author: Chase, P. J.,

text:
    Du Bois’s Appeal.

      Taxes — Assessment — Minerals — Forest reserves — Practice—Proof—Act of June 5, 1918.

    1. The Act ot June 5, 1913, P. L. 405, providing for the assessment and taxation of surface set aside as a forest reserve, does not affeot the mineral assessments or the method of proving the validity thereof or require greater proof to make out a prima facie case.
    2. Where the validity of the assessment is questioned, a prima facie case is made out by the county by offering the assessment records approved by the board of revision, together with evidence of coal operations on the property and in the vicinity, the amount of the prior assessment, and any changes which would affect its value, especially where the general effect of the taxpayer’s evidence is to corroborate the testimony on behalf of the county.
    Proceedings to fix assessment of mineral lands. C. P. Clearfield Co., Dec. T., 1926, Nos. 237-245, inclusive.

      Pentz & Pentz, for appellant; A. M. Liveright, for county.
    July 8, 1927.
   Chase, P. J.,

These are nine appeals by John E. DuBois, taken from tax assessments by the Tax Assessor of Sandy Township, each of those appeals relating to a different area of land in Sandy Township, and, on motion of Clearfield County, the nine appeals were consolidated and heard as one.

Prior to 1926, the lands in question were on the seated list, at which time they were transferred to the unseated lands because of certification from the Department of Forest and Waters that the lands were designated as an Auxiliary Forest Reserve. Prior to this transfer, due to the establishing of the auxiliary reserve, various warrants, or portions thereof, were assessed without any attempt to designate the assessment levied on the mineral rights and the assessment on the surface, but were assessed as a whole, but because of the provisions of the Act of June 5, 1913, P. L. 405, in regards to assessments of surface of auxiliary forest reserve land, it was necessary to separate the assessment levied on the minerals from the surface.

The assessment, prior to the separation, on the lands in question (see annual assessment Sandy Township for 1925, page 113) was $115,821. Under the present assessment, from which this appeal is taken, $44,620, or a reduction of $71,201 in the assessed valuation. The area of the land in controversy is 3600 acres, and the assessment, under the revision, on the surface is $1 per acre. Therefore, the natural conclusion follows that the assessor had assessed the surface of this land on an average of $20 plus an acre.

The appellant contends that the usual method of procedure to make out a prima facie case showing the validity of the assessments for mineral purposes does not apply in this case because of section 1 of the Act of June 5, 1913, P. L. 405. That portion of the act which has bearing upon this question raised reads as follows: “Provided, however, that if the said surface land be underlaid with coal, iron ore, oil, gas or other valuable minerals, said min-erais may be separately assessed,” or, in other words, the appellant contends that because of the aforesaid provision, the requirements, in order to create a prima, facie case of the validity of the assessment, are greater than if this act had no application. It is apparent that this contention of the appellant cannot be sustained. The act in question is an act to provide for the assessment and taxation of the surface set aside as an auxiliary forest reserve, and it is not the purpose or the intention of the act to in any way affect the mineral assessments, and the provision on which the appellant relies is inserted for the purpose of protecting or rather to clearly leave the procedure of assessment as it existed prior to said act. This is indicated by the act, wherein it provides, following the afore-recited clauses: “The assessors in the several districts in which said lands are situated shall assess such lands in the manner now or hereafter provided for the assessment of real estate for the purposes of taxation as if they had not been set apart as an auxiliary forest reserve,” etc. Therefore, in determining the fairness of the assessment involved in these appeals, the general principles recognized should be applied.

The county offered in evidence the assessment records in the county commissioners’ office as approved by the board of revision, together with the evidence of the assessor that there is a coal mine opened on a portion of the land in question; also evidence of coal being on all sides of the land, together with the evidence of coal operations in the immediate vicinity. The undisputed testimony of the assessor was also to the effect that the previous assessments, which, as has heretofore been stated, was almost three times in excess of the present appealed assessment, it being kept in mind that there is no substantial change in the property which in any way would affect the assessment, was to the effect that the appellant and the assessor years before had gone over a map showing the lands in question in the appellant’s office and that the appellant was satisfied with the assessment then made. This testimony made out a prima facie case of the validity of the assessment: Lehigh & Wilkes-Barre Coal Co. Assessment, 225 Pa. 272; Lehigh Valley Coal Co. v. Northumberland County Commissioners, 250 Pa. 515.

The county having made out a prima fade ease, the burden is on the appellant to show by the weight of the evidence that he was aggrieved by the valuation so fixed: Washington County v. Marquis, 233 Pa. 552.

The appellant’s testimony consists principally of engineers, whose testimony was to the effect that, although coal was operated in the vicinity of the lands in question, and there is a small area of the land in question where coal was opened and under operation, in their judgment, a great deal of the coal, or possibly all but about 150 acres, could not be successfully operated; that this was based upon their opinion from examination of the nature of the land and their knowledge of surrounding territory; however, that no drilling had been done or explorations to their knowledge. The testimony of the appellants also developed that the assessments made were about the average on minerals for holding purposes and that there was no market for the sale of minerals in the vicinity at this time. In passing, it may be noted that there has been no sale of coal as a body in the vicinity for years, and there was no way of determining what the coal rights under these lands would bring on the market, so that the assessment, of necessity, must depend upon the intrinsic value.

The sum and substance of the testimony of the appellant being in effect that a great portion of the coal was of such a character as would be unminable because of present conditions of the coal market and because of the faulty conditions of the coal, but due to the’fact that the land had not been explored, this testimony was of the opinion type.

The general effect of the appellant’s witnesses’ testimony is rather to corroborate the county as to coal being under the lands in question. As to the extent of merchantable coal or as to the coal of value, that is questionable and cannot be determined except by the proper exploration and investigation by way of drilling and prospecting. The method of determining the intrinsic value of the properties in question is the usual method applied in Clearfield County in determining what would be a fair assessment, and the only method known under the circumstances except by the method of drilling or prospecting, which would be so expensive as to be prohibitive on the part of the assessing powers.

A careful examination and consideration of. all the testimony leads the court to the conclusion that the assessments as made were fair, just and equitable to the appellant; that the assessed valuation is not unreasonable and is fully justified; that the testimony of the appellant, as a whole, tends to strengthen the presumption of the fairness of the assessment rather than weaken or overthrow the •prima facie case established. The court is fully convinced that the appellant has no reasons for complaint in this ease, and that to do otherwise than dismiss the appeal would work an injustice.

Now, July 8, 1927, each of the appeals in the eases involved herein, being Nos. 237 to 245, inclusive, of December Term, 1926, are dismissed, at the costs of the appellant. Exceptions noted and bill sealed to the appellant.

Prom John M. Urey, Clearfield, Pa.


source: Caselaw Access Project

author: Hassler, J.,

license: Public Domain

text:
    Scharf v. Pennsylvania Railroad Company.

      Railroads — Injury to passenger — Allegation of negligence in statement— Sufficiency of — Practice.
    1. Where a statement does not set forth such facts which, if proven, would enable the plaintiff to recover, or where they are stated vaguely or uncertainly, the proper procedure is a motion to strike it off.
    2. Where a passenger is injured by the breaking of a window of a car in which he is riding, not due to a defect, a presumption of negligence in the railroad company does not arise and he must allege and prove such negligence.
    3. The mere allegation in the statement that the accident was caused by the negligence of the railroad company is insufficient. The statement must set forth specifically what act of negligence caused the accident.
    Rule to strike off statement. C. P. Lancaster Co., Dec. T., 1925, No. 69.

      Zimmerman, Myers & Kready, for rule.

      Paul A. Mueller and John M. Groff, contra.
    April 16, 1927.
   Hassler, J.,

This is an application to strike off the plaintiff’s statement. Since the passage of the Act of May 14, 1915, P. L. 483, the proper proceeding where the statement does not state such facts which, if proven, would entitle the plaintiff to recover, or where they are stated vaguely or uncertainly, is a motion to strike off: Enlow v. Bank, 34 York Leg. Record, 110; Barto v. Shaffner, 26 Dist. R. 957; Ferraro v. Railroad Co., 34 Lanc. Law Rev. 403; Bollinger v. Gallagher, 29 Dist. R. 913.

In this case, the plaintiff in his statement sets forth that he was a passenger on a train operated by the defendant company and that “your plaintiff was being transported on defendant’s train as aforesaid, and had arrived just out of Lancaster, and was sitting in the smoker of the defendant’s train, when the window by his side was suddenly smashed and broken through the negligence, wilfulness and recklessness of the defendant, or its agent or employees."

It is the duty of a railroad company to use the utmost care which human knowledge, skill and foresight can provide to avoid injury to its passengers. Because of this duty, a presumption of negligence arises where a passenger is injured by reason of the breaking of machinery of transportation, collision, derailment of cars, or something improper or unsafe in the conduct of the business of the carrier or in the appliance of transportation.

But where a passenger is injured by the breaking of the window of a car in which he is riding, not due to a defect, there can be no recovery by the plaintiff without his proving that it was due to the negligence of the defendant company or its employees: Ginn v. Pennsylvania R. R. Co., 220 Pa. 552; Ault v. Cowan, 20 Pa. Superior Ct. 616; Delaney v. B. R. & P. R. R. Co., 266 Pa. 122; De Bouvier v. Pennsylvania R. R. Co., 264 Pa. 443; Wood v. Philadelphia Rapid Transit Co., 260 Pa. 481; Thomas v. Phila. & Reading Ry. Co., 148 Pa. 180.

If the plaintiff in this case relied for his right to recover on the fact that he was a passenger on the defendant company’s train, all that it would have been necessary for him to allege in his statement was that he was a passenger and was injured because of the breaking of machinery of transportation, by collision, by derailment of cars or by something improper or unsafe in the conduct of the business or in the appliances of transportation, and the negligence of the defendant company would have been presumed. But, according to his statement, he does not depend on his right to recover for any of these causes, but alleges that it was due to the negligence, wilfulness and recklessness of the defendant, or its agent and employees, in smashing or breaking a window near his seat. As he depends upon such negligence to recover, it is necessary for him to set forth the facts showing it, as is required in all actions where negligence is the basis of a plaintiff’s claim.

