author: Kun, J.,

text:
    Commonwealth v. Green.

      Criminal law — Murder—Evidence—Dying declarations.

    1. A dying declaration may be partly oral and partly written. The tact that it had been reduced to writing will not preclude evidence of unwritten declarations made on other occasions.
    2. A dying declaration communicated by signs, as by nodding the head in assent, may be received in evidence, although the deceased subsequently made verbal communications.
    3. It is not necessary, in proving a dying declaration, to call all the witnesses who were present when it was made.
    4. A notary who took the affidavit of the declarant need not be called, if there were other witnesses to the declaration.
    5. While declarations made in the presence of the accused may not be admissible for some reason as dying declarations, they are admissible to show the conduct of the accused charged with murder.

      Murder — Degree—Evidence—Deadly weapon.

    6. The fact that a death was caused by the use of a deadly weapon is sufficient to permit the jury to say whether or not under the evidence there existed "a wilful, deliberate, premeditated intention to take the life of the deceased.”
    7. Where a deadly weapon was used, the burden is on the accused to reduce the crime from murder to manslaughter.
    8. Where there is no evidence in the case to reduce the crime to manslaughter, and where the evidence clearly negatives such crime, the trial judge is under no obligation to charge the jury on that grade of homicide.
    Motion for new trial. Q. S. Phila. Co., Ang. Sess., 1927, No. 60-61.

      Charles C. Gordon, for Commonwealth; Harry Shapiro, for defendant.
    Dec. 15, 1927.
   Kun, J.,

The defendant, Addis Green, was convicted of murder in the second degree of Adelphia Pinn, who was mortally wounded by gunshot in the early morning of June 20, 1927, as a result of which she died some nine days thereafter.

The Commonwealth did not press for a first degree verdict, although it seems that wherever death is caused by the use of a deadly weapon, it is for the jury to say, under the evidence, whether or not there existed “a wilful, deliberate and premeditated” intention to take the life of the deceased: Abernethy v. Com., 101 Pa. 322.

A verdict of murder in the first degree may have been justified in this case.

The Commonwealth showed that, in the early morning hours of June 20, 1927 (shortly after midnight), the defendant was heard “fussing” in the second-floor hallway of the house in which the deceased had a room, and while the voice of the other person was not identified, defendant’s voice, known to the witness, was. The witness referred to the talk as a “disagreement.” In answer to the question “They were quarreling?” the witness said: “Yes, a kind of little fuss.” In the examination, the district attorney characterized it as quarreling, but, on cross-examination, the witness stated that the disagreement, or fuss, or quarrel, whichever characterization might be applied, was not very loud. Following this disagreement, fuss or quarrel, the witness heard a gunshot. At the hospital, to which the deceased was taken, she told a detective that the defendant had shot her.

The detective went to the defendant’s home, but he was not there. The detective waited there. Shortly, a taxicab drove up, and the man in it advised the detective that the defendant '(a married man) sent him to his home to get a raincoat for him. This was about 2 or 3 o’clock A. M. The detective, conceiving it as a means of apprehending the defendant, got into the taxicab and was driven to the place where the defendant was waiting, and, when the cab arrived there, got the defendant’s friend to whistle for him, which brought the defendant downstairs to the hallway, where he was put under arrest and taken at once to the hospital, where, according to the Commonwealth, the deceased confirmed the charge that the defendant shot her, and her dying declaration was made and signed by her to the effect that the defendant had come to see her that night, that they had been drinking, and that they “got arguing over a woman,” and defendant pulled out his pistol and shot her.

The defendant denied the act. He admitted that he had been with the deceased and had been drinking with her. He claimed to have gone to the house also to visit his mother, who had a room on one of the upper floors. He claimed that, after drinking and spending some time with the deceased, a man came in and struck him (the defendant) and he left the house; that he had gone but a short distance when he heard a shot. He did not return to the house or to his own home, but went to the other place, where he was arrested under the circumstances above referred to.

A witness living in the house adjoining the one in which the shooting occurred testified that, after the shooting and some noises incident thereto, which awakened him, he came down to his front door and looked out and saw a man going down the street with a revolver in his hand, but he was not the defendant; that it was some time after midnight; that it was drizzling, but there was a lamplight across the street. This witness testified that he was under the impression that the defendant had lived next door to him, that is, the place in which the shooting took place, because he saw him around there so frequently.

Defendant’s mother testified that the day before the deceased died she visited the decedent at the hospital, and the deceased thought she had recovered and was going to leave the hospital the next day. The witness said the deceased' told her that she would not prosecute her son, the defendant, or words to that effect. The court left it to the jury to say whether this alleged contradiction of the, deceased’s previous charge against the defendant and her dying declaration was really a contradiction of them or whether it was made by the deceased, who was under the impression that she had recovered, with the hope and expectation of renewing the friendship, or other relationship, whatever it may have been, with the defendant, a married man.

Following the rendition of the verdict of murder in the second degree with a recommendation of mercy, a disagreement arose between counsel for the defendant, one stating that the defendant had had a fair trial, especially in view of the recommendation of mercy connected with the verdict, but the other being of the opinion that some legal errors may have been committed, was given leave to file motion and reasons for new trial.

Some twenty-five reasons have been assigned in the motion for a new trial. After a careful review of the record in the case and the arguments of counsel, the court has concluded that the defendant has had a full and fair trial on the charge against him, and the verdict is amply justified by the evidence in the case. Indeed, there are elements in the case which might have justified a first degree verdict.

Specific reference will be made to only two of the reasons assigned. It is contended that the court erred in admitting the dying declaration of the deceased in evidence because the notary public before whom it was sworn to and attested was not called at the trial to' prove it.

The evidence in the case showed that the deceased had made her dying declaration to the detective that the defendant had shot her, whereupon the detective, in the manner above referred to, apprehended the defendant and brought him to the bedside of the deceased. The defendant testified that when he was brought into the room he said to the deceased, in effect, “you know I did not shoot you,” but deceased did not respond to that self-exculpation. The detective thereupon said to the deceased, in effect, “you know you told me that this man shot you,” whereupon the decedent nodded her head in assent. There was no denial by the defendant after that, although the defendant, according to his story, said, in effect: “What is the matter with her; is she paralyzed? Can’t she talk?” According to the evidence, the dying declaration was then reduced to writing and the deceased signed it with her cross, and it was attested before a notary public. This was all done in the presence of the detective, who testified that both the oral and'written declarations were made in his presence. It seems to the court that it was entirely unnecessary under the circumstances to call the notary. It is immaterial in what form a dying declaration is made. It need not be in writing. It may be partly oral and partly written. The fact that a dying declaration has been reduced to writing will not preclude evidence of unwritten declarations made on other occasions. A dying declaration communicated by signs (this refers to the deceased nodding her head in assent) may be received in evidence, although the deceased subsequently made verbal communications: 30 Corpus Juris, 258, et seq. (§ 500), citing cases.

It is not necessary in proving a dying declaration to call all the witnesses who were present when it was made: 30 Corpus Juris, 271, citing State v. Johnson, 76 Mo. 121.

Moreover, the declaration in this case was made in the presence of the accused, and, although it may not have been admissible for some reason as a dying declaration, it was undoubtedly admissible to show the conduct of the defendant charged with the murder.

The other assigned reason in support of the motion for the new trial which will be referred to is that the trial judge failed to charge the jury on manslaughter.

As stated, the fact that a death was caused by the use of a deadly weapon was sufficient to have permitted the jury to say whether or not under the evidence there existed “a wilful, deliberate, premeditated intention to take the life of the deceased:” Abernethy v. Com., 101 Pa. 322.

The presumption is that it was murder. The burden is upon the Commonwealth to raise the grade of the crime to first degree, and, on the other hand, in such circumstances, the burden of reducing the crime from murder to manslaughter is on the defendant: Com. v. Drum, 58 Pa. 9.

He might show that the killing was in hot blood on sufficient provocation, or that he committed the act during an affray or fight, under all the surrounding circumstances of which, though he did not so contend, the jury might feel warranted in rendering a verdict of manslaughter; or the circumstances in the case may be such as to possibly warrant the finding of manslaughter: Com. v. Marcinko, 242 Pa. 388.

In the instant case, the defendant not only denied the act, but denied being present when the shooting occurred. The mere reference in the course of the testimony of the Commonwealth’s witness, by whom it was sought to prove that the defendant was at the scene of the shooting immediately before it occurred, to an alleged “disagreement” or “little fuss” which the defendant had with some one, which, in the examination, was characterized by the district attorney as a quarrel, but which the witness, on cross-examination, said was not loud and not enough to disturb any one, created no situation to warrant any contention that there was any basis in the case for the reduction of the crime from murder to manslaughter, and it was not so contended at the trial. Where there is no evidence in the case to reduce the crime to manslaughter and where the evidence clearly negatives such crime, the trial judge is under no obligation to charge the jury on that grade of homicide: Com. v. Newson, 277 Pa. 48; Com. v. Spardute, 278 Pa. 37.

The motion for new trial is refused.


source: Caselaw Access Project

author: Stevens, J.,

license: Public Domain

text:
    Commonwealth v. Gassel, Alias Hassel.

      Criminal law — Amendment 6 of the Federal Constitution — Article i, section 9, of the Constitution of Pennsylvania — Speedy trial — Delay because of absence of witness for prosecution — Practice—Nolle prosequi — Testimony of absent witness — Act of May 23, 1887.

