harrisburg-, Pa.


author: Koch, J.,

text:
    C. Trevor Dunham, Inc., v. Miller.

      Judgment^-Confession — Entry of judgment — Residence of plaintiff — Act of March SI, 1915.

    1. The provision of the Act of March 31, 1915, P. L. 39, requiring the filing of a certificate of the residence of the judgment creditor when a judgment is entered, is met where the praecipe directing judgment sets forth in its caption the residence of the creditor.

      Judgment — Entering judgment — Assignment—Act of May 28, 1715.

    2. A negotiable promissory note containing a warrant to confess judgment may be entered up by the holder without a formal assignment to him under seal, before two or more credible witnesses, as provided by the Act of May 28, 1715, 1 Sm. Laws, 90.
    3. The fact that a note is under seal, that it contains a warrant to confess judgment, that it is payable in instalments, and that it contains an intimation of the transaction out of which it grew, does not affect its negotiability.
    Rule to show cause why judgment should not be stricken from the record. C. P. Schuylkill Co., Jan. T., 1927, No. 452.

      R. S. Bashore, for plaintiff; W. C. Devitt, for defendant.
    March 7, 1927.
   Koch, J.,

The reasons assigned in support of this motion are as follows:

“1. Because neither the judgment creditor nor his authorized agent or attorney, before judgment was entered, filed to the same number and term as the judgment herein set forth, the precise residence address of the said judgment creditor, as is required by the Act of Assembly passed March 31, 1915, § 1, P. L. 35.
“2. Because there is nothing in the record authorizing or empowering any attorney or other person to confess judgment in favor of the above-named plaintiff.
“3. Because the above-stated judgment has been entered and filed without any authority, either in law or in fact, for its entry against the above-stated defendant.”

An act, entitled “An act relative to judgments and prescribing the duties of prothonotaries in connection therewith,” approved March 31, 1915, P. L. 39, directs every prothonotary “not to enter any judgment unless the judgment creditor, or his duly authorized attorney or agent, produces to the prothonotary a certificate signed by the judgment creditor, or by his duly authorized attorney or agent, setting forth the precise residence address of the said creditor. The certificate shall be filed at the same number and term as the judgment.” Section 2 of the act makes it the duty of the prothonotary to “monthly prepare and deliver to the county authorities who assess property for county tax purposes a list of all judgments entered during the preceding month, with the names and residence addresses of the respective judgment creditors and the amount of the respective judgments.”

It is apparent that the purpose of this act is to advise the county authorities respecting the premises so that taxes for moneys at interest may be assessed and obtained. The information, required in this instance is fully met by the caption of the case as stated in the prsecipe, directing the confession of judgment to be entered. The caption reads as follows: “C. Trevor Dunham, Inc., Nos. 246-248 North Broad Street, Philadelphia, Pa., plaintiff, v. Lamont Miller, defendant.”

We think the caption giving the address of the judgment creditor answers all the purposes intended by the Act of March 31, 1916, P. L. 39. It is a substantial compliance with the requirements of the act. The act is directory in its character, and its purpose is well served by giving the information which the act obliges the creditor to give, and that information is found in the caption of this case. Therefore, the case of Small v. Faust, 6 D. & C. 816, is not controlling in this case, and the reason assigned in support of the rule is of no avail.

The note is dated Nov. 3, 1923, to pay W. A. White $1171.12 in twelve monthly instalments, and judgment by confession was entered Dec. 14, 1926.

The defendant contends that the plaintiff in this case could not enter judgment without a formal assignment of the note made before two or more credible subscribing witnesses, as provided in section 8 of the Act of May 28, 1716, 1 Sm. Laws, 90, which says: “All assignments made of bonds and specialties shall be under hand and seal before two or more credible witnesses.”

The note is not a specialty on account of bearing a seal: Act of May 16, 1901, § 6, P. L. 194.

The question here is whether this note is negotiable. For if it be a negotiable instrument, the holder thereof may sue thereon in his own name: Ibid., § 51. Nor is the negotiability of a note affected by the provision that it shall be paid in instalments or that, if any default be made in any instalment, the whole shall become due: Ibid., § 2. Nor because it provides for collection of costs and an attorney’s fee: Ibid., § 2. Nor is it affected by an intimation of the transaction which gives rise to the instrument: Ibid., § 3. Nor is the negotiability affected by the fact that it authorizes the confession of judgment or waives the benefit of exemption laws: Ibid., § 5. The instrument is, therefore, negotiable, and the endorsement or guarantee on the back by the payee named in the note does not affect its validity in the hands -of the holder, to wit, C. Trevor Dunham Inc. In the body of the note it is specifically provided that judgment may be confessed in favor of the lessor, W. A. White, or in favor of any subsequent holder of the note. There is, therefore, no necessity for a formal assignment of this note under seal in the presence of two witnesses. There is ample authority given in the note for the confession of judgment. If the amount claimed to be due is not the amount due, the only recourse is a rule to open the judgment.

The rule is discharged, the defendant is given an exception and bill is sealed.

Prom M. M. Burke, Shenandoah, Pa.

NOTE. — A note does not lose its negotiable character by authorizing “a confession of judgment if the instrument be not paid at maturity:” Act of May 16, 1901, § 5. subd. 2, P. L. 194.


author: Knight, J.,

text:
    Falco v. Bryn Mawr Trust Company, Administrator.

      Negligence — Owner of property along highway — Tree—Decayed limb falling onto highway — Constructive notice — Evidence — Sufficiency — Property leased at time of accident.

    1. An abutting property owner is liable for damages caused by the fall of the limb of a tree which stands outside the fence-line of his land and within the limits of a State highway where he had constructive notice of the decayed and dangerous condition of the tree.
    2. Evidence that the decayed and worm-eaten limb was noticeable for at least nine months before the accident is sufficient to charge the owner with constructive notice of its dangerous condition, and his liability continues even though at the time of the accident the premises were occupied by a lessee.

      Practice — Trial — Defense — Suit brought against wrong party — No affidavit of defense filed — Practice Act of May 14, 1915.

    3. .Where no affidavit of defense has been filed, the defendant is prevented by section 16 of the Practice Act of May 14, 1915, P. L. 483, from raising as a defense that the wrong party was sued.
    Trespass for damage to automobile. Motion for new trial and judgment n. o. v. C. P. Montgomery Co., Feb. T., 1925, No. 40.

      F. Kenneth Moore, for plaintiff; H. M. and B. J. Brownback, for defendant.
    Jan. 24, 1927.
   Knight, J.,

According to the evidence produced by the plaintiff, on the morning of Sept. 30, 1924, Joseph Falco was driving the plaintiff’s truck toward Philadelphia over the State highway (Route No. 145), known as Sandy Hill Road, in Montgomery County. It was before dawn and a foggy, rainy, stormy morning. The estate of David Hess, deceased, had been the owner for a number of years of a farm of ninety-three acres fronting on the Sandy Hill Road, in Plymouth Township.

As Joseph Falco was driving the plaintiff’s truck by the Hess property on the morning in question, a large limb of a tree, which stood outside the fence-line of the Hess farm, fell about five feet in front of the plaintiff’s truck. The driver was unable to stop in time to avoid the fallen limb and the plaintiff’s truck was damaged in the resulting collision.

Plaintiff sued in trespass, alleging that the tree was in an obviously decayed and dangerous condition and that the defendant had constructive notice thereof. The case was tried before a jury and resulted in a small verdict for the plaintiff.

The defendant now moves for a new trial and judgment non obstante vere-dicto.

The reasons assigned for the new trial and judgment raise several interesting questions of law.

First of all, is an abutting property owner liable for damages caused by the fall of a tree which stands in front of his land but within the limits of a State highway?

Section 2 of the Act of May 31, 1911, P. L. 468, provides: “The State Highway Commissioner is directed to construct or improve and thereafter maintain and repair, at the cost and expense of the Commonwealth, the highways forming the plan or system of the State highways in the several counties and townships,* etc.,” and that the highway commissioner, in the construction and maintenance of the State highways, shall enjoy and possess, in addition to the powers conferred by the act, “all the rights and powers conferred by existing laws on supervisors or commissioners in townships in the construction and maintenance of township roads.”

The defendant contends that the State had absolute and exclusive control of the highway and, hence, of the tree which fell, and was alone responsible for any damage caused by the fall.

The tree did not fall by reason of the construction, improvement or repair of the highway. It stood within the limits of the road, it is true, but it was not placed there by the public authorities, nor was it in any way connected with the traveled surface of the way.

It is conceded that the defendant is the owner in fee of the land on which the tree stood, and it follows, also, that it was the owner of the tree.

