author: Broomall, J.,

text:
    McKee v. Halase.

      Chester City — Party-walls—Porch—Ornamental or special construction.

    1. The party-wall system Is applicable to the City of Chester.
    2. The purpose of party-walls is to afford economy of space and protection against fire, and that they may be beneficial to owners of adjoining tenements.
    3. The party-wall rule does not extend to porches or one-story buildings for ornamental or special use.
    Motion by defendant to vacate decree pro confesso. C. P. Delaware Co., June T., 1920, No. 700.

      A. D. MacDade, for plaintiff; H. E. Hannum, for defendant.
    July 5, 1921.
   Broomall, J.,

The bill of the plaintiff in this case avers that she and the defendants are owners of adjoining houses on the east side of said McIlvaine Street, eighty feet south of Seventh Street, in the City of Chester, and that the defendants have built a porch in front of their house, with a foundation-wall extending to the width of four inches on the plaintiif’s property. The bill prays for relief against this encroachment and for the removal of the encroaching wall. The bill was duly served on the defendants, and, no answer having been made thereto, a decree pro confesso was entered in favor of the plaintiff and against the defendants on Dec. 8, 1920. On Dec. 22, 1920, the defendants presented their petition to vacate the said decree, averring ignorance of their rights, and averring that they have a defence thereto. A hearing was had on this petition, wherein it was made to appear that the houses of the plaintiff and defendants were built some years ago by the then owner of both of them, who established a party-wall between the houses. The then owner conveyed the houses to different persons, making the line of the middle of the party-wall the dividing line between them. These titles have come down to the parties in this case. The houses were made to recede a certain distance from the street. The defendants have built a porch in front, one story high, with cellar underneath, and have supported it by a wall on the side adjoining the plaintiff, extending on her land four inches, claiming the right to do so as a party-wall.

We are of opinion that the defendants are entitled to relief from the decree pro confesso, provided they have a defence. And this presents the question now before the court, whether they have any defence, or, more concretely, whether the wall of the porch is a party-wall.

The party-wall system is a rule of property in Pennsylvania, wherever it is made to apply directly by legislative action or indirectly by municipal action under authority of legislative action: Jackman v. Rosenbaum Co., 263 Pa. 158.

Does the party-wall system apply to the City of Chester?

The supplement to the act incorporating the Borough of Chester of April 6, 1850, P. L. 346, in its 12th section, empowers the borough council “to make permanent rules relative to . . . party-walls.”

By the General Borough Law of April 3, 1851, P. L. 320, boroughs are empowered to make all needful regulations as to party-walls. This act applies to boroughs thereafter incorporated. The Borough of Chester has long since been incorporated. In its 33rd section, it provides that boroughs theretofore incorporated might come under the provisions of the act by application to the Court of Quarter Sessions. We are not informed whether such an application was made.

By the Act of Feb. 14, 1866, P. L. 30, the Borough of Chester was incorporated as the City of Chester, and the laws and ordinances of the Borough of Chester were extended to the City of Chester.

By the Act of April 2, 1867, § 1, el. 5, P. L. 677, the mayor and council are empowered to make all needful regulations respecting party-walls.

By the Act of April 3, 1867, P. L. 696, the building inspector is empowered to enter upon lands to regulate party-walls. Section 14 prescribes the width of party-walls. Section 15 prescribes that party-walls shall be built ten inches above the roof.

By the Act of May 23, 1889, art. v, § 3, cl. 44, P. L. 294, cities of the third class, to which Chester belongs, are authorized to enact ordinances to regulate party-walls.

Therefore, we conclude from this legislation that the party-wall system is applicable to the City of Chester as a rule of property.

It also seems that what is meant by a party-wall in this system is a wall which extends ten inches above the roof. The purpose of party-walls is to afford economy of space and as a protection against fire. The protection against fire is only subserved by extending a party-wall above the roof. The theory of party-walls is that they may be mutually beneficial to owners of adjoining tenements; but where one owner builds one-story tenements by way of ornament, or for the special use of his property, it by no means follows that his neighbor will desire to build such ornamental structures, or even useful adjuncts. We are of opinion that the foundation-wall of a one-story front porch is not a party-wall to which the system applies.

Being of opinion that the defendants have presented no proof showing that their rights have been invaded by the decree in this case, we refuse their motion to vacate the decree.

We withhold proceedings against the defendants as for a contempt for later action.

From A. B. Geary, Chester, Fa.


source: Caselaw Access Project

author: Evans, J.,

license: Public Domain

text:
    Wagner v. Wagner.

      Divorce — Deputization of sheriff of another county — Return of n. e. i. by him invalid — Necessity of return of n. e. i. by sheriff of county in which suit is brought.

    The sheriff of the county in which an action of divorce is brought cannot adopt the return of n. e. i. of the sheriff of another county whom he has deputized. He must make such return himself in order to make a valid return after he has made diligent search in his own county and certifies that the respondent cannot be found therein.
    Divorce. C. P. Allegheny Co., July T., 1920, No. 883.

      Robert R. Elder, for libellant.
    April 15, 1921.
   Evans, J.,

The subpoena in this case was issued on May 10, 1920, and the same day the sheriff of this county endorsed upon that subpoena as follows: “I hereby deputize the Sheriff of Beaver County, Penna., to serve the within writ, this 10th day of May, 1920.” For a return of the subpoena the Sheriff of Allegheny County returns as follows: “For return of subpoena, see sheriff’s return hereto attached, by Sheriff of Beaver County. So answers W. S. Haddock, Sheriff of Allegheny County.” Attached to the subpoena is an affidavit of George S. Niver, who makes affidavit that he is deputy for Charles R. Anderson, Sheriff of Beaver County, and that the subpoena was placed in his hands for service, and that he made diligent search and inquiry for the respondent in Midland, Beaver County, Penna., up to and including July 5, 1900, which was the return-day of the writ.

This is not a return of n. e. i. of this writ, and the publication of the sheriff’s proclamation on the return of n. e. i. to an alias writ did not amount to a service on the respondent. The fact that the respondent could not be found in .Beaver County is not material in a divorce case brought in Allegheny County. In order to make a return of n. e. i. effective, that return must be made by the Sheriff of Allegheny County. I cannot see how the Sheriff of Allegheny County could make proof of a diligent search for the respondent in this case, for he did not have possession of the writ from the day it was issued until after the return-day of the writ, so that he could not say that he had made diligent search for the respondent in Allegheny County and that he could not be found. A divorce cannot be granted under the present condition of the record. It is returned in order to give the libellant, if she so desires, an opportunity to complete the service and proceed in the cause.

And now, April 15, 1921, this record is returned to the prothonotary’s office, as it is not in proper shape for disposition, there not having been any service upon the respondent.

From Edwin B. Mattern, Pittsburgh, Pa.


author: Martin, P. J.,

text:
    Hampton v. Leach.

      Contracts — Sale of real estate — Exchange of properties — False representation of condition of vendor’s property — Affidavit of defence — Failure of vendee to inspect property.

    In ai suit for damages for the breach of a written contract for sale of real estate by plaintiff to defendant, the affidavit of defence and supplemental affidavit averred that the contract set out in the statement of claim was only part of the entire agreement, which provided also for a sale and conveyance of defendant’s real estate to plaintiff; and that the agreement was entered into solely upon the plaintiff’s representation that his property, which defendant did not have an opportunity to examine previously, was in good condition; but that defendant examined it as soon as possible after executing the agreement, and it was so defective in construction and workmanship that defendant canceled the agreement immediately. Various defects in plaintiff’s property were specified; but no warranty of the condition of plaintiff’s property was alleged, nor that any of the terms of the agreement were omitted from the written contract by fraud, accident or mistake; nor was there any charge that constraint was exercised by plaintiff, or any explanation of defendant’s failure to examine before buying the property. Defendant made no effort to carry out the exchange of properties, and tendered no conveyance: Eeia, the affidavits were evasive, contained conclusions of law, and were insufficient; but, as the parties agreed to exchange properties, damages should not be assessed until they had opportunity to carry out the agreements or the amount of plaintiff’s damages was duly determined.
    Rule for judgment for want of a sufficient affidavit of defence. C. P. No. 5, Phila. Co., June T., 1921, No. 5509.

      Saul, Ewing, Remick & Saul, for plaintiff.

      Klauder & DuBois, for defendant.
    Oct. 25, 1921.
   Martin, P. J.,

Suit was instituted to recover damages for the breach of a written contract for the sale of real estate.

Plaintiff is the owner of a house and lot, No. 1309 Arrott Street, in the City of Philadelphia. On June 11, 1921, he executed an agreement to sell, and the defendant agreed to buy, the property for the sum of $10,500, subject to a mortgage of $5000. One thousand dollars was to be paid at the signing of the agreement, and settlement to be made on or before July 11, 1921. Time was to be the essence of the agreement.

The statement of claim avers that plaintiff has at all times since the execution of the agreement been able, ready and willing to comply with its terms, and did on July 11, 1921, tender to defendant a deed for the premises duly executed and acknowledged, but that defendant refused to comply with the terms of the agreement and to pay the balance of the purchase money.

The affidavit of defence admits the execution of the agreement of sale by the defendant, and that he refused to accept a conveyance of the property or pay the balance of the purchase money, but alleges that the agreement upon which suit was brought was only a portion of the agreement entered into by the parties, they having simultaneously entered into another agreement, a copy of which is attached to the affidavit of defence, whereby plaintiffs agreed to purchase from defendant, and defendant agreed to sell to plaintiff, premises Nos. 2949 and 2957 Ella Street and No. 2517 East Firth Street upon the terms and conditions therein set forth; but that both of the agreements were entered into solely upon the representation of the plaintiff that his property, No. 1309 Arrott Street, which the defendant had not had an opportunity to examine at the time the agreements were executed, was in good condition, but which, upon examination made at the first opportunity after executing the agreements, proved to be so defective in construction and workmanship that defendant immediately notified plaintiff that the agreements were canceled.