    1. The 6th Amendment of the Constitution of the united Statés and section 9 of article i of the Constitution of Pennsylvania guarantee the defendant in a criminal prosecution a speedy public trial by an impartial jury of the vicinage.
    2. A Speedy trial is one conducted according to fixed rules, regulations and proceedings of law, free from vexatious, capricious and oppressive delays.
    3. It is a denial of the right to a speedy trial for the court to grant an arbitrary continuance, where the accused is ready for and demands trial and may be lawfully tried, or solely because the prosecuting attorney finds himself unprepared with the evidence to convict because of the disappearance of a material witness, if the defendant is not responsible for such disappearance.
    4. Where the district attorney is unable to dispose of a prosecution because of the disappearance of a material witness, the rights of the Commonwealth may be preserved by the entry of a nolle prosequi, thus permitting a new prosecution within the period allowed by law.
    5. Section 3 of the Act of May 23, 1887, P. L. 158, provides for the use of the testimony of an absent witness under certain circumstances.
    Petition by defendant for trial or discharge. Q. S. Berks Co.

      David E. Mauger, District Attorney, for Commonwealth.

      Robert G. Bushong, H. P. Reiser, Wilson R. Rothermel, H. Robert Mays and Bernard Hoffman, for defendant.
    Feb. 1, 1927.
   Stevens, J.,

On Dec. 13, 1926, the first day of the December Sessions, the defendant filed his petition, setting forth his arrest, hearing and binding over in January for the March Sessions, 1926, the return of true bills on Friday, March 19, 1926, and the continuance of his cases to June Sessions, 1926, because of the absence of an alleged material witness for the Commonwealth. The petition further avers that the petitioner was present at the June Sessions ready for trial, but that again the cases were continued to September Sessions, because of the absence of the same witness, against the protest of the defendant; that at September Sessions, 1926, the court again granted a continuance because of the absence of the witness, again despite defendant’s protest that the continuance was a denial of his constitutional right to a speedy trial; and that the cases were not listed for trial at the December Sessions, 1926. The petition prayed that the cases be called for trial and that no further continuance be granted. On the same day, an amended petition containing the same prayer was filed, in which the only new matter alleged was that the true bills had been secured at the March Sessions, 1926, in the absence of the alleged material witness. On Dec. 15, 1926, the district attorney answered, not admitting defendant’s presence at the March Sessions, 1926, prepared to meet the accusations contained in the indictment; denying his presence at the June and September Sessions “ready for trial and prepared to meet the accusations;” admitting that he had not asked to have the witness put under bail because he could not legally do so, and that he had not caused the arrest of the witness in the exercise of his discretion and judgment; and averring his willingness to disclose to the court his efforts to secure the attendance of the witness. The district attorney, further answering, averred that the delay had been necessary and unavoidable in the highest interest of justice and public welfare; that the Commonwealth would be unjustly hampered if required to go to trial at the time; and that the missing witness is an indispensable witness without whose testimony the Commonwealth will be unable to convict. The answer closes with an expression of belief that the witness was induced to go and remain away by the connivance of the defendant, and asks that the petition be dismissed.

On Dec. 17, 1926, a second amended petition was filed, containing all the averments of the previous petitions, modifying alone the prayer of the petition to ask that the cases be called for trial at the then session of court, which was about to close, or that the defendant be discharged.

Depositions in support of the petition were taken. They are the testimony of counsel, five attorneys for the defendants, the petitioner himself not testifying, all to the effect that the defendants were ready, prepared for trial, and either in court or in counsel’s office or available at all times by telephone. There is no testimony that this defendant ever requested a continuance. His counsel did not object when told that the cases would not be called at the first session of court.

Article I, section 9, of the Constitution of Pennsylvania provides that in all criminal prosecutions the accused has a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage. The Constitution of the United States, Amendment 6, provides that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed.

The defendant here invokes the protection of his constitutional right to a speedy trial. He is met with the answer by the prosecuting officer that he is unable to proceed with the trial because of the absence of a witness without whose testimony he cannot convict. There is no charge that the officer has not made every reasonable effort to secure the attendance of the witness, although that fact is not admitted, nor is there any charge that the defendant is responsible for the absence of the witness, although that fact is not admitted. There is an expression of belief on the part of the officer, but, so far as appears, there is nothing to support that belief beyond suspicion. Of course, if that were actually the case, there would he no hesitancy in further continuing the cases: Respublica v. Arnold, 3 Yeates, 263, and the defendant would be in no position to demand what his own act was rendering impossible.

The right to a speedy trial is a' substantive right, esteemed of such great importance as to be embodied in the Constitution of the United States and in the Bill of Rights of our State Constitution. We cannot, nor have we any desire to, abridge it in any way. We are bound by the Constitution, and neither the legislature nor the courts can take away what the Constitution guarantees: Stewart v. Com., 117 Pa. 378. No court has any discretionary power to deny an accused person a right so important. This constitutional provision, adopted from the old common law, is intended to prevent the oppression of the citizen by holding criminal prosecutions over him for an indefinite period, and to prevent delays in the administration of justice by imposing on the judicial tribunals an obligation to proceed with reasonable dispatch in the trial of criminal prosecutions: 8 Ruling Case Law, § 24, page 70.

A speedy trial is one conducted according to fixed rules, regulations and proceedings of law, free from vexatious, capricious and oppressive delays. One cannot demand a trial immediately upon arrest, but he must wait until a regular term of the court, until an indictment is found and until the prosecution has had a reasonable time to prepare for the trial. The law does not exact impossibilities or extraordinary efforts, diligence or exertion from the courts or the representatives of the State; nor does it contemplate that the right of speedy trial which is guaranteed to a prisoner shall operate to deprive the State of a reasonable opportunity of fairly prosecuting criminals: In re Begerow, 85 A. S. R. 178, 188. The purpose of the constitutional provision is at least in part the same as stated by Justice Todd, cited in Clark v. Com., 29 Pa. 129, 135, as the purpose of the Habeas Corpus Act of Feb. 18, 1785, 2 Sm. Laws, 275, “to provide against the abuse of procrastinated trial, to provide not only against the malice of the prosecutor and against his negligence, against all his delays, with cause or without cause; against every possible act or want of action of the prosecutor; but not to shield a prisoner in any case from the consequences of any delay made necessary by the law itself.” The Constitution intended to prevent wilful and oppressive delay: Com. v. Jailer, 7 W. 366, but a delay made necessary by the usual and ordinary procedure provided by law in criminal cases is, of course, permissible. It has been held to be a denial of the right to a speedy trial for the court to grant an arbitrary continuance where the accused is ready for and demands trial and may be lawfully tried, or solely because the prosecuting attorney finds himself unprepared with the evidence to convict when his condition is not the result of improper practice on the part of the prisoner or of some one acting with or for him: 8 Ruling Case Law, § 26, page 72.

The bills were found on the last day of the first week of March Sessions, and the cases were continued because of the absence of the witness, without objection by the defendant, because it was felt that the court would grant the application. At the June Sessions, the matter was called to the attention of the court by a request that the cases be called for trial, but the court, regarding nothing more before it than a request that the cases be called for trial, and, the order of calling cases being a matter for the district attorney, declined to order the trial. In September again a motion for ordering the cases for trial was denied. In December the petition to discharge the defendant was filed. Here is a defendant who has been ready and asking for a trial for almost a year. The district attorney, through no fault of his, has been unable to produce a witness without whose testimony he cannot make out a case and whose presence at some future day is by no means sure. So far as appears from anything before us, the absence of the witness is unexplained, and mere suspicion cannot serve as proof that the defendant is responsible for the absence of the witness. Nor has the defendant been responsible for any of the continuances. This defendánt in the law has the same right to a speedy trial that is guaranteed to every person accused of a crime, no matter who or what he is or may be. Those rights we have no right to deny him. The rights of the Commonwealth may also be preserved by appropriate action on the part of the prosecuting officer by the entry of a nolle prosequi, the entry of which will permit a new prosecution within the period allowed by law.

While it is, of course, usually more desirable that a witness appear and testify in person before the jury trying the case, yet there are circumstances under which his testimony may be used in his absence: Act of May 23, 1887, § 3, P. L. 158.

And now, to wit, Feb. 1, 1927, unless the cases against the defendant are disposed of at the March Sessions, 1927, the prayer of the petition for the discharge of the defendant will be granted.

Prom Charles K. Derr, Reading:, Pa.


author: Coughlin, J.,

text:
    Kontros’s Petition.

      Feme sole trader — Refusal or neglect to support wife — Profligacy—Wife supporting herself one year.

      1. Failure of a husband to support his wife is not ground for conferring feme sole trader status on the wife under the Acts of May 4, 1855, P. L. 430, and May 28, 1915, P. L. 639, unless such failure is established as a result of drunkenness, profligacy, neglect or absence, or a wilful refusal to perform his duty.
    2. Temporary inability of a husband to support his wife by reason of illness does not furnish sufficient ground for such decree.
    3. To bring a case within the Act of 1915, the parties must have lived apart and separate for one year or more, and all marital relations between them must have ceased, and the husband must have failed for one full year to support his wife, and his failure must have been a wilful non-performance of his duty.
    4. Payment of $3800 to the wife out of a joint savings account during the year preceding the petition relieves the husband from the charge of wilful non-support.
    Petition by married woman to be declared a feme sole trader. C. P. Luzerne Co., Oct. T., 1926, No. 2065.

      Nicholas M. Curdo, for petitioner; Adrian H. Jones, for respondent.
    Jan. 3, 1927.
   Coughlin, J.,

The petitioner, Sophia Kontros, filed her petition Sept. 17, 1926, seeking to be declared a feme sole trader. Her husband, the respondent, filed an answer thereto, following which 'testimony at some length was taken before the court.

The evidence discloses that petitioner and respondent were married some eighteen years ago, the petitioner being at that time a widow with three children, fourteen, eleven and eight years, respectively, and the respondent being a widower with one daughter. No children were bom of the present marriage.

Respondent’s daughter and his father withdrew from the home, the children of petitioner remaining until they had grown up and were married.