In Chambers v. Furry, 1 Yeates, 167, the court held that in a highway the right of passage belongs to the public, but the right to the soil, the.stones, wood or grass continues in the owners of the lands. See, also, Sanderson v. Haverstick, 8 Pa. 294.

Not only is a tree the property of an abutting land owner, but it cannot be removed or destroyed by the public authorities without compensating the owner: Seaman v. Washington, 172 Pa. 467.

For many years, property owners have been in the habit of planting shade trees in front of their properties, either with the express or implied consent of the highway authorities, without constituting a nuisance per se, but they may become a nuisance by disease or decay: City of Allegheny v. Zimmerman, 95 Pa. 287.

The right of ownership of abutting property owners in trees standing in the highway and their responsibility for these trees has been recognized by the courts. Thus, a property owner has restrained a municipality from cutting down a tree in front of his property: Gitt v. Hanover Borough, 4 Dist. R. 606. And an owner may be indicted for maintaining a nuisance if a tree in front of his property constitutes an unreasonable obstruction to the carriage way: Com. v. Hauek, 103 Pa. 536. See, also, Act of July 14, 1917, P. L. 840. Section 6 of the Act of 1911, supra, provides that the State Highway Department shall have exclusive authority over and jurisdiction of State highways, and there is no doubt that it is the duty of the highway commissioner to abate nuisances within the boundaries of the highway. But this does not relieve the abutting property owner of his liability for his affirmative act in creating or maintaining a nuisance in front of his property. It may be true that the property owner cannot open the highway in front of his property without the consent of the highway department, but if he did open it, with or without its consent, and negligently left a hole so that it became a nuisance, he would be liable for the consequences of his act.

The defendant relies on the case of McCormick v. Allegheny County, 263 Pa. 146, as authority for the proposition that the State alone was responsible for the tree. In this case, a suit was brought against Allegheny County for damages sustained by a pedestrian on a sidewalk along and upon a county road. The court based its decision in that case firmly upon the Act of June 26, 1895, P. L. 336, which vested the maintenance of county roads exclusively in the county commissioners and excluded every other agency or authority from any management or control over them. In the opinion of the court below, which was approved in a per curiam opinion by the Supreme Court, Judge Swearington said, in speaking of the Act of 1895: “In section 16, all road supervisors, authorities, persons and townships are expressly excluded from any management or control of such [county] roads, and are relieved from all responsibility therefor.” /it will also be noted that this was a sidewalk and that it had been laid by the public authorities, and not by the abutting property owner, who had nothing whatever to do with it.

The industry of counsel and our own research have failed to disclose a single authority in Pennsylvania directly on the point. Turning to other jurisdictions, we find a New Jersey case, Weller v. McCormick, 52 N. J. L. 470, in which the facts were very similar to the case at bar and in which the abutting property owner was held liable.

We are of the opinion that the fact that this was a State highway and that the State had the management and control of the road, with the duty to maintain and repair it, does not relieve the defendant from liability for maintaining a nuisance, which the jury found this tree to be, within the limits of the highway.

If we concede, however, that there was a misjoinder and the State was the proper party defendant, another interesting question arises. The defendant not having filed an affidavit of defence, can he now interpose the defence that the wrong party was sued? Section 16 of the Practice Act of May 14, 1915, P. L. 483, provides: “Neither party shall be permitted at the trial to make any defence which is not set forth in the affidavit of defence or plaintiff’s reply, as the case may be, except as provided in sections 7 and 13.” Section 7 applies to defences made by fiduciaries and defines the nature of a defence which an executor, guardian, etc., may file. It does not apply to this case where no affidavit was filed. Section 13 provides that in actions of trespass, the averments in the statement of the person by whom the act was committed, the agency or employment of such person, the ownership or possession of the vehicle, machinery, property, etc., involved, and all similar averments, if not denied, shall be taken to be admitted, except that the averments of facts relied on by the plaintiff to show liability and the averments as to damages need not be answered.

Section 16 of the act, limiting the defences to those raised by the affidavit of defence, should be strictly enforced: Meyers v. Somerset Trust Co., 75 Pa. Superior Ct. 40. And where a defendant does not file an affidavit of defence, he goes to trial with all the averments of the statement admitted except the averments as to negligence and damage: McGlinchey v. Steigerwalt, 73 Pa. Superior Ct. 520.

The very purpose of the Practice Act was to define, limit and frame the issue, and neither party is to be permitted at the trial to make any defence which is not set forth in the pleadings: Williams v. Williams, Exec’x, 79 Pa. Superior Ct. 189.

In Gillespie et ux. v. Pennsylvania Co., 272 Pa. 393, a case in which no affidavit of defence was filed, Justice Simpson, in delivering the opinion of the court, said: “Where no affidavit of defence has been filed, plaintiff need not prove whose negligence caused the injury or death of which complaint is made, and defendant will not be permitted to contest that question, but the proofs must show that the injury or death resulted from actual negligence of the character averred in the statement of claim, that plaintiff was damnified by reason thereof, and the extent of his damages.”

The proofs in this case measure up to this standard. If the defendant wished to interpose the defence that the Commonwealth alone was liable, it had an opportunity of so doing by filing an affidavit of defence. It cannot remain silent and then at the trial undertake to inject a new issue.

The statement made by the court which is complained of was not technically a part of the charge to the jury, but was given as a reason for refusing to affirm a point submitted by the defendant. If it was error, the defendant was not injured, because there was ample evidence from which the jury could have found that the defendant was the owner of the real estate and, hence, of the limb which fell.

Defendant also contends that the tenant and not the defendant was liable. The defendant cannot interpose this defence, since it was not raised by an affidavit of defence: Gillespie v. Pennsylvania Co., supra; Williams v. Williams, Exec’x, supra; Meyers v. Trust Co., 75 Pa. Superior Ct. 40.

Conceding, however, that the defence was properly raised, what are the facts? The defendant offered in evidence a lease of the premises in question to one Proferro. This lease was dated October, 1923, and was for the term of one year from April 1, 1924. There was some evidence of the tenancy of Proferro on the property for several years, but the nature of the lease or its terms do not appear.

The court, in its charge, left it to the jury to say if the tree had become a nuisance in October, 1923. If this was error, the defendant benefited, because the jury should have been instructed to consider whether the, tree was in such a condition as to constitute a nuisance before April 1, 1924.

The witness Warren, a very intelligent witness, testified that he first noticed the t-yee in January, 1924, and the witness Piazza, an ignorant Italian gard-ner, described the tree, through an interpreter, as a “little dead in September, 1923.” Taking into consideration that trees do not decay in a few weeks or a few months, we are of the opinion that there is evidence from which the jury could have found that the tree was in an obviously dangerous condition before the lease of Proferro went into effect on April 1, 1924. This being the fact, the defendant could not, by leasing the real estate to a tenant, avoid liability to a third party for the continuance of a nuisance which before such leasing it was its duty to abate: Knauss v. Brua, 107 Pa. 85.

Lastly, the defendant contends there was not sufficient evidence produced on the part of the plaintiff to justify the submission of the case to the jury. Counsel for the defendant argues that the evidence shows that the tree was dead, and it is a well known fact that a dead tree, simply because it is dead, is no more likely to fall than a living tree. He cites Albright v. Sewickley Township School District, 7 D. & C. 403, and Mardo v. Coal Co., 279 Pa. 210, to sustain his position. But the evidence shows that this was more than a dead limb. The witness Warren, a'disinterested and intelligent witness, says of the limb at different parts of his testimony: “There was a large limb which was on the side of the tree toward the road which was wormy and was part of the decayed tree.” “The thing that attracted,my attention was when walking under it, it had all the evidence that it might fall, and I remember looking up, most of the trunk was decayed.” When asked if the condition of the tree as to the large decayed limb was visible to any one walking or passing by, this witness replied: “To a person who would observe, it would seem to me it was.” Again, he was asked, in cross-examination, whether a person would discover the condition of the limb unless he observed rather closely. He replied: “I believe most pedestrians would discover it.” This witness had observed this tree for nine months before it fell, and on his testimony alone the jury could have found that the tree was a nuisance and that it had existed as a nuisance long enough to give the defendant constructive notice, especially in view of the fact that the tree stood along such a great artery of commerce as the Sandy Hill Road.

The two cases cited by the defendant can be distinguished on their facts from the case at bar. Mardo v. Valley Coal Co., 279 Pa. 209, was a case of a partly-dead tree. Albright v. Sewickley Township School District, 7 D. & C. 402, has nothing to do with the case whatever, but we presume that defendant meant to cite Thorndike v. Buena Vista Springs Hotel Co., 7 D. & C. 403. This was also the case of a dead tree, and both these cases turned upon the fact that there was no evidence that the decayed, rotten or dangerous condition of the tree could have been observed before the fall. The trees were merely dead. In the present case, however, there is evidence that the decayed and dangerous condition of the tree was obvious.