The affidavit denies that plaintiff has been ready and willing to comply with the terms and conditions of his agreement, and while denying that plaintiff tendered a deed on July 11, 1921, duly executed and acknowledged, admits that plaintiff came to defendant’s place of business on that date and during business hours offered him a folded paper, the nature and character of which defendant does not know.

The affidavit further alleges defendant refuses to take title to the premises he agreed to buy because “the house is grossly defective in construction and workmanship and not according to the representation of plaintiff at the time of the execution of the agreement,” and for the further reason that the two agreements “form an entire and inseparable contract, a performance under one agreement depending entirely upon a performance under the other.”

After a rule for judgment was entered, a supplemental affidavit of defence was filed, in which it is alleged that on or about June 11, 1921, the plaintiff and defendant entered into a certain oral agreement, in which plaintiff agreed to convey to defendant No. 1309 Arrott Street, and defendant agreed to convey unto plaintiff Nos. 2949 and 2957 Ella Street and No. 2517 East Firth Street; that the oral agreement was one and indivisible agreement between the parties, and for further evidence plaintiff and defendant simultaneously executed and signed the two writings appearing as exhibits to the statement of claim and affidavit of defence; that the purpose of the oral agreement was to exchange the properties of the plaintiff for the said properties of the defendant. By the terms of the oral agreement, plaintiff agreed to accept the conveyance of the properties of defendant in full payment and satisfaction for the conveyance by the plaintiff of premises No. 1309 Arrott Street to the defendant, and the plaintiff agreed to pay defendant $500 in addition on or before July 11, 1921, being the difference between the purchase price of $9500, less the mortgage upon the property of $5000, and $5000, which was a consideration named in the writing annexed to defendant’s affidavit of defence; that plaintiff, in the oral agreement, represented the premises No. 1309 Arrott Street to be in first-class condition as to the construction thereof and as to the interior thereof, and that defendant, in making the oral agreement and in signing the paper writing relied upon, believed the representations made by the plaintiff and was induced to make the oral agreement and sign the said papers by reason of the representations, and without such representations would not have made the agreement or signed the said writings; that at the time, June 11, 1921, he had not examined the premises No. 1309 Arrott Street or seen the interior thereof, nor had any opportunity to so examine the premises, but subsequently to June 11, 1921, examined the premises and discovered that the representations, respecting the premises, made by the plaintiff were false, untrue and fraudulent and not in accord with the construction and condition of the premises No. 1309 Arrott Street; that the rear wall was cracked, of poor construction, incompletely pointed and in bad condition, and the interior of the premises not in first-class condition, but in bad condition, the ceilings being improperly supported, the plaster thereon broken and fallen from the ceiling in places, and the entire interior of the building in bad condition of repair, and the premises not in first-class condition as represented by the said plaintiff.

There is no allegation in either of the affidavits of defence that there was a warranty as to the condition of plaintiff’s property, or omission of any of the terms of the agreement from the written contract by fraud, accident or mistake. It is alleged that plaintiff made representations as to the condition of his property, and in general terms that “defendant was not in a position to examine the property,” but there is no charge of constraint exercised by plaintiff or attempt made to explain why defendant’s eyes were not his bargain.

It is not alleged that the agreements were executed upon the faith of a promise made by plaintiff which he failed to carry out, but that there was reliance upon representations in relation to the condition of the property which could have been verified by inspection.

No effort was made to carry out the exchange of properties, and there was no tender of conveyance by defendant.

The affidavits are evasive, contain conclusions of law, and are insufficient to prevent the entry of judgment.

The parties having agreed to exchange properties, damages should not be assessed until opportunity is afforded to carry out the agreements, or the amount of damages to which plaintiff is entitled is duly determined.

And now, to wit, Oct. 25, 1921, the rule for judgment is made absolute; no damages to be assessed until further order of the court.


author: Gummey, J.,

text:
    Levick’s Estate.

      Jurisdiction, O. C. — Real property in other jurisdictions.

    It Is a well established rule of law that the disposition or alienation of real estate is governed by the law of the place where the property is situated. The Orphans’ Court of Philadelphia County, therefore, is without jurisdiction to' make a decree authorizing or restraining the trustees under the will of a deceased resident of Philadelphia from making conveyance of real estate in New Jersey in violation, as alleged, of their duties to the trust.
    Petition and answer. O. C. Phila. Co., Oct. T., 1921, No. 565.

      Bruce A. Metzger, for petitioner; Edmund Bayly Seymour, Jr., for trustees.
    Dec. 23, 1921.
   Gummey, J.,

This testator in the year 1915 purchased certain premises at Ventnor, New Jersey, consisting of a lot of ground with a cottage erected thereon; subsequently, in 1916, he purchased an unimproved lot adjoining, and the question which we are asked to decide is whether the testator intended to include the unimproved lot in the following devise:

“Third, I give and devise to my wife, Mary Emma Levick, my cottage and plot of ground on which it is erected at Ventnor, New Jersey, in fee simple.”

The testator was a resident of Philadelphia County, Pennsylvania; his last will was duly probated in this jurisdiction, and letters testamentary thereon granted to the executors therein named, whom the will also appointed as trustees of so much of the residuary estate as the testator bequeathed in trust.

The matter comes before us upon petition of a cestui que trust interested in the residuary estate, averring that the trustees are about to convey their interest in the lot to the above named devisee, Mary Emma Levick, for the sum of $1, and praying that they be perpetually restrained from executing a deed therefor, &c., to which the trustees made answer admitting these allegations, and praying “that they may be hence dismissed from this action.”

Why the trustees should voluntarily assume a responsibility not imposed, upon them by the will and be willing to convey the lot for a nominal consideration, without having the question whether it is included in the devise first determined by a court of competent jurisdiction, does not appear. Certainly the question admits of considerable doubt, and should it ultimately be held that the lot passed under the residuary clause of the will, the trustees would subject themselves to a surcharge. If the land were in Pennsylvania, the boundaries of the plot conveyed by the devise could be determined by an application to this court under section 34 (a) of the Fiduciaries Act of June 7, 1917, P. L. 447, and perhaps the laws of the State of New Jersey contain a similar provision; but it is a well established rule of law that the disposition or alienation of real property is governed by the law of the place where the property is situated, and no order which we might make would be conclusive of the question or binding upon the New Jersey court having jurisdiction over the county in which the lot is located. See, generally, Kessler v. Kessler, 3 Pa. C. C. Reps. 522; Martin’s Estate, 1 Dist. R. 167, and 40 Cyc., 1385, where the rule is well stated.

The petition is dismissed for lack of jurisdiction to determine the question raised, and without prejudice to the rights of any party in interest.


author: Henderson, J.,

text:
    Wilson’s Estate.

      Executors — Counsel performing duties of executor — Fees.
    1. Where an estate was much involved and required the constant attention of counsel, who performed many of the functions of the executor, greatly to the benefit of the estate, counsel may be compensated for services not strictly professional.

      Commissions — Executor dying before completing administration.

    2. When a deceased executor had partially administered the estate with the assistance of counsel, his estate was allowed commissions at less than the full rate of 5 per cent.
    Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1914, No. 646.

      Samuel J. Taylor, for exceptions.

      Daniel A. Stewart and F. J. Shoyer, contra.
    Nov. 18, 1921.
   Henderson, J.,

The record in this estate discloses an unusual state of affairs, in that the estate of the deceased accountant has been allowed full commission at 5 per cent, when he did not complete the administration nor make any distribution under the will. Indeed, it is difficult to determine from the record just what he did do.

The estate was very involved, it needed the constant advice of counsel, it needed sound business judgment, and it would be extremely difficult to draw a line and say where the legal assistance began and ended. From the testimony it appears that counsel practically performed the functions of the executor, and the estate has greatly benefited therefrom. We are not prepared to say when the estate has profited from such services beyond those strictly legal in character, that counsel may not be compensated therefor. See Knight’s Estate, 20 Dist. R. 788; Lancaster’s Estate, 14 Phila. 237, and Parry’s Estate, 188 Pa. 38.

The record is remitted to the learned auditing judge with his consent, to take further testimony as to what services were performed by the deceased executor and consider what commissions should be allowed to his estate in view thereof, and in view of the fact that he did not complete the administration, also to consider what the compensation of counsel should be, taking into consideration such services beyond those strictly legal in character, as have benefited the estate.


author: Hassler, J.,

text:
    Reinfried v. Heiss.

      Trespass — Practice—Minority of plaintiff — Affidavit of defence — Practice Act of May Ik, 1915.

    In an action of trespass, the minority of the plaintiff cannot be taken advantage of by the defendant on a trial upon the merits of the case, but should be raised by affidvait of defence under the Practice Act of May 14, 1910, P. L. 483, a's it formerly should have been raised by a plea in abatement.
    Rule for judgment for defendant n. o. v. C. P. Lancaster Co., Oct. T., 1920, No. 27.

      John A. Nawman, for rule; F. Lyman Windolph, contra.
    July 2, 1921.
   Hassler, J.,

This is an action of trespass to recover damages for injuries sustained by reason of the defendant’s negligence. At the trial, on April 26, 1921, it appeared that the plaintiff was a minor, and would not be twenty-one years old until June 21, 1921. The defendant asked for binding instructions in his favor for this reason, which request we refused. We are now asked to enter judgment for the defendant n. o. v.

