author: Lewis, J., Lewis, J.,

text:
    Miller v. Reading Company.

      Negligence — Federal Safety Appliance Act — Federal Employers’ Liability Act — Workmen’s Compensation Act — Jurisdiction—Railroads.
    1. Where Congress has created a liability for damages for injury or death resulting from violation of the Safety Appliance Act, no state legislature can alter or impair the Federal right by passing compensation acts, and it is immaterial whether the injured employee was at the moment engaged in interstate or intrastate commerce if the employer carrier was engaged in interstate commerce.
    2. Where an employee of a railroad company which is engaged in interstate commerce is injured by a defective appliance while he is engaged in an intrastate employment, his remedy is under the Federal Safety Appliance Act, and not under the State Compensation Act.
    3. In such a case, the injured employee may proceed in the State court to enforce the provisions of the Federal Safety Appliance Act, but he cannot proceed under the State Compensation Act.
    Motion for judgment n. o. v. C. P. No. 2, Phila. Co., June T., 1926, No. 14520.

      Robert M. Bernstein, for plaintiff; William Clarice Mason, for defendant.
    May 4, 1927.
   Lewis, J.,

The plaintiff brought this action of trespass to recover damages for the loss of his leg while engaged in uncoupling two of defendant’s cars in the Port Richmond Yard, Philadelphia. In his statement of claim, he pleaded the Federal Employers’ Liability Act and also the Federal Safety Appliance Act.

It was practically conceded at the trial that interstate employment of the plaintiff at the time of the accident was not shown, and we do not understand that the contrary is now contended. It appears that when trains arrived at the receiving yard of the Port Richmond Branch, they were turned over to the yard crews, were then broken up and distributed. The plaintiff Miller was a member of one of the yard crews, and the particular train with which we are concerned comprised twenty-six cars of coal, all of which, according to the testimony, came from points within Pennsylvania. The train was divided up, so that first there were twenty-two cars and finally five. These five cars were clearly identified at the trial as being consigned, one to the Pennsylvania Goal and Coke Company and four to the Philadelphia Electric Company at Port Richmond. The testimony indicates that the cars consigned to the Philadelphia Electric Company had reached their destination, but we cannot say from the record whether that was also true concerning the fifth car.

A plaintiff can recover under the Federal Employers’ Liability Act only when it appears that he was engaged in interstate commerce at the time of the accident: Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33; Minnesota & St. Paul Ry. Co. v. Popplar, 237 U. S. 369; Smith v. Phila. & Reading Ry. Co., 288 Pa. 250; Sims v. Pennsylvania R. R. Co., 279 Pa. 111, 117. If he was engaged in interstate employment, his remedy is under that act (Bauchspies v. Central R. R. of N. J., 287 Pa. 590), and if his action is based upon that statute alone, he will, of course, be non-suited if he does not prove the interstate character of his work at the time of the accident, and if his duties are such as can be split into separate acts of inter- and intrastate employment: Konsoute v. Pennsylvania R. R. Co., 287 Pa. 302.

Plaintiff’s rights here, therefore, must necessarily depend upon the Safety Appliance Act, for it has been held and is established that this statute, as amended, embraces all locomotives and cars used on any railway that is a highway of interstate commerce, and that the employee injured as a result of a violation of the act need not himself have been engaged in interstate commerce; the theory invoked to support these decisions is that, under the commerce clause, the power of Congress is plenary and competent to require all vehicles moving on highways of interstate commerce to be so equipped as to avoid danger to persons moving vin interstate commerce: Southern Ry. Co. v. United States, 222 U. S. 20; Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33; San Antonio, etc., Ry. Co. v. Wagner, 241 U. S. 476; Sims v. Pennsylvania R. R. Co., 279 Pa. 111; Devine v. Buffalo, etc., Ry. Co., 253 Fed. Repr. 948 (C. C. A., 3rd Cir., 1918). This has been carried to the extreme of application to a railroad situated wholly within the State of Pennsylvania if it does both kinds of business: McMahon v. Montour R. R. Co., 283 Pa. 274, as reversed in 270 U. S. 628. The defendant corporation is within the decisions cited.

Having established that plaintiff’s rights are dependent upon the Safety Appliance Act, we come to the contention of the defendant upon this motion for judgment notwithstanding the verdict of $10,000 in plaintiff’s favor. Briefly stated, it is to the effect that, although the safety appliance statutes have created a cause of action, in that if they are violated the offending carrier is presumed to be guilty of negligence and the defence of assumption of risk is barred, yet where it appears that the employee was engaged in intrastate commerce, his remedy for enforcing that cause of action is by application to the Workmen’s Compensation Board.

So far as we can find, this is the first occasion on which this point has been raised in a court of this State, although there are decisions both ways in the Federal courts, as we shall show. The Federal statute under consideration does not, it is urged, fix the amount of recovery and does not provide the forum in which the right of action should be enforced. It was shown at the trial, as a basis for the argument now made, that no rejection of the Pennsylvania Workmen’s Compensation Act was ever filed by plaintiff or defendant; the terms of the act were, accordingly, part of the contract of employment: Liberato v. Royer & Herr, 81 Pa. Superior Ct. 403, 281 Pa. 227; Anderson v. Carnegie Steel Co., 255 Pa. 33. If the plaintiff’s injury had been occasioned by something other than a defective coupler, he would be compelled under his contract to look to the Compensation Board. Is the situation entirely different because of the Act of Congress?

The title of the Safety Appliance Act, repeated in that of each supplement, reads: “An act to promote the safety of employees and travelers, etc.” It makes unlawful the use on the road of a common carrier engaged in interstate commerce of any car not equipped with couplers coupling automatically by impact and which can be uncoupled without the necessity of men going between the ends of the cars. By section 4 of the Amendment of April 14, 1910, 36 Stat. at L. 299, a penalty for each violation is provided, following which are several provisos, including, “and nothing in this section shall be construed to relieve such carrier from liability in any remedial action for the death or injury of any railroad employee caused ... by reason of . . . equipment . . . not maintained in accordance with the requirements of this act. . . "

«It is now not open to question that the act, while containing no express language conferring it, gave a right of private action by an injured employee under application of the maxim ubi jus ibi remedium: Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33.

The point really presented, then, is whether the State Compensation Acts have superseded or can supersede the right of action for damages which the employee undoubtedly had theretofore if his injury resulted from a violation of the Federal act, or whether such acts have modified that right of action to the extent of providing that he may recover only according to the schedule established by the various' legislatures.