A statement which alleges that a defendant operated an automobile carelessly and negligently, without stating in what respect he so operated it, will be stricken off: Deitz v. Chemical Co., 29 Dist. R. 691; Collins v. Heibel, 2 Erie Co. L. J. 149. A plaintiff must set forth in his statement specifically what act of negligence of the defendant caused the accident: Mellinger v. Conestoga Traction Co., 39 Lanc. Law Rev. 443. A statement shall inform the defendant what acts of omission the plaintiff charges him with in an action of negligence so that the defendant can produce evidence at the trial to explain or deny the allegation of the statement. If the statement does not do this, but alleges negligence in general terms without particulars, it will be stricken off: Stick v. Grove, 6 D. & C. 683; Grumley v. Pellegrino, 4 D. & C. 205. Where a statement alleged that while the plaintiff was a passenger on a train it ran into a freight train, resulting in injury to the plaintiff, and “that the defendant was negligent in permitting [a collision] . . . and was otherwise careless, reckless and negligent in and about the operation of the train,” the statement was held insufficient in not setting out facts to show in what particulars the defendant was negligent: Diehl v. Railroad Co., 38 York Leg. Record, 49.

Under these authorities, the statement filed by the plaintiff in this case is defective, in that it does not set forth any particulars to show in what respect the negligence, wilfulness and recklessness of the defendant, or its agent or employees, caused the window to be suddenly smashed and broken through. We must, therefore, make absolute the rule to show cause why the statement should not be stricken off. From George Ross Eshleman, Lancaster, Fa.


author: Savers, P. J.,

text:
    Renckley v. Wisecarver.
    F erdict — 'Excessive.
    1. A verdict is not excessive -where it does not exceed the damages disclosed by-plaintiff’s evidence, if believed by the jury.

      Landlord and tenant — Lease—Notice to terminate — Evicpion—Damages.
    2. In an action for damages for unlawful eviction of plaintiff from leased premises, it is not error to charge that if no notice was given by defendant of his intention to terminate the lease, plaintiff was entitled to damages for injury done to his property by reason of its removal by defendant.

      New trial — After-discovered evidence.

    3. A new trial on the ground of after-discovered evidence will not be granted where the proposed new testimony is such as might have been produced at the' trial by the exercise of reasonable diligence.

      Trial — Admissions in pleadings — Reading to fury.

    4. Admissions in pleadings may be read to the jury.
    Trespass for wrongful eviction from leased premises. Motion for new trial. C. P. Greene Co., June T., 1920, No. 111.

      Harry Huffman, for plaintiff; T. H. Shannon, for defendant.
    May 16, 1927.
   Savers, P. J.,

This case was tried Dec. 8, 1924, before J. W. Ray, President Judge of Greene County at the time. A verdict was rendered Dec. 10, 1924, for plaintiff and against defendant in the sum of $900. A motion for a new trial was filed by defendant Dec. 12, 1924, alleging, as reasons therefor, that: (1) the verdict under the evidence is excessive; (2) the verdict is contrary to the weight of the evidence; (3) the court erred in permitting plaintiff’s attorney to read to the jury paragraphs one, two and four, or any other paragraphs of plaintiff’s statement of claim; ' (4) the court erred in its charge to the jury in permitting them to determine whether or not the renting of defendant’s house to plaintiff was a renting by the month or by the year.

An additional reason for new trial was filed Oct. 27, 1925, setting forth that “after the trial and the return of the verdict by the jury, she discovered the following evidence which she believes would have been sufficient to have changed the verdict of the jury; that this information came to her after the trial of the case, and she had no way or means of knowing the same before the trial, which is as follows:

“That M. D. Wood, a drayman, who resides in Waynesburg, Pennsylvania, was employed by the plaintiff to move his household goods into the property of defendant; that Mr. Wood moved same in one load in two small trucks of one-ton capacity.
“Defendant will be able to show by this witness that the furniture was inexpensive and showed considerable wear and abuse at the time same was handled by Mr. Wood; that the value of the goods moved by Mr. Wood for the plaintiff, and which were the basis of the damage awarded by the jury in favor of the plaintiff against the defendant in the above-styled case, would, on a fair estimate, not exceed $600.”

This matter was called for argument, after the present incumbent became . judge, at least three times, and finally the court took the papers without oral argument. At that time, Nov. 1, 1926, the court supposed that the testimony filed included the exhibits offered in evidence and the charge of the court.

On examining the papers, the court discovered that no exhibits were copied and no charge of the court was attached to the testimony and record. The present court, in the meantime, had appointed a new stenographer because of the unnecessary delay in transcribing records and general indifference of the stenographer who took the testimony in this case, and other cases, to the needs and requirements of the court. The court was not able to get a transcript of this charge until April 9, 1927, when the stenographer furnished the charge, attached to the testimony, to the court.

The court has examined the evidence and charge of the court and the reasons for new trial as filed.

We have concluded, under the circumstances and facts disclosed by the evidence, that the verdict was neither excessive nor contrary to the weight of the evidence. The evidence disclosed negligence, carelessness and a disregard of plaintiff’s rights by the defendant and her agents that would warrant the finding of punitive damages on the ground of wanton and malicious injuries; even if this were not so, the amount of the verdict is not in excess of the damages disclosed by the evidence of plaintiff’s witnesses, if believed by the jury. The court rightfully charged, as set up in the third point, that, “under the evidence in this case, the plaintiff is entitled to recover for all the losses he actually sustained or which he will necessarily sustain under the circumstances as a result of the unlawful eviction,” because the evidence disclosed that the eviction was unlawful.

The court rightfully charged the jury on the subject of eviction as follows; “Whether the contract under which they were operating was a contract from year to year, as seems to be indicated by the written agreement, or whether it was a contract by the month, as seems to be inferred by the views taken by the lessee, is uncertain. But, in either case, if it were a contract from year to year, then, in order to secure a legal removal of the defendant from the leased premises, it would be necessary to give three months' notice of such intention, the desire of the lessor to repossess the property leased. If it were only a lease by the month, then one month’s notice would be required. And, as we understand from the testimony, no notice whatever was given of the intention to oust the plaintiff in this case from possession of the property. We think the lessor was not justified in evicting the lessee in the way it was done. And that being true, then we say to you as a matter of law that whatever damages was actually done, and this suit has been brought for whatever damage was actually done to the property of the lessee in this building by the removal of it by Mrs. Wisecarver, or her agents, that to that extent she would be responsible in damages to the plaintiff in this case.”

There is no merit in the additional reason for a new trial which sets up after-discovered evidence. The action in this case was brought May 19, 1920, and the case was tried Dec. 8, 1924. M. D. Wood was the drayman mentioned as the additional witness from whom evidence would be produced to show that the furniture and goods belonging to the plaintiff had been moved by Mr. Wood presumably in August, 1918, and that, in his opinion, the goods were then worth about $600.

During all these years Mr. Wood lived in Waynesburg and the defendant knew that he was the man who had hauled plaintiff’s goods and property to the house which plaintiff leased from defendant, and defendant also knew that Mr. Wood resided in Waynesburg, was within easy reach of the court-house at any time, and that, under the circumstances of this case, it would have been the most natural thing in the world to have interviewed Mr. Wood with regard to the subject-matter. Reason and common sense would immediately point to him as a witness who would or should know something about the plaintiff’s goods and their value.

The defendant testifies in her depositions taken on Dec. 5, 1924, that she knew, and consequently her attorney knew, at that time, that M. D. Wood had moved the plaintiff’s furniture into the leased premises, and she and her attorney knew'then and could, in all probability, have subpoenaed and obtained the testimony of M. D. Wood during the progress of the trial of the case. Apparently they had not made any effort to interview him and discover what his testimony would be. The testimony of the plaintiff at page 23 indicates that Mr. Wood did not haul all the furniture to the leased premises, and it also shows that some furniture and goods were purchased after plaintiff originally moved into the house. The testimony, if we admit that it might have reduced the amount of the verdict, could have been produced at the trial by the exercise of due and reasonable diligence. That is what the law requires: Turnbull v. O’Hara, 4 Yeates, 446; Marsh v. Moser, 1 Woodward, 218; Reisch v. Furst, 27 Pa. C. C. Reps. 40; Gardner v. Hookey, 18 Lanc. Law Rev. 326; Com. v. Albert, 16 Dist. R. 759; First Nat. Bank v. Delone, 254 Pa. 409, 415; Goldstein v. E. Fallowfield Twp., 43 Pa. Superior Ct. 158, 167.

The evidence discloses that only paragraphs one and three of plaintiff’s statement were read to the jury, and not paragraphs two and four, as alleged in the fourth reason for a new trial. It was proper to read them to the jury as admissions that were not denied in the affidavit of defence.

No exception was taken by defendant to the charge of the court and consequently the fourth reason for a new trial would fail. That part of the charge assigned for error in the fourth reason for new trial was entirely proper under all the evidence in the case.

Order. — And now, May 16, 1927, the motion for new trial is refused for the reasons above set forth, and the rule therefor discharged at defendant’s cost.

Prom S. M. Williamson, Waynesburg, Pa.


author: Koch, J.,

text:
    Showers v. Merchants National Bank.

      Banks and banking — Checks—Forged endorsement — Notice of forgery to bank — Refusal to surrender check — Fictitious payee.

    1. Where a check is made payable to the order of a particular person, firm or corporation, the bank of the maker’s deposit may pay the amount of it only upon the duly authorized order of the payee named in the check; when this is done, the amount of the check is taken out of the maker’s deposit.
    2. If the bank disregards such rule of law and pays the amount of the check, it is obliged to pay the amount out of its own funds.
    3. If the depositor notifies the bank that the endorsement was forged, but refuses to deliver the cheek to the bank, so that the bank may recover from its correspondent, the depositor by his own conduct loses his right to hold the bank liable for the loss.
    4. The rule that a bank is liable to its depositor for paying a check on a forged endorsement applies where a check has been lost or stolen and the payee’s name has afterwards been forged; but it does not protect the depositor who is in fault in issuing a check to a fictitious person.
    Motion for judgment non obstante veredicto and sur motion for a new trial. G. P. Schuylkill Co., Nov. T„ 1923, No. 463.