We do not think the defendant is entitled to judgment n. o. v., as the minority of a plaintiff cannot be taken advantage of at a trial of a case on its merits. In Heft v. McGill, 3 Pa. 256, it is decided that infancy is not a ground for non-suit, which is the same as affirming a request for binding instructions by a defendant, but must be pleaded in abatement. Any matter which should be raised by a plea in abatement is waived if the defendant pleads to the merits of the question involved. To the same effect are Machette v. Musgrave, 1 Phila. 186; Stimmel v. Miller, 8 Pa. C. C. Reps. 128; Union Type Foundry v. Kittanning Ins. Co., 138 Pa. 137; Stoever v. Gloninger, 6 S. & R. 63.

While pleas in abatement have been abolished by the Act of May 14, 1915, P. L. 483, provision is made in the act for disposing of questions which form-were raised by such pleas. Section 3 of the act provides that pleas in abatement, etc., and all other pleas, are abolished, and that defences heretofore raised by them shall be made in the affidavit of defence. Section 20 provides that the defendant may in the affidavit of defence raise any question of law without answering the averments of fact contained in the statement of claim, and the question of law so raised may be set down for hearing and disposal by the court. If, in the opinion of the court, the decision of such question of law disposes of the whole or any part of the claim, the court may enter judgment or permit another affidavit of defence to be filed.

Whether a minor can recover damages for injuries in an action of trespass is a question of law. Formerly it must have been raised by a plea in abatement, but as such pleas are abolished, the question must be raised now in an affidavit of defence to be disposed of in actions of assumpsit before an affidavit denying the matters of fact averred in the statement is filed, and in actions of trespass before going to trial of the case on its merits.

In Wilson v. Adams Express Co., 72 Pa. Superior Ct. 384, it has been decided that a defendant need not file an affidavit of defence in an action of trespass under section 13 of the Practice Act, because it is provided there that the averments of fact upon which the plaintiff relies to establish liability and the averments relating to damages claimed, or their amount, need not be answered or denied, but shall be deemed to be put in issue in all cases unless expressly admitted. It is not decided in that case that a question of law, such as was formerly raised by plea in abatement, should not be raised by an affidavit of defence, as provided in section 20, to which we have already referred. That section 20 refers to actions in trespass as well as actions in assumpsit is shown in section 1 of the act, which provides that the act shall apply to actions of assumpsit and trespass. All of its provisions, therefore, apply to actions of trespass unless they are expressly excepted in the act itself. Such exception is made in the 13th section, as decided by the Superior Court in Wilson v. Adams Express Co., 72 Pa. Superior Ct. 384, only as to affidavits of defence denying the facts upon which plaintiff relies to recover and the averments as to damages in actions of trespass. We are satisfied that the minority of the plaintiff in this case could not be taken advantage of on a trial upon the merits of the case, but should have been raised in an affidavit raising a question of law, which takes the place of a plea in abatement.

The rule for judgment n. o. v. is, therefore, discharged.

From George Ross Eshleman, Lancaster, Pa.


author: Heck, P. J.,

text:
    Potter’s Expense Account.

      Election law — Expense account — Where account must be filed — Act of March 5, 1906.

    Where a candidate for the president judgeship of the 17th Judicial District, consisting of Union and Snyder Counties, resides in Snyder County, he need not file his expense account in Union County. If he does so, the court will treat it as a nullity and no audit can be based upon it.
    Act of March 5, 1906, § 6, P. L. 78, 80, considered.
    Rule to show cause why a petition requesting an audit of a candidate’s election account should not be set aside. Q. S. Union Co., Jan. T., 1922, No. 1.

      A. A. Leiser, for petitioning electors.

      Charles P. Ulrich, P. B. Linn and James F. McClure, for Miles I. Potter.
    Nov. 22, 1921.
   Heck, P. J.,

55th judicial district, specially presiding,

It appears that at the primary election held Sept. 20, 1921, there were four candidates seeking the nomination on the Republican ticket for the office of President Judge of the 17th Judicial District, comprising the Counties of Union and Snyder. Two of the candidates reside in Union County, and two in Snyder County; one of whom of the last named county was Miles I. Potter, the successful candidate at the primary election.

As required by the Act of March 5, 1906, P. L. 78, enacted to regulate the primary expenses of candidates for office, Mr. Potter filed on Oct. 5th, in the Court of Quarter Sessions of Snyder County, his expense account, and on the 8th day of the same month he filed a copy of the same account in the Court of Quarter Sessions of Union County.

A petition, signed by six citizens and electors, residents of Union County, was filed in the Court of Quarter Sessions on Oct. 28th, under the provisions of the said Act of 1906, praying for the appointment of an auditor to examine the account of Mr. Potter.

On Nov. 10th Mr. Potter obtained from the Court of Quarter Sessions of Union County a rule to show cause why the petition requesting an audit of his account should not be set aside. The rule was returnable Nov. 16, 1921, at 10 o’clock A. M., when a hearing on it was to be had. On the return-day of the rule an answer was filed by the petitioning electors, and the case we now have for disposition arises from the facts as presented by the petition and answer.

A number of questions have been raised by the records, the principal one being: does the law require Miles I. Potter, a resident of Snyder County, as a candidate at the primaries for the office of President Judge of the 17th Judicial District, to file his expense account in the Court of Quarter Sessions of Union County?

As bearing on this question, we refer to the 6th section of the act above mentioned, the 2nd paragraph of which reads as follows: “Every such account, concerning expenses incurred by, or in regard to, candidates for offices to be voted for by the electors of the State at large, shall be filed with the Secretary of the Commonwealth, and every such account concerning expenses incurred by, or in regard to, candidates for other offices, shall be filed with the Clerk of the Court of Quarter Sessions of the several counties where such candidates may respectively reside: Provided, that if any account concerns expenses in regard to candidates who do not all reside in the same county, such accounts shall be filed in each county in which any such candidate (not being a candidate for an office to be voted for by the electors of the State at large) resides.”

This is the paragraph of the act that determines the place for filing accounts. An examination of it discloses that if the account is to be filed in Union County, the authority for so doing must be found in the proviso of the paragraph quoted.

In construing the Act of 1906 it must be borne in mind that in specifying who must file expense accounts, “candidates” and “treasurers” of a political committee or persons acting as such treasurer are only mentioned. In designating the place where accounts are to be filed, the legislature has kept this classification in view. Accounts relating to “officers to be voted for by the electors of the State at large” are to be filed with the Secretary of the Commonwealth; when “concerning expenses incurred by, or in regard to, candidates for office,” the same language is used in the following clause in defining who shall file accounts for other offices. It is very evident that by the language used the legislature intended to refer to the two classes of accountants just mentioned the words “expenses incurred in regard to candidates,” referring to accounts of “treasurers of committees or persons acting as such treasurers,” and the other words to candidates for office.

Now, in examining the proviso, we see that this distinction regarding the two classes of accounts is no longer observed, but only such accounts as “concerns expenses in regard to candidates” are provided for.

It would seem very clear, then, that the account to which the proviso applies is treasurers of committee accounts, and not accounts of candidates.

The 6th section being the only one of the act that refers to the place of filing accounts, it follows that the act does not authorize Mr. Potter to file his account in Union County, and being there without any mandate of law, it is there as a mere nullity.

In considering the petition of the electors of Union County for an audit of Mr. Potter’s account, we assumed that the petition is filed in time and is regular in form.

The 9th section of the act under consideration, which provides for audit of accounts, reads: “That within twenty days after the last day for the filing of any account required by this act,” &c. Since the right to demand an audit •can only be exercised with reference to an account required by the act, the petition must be set aside for want of an account to which it may apply.

The answer of the electors raises the objection that the rule was not awarded at a regular session of the court, and so could be made returnable only to a regular term and not to the time set by the order granting the rule. By reason of this it is contended that it is not ripe for hearing. It appears, however, that this exception does not correctly recite the facts on which it is founded.

The minutes of the court below show that the court on Nov. 10th was an adjourned one from Oct. 22nd, and while the minutes do not disclose that any business was transacted at that time, the clerk states in open court that a regular session was held, that business was transacted of which he took notes, but had not yet transcribed them on the minutes.

Under these facts, the correctness of which we have no reason to doubt, a lawful court was in session on Nov. 10th which issued the rule under consideration, and, under Rule No. 165 of the Courts of Union County, it was properly returnable on Nov. 16th.

Other questions have been raised by the answer, which we do not consider require particular notice at this time. From what we have said, we think the rule should be made absolute.

It is, therefore, ordered and decreed that the rule to show cause why the petition filed by the electors of Union County, praying for an audit of the expense account of Miles I. Potter, filed in Union County, should not be set aside, is made absolute.

From Cloyd Steininger, Lewisburg, Pa.


author: McPherson, P. J.,

text:
    Johnston v. Glazier.

      Contracts — Sale of real estate — Tender of price — Ejectment by buyer— Tender must be accompanied by demand for a deed in form required by the contract.

    1. The buyer of land must tender the seller the purchase money stipulated In the contract and demand a deed conforming to the contract in order to lay ground for ejectment against the seller.
    2. It is not a good tender if the buyer demand a deed signed by the seller and his wife, when the wife did not sign the contract of sale and refuses to sign the deed.
    Ejectment. Motion by defendant for judgment n. o. v. C. P. Fulton Co., Oct. T., 1919, No. 6.

      John P. Sipes, for plaintiff.