The language of Mr. Justice Pitney in the Rigsby case (241 U. S. 33), already cited several times, would appear to furnish a clear answer in the negative. He said: “In the exercise of its plenary power to regulate commerce between the states, Congress has deemed it proper, for the protection of employees and travelers, to require certain safety appliances to be installed upon railroad cars used upon a highway of interstate commerce, irrespective of the use made of any particular car at any particular time. Congress having entered this field of regulation, it follows from the paramount character of its authority that state regulation of the subject-matter is excluded: Southern Ry. Co. v. Railroad Commission, Indiana, 236 U. S. 439. Without the express leave of Congress, it is not possible, while the Federal legislation stands, for the states to make or enforce inconsistent laws giving redress for injuries to workmen or travelers occasioned by the absence or insecurity of such safety devices any more than laws prescribing the character of the appliances that shall be maintained, or imposing penalties for failure to maintain them; for the consequences that shall follow a breach of the law are vital and integral to its effect as a regulation of conduct, liability to private suit is or may be as potent a deterrent as liability to public prosecution, and in this respect there is no distinction dependent upon whether the suitor was injured while employed or traveling in one kind of commerce rather than the other. Hence, while it may be conceded, for the purposes of the argument, that the mere question of compensation to persons injured in intrastate commerce is of no concern to Congress, it must be held that the liability of interstate carriers to pay such compensation because of their disregard of regulations established primarily for safeguarding commerce between the states is a matter within the control of Congress; for unless persons injured in intrastate commerce are to be excluded from the benefit of a remedial action that is provided for persons similarly injured in interstate commerce — a discrimination certainly not required by anything in the Constitution — remedial actions in behalf of intrastate employees and travelers must either be governed by the Acts of Congress or else be left subject to regulation by the several states, with probable differences in the law material to its effect as regulatory of the conduct of the carrier. We are, therefore, brought to the conclusion that the right of private action by an employee injured while engaged in duties unconnected with interstate commerce, but injured through a defect in a safety appliance required by the Act of Congress to be made secure, has so intimate a relation to the operation of the act as a regulation of commerce between the states that it is within the constitutional grant of authority over that subject.”

The only case precisely in point cited to us is Delaware, etc., Ry. Co. v. Peck, 256 Fed. Repr. 261, and it is true the Circuit Court of Appeals for the Second Circuit there held that the Federal court was without jurisdiction over an action based upon the Safety Appliance Act brought by an employee hurt while in intrastate commerce and that the remedy was under the State Compensation Act. Ward, C. J., said: “The plaintiff’s employment and injury both took place in the State of New Jersey. His theory is that for injuries resulting from a violation of this act he may recover damages in a common-law action brought wherever he can serve the defendant. But master and servant together constitute a relation or status which involves many mutual rights and duties not expressed in the specific contract of employment. That contract fixes, among other things, the kind, place and time of employment and the compensation. The definition and extent of the relation itself are fixed by the law of the state where it was established, but Congress has written into it, in the case of railroad companies and their employees, this additional feature on which the plaintiff relies. The State of New Jersey has defined the rights and duties of the relation of master and servant by the Workmen’s Compensation Act . . . which we regard as excluding all other jurisdictions.”

The weakness of this citation, however, is that Judge Mantón, of the same circuit, who was not on the Bench when it was decided, seized the opportunity in Director General of Railroads v. Ronald, 265 Fed. Repr. 138, to repudiate it, saying, in a concurring opinion: “The result there is irreconcilable with pronouncements of the Supreme Court and the result reached in other circuits to which I have called attention, and should, therefore, not be followed."

In Ross v. Schooley, 257 Fed. Repr. 290 (C. C. A. 7th Cir., 1919), it was said:

“Inasmuch as the Congress has created the liability for damages for injury or death resulting from violation of the Safety Appliance Act, no state legislature can alter or impair the Federal right by passing compensation acts.
“It is immaterial whether the injured employee was at the moment engaged in interstate or intrastate commerce, because the congressional power that .was called into play was the power to prescribe the equipment of interstate carriers for the protection of all persons upon such roads, both employees and travelers, regardless of their participation in interstate commerce. A state legislature, therefore, has no more power to curtail the Federal right of an employee than of a traveler.
“What effect a state compensation law has upon the right, under the Safety Appliance Act, of an employee who was injured through defective appliances while coupling intrastate cars on an interstate railroad, has not been directly involved in any case in the Supreme Court cited by counsel or found by us. But our conclusion, which rejects a result that would make the operativeness of the act dependent upon the legislative wills of the several states and which aligns that act with the Employers’ Liability Act in substantive and procedural effect, is supported by our understanding of (numerous cases cited).”

An application for a writ of certiorari was denied in the above case by the Supreme Court: 249 U. S. 615.

There is much to be said on the other side. We have before us one who was engaged in intrastate commerce at the time of the accident. That is an occupation over which, in the ordinary case, Congress has no power such as it possesses with regard to interstate employment. It is without doubt proper that Congress should be conceded the power to legislate regarding some intrastate matters which are so intimately connected with interstate commerce as to be almost indistinguishable from it. But beyond what is necessary to protect interstate transportation by requiring that certain standards must be met even in intrastate haulings, Federal legislation should not go. A principle sometimes overlooked is that the powers of a state over all intrastate business and transportation are as broad and as all-inclusive as the control of Congress over interstate transportation: 1 Roberts, Federal Liabilities of Carriers, § 22.

The Safety Appliance Act by its express terms affected the relation between railroads and employees in intrastate matters in one respect only — it created a cause of action in favor of an employee who receives an injury due to the failure of his railroad employer to observe the requirements of the act. This has been recognized by the United States Supreme Court, for in Minnesota & St. Paul Ry. Co. v. Popplar, 237 U. S. 369, 372, which was a case brought under the Safety Appliance Act and one in which the employee was not engaged in interstate commerce, it was said: “The action fell within the familiar category of cases involving the duty of a master to his servant. This duty is defined by the common law, except as it may be modified by legislation. The Federal statute, in the present case, touched the duty of the master at a single point, and, save as provided in the statute, the right of the plaintiff to recover was left to be determined by the law of the state.”

Sept. 15, 1927.

This was repeated by Mr. Justice Walling in Sims v. Pennsylvania R. R. Co., 279 Pa. 111, 116: “Cases, however, growing out of intrastate traffic are governed by state laws, except as modified by the Federal Safety Appliance Acts: Minneapolis, etc., Ry. Co. v. Popplar, supra; 1 Roberts, Federal Liabilities of Carriers, 1288.”

As indicating that there is warrant for viewing the application of the Safety Appliance Act differently, depending on whether interstate or intrastate employment is involved, attention may be directed to the fact that in the former situation the Federal statute of limitation controls, while in the latter the state statute governs: 2 Roberts, Federal Liabilities of Carriers, §§ 884 and 885; Nichols v. Chesapeake & Ohio R. R. Co., 195 Fed. Repr. 913.

It was said in Campbell v. Haverhill, 155 U. S. 610: “The truth is that statutes of limitations affect the remedy only, and do not impair the right, and that the settled policy of Congress has been to permit rights created by its statutes to be enforced in the manner and subject to the limitations prescribed by the laws of the several states.”

It is argued with force that the State Workmen’s Compensation Act likewise affects the remedy and does not impair the right of action created by the Federal act. It will no doubt be said that if the State has the power to limit the amount of recovery, it has the power, also, to provide that the parties, employer and employee, may, by contract, waive the right to collect damages. The Compensation Act does not have such an aim; it is, rather, an act containing much that is highly advantageous to the employee; and, were the questions still open, we would incline to the view that no valid reason exists why the Compensation Act of Pennsylvania should not apply to an employee injured as a result of a violation of the Safety Appliance Act while engaged in intrastate employment.