The earnings of petitioner’s children were received by the petitioner, as well also the earnings of the respondent, from the time of marriage to the time of the alleged desertion. All moneys received from the children were either used in their behalf or went into a property placed in the name of the children, with the right upon the part of the mother to use the same if she desired during her lifetime. As a result of the accumulations from the wages of the respondent, the petitioner and respondent acquired property amounting to approximately $8000, the title to which was in them jointly.

On the subject of drunkenness and brutal treatment alleged in the petitioner’s petition, the only evidence submitted was that of the petitioner that he was drunk once in a while, and that he chased the children and her out fifteen years ago; and the evidence of petitioner’s daughter to the effect that respondent found fault, beat her mother (ten or fifteen years ago), was all right when sober. These allegations are denied by respondent. Desertion occurred Feb. 12, 1926.

On the subject of desertion, petitioner testified as to a quarrel over his last pay, admitting she told him he should not dare to come upstairs, and admitting that she got the entire pay except nine dollars. She alleges that he thereupon was away three days, returning home, wanting money and desiring to remain home, but she refused because he stayed away three days, whereupon he took his clothes, but returned once again for money, which she refused. He has not been home since nor turned over any subsequent earnings.

The respondent denies, in part, petitioner’s testimony on the subject of desertion, averring that he gave her all his money and had nothing for a doctor whom he needed at the time Because he was sick; that the sickness, he believed, was caused through drinking coffee of which he complained; that he left the home to go to a doctor and when he returned to go upstairs, his wife would not permit him, so he went to his daughter’s home, going to bed. The evidence conclusively shows that he was confined to his bed with illness for the period of two and a half months, followed in nine days by further confinement to bed for six weeks. Since that time, he has not returned home, but has given her $3800 in cash, being one-half the moneys standing in their joint name.

Many witnesses testified as to the good reputation and sobriety of the respondent.

It developed upon the taking of testimony that divorce proceedings had been started in this case raising the same issues.

The result of the successful prosecution by the petitioner of these proceedings would disinherit her husband, while she would preserve her right to inheritance in her husband’s estate.

Discussion.

The Act of May 4, 1865, P. L. 430, provides that if a husband, “from drunkenness, profligacy or other causes, shall neglect or refuse to provide for his wife, or shall desert her,” she shall have the rights and privileges of a feme sole trader.

Under this act, there must be a desertion or wilful neglect or refusal upon the part of the husband to perform his duty: King v. Thompson, 87 Pa. 365.

If a husband’s circumstances, either from sickness or other inability, were such as to prevent him from supporting his wife, his failure to do so could not affect his marital rights: Ellison v. Anderson, 110 Pa. 486.

The failure of a husband to provide for his wife is not sufficient to give his wife feme sole trader privileges. It must have been occasioned by drunkenness, profligacy or wilful absence or neglect, and his mere temporary inability to support her, resulting from sickness, was not sufficient; there must have been a desertion or wilful neglect or refusal upon the part of a husband to perform his duty: Driesbach’s Petition, 4 D. & C. 699.

The Act of May 28, 1915, P. L. 639, provides that whenever a man and wife live apart and separate for one year or more, and all marital relations between them have ceased, and the husband for one year or more has not supported his wife, . . . then, in such case, the wife may petition the Court of Common Pleas of the county in which she resides to be declared a feme sole trader; and if it thereupon appear that the wife and husband have been living separate and apart for one year or more, that the husband has not supported nor contributed towards the support of his wife, and that the wife, by her own industry or by reason of an income from her own estate, has maintained herself or been maintained by her children, then, in such case, the wife shall be declared a feme sole trader.

This act apparently supplied an additional ground for the application for a certificate on the part of a wife whose husband had ceased to live with or support her, but where the circumstances of the separation were not such as to establish a wilful desertion on his part. However, in order to entitle a married woman to the right to be declared a feme sole trader, the husband’s failure to support must be such as to constitute a breach of duty on his part: Graver’s Petition, 260 Pa. 186 (1918).

The Feme Sole Trader Act of May 28, 1915, P. L. 639, is a drastic statute, depriving the husband of his rights in a summary manner, without trial by jury, and cannot be unduly extended. To bring a case within the Act of 1915, the parties must have lived apart and separate for one year or more, and all marital relations between them must have ceased, and the husband must have failed for one full year to support his wife, and his failure must have been a wilful non-performance of his duty: Knauer’s Petition, 287 Pa. 115.

In the present case, considering all the testimony, including that of petitioner and respondent, we are unable to conclude (while petitioner and husband have lived apart and separate for one year or more, and all marital relations between them have ceased, and the husband has failed for one full year to support his wife other than dividing the savings standing in their joint name) that this failure was a wilful non-performance of duty upon his part. The respondent had sold his farm upon which the petitioner would not live. He and petitioner resided with her daughters, she receiving his entire pay. When ill and without funds, he was unwelcome. For several months no attention was paid to him while he lay sick elsewhere. Petitioner has received $3800 during the past year from the joint account.

These facts do not substantiate a claim of wilful non-performance of duty upon his part, but rather upon her part.

Excluding the testimony, however, of the petitioner and respondent, as it should have been excluded, although not objected to, none of the allegations averred in the petition are substantiated by proof.

While there was no objection to the competency of the wife, the prohibition in section 5 (c) of the Act of May 23, 1887, P. L. 159, is not only that husband and wife shall be incompetent, but shall not be permitted, to testify against each other: Ulrich’s Case, 267 Pa. 233; Knauer’s Petition, 287 Pa. 115 (1926).

We do not believe that the facts disclosed at the hearing brings the case within the provisions of the Act of 1855, under which the petitioner apparently proceeded, as evidenced by her petition, nor do we believe that the facts disclosed justify the application of the drastic provisions of the Act of 1915.

Petition dismissed. Prom Prank P. Slattery, Wilkes-Barre, Pa.


author: Knight, J.,

text:
    French’s Estate.

      Taxes — Inheritance—Insurance policy — Proceeds payable to children of assured — Act of 1919.

    1. The proceeds of an insurance policy payable to the children of the assured as beneficiaries are not subject to the transfer inheritance tax.
    2. "Where the assured names his children as beneficiaries and orders that the money be paid to them according to the terms of his -will, and his "will directs that the residue of his estate shall be divided into equal parts and held in trust for his children, the proceeds of the policy never become a part of his estate, nor are they transferred in contemplation of death so as to be subject to the transfer inheritance tax -within the meaning of the Act of June 20, 1919, P. L. 521.
    Appeal from appraisement of transfer inheritance tax. O. C. Montgomery Co., Feb. T., 1927, No. 29.

      Henry Pleasants, for petitioner.

      High, Dettra & Swartz, for Commonwealth.
    June 7, 1927.
   Knight, J.,

38th judicial district, specially presiding,

The decedent died Dec. 22, 1925, leaving a last will and testament bearing date March 17, 1920, with several codicils, which were duly admitted to probate and letters testamentary granted to Fidelity Trust Company, since merged with the Philadelphia Trust Company and now Fidelity-Philadelphia Trust Company. The testator directed the residue of his estate to be divided into four equal parts, which he gave to said coinpany to hold in tr.ust for each of his four children, Augusta Graham- French Wallace, Bessie Graham French Cummin, James Graham French and Clayton French, to invest each part and pay the net income therefrom to each of said children during life, with remainders over.

The testator had a policy on his life issued by the Equitable Life Assurance Society of the United States under date of Jan. 19, 1898, for $30,870. The policy was originally made payable to his estate. Under date of Jan. 21, 1921, the company made the following endorsement: “In compliance with the written request of Harry B. French, it is hereby declared that the amount due at his death shall be payable, not as originally provided, but to his children, Clayton French, James Graham French, Bessie French Cummin, Augusta French Wallace, according to the terms of the last will and testament of the said Harry B. French. Other conditions and requirements remain unchanged.” With the consent of the children, the company paid the proceeds of the policy to the executor. The appraisers of the personal estate of the decedent included the amount of the proceeds of the policy in the inventory, setting out verbatim the beneficiary clause of the policy — the endorsement as above given; the account of the executor filed in the office of the register of wills Sept. 24, 1926, including the said proceeds. At the audit of the account, the executor submitted the question whether the provisions of the will extended to and included the proceeds of the policy. In the adjudication of the account the court distributed one-fourth of the proceeds to the testamentary trustee for each child, for the reason (which, however, was not stated) that it was in accordance with the direction of the decedent assured. Our thought was that the proceeds were no part of the estate of the decedent.

The appraiser to fix the transfer inheritance tax on the estate of the testator included in his appraisement of the estate and as part thereof the proceeds of the policy, $30,870.

The executor has appealed from the assessment of the tax on said proceeds. It also appealed from the assessment of the tax on a “trust fund” of $62,818.90. Subsequently, it was found that no tax was assessed on this fund, and, of course, the appellant withdrew consideration of that item.

The sole question at issue is whether the proceeds of the insurance policy are subject to the payment of the transfer inheritance tax. The facts are agreed upon by the appellant and the Commonwealth. The decedent did not die possessed of the proceeds. They were never payable to him. At one time, prior to Jan. 21, 1921, they were payable to his estate. Had no change been made by him, the proceeds would have been paid to his executors and passed as his estate to the beneficiaries under his will. After Jan. 21, 1921, the proceeds, at his death, were to be paid to his four children according to the terms of his will; that is, to the trustee appointed for them in the will, to be held according to the terms of the trust. The assured (French) virtually incorporated the trust in directing to whom the proceeds of the policy at his death were to be paid and what was to be done with them. That, however, did not make the proceeds part of his estate. It was a direction only, nothing more, to whom they should go. The fact that they were paid to the executor with the consent of the children did not make them a part of his estate transferred by his will. He was not possessed of the proceeds at the time of his death. Nor does the fact that the executor included the proceeds in the inventory make them part of the estate. Fortunately, they are distinctly earmarked, and they may be called a special fund in the executor’s hands.