      A. D. Knittle and George H. Gerber, for plaintiff.

      George M. Roads and John L. Stauffer, for defendant.
    Oct. 17, 1927.
   Koch, J.,

The plaintiff resides in the City of Pottsville. On Dec. 18, 1922, he was called upon by one A. B. Lamb and bought from him as agent ior one S. H. Lindsay 500 shares of stock in the Wenstone Rubber Products Company at $2 per share, par being $1 a share. In part payment the plaintiff made out his check for $500 on the defendant bank, payable to the order of “Wenstone Rubber Co.,” and handed the check to said A. B. Lamb as agent for Lindsay. On Dec. 28, 1922, the plaintiff negotiated to buy 1000 more shares of said stock and drew his check on said bank for $700 in part payment thereof, making his check payable to the order of “Wenstone Rubber Co., E. E. Wendell, Jr., Sec. & Treas.,” and handed the check to a man whose name he is unable to recall.

The' Wenstone Rubber Products Company is a Delaware corporation with an office in Chicago, Illinois, and another office in Chippewa Falls, Wisconsin.

Both of said checks were put in process of collection by being first deposited in one or more Philadelphia banks, the first check being endorsed “Wen-stone Rubber'Co., S. H. Lindsay,” and the second being endorsed “Wenstone Rubber Co., S. H. Linsay” and “J. D. Kline.” Showers had carried on his negotiations at different times for the purchase of the stock with S. H. Lindsay, A. B: Lamb, J. D. Kline and another man. Showers had his bank book balanced on Jan. 9, 1923, and when he examined the second of said checks he saw that the endorsement was not in the handwriting of E. E. Wendell, and concluded that the endorsement on each of the checks was a forgery. The endorsement on the second check was surely not made in the name of the payee on the check. Showers personally notified a clerk in the bank within several days that he would “never stand for that endorsement on those checks,” and said, “I am going to hold you responsible for the endorsements on the checks because they are not properly endorsed.” But, notwithstanding these facts, he drew a check for $300 on Jan. 22, 1922, in favor of S. H. Lindsay and handed it to him personally in Philadelphia, and drew two additional checks on Feb. 1, 1923, the one for $500, payable to the order of “S. H. Lindsay, Wenstone Rubber Co.,” and the other for $1000, payable to the order of “S. H. Lindsay, Wenstone Rubber Co.,” and mailed them to Lindsay at his office in Philadelphia. Showers had his bank book balanced again about Feb. 13, 1923, and found these last two checks charged against his account. These checks had also been put in process of collection by being first deposited in Philadelphia banks, both having been endorsed “S. H. Lindsay” and “ J. D. Kline.” When Showers examined these last two checks, he concluded that the endorsements thereon were also forged, and he notified the defendant bank of the fact between the 13th and 18th of February, 1923. He has never received any of said stock. His attitude in notifying the bank and making his demand on it appears in the following excerpts from his testimony: “Q. State whether you demanded a return of this from the bank? A. I demanded it personally, yes; not the first time, see; I demanded it the second time, as soon as I got the checks out, demanded the money. And they says to me, ‘Fetch the checks in and give them to us and we will get your money back at the Philadelphia bank.’ I says, T have got no money in a Philadelphia bank. Here is where I have my money deposited; but if you give me security for these checks, I will give you these checks.’ And they never gave me security; at least they says to me, ‘Fetch them in and we will give you security.’ And I fetched the checks and took them in to them, and they says and I says, T got these checks here now. Have you got the security?’ And they says, ‘What security do you want?’ And I said, ‘Count the $2700 out, and that is my security.’ And they says, ‘We can’t do that.’ Well, I says, ‘Then I guess we will have to sue for the money, if we can’t get it any other way.’ ” Showers had all the checks with him when this conversation was had. Quoting from him again, he testified: “Mr. Marshall (that was the cashier of the bank) said, ‘Will you let me see them?’ I says, ‘You can look at them, but I will hold them in my hands.’ I says, ‘You will never get them in your hands; I will hold them myself. But you can look at them, but I will hold them in my hands.’ Q. What else, if anything, was said? A. That was all. After he looked at them, I walked out. Q. And you wouldn’t give them to him to hold in his hand? A. Oh, no. Q. You held — ? A. Sure, I held them in my own hands. If I give them to them, I never see them any more. When they get them, they give me security for them checks, when I give them checks over. But they never offered security to me for them. Q. Did you say you demanded security for them, or what was that? A. I give them plenty of time for to bring me — . Q. No; what you said, not what you tried to do? A. I didn’t ask them for no security at all that time. That was done. And I says I walked out the bank, didn’t I ? Q. Didn’t ask for any security at that time, but you walked out of the — ? A. Before I — . Q. Answer the question? The Court: He said he didn’t. A. They didn’t ask for the cheeks; they only asked for to see the checks. Q. Why did you make that statement that they didn’t ask for the checks? What made you make that statement? A. Because they didn’t ask for the checks. Furthermore, they wouldn’t have got the checks till they give me security for the checks. Q. Why did you refuse to give them — ? A. What? Q. Why did you refuse to give them and say you would hold them in your hands? A. Oh, because I never give anything out of my hands without any security for it, when it comes down to money. . . . Q. What was it you told us in chief in regard to the demand you made on the bank to give you security before you delivered them the checks? A. I didn’t. They were the ones asked me if I would fetch the checks in and they would give me security. I said, ‘All right, I will fetch the checks in.’ ” That was right before this suit was brought. Showers continued his account in the bank, and further testified that every time he went to the bank to make a deposit, they were always talking about why didn’t he fetch the checks in. Quoting further: “Mr. Marshall says to me, ‘You work in conjunction with us and give us your checks and work with us, and we will get your money out of the Philadelphia bank.’ I says, T got no money in a Philadelphia bank. Here is the bank I got my money in; I got my money in the Merchants National Bank, not .in a Philadelphia bank.’ Q. You would not do what he asked you to do? A. What! Give him my checks? Without security? I ain’t got no horns on yet. They never offered me security for them.” Again: “I told him (Mr. Marshall) I wouldn’t give them without security. And then they says, ‘Fetch them in and we will give you security.’ And they asked me, ‘What do you want for security?’ I says, ‘Count me $2700 out; that is the only security I will take for my checks.’ And they refused.”

The jury found in favor of the plaintiff, but allowed no interest. So the plaintiff made a motion for a new trial in order to recover interest on the claim, and the defendant made a motion for judgment non obstante veredicto, basing the motion upon the defendant’s last two points, which were reserved, as follows:

“5. Plaintiff having testified that he refused to deliver to the defendant bank the checks in suit, which prevented the bank from collecting their respective amounts from its corresponding banks which had guaranteed the endorsements thereon, the verdict must be for the defendant.
“6. Under all the evidence in the case, the verdict must be for the defendant.”

The banks through which the checks had gone had guaranteed the endorsements. The evidence clearly shows that the endorsements made by the original depositors of the checks were unauthorized or forged, and the question arises whether the plaintiff, by refusing to give the checks to the defendant bank, has not precluded himself from recovery in this case.

Where a check is made payable to the order of a particular person, firm or corporation, the bank of the maker’s deposit may pay the amount of it only upon the duly authorized order of the payee named in the check. When that is done, the amount of the check is taken out of the drawer’s deposit. If a bank disregards this rule of law and pays the amount of the check, it is obliged to pay the amount out of its own funds: McNeely Co. v. Bank of North America, 221 Pa. 588, 593; Land Title and Trust Co. v. Bank, 196 Pa. 230, 234; Califf v. First National Bank of Towanda, 37 Pa. Superior Ct. 412. Therefore, Showers’s account could not be charged’ with the four checks in suit, totaling $2700. As soon as Showers discovered the forgery, it was his duty not only to make the facts known promptly to the bank, but he was also required to hand the checks over to the bank, because the bank had paid them out of its own funds, and thereby had acquired title to them, and it should have' been put in a position to secure itself against the loss of that money. Without the checks; it was at a loss to proceed. Had Showers tendered the checks over to the bank and had he then drawn a check to the bearer for the $2700 and presented it for payment, the bank would have been obliged to honor the check or to stand for the consequences of the dishonor.

In Roth v. Crissy, 30 Pa. 145, it was held that the depositor was bound to return or tender a forged promissory note before bringing suit. Rick v. Kelly, 30 Pa. 527, 529, 530, is to the same effect. In the latter case the Supreme Court said: “. . . to the defendant, possession was vital, for his right of action against the maker or some other vendor was perfect. To permit the plaintiffs to keep both verdict and note would be manifestly unjust. If not entitled to a tender before suit, the defendant has no right to its return afterwards, and to send him on a circuitous chase after it, while genuine parties are daily growing weaker, is not to be thought of, unless some stubborn principle of law demands it. . . . In respect to counterfeit bank notes, it is everywhere conceded that return must be made promptly. . . .” See, also, Raymond v. Baar, 13 S. & R. 319, and Ritchie v. Summers and Coates, 3 Yeates, 531, 543. “The depositor should return the forged check at the time of notifying the bank of the forgery. It has been held that mere notice to a bank that it has paid a forged check while a depositor holds the check to investigate the crime will release the bank from all liability for having cashed the spurious check:” The Law of Bank Cheeks, by Brady, 222.

In Iron City National Bank v. Fort Pitt National Bank, 159 Pa. 46, 51, which was an action of assumpsit on a forged check, Mr. Justice Mitchell, speaking for the Supreme Court, said: “It is always a good defense that the loss complained of was the result of the complainant’s own fault or neglect, and it would require a statute in very explicit terms to do away with so universal a rule of law, founded on so incontestible a principle of justice.”

It may be said that the checks'having been made payable to “Wenstone Rubber Company” were made to a fictitious party, and, therefore, payable to bearer, because the name of the company is in fact “Wenstone Rubber Products Company,” as shown by the depositions of Harold B. Wendell, President of the company, and which were read into the evidence at the trial of this case: Act of May 16, 1901, § 9, cl. 3, P. L. 194, 196.