We have considered the motion for a new trial and the motion for judgment non obstante veredicto together, and, for the reasons set forth above, we now make the following order:

And now, to wit, Jan. 24, 1927, the motion for a new trial is overruled and all the reasons given in support thereof are dismissed, the motion for judgment non obstante veredicto is refused, and an exception is hereby granted to the defendant to our action in refusing said judgment.

Prom Aaron S. Swartz, Jr., Norristown, Pa.


author: Clark, P. J.,

text:
    Heard’s Estate.

      Decedents' estates — War risk insurance — Distribution—Death of beneficiary — Regulations of Bureau of War Risk Insurance.

      1. under the Federal War Risk Insurance Acts of Oct. 6, 1917, 40 Stat. at L. 409, as amended Dec. 24, 1919, 41 Stat. at L. 375, June 7, 1924, and March 4, 1925, the interest of a designated beneficiary is not a vested one and cannot be disposed of by will, and if, on the death of such beneficiary, there is no survivor of the insured within the designated class of beneficiaries, the present value of subsequent instalments goes to the estate of the insured to be distributed among his next of kin according to the intestate laws.
    2. Only unpaid instalments accruing before the death of the beneficiary are a part of his estate and should be paid to his personal representative and be distributed as provided in his will or according to the intestate laws.
    First and final account of administratrix. O. C. Erie Co., Sept. T., 1926, No. 84.

      Rossiter, Herbst & Dunn, for exceptants.

      Ernest and Francis Heard and March & Eaton, for Julia Rathbun.
    March 22, 1927.
   Clark, P. J.,

Julia M. Rathbun was appointed adminis-tratrix of the estate of Francis J. Heard, deceased.

The accountant charges herself with $9757; claims credit of $1222.85; leaving a balance due of $8534.15, for distribution. The $9757 came from war risk insurance, and to this, since the filing of the account, $110 were received from another source, thus making total balance of $8644.15 in the custody of the administratrix.

Francis J. Heard was a soldier in the World War and, from reports of his officer, was killed in action July 15, 1918, in France; and was insured under the War Risk Insurance Act of Oct. 6, 1917, 40 Stat. at L. 409, for $10,000; and designated his grandmother, Louise Parkhurst Cook, the beneficiary; and payments were made to her up to the date of her death, Feb. 18, 1919. She made her will Dec. 16, 1918, and gave to Julia M. Rathbun, the administratrix, household furniture and fixtures and “one-half of my estate, including one-half of the Government life insurance made to me by grandson, Francis J. Heard, . . . and to my grandson, Merl J. Cook and my granddaughter, Ethel Louisa Williams, the remaining half of my estate, including one-half of the Government life insurance. . . .” Feb. 15, 1919, by her codicil, these bequests were changed, and in it she gave “all payments to which I may now be entitled or would be were I to live, payable upon a policy issued by the Bureau of War Risk Insurance to Francis J. Heard in which policy I am named as beneficiary, after paying my debts and funeral expenses, first, payments to be paid to my sister, Mrs. Julia M. Rathbun, for and during her life and after her death, balance of payments to be paid to Ethel L. Williams, my granddaughter, of Salt Lake City, Utah.”

Evidently the testatrix believed that this war risk insurance after her death would be a part of the assets of her estate; briefly, that she had a vested interest in it and, as such, she could dispose of it by her will.

Accrued and unpaid payments up to the time of her death are a part of her estate and that is all; the remaining insurance after her decease is not an asset of her estate and she cannot dispose of it by her will.

It has been contended that the interest of a designated beneficiary under the provisions of the War Risk Insurance Act of Oct. 6, 1917, was a vested interest, and that to deprive such person of it by the subsequent legislation of the Act of Dec. 24, 1919, ch. 16, § 13, 41 Stat. at L. 371, 375, would be taking the property without due process of law.

The designated beneficiary cannot dispose of the insurance by will; it is not vested, and it has been so decided by the Federal courts.

In the U. S. District Court, Middle District of Pennsylvania, it was set forth, July 2, 1923, Witmer, J., in Gilman Heirs v. United States, 290 Fed. Repr. 614, that: “In the case of Cassarello v. United States (D. C.), 271 Fed. Repr. 486, affirmed by the Circuit Court of Appeals, 279 Fed. Repr. 396, this court states that the contract between the Government and the insured is not an ordinary contract of insurance, and held that, since in principle it lacked the character of a vested interest, the same could not be passed by the last will of the designated beneficiary.”

The decision in the Gilman Heirs case, supra, was affirmed by the Circuit Court of Appeals, 294 Fed. Repr. 422, Jan. 2, 1924.

And it was held in Hurst v. United States (D. C.), 283 Fed. Repr. 600, that there was no disturbance of a vested right by the Act of 1919. The decision in this case was affirmed by the Circuit Court of Appeals, Sixth District, Jan. 11, 1924, 294 Fed. Repr. 417.

The United States Supreme Court has decided that there was no vested interest, and Gilman Heirs v. United States, supra, and Hurst v. United States, supra, were cited with approval in the opinion of Justice Holmes, March 1, 1926, in White v. United States and Reeves, reported in Advance Opinions 1925-1926, 70 L. Ed., No. 9, pages 316, 317, March 15, 1926, and [that case] affirms the decision of the District Court, Eastern District of Virginia, reported in 299 Fed. Repr. 855.

The reasons for these decisions are fully set forth in them and can be examined by any one interested in the subject-matter; we have not attempted to recite them.

The Act of Oct. 6, 1917, 40 Stat. at L. 409, designated the beneficiaries from which classification the soldier could make his selection in favor of whom the insurance might run. These beneficiaries were limited by the act, which provides that: “The insurance shall not be assignable, and shall not be subj'eet to the claims of creditors of the insured or of the beneficiary. It shall be payable only to a spouse, child, grandchild, parent, brother or sister, and also during total and permanent disability to the inj’ured person, or to any or all of them.”

As to who are included or intended or meant by the terms “child,” “grandchild,” “parent,” etc., the designated persons, see same act, page 401. The term “parent” includes a father, mother, grandfather, grandmother, stepfather and stepmother, either of the person in the service or of the spouse. Hence, the soldier’s designation of his grandmother as the beneficiary was permissible.

And this act further provides: “Subject to regulations, the insured shall at all times have the right to change the beneficiary or beneficiaries of such insurance without the consent of such beneficiary or beneficiaries, but only within the classes herein provided. If no beneficiary within the permitted class be designated by the insured, either in his lifetime or by his last will and testament, or if the designated beneficiary does not survive the insured, the insurance shall be payable to such person or persons within the permitted class of beneficiaries as would, under the laws of the state of the residence of the insured, be entitled to his personal property in case of intestacy.”

Note that payment of the insurance is limited to the “permitted class of beneficiaries,” under the conditions named; in the case being considered, the designated beneficiary survived the insured, but is now dead.

In the case of Cassarella v. United States, supra, Judge Witmer has given a very informative decision upon various questions; among others, that the rules and regulations prescribed by a department of the Government in pursuance of statutory authority have the force of law, and cites several cases of the Federal courts, including the Supreme Court, in support.

Authorized by Congress, the Director of the Bureau of War Risk Insurance did make certain rules and regulations, and they are binding; and, further : “A contract made in pursuance of a Federal statute must be construed with reference to such statute and cannot be controlled by the state laws or decisions,” and authorities are cited sustaining this, and reference is made to an opinion by Mr. Justice Pitney, of the United States Supreme Court, in the case of the Duplex Printing Press Co. v. Deering, etc., 254 U. S. 443, 41 U. S. Sup. Ct. Reps. 172, 165 L. Ed., wherein it was held that the debates in Congress by members are not a safe guide generally, but that the reports of committees may be considered in determining the legal intent where the meaning is obscure and this has been “. . . extended to include explanatory statements in the nature of a supplemental report made by the committee member in charge of a bill in course of passage,” and thereupon he proceeds to quote from the statement made by a member of the House of Representatives, one of the Committee on Interstate and Foreign Commerce, submitting a supplemental report in the House on Sept. 5, 1917, and with reference to whom the insurance shall be given, said: “. . . It must not be payable to any and every one, but to a limited class of relatives” (House Report 130, pt. 3, and further said: “If you have a wife, though, or children, or mother dependent upon you, and you are killed, this insurance money may go to them, because you have a personal and direct interest in them. Some distant cousin off yonder that you never saw, or some uncle, probably who is living in opulence, who does not need the money, will not get it:” Congressional Record, Sept. 8, 1917, page 6761.