However, the scope and intent of the decisions of the Federal courts are such that we must consider the question here raised as ruled against defendant. We, therefore, overrule the motion for judgment n. o. v.

Supplemental opinion.

Lewis, J.,

Our attention has been called to another position of the defendant to which no direct reference was made in our former opinion. Inasmuch as this position will, we are advised, be made the basis of a substantial part of the argument upon appeal, we deem it expedient to state briefly our views concerning it.

Assuming that Congress has the right or power to create a cause of action for violation of the Safety Appliance Act which a plaintiff may assert, even though it arose while he was in intrastate service, this is a cause of action which he must go to the Federal courts to enforce. So far as the State tribunals are concerned, the legislature has, in the Workmen’s Compensation Act, taken from the Common Pleas Courts jurisdiction to hear a case such as the plaintiff herein has presented, and has placed it in the first instance in the Compensation Board. In other words, an employee of an interstate carrier injured as a result of a violation of the Safety Appliance Act while engaged in intrastate commerce is put to his election between an action in the Federal court and presenting his claim to the Workmen’s Compensation Board. Thus argues counsel for the defendant.

In 2 Roberts’s Federal Liabilities of Carriers, § 877, we find the following: “The enforcement of rights under the Safety Appliance Act in personal injury actions is not restricted to the Federal courts. The state courts must always hold themselves open for the prosecution of civil rights growing out of the laws of the United States.”

4 Elliott on Railroads (3rd ed.), S 2000, reads: “The state courts as well as Federal courts have jurisdiction over actions for personal injuries caused by violation of the Federal Safety Appliance Acts, and they must take judicial knowledge of such statutes and apply them in a proper case.”

It is conceded that our courts have entertained jurisdiction of such cases since the passage of the Compensation Act (Sims v. Pennsylvania R. R. Co., 279 Pa. 111), but it is pointed out that the question raised here was not argued there. The argument now made, however, is by no means novel or new. It has had to be answered from an early date. Thus, the Supreme Court of the United States said many years ago (Clalin v. Houseman, 93 U. S. 130, 136, 137): “The laws of the United States are laws in the several states, and just as much binding on the citizens and courts thereof as the state laws are. The United States is not a foreign sovereignty as regards the several states, but is a concurrent and, within its jurisdiction, paramount sovereignty. ... If an Act of Congress gives a penalty (meaning civil and remedial) to a party aggrieved, without specifying a remely for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some Act of Congress, by a proper action in a state court. The fact that a state court derives its existence and functions from the state laws is no reason why it should not afford relief; because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the state as it is to recognize the state laws. The two together form one system of jurisprudence, which constitutes the law of the land for the state; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent. . . . But this is no reason why the state courts should not be open for the prosecution of rights growing out of the laws of the United States, to which their jurisdiction is competent and not denied.”

Mr. Justice Shiras, in Murray v. Chicago & N. W. Ry. Co., 62 Fed. Repr. 24, pointed out that: “The courts of the states are constantly called upon to hear and decide cases arising under the Federal Constitution and laws, just as the courts of the United States are called upon to hear and decide cases arising under the law of the state when the adverse parties are citizens of different states. The duty of the court is to explain, apply and enforce the existing law in the particular cases brought before them. If the law applicable to a given case is of Federal origin, the legislature of the state cannot abrogate or change it, but the courts of the state may apply and enforce it. . . .”

In more recent years the Federal Supreme Court has considered “whether rights arising under the Congressional Act (Federal Employers’ Liability Act) may be enforced, as of right, in the courts of the states,” and decided they were: Second Employers’ Liability Cases, 223 U. S. 1. “The suggestion that the Act of Congress is not in harmony with the policy of the state (respecting the liability of employers to employees for injuries received by the latter while in the service of the former), and, therefore, that the courts of the state are free to decline jurisdiction, is quite inadmissible, because it presupposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the states, and thereby established a policy for all. That policy is as much the policy of Connecticut as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the state” (page 57).

Answering a similar argument as here made, Mr. Chief Justice White wrote in Minneapolis, etc., R. R. v. Bombolis, 241 U. S. 211, 221: “Moreover, the proposition is in conflict with an essential principle upon which our dual constitutional system of government rests; that is, that lawful rights of the citizen, whether arising from a legitimate exercise of state or national power, unless excepted by express constitutional limitation or by valid legislation to the effect, are concurrently subject to be enforced in the courts of the state or nation when such rights come within the general scope of the jurisdiction conferred upon such courts by the authority, state or nation, creating them.”

But, aside from the foregoing, we disagree with the very premise upon which the defendant’s argument is founded. There is nothing in the Workmen’s Compensation Act which shows that the legislature intended to attempt to deprive the Common Pleas Courts of jurisdiction of a case arising under the Safety Appliance Acts. True, section 1 says it “ shall apply to all accidents occurring within this Commonwealth,” but there is no more reason to believe that such language necessarily was intended to compel employees having a cause of action under the Federal Act to assert it before the board, if they wish a state tribunal,' than to suppose it was intended to apply in cases of accidents occurring in Pennsylvania in the course of interstate commerce. Were we so to construe the act, with its limitations upon the amount to be recovered, it would manifestly be in abrogation or modification of the Federal statute on a subject-matter over which Congress has plenary power— as much so as is the case of interstate commerce.

It follows logically and unmistakably from our former opinion, and we now definitely state that it is our view, that the plaintiff was within his rights in instituting suit in this court.


source: Caselaw Access Project

author: Schnader, Special Dep. Att’y-Gen.,

license: Public Domain

text:
    Boxing and Wrestling Exhibitions.

      Athletic Commission■ — Boxing and wrestling — Amateur performances— Jurisdiction — Tax on receipts — Act of June H, 1923.

    1. The State Athletic Commission has jurisdiction, under the Act of June 14, 1923, P. L. 710, of all boxing, sparring and wrestling matches to which an admission fee is charged, and all persons holding such matches must pay to the Commonwealth 5 per cent, of the gross receipts from admission fees, even though only amateurs participate therein.
    2. This construction is not affected by the fact that exhibitions in which all contestants are amateurs are excluded from the penal provisions of section 23 of the act.
    Department of Justice. Opinion to Mr. Frank Wiener, Chairman of the Pennsylvania State Athletic Commission, Philadelphia.
    July 14, 1927.
   Schnader, Special Dep. Att’y-Gen.,

We have your request to be advised whether, under the Act of June 14, 1923, P. L. 710, persons conducting boxing, sparring or wrestling matches or exhibitions in which only amateurs participate are subject to the jurisdiction of your commission and liable to pay to the Commonwealth 5 per centum of the gross receipts derived from admission charges to such matches or exhibitions.