“The rule that a bank is liable to its depositor for paying a cheek on a forged endorsement applies where a check has been lost or stolen and the payee’s name has afterwards been forged; but it does not protect a depositor who is in fault, as in intrusting a check to one who he has reason to suppose will make a fraudulent use of it, or in so carelessly filling up a check that it may readily be altered, or in issuing a check to a fictitious person. It is confined to cases in which the depositor has done nothing to increase the risk of the bank:” Snyder v. Corn Exchange Bank, 221 Pa. 599; Land Title and Trust Co. v. Bank, 196 Pa. 230, 234. This would appear to apply to the last two checks, at least, because the plaintiff sent those to Lindsay even after he claimed that Lindsay had forged the first two checks. He was manifestly careless in doing that and may be charged with the most unreasonable negligence, as was said in Raymond v. Baar, 13 S. & R. 318, 319.

Upon all the evidence in the case, the verdict of the jury should have been rendered in the defendant’s favor.

The motion for a new trial is overruled, the judgment on the verdict is arrested and judgment is entered in favor of the defendant upon payment of the jury fee.

From M. M. Burke, Shenandoah, Pa.


author: Hasslek, J.,

text:
    Lutz v. Frey.

      Jurisdiction, J. P. — Trespass—Damage to automobile by cow — Appeal— Practice-Acts of March 22, 181b, and March 5, 1925.

    1. A justice of the peace has jurisdiction in an action of trespass to recover for damage to the plaintiffs automobile caused by the defendant’s cow jumping on the running-board in going from the defendant’s field to his barn.
    2. Where the justice of the peace had no jurisdiction, this objection is not waived by appeal.
    3. It was a negligent act of the defendant to have his cattle on the public road, either permissively or because they were not properly fenced in.
    Acts of March 22, 1814, 6 Sm. Laws, 182, and March 5, 1925, P. L. 23, considered.
    Becker v. Weaver, 15 Dist. ft. 799, 23 Lane. Law Rev. 188, distinguished.
    Rule to strike off appeal. C. P. Lancaster Co., Oct. T., 1926, No. 71.

      Edwin M. Gilbert, for rule; Hamish & Hamish, contra.
    July 2, 1927.
   Hasslek, J.,

This is an application under the provisions of the Act of March 5, 1925, P. L. 23, to strike off an appeal from the judgment of a justice of the peace, for the reason that he did not have jurisdiction of the cause of action. The Act of March 5, 1925, P. L. 23, provides that the court shall preliminarily determine upon the pleadings the question of the jurisdiction of the defendant on the cause of action for which the suit is brought. It also provides that such question shall be raised “by petition setting forth the facts relied upon, whereupon a rule to show cause shall be granted and such preliminary question disposed of by the court.”

The facts relied upon to decide the question of the justice’s jurisdiction of the cause of action in this case are not in dispute. They are as follows: An alderman of this city, in an action of trespass, after hearing the parties, entered a judgment against the defendant, from which this appeal was taken. The facts constituting the cause of action, as they appear in the pleadings and the transcript of the justice, are, that a cow (one of a number) belonging to the defendant, in going from his field to his barn, jumped on tlie running-board and radiator of the plaintiff’s automobile, causing the injury complained of. The claim and judgment was only for the direct damage to the automobile. No claim was made for any consequential damages. The defendant asks to have the judgment opened and the appeal stricken off for the reason that the justice did not have jurisdiction of the subject-matter of the suit.

Section 1 of the Act of March 22, 1814, 6 Sm. Laws, 182, provides that justices of the peace shall have jurisdiction of all actions of trespass for the recovery of damages for injury done not in excess of $100. In Gingrich v. Sheaffer, 16 Pa. Superior Ct. 299, in affirming a case from this court, the Superior Court decided that a justice of the peace has jurisdiction of actions of trespass for the recovery of damages for injuries done or committed on real and personal property caused by negligence, if they arise from an injury that is immediate and would be recoverable in the common-law action of trespass vi et armis, but if the damages are consequential, they would be recoverable only in an action of trespass on the case, and a justice does not have jurisdiction of an action for the recovery of such damages. It is the nature of the demand, not merely the form of action in which the summons issues, that determines the justice’s jurisdiction. It is also decided in that case that if a justice had no jurisdiction of the cause of action, the objection is not waived on appeal, but may be raised on a case in the Common Pleas. Schoenberger v. Wolf, 37 Lanc. Law Rev. 281; Leibowitz v. Keim, 37 Lanc. Law Rev. 309; Usner v. Rudy, 3 D. & C. 577, 38 Lanc. Law Rev. 392; American Gasoline and Oil Co. v. Hoehn, 7 D. & C. 443, 39 Lanc. Law Rev. 507, are cases in which this court has passed upon this question. The distinction between damages recoverable in an action of trespass vi et armis and those recoverable in an action of trespass on the case is clearly pointed out in Stephen on Pleadings. On page 16, it is decided that trespass vi et armis lies where one seeks to recover damages for an injury committed with violence, and where the injury is of a direct and immediate kind. Damages for such injuries are recoverable in an action of trespass before a justice of the peace. Trespass on the case lies where one seeks to recover damages for any wrong or injury to which covenant or trespass will not apply. This would be where an injury is not committed with violence, or is not of a direct or immediate kind, but consequential. Where trespass on the case is the proper remedy, a justice of the peace does not have jurisdiction. This distinction is followed in the case of Gingrich v. Sheaffer, supra. In it the claim of the plaintiff was for injuries to an automobile, due to the negligence of the defendant. Part of the claim was for direct injury to the automobile and part was for the expense to which the plaintiff was subjected in hiring an automobile to replace the damaged one¡ until it was again ready for use. All testimony of the latter part of the claim was excluded because the justice did not have jurisdiction of an action to recover such damages, and the Superior Court decided that a verdict for the direct damages in the trial on the appeal, viz., the costs of repairing an automobile, was proper, because the justice had jurisdiction of the action to recover such damages. He could not, however, entertain an action for the part of the claim which was consequential.

It was a negligent act of the defendant in this case to have his cattle on the public road, either permissively or because they were not properly fenced in. As the injury for which the damages are claimed was the direct result of such negligence, they are recoverable in an action of trespass vi et armis, and the justice had jurisdiction of the cause of action. The case of Becker v. Weaver, 15 Dist. R. 799, differs from the present case, for the reason that it was not a negligent act to have permitted a dog to run at large on the public highway.

We are of the opinion that the justice had jurisdiction of the cause of action, and discharge the rule to show cause why the appeal and judgment should not be stricken off.

From George Ross Eshleman, Lancaster, Pa.


author: Jones, J.,

text:
    Rich v. Boguszinski et ux.

      Soi. fa. sur mechanic’s lien — Proof of service of notice that claim had been filed — Judgment n. o. v. — New trial.

    1. In proceedings on sovre facias sw mechanic’s lien, plaintiff must show that notice of filing of lien was served upon defendant within one month, as required by the statute.
    2. Where records found in files reveal that such notice was given, but the fact was not proved at the trial, judgment n. o. v. for defendant will be denied and new trial awarded in the interest of justice.
    3. In the instant case, defendant’s affidavit admitted that "some kind of notice had been filed.”
    Motion for judgment n. o. v. C. P. Luzerne Co., Dec. T., 1923, No. 1284.

      R. H. Morrish, for plaintiff; W. L. Pace, for defendant.
    Feb. 15, 1927.
   Jones, J.,

Defendants entered into an agreement with Joseph Dishus, contractor, to erect a building at Inkerman, this county, and plaintiff entered into a sub-contract with Dishus to piaster! the house and erect two chimneys therein; the contractor absconded, neglecting to pay plaintiff, who filed a mechanic’s lien as a sub-contractor, and this proceeding is a scire facias on the lien and a verdict in favor of the plaintiff.

Defendants move for judgment non obstante veredicto, assigning seventeen reasons, one of which complains that plaintiff failed to prove upon the trial that defendants were served with notice of the filing of the lien within one month thereafter as provided by law.

Section 21 of the Mechanics’ Lien Act of June 4, 1901, P. L. 431, provides: “Within one month after the filing of the claim, the claimant shall serve a notice upon the owner of the fact of the filing of the claim, giving the court, term and number and the date of filing thereof, and shall file of record in said proceedings an affidavit, setting forth the fact and manner of such service. A failure to serve such notice and file an affidavit thereof within the time specified shall be sufficient ground for striking off the claim.”

The lien was filed Nov. 19, 1923, and among the files is an affidavit that written notice of the filing was served on defendants on Nov. 26, 1923, but upon the trial there was no evidence or proof of such notice.

In Deeds v. Imperial Brick Co., 219 Pa. 579, in a scire facias sur mechanic’s lien, it was said: “Ordinarily the affidavit of defence constitutes no part of the pleadings, but our recent act relating to mechanics’ liens contemplates that the real issue in such cases is to be defined through affidavit and counter-affidavit;” and in Wyss-Thalman v. Beaver Valley B. Co., 216 Pa. 435, it was said that the issue is made up by the writ, the affidavit .of defence and replication.

The affidavit of defence in paragraph 5 states that the lien is defective because a proper notice of claimant’s intention to file the same, or of the filing of the same, was not served upon defendants at the time and in the manner required by law; the failure to give notice was made an issue.

In O’Kane v. Murray, 252 Pa. 60, the notice of the filing of the claim under section 21 of the Mechanics’ Lien Act of 1901 was not given to the defendant, but service of the notice was accepted by his attorneys; plaintiff contended that there had been a substantial performance within this section of the statute. The court said: “This contention entirely overlooks the well-established rules applicable to the interpretation of mechanics’ liens. The language of the provision is clearly mandatory, and if the claimant fails to serve the notice and file the required affidavit within one month after the filing of the claim, it is ground for striking off the claim. A compliance with the provision is a prerequisite to the validity of the lien, and a failure to observe it invalidates the lien. The purpose of the provision is apparent. It is to protect the owner by furnishing him an opportunity, while the facts are accessible, to ascertain if the claim is correct, if the labor and materials were furnished as set forth in the lien, and if the claim has been properly and legally entered so as to bind his real estate. ... If a party desires to avail himself of it, he must comply strictly with the provisions of the statute conferring the right. Nothing is presumed in favor of the lien. When the act of assembly directs specifically that a particular thing shall be done in order to establish a claim, substantial conformity will not answer; there must be a compliance with the requirement. The notice directed to be given by this section of the statute is equally as important as the notice of an intention to file the lien required by section 8 of the act.”