íñe original bill designating the beneficiaries had the following clause in it as it went from the House to the Senate: “And to such other persons as may be provided from time to time by regulation,” but this was struck out in the Senate so that the insurance might pass to the soldier’s dependents named in the Act of Oct. 6, 1917, a limited class.

The writer, a member of the House when this bill was passed, cannot entirely exclude from his own mind the impressions received when the bill was under consideration in determining its plain purport, and what has thus been said coincides with the writer’s impression.

If there had not been any further congressional legislation and the Federal courts had not decided otherwise, we would decide that in the distribution of the insurance money those persons entitled to receive it are limited to those who are designated in the Act of Oct. 6, 1917, and therein described as the “permitted class of beneficiaries.” But there has been other legislation; it and judicial decisions and the interpretation of the Director of the United States Veterans’ Bureau govern our conclusions.

Times and customs change and laws are amended, and in the operation of the Act of Oct. 6, 1917, it developed that there were others than those persons named in the act for whom the insured soldier would prefer to have the insurance made, and as deserving, perhaps, as those mentioned in the act. Congress, therefore, passed the Act of Dec. 24, 1919, ch. 16, § 13, 41 Stat. at L. 375. See, also, U. S. Compiled Statutes of 1916, Annotated 1923, Supplement Vol. 1, page 61, § 514 u u u 8, made effective as of Oct. 6, 1917, and an additional permitted class of beneficiaries were included, viz.: Uncles, aunts, nephews, nieces, brothers-in-law and sisters-in-law of the insured and to one standing in loco parentis for not less than one year to a member of the military or naval forces prior to enlistment and induction.'

And thus it happens that the “opulent uncle,” if any there may be, is taken care of, but the “distant cousin off yonder that you never saw” is as yet still distant and unprovided for.

The Act of Dec. 24, 1919', enlarged the number of permitted beneficiaries provided for in the Act of Oct. 6, 1917. Further and controlling legislation is found in the World War Veterans’ Act of June 7, 1924, and its amendment of March 4, 1925. Section 303 of the World War Veterans’ Act of June 7, 1924, made effective as of Oct. 6, 1917, is as follows:

“Sect. 303. If no person within the permitted class of beneficiaries survives the insured, or if, before the completion of payments, the beneficiary or beneficiaries shall die and there shall be no surviving person within said permitted class, then there shall be paid to the estate of the insured the present value of the monthly instalments thereafter payable under the provisions of this title: Provided, that in cases where the estate of the insured would escheat under the laws of the place of his residence, the insurance shall not be paid to the estate of the insured, but shall escheat to the United States and shall be credited to the United States Government life insurance fund or the military and naval appropriation as may be proper. This section shall be deemed to be in effect as of Oct. 6, 1927.”

This, section 303 was amended in section 14 of the Act of March 4, 1925, entitled “An act to amend the World War Veterans’ Act of June 7, 1924.” The amendment was also made effective as of Oct. 6, 1917, and reads as follows:

“Sect. 14. Section 303 of the World War Veterans’ Act of June 7, 1924, is hereby amended to read as follows:
“Sect. 303. If no person within the permitted class be designated as beneficiary for yearly renewable term insurance by the insured, either in his lifetime or by his last will and testament, or if the designated beneficiary does not survive the insured or survives the insured and dies prior to receiving all of the two hundred and forty instalments, or all such as are payable and applicable, there shall be paid to the estate of the insured the present value of the monthly instalments thereafter payable, said value to be computed as of the date of the last payment under any existing award: Provided, that all awards of yearly renewable term insurance which are in course of payment on the date of the approval of this act shall continue until the death of the person receiving such payments, or until he forfeits same under the provisions of this act. When any person to whom such insurance is now awarded dies or forfeits his rights to such insurance, then there shall be paid to the estate of the insured the present value of the remaining unpaid monthly instalments of the insurance so awarded to such person: Provided, further, that no award of yearly renewable term insurance which has been made to the estate of a last surviving beneficiary shall be affected by this amendment: Provided, further, that in cases when the estate of an insured would escheat under the laws of the place of his residence, the insurance shall not be paid to the estate, but shall escheat to the United States and be credited to the military and naval insurance appropriation. This section shall be deemed to be in effect as of Oct. 6, 1917.”

By reason of these acts, the persons entitled to participate in the distribution of the solder’s insurance in the instant case are determined by the laws of Pennsylvania, and the former prescribed permitted beneficiaries as set forth in the Acts of Congress heretofore recited are not the only ones. In determining who are the next of kin, an administrator follows the laws of the State.

On examination of the Acts of Congress, the decisions of the United States courts and other sources of information, we reach the following conclusions :

1. That the “Regulations” made by the proper person, the Director of the Bureau, to whom authority to do so was given by the legislative Acts of Congress, were effective and binding.

2. That the insurance agreement entered into by the insured under the Act of Oct. 6, 1917, supplementary of the Act of Sept. 2, 1914, was subject to modification, changed by Congress under the Act of Dec. 24, 1919, and these acts did not create a vested interest in the beneficiary in instalments maturing after his death.

3. That unpaid instalments accruing before his, the beneficiary’s, death are a part of his estate and should be paid to his personal representative (administrator or executor) and be distributed as provided in his will, if any, and if not, then according to the intestate laws of the state wherein he had his domicile.

4. That a beneficiary cannot dispose of, by will, any part of the insurance other than the unpaid instalments accruing up to the time of his death.

5. That, in the instant case, upon the death of the beneficiary, the remaining insurance must be paid to the estate of the insured and be distributed according to the intestate laws of the State of Pennsylvania, where he lived; to his next of kin as determined by the laws of this State. The insurance money having passed out of the hands of the Government into the 'custody of and control of a fiduciary of the insured, the laws of the Commonwealth where he had his domicile become operative.

An interpretation by the general counsel of the War Veterans’ Bureau is as follows: “Section 303 of the World War Veterans’ Act provides for the payment to the representative of the veteran’s estate of the present value of the remaining insurance. In the distribution of this gum, the representative of the veteran’s estate is governed entirely by the laws of the state of residence of the veteran, and so long as the Veterans’ Bureau is assured that there will be no escheat, the disposition of the funds in the hands of the administrator is a matter over which the bureau has no control.”

We have presumed that the original certificate of insurance is like others issued at approximately the same time under the Acts of Congress and contained the following: “Subject to the payment of the premiums required, this insurance is granted under the authority of an act amending ‘An act to authorize the establishment of a Bureau of War Risk Insurance in the Treasury Department,’ approved Sept. 2, 1914, ‘and for other purposes,’ approved Oct. 6, 1917, and subject in all respects to the provisions of such act, or any amendment thereto, and of all regulations thereunder, now in force or hereafter adopted, all of which, together with the application for this insurance and the terms and conditions published under the authority of the act, shall constitute the contract. . . .”

Counsel in open court stated: “We are going to raise the question: Who is to receive the money?” The question may be considered raised.

We have cited acts and decisions bearing upon the subject; these and others which counsel may find may be helpful in their preparation of a suggested distribution with a result that this opinion should be modified.

It must be remembered and considered in the contemplated distribution that a part of the assets of the estate comes from a source outside of the insurance.

It is ordered that counsel prepare and submit, on or before April 4, 1927, a suggested distribution in accordance with the foregoing opinion as to who are the next of kin of the insured. Prom Otto Herbst, Erie, pa.


author: Morrow, J.,

text:
    Peach v. Peach.

      Divorce — Parties—Name—Amendment—Notice—Ex parte motion.

    1. It is improper, in a divorce proceeding, for the court to permit the record to be amended by changing the names of the parties on the ex parte motion of libel-iant’s attorney without a rule to show cause and without service of notice on the respondent.

      Divorce — Subpoena—Service by publication — Notice.
    2. Service of a subpoena in divorce by publication is defective where rules of court require marked copies of papers containing the notice to be mailed to the last known address of respondent, and the return shows such notice was mailed to “No. 1304 Clover Street,” the last known address stated in the libel, while the evidence shows the proper address is “No. 1304 Carbon Street.”

      Witnesses — Competency—Divorce—Libel—Rule to take depositions — Service — Act of 1915.

    3. Libellant is not a competent witness in a divorce proceeding under the Act of April 21, 1915, P. L. 154, where neither the libel nor a rule to take depositions was served on respondent either personally or by publication.

      Divorce — Adultery—Evidence.
    4. Divorce on the ground of adultery will not be granted where the only testimony is that the co-respondent visited respondent at her home several times in the evening when libellant was absent.
    Libel in divorce. C. P. Fayette Co., March T., 1925, No. 545.