The Act of June 20, 1919, P. L. 521, imposes the transfer inheritance tax on personal property “when the transfer is by will . . . from any person dying possessed of the property,” or “when the transfer is of property made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death.” As already stated, the insurance money was not payable to the decedent or to his estate. As we have found, it was payable to his children, to be held, however, according to the conditions and limitations of his will. He had the power to revoke the direction of Jan. 21, 1921, as to the payment of the proceeds of the policy. He never exercised the power. The right to revoke, unexercised, is a dead thing: Dolan’s Estate, 279 Pa. 582 (589); and, as was said in that case, “its presence does not alter the character of the estate granted; to all intents and purposes, title and possession pass just as effectively as any deed or grant could make it, continuing in that state so long as the power of revocation lies dormant.” The proceeds of the policy passed to the children by the terms of the policy, not as part of his estate under his will. The policy originally was payable to the testator’s estate; later, it was made payable to his children. The proceeds are exempt from the tax: Murphy’s Estate, 21 Pa. Superior Ct. 384.

The moneys received by the executor from the policy never were an estate of which the decedent died possessed. They are akin to death benefits of a beneficial society payable to the heirs of a member, which are not liable to the tax: Rumance’s Estate, 65 Pitts. L. J. 416.

Policies of life insurance usually and very generally are made payable, upon the death of the insured, to the estate of the insured or to a third person. Policies of life insurance are taken out in contemplation of death. To hold that the naming of a persons as beneficiary of the policy entitled to the proceeds thereof is a transfer of property made in contemplation of the death of the insured, or intended to take effect in possession or enjoyment at or after his death, within the meaning of that provision of the Act of 1919, would be an absurd interpretation of the language of the act, for the convincing reason that the policy is not the estate or part of the estate of the insured to take effect in possession or enjoyment at his death. “It never, for a moment, became part of his estate which his heirs (creditors, legatees or next of kin) could on any ground or by any device absorb:” Vogel’s Estate, 18 W. N. C. 242.

Further discussion of the matter is unnecessary. We are of the opinion the appraiser erred in including the proceeds of the insurance policy as part of the decedent’s estate; that the net amount of the estate liable for the transfer inheritance tax should be reduced by $30,870, which will correspondingly reduce the amount of tax due on the estate.

The substance of the foregoing opinion was prepared by his Honor Judge Solly before his illness. We have examined the papers in the matter, including briefs filed by counsel, and, upon consideration, we concur with the opinion of Judge Solly, and, therefore, make the following

Order.

And now, June 17, 1927, the appeal is sustained.

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


author: Stotz, J.,

text:
    Worman v. Treadwell Engineering Company.

      Workmen’s compensation — Presumption of dependency — Act of June 1919.

    Under section 307 of the Act of June 2, 1915, P. L. 736, as amended by paragraph v, section 2, of the Act of June 26, 1919, P. L. 642, 648, which provides that in the case of a minor killed by an industrial accident, who has been contributing to his parents, “the dependency of the parents shall be presumed," the presumption of dependency is not conclusive and cannot be made the basis of an award to the parents where it appears in evidence that the only money paid by the minor to them was his board, and there was no evidence to indicate that the amount so paid was more than his board was worth or that they had made any profit out of such payments.
    Appeal from Workmen’s .Compensation Board. C. P. Northampton Co., Feb. T., 1927, No. 16.

      F. P. McCluskey, for plaintiff; Kirkpatrick & Maxwell, for defendant.
    Feb. 14, 1927.
   Stotz, J.,

This is an appeal from the Workmen’s Compensation Board, which affirmed the referee’s findings and award of compensation.

Chester Worman, Jr., the deceased employee of the defendant company, was the son of Chester and Minnie Worman. He was eighteen years of age when, in the course of his employment, he met with the accident which resulted in his death. He was unmarried, and lived at home with his parents. The testimony of the parents, given before the referee, shows that he paid $12 per week board, and on four separate occasions gave his mother $2 additional. His weekly wage was $24.50 when he worked full time. The referee found as a fact that “the claimants were partially dependent on the decedent for support at the time of his death,” concluded as matter of law that they “are entitled to compensation for partial dependency under article in, section 307, paragraph 5, of our act,” and awarded $4 per week for 300 weeks to them, plus burial expenses in the sum of $100.

The board, in the opinion filed dismissing the appeal from the referee, correctly stated that “the only question involved in this ease is whether the claimants were dependent upon the decedent at the time of his death.” No evidence of dependency was submitted, but the board held that “this case clearly falls within the statutory presumption” of dependency, in view of the language of section 307 of the act, which provides that: “If there be neither widow, widower nor children entitled to compensation, then to the father or mother, if dependent to any extent upon the employee at the time of the accident, twenty per centum of wages: Provided, however, that in the case of a minor child who has been contributing to his parents, the dependency of said parents shall be presumed.” The decision of the referee and the board rests wholly upon this presumption.

Did the deceased minor “contribute” to his parents out of his earnings, in the meaning of that term as used in the act, and were such contributions needed by them? In Corcoran v. Pennsylvania Coal Co., 76 Pa. Superior Ct. 325, Judge Henderson says, at page 327: “The question is whether the contributions of the son were needed to provide the claimants with some of the ordinary necessities of life suitable for persons in their class and position. The statute was designed to provide compensation; that is, the making good of the loss of support. Where such loss did not exist, compensation does not accrue.” The uncontradicted evidence in the case shows that the son went to work when he was sixteen years of age, and that an agreement was then made between him and his parents that he should pay his board at the rate of $12 per week. At that time he earned $14.85 per week, and he kept the difference between his wages and the price of his board for himself. For the first year and a-hal£ of his employment he paid his parents nothing additional to his board money, but, on the other hand, his father bought and paid for his clothes. At the end of a year and a-half he lost his job, and for eight or nine weeks he was out of employment. During this period he lived at home, but he paid no board. He then secured a job at the defendant’s plant, where he worked about two months, when he was killed. When he resumed work, he again paid board at $12 per week, and continued to pay it regularly until the time of the accident.

Was this payment of board “contributing to his parents?” We cannot so view it. It was paid, not for their support or relief, but for his own support and benefit. There is nothing in the case which would tend to show that the amount he paid his parents for board was more than it was worth or more than he would have been obliged to pay elsewhere. When at the end of the week he paid them $12, he had received from them $12 worth of food, lodging and whatever else was .involved in the term board. This was not contributing to the parents, any more than the parents were contributing to him.

But it might be argued that, because the son paid board and thus relieved the parents from supporting him, what he paid was in its result a contribution to them. This would not be tenable, but would be analogous to the situation shown in the case of Washco v. Wyoming Seminary, 88 Pa. Superior Ct. 470, where the language of the court below, quoted by Judge Cunningham with approval, was as follows: “The referee found that he came within the act because by working his way through school he relieved his father from the duty and expense of educating him, and allowed compensation accordingly. The board thought this interpretation of the act was too subtle and gave the act a less liberal but more practical interpretation, holding that the dependency of the parents should be of a positive and not a purely negative character. As well say that the parents were somewhat dependent upon a boy because he kept in good health and saved them doctor bills.”

However, the testimony shows that during the two months the minor worked at defendant’s plant he gave his father (or mother) $8 additional, in four payments of $2 each, and, therefore, it is contended that this must be taken as a “contribution,” however small, and would alone support the conclusion of the board and the referee. To this we cannot agree. When these small extra payments were made the son was indebted for eight weeks’ board. The father himself so testified. This being so, the $8 was not a contribution, but part-payment of a debt of $96.

It must be kept in mind that the son at no time gave his parents any part of his surplus earnings over and above the price of his board, but kept it himself ; and, as we have seen, he had not even paid his board in full when he was killed. How, then, can it be said that he contributed to his parents?

Moreover, there is no evidence of the parents’ actual dependency upon the son. In Morris v. Yough Coal and Supply Co., 266 Pa. 216, Mr. Justice Kephart says, at page 220: “The term dependency in the statute contemplates actual dependency and must aifirmatively appear in the record as a fact. No rigid rule can be laid down as to the amount or character of evidence necessary to show actual dependency; therefore, each case must be controlled by its own circumstances. But the term actual dependency does not mean sole and exclusive support. It includes as well partial support, and the query arises, were the contributions needed to provide the claimant (recognized as such by the statute) with some of the ordinary necessaries of life suitable for persons in her class and position?” There is not a syllable of testimony which would tend to show, following the language used in Corcoran v. Pennsylvania Coal Co., 76 Pa. Superior Ct. 325, that the moneys paid to the parents, even if they could be taken as contributions, “were needed to provide the claimants with some of the ordinary necessities of life suitable for persons in their class and position.” Not even an inference to that effect can be drawn from the evidence. Citing again from the Corcoran case: “The statute was designed to provide compensation; that is, the making good of the loss of support. Where such loss did not exist, compensation does not accrue.” There is no evidence of any “loss of support.” The only loss, if there was any at all, was a possible loss of profits from the weekly board payments, and as to this there is no evidence.

As we have pointed out, the decision of the referee and the board rests entirely upon' the presumption of dependency mentioned in the act. But the language of the act itself, as well as the cases we have cited, show that this presumption is not absolute and conclusive. It prevails only when certain facts and conditions are made to appear. In the instant case, they are either not shown or are negatived.

Having in mind the rules by which we must be governed in a case of this kind, as laid down by Mr. Justice Simpson in Stahl v. Watson Coal Co., 268 Pa. 452, we, therefore, consider ifour duty to reverse the board.