Section 4 of the Act of 1923 is, in part, as follows: “Boxing, sparring and wrestling matches or exhibitions for purses or where an admission fee is received are hereby allowed, except on Sundays. The commission shall have, and hereby is vested with, the sole direction, management, control and jurisdiction over all such boxing, sparring and wrestling matches or exhibitions to be conducted, held or given within this Commonwealth, and it is hereby authorized to issue licenses therefor. No such boxing, sparring or wrestling match or exhibition shall be conducted, held or given within the Commonwealth except in accordance with the provisions of this act. . . . The commission is hereby further given the sole control, authority and jurisdiction over all licenses to hold boxing, sparring or wrestling matches or exhibitions for purses or where any admission fee is received, and over all licenses to any and all persons who participate in such boxing, sparring or wrestling matches or exhibitions as hereinafter provided.”

Section 5 of the act provides for the granting of licenses to conduct, hold or give boxing, sparring and wrestling matches or exhibitions.

Section 6 provides that “all corporations or persons, physicians, referees, judges, time-keepers, professional boxers, professional wrestlers, their managers, trainers and seconds shall be licensed by the said commission. . .

Section 21 of the act provides that “every corporation or person holding any boxing, sparring or wrestling match or exhibition under this act for which an admission is charged and received shall pay to the State Treasurer 5 per centum of the total gross receipts, exclusive of any Federal taxes paid thereon.”

Clearly the provisions of the Act of 1923 to which we have referred subject to the jurisdiction of your commission all boxing, sparring and wrestling matches for which an admission fee is received, and require the persons conducting such matches or exhibitions to be licensed and to pay to the Commonwealth 5 per centum of the gross receipts from the admission fees charged and received for such matches or exhibitions.

We understand that it has been urged upon you that section 23 of the Act of 1923 indicates that the legislature did not intend to subject to the jurisdiction of your commission contests in which all of the participants are amateurs. Section 23 is as follows: “Any person or persons, association or corporation, directly or indirectly, holding any boxing, sparring or wrestling match or exhibition, except where all contestants are amateurs, without first having procured a license as hereinbefore prescribed, shall be guilty of a misdemeanor, and, on conviction, shall be sentenced to pay a fine of not exceeding $5000.”

It is argued that the legislature, by not rendering this penal section applicable to the conduct of matches or exhibitions in which all the contestants are amateurs, expressed an intention not to bring such matches or exhibitions under the jurisdiction of your commission and not to require a percentage of admission fees to such matches or exhibitions to be paid into the State Treasury.

This argument does not rest upon any substantial basis.

The legislature might have omitted entirely all penal provisions without in any wise impairing the validity of the act. It could and did include in the act penal provisions' rendering only certain violations thereof criminal offences. That it did not declare certain violations of the act to be criminal offences, punishable by fine or imprisonment, cannot be taken as the basis for deleting by construction the plain, unambiguous provisions of the act, violations of which were not made criminal offences.

Section 4 unquestionably renders subject to the jurisdiction of your commission not only boxing, sparring and wrestling matches or exhibitions “for purses,” but also all such exhibitions “where an admission fee is received.”. Whether the contestants are professionals or amateurs is immaterial if an admission fee is charged and received.

Accordingly, you are advised that your commission has jurisdiction of all boxing, sparring and wrestling matches or exhibitions to which an admission fee is charged, and that all persons holding such matches or exhibitions must pay to the Commonwealth 5 per centum of the gross receipts realized from admission fees. While your commission cannot prosecute persons holding amateur matches or exhibitions without a license, you are not without means of compelling obedience to the act of assembly. You can apply for and, in our opinion, obtain injunctive relief against any person, association or corporation which proposes, without having obtained a license, to hold boxing, sparring or wrestling matches or exhibitions for purses or where an admission fee is to be received.

So that there may be no misunderstanding on your part, we call your attention to the fact that, while you can compel persons, associations or corporations holding matches or exhibitions in which the contestants are amateurs to be licensed by your commission if admission fees are to be charged, you cannot, under section 6 of the Act of 1923, compel amateur contestants to obtain licenses from your commission. As far as contestants are concerned, only professional contestants, as particularly defined in section 6, need apply for and receive licenses entitling them to participate in athletic contests under your supervision.

From C. P Addams, Harrisburg, Pa.


author: Henry, P. J.,

text:
    Vasil & Christake v. Slammer et al.

      Landlord and tenant — Covenants of lease — Deposit against breaches of covenant — Default in rent.

    Where a lease provides that a deposit given by the the express purpose of securing the performance of all the covenants contained in the lease and not merely for the payment of rent, the lessee cannot require the lessor to apply such deposit to the payment of monthly rentals, and if the lessee defaults in paying a monthly rental, relying upon his right to insist upon such application of the deposit, the lessor may terminate the lease and recover possession by such legal proceedings as are therein provided; a tender by the lessee of rent for a later month, admittedly not covered by the deposit, will not continue the lease and may be refused by the lessor.
    Motion to strike off non-suit. C. P. No. 5, Phila. Co., March T., 1922, No. 7757.

      W. Horace Hepburn, for plaintiffs.

      Wolf, Patterson, Block & Schorr, for defendants.
    Sept. 2, 1927.
   Henry, P. J.,

52nd judicial district, specially presiding,

The plaintiffs sued in trespass for damages claimed to have been suffered by reason of an alleged wrongful dispossession of real estate. On Jan. 24, 1921, the defendant, United Retail Candy Stores Company, Incorporated, by writing, leased to the plaintiffs the store and basement at No. 637 Market Street, being the northeast corner of Seventh and Market Streets, in the City of Philadelphia, for the term from Jan. 1, 1921, to Dec. 31, 1930, at an annual rental of $12,000, payable in equal monthly instalments, in advance, on the first day of each month, to the lessor, at No. 44 West Eighteenth Street, in the City of New York. The lessees were also required to pay the water rents and charges, instalment of the necessary meters, keep the premises in good condition and safe and proper repair, making all necessary repairs, and comply with all laws and ordinances, as well as insurance regulations, and, among other things, to indemnify and save harmless the lessor of and from all suits, claims and demands arising or growing out of or connected with the occupation or use of the said premises and the sidewalks connected therewith. The lease also provided for the deposit of the sum of $1500 on April 1, 1921, which was complied with by the lessees, and an additional sum of $1000 on April 15, 1921, which was not complied with by the lessees, but which lack of performance was claimed to have been waived by the agents of the lessor; which amounts were to be held under the terms of a collateral agreement which provided, among other things, that this deposit was to be held by the lessor “for the punctual payment of the rents and performance of the covenants and agreement in the within lease set forth to be paid and performed by the lessee. In the event that the lessee shall faithfully and fully pay the said rent and keep and perform each and every of the covenants, agreements and provisions of the said lease to be kept and performed by the lessee up to the end of and during the full term and period of this lease, then the lessor may use and apply said sum so deposited for the rent hereinbefore provided to be paid by the said lessee for the last two months’ rent, so far as the same will apply;” with the right to the lessor to apply said deposit to the payment of rent in the event of default by the lessee at any time during the term. On Jan. 12, 1922, the lessor gave notice to the lessees that the lease would be terminated on Jan. 31, 1922, for failure to comply with its terms, and especially the payment of the $1000 on April 15, 1921, “as additional rent.” Instead of the instalment of $1000 payable on Feb. 1, 1922, the plaintiffs paid $400, or possibly $500. The instalment on $1000 due March 1st was not paid, the plaintiffs claiming that the $1500 deposit, together with the $400 paid in cash, paid the rentals accruing on Feb. 1st and March 1st; and on April 1st, a certified check was tendered for $1000 for.the April rental, which was declined by the lessor. On April 18, 1922, the plaintiffs were dispossessed, presumably by confession of judgment in ejectment under the provisions of the lease.