      E. D. Fulton and Eugene Sloan, for libellant.
    Feb. 14, 1927.
   Morrow, J.,

The master’s report in this application for divorce was submitted to -this court a considerable time ago. Subsequently, we learned that the matter had been brought to the attention of Judge Rep-pert prior to the expiration of his term of office the first Monday of January, 1926, and since he is now advising with and assisting in the work of the court, under and by virtue of the provisions of section 2 of the Act of June 12, 1919, P. L. 461, the case was referred to him for his opinion thereon. Such work is in line with his duties: Wentsler v. Wentsler, 8 D. & C. 350. We accept and adopt his opinion without any change therein. It is as follows:

This is an action in divorce brought by David Peach against Eva Peach. The names of the parties so appear in the style of the case, the libel and the affidavit thereto, although both the libel and the affidavit are signed “David Peet.” No examination of the due execution of the paper could have been made by counsel, otherwise the discrepancy would have been disclosed. In the subpoena and the return thereto of n. e. i., filed March 6, 1925; in the order for an alias subpoena filed March 11, 1925; in the alias subpoena issued March 12, 1925, returnable April 13, 1925, and the return thereto of n. e. i., sworn to April 13, 1925, and filed April 21, 1925, the names of the parties are the same, although in the style of the case endorsed on the back of the alias subpoena a line made by a pen is run through the last name of the plaintiff and defendant and the name “Peet” written above. The erasure must have been made aftér the return was sworn to. Upon affidavit made by libellant, dated Peb. 28,1925, that a mistake had been made in the names of the parties, the proper name of each being “Peet” instead of “Peach,” without rule to show cause, and on motion of attorney for the libellant, “the court allows the record to be amended by changing the names of the libellant and respondent from David Peach and Eva Peach to David Peet and Eva Peet, respectively, and the same is accordingly amended wherever it appears.” The order quoted is dated and purports to have been made March 8, 1925. It is marked “filed April 8, 1925,” and is entered on the docket as having been made on that date. March 8, 1925, fell on Sunday. According to the minute-book, court was not in session on April 8, 1925. Whatever the circumstances or statements made when the order was obtained, without doubt, it was made inadvertently, and'is without force: and effect. A party whose name it is asked to amend must be in court. If the effect of the amendment yrill be to correct the name under which the right party was sued, it should be allowed; if the effect will be to bring a new party on the record, it should be refused: Wright v. Eureka Tempered Copper Company, 206 Pa. 274, 276; White Co. v. Fayette Automobile Company, 43 Pa. Superior Ct. 532, 533; Fitzgerald's Estate (No. 1), 252 Pa. 568, 672; Dress v. Schuylkill Ry. Co., 83 Pa. Superior Ct. 149. The test is that the party whose name it is asked to amend must be in court: G. A. Cæsar & Co. v. Banks Bros., 7 D. & C. 212, 213. No amendment changing the name of a defendant will be permitted before his appearance. Until both parties are in court, the application is ex parte and premature and must be refused: Hartshorne v. Mercer, 3 Clark, 505, 506. Until he is actually in court and his identity thus established, how can it be shown that the right defendant has been sued under a wrong name and that, therefore, an amendment correcting the mistake should be allowed? In this case, no summons had been served on anybody. No one had appeared in person or by attorney, voluntarily or otherwise. The defendant had a right to personal service if she was in the county. As the record stands, there is nothing to show that she was not in the county. She also had a right to notice of the application to correct the alleged mistake in name. A rule to show cause why the correction should not be made should have issued even if she had appeared and was in court. Counsel for libellant seem to have been conscious of this, for the affidavit filed is captioned “affidavit for rule to amend names,” and is similarly backed. The order of April 8, 1925, amending the names of the parties, having been made improvidently, should be vacated.

May 6, 1925, an order of publication, returnable July 2, 1925, was directed to issue. In this order the case is styled David Peet v. Eva Peet. Thereafter it is so styled, or David Peach, alias David Peet, v. Eva Peach, alias Eva Peet. The rules of court then in force provided for the publication of the notice by the sheriff and that marked copies of the newspapers containing the notice should be mailed to the respondent at his or her last known address. The ■return to the order of publication shows that copies of papers containing the notice were mailed, addressed to the respondent at No. 1304 Clover Street, Syracuse, N. Y., that being her last known address as stated in the libel.

July 9, 1925, a master was appointed to take testimony and report. The hearing was held Aug. 20, 1925. A registered letter containing a notice of the hearing, addressed and mailed to Mrs. Eva Peach (typed), alias Eva Peet (written), No. 1304 Clover Street, Syracuse, N. Y., was returned to the master endorsed “No such number.” The libellant and two other witnesses were examined at the hearing.

Pursuant to a commission issued to Harry S. Lee, Esq., of Syracuse, N. Y., the testimony of one witness, Mrs. Lilly Peet, of No. 104 Steuben Street, Syracuse, was taken Aug. 28, 1925, and returned and filed Sept. 21, 1925.

The libel charges the respondent with adultery with one Ernest Herrington and with one other of unknown name. It clearly appears from the answers of Lilly Peet to the third, fifth, thirteenth and twenty-seventh interrogatories that in or about the year 1920, when the acts of adultery were alleged to have been committed, the residence of the libellant and respondent was No. 1304 Carbon Street and not No. 1304 Clover Street, as stated in the libel arid in libellant’s testimony, and had been for several years prior to 1920. The witness then lived and still lives at No. 104 Steuben Street, a short distance from the house occupied by the Peets at No. 1304 Carbon Street. The libellant and respondent were living there when the libellant left in May, 1920. He left the respondent in the house they then occupied. For aught that appears, she is there still. There is no testimony placing her elsewhere or that she ever left. Lilly Peet was asked no question as to respondent’s whereabouts since her husband left, nor was inquiry made of her as to her own relation to or connection with the libellant's family. It is manifest that the service by publication was defective and incomplete, in that the rule of court relating thereto was not complied with requiring that marked copies of the papers containing the notice shall be mailed to the last known address of the respondent.

Neither the libel nor the rule to take depositions was served on the respondent personally or by publication, nor was any attempt made to give notice to her, either personally or by publication, of the taking of the deposition of Lilly Peet, notwithstanding she may be residing in the same city and near the witness. The subpoena was not served on her personally, and the service by publication was defective and incomplete. The libellant was, therefore, incompetent to testify to the alleged misconduct of his wife. In Rhodes v. Rhodes, No. 322, September Term, 1926, not reported, this court said:

“If the libellant is a competent witness to testify as aforesaid, it is by virtue of the provisions of the Act of April 21, 1915, P. L. 154. By reference to this Act of 1915, it will be observed that it is an amendment of the Act of June 8, 1911, P. L. 720, and that the word libel found therein does not appear in the former legislation, this act providing to the effect that the libel, subpoena and rule to take depositions may be served on the respondent by publication, and that when so served, the libellant is a competent witness as to all the facts in the case. It seems clear that one of the conditions upon which the libellant’s competency as a witness is thus broadened when there is no personal service, is that the libel must be served by publication as well as the subpoena and rule to take depositions.”

The only testimony, other than that of the libellant himself, which must be discarded, bearing on the charge of adultery, is that of Lilly Peet. Leaving out of consideration those portions of her testimony which are clearly incompetent, being hearsay, the conclusion of the witness or otherwise improper or ■unimportant, the remainder, in our judgment, would not warrant a finding that the wife was guilty of the charge alleged. It is to the effect that the witness several times saw the co-respondent, Herrington, at the libellant’s house when she went there to call in the evening, both when the libellant was there and when he was not there; that sometimes Herrington would leave before she did, at other times he would remain after the witness left. The greater portion of this testimony, meager as it is both in quantity and quality, was elicited by interrogatories objectionable’ in form. Standing alone and without objection, it seems to us insufficient to lead the guarded discretion of a reasonable and just man to a conclusion of guilt: Matchin v. Matchin, 6 Pa. 332, 338.

In the report of the master, whose recommendation we regret we cannot sustain, there are allusions to a “vernial” disease contracted by the husband from his wife. It is apparent that the report after it was typed, as the libel after it was executed, was not examined for the detection and correction of errors. The whole record exhibits the lack of care and thoroughness and the absence of a sense of responsibility in the performance of important duties that to such a regrettable degree characterize this class of legal practice, and which, with other causes, are bringing it into disrepute.

This is the second time this case has been considered. After the first examination, the papers were returned to counsel with an oral statement of the reasons why, in the opinion of the court, the proceeding could not be sustained. This was done because the application seemed meritorious and with the thought that counsel might prefer to discontinue and begin anew. The case, however, was again submitted. Further consideration has served to confirm ' the conclusion formerly reached.