Now, Feb. 14, 1927, the exceptions to the action of the Compensation Board in approving the findings, conclusions and award of the referee, and the appeal taken from the said board, are sustained, and the board is reversed.

Prom Henry X>. Maxwell, Easton, Pa.


author: Henderson, J.,

text:
    Thompson’s Estate.

      Wills — Gift to testator’s nephew, dead at date of will — Lapse — Act of June 7, 1917.

    Under section 15 (5) of the Wills Act of June 7, 1917, P. L. 403, a legacy to testator’s nephew, who was dead at the date of the will, does not lapse, but passes to his surviving children, unless the testator directs otherwise in the will.
    Exceptions to adjudication. O. C. Phila. Co., July T., 1927, No. 2459.
    Lamoeelle, P. J., Auditing Judge. — blames J. Thompson died Oct. 31, 1926, leaving to survive him neither widow nor issue, having first made a will, dated March 31, 1923, of which he appointed Girard Trust Company executor, to which company letters testamentary were granted Nov. 4, 1926.
    After directing the payment of his just debts and funeral expenses, testator gave the residue of his estate to his “nephew, John Lynn, son of my deceased sister, Ann Lynn, now residing near Broad Street and Erie Avenue, in the City of Philadelphia, State of Pennsylvania, and unto his heirs, executors, administrators and assigns forever.”
    It is admitted that at the time of the execution of the will said John Lynn was dead, and also that he left to survive him a widow and a child, Eleanor Lynn. The question for determination is whether Eleanor Lynn is entitled to the balance shown by the account, or whether the same should be awarded to the next of kin of the testator. The Auditing Judge is of opinion, and so rules, that the daughter is entitled.
    Section 15 (b) of the Wills Act of June 7, 1917, P. L. 403, provides as follows : “Where any testator shall not leave any lineal descendants who would receive the benefit of any lapsed or void devise or legacy, no devise or legacy made in favor of a brother or sister, or of brothers or sisters of such testator, or in favor of the children of a brother or sister of such testator, whether such brothers or sisters or children of brothers or sisters be designated by name or as a class, shall be deemed or held to lapse or become void by reason of the decease of such devisee or legatee in the lifetime of the testator, if such devisee or legatee shall leave issue surviving the testator; but such devise or legacy shall be good and available in favor of such surviving issue with like effect as if such devisee or legatee had survived the testator, unless the testator shall in the will direct otherwise.”
    This section is but a re-enactment of section 2 of the Act of May 6, 1844, P. L. 564, as amended by the Act of July 12, 1897, P. L. 256; and in Minter’s Appeal, 40 Pa. Ill, a case arising under section 2 of the Act of 1844, it was held that the children of a sister of testatrix were entitled to the legacy given her, although she was dead at the time when the will was written: See, also, Hook’s Estate, 10 W. N. C. 140.
    Counsel for the next of kin relied on Harvey’s Estate, 4 D. & C. 304, but that case is distinguishable from the present case. There the testatrix bequeathed her estate in three equal shares to three cousins, designating them by name. One of the cousins died before the date of the will. It was held that the legacy to the cousin who was deceased at the date of the will lapsed, and it was awarded to the surviving legatees under section 15 (c) of the Wills Act. The provisions of section 15 (b) of the Wills Act do not apply to cousins, and the court correctly ruled that there was a lapse. . . .
    The balance, $1994.12, ... is awarded to Eleanor Lynn, only child of John Lynn, and payment is so ordered.

      Harry C. Kohlhas, Jr., for exceptions.

      William K. Sehubert and Fell & Spalding, contra.
    Jan. 20, 1928.
   Henderson, J.,

A careful examination of the record and of the briefs convinces us that the action of the Auditing Judge is correct and for the reasons given by him. Section 15 (b) of the Wills Act of June 7, 1917, P. L. 403, is remedial and should be liberally construed.

The doctrine of Minter’s Appeal, 40 Pa. 111, is followed in many other jurisdictions: See 3 Am. Law Reps. 1682.

We must presume that the testator knew the law, and, hence, if he had a doubt as to whether his nephew, John Lynn, survived the execution of the will, he knew that at least the nephew’s children would be substituted under this doctrine.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Lamorelle, P. J., was absent.


author: Wickhrsham, J.,

text:
    Backenstoss Realty Corporation v. Koenig.

      Husband and wife — Joint contract with broker to sell realty — Tenants by entireties — >Liability of survivor — Joint amd several contract — Exclusive agency — Sale by owner.

    1. Where husband and wife contract with a broker to give them the exclusive right to sell realty which they own as tenants by entireties1, such contract is both joint and several and is enforceable against the wife alone after the death of her husband, since she succeeds to the entire ownership and is, therefore, liable for services rendered under the contract.
    2. It was not necessary that the contract be reaffirmed by the wife after the death of her husband where, under its terms, it had not expired.
    3. Defendant is liable to the brokers under the exclusive agency given, even though she herself procured the purchaser.

      Assumpsit by real estate broker for commissions. Statutory demurrer. C. P. Dauphin Co., Jan. T., 1927, No. 260.

      John B. Geyer, for plaintiff; James G. Hatz, for defendant.
    April 27, 1927.
   Wickhrsham, J.,

The plaintiff brought its action to recover from the defendant the sum of $1350, which is based upon a written contract signed by Albert Koenig and Salome V. Koenig, a copy of which is attached to plaintiff’s statement and marked Exhibit A, which provides, inter alia, that, in consideration of the realty corporation agreeing to list in its office the property of Albert Koenig and Salome V. Koenig at No. 2101 North Sixth Street, in the City of Harrisburg, known as Maple Grove Hotel:

“I hereby grant to you the exclusive right to sell, or exchange, or to contract to sell or exchange said property within a period of twelve months from the date hereof, and thereafter until you receive from me a ten days’ notice terminating this agreement, for the sum of $67,500.00; . . . and for this service I hereby agree to pay you the regular commission on the purchase price thereof as indicated by a schedule thereof, the receipt of which is hereby acknowledged, upon any sale or exchange, or contract for the sale or exchange of said property made while this agreement remains in force, whether such sale or exchange be made by you, by myself, or by any other person, firm or corporation for me; or whether at the price and upon the terms stated herein, or at a different price or upon other terms accepted by us.
“It is further agreed that upon any sale or exchange or contract for the sale or exchange of said property made by me within three months next after the termination of this agreement to any person with whom you have had negotiations for the sale or exchange of same and of which I shall have been advised, I shall pay you the full commission as herein indicated. . . .
“This agreement to bind as well the heirs, executors, administrators and assigns of the parties hereto as well as the parties themselves.”

The defendant filed an affidavit of defence raising questions of law. All pertinent facts alleged in plaintiff’s statement are, therefore, admitted to be true.

After alleging the execution of the contract, it appears, from paragraph 8 of plaintiff’s statement, that the plaintiff did proceed to list the said property in its office and to use its efforts to find a purchaser for the same, and did maintain its “for sale” sign on the said real estate, and did endeavor to interest all prospective purchasers in the sale of said property.

On April 29, 1920, the Backenstoss Realty Co., Inc., was organized as a Pennsylvania corporation, and all contracts of the Baekenstoss Realty Company were assigned and transferred to the corporation, including the one upon which this suit is brought.

That, during the year 1920, L. G. Smith noticed the sign of the plaintiff upon the said property; he called upon the plaintiff and discussed with one of its officers the purchase price. After some discussion, he made an offer, in writing, to the plaintiff to buy the property for $45,000 for a clear title. This offer was not acceptable to the defendants and was rejected, and L. G. Smith was so notified. Thereafter negotiations continued between the said L. G. Smith and the owners of the property from time to time for the purchase of same. That Albert Koenig and Salome V. Koenig were tenants by entireties in the real estate proposed to be sold. Albert Koenig died April 17, 1922, and, by operation of law, all his right, title and interest in said lands then became absolutely vested in the other defendant, Salome V. Koenig. Ten days’ written notice terminating the said agreement, marked Exhibit A, was at no time given by the said Salome V. Koenig or by the said Albert Koenig, or by any one on her behalf.

After the death of Albert Koenig, the plaintiff continued to list the said property in its office and continued its efforts to find a purchaser for the same. On or about May 23, 1922, the said Salome V. Koenig, the defendant, did sell the said real estate to the Brotherhood Relief and Compensation Fund, of which the said L. G. Smith was an officer, and for whom or in whose behalf he had been negotiating therefor, at and for the price of $45,000. The defendant, Salome V. Koenig, refused to pay to the plaintiff the 3 per cent, commission upon the purchase price.

The affidavit of defence raises three legal questions, the first being that the plaintiff’s suit is founded upon a joint contract entered into by Albert Koenig and Salome V. Koenig; that the plaintiff was not able to produce a purchaser for the price of $67,500 during the lifetime of Albert Koenig, one of the joint contractors; and that the failure to perform according to the terms of the contract during the lifetime of Albert Koenig, one of the parties thereto, made performance thereafter impossible; and, further, the plaintiff did not produce a purchaser at the stipulated price within the limit fixed by the alleged contract.

The real contention of the defendant is that the contract was joint, and, one of the joint parties having died before performance of the contract on the part of the plaintiff, no liability attaches to the other joint party to the contract. This contention is not sound. The distinction between joint and joint and several contracts always had regard to the remedies, the parties being bound according to the tenor of the instrument to which they put their signatures. It is evidence against each of them, but the discharge of one by taking action against the other is the peculiarity which the statutes have taken away: Miller v. Reed, 27 Pa. 244. An obligation which, in its terms, purports to be that of one person, as “I hereby bind myself, etc.,” and is executed by more than one, may be treated as the several obligation of each person who signs it or the joint obligation of all: Knisely v. Shenberger, 7 Watts, 193; Leith v. Bush et al., 61 Pa. 395.