Under this evidence, the court granted the motion of the defendants for a compulsory non-suit, which the plaintiffs have now moved to strike off.

The $1500 deposit was clearly given for the purpose of securing the performance of all the terms of the lease by the lessees, not only the payment of the rent, but the performance of every other undertaking, and was to be held by the lessors until the end of the term, when it was to be applied to the last two months’ rent, unless, in the event of prior default, the lessor saw fit to apply it to accruing rentals; but the lessees were never in the position where they could deliberately default and ask that the deposit be applied to accruing rentals, and then, by tendering the monthly rent payable, continue to extend the lease. When the lessees failed to pay the rent falling due on Feb. 1st and March 1st, and assumed to apply the deposit to these rentals, they defaulted in the performance of the plain terms of their lease and thus terminated it, so that they might well consider the deposit as applied to the remaining rent during the period of their possession, that is, up to April 1st; and thereafter they were tenants at will and subject to be dispossessed at any time by proper proceedings upon the part of the lessor. There is no contention of any irregularity in the manner of repossessing themselves on their part by the lessor, the sole contention here being that the rent had been fully paid at the time of the dispossession by reason of the application by lessees of the $1500 deposit and the $1000 certified check to rental which would accrue under the terms of the lease up to May 1, 1922.

This contention is unsound under the lease and the facts developed in this case. The lessees were in default and the defendants were within their rights in securing possession of the leased premises by proper legal procedure.

And now, to wit, Sept. 2, 1927, the motion to strike off the non-suit is overruled.


author: HaRGEST, P. J.,

text:
    Keever v. Ulrich.

      Mechanic’s liens — Amendment—Limitations—New party — Notice of intention to file claim — Sufficiency—Act of June k, 1901.

    1. A mechanic’s lien filed by a sub-contractor against the owner for materials, etc., furnished the contractor cannot be amended after the expiration of the statutory period as provided in section 51 of the Act of June 4, 1901, P. L. 431, by setting up an agreement by the owner to pay for all the work after the latter had taken over the contract, as this would substitute a new party as contractor.
    2. A notice of intention to file a claim is insufficient which merely avers the furnishing of labor and materials for a total sum mentioned without stating the character, quantity or dates of delivery and without averring that there was a lump sum contract.
    Motion to strike off mechanic's lien. C. P. Dauphin Co., M. L. D. “D,” No. 649.

      John R. Geyer, for plaintiff; Metzger & Wickersham, for defendant.
    March 30, 1927.
   HaRGEST, P. J.,

The plaintiff, on June 18, 1923, filed a lien against a property therein described, situate in the Borough of Middletown, Dauphin County, Pennsylvania, and against the defendant as “the owner or reputed owner.” The statement of the demand upon which the lien was based averred that “the name of the contractor with which the claimant contracted is William Noel.” It was averred that the claimant furnished to the contractor, during the erection of a double brick dwelling-house, certain bathroom fixtures, pipes, soil sinks, boilers, tin roofing, gutter and conduit pipes and other'equipment and all necessary labor for the installation of the plumbing and fixtures, including a range, boiler and water heater. On Sept. 10, 1923, the defendant moved to strike off the lien for the reason that it did not appear that there was any notice of the intention to file the lien given, as required by the Mechanics’ Lien Law, and that it did not appear whether the lien was upon a contract for a fixed sum or upon a unit basis or at a fair and reasonable price for labor and material. On June 12, 1924, the plaintiff prayed for leave to amend his lien so that it might read, “The name of the contractor with which the plaintiff first contracted is William Noel,” and- also asked leave to amend so as to show that the contract was made with “Henry A. Ulrich, also known as Al Ulrich,” and that in the negotiations William Noel was in fact only an agent for “Henry A. Ulrich, also known as Al Ulrich.” To this petition, and the rule granted thereon, an answer was filed and the defendant, on Sept. 7, 1926, filed a further petition to strike off the mechanic’s lien on the ground that no scire facias had been issued thereon within two years.

A number of questions have been raised in these various pleadings. It is not necessary to discuss all of them. Section 51 of the Mechanics’ Lien Law of June 4, 1901, P. L. 431, providing for an amendment of a mechanic’s lien, reads, in part, as follows: “Such amendment shall be of right, saving intervening rights; except that no amendment of the claim shall be allowed, after the time for its filing has expired, which undertakes to substitute an entirely different property from that originally described in the claim or a wholly different party as the defendant with whom the claimant contracted.”

This lien, as filed, shows William F. Keever to be sub-contractor, and, as a sub-contractor, he was required to give notice of his intention to file the lien. The work was done on a leasehold estate, and, under the Mechanics’ Lien Law, the time for filing the lien was “within three months after the claimant’s contract or agreement is completed.”

The application to amend this lien by substituting the owner as the contractor was made within a few days of the expiration of a year after the lien was filed. In the petition it was averred that the contractor and the owner disagreed and the owner thereupon authorized the plaintiff to finish the work, agreeing to pay both for that which had been done and that which remained to do. It seems to be the settled law in this State that one cannot amend a lien after the time for filing has expired by striking out the name of the contractor and making the name of the owner appear as contractor.

In Lynn v. Roseto Co., 18 Northamp. Co. Repr. 109, the situation is almost on all-fours with the instant case. The owner was dissatisfied with the contractor and the sub-contractor alleged that the owner made a veritable contract with him after the time for filing had expired. The court said: “He also alleges that after he had proceeded with his work for about a month, he stated to the company that he was dissatisfied with Rissmiller, the contractor, and intended to discontinue his work, and that the officers then stated he should go ahead and the company would pay him for his work and materials and that the contract was entered into with the company directly; and he further alleges that the lien was filed at the direction of the company so that it could deduct plaintiff’s claim from the sum due the plaintiff. In other words, after having set up a contract with the contractor, he proposes to amend by setting up a contract with the owner. ... We are very clear that the statutory period having expired, the proposed amendment must be refused.”

In Rodgers Sand Co. v. Pitts., C. & W. Ry. Co., 17 Dist. R. 377, the court said: “We are inclined to believe that the act means precisely what it says— that a claimant shall not be allowed to amend by substituting a different party as the person with whom he contracted, that being a matter at all times within his own knowledge.”

To the same effect is John T. Dyer Quarry Co. v. S. R. Moss Cigar Co., 19 Dist. R. 872, 27 Lanc. Law Rev. 83; Bateman v. McGarrigle Livery Co., 25 Dist. R. 542; Wint Co., Ltd., v. Kurecz, 17 Northamp. Co. Repr. 163. It, therefore, appears that the plaintiff has no right to amend so as to substitute a wholly different party as the defendant with whom he contracted.

This leaves a lien of a sub-contractor which shows on its face that it was filed without giving any notice of an intention to file it.