Order.—And now, Feb. 14, 1927, after consideration, the proceedings in this case are dismissed, at the cost of the libellant, without prejudice.

From Luke H. Frasher, Uniontown, Pa.


author: Rossitee, P. J.,

text:
    Commonwealth v. Donovan.

      Liquor law — Search warrants — Probable cause.

    1. A search warrant in a liquor case will not be quashed because the officer taking it out has no personal knowledge of the sale of liquors by defendant, if it appears that probable cause for its issue was based on the information of such sales by credible witnesses.
    2. Com. v. Schwartz, 82 Pa. Superior Ct. 369, is not overruled by Com. v. Berden-ella, 288 Pa. 510.
    Rule to quash search warrant and suppress evidence secured by means of the same. Q. S. Erie Co., Sept. T., 1927, No. 65.

      M. L. Davis, District Attorney, for plaintiff; S. T. Rossiter, for defendant.
    Aug. 30, 1927.
   Rossitee, P. J.,

On June 20, 1927, a rule to show cause was granted upon the petition of the defendant, setting forth that, on May 4, 1927, he was arrested upon a warrant issued upon information for the possession of intoxicating liquor for beverage purposes; that the information was based upon evidence secured upon a search warrant, which search warrant was issued upon a complaint, a copy thereof being attached to the petition as Exhibit “A;” that defendant had a hearing and was bound over to answer at the next term of Court of Quarter Sessions. He further avers that the search warrant was issued illegally and unlawfully and upon insufficient grounds and reasons therefor; wherefore he prays that the search warrant be quashed and the evidence secured suppressed.

The Commonwealth filed an answer, admitting the arrest, admitting that Exhibit “A,” attached to the petition, was a copy of the complaint upon which the search warrant was issued, and that defendant had a hearing before a magistrate and was bound over to answer at the next term of Court of Quarter Sessions; but denied that the petition was “sufficient, for the reason that it fails to allege that the liquor seized was the legal property of the petitioner or that the seizure in any way adversely affected the petitioner’s interest.” The answer “further avers that the petitioner has shown no reason for the quashing of the search warrant or for an order to suppress the evidence secured by means thereof; and, therefore, prays the court to refuse the prayer of the petitioner.”

The officer making the complaint as the basis for a search warrant testified, at the hearing before the magistrate, as follows: “Q. What, if any, knowledge of any sale upon the premises did you have? A. Not any. Q. You had no knowledge when you made the affidavit for the search warrant of any sale being made upon the premises? A. Never had. Q. And no evidence of the premises being used for sale?- A. No evidence of the premises being used for sale.”

It was admitted by the district attorney that the officer had so testified.

The theory of the defendant is that, if the case of Com. v. Schwartz, 82 Pa. Superior Ct. 369, is still the law, it is controlling; but that the case of Com. v. Berdenella, 288 Pa. 510, if not directly, at least inferentially and just as positively as though directly, overrules that case and establishes an interpretation for the Act of March 27, 1923, P. L. 34, which is directly opposite and antithetical to the principle announced in the Schwartz case; and, hence, the conclusion reached in the Schwartz case, being deduced from a false hypothesis, fails. In other words, the contention of the defendant is that the Berdenella case holds that the Act of 1923, being a penal act, should be strictly construed, while the Schwartz case holds that it should be liberally and beneficially expounded. This they do in just so many words.

We do not pretend to understand where or how the legislature got its right to dictate to the courts how they should interpret statutes. Our idea has always been that this Government was a triumvirate and that the function-ings of each part of the trinity was integral. Neither do we pretend to understand why the Commonwealth should be permitted to take advantage of its own wrong when that doubly doubtful privilege is denied to all others, either natural or artificial. Nor do we pretend to understand why the 4th article of the Constitution of the United States does not apply to or protect the “people” of Pennsylvania, nor why a court, “a place where justice is judicially administered,” should relegate one found to be injured therein to another forum for redress, nor why a citizen should be convicted in one court on circumstances that would acquit him in another, or, conversely, why he should be convicted in both courts, or twice for the same offence, and it would be impertinent fot us to discuss it.

While we do not pretend to understand these rulings, yet we do understand that the Berdenella case, supra, did not directly reverse the Schwartz case. Had it intended to do so, it would certainly have said so, and, hence, we are still bound by the Schwartz case; and, therefore, the rule granted June 20, 1927, to “quash the search warrant and suppress all evidence secured by means of the same,” is now, Aug. 30, 1927, discharged.

From Otto Herbst, Erie, Pa.


author: Gest, J.,

text:
    Gilton’s Estate.

      Decedents’ estates — Claims—Debts—Award of Workmen’s Compensation Board — Claim of preference — Acts of June 2, 1915, April 19, 179 Jf, Feb. 2Jt, 188U, April 9,1872, and May 12,1891.

    1. A claim against a decedent’s estate based on an award of the Workmen’s Compensation Board has no preference over decedent’s general debts.
    2. The provision of the Workmen’s Compensation Act of June 2, 1915, P. L. 736, giving an award under the act the same preference as a wages claim, does not alter or interfere with the distribution of the assets of a decedent according to the familiar and long-established practice under the Acts of April 9, 1872, P. L. 47, and May 12, 1891, P. L. 54, neither of which was repealed by the fiduciaries Act of June 7, 1917, P. L. 447.
    Exceptions to adjudication. 0. C. Phila. Co., Oct. T., 1926, No. 3641.

      Todd Daniel, for Workmen’s Compensation Board, exceptant.

      Charles Hunsicker and John G. Bechtel, contra.
    Feb. 3, 1928.
   Gest, J.,

John W. Gilton died intestate on May 26, 1925, and the account of his administrator showed a balance due the estate of $592.09, which, as the estate was insolvent, was awarded by the Auditing Judge among his creditors pro rata, their claims amounting to about $2700. Among these claims there was noted, in the petition for distribution, that of Thomas Glancey for $267.50 on an award of the Workmen’s Compensation Board for personal injuries sustained on May 14, 1925, in the lifetime of the decedent. The accountant submitted the question to the Auditing Judge whether or not this claim was entitled to a preference, and the Auditing Judge stated: “Ixi the absence of any offer to show a preference, the Auditing Judge sees no reason why this particular creditor should not be treated the same as others.” Exceptions were filed by Thomas Glancey to this adjudication. No testimony was offered at the audit to show the facts of the case, and, consequently, the record thereof is in a very unsatisfactory condition. However, at the argument, the paper-books of counsel contained the following statement of the facts, which may be assumed to be agreed on as correct:

It appeared therefrom that on Sept. 25, 1925, a hearing was had on the claim petition of Thomas Glancey before a referee under the Workmen’s Compensation Act, and the referee, on Oct. 13, 1925, made his findings of fact and award as follows:

Hearing in the above case was held on Friday, Sept. 25, 1925, at 1 P. M., before Harold S. Shertz, Referee, First District, ’at his office, 301 Manhattan Building, Philadelphia, Pa., pursuant to notice.
Appearances:
Mr. Thomas Glancey, 1811 McClellan Street, Phiia., Pa., the claimant in person; and
Charles Hunsicker, Esq., 708 Bailey Building, Phila., Pa., Attorney for defendant.
Witnesses:
Dr. Joseph M. Endres, 1436 So. 15th Street, Philadelphia, Pa.
Hugh McKee, 4853 N. Sydenham Street, Philadelphia, Pa.
Findings of fact.
1. That, on May 14, 1925, and for some time prior thereto, Thomas Glancey, the claimant, was working in the employ of John W. Gilton as a stone-mason at average weekly wages of $45.32.
2. That neither the said claimant nor the said John W. Gilton had rejected article iii of the Workmen’s Compensation Act of 1915, as amended.
3. That at the time of the accident hereinafter recited the said John W. Gilton had no insurance carrier.
4. That, on May 14, 1925, while in the course of his employment with the said John W. Gilton, a heavy stone accidently fell upon the right hand of the claimant, as a result of which a piece of stone was imbedded in the index! finger of the claimant’s right hand, which became infected, and caused him to be totally disabled from the date of said accident until Sept. 21, 1925, when said disability ceased.
5. That the reasonable expenses of the claimant for medical and surgical services and supplies during the first thirty days of his disability were as follows: To Dr. Joseph M. Endres, 1436 South 15th Street, Philadelphia, Pa., the sum of $58.50; and to Dr. M. F. Percival, for X-ray examination, the sum of $5; amounting in all to the sum of $63.50; no part of which has been paid by the defendant.
6. That the said John W. Gilton, the employer of said claimant, died at Philadelphia on May 25, 1925, and letters of administration upon his estate were granted to Bernard W. Gilton, named herein as defendant, by the Register of Wills of Philadelphia County. That the said Bernard W. Gilton, administrator as aforesaid, has had due notice of these proceedings.
Conclusions of law.
From the facts above recited, the referee concludes as a matter of law that both the claimant and his employer were bound by the provisions of article iii of the Workmen’s Compensation Act of 1915, as amended; that the claimant, having sustained an accident, with resultant disability, while in the course of his said employment, he is entitled to compensation in accordance with the following
Award.
Compensation is awarded and the defendant, Bernard W. Gilton, administrator of the estate of John W. Gilton, deceased, is ordered and directed to pay to Thomas Glancey, the claimant, 60 per cent, of $20, or the sum of $12 per week, beginning ten days after disability began, on May 14, 1925, or from May 24, 1925, until Sept. 21, 1925, a period of seventeen (17) weeks, making the sum of $204; and, also, the sum of $63.50 for the reasonable expenses of the claimant for. medical and surgical services and supplies during the first thirty days of his disability; making the total award the sum of $267.50.