We think the contract in controversy is a joint and several contract and may be enforced against the defendant, Salome V. Koenig. The contention that it is a joint contract has no merit, for the reason that, upon the death of her husband, the defendant succeeded by operation of law to all of his interests in the property and became entitled, on the sale, to the Whole consideration. She obtained the benefit of this service and is liable to pay therefor.

There is no merit in the second contention of the defendant that there was no performance by producing a purchaser at the stipulated price within the time limited. The defendant herself sold the property to the corporation of which Smith was the president, after the death of her husband, for the consideration which he had agreed to pay on solicitation of the plaintiff. The defendant was liable, under the contract, to pay the commission whether the property was sold by the plaintiff or by her, because she had agreed to pay the commission of the plaintiff, whether the property was sold at the price and upon the terms stated in the contract or at a different price or upon other terms accepted. It is alleged in plaintiff’s statement, and for the purpose of this proceeding must be taken to be a fact, that no notice was given by the defendant to terminate the contract as provided therein.

The third contention of the defendant is sound. A petition has been presented to amend the plaintiff’s statement, which we have allowed.

There is no merit in the fourth and fifth contentions of the defendant. It was not necessary that the contract should be reaffirmed by the defendant on the death of her husband; it was her contract as well as his. Nor is it true that the defendant and her husband were never jointly liable. As we construe the contract, they would have been liable, jointly or severally, had they accepted the bid of L. G. Smith to purchase the property for $45,000 before the death of Albert Koenig. This contention, therefore, is not sound.

The amendment of the caption, including the record and the writ, as to the names of the parties being allowed, the affidavit of defence in the nature of a demurrer is overruled, and the defendant directed within fifteen days to file an affidavit of defence to the plaintiff’s statement upon its merits.

Prom Homer L. Kreider, Harrisburg, Pa.


author: Wagner, Dep. Att’y-Gen.,

text:
    Legal Reserve Securities.

      Banks — Reserve funds — Mandamuses of city. — Bonds—Acts of 1889, 1907 and 1917.

    1. Mandamuses of the City of Philadelphia, -which are short-term obligations issued in compliance with orders of court, are not legal reserve securities in computing the reserve funds of banks and trust companies within the provisions of sections 2 and 3 of the Act of May 8, 1907, P. L. 189, as amended by the Act of July 11, 1917, P. L. 791.
    2. Such mandamuses are not “bonds issued in compliance with law by any city” within the language of the Act of May 8, 1907, P. L. -189, nor as used in section 17 of the Act of May 20, 1889, P. L. 246.
    3. The word “bonds” as used in the statute contemplates bonds as that term is used by the investing public.
    Department of Justice. Opinion to Hon. Peter G. Cameron, Secretary of Banking.
    June 1, 1927.
   Wagner, Dep. Att’y-Gen.,

You have requested our opinion whether mandamuses of the City of Philadelphia, which are short-term obligations issued in compliance with orders of court, are to be regarded as legal reserve securities in computing the reserve funds of banks and trust companies within the provisions of the Act of May 8, 1907, P. L. 189, and the amendments thereto.

Sections 2 and 3 of the Act of May 8, 1907, as amended by the Act of July 11, 1917, P. L. 791, provide for reserve funds of 15 per cent, of the aggregate of immediate demand liabilities and of 71 per cent, of the aggregate of time deposits. One-third of both these reserve funds may consist of “bonds of the United States, bonds of the Commonwealth of Pennsylvania and bonds issued in compliance with law by any city, county or borough of the Commonwealth of Pennsylvania, and bonds which now are or hereafter may be authorized by law as legal investments for savings banks or savings institutions in Pennsylvania, computed at their par value, and which bonds are the absolute property” of the bank or trust company setting up said reserve funds.

Legal investments for savings banks or savings institutions in Pennsylvania are enumerated in section 17 of the Act of May 20, 1889, P. L. 246, which is as follows:

“It shall be lawful for the trustees of any saving bank to invest money deposited therein only as follows:
“First. In the stocks or bonds of interest-beating notes or the obligations of the United States, or those for which the faith of the United States is pledged to provide for the payment of the interest and the principal.
“Second. In the stocks or bonds of the Commonwealth of Pennsylvania bearing interest.
“Third. In the stocks or bonds of any state in the Union that has not, within ten years previous to making such investments by such corporation, defaulted in the payment of any part of either principal or interest of any debt authorized by any legislature of such state to be contracted.
“Fourth. In the stocks or bonds of any city, county, town or village of any state of the United States issued pursuant to the authority of any law of the state, or in any interest-bearing obligation issued by the city or county in which such bank shall be situated.
“Fifth. In bonds and mortgages on unincumbered improved real estate situate in this State.”

The above section is the only enactment in Pennsylvania relative to legal investments for savings banks which it is necessary to consider in the discussion of the question presented.

Mandamuses are obviously not “bonds issued in compliance with law by any city, county or borough of the Commonwealth of Pennsylvania” within the language of the Act of May 8, 1907, as amended. Whether they are “bonds which now are or hereafter may be authorized by law as legal investment for savings banks or savings institutions in Pennsylvania” within the language of said act, must be determined by a construction of the language “stocks or bonds of any city, county, town or village of any state of the United States issued pursuant to the authority of any law of the state, or in any interest-bearing obligation issued by the city or county in which such bank (saving bank) shall be situated,” as used in the fourth paragraph of section 17 of the Act of May 20, 1889.

It will be noted that, although savings banks are permitted to invest in stocks or bonds of any of the designated municipalities of the United States or in interest-bea/ring obligations of the city or county in which the bank is situated, the investment of the reserve funds referred to above is restricted to bonds which are legal investments for savings banks; also, that all of the securities enumerated for the investment for such reserve funds are bonds which are to be computed at their 'par value. The word “bonds,” as used in the statute, contemplates “bonds” as that term is used by the investing public. Further, the nature of the reserve funds established by the Act of May 8, 1907, and the provisions relative to the constitution of such reserve funds indicate quite clearly that such reserve funds are to consist only of quick assets readily convertible into cash at any time.

It is our opinion that mandamuses of the City of Philadelphia are not within the class of investments contemplated by sections 2 and 3 of the said Act of May 8, 1907, as amended.

From C. P. Addams, Harrisburg, Pa.


text:
    West Side Bank v. Beaver Valley Coal Company.

      Corporations — Checks — Endorsement — Provision of by-laws — Customer Directed verdict — Effect of, when requested by both sides.

    1. A corporation is liable on checks drawn or endorsed pursuant to a general course of business by one to whom had been left the entire management of the business, even though the checks were endorsed or assigned contrary to the provisions of the by-laws, where it is conceded the company received the benefit of the transaction.
    2. The company could not accept the benefits of the transaction and at the same time repudiate the agency.
    3. A provision in by-laws that all checks, drafts or orders shall be signed by the treasurer and countersigned by the president, does not include endorsements or transfers of an instrument of which the corporation is the payee.
    4. Where both sides request the court to direct a verdict, such verdict will have the same force and effect as if rendered in due course by a jury.

      Assumpsit. Motion in arrest of judgment and for a new trial. C. P. Luzerne Co., Oct. T., 1924, No. 2.

      T. B. Miller and W. A. Valentine, for plaintiff.

      F. A. McGuigan and John H. Dando, for defendant.
    March 21, 1927.
   Coughlin, J.,

The defendant coal company, a corporation of the State of Pennsylvania, with offices in Wilkes-Barre, Luzerne County, Pennsylvania, during the months of February and March, 1923, and prior thereto, was engaged in the operation of a coal mine, its treasurer being John E. Foster. The plaintiff bank, of West Pittston, a State banking institution, during the months of February and March, 1923, received from the defendant company three checks, aggregating in amount $22,000, made payable to the defendant coal company or bearer or order, at the Royal Bank of Canada, Joliette branch, by P. H. Desrosiers, maker, said checks being endorsed in blank by the defendant coal company, John E. Foster, treasurer, and one Coplan. The first check was dated Feb. 26, 1923, being for $10,000; the second dated March 3, 1923, for $10,000; and the third dated March 3, 1923, for $2000. These checks were promptly presented by plaintiff bank for payment at the drawee bank, payment refused; and said checks immediately protested by drawee for non-payment. Notice of dishonor and protest was immediately given to the drawer, drawee, payee and endorsers of each of said checks, including the plaintiff bank. Immediate notice was thereupon given by the plaintiff bank to the defendant coal company, and this suit finally brought by the plaintiff bank to recover the amount of said checks.

The affidavit of defence discloses that the defendant coal company claims it received no value, benefit or advantage from the negotiation of the checks sued upon, and that their negotiation by John E. Foster, treasurer, and H. Coplan was under no authority given by or- binding upon the defendant coal company.

Upon the trial of the case, plaintiff bank produced its records and called its cashier and teller, showing that H. Coplan did all the depositing for defendant coal company at plaintiff bank; that the signature and signature card filed with said bank carried the name “Beaver Valley Coal Company, H. Cop-lan,” and that for over a year all the financial business of said defendant company with said plaintiff bank was handled by said Copian and no other person, and that checks were drawn thereon by Coplan in connection with defendant’s business. Bundles of checks were produced by plaintiff, marked Exhibits 10 to 15, inclusive, signed “Beaver Valley Coal Company, H. Coplan,” being all the checks drawn on plaintiff bank in carrying on said defendant’s business. It was further shown that Coplan obtained drafts and cashier’s checks for cash from the plaintiff bank for transfer to the Hazleton Bank, from which the pay-roll, workmen and other bills were paid.