      John B. Jackson and Walter K. Sharpe, for defendant.
    June 22, 1921.
   McPherson, P. J.,

In the above entitled cause the plaintiff brought suit against the defendant in ejectment, based upon an article of agreement entered into between the plaintiff and the defendant, whereby the latter agreed to convey to the former a certain lot of ground, situate in Ayr Township, Fulton County, Pa., for the consideration of $700. The defendant at the time of the execution of these articles was a married man, and his then wife is still living. Shortly after the articles were executed the defendant informed the plaintiff that his wife was not willing to join in a deed for the property. This refusal on the part of the wife has been persisted in by her from that time to, and including, the time of the trial of this suit, and is not the product of collusion with or persuasion by the defendant.

At the trial of the cause the court directed the jury that, as a matter of law, the plaintiff was entitled to recover against the defendant, and directed a general verdict in favor of the plaintiff and against the defendant, and refused to charge, as requested by the defendant, that under the evidence the verdict of the jury should be for the defendant.

Upon a verdict being rendered as directed by the court, the defendant moved for judgment n. o. v., and at the time of the argument of this motion contended that the court erred in directing a verdict in favor of the plaintiff and refusing defendant’s request for binding instructions because the tender made by the plaintiff to the defendant prior to the bringing of the suit was not a sufficient tender, it being made with the demand and on the condition that the defendant should deliver to him a deed for the plot of ground agreed to be sold, executed by himself and his wife, which demand exceeded his rights resulting from the agreement itself. The plaintiff at the argument presented no brief and made no argument.

It is clear that under the article of agreement in this case the plaintiff was entitled merely to a deed to the property described therein, executed by the defendant alone, and that it was only such title that the plaintiff had a right to demand and to sue for under the article. In other words, under the agreement, he was entitled to a deed from the defendant alone, and not from the defendant and his wife: Burk’s Appeal, 75 Pa. 141; Stratford v. Lukens, 52 Pa. Superior Ct. 355.

This being an action of equitable ejectment, it also seems clear that prior to, and as a condition of, bringing the action the plaintiff was obliged first to do equity and offer to perform the covenants imposed upon him by the agreement in return for the rights which the agreement secured to him. In cases like the present this required a tender on the part of the plaintiff to the defendant of the purchase money due in return for the execution and delivery by the defendant of a deed for the land in question: Minsker v. Morrison, 2 Yeates, 344; Gore v. Kinney, 10 Watts, 139; Bell v. Clark, 111 Pa. 92; Orne v. Kittanning C. Co., 114 Pa. 172; Dwyer v. Wright, 162 Pa. 405.

This rule is applied to this action in law because of the Pennsylvania practice to administer equity through the forms of common law.

From the evidence it is clear that the only tender made by the plaintiff prior to the bringing of the suit was a tender of the purchase money due, upon demand and condition that the defendant deliver a deed for the property in question executed by himself and his wife. As this demand was beyond his rights under the agreement, it was a tender- subject to a condition which he had no right to impose upon the defendant under the agreement, which did not do equity nor put the defendant in default upon his refusal of the tender. In Clarke v. Seirer, 7 Watts, 107, Gibson, C. J., says: “If the vendee consent to take such title as the husband can give, it is agreed the coverture will not stand in the way of performance.' But thus far entitling himself to it by performance on his own part, he must professedly go for no more. If he tender the price, demanding an entire execution of the contract (the joinder of a wife in the execution of a deed), it may be rejected for having been tendered on a condition he is not entitled to enforce.”

The tender, therefore, was not such as would put the plaintiff in a position to sue.

Under this view of the law the court erred in directing a verdict in favor of the plaintiff and in refusing to charge, as requested by the defendant, that, under all the evidence, the verdict should be for the defendant. We, therefore, in order to correct this error, hereby direct that a judgment in favor of the defendant be entered, notwithstanding the verdict of the jury rendered in this case..

And now, June 22, 1921, let judgment be entered in favor of the defendant.


author: Hargest, P. J.,

text:
    Commonwealth v. Harry F. Murphy Co., Inc.

      Taxation — Corporations — Capital stock tax — Manufacturing — Act of June 1, 1889.

    A corporation engaged in the business of assembling, producing and installing heating and ventilating systems is not engaged exclusively in manufacturing, and is not, therefore, exempt from the capital stock tax under the provisions of section 21 of the Act of June 1, 1889, P. L. 420. It is immaterial that the corporation has the charter right to manufacture the machinery, devices and materials incidental to the business in which it is engaged, for exemption is extended only to corporations engaged exclusively in manufacturing.
    Appeal from settlement by the Commonwealth of capital stock tax. C. P. Dauphin Co., Commonwealth Docket, 1920, No. 78.
    William I. Schaffer and George E. Alter, Attorneys-General, and Frank M. Hunter, Deputy Attorney-General, for plaintiff.

      Joseph V. Somers (of Philadelphia), for defendant.
    Sept. 12, 1921.
   Hargest, P. J.,

This case comes before us on an appeal from the settlement made June 23, 1919, by the Auditor General and State Treasurer, against the appellant company for the tax on its capital stock for the year 1918. A stipulation has been filed, dispensing with a trial by jury, pursuant to the Act of April 22, 1874, P. L. 109.

Facts.

The facts, which have been agreed upon, are as follows:

1. The Harry F. Murphy Co., Inc., a Pennsylvania corporation, was incorporated for the purpose of “conducting a general construction business, including the design, installation, alteration, repair, renewal and other construction of all kinds of heating, lighting, hoisting, ventilating, filtering, piping, plumbing, sewage, sanitary, power and other service plants, systems or conveniences, and the manufacture, purchase, sale and supply of all kinds of machinery, devices, materials and other things incidental to or necessary for such general construction work."

2. Since its incorporation, the appellant company has been exclusively engaged in assembling, producing and installing heating and ventilating systems according to the following method, namely: “The method of the company is to procure boilers, radiators, valves, piping and other necessary parts and assemble them in buildings of its patrons and customers. The company does not sell or use any of these parts separately, nor does it repair any plant by the installation of any part. The parts mentioned above are procured from different sources; that is, boilers and radiators are procured from one plant; valves from another; different kinds of valves from different plants; piping is procured from another plant. No one plant supplies all these parts. The company does not sell any of these parts as such, but puts them together in different combinations and installs them as one complete system. The company does not do any repair work, nor does it sell any of the above mentioned parts separately."

The company makes no heating or ventilating systems except to supply orders.

Discussion.

The question is whether the business carried on by the appellant corporation is exclusively manufacturing. The purpose of the corporation, as shown by its charter, includes manufacturing, but the corporation is not exempt from taxation unless its capital stock is actually and exclusively engaged in manufacturing during the tax year, as provided by section 21 of the Act of June 1, 1889, P. L. 420, 429, and the various amendments.

In the case of Com. v. J. Frank Boyer Plumbing and Heating Co., 30 Dist. R. 275, Judge Sadler, specially presiding in this court, after a careful examination of many authorities, concluded that a business precisely like the business of this appellant was not manufacturing. It is not necessary either to quote from his opinion or to cite other authorities. We can see no distinction whatever between the case of J. Frank Boyer Plumbing and Heating Company and this case. We conclude that the capital stock of the Harry F. Murphy Co., Inc., was not, for the tax year 1918, exclusively engaged in manufacturing.

We, therefore, find that the company is indebted to the Commonwealth as follows:

Amount of settlement....................................$83.70

Interest from Aug. 23, 1919............................... 10.27

Attorney-General’s commission............................ 4.69

Total.............................,................$98.66

And now, Sept. 10,1921, judgment is entered in favor of the Commonwealth and against the defendant company for the sum of $98.66, unless exceptions be filed within the time limited by law.

From William Jenkins Wilcox, Harrisburg, Fa.


author: Reibek, P. J.,

text:
    Keystone Pipe and Supply Co. v. Central Pipe and Supply Co.

      Foreign attachment — Quashing writ — Partnership—Failure to name members of firm — Amendment—Act of May U, 1852.

    1. A writ of foreign attachment against a partnership will not be quashed because of the failure to name the members of the firm as parties defendant.
    2. In such a case an amendment will be allowed under the Act of May 4, 1852, P. L. 574, so as to include the names of the partners.
    Rule to quash writ of foreign attachment. C. P. Butler Co., Dec. T., 1920, No. 53.

      John Hutchinson, for plaintiff; John R. Henninger, for defendant.
    July 15, 1921.
   Reibek, P. J.,

This cause is before us on motion on the part of defendant company to quash the writ and proceedings in the case because the affidavit showing cause of action is defective and the money was attached as the property of the defendant company, a partnership, and does not include the names of the individuals composing the partnership.

The respondent contends that there should be a general appearance for the defendant rather than an appearance de bene esse before the court takes cognizance of the matter in controversy.

While there is apparently not a universal practice throughout the courts of the State in relation to such appearance, dependent somewhat on the local court rule, yet such appearance must be recognized under the rule as stated in Turner v. Larkin, 12 Pa. Superior Ct. 284, 290, “that a party may appear specially for the purpose of stating an objection without thereby waiving it.”

The question primarily for our consideration relates to allowance of a petition for amendment by the plaintiff, as the same cures the defect raised by defendant. Under the Act of May 4, 1852, P. L. 574, “the court shall have power in any stage of the proceedings to permit amendments by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party.”

Inasmuch as the amendment does not change the defendant or bring new parties into court, but only names the partners as constituting the partnership, under these circumstances, in our opinion, it should be allowed and the motion to quash the writ must be refused.

And now, July 15, 1921, rule to show cause why the writ and proceedings in this case should not be quashed discharged, at costs of defendant.


author: Van Swearingen, P. J.,

text:
    Cunningham v. Cunningham.

      Divorce — Jurisdiction—Residence of libellant.

    In a divorce case, it is the residence of the libellant at the time the libel Is filed that determines the forum of the action.
    In Divorce. C. P. Fayette Co., March T., 1920, No. 421.