The exceptant based his claim for preference upon section 318 of the Workmen’s Compensation Act of June 2, 1915, P. L. 736, 7 Purd. 7785, which provides: “The right of compensation granted by this article of this act shall have the same preference (without limit of amount) against the assets of an employer liable for such compensation as is now or may hereafter be allowed by law for a claim for unpaid wages for labor.”

On the other hand, counsel relied upon section 13 (a) of the Fiduciaries Act of 1917, which prescribes the order of payment of decedent’s debts as follows: “All debts owing by any person within this State, at the time of his decease, shall be paid by his executors or administrators, so far as they have assets, in the manner and order following, viz.: 1. Funeral expenses, medicines furnished and medical attendance given during the last illness of the decedent, and servants’ wages, not exceeding one year. 2. Rents, not exceeding one year. 3. All other debts, without regard to the quality of the same, except debts due to the Commonwealth, which shall be last paid.”

We shall consider the important question raised in this case without discussing the constitutionality of this section of the Workmen’s Compensation Act, which was argued by counsel. We assume its constitutionality and confine our opinion to the question whether the act was intended to apply to the distribution of the assets of a decedent’s estate, and this requires us to review the legislation upon the subject of preferred claims against those assets, beginning with the Act of April 19, 1794, 3 Sm. Laws, 143. This act, in section 14, provides (so far as is here material) that “all debts owing by any person within this State at the time of his or her decease shall be paid by his or her executor or administrator, so far as they have assets, in the manner and order following: First, physic, funeral expenses and servants’ wages; second, rents, not exceeding one year.” This was followed by section 21 of the Act of Feb. 24, 1834, P. L. 76, 1 Purd. 1103, which granted a preference in the first class to funeral expenses, medicines furnished and medical attendance given during the last illness of the decedent, and servants’ wages, not exceeding one year, and the decisions confined the servants’ wages so preferred to domestic servants. This class was enlarged by the Act of April 9, 1872, P. L. 47, extended by amendment by the Act of May 12, 1891, P. L. 54, 4 Purd. 5039, which acts distinctly refer, as we read them, to wages due at and before his death. These acts were not repealed by the Fiduciaries Act, being in pari materia, and are so recognized: Koenig’s Estate, 1 D. & C. 523. That they were all intended to apply to the distribution of the assets of a deceased employer is apparent from their express language. The Workmen’s Compensation Act of June 2, 1915, P. L. 736, 7 Purd. 7785, however, is very different in purpose and expression. We do not discover in the whole act a word to provide, or even to imply, that the preference therein provided shall be allowed against the assets of a deceased employer distributable under the jurisdiction of this court, and our conclusion is that it was not intended to alter or to interfere with the distribution of the assets of a decedent’s estate, according to our familiar and long-established practice.

In the present case, it appears that the claimant had been employed by the decedent at the average weekly wage of $45.32; that the accident occurred on May 14, 1925, and that the decedent died on May 25, 1925. The disability of the claimant ceased on Sept. 21, 1925, and the hearing took place before a referee on Sept. 25, 1925. The referee, as above stated, awarded for medical expenses during the first thirty days of the claimant’s disability $63.50, and for wages $12 per week, beginning ten days after the disability began on May 14, 1925 (the decedent died on May 25, 1925), until Sept. 21, 1925, or $204, making a total award of $267.50.

To allow the preference claimed in this case would lead to extraordinary results. The wages, not earned at all, but accruing after the death of the employer, would be given a preference over debts due at the time of his decease, and so would the medical services rendered to the employee during a period extending since the employer’s death. Indeed, the learned counsel for the claimant even argued that, under his construction of the Workmen’s Compensation Act, the award would rank as a preference before the funeral expenses of the decedent, who might be left unburied or buried by charity, in order that the employee’s compensation might be first paid.

And it may be further noticed that, in case of total disability of the employee, the consequent payment of compensation might, under section 306, continue for 500 weeks, and the final settlement of the estate be suspended for that period, unless the compensation be commuted in the discretion of the Compensation Board and in the circumstances referred to in that section.

The Auditing Judge ruled that the claim of Thomas Glancey, as stated, should be allowed only as a general debt, and no exceptions have been filed by the administrator or by the creditor to this ruling; so, without further elaboration, the exceptions of Thomas Glancey, claiming as a preferred creditor, are dismissed and the adjudication is confirmed absolutely.


author: MARTIN, P. J.,

text:
    Weinstein v. Geller et al.

      Judgment — Entering—Residence of plaintiff — Acts of Feb. Zk, 1806, and March 31, 1915.

    1. Where a certificate showing the exact address of the judgment creditor in a judgment about to be entered is produced to the prothonotary and subsequently filed as of the same term and number as the judgment, there is a proper compliance with the Act of March 81, 1915, P. L. 39.
    2. Where a judgment is entered by the prothonotary at the request of the plaintiff’s attorney, no statement or declaration is required under the Act of Feb. 24, 1806, 4 Sm. Laws, 278.
    Rule to strike off judgment and set aside fi. fa. C. P. No. 5, Phila. Co., June T., 1927, No. 15122.

      A. A. Feldman, for rule; S. Melnick, contra.
    Jan. 5, 1928.
   MARTIN, P. J.,

Judgment was entered on a note by the pro-thonotary under authority of the power conferred by the 28th section of the Act of Feb. 24, 1806, P. L. 278.

There was an endorsement upon the back of the note — “I hereby certify that the precise residence address of the judgment creditor is 4th and Reed Streets. S. Melnick.”

Defendants moved to strike off the judgment because the certificate of residence endorsed on the note is not in accordance with the requirements of the Act of March 31, 1915, P. L. 39, which provides that: “The prothonotary of each county is hereby directed not to enter any judgment unless the judgment creditor or his duly authorized attorney or agent produces to the pro-thonotary a certificate signed by the judgment creditor or by his duly authorized attorney or agent, setting forth the precise residence address of the said creditor. The certificate shall be filed as of the same number and term as the judgment.”

Subsequently to entering of the judgment there was filed of record by counsel for plaintiff a certificate in the following form: “I, Samuel Melnick, attorney for Pincus Weinstein, the judgment creditor in the above captioned matter, do hereby certify that the precise residence address of Pincus Wein-stein, the said judgment creditor, is the northwest corner of 4th and Reed Streets, in the City and County of Philadelphia and State of Pennsylvania.”.

Plaintiff’s counsel stated to the court that this certificate was produced to the prothonotary at the time the judgment was entered, and his statement has not been contradicted.

If the certificate showing the exact address of the plaintiff was produced and subsequently filed as of the same term and number, there was a compliance with the requirements of the Act of 1915, and the prothonotary was authorized to enter the judgment.

Under authority vested in him by the Act of 1806, the prothonotary was empowered to enter judgment without the intervention of an attorney. This judgment was entered by him at the request of plaintiff’s attorney.

As that method of obtaining judgment was selected, instead of employing an attorney to enter an appearance for the defendant, no statement or declaration was required. There was compliance with Rule No. 144 of the Courts of Common Pleas. A statement of the cause of action signed and sworn to by the attorney for the plaintiff, filed at the time of entering the judgment.

No irregularity appears on the record of the judgment. The rule to strike it off must be discharged.

And now, to wit, Jan. 5, 1928, the rule to strike off the judgment in the foregoing case is discharged.


author: Finletter, P. J.,

text:
    Cherkasky, to use of Domsky, v. Pride et al.

      Attachment execution — Stock of foreign corporation — Acts of Mwrch 29, 1819, June 16,1886, and May 5,1911.