The plaintiff also asks to amend by showing that on or about April 28, 1923, a notice was given of the intention to file the lien. The notice which he intends to prove is as follows: “Notice is hereby given that a lien will be filed by me against premises No. - Emaus Street, Middletown, Pennsylvania, for materials furnished and work done by me, amounting to $518.50, upon which a payment of $178.40 has been made, leaving a balance due of $340.10, in accordance with the terms of the accompanying affidavit, unless said claim is forthwith paid and satisfied. William F. Keever, Sub-Contractor.”

The affidavit states that the amounts set out in the notice are true and that they are for “bath-room fixtures, water pipe, soil sinks and boilers, tin roofing, gutter and conduct, seventy-two (72) feet, three-fourths (I) inches pipe elbows and tees for gas stove, the labor consisted of installing the aforesaid work, making a base for range boiler, and fitting up water heater at a total charge of $518.50 upon which there is still due the deponent the sum of $340.10, as aforesaid.”

Neither in the lien nor the notice is there any suggestion of a contract for a lump sum or any statement as to how the contract was made. The extent of the statement is “at a total charge of $518.50.” There is no information given in the notice as to the character of the materials furnished; the names of the materials, but not their character or quality, are set out, and there are no dates of delivery.

We think the claim might be amended even after the expiration of the statutory period by showing the service of a notice of an intention to file the claim: Heist v. Montayne, 53 Pa. Superior Ct. 611, 614; Rich v. Boguszinski, 85 Pa. Superior Ct. 385, 387; Wyoming Valley Lumber Co. v. Turnbach, 30 Pa. C. C. Reps. 408, 411. But even if amended, the claim would be fatally defective because the notice is insufficient, and if to permit the amendment is doing a vain thing, it ought not to be done.

In Knelly v. Horwath, 208 Pa. 487, 491, the Supreme Court said: “A mechanic’s lien is purely statutory and a compliance with the statutory requirements is necessary in order to give it validity. There is no intendment in its favor. It must be self-sustaining and must show on its face that it is such a lien as the statute authorized the claimant to file.”

In Wolf Co. v. Pennsylvania R. R. Co., 29 Pa. Superior Ct. 439, the notice and sworn statement set forth that “the last materials therefor were delivered on or about July 30, 1903,” and the court held that this language was indefinite and that the notice was not a sufficient compliance with the law to sustain the lien which was stricken off.

Section 8 of the Mechanics’ Lien Law of 1901 requires “a sworn statement setting forth the contract under which he claims.” The notice in this case sets forth no contract except that the work was' done “at a total charge of $518.50.” It does not in any way aver the terms of the contract. The authorities are uniform that a notice which does not furnish the owner with information as to the substantial covenants of the contract does not comply with the statute: Collins v. Penna. R. R. Co., 29 Pa. Superior Ct. 547; McVey v. Kaufmann, 223 Pa. 125, 128; Hart v. Lehigh Valley R. R. Co., 41 Pa. Superior Ct. 224; Herr v. S. R. Moss Cigar Co., 237 Pa. 232, 237; McCrum-Howell Co. v. Empfield, 50 Pa. Superior Ct. 551. So it is also necessary to the validity of the lien that the sworn statement must not only set out “the kind of labor and materials furnished by general allegation, but must, give such a description of the quality and character of the things furnished that they can be distinguished and identified:” Breitweiser Lumber Co. v. Wyss-Thalman, 51 Pa. Superior Ct. 83, and it is not sufficient if the notice merely states that the materials furnished were “plumbers’ supplies, such as bath-tubs, water-closets, lavatories, sinks, wash-trays, etc., with fixtures and appliances, soil-pipe, t’s, y’s, bends, ferrules, off-sets and connections, vent-boxes, solder, etc.:” Ronalds & Johnson Co. v. Rogers, 25 Dist. R. 25; Burrows v. Carson, 244 Pa. 6. This is precisely what the notice and the claim itself in the instant case do. In the case before us, there is no averment as to the dates of delivery of the specific articles, and the notice and claim are also defective for that reason: Crane Co. v. Rogers, 60 Pa. Superior Ct. 300.

In passing upon these questions, it must be understood that this claim must be treated as the claim of the sub-contractor against William Noel, the contractor, because there is no right to amend the claim by substituting the owner. We recognize that if the lien had been promptly filed originally, showing an acceptance and approval by . the owner of a lump sum contract, an itemized account would not be necessary: Chapman v. Faith, 18 Pa. Superior Ct. 578.

It, therefore, appears, since there is no right to substitute the owner as the contractor after the time for filing the lien had expired, and the notice and sworn statement which the plaintiff proffers as an amendment is fatally defective on its face, such an amendment cannot have the effect of curing the invalidity of this lien. For these reasons, the motion of the defendant to strike off the lien must prevail.

Now, March 30, 1927, the rule granted upon the petition of the defendant to strike the lien from the record is hereby made absolute, the petition therefor is sustained, and the lien is hereby stricken from the record, at the costs of the plaintiff.

Prom Homer L. Kreider, Harrisburg, Pa.


author: Savers, P. J.,

text:
    Ewart v. Riffle et al.

      Practice — New trial — Juror a non-resident of county.

    1. The fact that one of the jurors in a civil case is a non-resident of the county is not ground for a new trial.

      Landlord and tenant — Action—Trespass for wrongful eviction — Amendment at trial — Act of May 10,1871.

    2. A tenant who is wrongfully ejected by his landlord without an opportunity to harvest crops which he had planted on shares may sue in trespass for the damage sustained or may elect to waive the tort and sue in assumpsit.

    3. Where the action is begun in trespass, plaintiff may elect, under the Act of May 10, 1871, P. L. 265, to amend at the trial, with permission of the court, by changing the form of action to assumpsit.

    Trespass for wrongful eviction from leased premises. Motion for new trial. C. P. Greene Co., March T., 1921, No. 844.

      James J. Purman, for plaintiff; G. W. & Roy J. Waychoff, for defendants.
    May 31, 1927.
   Savers, P. J.,

This action was originally a proceeding in trespass brought before a justice of the peace. No statement of claim or affidavit of defence appears in the files. No briefs were furnished to the court, nor any memorandum of the docket entries in this case.

A suit was begun before the justice on Dec. 18, 1920, and the transcript of appeal was filed in this court Feb. 28, 1921. The case was tried on Dec. 11 and 12, 1922, and a verdict rendered for the plaintiff in the sum of $200. The motion and reasons for a new trial were filed Dec. 16, 1922. The transcript of the testimony taken in the case was filed by the court stenographer Jan. 24, 1927, and is not certified by the court or the stenographer who took the testimony.

The reasons for a new trial are as follows:

1. The verdict of the jury was against the law.

2. The verdict of the jury was against the evidence.

3. The verdict of the jury was excessive.

4. Because the court erred in overruling the motion to strike out all evidence in the case except the evidence offered in support of the charge of trespass for damage to growing crops.

5. Because the court erred in refusing the motion for compulsory non-suit.

6. Because the court erred in sustaining the motion of the plaintiff to strike out all testimony in the case except that referring to trespass.