      John Duggan, Jr., for libellant.
    April 16, 1921.
   Van Swearingen, P. J.,

We are of opinion that a decree of divorce in this case must be refused because this court is without jurisdiction to grant it. The libellant is the wife, who alleges that her husband deserted her while the parties were living together at Masontown, in this county, and it is shown by the testimony taken before the master that, following the alleged desertion, the libellant left Masontown and went back to the home of her parents at Greensboro, which is in Greene County, where she resided for a little more than two years before filing her libel in this county.

By section 2 of the Act of March 13, 1815, 6 Sm. Laws, 286, it is provided that a libel for divorce must be presented to the judges of the Court of Common Pleas of the county wherein the libellant resides. In her testimony before the master the libellant said: “I am living in Uniontown at present.” Uniontown is the county seat of this county. But in her libel she alleged the place of her residence to be Greensboro, in Greene County; and her mother, when on the witness-stand at the hearing before the master, when asked where the libellant and her husband were living then, replied: “They are not living together; she is at Greensboro with me, and I believe he is at Mason-town.” And when asked where her daughter had resided and made her home since her husband deserted her, she answered: “Greensboro, Greene County, Pa.,” saying further, “she is working in a confectionery and post-office at Greensboro at present.”

It is not to be doubted, under the evidence, that the residence of the libellant still was at Greensboro at the time of the hearing before the master; but that is of no special importance. Her own allegation in her libel is that she was a resident of Greensboro, Greene County, at the time her libel was filed in this county. Therefore, the filing of her libel here gave us no jurisdiction of the case. The libel should have been filed in Greene County. It is the residence of the libellant at the time the libel is filed that determines the forum of the action. The Act of April 26, 1905, P. L. 309, does not reach this case: Eicher v. Eicher, 25 Dist. R. 972.

And now, April 16, 1921, for the reasons stated in the opinion herewith filed, a decree of divorce is refused and the libel is dismissed.

From Luke H. Frasher, Uniontown, Fa.


text:
    Davis’s Estate.

      Wills — Construction—Meaning of word “securities” — Gift to be construed according to context.

    Testator gave his trustees all his “stocks, honds and other corporate securities,” and the residue to his children. It was apparent from the context that the testator did not use the word “securities” in its technical sense, but as equivalent to "investments.” One of the assets of the estate was an account on the books of a land company, showing a sum of money due by it to testator: Meld, this debt was an investment and was included in the gift of “corporate securities” to the trustees.
    Adjudication. Account of Henry Lamont Davis, Eleanor Bushnell Cooke and Germantown Trust Company, executors. O. C. Phila. Co., April T., 1921, No. 460.

      Bevan A. Pennypacker (for Morgan, Lewis & Bockius), for accountants.

      James Collins Jones and John Stokes Adams, for Eleanor Bushnell Cooke.
    Aug. 1, 1921.
   Henderson, J.,

The testator died June 30, 1919, leaving a will duly probated July 15, 1919. . . .

Under paragraph four of his will the testator provided as follows:

“Item. I give, devise and bequeath to my Trustees hereinafter named, all my stocks, bonds and other corporate securities to be transferred to them by my Executors, as soon after my decease as it can conveniently be done.”

And in the next paragraph he further provided:

“Item. After the payment of all my just debts and the foregoing bequests, I give, devise and bequeath to my son, Henry Lamont Davis, and to my daughter, Eleanor Bushnell Cooke, share and share alike, all the rest, residue and remainder of my estate, consisting of real estate of whatsoever character and wheresoever situated, mortgages, life insurance, personal notes, cash and other property, excepting only thereout, nevertheless, the stocks, bonds and other corporate securities owned by me, and which I have bequeathed to my Trustees under the preceding items of this my Will.”

The inventory and account shows there was due him by the School Lane Land Company the sum of $133,227.81, of which the land company had a book account, a copy of which is annexed to this adjudication.

The question was submitted to me as to whether this asset belonged to the trustees or should be awarded under the residuary clause. The question is presented by the accountants as if this decedent owned a book account which, under Sloan’s Estate, 2 Del. Co. Reps. 309, and Stark’s Will, 134 N. W. Repr. 389, could be held to be a “security.” In Williams on Executors (11th ed.), 944, it is said: “In re Rayner (1904), 1 Ch. 176, Farwell, J., said that the word ‘securities’ had the well defined primary meaning of ‘money secured on property.’ ”

In Sloan’s Estate the book account existed on the books of a copartnership of which he was a member. Here, the account is on the books of the land company, and, so far as the decedent is concerned, is merely a debt due his estate. In the view I take of this question, it is not necessary to decide if a book account is a “security.”

In the sixth item of the will it is provided:

“Said trustees or a majority of them, and their successors, are authorized and empowered to sell any of the before-mentioned property or securities and to invest and re-invest as in their judgment shall be for the good of this trust; provided, however, that all and every purchase or sale in the execution of this trust herein declared shall require the sanction of the corporate trustee, and at least one other Trustee; they are authorized to buy and hold real estate, to sell and give title to the same without any responsibility upon the purchaser for the application of the proceeds thereof. In their investments it is my desire that they be conservative, but they are not bound to what are known as ‘legal investments’ for trusts.”

And in the last item of the will it is provided:

“The corporate trustee shall be the custodian of the securities and papers belonging to the Estate and Trust, but the other members shall have full and proper access for the examination of all books, accounts, papers and securities.”

The testator has not used the word “securities” in a technical sense. Prom the context I gather that he used this word in the sense of “investments.”

Corporate stocks are not securities in the technical sense: 2 Jarman on Wills (6th ed.), 1303. While the testator has enumerated all the kinds of property owned by him, none of the terms so used fits the indebtedness of the land company, unless the word security in the sense of an investment can be held to do so. When the testator confers the power of sale upon his trustees, he empowers them “to sell any of the before mentioned property or securities” and he then authorizes them “to buy and hold deal estate.” And he then adds: “In their investments it is my desire that they be conservative, but they shall not be bound to what are known as ‘legal investments.’ ” And after giving this broad power as to investments, including the purchase of real estate, he directs that the corporate trustee shall be the custodian of the securities. Here we have the term “securities” used to cover real estate, which, in turn, is authorized as an investment.

In re Rayner (1904), 1 Ch. 176, a will very similar to this one was construed. Therein the decedent, a broker, after giving a trust legacy, declared that “all moneys liable to be invested under this my will may be invested in such securities as my trustees in their absolute discretion shall think fit; and I authorize my trustees to continue or leave any moneys invested at my death in or upon the same securities.” In holding that the context showed the word “securities” to be used in the sense of investments, Lord Justice Vaughan Williams said (page 187):

“The question the court has to decide in this case is, What is the meaning of the word ‘security’ in this will?

“In my judgment, in this will the meaning of that word, or rather of the word ‘securities,’ is determined, for reasons which I will presently discuss, by the context of the will, and it is unnecessary, therefore, to discuss generally what is the meaning of the word ‘security,’ either its common and ordinary meaning at the date of the will, or what is the meaning of the words ‘strict and primary sense’ in Proposition II, in Wigram V.-C.’s Treatise on Extrinsic Evidence; for it is apparent from the context of this will that the testator has not used the word ‘securities’ in what Farwell, J., holds to be its ‘strict and primary’ sense — but in what may be called its ‘popular sense’— which I may observe is a sense in which I am of opinion, without the assistance of either dictionary or the evidence of commercial or other witnesses, it is applied habitually by those who have to deal with property transferable by the assignment of indicia of property, be they commercial men or noncommercial men, lawyers or laymen; and a sense in which it has been used daily in The Times since the year 1886, and in divers Acts of Parliament.

“Now, the reasons why I have formed this conclusion as to the meaning of the word ‘securities’ in this will are these. Take this passage in the will: ‘And I authorize my trustees to continue or leave any moneys invested at my death in or upon the same securities.’ I think that in this passage ‘the same securities’ obviously means ‘the same investments;’ and I think that the effect of using the words ‘moneys invested’ and the word ‘securities’ to cover the same subject-matter is not to narrow down or limit the natural sense of the words ‘moneys invested,’ but to extend what Farwell, J., considers to be the ‘strict and primary’ meaning of the word ‘securities,’ so as to cover anything which, according to the strict and primary meaning of the words ‘moneys invested,’ would be covered or connoted by those words; and, in my judgment, property in the shape of railway shares falls within the meaning, both of the words ‘moneys invested’ and of the word ‘securities.’ ”

A similar question arose In re Gent and Eason’s Contract (1905), 1 Ch. 386, 389, wherein Mr. Justice Farwell said:

“The testator has authorized his trustees to lay out and invest the moneys coming to their hands under the trust of his will in the purchase, or upon mortgage, of freehold or leasehold properties in England, or in or upon the Government stocks or funds, or in or upon debentures or preferential stock of the Great Western Railway Company, the Midland Railway Company, or the London and North Western Railway Company, or in or upon any other investments in or upon which trustees are for the time being authorized or empowered by law to invest trust funds, with full power to vary and transpose such securities for other securities of any of the descriptions hereinbefore authorized. Now, the Court of Appeal In re Rayner had to consider the meaning of the word ‘securities’ in an investment clause in a will, and Romer, L. J., says: ‘The word is a flexible one, and I recognize that it is largely used in a wider or different sense, and in particular is widely used as a synonym for ‘investments.’ ’ Now, it is quite plain to my mind that in the present case the testator has used the word ‘securities’ as a synonym for ‘investments;’ he authorizes his trustees to invest in preferential stock of three railway companies and speaks of other trustee investments, and then authorizes the variation of such securities for any of the securities before authorized. Railway preference stocks are not ‘securities’ and ‘security’ as interchangeable terms. It is clear, therefore, reading the word ‘securities’ as synonymous with ‘investments,’ that there is here a trust to invest moneys in the purchase or mortgage of land, or in or upon the preference stock of railway companies, or in or upon any other investments allowed by law to trustees, with a power to vary and transpose such investments for other investments of a like nature; and I have no doubt that, under this power to vary and transpose ‘such securities,’ i. e., ‘investments,’ the trustees are authorized to resell real estate that they have purchased as an investment. I do not share Mr. Fellows’s horror as a conveyancer that the will has not the usual trust for reconversion of purchased real estate. It is only reasonable to suppose that a testator would not authorize his trustees to convert his own real estate as they thought fit if he did not at the same time give them a like power to turn back into personalty that which was made realty by their act under the investment clause. There will be a declaration that the trustees have power to sell the purchased freeholds and to give a good discharge for the purchase money. The purchasers must pay the costs of this summons.”