    1. The stock of a foreign corporation is not subject to attachment execution in Pennsylvania.
    2. There is nothing in the Acts of March 29, 1819, 7 Sm. Laws, 217, or June IB, 1836, P. L. 755, to authorize the attachment of such stock.
    3. In such case, it is immaterial that the certificate is in Pennsylvania, that the foreign corporation is registered and has an office in the State, and that all of its officers and plaintiff and defendant in the execution reside in Pennsylvania.
    4. The reason for the freedom of shares of a foreign corporation from liability to attachment is that the situs of stock is the domicile of the corporation.
    5. The mere presence of the certificate is not sufficient to bring into the foreign state the property of which the certificate evidences the ownership.
    6. Section 14 of the Uniform Stock Transfer Act of May 5, 1911, P. L. 126, does not apply where the corporation whose stock it is sought to attach is domiciled in a state in which this uniform law has not been enacted.
    Rule to set aside fi. fa. against garnishee to have shares of stock in foreign corporation sold as property of defendant. C. P. No. 4, Phila. Co., March T.. 1923, No. 6248.

      John McClintock and J. B. Wilson, for plaintiff; Benj. Byer, for defendant.
    Jan. 21, 1928.
   Finletter, P. J.,

The question before us is whether, under the circumstances of this case, the stock of a foreign corporation is subject to attachment execution. The garnishee, a foreign corporation, admitted in its answers that it held two certificates of its own stock, which were the property of the defendant.

It is not denied by the defendant that a foreign corporation may be made a garnishee (Barr v. King, 96 Pa. 485), but it is asserted that certificates of stock of a foreign corporation cannot be attached in execution in the hands of any garnishee, individual or corporate, foreign or domestic.

The facts upon which the plaintiff relies are (1) that the certificates are within the jurisdiction, and were seized by the sheriff under the attachment; (2) that the corporation whose stock is involved is registered in Pennsylvania and maintains an office here; (3) all its officers and the plaintiff and defendant reside here.

The principal office of the corporation is at Wilmington, Delaware. A judgment was entered against the garnishee upon its answers recited above, and an order made finding that it had in its possession property of the defendant that “was subject to the attachment,” to wit, the two certificates of stock above referred to.

The terms upon which the garnishee holds the certificates do not appear, except as to two shares. These it holds under a voting trust agreement entered into by all the stockholders. Its possession of the other forty-nine shares is not explained. A fi. fa. was issued against the garnishee to have the shares sold as the property of the defendant. The defendant now moves to have the fi. fa. set aside on the ground that shares of a foreign corporation are not attachable in execution.

The fundamental question is the existence or non-existence, within the jurisdiction, of the thing attached: Straus v. Chicago Glyc. Co., 46 Hun (N. Y.), 216, 108 N. Y. 654. Note 55 L. R. A. 801.

The stock of a corporation could not be attached at common law (6 Corpus Juris, 212; 28 Corpus Juris, 167, § 213), but has been made liable to attachment by statutory enactment in most of the states, including Pennsylvania. See Acts of March 29, 1819, § 2, Purd. Dig. 1545, and June 16, 1836, § 22, P. L. 755. But even in states where such statutes exist, and notwithstanding their general language, it has been held that they do not extend to the stock of foreign corporations: 5 Fletcher Cyc. Corp., § 3439, page 5640. This is the rule in Pennsylvania: Christmas v. Biddle, 13 Pa. 223; Moys v. Union Trust Co., 276 Pa. 58.

We might stop at this point; for, if the statutes referred to above do not authorize the attachment of stock of a foreign corporation, such a corporation remains in the position all were in at common law, for there is no other statute in this State upon the subject.

But it is argued that the case before us is differentiated from the general rule by the facts referred to above; that is, the presence here of the stock certificate; the registration of the corporation in Pennsylvania; the presence of all of its officers here, and the residence of the defendant here. It is also argued that if no one of these facts is sufficient to make the case exceptional, their combined effect is to have that result.

The reason for the freedom of shares of a foreign corporation from liability to attachment is that the situs of stock is at the domicile of the corporation. The mere ■ presence of the certificate is not sufficient to bring into the foreign state the property, of which the certificate evidences the ownership. The inability of the court of the attachment to enforce its process against the stock or the corporation is also referred to in the authorities.

1. We need not discuss the effect of the presence of the certificates here. The ruling of the Supreme Court in Christmas v. Biddle (supra), approved in Moys v. Union Trust Co. (supra), negatives this as a basis of jurisdiction. And this is the general rule: 5 Fletcher Cyc. Corp., § 3141, page 485, and § 3439, page 5640.

2. What is the effect of registration? The statute provides: “No foreign corporation shall do any business in this Commonwealth until said corporation shall have established an office or offices and appointed an agent or agents for the transaction of business:” Act of April 22, 1874, 1, P. L. 108; Purd. Dig. 1730.

The purposes of this law are to aid in the levy of taxes upon the company, and to afford the citizen who dealt with it a means of bringing it unto the courts of the state wherein it transacted business. It was not intended to deal with the stockholder personally or with his property, nor was there any idea of interfering with or regulating the internal management of the corporation, or the relations of stockholders to the corporation. With these subjects the outside world which dealt with it had nothing to do. The domicile of the company remains in the state where it was created, notwithstanding its agents travel abroad in the transaction of its business. That phrase, as it is used in the statute, refers only to external dealings of the company itself.

It has been held that, even when a foreign corporation is registered, its property can be attached in foreign attachment in the state in which it is registered; a ruling that could not be made if registration had the effect of making a foreign corporation a resident: Pierce v. McLaughlin Co., 28 W. N. C. 311.

“It does not follow from the fact that the laws of the state require as a condition of doing business in that state that foreign corporations shall submit to be sued there, that those laws require the shareholders of such a corporation to submit their shares to the dominion of that state, and thereby subject them to execution and attachment within its borders: 5 Fletcher Cyc. Corp., 3439, page 5641; Ashley v. Quintard, 90 Fed. Repr. 84.

3. Nor does the presence of its officers bring the corporation itself within the foreign state. The corporation is a different thing from its officers, and cannot be transported upon their persons: Plimpton v. Bigelow, 93 N. Y. 592; Straus v. Chicago Glyc. Co., 46 Hun (N. Y.), 216, 108 N. Y. 654.

4. Does the presence of the defendant bring the property represented by the shares within the State? The character of such property requires an answer in the negative to this question. Certificates are not debts of the corporation, owned by the stockholders, so as to follow his person to the jurisdiction where he is. They are merely evidences of his interest in the corporation. That interest is the right to receive dividends upon its stock when declared, and, on dissolution, to share in its property, and meanwhile to govern it by his vote. All that the sheriff holds in this case is the written proof of the defendant’s rights, the deed to his property. He cannot by a sale of the paper make it prove anything different.

Nor can the presence of the defendant here change the situs of the property he owns. He cannot, by coming to Philadelphia with the deed in his pocket to a house he owns in Wilmington, bring the real estate here.

None of these facts change the situs of the stock, neither the registration of the corporation, the presence of its officers, the presence of the defendant nor the presence of the certificates.

It is argued that the Act of May 5, 1911, §§ 13, 14 and 22, P. L. 126, subjects the stock of foreign corporations to attachment. Section 14 provides that “the creditor shall be entitled to such aid, ... by injunction and otherwise, in attaching such certificate or in satisfying the claim by means thereof as is allowed by law or in equity in regard to property which cannot be readily attached.” But by section 22 the “certificates” and “shares” referred to in the body of the act are those of this State or of another state “whose laws are consistent with this act;” provisions foreshadowed by the title of the act v/hen it states its purpose to “make uniform the law.”

We know of no statute of Delaware, nor does the plaintiff allege the existence of one, that is “consistent” with the Act of 1911. The supplement for 1927 to the Uniform Stock Transfer Act, vol. 6, published by Edward Thompson & Company, contains a list of states which have adopted the act — Delaware is not among them. So far as it relates to shares of a foreign corporation, the statute is quite opposed to the previously existing rule.

We are of opinion, for the reasons we have given, that we must not only make absolute the rule to set aside the fi. fa., but we must reconsider our order entered on Nov. 12, 1927, that the garnishee holds the shares “subject to the attachment.”

We were not aware when we entered that order that the shares with which we were dealing were shares of a foreign corporation.

We cannot order the sheriff to return the certificates to the defendant, as the latter asks. We are not informed by what title the garnishee, from whom the sheriff took the certificates, holds them. All we can order is that the sheriff return them to the person from whom he took or received them.

And now, Jan. 21, 1928, the rule is made absolute, in so far as it provides for setting aside the fi. fa. The order entered on Nov. 12, 1927, is vacated; and it is adjudged that the garnishee has in its possession no property of the defendant that is subject to the attachment.