7. Because the court erred in permitting the plaintiff to change his cause of action from trespass to assumpsit.

8. Because the court erred in the fact that it did not limit the proof by the plaintiff to matters of trespass only.

9. Because James J. Purman, Esq., attorney for plaintiff, argued to the jury that the loss to the plaintiff occasioned by the rotting of the com in the field in Monongahela Township was a proper item for consideration by the jury in making up its verdict.

10. Because the court erred in charging the jury that the damage to the plaintiff, if any, occasioned by the rotting of the corn in the field in Monongahela Township, was a proper item to be used by the jury in making up its verdict.

11. Because Henry Harrison, a member of the jury, was a citizen and resident of Fayette County, Pennsylvania, and not a citizen and resident of Greene County, Pennsylvania, which makes the said Henry Harrison incompetent to sit upon this jury; which fact was unknown to defendants until after the conclusion of the trial and the rendition of the verdict.

We have examined these reasons for a new trial and the testimony filed, and are of the opinion that the verdict was not contrary to the law or the evidence, or excessive. Especially is this true if the jury believed the evidence produced on the part of the defendants, which no doubt they did. This finding of the court disposes of exceptions from one to three, inclusive. There is no evidence to support the eleventh reason for a new trial, which is based on a statement that one of the jurors was a citizen of Fayette County. Even if this statement of fact was accepted as true, it would not invalidate the verdict of the jury: Baird v. Otte, 2 Dist. R. 449.

The reasons for a new trial set forth in items four to ten, inclusive, are all based on the claim that the action in this case was begun before the justice of the peace in trespass and that at the trial the court permitted the pleadings to be amended and action to be tried in assumpsit. The reasoning of counsel who moves for a new trial seems to be, as a general proposition, that the amendment of the form of this action should not be allowed and the suit should be conducted throughout as an action in trespass, and based on this assumption that a motion for non-suit should have been allowed because the tenant could not sue his landlord in trespass. We see no reason for holding that, under certain circumstances, a tenant or cropper cannot sue his landlord in trespass. The evidence indicates that the landlord ejected the cropper, who is the plaintiff in this case, from certain lands, after the cropper had performed services and raised a field of corn, one-third of which was to belong to him. The plaintiff sued to recover for the value of services rendered by himself and his family and for his share of the crops, which were appropriated, sold, used or destroyed by the defendants. The form of this action was changed by amendment from trespass to assumpsit during the trial and by permission of the court, and, in the present state of the record, it is not necessary to discuss further and cite authorities to the effect that the tenant and cropper could sue his landlord in trespass.

The wrong done the tenant here is partly in tort and partly in contract, and the plaintiff in the first instance might elect his action. He can waive the tort and proceed in assumpsit on a contract, express or implied: 3 T. H. Prac., 2071.

The amendment changing the form of the action was proper “because, by the Act of May 10, 1871, P. L. 265, an amendment of the form of the action may be made in any stage of the proceeding:" New York, etc., Co. v. New York Central R. R. Co., 267 Pa. 64, 77. See, also, Taylor v. Hanlon, 103 Pa. 504; Allen v. Roberts, 85 Pa. Superior Ct. 279.

Order. — And now, May 31, 1927, after due consideration of the pleadings and evidence in this case and arguments of counsel, the rule for new trial granted on motion of defendant is discharged and the motion refused.

Prom S. M. 'Williamson, Waynesburg, Pa.


author: Fuller, P. J.,

text:
    Commonwealth v. Israel et al.

      Criminal law — Liquor laws — Possession for sale of stills.

      1. The mere manufacture and possession for sale of utensils and contrivances commonly called stills is not a violation of the Act of March 27, 1923, P. L. 34.
    2. It must be shown that such articles were intended to be used^for an unlawful purpose, and not merely that they could be so used.
    Trial by judge without jury. Q. S. Luzerne Co., April T., 1927, No. 131.

      Thomas Bulkiewiez, Assistant District Attorney, for Commonwealth.

      J. E. Fleitz and F. P. Slattery, for defendants.
    March 31, 1927.
   Fuller, P. J.,

On the trial, we entered non pros, against the defendant Klugman, leaving the indictment to stand against the other defendant, Israel.

It is framed upon section 5 of our Enforcement Act of March 27, 1923, P. L. 34, and charges in two counts: (1) Manufacture, (2) possession for sale, of “utensils and contrivances, commonly called stills, designed and intended for use in the unlawful manufacturing of intoxicating liquor."

The essence of the crime is the intended use for the unlawful purpose, and the Commonwealth relies for conviction entirely upon the circumstance that the utensils and contrivances manufactured and possessed for sale by defendant could be used for the unlawful purpose with which the general mind commonly connects them.

This is not enough. They could be used for many lawful purposes as well. By the same token, the intention to commit murder might be imputed to the manufacturer of firearms.

Defendants’ manufactory has been in operation twenty years. It manufactures solely for wholesale, and not for retail trade. It occupies a large and conspicuous building on one of our most-traveled streets.

These utensils and contrivances compose only a small percentage of its product. They are a standard article in the market, openly advertised by other manufacturers. The manufactory has been open to free visitation at all times. In all its existence, pre-Volstead and post-Volstead, it has never before been molested by the agencies of enforcement.

On construction of the same provision in the Volstead Act, the Federal decisions reported in 282 Fed. Repr. 575, and 288 Fed. Repr. 982, fully sustain our conclusion and verdict, not guilty, county to pay costs.


author: McPherson, P. J.,

text:
    Mellott v. Ott.

      Wages — Preference—Distribution of proceeds of sheriff’s sale — Acts of 1872 and 1891.

    Under the Act of April 9,1872, P. L. 47, as amended May 12,1891, P. L. 54, making wages a preferred claim against the proceeds of a sale of the employer’s goods under an execution, in order to allow such claims a preference against the proceeds of property not used in connection with the business of the employer, there must be first a lien of preference by the wage claimant against the proceeds of some of the property of the employer used in connection with the business, otherwise there is no lien which can be extended from the proceeds of property used in the business to the proceeds of property not so used.
    Claim for wages. Exceptions to distribution. C. P. Fulton Co., June T., 1926, No. 6.

      John P. Sipes, for execution creditor.

      John B. Jackson, for labor claimants and exceptions.
    June 14, 1927.
   McPherson, P. J.,

C. C. Ott, the defendant, for the year ending April 1, 1926, was a tenant farmer in Ayr Township, Fulton County. For the year 1926-26 he employed as a laborer Herbert Souders, agreeing to pay to him the sum of $35 a month during said year. ■ Ott’s lease expired on April 1, 1926, and, early in 1926, he made sale of his personal property and moved, subsequently, to McConnellsburg, bringing with him several horses, some implements, machinery and long and short feed.