And in the ease of Merritt v. Poli, 231 Pa. 611-17, service of this notice (required by section 8 of the act) must be made in the manner prescribed by the statute, and failure to do so defeats the right to recover upon the claim filed.

In City of New York v. Miller, 254 Pa. 436—scire facias upon a municipal claim — it was stated: “The ninth section of the Act of June 4, 1901, P. L. 364, provides, in regard to municipal claims: ‘Where claims are to be filed to use, the claimant, at least one month before the claim is filed, shall serve a written notice of his intention to file it unless the amount due is paid.’ ... At the conclusion of the testimony, the defendant asked for binding instructions in his favor, because there was no evidence in the case that the use-plaintiff served a written notice on the owner, at least one month before the claim was filed, of his intention to file the lien in question unless the amount due was paid. There had been no proof that such notice had been served,” and as counsel for plaintiff admitted on the argument on appeal that such notice had not been given, judgment was entered for the defendant non obstante veredicto.

There are a number of decisions in the county courts to the effect that where, after a trial of a sci. fa. sur mechanic’s lien, neither the validity of the lien nor the question of notice of the filing of the lien will be considered if such questions are not raised by the affidavit of defence, but in this particular ease the question is raised and is directly and specifically traversed and denied in the affidavit of defence.

Plaintiff argues that the averment in the affidavit that “no proper notice of plaintiff’s or claimant’s intention to file the same, or of filing the same,” was served upon defendant is a conclusion of law; the affidavit admits that some kind of a notice was filed, and, therefore, it was not necessary for plaintiff to prove the notice.

While the' pleadings determine the issues, they are not evidence for any purpose, unless put before the jury in the manner set forth in Buehler v. U. S. Fashion Plate Co., 269 Pa. 428, by offering in evidence the affidavit of defence or such parts thereof as defendant admits or such parts as may be treated as admitted; this practice was not followed.

Upon this record, defendants are entitled to judgment n. o. v., but it would be a great injustice to the plaintiff, because he did comply with this requirement of the statute, notice having been given as shown by the return of service found among the files, but, through neglect, it was not proved upon the trial of the case; if defendant received this notice, then the object of the statute has been fulfilled; ordinarily a client must suffer for the neglect of his counsel, but the court feels that, in the interest of justice, the motion for judgment n. o. v. should not prevail.

A new trial is, therefore, granted in order to give plaintiff an opportunity to establish upon the trial the truth of the fact found among the pleadings that notice was actually served upon the defendants within one week after the lien had been filed.

Motion for judgment n. o. v. is denied and a motion for new trial is granted.

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


author: Berkey, J.,

text:
    Van Tassel v. Churchill et ux.

      Beatty — Sale—Contract—Husband and wife — Judgment against husband alone.

    1. Where, in an action against husband and wife to recover penalty for failure to convey real estate as per agreement, it appears the wife is not liable as to part of the land and there is no method of apportioning the damages, the action must be dismissed as to her.
    2. Where such agreement provides for liquidated damages should "either party” fail to perform, it is both joint and several and judgment may be entered against the husband alone.

      Assumpsit for penalty in agreement to sell realty. Motion for judgment for defendants n. o. v. C. P. Tioga Co., Sept. T., 1923, No. 23.

      A. B. Dunmore and Rockwell & Rockwell, for plaintiff.

      C. H. Ashton, for defendants.
    April 18, 1927.
   Berkey, J.,

16th judicial district, specially presiding,

The plaintiff brought suit against the defendants, husband and wife, on an agreement in writing to recover damages for breach of the contract. The portions of the agreement essential to a proper disposition of the legal proposition at issue are these:

“Agreement . . . between Chas. C. Churchill and Betsy Jane, his wife, party of the first part, and Harlow M. Van Tassel, party of the second part, said parties of the first part, in consideration of . . . $3900, . . . agree to sell unto the said party of the second part . . . the C. C. Churchill farm of 166 acres . . . (and certain) personal property. Parties of the first part, on receiving such payment, . . . shall . . . deliver to said party of the second part, or to his heirs or assigns, a proper deed. ... It is mutually agreed' that, should either party hereto fail or neglect to duly perform his part of this agreement, he shall forthwith pay and forfeit as liquidated damages to the other party ... 10 per cent, of the agreed price of sale.
“And it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns of the respective parties.”

The defendants pleaded and proved that the land embraced in the contract consisted of two parcels, namely, 53i acres owned by Charles C. Churchill and 112& acres were owned by the defendants by entireties. Under these undisputed facts as to the ownership of the land described in the contract, no judgment can be entered on the verdict including Betsy Jane Churchill: Dean v. Shelly, 57 Pa. 426; Crain v. Warner, 87 Pa. Superior Ct. 605.

The cases cited decide that Mrs. Churchill is not liable for the breach of the contract as to the land in which the title is in the husband alone. She would be liable with her husband, jointly and severally, as to the 531 acres for the breach, but there is no rule of law based either upon principle or convenience that apportions the damages.

It now remains to determine whether a judgment may be entered on the verdict against Charles C. Churchill. The contract in suit must be construed as joint and several on the part of the covenantors. It is a general presumption of law when two or more persons undertake an obligation that they undertake jointly. Words of severance are necessary to overcome this primary presumption. In all written contracts, therefore, whether the liability is joint or several, or joint and several, is determined by looking at the words of the instruments and at them alone. The language of joinder or severalty is the test.

The agreement is not only joint, but joint and several; that it is several appears from this language: “It is mutually agreed that should either party hereto fail or neglect to duly perform his part, he shall forthwith pay and forfeit ... as liquidated damages to the other party.”

This language signifies that the word “party” refers to the singular number, as it is followed by the singular pronoun he and his, whose antecedent must be one person. It means that if either of the covenantors or the cove-nantee breaches the contract, either of the three persons named therein shall be liable for the damages designated. It could not have been the intention of the parties that the covenantee could not recover until it was established that both the covenantors had breached the contract.

The agreement concluded: “And it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns of the respective parties.” Who are the respective parties?

In Geddis v. Hawk, 10 S. & R. 33, pages 37 and 38, it is said: “The obligors set out with an acknowledgment of indebtedness in words which denote no intention that there should be a severance of their responsibility; but in the conclusion, they use these words: ‘To which payment well and truly to be made or done; we bind ourselves and each of our heirs, executors and administrators.’ Here it must be conceded that if the word ‘each’ were to be transposed so as to be grammatically applicable to the persons of the obligors instead of being exclusively applicable to the persons of their representatives, these obligations would be several as well as joint. Now this word ‘each’ must be taken as having been intended to have some operation and legal effect; and if it can have none where it stands, we are bound to suppose that this particular collocation of the words used was purely accidental and contrary to the real intent and meaning of the parties. But the word can have no operation where it stands; for it is impossible that a bond shall be joint as to the immediate parties and several as to their representatives, survivor-ship as respects the remedy being an incident of every obligation which cannot be dispensed with, even by the agreement of the parties, as the law will not suffer its forms to be violated by the introduction of new and unheard-of modes of proceeding. To permit the personal representatives of a deceased obligor to be joined in an action against the survivor, or all the representatives of the immediate parties, where the immediate parties are all dead, to he sued jointly or severally at the election of the obligee, would involve the administration of the law in absurdity and endless perplexity. Such an anomaly could never be tolerated. We must then intend that the word ‘each’ was designed to be applicable to the persons of both obligors wherever they are named, and if that be so, the consequence is unavoidable that these obligations are several as well as joint. This result is not obtained by a process of artificial reasoning inconsistent with the real meaning of the parties. Let any one read these obligations for himself and his first impression will undoubtedly be that the obligors actually intended to bind themselves jointly and severally.”

In Besore v. Potter, 12 S. & R. 154, on page 158, it is said: “ ‘We bind our heirs, executors and administrators, and each of our heirs, executors and administrators;’ in this, instead of each, it is every of them. All of them would have been joint, every of them is several, and the natural construction, the common significance, of these words would be that the respective heirs of the obligors were intended to be bound.”

In Wampler v. Shissler, 1 W. & S. 365, we find this language: “The words . . . are, ‘to be levied of their goods and chattels, lands and tenements, respectively;’ which is equivalent to a provision that the amount should be levied of each.”

See, also, Wood v. Hummel, 4 Watts, 50; National Bank v. Buckwalter, 214 Pa. 280; Morrison v. American Surety Co., 224 Pa. 41, 42, 43; Bradley v. Holleran, 59 Pa. Superior Ct. 1, 2, 3.

Under the common law procedure, when the suit had been brought against two or more defendants and the evidence disclosed a case against a less number than were named in the plaintiff’s statement of claim, no judgment could be entered against any of them, but the common law procedure was abolished by the Act of June 29, 1923, P. L. 981, entitled “An act relating to procedure wherein it is pleaded that two or more defendants are liable for a specific cause of action.”

Our Supreme Court recently has held: “Inasmuch as the Act of June 29, 1923, P. L. 981, relating to suits where two or more persons are charged with a joint liability, deals with procedure alone and affects no substantive right, it applies to all cases within it's purview whether arising prior to its enactment or thereafter.” The act provides: “If the facts are not in dispute, the question of liability of any or all of them may be reserved for consideration by the court in banc:” Cleary v. Quaker City Cab Co., 285 Pa. 241.

In the case supra, speaking of the quoted provisions, it is held: “[This provision] is meant to cover cases where joint liability of the defendants is pleaded in plaintiff’s statement of claim, but where, at the end of the trial, after taking the evidence into consideration, the presiding judge is doubtful as to whether or not, on the undisputed facts, a joint liability of one or more of the defendants has been proved. Under such circumstances, the trial judge may reserve the point concerning which he is in doubt for consideration of the court in banc.”