The records of the plaintiff bank, and the testimony of its teller and cashier, disclosed that on March 5, 1923, the second check for $10,000 and the third check for $2000, making a total of $12,000, were deposited to the account of the defendant coal company, against which checks were drawn by said defendant.

As to the first check of Feb. 26, 1923, for $10,000, it appears that the plaintiff bank, upon receipt of said check, issued its check or draft upon the Irving Bank of New York City, made payable to said H. Coplan, for the sum of $10,000, and that said draft was endorsed by H. Coplan in blank and delivered to P. H. Desrosiers, representing Stinson Reid Builders’ Supply Company, in payment of an obligation owed by defendant coal company to said supply company, said delivery being made in the presence of the treasurer, John E. Foster.

The defendant coal company then offered to prove by the vice-president and a director of the company that he knew nothing of the transaction, that Cop-lan had no authority to receive or use the $10,000 and $2000 checks, and had no authority to bind the company as to Stinson Reid Builders’ Supply Company. Defendant further offered to put in evidence the by-laws of the company. These offers were rejected by the court.

Defendant, therefore, resting, inquiry was made by the court as to whether or not they expected to go to the jury. “By Mr. Dando” (attorney for defendant coal company) : “No, sir; we submit it on paper.” “By the Court: The court denies your points and affirms the plaintiff’s point.”

The defendant’s points, so refused by the court, read as follows:

“1. Under all the evidence, the verdict must be for the defendant.
“2. Under all the evidence, there can be no recovery for the $10,000 evidenced by the draft of Feb. 27, 1923.”

Plaintiff’s point, affirmed by the court, was as follows:

“Under all the evidence, the verdict must be for the plaintiff for the sum of $22,019.48, with interest from April 6, 1923, or $25,886.10.”

Defendant now moves in arrest of judgment and for a new trial, assigning seven reasons therefor:

1. The court erred in not affirming defendant’s first point.

2. The court erred in not affirming defendant’s second point.

The uncontradicted evidence shows the treasury of the defendant received $12,000, the sum of two of the checks upon which suit has been brought. The uncontradicted testimony, if admissible, of Coplan shows that the $10,000 draft issued for the check deposited was used in the business and for the benefit of the defendant company.

The defendant’s third and fourth reasons set forth that:

3. The court erred in denying defendant’s motion to strike out the testimony of H. Coplan.

4. The court erred in receiving against defendant’s objection the testimony of H. Coplan relative to consideration for draft of Feb. 27, 1923.

Coplan had been the only person who had handled the fiscal affairs of the defendant corporation through the plaintiff bank, making all deposits and drawing all checks, and at times receiving drafts from said plaintiff. The full and absolute management of the affairs of the defendant corporation by Coplan for a period of a year leads to but one conclusion, and that is that he had authority to act. See Landis v. Pennsylvania Brick and Tile Co., 87 Pa. Superior Ct. 398.

The question whether or not the defendant corporation received the benefit of the money represented by the checks was a controlling factor in the present suit, and since Coplan had handled all the fiscal affairs of the defendant, his testimony as to what was done with the moneys was admissible, and we see no error in receiving his testimony or refusing to strike out the same.

In Farmers and Merchants National Bank v. Mountain Coal Co., 89 Pa. Superior Ct. 146, it was held that it is competent to show that the money received by the bank on the checks had been withdrawn by the defendant’s agent in charge of defendant’s business and applied to defendant’s uses, and this is the case although the money had been deposited by the agent under another corporate name than that of defendant.

The company got the benefit of the money and could not retain it and at the same time repudiate the agency: Scouton v. Lumber Co., 261 Pa. 241; Haymaker v. Fulton, 271 Pa. 465.

Defendant further complains in reasons five and six that:

5. The court erred in refusing to receive as evidence the by-laws of the defendant company relative to the prescribed method of disbursement by check.

6. The court erred in admitting as evidence the two checks aggregating $12,000, there being no proof of method of endorsement being authorized by defendant company.

Article 7, sections 1 and 2, of the by-laws offered in evidence provide, as follows:

“Section 1. All checks, notes or other methods for the disbursement of money of this company shall be countersigned by the president, or vice-president and signed by the treasurer, and all contracts, deeds and agreements shall be signed by the president or vice-president and secretary and sealed with the seal of the company.
“Section 2. The name of the company shall not be used as drawer, acceptor or endorser except in the legitimate and proper course of the company’s business. The moneys or effects of the company shall not be loaned, except as ordered by the directors, who shall have power to make productive idle funds of the company, loaning them on such security as may be deemed satisfactory.”

Provision in by-laws that all cheeks, drafts or orders shall be signed by the treasurer and countersigned by the president does not refer to endorsements or transfers of an instrument of which the corporation is the payee: Schwehm v. Trust Co., 257 Pa. 76-79; Putnam v. Ensign Oil Co., 272 Pa. 301.

Furthermore, defendant would be liable, though checks were endorsed or assigned contrary to the provisions of the by-laws, if it received the benefit of the proceeds, or if the course of dealings between plaintiff and defendant on similar checks were shown or if the management of the corporation had been left entirely to one individual: Hartzell v. Mining Co., 239 Pa. 602; Martin v. Lumber Co., 260 Pa. 218.

We are of the opinion that the court committed no error in refusing to receive as evidence the by-laws of the defendant company.

Defendant further complains that:

7. The court erred in not submitting to the jury the question of the truth or falsity of Coplan’s oral testimony.

At the close of the trial, both plaintiff and defendant took the view that there was no question for the jury if the court was correct in its rulings during the course of the trial, and requested a direction by the court. The court directed a verdict for plaintiff. The direction having been requested by both sides, the directed verdict has the same effect as if the jury had found in plaintiff’s favor after a submission of the case to them: People v. Scannell, 65 N. E. Repr. 165.

In the case of the First National Bank v. Hayes et al., 59 N. E. Repr. 893, 64 Ohio, 100, the court, upon plaintiff’s request that the jury be instructed to return a verdict in its favor, and defendants making a like motion in their favor, on consideration, instructed the jury to return a verdict for the defendants, to which the plaintiff excepted, but did not request the court to submit the case to the jury for its determination on the evidence. As therein said: “The question that arises is whether this was error, though there may have been some evidence tending to support the plaintiff’s case.”

Both parties, on the termination of the evidence, made similar requests for a verdict in their favor, both parties in this way voluntarily submitting the case to the court for its determination upon the evidence.

“The effect of a request by each party for a verdict in its favor clothed the court with the function of the jury, and it is well settled that in such case, where the party whose request is denied, does not thereupon request to go to the jury upon the facts, a verdict directed for either party stands, as would the finding of a jury for the same party in the absence of any direction: . . .” Thompson v. Simpson, 128 N. Y. 270; 28 N. E. Repr. 627.

In Prichett v. Cook, 62 Pa. 193, the following is stated: “It would undoubtedly have been error had the learned judge below given peremptory instructions to the jury to find in favor of the defendant, the contract on which the plaintiffs were claiming to recover resting wholly in parol, had it not been that they, assuming the contract to be proved in accordance with their theory, asked him to charge that the plaintiff was entitled to recover. He refused the prayer and charged that on the undisputed facts in regard to the contract the defendant was entitled to the verdict.

“The fact that the learned judge interpreted the contract adversely to the plaintiffs’ prayer, after having been requested to interpret it by them, is not an error they can complain of now. It does not intravene the maxim respondent facto jwatores, for the prayer in the plaintiff’s first point was in effect a withdrawal of the contract from the jury and a submission of its meaning to the court.”

The plaintiff made out a prima facie case by offering in evidence the checks sued upon and certificates of protest for non-payment thereof attached. The burden was, therefore, upon the defendant. See Bank v. Bonsor, 38 Pa. Superior Ct. 275. Coplan’s testimony, uncontradicted, was an explanation of the written checks, and the court properly directed the verdict. See Lipper Manuf. Co. v. Morris & Co., 58 Pa. Superior Ct. 611.

We are of the opinion that the trial judge committed no error in the trial of the case, and had the same been submitted to a jury, the jury could have only found for the plaintiff on the evidence submitted, and had a jury found otherwise, the verdict could not have been sustained.

Motion in arrest of judgment and for a new trial is, therefore, refused.

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


author: Wilhelm, P. J.,

text:
    Barrett’s Estate.

      Wills — Probate—Caveat—Failure to file bond — Certification by register to Orphans’ Court — Notice to parties in interest.

    1. The filing of a caveat against the prohate of a will is a statutory proceeding and the statute must he strictly complied with, otherwise the proceeding faite'.
    2. Where a caveat is filed to the prohate of a will and no hond is entered, the register is without power to certify the proceeding to the Orphans’ Court, and this is particularly so where no notice is given to the parties in interest.
    Certificate of register of Orphans’ Court. O. C. Schuylkill Co.
    March 21, 1927.
   Wilhelm, P. J.,

The following paper was presented to the court in form as herein set out:

“In the Register of Wills Office in and for the County of Schuylkill.
“Estate of Nora Barrett, late of Township of Btutler, deceased.
“In re probate of Last Will and Testament of said Nora Barrett, deceased.
“And now, January 13, 1927, by virtue of agreement between C. W. Stau-denmeier, Esq., and W. C. Devitt, Esq., counsel in above estate, asking to have all proceedings certified into the Orphans’ Court in and for said county, all proceedings relative to said estate are hereby certified into the Orphans’ Court of said county for final disposition.
“Nathan J. Lutz, Register of Wills.”

It appears that on Nov. 27, 1926, W. C. Devitt, attorney for Annie Cava-naugh, a daughter of Nora Barrettt, filed a caveat against the probate of “any will or issue any letters testamentary or administration upon the estate of Nora Barrett, late of the Township of Butler, in the County of Schuylkill and State of Pennsylvania, deceased.”