I, therefore, reach the conclusion that when the testator gave to his trustees “all my stocks, bonds and other corporate securities,” he used the word “securities” in the sense of “investments,” and as this debt due from the land company is a corporate investment, it should be awarded to the trustees.

There was no objection to the account, which shows a balance of principal, after the payment of pecuniary and specific bequests, of $952,828.40, of which stocks, bonds and corporate securities, in accordance with this adjudication, are awarded to be retained by the accountants as trustees for the uses and purposes declared by the testator’s will, and the balance then remaining is awarded to be divided equally between Eleanor Bushnell Cooke and Henry Lamont Davis.....

NOTE. — Exceptions were filed but subsequently withdrawn.

And now, Aug. 1, 1921, the account is confirmed nisi.


author: Gest, J.,

text:
    Wagner’s Estate.

      Wills — Construction—Trusts—Gift for life with remainder to those whose “remaining” shares are “then” held in trust — Accruing shares include only those going to living legatees.

    Testator bequeathed an estate in trust, with power of appointment in the cestms gue trust, and" a limitation over on the death of any of them, without leaving either appointment or issue, “in trust, as well as respects his or her original share, or any share which shall afterwards have accrued to him or her under the provision of this clause of my will, to hold or assign and transfer the same to the use of such persons and for such estates as the remaining shares shall then be holden by the said trustee.” A, one of the cesVuis gue trust, died without issue or a valid appointment, and leaving only three of the original legatees surviving: Held, that the fund must be awarded back to the trustee for the use of those legatees who were living at the death of A, and whose “remaining shares” were then “holden by the said trustee,” thus excluding from the distribution the appointees or issue of the original legatees who died before A.
    Exceptions to adjudication. O. C. Phila. Co., April T., 1885, No. 430.
    Testatrix bequeathed a fund in trust, in ten equal portions, for designated persons, for their lives respectively: “And after the decease of the said tenants for life respectively in trust to assign his or her share to such person or persons as he or she shall appoint by Will and in default of such appointment to such of their children as may then be living in equal parts and shares. But if he or she should die without any issue living at the time of his or her death, then in trust as well as respects his or her original share, or any share which shall afterwards have accrued to him or her under the provisions of this clause of my will, to hold or assign and transfer the same to the use of such persons and for such Estate as the remaining shares shall then be holden by the said Trustees.”
    “In case any of the above named persons shall die before me, without issue, in such manner as otherwise would create by law a lapse of his or her share, then my said Trust Estate shall be taken to be divided into a proportionate less number of shares, and all the foregoing trusts and limitations shall apply as fully and in all respects as if such less number of shares had originally been set forth herein.”
    The present accounting concerned one of the ten shares, the cestui que trust of which, A, died after making an appointment of her share, which was, however, ineffective. She left no issue. At the time the account was filed, six of the other original ten cestuis que trust had died, all of whom had either appointed their respective shares under their respective wills or left issue, and there remained living the cestuis que trust for three shares, one of whom died before the audit, appointing her share. The auditing judge held that the gift of the share in question “for the use of such persons and for such estates as the remaining shares shall then be holden by the said Trustees,” could apply only to the three shares held by the trustee after the death of A, the cestui que trust of this share; and he accordingly awarded one-third of such share to the appointee of the legatee who died after A, and the remaining two-thirds to the trustees to hold in trust for the living original cestuis que trust. Exceptions were filed by the appointee under the will of an original cestui que trust, who died before A, and who claimed that the fund should be divided among the nine original shares, including the children and appointees of all who died before A.

      Bronte Greenwood and Charles Hunsieker, for exceptants.

      Charles Myers, contra.
    Dec. 2, 1921.
   Gest, J.,

Notwithstanding the earnest argument presented in behalf of the exceptants, we are entirely satisfied with the adjudication of the auditing judge. There is, it may be conceded, no doubt that the word “remaining” would, prima facie, mean “other,” and refer to the shares of those cestuis que trust who survived the testatrix, but the limitation over on the death of any of them, in default both of testamentary appointment and of issue, is “in trust as well as respects his or her original share, or any share which shall afterwards have accrued to him or her under the provisions of this clause of my will, to hold or assign and transfer the same to the use of such persons and for such estates as the remaining shares shall then be holden by the said trustee.” We are of opinion that these last words are controlling, and that the fund was properly awarded to the trustee for those legatees who were living at the death of Florida Innes [A], and whose “remaining Shares” were “then holden by the said trustee.” No contrary construction can be based on the reference in the will to accrued shares. That clause may apply, and was doubtless intended to apply, in case of the death in the future of any of the survivors without appointment and without leaving issue, and cannot reasonably be construed as referable to a share that would not, according to the theory of the exceptant, “accrue” to a legatee until after his death. If that had been the intention of the testatrix, she would certainly have expressed it with particularity, but, in order to adopt the argument of the exceptants, we should be required to rewrite her will.

We do not consider it necessary to add anything further to the careful adjudication of the auditing judge, and accordingly the exceptions are dismissed and the adjudication is confirmed absolutely.


author: Moser, J.,

text:
    Manufacturers’ Supplies Company v. Moyer.

      Practice Act, 1915 — Affidavit of defence — Sufficiency.
    1. Under the “Practice Act, 1915,” P. L. 483, an affidavit of defence must be specific, a clear, orderly and specific statement of the facts relied on by the defendant, and answer specifically all allegations of fact in the statement of claim.
    2. It is now an essential part of the pleadings and limits the admission of evidence on the part of the defendant to the issues raised thereby. Oversights may be cured by a supplemental affidavit.
    Rule for judgment for want of a sufficient affidavit of defence. C. P. Northumberland Co., Feb. T., 1921, No. 209.

      W. H. Unger, for relator; Albert Lloyd, for respondent.
    June 28, 1921.
   Moser, J.,

In the opinion filed by Judge Stewart in the case of Krajnetz v. Milwaukee Mechanics’ Ins. Co., tried in Northampton County and reported in 27 Dist. R. 362, it is said: “The plaintiff filed a statement, setting forth that she owned a certain frame dwelling-house which was insured by the defendant company against loss by fire to an amount exceeding $2000; that on Feb. 10, 1917, a fire occurred, resulting in a total loss; that she gave defendant notice of the loss, and in all respects complied with the terms of the policy; that she demanded payment of the said $2000, and the defendant refused to pay her. The defendant filed an affidavit of defence which contains eight paragraphs. The first, second and fifth paragraphs are mere admissions of the truth of certain paragraphs of the statement. The fourth and seventh paragraphs are denials of certain paragraphs. The third, sixth and eighth paragraphs are as follows: ‘Third. For answer to paragraph third of plaintiff’s statement, the defendant says that it has been advised that a fire occurred upon said premises, but has no knowledge of the date of said fire, but it denies that the loss of the plaintiff, if any, was in the sum mentioned in said paragraph. Sixth. Defendant admits that no part of said insurance money has been paid, either to the plaintiff or any one else, but it is denied that the sum of two thousand dollars ($2000), or any other sum, is justly due and owing to the plaintiff from the defendant on said policy. Eighth. Defendant denies that the plaintiff has made demand on it for the said sum of two thousand dollars ($2000), or any other sum, and admits that it has not paid the same or any part thereof.’ It will thus be seen that no one reading the affidavit of defence could possibly obtain any intelligent idea of what the defence was, and the plaintiff would be utterly unable to properly prepare her case. The ‘Practice Act, 1915,’/ P. L. 483, provides as follows: ‘Section 5. Every pleading shall contain, and contain only, a statement in a concise and summary form of the material facts on which the party pleading relies for his claim or defence, as the ease may be, but not the evidence by which they are to be proved, or inferences or conclusions of law/ &c. ‘Section 8. It shall not be sufficient for a defendant in his affidavit of defence to deny generally the allegations of the statement of claim, or for a plaintiff in his reply to deny generally the allegations of a set-off or counter-claim, but each party shall answer specifically each allegation of fact of which he does not admit the truth, except as provided in sections 7 and 13. Section 12. . . . The affidavit of defence shall be as brief as the nature of the case will admit/ &c. Since the passage of the Practice Act, a number of courts have decided that the affidavit of defence must be specific. See Fulton Farmers’ Ass’n v. Bomberger, 34 Lanc. Law Rev. 325; Scranton Flour and Grain Co. v. Maier, 18 Luzerne Legal Reg. 466; Pennsylvania R. R. Co. v. Milling Co., 18 Luzerne Legal Reg. 467. It is scarcely necessary to cite authorities as to what was required in cases like the present prior to that act. In Moore v. Susquehanna Mutual Fire Ins. Co., 196 Pa. 30, it was held: ‘An affidavit of defence should contain a clear, orderly and specific statement of the facts relied on by the defendant to prevent judgment; merely general averments, or those which raise mixed question of law and fact, are insufficient. Inferences or conclusions of law are for the court, and if it is desired that they should be drawn in favor of the defendant, the court should be put in possession of the facts from which they are to be drawn.’ In King v. The Security Co., 241 Pa. 547, it was held: ‘Where the affidavit of defence in such action contained nothing but a general denial that the contractors had broken their contract so as to render defendant liable, and stated no facts which constituted an adequate defence, judgment was properly entered for plaintiff for want of a sufficient affidavit of defence.’ ”

In the case of Ruth-Hastings G. T. Co. v. Slattery, 266 Pa. 288, the Supreme Court say: "Section 16 of the Practice Act of May 14, 1915, P. L. 483, provides that ‘neither party shall be permitted at the trial to make any defence which is not set forth in the affidavit of defence or plaintiff’s reply, as the case may be,’ except where the action is trespass or the defendants are fiduciaries. This section has worked a wise and vital change in practice, though some of the profession do not seem to appreciate it. Except where court rules provided otherwise, the only purpose of an affidavit of defence under the prior law was to prevent summary judgment. Under this section, however, it is an essential part of the pleadings, and the court below should refuse to admit evidence upon any issue not raised thereby. The provision for amendments gives ample opportunity for the curing of oversights.”