In the case at bar, the defendant presented a point for binding instructions for the defendants, which was refused. The case is now before the court on a motion for judgment n. o. v. based on the point for binding instructions. The record as it stands empowers the court to treat the case the same as if the point had been reserved.

The court having determined that the contract on which the suit is based is several as well as joint, and that Betsy Jane Churchill was under disability of coverture, it is held that the action must be dismissed as to her and that judgment upon the verdict may be entered against the other defendant, Charles C. Churchill: Cleary v. Quaker City Cab Co., 285 Pa. 241; Hill & Co. v. Marriner and Sook, 86 Pa. Superior Ct. 545; Cairns v. Spencer, 87 Pa. Superior Ct. 126; Mullen v. McGeagh, 88 Pa. Superior Ct. 381.

Decree.

Now, April 18, 1927, the motion for judgment non obstante veredicto is-overruled; the action as to Betsy Jane Churchill is dismissed, and leave granted to the plaintiff to proceed to judgment against Charles C. Churchill, defendant.

From G-. Mason Owlett, Wellsboro, Pa.


author: Mover, Dep. Att’y-Gen.,

text:
    Capital Stock and Corporate Loans Reports.

      Corporation — First class — Annual report to Auditor General — Corporate loans tax — Acts of June SO, 1885, and May 1,1927.

    1. Corporations of the first class are exempt from the provisions of the Act of May 4, 1927, P. L. 741, amending section 4 of the Act of June 30, 1885, P. L,. 193, relating to the corporate loans tax and requiring the filing of an annual report of indebtedness to the Auditor General, even though such corporations have capital stock and are conducted for profit.
    2. The clause "not having capital stock and not conducted for profit,” as used in the Act of 1927, does not modify “corporations of the first class,” but only “co-operative agricultural associations.”
    Department of Justice. Opinion to Hon. J. Lord Rigby, Revenue Deputy, Auditor General’s Department.
    July 14, 1927.
   Mover, Dep. Att’y-Gen.,

You have recently advised this department by letter that Act No. 385, approved by the Governor on May 4, 1927, which amends section 4 of the Act of June 30, 1885, P. L. 193, as amended, is understood to exempt first class corporations from liability for loans tax upon their indebtedness. You state that said section 4, as now amended, contains the following expression: “That hereafter, except in the case of corporations of the first class and co-operative agricultural asso-dations not having capital stock and not conducted for profit, it shall be the duty of the treasurer of each private corporation, etc.” (The words in italics cover the amendment to said section 4 as made by said Act No. 385.)

You inquire whether, by this amendment, first class corporations, regardless of whether they have capital stock or are conducted for profit, are exempt from the provisions thereof requiring their treasurer to assess and collect the tax and make annual report of its indebtedness to the Auditor General?

The question which you have propounded calls upon us to determine whether or not the expression used in said amendment, “not having capital stock and not conducted for profit,” modifies not only its immediate antecedent, “co-operative agricultural associations,” but also modifies the expression “corporations of the first class.” The expression in question could modify both antecedents without ambiguity. Furthermore, the words of the amendment are used in no other place in said act, excepting in the title, and in said title identically the same words are used as in the amendment itself. Consequently, we are not assisted by a study of the act as a whole. It is, therefore, necessary to give consideration to rules of construction applicable to cases of this character. Endlich on “Interpretation of Statutes,” § 414, says: “The strict rule of grammar would seem to require, as a general thing, a limiting clause, or phrase, following several expressions to which it might be applicable, to be restrained to the last antecedent.”

Various cases are cited in support thereof. However, certain other cases are cited displacing this rule where the manifest object of the enactment in question suggested otherwise. In the case of Fisher v. Connard, 100 Pa. 63, although the court admitted that it was correct that, in accordance with grammatical construction, relative and qualifying words and phrases refer solely to the last antecedent, it held the rule would not apply to the act of assembly there in question because of the intention of the legislature indicated by previous acts in pari materia. But with respect to the act here under consideration, we find no acts of assembly in pari materia which assist in throwing any light on the construction of the words of the amendment.

In 2 Lewis’s “Sutherland Statutory Construction” (2nd ed.), § 420, the above rule of construction stated by Endlich, in his work on “Interpretation of Statutes,” is also set forth with authorities in support thereof. However, in view of all the authorities, if it is still to be doubted whether said rule is applicable and controls in the construction of the words we are discussing in this case, then we submit, where the act itself as a whole does not assist us in determining the intent of the legislature, the most which can be said, so far as to whether or not the words “not having capital stock and not conducted for profit” modify and qualify the expression “corporations of the first class,” is that it is doubtful. If this be true, then we may turn to the history of the act. In so doing, we find that said Act No. 385, as originally introduced in the legislature as House Bill No. 1699, did not, in the amendment, contain the words “co-operative agricultural associations not having capital stock and not conducted for profit,” but the amendment contained only the words “except in the case of corporations of the first class.” In this form the act passed the House of Representatives. In the Senate, the words “and co-operative agricultural associations not having capital stock and not conducted for profit” were added to the amendment. Thus, it will be noted that it was proposed by this amendment to also exempt certain co-operative agricultural associations. The qualifying words used to characterize these co-operative agricultural associations were “not having capital stock and not conducted for profit.” These qualifying words are exactly the same words found in section 2 of the Act of June 12, 1919, P.. L. 466, which act provides for the incorporation and regulation of co-operative agricultural associations “not having capital stock and not conducted for profit,” and are used in said section, as well as in the title of said act, to modify and qualify the expression “co-operative agricultural associations.” Consequently, it can hardly be doubted that the draftsman of the amendment to the bill as it appeared in the Senate used these qualifying words as referring only to co-operative agricultural associations. With this amendment of the Senate, the bill was finally passed by the legislature and approved by the Governor. It would, therefore, appear that the history of the bill in the legislature clearly indicates an intent which supports the construction which would result upon the application of the rule hereinbefore referred to.

In addition, an interpretation of the amendment in question which would construe the aforementioned qualifying words as modifying “corporations of the first class” might lead into a situation that would result in the act being declared unconstitutional. Corporations of the first class not having capital stock and not operated for profit would not be liable to report to the Auditor General and to assess and collect the corporate loans tax, while corporations of the first class having capital stock and operated for profit would be required to report their indebtedness and assess and collect the tax. We are not deciding that such a classification would be unconstitutional, but a strong doubt would be raised concerning the same. It is unnecessary to cite authorities in support of the doctrine that that construction of a statute should be adopted which will sustain the act, where the language used will permit such interpretation.

In light of the foregoing reasons, you are herewith advised that the words “not having capital stock and not conducted for profit” do not modify and qualify the expression “corporations of the first class,” as the same is found in Act No. 385, approved May 4, 1927, which amends section 4 of the Act of June 30, 1885, P. L. 193, as amended, and, therefore, corporations of the first class are exempt from the provisions of the Corporate Loans Tax Act, requiring their treasurer to assess, deduct and return the corporate loans tax and make annual report of the indebtedness of the corporation, to the Auditor General. From C. P. Addams, Harrisburg, Pa.


author: Feonefield, P. J.,

text:
    Burnett v. Shooster.

      Practice- — -Assumpsit—Statement of claim — Sufficiency of statement.

    A statement of claim to recover hand-money paid at the time of the execution of a written agreement for the purchase of real estate, on the ground that the house was orally and falsely represented to be in a good state of repair and tenantable, which fails to aver by whom the statements were made, why they were omitted from the agreement, what reliance was placed upon them, that the plaintiff did not examine the property or that he did not know its condition, is insufficient.
    Affidavit of defense in nature of demurrer. C. P. Delaware Co., Sept. T., 1926, No. 301.

      William H. Ridley, for plaintiff; Geary & Rankin, for defendant.
    Jan. 14, 1927.
   Feonefield, P. J.,

The question involved in this case is raised by an affidavit of defense, alleging that the statement of claim does not set forth a good cause of action.

The plaintiffs claim to recover from the defendants hand-money paid on the purchase of a dwelling under a written agreement, which provides that defendants have sold to the plaintiffs a dwelling and lot, for which plaintiffs agree to pay defendants $3800 — $400 as hand-money and the balance at settlement.

The statement of claim alleges that “the house was represented to be in good state of repair and tenantable at the time of the signing of the agreement,” and that “it was not in good state of repair or tenantable, as represented.”

There is nothing in the agreement relating to the state of repair of the property or that it was tenantable. There is nothing in the statement of claim as to by whom the representations were made, nor why the representations were omitted from the written agreement (Gianni v. Russell, 281 Pa. 370), nor what reliance was placed upon them, if any, nor that the plaintiffs did not examine the property prior to signing the agreement, nor why they did not know its condition, if they did not: 12 Ruling Case Law, 277, 384.

We will give the plaintiffs an opportunity to file a statement of claim which will state a good cause of action.

And now, to wit, June 14, 1927, leave is granted the plaintiffs to supplement their statement of claim within fifteen days from the filing of this order, in default of which judgment may be entered in favor of the defendants.

From 'William R. Toal, Media, Pa.


author: Stock, J.,

text:
    Singley v. Glatfelter.

      Plaintiff’s statement — Negligence, averment of — Averment, of damages— Practice.

    1. A plaintiff’s statement which contained in one paragraph an averment of negligence in general terms, and in a subsequent paragraph definite specifications of the negligence mentioned in the prceding paragraph, was held sufficient.
    2. Where a defendant wishes to take' advantage of the plaintiff’s failure to give particulars in his statement of the damages claimed, the better practice is to move for a more specific statement.
    3. In averring negligence in the operation of an automobile, the allegation that the negligence consisted in violating the statutes of the State pertaining to the speed and control of automobiles at street intersections, and otherwise failing to regard the rights and safety of the plaintiff and others using the highway, is insufficient; however, where the statement contains other sufficient averments of negligence, it will not be stricken off.
    Motion to strike off plaintiff’s statement. C. P. York Co., April T., 1927, No. 104.