There was filed in the Register’s Office, Jan. 13, 1927, the following paper:

“In the Register’s Office of Schuylkill County.
“Before Nathan J. Lutz, Register.
“In re Estate of Nora Barrett, deceased.
“And now, January 13, 1927, before Nathan J. Lutz, Register, appeared C. W. Standenmeier, attorney for Jennie Rowan, executrix named in will of Nora Barrett, late of the village of Connerton, Butler Township,’ Schuylkill County, Pa., and W. C. Devitt, attorney for Mrs. Neil Cavanaugh, and agreed that case be certified to the Orphans’ Court of Schuylkill County for determination.
“C. W. Standenmeier, Att’y for Jennie Rowan.
“W. C. Devitt, Att’y for Mrs. Neil Cavanaugh.”

In this manner a proceeding alleged to be a will contest was presented to the Orphans’ Court.

No bond was filed by the caveator within ten days after the filing of such caveat, or at any time after said filing; therefore, this matter is not properly before us for disposition. Section 20 (a) of the Register’s Act sets out the method of procedure when a caveat has been filed in the register’s office against the probate of a will.

No bond having been filed as the statute provides, the register should not have attempted to certify this matter to the Orphans’ Court, and the agreement of attorneys that the register certify a proceeding to the Orphans’ Court without the statute being complied with does not remedy the matter, because the bond inures to the benefit of all the parties in interest.

It is noted, also, that the register has not given notice of his action to all of the parties interested, as the law requires, and it does not appear from any paper that all of the parties in interest have been named or notified.

The filing of a caveat against the probate of a will is a statutory proceeding, and the statute should be strictly complied with, otherwise the proceeding falls. The proceeding is dismissed.

From M. M. Burke, Shenandoah, Pa.


author: Landis, P. J.,

text:
    Pictorial Review v. Blakeman.

      Affidavit of defence — Sufficiency—Rule for judgment after case has been on trial list.

    1. In a suit for the price of goods sold and delivered, an affidavit of defence is sufficient which avers that the defendant returned the goods1 and the plaintiff received and accepted them.
    2. Semble. Where a case is not unduly delayed thereby, a plaintiff can at any time enter a rule for judgment for want of a sufficient affidavit of defence, even after the case has been twice on the trial list.
    Rule for judgment for want of a sufiicient affidavit of defence. C. P. Lancaster Co., Oct. T., 1925, No. 57.

      Henry M. Bruner, for rule.

      Cleon N. Bemteizel, Paul R. Mueller and John M. Groff, contra.
    June 25, 1927.
   Landis, P. J.,

So far as this proceeding is concerned, the facts cannot be in dispute. On or about Jan. 12, 1925, the parties entered into a written agreement, whereby certain merchandise was purchased by the defendant from the plaintiff. The goods ordered were shipped from time to time to the defendant and received by her. If nothing else appeared in the case, she would undoubtedly be bound to pay for them.

She, however, alleges that all of them were returned between April 15 and April 30, 1925. I do not see how this can be true, if the dates are correct, for at least one of the charges bears date subsequent to April 30, 1925. However, the real trouble which the plaintiff must encounter is the allegation in the affidavit of defence that the defendant returned to the plaintiff all the goods shipped to her and the plaintiff accepted and retained them. If this is true, then there is nothing due to the plaintiff on this account, and a verdict should be rendered by a jury in her favor. This is a question of fact which must be passed upon by a jury.

It has been suggested that this case was twice upon the trial list before the present rule for judgment was entered. In view of our conclusion that the facts ought to be submitted to a jury, it is not important at this time to decide whether the plaintiff by its delay has deprived itself of the right to the rule. Our impression is that if the trial is not thereby delayed unduly, a plaintiff can at any time enter a rule for judgment for want of a sufficient affidavit of defence. Rule discharged. From George Ross Eshleman, Lancaster, Pa.


author: Furst, P. J.,

text:
    Cohen et al. v. Smith.

      Realty — Sale—Title—Encumbrance—Lien of decedent’s debts — Recovery of hancLmoney.

    In an action to recover hand-money paid on account of an executory agreement to purchase real estate, judgment for want of a sufficient affidavit of defence will be entered where it is admitted that, on the day fixed for settlement, defendant could not convey a title clear of incumbrance, because less than a year had expired since the death of his father, from whom he had inherited the property, and that there had been no advertising or settlement of the estate so as to relieve the property from the lien of decedent’s debts.

      Assumpsit to recover hand-money paid on account of agreement to purchase realty. Motion for judgment for want of sufficient affidavit of defence. C. P. Centre Co., Sept. T., 1926, No. 153.

      N. B. Spangler and Ivan Walker, for plaintiffs.

      J. K. Johnston, for defendant.
    May 5, 1927.
   Furst, P. J.,

The matter before the court is a motion for judgment by the plaintiffs for want of a sufficient affidavit of defence.

The plaintiffs brought suit to recover the hand-money, amounting to $500, paid on an agreement for the sale of a piece of property in the Borough of Bellefonte, situate near the Bellefonte Spring.

The consideration named in the agreement was $6750. The agreement was dated April 16,1926, and delivery of a good and sufficient deed, free and clear of all encumbrances, was to have been made on or before June 1, 1926. The defendant was the owner of the property by virtue of being the sole heir and legal representative of her father, S. D. Ray, who died Oct. 8, 1925, leaving no personal property, this and other real estate in Bellefonte, and also debts of a considerable amount, including a mortgage on this very property in question.

The pleadings show that the two plaintiffs, Cohen and Kalin, presented themselves at the office of the attorney for the defendant on June 1, 1926, and declared they were ready and willing and armed with the cash to carry out the terms of the agreement for the purchase of the property. The deed in proper form, properly executed, was tendered to them, but the plaintiffs returned the deed, averring that the property was not free and clear of encumbrances. June 1, 1926, was less than one year from the date of the death of S. D. Ray, and since no accounting and settlement of his estate had been accomplished with proper advertising and a discharge of the administrator secured, and since the attorney for the estate admitted unpaid debts, and with the Holz mortgage on this property on that date still unpaid and open on the record, it was undoubtedly true that this property was not free and clear of all encumbrances.

Whether or not arrangements could have been made to clear up all indebtedness of S. D. Ray, provide for the payment of the Holz mortgage and protect the purchasers (the plaintiffs) from the possibility of loss or damage by reason of any kind of encumbrances, and no matter what may have moved the plaintiffs to refuse to negotiate such possible arrangements, they had the right under the law, as the court sees it, to refuse to accept the deed and pay the balance of the consideration if the property was not free and clear of all encumbrances on June 1, 1926, when the deed was tendered.

This case is so clearly controlled by Ford v. Hedley, 62 Pa. Superior Ct. 380, that we think it needs no further discussion.

And now, to wit, May 5, 1927, after due consideration and for the reasons above set forth, the motion of plaintiffs for judgment for want of a sufficient affidavit of defence is hereby sustained and' judgment is directed to be entered against the defendant, Harriet Ray Smith, and in favor of Walter Cohen and Max Kalin for the sum of $500, with interest from June 1, 1926, with costs.

From S. D. Get tic, Bellefonte, Pa.


author: Berger, J.

text:
    Paul v. Hargey.

      Practice, C. P. — Striking off statement of claim — Improper affidavit— Act of May 28, 1923.

    1. Under the Act of May 23, 1923, P. L. 325, a motion to strike oft a statement of claim stops the running of the fifteen-day period during which a defendant is required to file an affidavit of defence under penalty of judgment by default.
    2. Where the facts set forth in the plaintiff's statement of claim are affirmatively stated and purport to be founded on the plaintiff’s own knowledge, the affidavit in verification of the statement must be absolute in form, and not merely to the best of plaintiff’s knowledge and belief.
    Appeal from judgment entered by an alderman. Motion to strike off statement of claim. C. P. Schuylkill Co., May T., 1924, No. 688.

      J. W. Moyer, for plaintiff; M. H. Spicker and Roger Prosser, for defendant.
   Berger, J.

In this case, the defendant regularly moved to strike off the plaintiff’s statement of claim, and has filed no affidavit of defence. On Sept. 13, 1926, the plaintiff moved for judgment for want of an affidavit of defence. The latter motion is premature and of no effect, because an attack upon a statement of claim, under section 21 of the Practice Act, 1915, as amended by the Act of May 23, 1923, P. L. 325, is strictly a preliminary proceeding and it operates as a quasi-stay of proceedings in respect of pleading to the merits of the claim. In other words, a motion to strike off a plaintiff’s statement stops the running of the fifteen-day period during which a defendant is required to file an affidavit of defence under penalty of judgment by default. See Sulzer v. Gross, 1 D. & C. 719; Lowenstein v. McGowan, 5 D. & C. 5.

The motion to strike off the plaintiff’s statement of claim, which is signed by her attorney, is founded on the fact that the plaintiff, in her affidavit to the statement of claim, merely states that the facts set forth therein “are just, true and correct to the best of my (her) knowledge and belief.” The facts set forth in the plaintiff’s statement of claim are affirmatively stated and purport to be founded upon her own knowledge; consequently, the affidavit of the plaintiff for the verification of the statement of claim was required to be in the form of an affirmative declaration, absolute in form, and not qualified, as is the case here: Dayhoff v. Masland, 29 Dist. R. 393; Cohen v. Snyder, 30 Dist. R. 1008.

For the reasons stated, the motion to strike off plaintiff’s statement must be sustained, and the rule for judgment for want of an affidavit of defence is dismissed.

And now, Feb. 21, 1927, the plaintiff’s statement of claim is directed to be stricken from the record, and the rule for judgment for want of an affidavit of defence is discharged.

From M. M. Burke, Shenandoah, Pa-