Under these authorities and many other eases in which the courts have construed and commented upon the provisions of the Practice Act, such as Gorman v. Elfreth, 27 Dist. R. 90; Freidburg v. Seeherman, 27 Dist. R. 972; Herron v. Florence Presbyterian Church, 27 Dist. R. 1025; Berko v. Kemper Construction Co., 65 Pa. Superior Ct. 589, it is quite clear that in this proceeding the rule must be made absolute. The defendant is hereby allowed fifteen days from the date of the filing hereof to file a supplemental or amended affidavit of defence.

From C. M. Clement, Sunbury, Pa.


author: Henry, P. J.,

text:
    Meirowsky Brothers v. McAllister.

      Conversion — Bills of lading — Possession necessary to conversion — Duty of agent not in possession of goods purchased for principal to execute hill of sale to principal.

    1. There cannot be conversion of personal property without actual or constructive possession.
    2. Where defendant as agent bought goods upon order of plaintiff and delivered the evidence of title, viz., the bills of lading, to the party recognized by plaintiff in all the prior purchases as the one to whom they were to be delivered, and whose signature was necsesary to transfer the title to, and possession of. the goods to the plaintiff, if this party refuses to endorse such bills of lading, defendant is not guilty of conversion in refusing afterwards to execute a bill of sale for the goods to plaintiff.

      Corporations — Authority of officer to execute hill of sale.

    3. There is no implied authority in a secretary and treasurer of a corporation to execute bills of sale, nor is there any established custom from which as a matter of law he has such general authority.
    Motion for judgment non obstante veredicto. C. P. No. 5, Phila. Co., Dec. T., 1919, No. 1361.

      M. Wolf, for plaintiffs; H. 3. Scott, for defendant.
    Nov. 14, 1921.
   Henry, P. J.,

52nd judicial district, specially presiding,

The plaintiffs in this suit seek to recover the market value of certain mica, paid for by them and alleged to have been illegally converted by the defendant. The alleged act of conversion consisted in refusing to execute bills of sale or other documents showing ownership of the goods in question in the plaintiffsv-

The plaintiffs made a formal offer of the facts they proposed to prove, and» the defendant admitted these facts to be true. The defendant made a forma® offer of the facts he proposed to prove, and the plaintiffs admitted these facts to be true. This left no disputed questions of fact for the jury. Both sides asked for binding instructions. That for the plaintiff was affirmed, with the suggestion that it was no intimation of the opinion of the court upon the question at issue. Under these instructions, the jury returned a verdict in favor of the plaintiff for $13,734.45, being the value of the goods and interest; and the defendant now moves for judgment non obstante veredicto upon the whole record.

The plaintiffs, who were German subjects, although residing and doing business in this country for a number of years, were importers and dealers in mica and manufacturers of mica goods, and, owing to the war, were not allowed to import mica in their own names from England or on English vessels. An arrangement was made by the plaintiffs with the Mica Products Company, a corporation of which the defendant was secretary and treasurer, under which, for a commission of 2i per cent., said company agreed to buy and import mica upon the order of the plaintiffs, the said plaintiffs meeting payments when and as required of the Mica Products Company. Under this arrangement numerous purchases of mica were made in England by the Mica Products Company for the plaintiffs, extending from early in 1916 to late in the year 1917. The goods were shipped upon consular invoice with bill of lading attached, consigned to the British consul, care of the Philadelphia National Bank, oh account of the Mica Products Company, Inc., of Philadelphia, and the accompanying bills of lading were to the joint order of the British consul at New York and the Mica Products Company. The Philadelphia National Bank paid for the mica in funds provided by the plaintiffs and delivered the bills of lading to the Mica Products Company, by whom they were endorsed and forwarded to the British consul in New York for his signature. Upon endorsing the bills of lading, the British consul returned them to the Mica Products Company at Philadelphia, by whom they were delivered to the plaintiffs, and they, the plaintiffs, then secured the goods at the custom house upon surrender of the bills of lading. This was the course followed in the dealings of the parties and under their arrangement up to the time of the receipt of the five shipments of mica which are the basis of this suit, and the course of dealing here was the same up to the receipt of the bills of lading by the British consul. This official refused to endorse the bills of lading, but retained them in his possession at New York, awaiting instructions from his superiors in England. With the bills of lading, endorsed by the Mica Products Company, in the hands of the British consul in New York, the plaintiffs requested the defendant to execute bills of sale to them for the mica, or to «execute other documents showing their ownership of the mica. This request was refused, and plaintiffs contend this refusal was a conversion by the defendant and makes him liable for the value of the goods. On Jan. 17, 1918, the defendant severed his connection with the Mica Products Company as an officer and stockholder, and on Jan. 22, 1918, he notified the plaintiffs in writing that he had resigned as director, secretary and treasurer of the Mica Products Company, and that he had been succeeded by J. A. Rogers. On Feb. 28, 1919, three of the five shipments of mica in question were delivered to Watson Brothers, of Massachusetts, by order of the War Trade Board of the United States and the British consul at New York. The War Trade Board of the United States assumed no control over the mica until Jan. 21, 1918. The defendant never had physical possession of the mica, nor was it under his personal control.

The position of the plaintiffs is untenable for several reasons. First, the defendant did not have possession of the goods in question, and possession is essential to a conversion. The goods were in the custom house at Philadelphia. The evidence of title to the goods, the bills of lading, was in the possession of the British consul at New York. It is true there may be a constructive possession, and the defendant here might be said to be in constructive possession of the goods if he had the bills of lading in his possession and refused to deliver them to the party entitled to them. But the defendant had delivered this evidence of title to the party recognized by the plaintiffs in all their prior dealings as the one to whom they were to be delivered, and as the one whose signature was necessary to transfer the title to and possession of the goods to the plaintiffs. The evidence clearly establishes that the demands by the plaintiffs for bills of sale or some evidence of ownership were not made until after the bills of lading had been endorsed by the Mica Products Company and were in the hands of the British consul at New York. At the time of the demands, then, there was no actual possession and no constructive possession of the goods by the defendant, and, consequently, there could have been no conversion by him. This would seem to be a sufficient answer to the claim of the plaintiffs. Another controlling reason is that no authority in the defendant to execute bills of sale has been shown. While it is true that in the course of dealing between the plaintiffs and the Mica Products Company the defendant endorsed the bills of lading for the company, and this might lead to the inference that he had authority to make these endorsements, such inference could go no further than to indicate that he had authority to do this act. There is no implied authority to execute bills of sale in a secretary and treasurer, nor is there any such established custom from which a court could say judicially that secretaries and treasurers of corporations have general authority to execute bills of sale. As a matter of fact, the execution of papers of that character is usually left to the president of the corporation.

Under the evidence in this case, even the Mica Products Company could not be required to execute bills of sale with the outstanding bills of lading endorsed, making them negotiable and transferring ownership in the mica from hand to hand by mere delivery of the bills of lading. The best and, under these facts, the only evidence of title to the goods was the bills of lading endorsed by the Mica Products Company and the British consul. The Mica Products Company had done all that could be required of it under the arrangement with the plaintiffs. The effect of executing bills of sale to the plaintiffs, with the negotiable bills of lading outstanding, subject to endorsement and delivery by the British consul to some one other than the plaintiffs, might have placed the Mica Products Company in a position where they would be liable to two parties. As a matter of common justice, if the Mica Products Company received payment for the mica from the party to whom it was delivered through the agency of the British consul, then the Mica Products Company should account to the plaintiffs for either the amount received by them from the party to whom the goods were delivered or for the amount originally paid by the plaintiffs for this mica; but whatever dereliction of the Mica Company there might be, it could not be chargeable to the defendant, who was its secretary and treasurer, and this is especially true in view of the fact that he was not connected with the company at the time when the goods were delivered under the order of the British consul and the United States War Trade Board.

During the time of the transactions involved in this suit, the United States was at war with Germany, and, reading between the lines, the arrangement between the plaintiffs and the Mica Products Company would seem to have been a subterfuge to secure mica from England, or imported on English vessels, for German subjects. It may be that a defendant cannot under some circumstances take advantage of this condition, and yet, on the other hand, it may be that when it is necessary to show such arrangement in order to effect a recovery, that it would be regarded as illegal and contrary to public policy, and possibly, under the Acts of Congress, as a trading with the enemy. But it is not necessary to here rest the case, and for the reasons previously given, the verdict of the jury must be set aside and judgment entered for the defendant.