      A. J. Hershey and James J. Logan, for plaintiff.

      R. P. Sherwood, for defendant and motion.
    June 6, 1927.
   Stock, J.,

This is a suit in trespass to recover damages for the death of plaintiff’s husband resulting. from a collision caused by the alleged negligence of the operator of defendant’s automobile.

The first reason for the motion to strike off plaintiff’s statement is the language used by the pleader in paragraph 10 of the statement, wherein the fact of the collision is averred in these words: “The automobile of the defendant . . . was unlawfully, negligently and carelessly operated, and with great force came into collision and contact with said motorcycle,” in which motorcycle plaintiff’s husband was riding.

In paragraph IS, it is stated that “said unlawfulness, carelessness and negligence, consisting of, to wit: . . .” and here there are enumerated nine specifications of negligence, at least some of which are definite, specific allegations of acts of omission or commission on the part of the operator of defendant’s automobile which clearly established negligence.

The use of the words “unlawfully, negligently and carelessly” in paragraph 10 is not to be recommended as good pleading, in that these words express a legal conclusion. However, as these words are used descriptively in this paragraph, they may be disregarded as surplusage, particularly in view of the proper averment of acts constituting negligence in the later paragraphs.

The second reason for this motion is the failure to itemize the lump charge for damages where certain special damages are pleaded and included therein. As was admitted by counsel at the time of argument, the better practice is to raise this objection by rule for more specific statement. Defendant is entitled to know the amount of, and the particulars concerning, “the large sums of money” expended, or for which plaintiff became liable on account of the treatment of the deceased and for his burial.

The third reason for this motion is the want of conciseness in paragraph 13, wherein are enumerated the several specifications of negligence. This paragraph follows a form published in a current book on practice, and seems to be rather generally used. The most objectionable parts of this paragraph are: “Violating the statutes of the State of Pennsylvania pertaining to the speed and control of automobiles at street intersections.” “And in otherwise failing to regard the rights and safety of the plaintiff and others lawfully using the highway at the points aforesaid.”

In Isaac v. Sargent, 40 York Leg. Record, 186, this court pointed out the objectionable features of similar clauses contained in the statement in that case, and made absolute a rule for a more specific statement. It is our opinion that the rights of defendant can be properly safeguarded by refusing to strike off this statement for this third reason, without, however, precluding the defendant from his right to pursue his remedy by a rule for more specific statement.

And now, to wit, June 6, 1927, the motion to strike off plaintiff’s statement is refused, and the rule thereon granted March 31, 1927, is discharged.

Prom Richard E. Cochran, York, Pa.


author: Wagner, Dep. Att’y-Gen.,

text:
    Guaranty by Corporate Trustees.

      Corporations — Corporate trustees — Guaranteeing mortgages — Compensation — Acts of June 7,1917, and May 2,1919.

    1. A corporate trustee is not authorized, under the Acts of June 7, 1917, P. 447, and May 2, 1919, P. L. 114, to pay to itself a percentage per annum upon the principal of a mortgage or other security, constituting an investment of a trust estate, as compensation for a guaranty by it of the payment of the principal ana interest of such mortgage or security.
    2. Such acts apply only to companies other than the corporate trustee acting for the particular estate.
    Department of Justice. Opinion to Hon. Peter G. Cameron, Secretary of Banking.
    Sept. 22, 1927.
   Wagner, Dep. Att’y-Gen.,

You have requested that you be advised whether a corporate trustee is authorized by the provisions of section 41 (b) of the Fiduciaries Act of 1917 (June 7, 1917, P. L. 447), as amended by the Act of May 2, 1919, P. L. 114, to pay to itself, not exceeding one-half of 1 per cent, per annum upon the principal of any mortgage or other security constituting an investment of a trust estate of which it is trustee, as compensation for the guaranty by it of the payment of the principal and interest of such mortgage or other security.

The section referred to above reads as follows: “Any fiduciary required by law, by the order of any Orphans’ Court, or by the provisions of any last will and testament under or by authority of which such fiduciary is acting, to invest funds within his control in mortgages or other securities, may include, as a part of the lawful expense of executing his trust; a reasonable sum paid to a company, authorized under the laws of this State so to do, for guaranteeing the payment of the principal and interest of such mortgage or other securities, not exceeding one-half of 1 per centum per annum upon the principal of such mortgage or other securities.”

It is our opinion that the purpose of the above section was to authorize the guaranty of the payment of the principal and interest of mortgages and other securities constituting investments of trust estates only by companies other than the corporate trustee acting for the particular estate. To permit a corporate trustee to make such a guaranty and to receive compensation therefor would empower it to profit in excess of the compensation paid to it for the administration of the trust, and would result, in all probability, in much unnecessary guaranteeing of the investments of trust funds. It was not the purpose or intent of the legislature to legalize such a practice.

Prom C. P. Addams, Harrisburg, Pa.


author: Gest, J.,

text:
    Frank R. Tobey’s Estate.

      Wills — Power of appointment — Blending of estate — Taxation—Inheritance tax.

    1. Where a testator devises specific real estate to his sister for life with a general power of appointment by her will, and bequeaths a specific sum in trust for the life of the same sister with general power of appointment thereover to her by will, the sister will be deemed to have so blended the appointive estate with her own as to subject the whole to transfer inheritance tax where she specifically bequeaths her personal effects, exercises her power over the real estate devised to her in trust, gives a large number of pecuniary legacies, aggregating much more than her own estate, then gives "all the rest, residue and remainder” of her estate, including the portion of her brother over which she had a testamentary power in trust for a niece, and thereafter, in a separate clause, states that she is exercising the power of appointment given by her brother over the share of his estate left to her in trust, and finally directs that all inheritance taxes on the legacies and devises contained in her will shall be paid by her executors out of her residuary estate.
    2. In such case, the fact that the sister did not expressly direct the payment of her debts is not material.
    3. The physical position of a paragraph in a will is not important if the paragraph applies to the whole will.

      Wills — Power of appointment — Increase of fund left for life.

    4. Where a fund is left in trust for life with power of appointment in the cestui que trust, accretions to the fund from the sale of stock rights, etc., are subject to the power of appointment.
    Exceptions to adjudication. O. C. Phila. Co., July T., 1914, No. 327.

      H. Gordon McCcmch, for University of Pennsylvania, exceptant.

      L. L. Smith, for West End Trust Company, Trustee, exceptant.

      M. T. McManus, Alfred N. Keim and Thomas S. Williams, for legatees of Laura H. Tobey; and William Boenning, for Commonwealth, contra.
    Feb. 17, 1928.
   Gest, J.,

Frank R. Tobey died in 1913, leaving a will, by which, inter alia, in the fourth paragraph, he devised to the West End Trust Company premises at 40th and Spruce Streets in trust for the use of his sister, Laura H. Tobey, for the term of her life, and to convey the premises to any person or persons, etc., as she should direct, limit and appoint by her last will and testament. By the fifth paragraph of his will, he bequeathed to the West End Trust Company $100,000 in trust to pay the income to his said sister, Laura H. Tobey, for the term of her life, and on her death to pay over the said principal sum to such person or persons, etc., as she should direct and appoint, with provisions in default of such appointment, and, by the seventeenth paragraph, he also devised his residuary estate to the same trustee in trust for his said sister for life, with remainder at her death to certain religious and charitable corporations as therein stated.

Laura H. Tobey died in 1926, leaving a will, by which she bequeathed specifically her personal effects, exercised her power of testamentary appointment over the real estate specifically devised in trust for her by the will of her brother Frank, and in numerous paragraphs following bequeathed pecuniary legacies to certain persons and corporations, aggregating about $75,000, and proceeded, in the twelfth paragraph of her will, as follows: “All the rest, residue and remainder of my estate, including the portion of the estate of my brother, Frank R. Tobey, over which I have testamentary disposition, I give, devise and bequeath to the West End Trust Company in trust to pay the income to my niece, Bessie R. Kurtz,” for the term of her life, and on her death the testatrix bequeathed certain pecuniary charitable legacies, and the balance to the University of Pennsylvania, to become a part of the Endowment Fund of that institution. She further provided, in paragraphs fourteen and fifteen of her will, as follows: “Fourteenth, in making this my last will and testament, I hereby exercise the power of appointment given to me by the last will and testament of my deceased brother, Frank R. Tobey, over the share of his estate in the hands of the trustee under his last will and testament. Fifteenth, I order and direct that all Federal, estate and collateral inheritance tax on all the legacies and devises contained in this my last will and testament shall be paid by my executors out of my residuary estate.”

This account is filed by the trustees of the fund of $100,000 bequeathed by Frank R. Tobey in trust for his sister Laura, under the fifth paragraph of his will. The principal questions raised at the argument upon the exceptions filed are, first, whether the legacies bequeathed by Laura are payable from the appointed fund; and, second, whether the appointed estate is subject to inheritance tax according to the doctrine of McCord’s Estate, 276 Pa. 459. The Auditing Judge held in his adjudication that the fund should be awarded to the executor of the will of Laura H. Tobey, because she had made the donor’s estate her own practically for all purposes, citing Com. v. Morris, 287 Pa. 61, and other cases, from which it follows inferentially that the appointed estate is subject to the legacies bequeathed by Laura H. Tobey and to inheritance tax as her estate. In our opinion, the adjudication is correct. It may be admitted that the principle of McCord’s Estate often presents difficulty in its application, but we do not propose to discuss in detail the numerous cases cited at the argument. We observe, however, that were it not for the fourteenth paragraph of the will above quoted, it might be argued that Hagen’s Estate, 285 Pa. 326, is applicable. But in the fourteenth paragraph of her will, Laura, the donee, expressly states, as above quoted, that she is making her will in the exercise of the power of appointment given to her by the will of her deceased brother, Frank, over the share of his estate in the hands of the trustee under his will. Laura had already, in the third paragraph of her will, expressly exercised her power of appointment over premises at 40th and Spruce Streets, specifically devised in trust for her, and she, again, in the twelfth paragraph, included in her residuary estate that portion of her brother Frank’s estate over which she had testamentary disposition; so there was no necessity or reason for her fourteenth paragraph, unless she intended it to apply to her entire will; that is, to those portions of it also in which she did not specifically refer to the exercise of her power. If the fourteenth paragraph had followed immediately after the third paragraph, we think there could be no doubt on the subject, especially in view of the fact that her individual estate was totally inadequate to defray the legacies given in paragraphs four to eleven, inclusive, of her will. The physical position of this paragraph is not important; it applies to the whole will, just as sometimes a testator will write his residuary bequest in the beginning, and just, as in her fifteenth paragraph, she provides for the exemption of all of her legacies from tax. After all, blending is a question of intention, and we are of opinion that the donee, regarding the appointed estate as virtually her own, intended so to dispose of it. It is true that she did not expressly direct the payment of her debts, but the Supreme Court has held that this is not necessary: Hagen’s Estate, 285 Pa. 326. We agree with the Auditing Judge that Com. v. Morris, 287 Pa. 61, rules the present ease, and the exceptions on this branch of the case are dismissed.

The account of the trustee shows that the fund of $100,000 originally awarded to it in trust under the terms of the will was increased by the sale of stock rights and of stocks, etc., so that the balance of principal now to be distributed consists of $165,519.49, and it was claimed at the audit that the difference was not subject to the power of appointment, but fell into the residuary estate of Frank R. Tobey. The Auditing Judge, however, ruled that the entire balance was subject to the power of appointment, and as the exceptions to this ruling were not pressed at the argument, and we fully agree with him, these exceptions are also dismissed.

All exceptions are dismissed and the adjudication is confirmed absolutely.

Henderson, J., did not sit.


text:
    Laura H. Tobey’s Estate.

      Taxation — Inheritance tax — Blending estates — Practice, O. C.

    1. Where, in deciding the question of the blending of an appointive and an individual estate, the liability of the appointed estate to taxation is inferentially, though necessarily, considered, the Orphans’ Court may pass upon the settlement of the tax.
    2. If, in such case, the only matter that requires further decision is the amount of the tax, such amount should be determined by a formal appraisement.
    3. While the Transfer Inheritance Tax Act of June 20, 1919, P. L. 521, provides in terms only for an appraisement by an appraiser appointed by the register of wills and appeal therefrom, yet it is proper, when there is no dispute, for the Auditing Judge to award the tax in his adjudication, or, if a question is raised, to award the balance for distribution subject to the regular assessment of the tax.
    4. It is proper practice for the register of wills to assess the tax subject to a suspended claim for further tax on a disputed credit claimed before the appraisers, for debts, excessive counsel fees or commissions, etc., although there is no express warrant in the act of assembly for the practice.
    5. Under such practice, the Auditing Judge, having all the parties before him, may dispose of the question as though on appeal, thus saving the time and expense which would be occasioned by circuity of action.
    Exceptions to adjudication. O. C. Phila. Co., July T., 1927, No. 2462.

      H. Gordon McCoueh, for University of Pennsylvania, exceptant.

      L. L. Smith, for West End Trust Company, trustee for Bessie R. Kurtz, exceptant.

      M. T. McManus, Alfred N. Keim and Thomas S. Williams, for legatees of Laura H. Tobey, and William M. Boenning, for Commonwealth, contra.
    Feb. 17, 1928.
   Gest, J.,

These exceptions filed to the adjudication in the estate of Laura H. Tobey were argued together with the exceptions filed to the adjudication on the account of the trustee for Laura H. Tobey under the will of Frank R. Tobey, deceased, and it is not necessary to repeat what has been therein said in reference to the execution by Laura H. Tobey of her power of appointment under the will of Frank R. Tobey and the liability of the appointed estate for inheritance tax.

The Auditing Judge, in reference to the latter subject, held that the amount of the tax and the liability of the appointed estate therefor was not before him, the original jurisdiction being with the Register of Wills under the Act of June 20, 1919, P. L. 521, and, consequently, made the following award:

“The balance, $4337.58, composed as set forth in the account, to which is to be added the award in the matter of Frank R. Tobey, made in and by the adjudication this day filed, less commissions, etc., . . . there being reserved from the residuary estate a fund sufficient to pay tax in the event that the taxing authorities assess same under and by virtue of the authority herein-before quoted, and also tax admittedly due, is awarded to those entitled as set forth in the annexed petition and as defined in and by this adjudication.”

No exceptions have been filed to' tbe ruling of the Auditing Judge that the tax due should be assessed by the appraiser duly appointed by the Register of Wills, but the procedure was discussed at the argument, and we consider it proper to state our views on the subject. The Auditing Judge followed strictly the provisions of the act of assembly under which the liability of an estate for the tax, as well as the amount of the tax, are to be so determined in limine; but in deciding the question of blending raised in the estate of Frank R. Tobey, the liability of the appointed estate to taxation was inferentially though necessarily considered; and we cannot see that any interests have been injuriously affected thereby, as all parties were before the Auditing Judge, and the only matter that requires further decision is the amount of the tax, which should be determined by a formal appraisement; and in the present case the value of the remainder interest is to be determined as of the. date when the estate of Laura H. Tobey, the remainderman, came into possession under section 3 of the Act of 1919, and see Ashmead’s Estate, 28 Dist. R. 222.

While, therefore, the provisions of the Transfer Inheritance Tax Act provide in terms only for an appraisement made by an appraiser appointed by the Register of Wills and the settlement thereof in a disputed case by an appeal to the Orphans’ Court, yet, in our practice, the Auditing Judge is accustomed, when there is no dispute, to award the tax in his adjudication, or, if a question is raised, to award the balance for distribution subject to the regular assessment of the tax, as the Auditing Judge did in this case. So, also, it is the practice in the office of the Register of Wills to assess tax subject to a suspended claim for further tax on a disputed credit claimed before the appraiser for debts, excessive counsel fees or commissions, etc., although there is no express warrant in the act of assembly for this practice, and, at the audit, the Auditing Judge, having all parties before him, disposes of the question as though on appeal, thus saving the time and expense which would be occasioned by circuity of action.

All exceptions are dismissed and the adjudication is confirmed absolutely.

Henderson, J., did not sit.


author: Finletter, P. J.,

text:
    Edmonds v. Cooper.

      Practice — Execution—Ca. sa. — Acts of April 13, 1807, and Jume 16, 1836.

    While the practice is to issue a ca. sa and ft. fa. together, the ca. sa. may issue alone.
    Acts of April 13, 1807, § 5, 4 Sm. Laws, 477, and June 16, 1836, P. L. 755, considered.
    Rule for ca. sa. C. P. No. 4, Phila. Co., Sept. T., 1924, No. 3698.

      Wolf, Block, Schorr & Solis-Cohen, for plaintiff.

      George S. Bussell, amicus curies.

    March 9, 1928.
   Finletter, P. J.,

The prothonotary has declined to issue a pluries writ of capias ad satisfaciendum unless it is accompanied by a writ of fieri facias. This rule is taken upon him to show cause why he should not issue the pluries ca. sa. alone.

The docket entries show that the plaintiff has already caused three such pairs of simultaneous writs to issue, all of which have been returned nulla bona and n. e. i.

There is no statute nor any rule of common law forbidding the issuance of the ca. sa,. in the first instance and alone if the defendant has no property.

The Act of April 13, 1807, § 5, 4 Sm. Laws, 477, and the Act of June 16, 1836, P. L. 755, are the only statutes that have to do with the subject. The former provided that “no writ of capias ad satisfaciendum shall issue in any case where the defendant may have real or personal estate to satisfy the plaintiff’s demand.” The Act of 1836 forbids a ca. sa. to be executed where the defendant has property.

Under both statutes, the practice grew up to issue a fi. fa. and ca. sa. together, and to require the defendant upon call to disclose any property he had. Advantage could then be taken of the disclosure by execution of the fi. fa. This, no doubt, was the practical reason for the simultaneous use of the two writs. From long-continued folio-wing of the practice, the idea grew up that the association of the writs is compulsory. The practice was expressly authorized by the Act of 1836, § 27. But this was permissive, not mandatory, and in aid of the plaintiff and of the previously existing practice. It was not prohibitory of the solitary ca. sa.: Allison v. Rheam, 3 S. & R. 139; Winder v. Smith, 6 W. & S. 424; Stofflet v. Kinsel, 24 Montg. Co. Law Repr. 26; Majeski v. Duzinski, 5 D. & C. 22.

The Act of 1836, in its 19th section, provided the order in which the person and estate of the defendant could be taken in execution. The personal estate first, then the real estate, and the person only when the defendant was without property. But there is nothing in the provision for this order that would require the plaintiff to demonstrate the fact that the defendant was without property by issuing process against real and personal estate before attempting to take the person. Whether accompanied by the fi. fa. or not, the ca. sa. could not be executed if a disclosure of property were made. But if the defendant has no property, the ca. sa. may issue and be executed in the first instance. Said Gibson, J., in Winder v. Smith:, “The statute now in force (the Act of 1836) does not prohibit a capias in the first instance. Such an arrest was held to be unlawful in Allison v. Rheam only because the capias was prohibited under the circumstances, and, therefore, void.” That is because the Act of 1807 prohibited the issuance. All that the Act of 1836 forbids is its execution if the defendant disclose property. Indeed, if he declines to disclose it, the legality of the ca. sa. may not afterwards be questioned, even if in fact the defendant had property. “The creditor might call upon the debtor for the proper information; and it is not to be doubted that if the latter refused to give it, he would have been estopped from showing the truth of the case afterwards in order to make the creditor a trespasser:” Gibson, J., in Winder v. Smith, supra.

The prothonotary need have no fear of personal liability, for the court has jurisdiction to issue the writ. The prohibition contained in the Act of 1807 against its issue was in effect repealed by the Act of 1836, which forbade only its execution. The former act was held to be superseded by the latter: Winder v. Smith, 6 W. & S. 424.

The practice of the sheriff’s office of executing writs of ca. sa. is now, and always has been, to have the deputy in charge call upon the defendant for a disclosure of property before attempting execution of the writ, and if disclosure is made, to refrain from executing the writ. If this is done, there can be no action against the sheriff.

The rule to issue the ca. sa. alone is made absolute.