And now, to wit, Nov. 14, 1921, judgment non obstante veredicto upon the whole record is hereby entered in favor of the defendant. An exception to this action of .the court is hereby noted in favor of the plaintiffs.


text:
    Com. ex rel. Moses v. Dauphin County Commissioners.

      Election laws — Nominating petition — Defects ascertainable by examination— County commissioners — Right to reject nomination — “Independent Republican Party” — Acts of June 10, 1898, July 9, 1897, and July 9, 1919.

    1. The county commissioners to whom any nomination paper is brought are required by the Act of June 10, 1893, P. L. 419, and the amendments of July 9, 1897, P. L. 223, and July 9, 1919, P. L. 832, to examine the same for manifest defects, and where such defects appear the paper should not be filed. This examination is not limited to the detection of such defects as are apparent upon the face of the paper itself, but must include search for any failure to comply with the requirements of the Constitution and laws of the Commonwealth.
    2. The county commissioners properly rejected a petition for the nomination of a candidate for office under the designation “Independent Republican Party” in a district where the "Republican” party had already regularly nominated candidates for the same office. The fact that the name “Independent Republican Party” had been regularly pre-empted without objection is immaterial.
    Petition for mandamus. C. P. Dauphin Co., Sept. T., 1921, No. 237.

      J. Dress Pannell, for relator.'

      William H. Earnest, County Solicitor, contra.
    Oct. 24, 1921.
   Hargest, P. J.,

The relator presented his petition for mandamus, setting out that on Oct. 10, 1921, within the time prescribed by law, he presented to the defendants a nomination paper specifying that the Independent Republican Party or policy had nominated him for the office of Alderman of the 7th Ward of the City of Harrisburg, which nomination paper was signed by approximately seventy-five qualified electors of said ward, being more than the requisite number of signers prescribed by law; that each of said signers had added his or her place of residence, profession, business, occupation and the date of signing said petition, and that the same was accompanied by a certificate from the Prothonotary of Dauphin County, setting forth that the political appellation “Independent Republican” had been pre-empted in that office; that no objections to the said nomination paper have been made or filed in this court and with the county commissioners, but that the defendants had refused to file the said nomination paper.

The answer admits most of the allegations of the petition, but says: “That the commissioners refuse to file said nomination petition on the ground that it is manifestly defective, because the appellation of ‘Independent Republican’ is nearly akin to the appellation ‘Republican,’ a political appellation used by a political party entitled to have a name and place on the ballot, and the respondents are advised and aver that they have no legal right to print on the ballot the name of the petitioner, William S. Moses, as a candidate of the ‘Independent Republican Party’ for Alderman of the 7th Ward of the City of Harrisburg.”

Section 6 of the Act of June 10, 1893, P. L. 419, as amended by the Act of July 9, 1897, P. L. 223, and further amended by the Act of July 9, 1919, P. L. 832, provides, in part, that “It shall be the duty of the officer or officers to whom any nomination paper is brought for the purpose of filing, to examine the said paper, and if it lack sufficient signatures or be otherwise manifestly defective, it shall not be filed; but the action of said officer or officers in refusing to receive such paper may be reviewed by the Court of Common Pleas of the county, upon an application for mandamus to compel its reception as of the date when it was brought to the office. All nomination papers which have been filed shall be deemed to be valid, unless objections thereto are duly made by writing filed in the Court of Common Pleas of the county in which the paper objected to has been filed.”

The Act of July 9, 1919, P. L. 855, amending section 3 of the Act of June 10, 1893, P. L. 419, as amended by the Act of July 9, 1897, P. L. 223, provides that five electors by an affidavit properly filed may adopt “a certain political appellation to designate their policy, subject to the limitations of this act regarding the selection of names;” and section 2 of the Act of July 9, 1897, P. L. 223, amending section 4 of the Act of June 10, 1893, P. L. 419, provides: “That no words shall be used in any nomination papers to describe or designate the party or policy, or political appellation, represented by the candidate named in such nomination papers as aforesaid, identical with the words used for the like purpose in certificates of nominations made by a convention of delegates or primary meeting of electors or caucus held under the rules of a political party . . . which at the last preceding election polled 2 per centum of the largest vote cast.”

The word “Republican” used in the nomination paper in question is identical with the appellation “Republican” used by a political party entitled to have a name and place on the ballot. The question, therefore, is, whether, in the absence of any objections to the pre-emption of the name “Independent Republican Party” or to the nomination paper in question, the county commissioners may reject and refuse to file this paper because of the identity of the name.

“It is the duty of the Secretary of the Commonwealth to receive and file every certificate of nomination or nomination paper that is legal on its face. He has no authority to hear and determine controverted questions of law:” Com. ex rel. Goyne v. McAfee, 9 Dauphin Co. Reps. 183.

The same duty devolves upon the county commissioners with reference to certificates of nomination or nomination papers presented to them for filing. So it has been held that where two certificates purport to come from the same political party, each representing a faction, and each faction claiming the right to use the party name, the Secretary of the Commonwealth cannot determine which certificate is the proper one, but must receive both: Com. ex rel. Leonard v. Reeder, 5 Dist. R. 600.

“The Secretary of the Commonwealth cannot refuse to receive and file a nomination paper because, in his opinion, it contained a nomination for the office of senator for a district which did not exist:” Com. ex rel. Goyne v. McAfee, 9 Dauphin Co. Reps. 183.

It is settled by many decisions of this court, construing the provisions of the law above quoted, that the Secretary of the Commonwealth may reject a certificate of nomination or nomination paper only when the defects are ascertainable “by examination, computation and inspection,” and that “he deals wholly with obvious defects:” Com. ex rel. Montfort v. Fuller, 7 Dauphin Co. Reps. 263.

Is the use of the word “Republican” in this instance, which is forbidden by the statute, such an obvious defect, ascertainable by examination of the paper itself, as to justify the commissioners in refusing to file the paper? In the case of Lamb’s and Fenton’s Nomination Petitions, 251 Pa. 102, nomination petitions were filed in 1915 for the office of mine inspector when such office could only be voted for in even-numbered years.. A petition was filed, praying the court to set aside the nomination on the ground that no such nomination could be legally made at the fall primary in 1915. In discussing the question the court below, whose opinion is affirmed in a per curiam., said: “The petition of Mr. Lamb is complete in that it conforms to every requirement of the law respecting signatures, residences, occupations, dates of signing, affidavits, etc., to the extent of filling every blank space on the printed petition, but its avowed purpose is to have his name printed on the official ballot to be used at the fall primary for the year 1915. We consider this a material error or defect apparent on the face of the petition. It is material to the qualified voters of the fourth inspection district to nominate at the fall primaries persons for only such offices as the law provides shall be filled at the election to be held in November, 1915; and it is material to all taxpayers also that no expense be incurred in printing useless matter upon official ballots. As well might a candidate for governor or for the general assembly have his name printed on the official ballot for 1915. Were a petition for such a purpose presented to the county commissioners, they would surely refuse it. No one would be willing to incur the expense of a mandamus proceeding to compel compliance with his request to file such a paper with the county commissioners. The commissioners are bound to know that such petitions cannot be filed in their office.”

We think that this language is pertinent here. The county commissioners were required to inspect this petition for defects appearing upon its face. Upon such inspection it disclosed the use of the word “Republican,” which the law distinctly prohibits, because it is well known there is a party of that appellation which makes nominations, and had in this instance made a nomination for this same office. Such a defect can be ascertained from an inspection of the paper as readily as a failure to have the requisite number of signatures. It is no answer to say that the county commissioners would have to look elsewhere to ascertain whether another party had the right to use the word “Republican,” and could not ascertain that fact from an inspection of the paper itself. They have to look elsewhere to ascertain the required number of signatures. In each case they would have recourse to the records of their own office. The same objection might have been made in the case of Lamb’s and Fenton’s Nomination Petitions, 251 Pa. 102, where it would have been necessary to look elsewhere than on the petitions themselves to ascertain when mine inspectors are to be elected. In that case it was necessary to look at the Constitution and election laws, which plainly disclosed no election for mine inspectors in 1915. In this case it is necessary to look at the election law, which just as plainly discloses that the use of the word “Republican” in this petition is illegal; and if the county commissioners, in the language of the court below in the ease cited, were “bound to know that such a petition cannot be filed in their office,” they would be no less bound in a case such as this.

We do not think that any of the cases of this court to which we have been referred conflict with our conclusion. Great stress has been laid by counsel for the petitioner on the case of Com. ex rel. Montfort v. Fuller, 7 Dauphin Co. Reps. 263. In that case the Prohibition Party had made a nomination for the office of judge, but had not made a nomination for the office of representative in the general assembly. Subsequently some electors presented a nomillation paper, nominating a candidate for such representative, using the name of “Prohibition Party.” The Secretary of the Commonwealth refused to file this nomination paper, whereupon a petition for mandamus was presented. This involved a controverted legal question, and the court decided that the Secretary of the Commonwealth had no right to settle that question; but this case involves no such controverted question, either of fact or law. In his discussion in the ease of Com. ex rel. Montfort v. Fuller, 7 Dauphin Co. Reps. 263, 267, Judge Weiss says, with reference to the duty of the filing officer: “He is to look for defects arising from a lack of sufficient signatures to the nomination paper, or others arising from obvious non-compliance with statutory direction.”

For these reasons, we conclude that the county commissioners were right in refusing to file the nomination paper. The petition for mandamus is, therefore, dismissed, at the cost of the petitioner.

From William Jenkins Wilcox, Harrisburg, Fa.