In the fall of 1926 he sowed fifty acres of wheat for the fall crop, and, after the custom of the country, was obliged, at the harvest of 1926, to cut, harvest and thresh this way-going crop, as a condition of his tenancy. In September of 1925, he and his wife purchased from N. A. Mellott the equipment and business of a restaurant located in McConnellsburg, Pa., and took possession thereof about Sept. 1, 1925. They installed therein, as managers and operators of said restaurant, Maynard Paylor and Lois Paylor, his wife, the latter being their daughter. The wages they agreed to pay these employees was $5 per week each. On April 1, 1926, C. C. Ott owed to Herbert Souders a balance due on wages of $135, and owed to Maynard and Lois Paylor the sums, respectively, of $25 and $35. Souders’s wages were due for labor expended on the farm in Ayr Township and the care of the stock located thereon until the vacation of the farm by C. C. Ott. The wages due Maynard Paylor and Lois Paylor were for services rendered in connection with the restaurant purchased by C. C. Ott in September, 1925. Under the execution issued on the above-entitled judgment, the personal property of C. C. Ott was levied upon, and, on April 27, 1926, was sold, and as proceeds thereof there was realized the sum of $271.90. The personal property sold was the personal property removed by Ott from the farm in Ayr Township and an undivided one-half interest in the fifty acres of wheat in the ground. No part of the property in or attached to the restaurant was sold by the sheriff.

The auditor, in making the distribution of the proceeds of the sheriff’s sale, awarded to Herbert Souders, as a preferential wage claimant, the sum of $95, which was the proceeds of the undivided interest in the wheat in the ground,' less one-third of the total costs of the sheriff’s sale. He disallowed as a preferential claim the wage claims of Maynard and Lois Paylor, and distributed the balance of the fund realized from the sale, after deduction of costs and the proportion of the Souders wage claim allowed, to N. A. Mellott, the execution creditor.

To this report, exceptions were filed by all the wage claimants, and also by N. A. Mellott, the execution creditor. Exception on behalf of the wage claimants alleged that the auditor erred in not allowing the claim of each in full, and in failing to award to each of them the whdle of his or her claim, or such pro rata share of the funds in the hands of the sheriff as he or she was entitled to, on the full amount of his or her claim. This was on the theory that, execution having issued, the wage claims were preferential claims against said proceeds as against the execution creditor, irrespective of the source of the proceeds of the sale.

The Act of April 9, 1872, P. L. 47, amended by the Act of May 12, 1891, P. L. 54, regulates preferential claims for wages, and its application is the solution of the questions raised by the exceptions filed in this case. Under this act, the right of preference in the distribution of the proceeds of a sale effected by legal process is given, and, in case of a levy under execution, there is no preference until the sale: Wilkinson v. Patton, 162 Pa. 12; Mettfett v. Mohn, 171 Pa. 395.

Under section 1 of the Act of May 12, 1891, P. L. 54, it is provided that this preference in distribution should apply to proceeds of the sale of real and personal property, mine, manufactory, business, or other property in and about or used in carrying on .said business or in connection therewith. Under section 3 of the Act of April 9, 1872, it is provided that in all cases of execution issued against any person or persons engaged in operations as herein-before mentioned (referring to type of business operations, the employees of which were given a preferential claim for wages), the lien of preference upon the real or personal property, mine, manufactory, business, or other property in and about or used in carrying on said business, or in connection therewith, should extend to every property of said person, namely, the employer of the wage claimant. From this provision, it would seem that, in order to allow the wage claim to have a preferential claim against the proceeds of the sale of the personal property belonging to the employer and not used in connection with the business, there must be first a lien of preference on the part of the wage claimant against the proceeds of the sale of some of the property of the employer used in connection with the business; otherwise there would seem to be in existence no lien-or preferential claim which could be extended from the proceeds of the sale of property used in the business to the proceeds of the sale of the property of the employer not used in the business. This would seem to be true, particularly if the act of assembly referred to gives no preference until there is a sale. This construction of the act seems to be consistent with the case of Decker’s Assigned Estate, 20 Pa. C. C. Reps. 318; 7 Dist. R. 141. Applying these principles to the facts, it would seem that, the business of farming not having been entirely completed, Souders was entitled to a preference for wages due him for services rendered in the business of farming out of the proceeds of the sale of the share of the employer in the wheat in the ground, and that he was entitled to have this preference, under section 3 of the Act of 1872, extended to the proceeds of the sale of the personal property of his employer, sold by the sheriff. The full amount of the claim, therefore, should have been allowed.

In view of the fact that none of the property of C. C. Ott used in connection with the restaurant business conducted by him was sold by the sheriff, the wage claims of Maynard and Lois Paylor are not entitled to any preference out of the proceeds of sale of the personal property of C. C. Ott actually sold, as they had no preferential claim or lien, which, under section 6 of the Act of 1872, could have been extended to the proceeds of the sale of the personal property of their employer not used in connection with the restaurant business.

In view of these conclusions, the exception by Herbert Souders must be sustained, and the exceptions filed by Maynard and Lois Paylor and N. A. Mellott must be dismissed. An exception was filed by N. A. Mellott to the wage claims of Maynard Paylor and Lois Paylor, on the ground that notices of-their claims given to the sheriff prior to the sale were not sufficient in law nor in accordance with the acts of assembly covering such matters. In view of the above conclusion, this exception becomes immaterial, as the wage claims of Maynard and Lois Paylor will not participate in the distribution of the balance in the hands of the sheriff.

In accordance with the above conclusion, the schedule of distribution filed by the auditor will be amended as follows:

Proceeds of sheriff’s sale.$271.90
Deduct costs of execution and sale... 56.53
Balance . 215.37
Costs of audit.'. 34.00
Balance for distribution. 181.37
Herbert Souders... 135.00
Balance to N. A. Mellott, execution creditor. 46.37

From John P. Sipes, McConnellsburg, Pa.


author: Berger, J.,

text:
    Commonwealth v. Phillips.

      Lunatics — Duty of Committee of War Veterans to file accounts biennially— Relief therefrom — Failure to file triennial accounts — Act of May 3, 1909.

    The committee of a lunatic to whom is paid a pension to which the lunatic is entitled from the united States Government, will not be granted a certificate from the court to which she is accountable relieving! her from complying with the requirement of the Pension Bureau that an account be filed therein biennially where she has failed to file a triennial account in the Common Pleas as required by the Act of May 3, 1909, P. L. 391.
    Petition by committee of a lunatic for an order waiving the filing of an account. C. P. Schuylkill Co., July T., 1913, No. 242.

      R. P. Swank, for petitioner.
    Feb. 17, 1927.
   Berger, J.,

Upon inquisition, J. Melvin Phillips was found to be a lunatic June 16,1913, pursuant to the provisions of the Act of June 13, 1836, P. L. 589, and Amy P. Miles was appointed his committee. She has now filed this petition, praying for an order “waiving the requirement of the filing of an account until such time as said committee (she) shall no longer act, either because of the termination of said trust by the death of said lunatic (J. Melvin Phillips) or because of the death, resignation or removal of said committee” (Amy P. Miles). No triennial account has ever been filed by the committee.

The lunatic had no estate at the time of the appointment of his committee, other than his right to a pension of $36 per month, payable to him by the Government of the United States, as the lunatic son of a deceased soldier of the Civil War. The Bureau of Pensions of the United States requires every guardian or other person receiving pension in a fiduciary capacity to file biennially with the official by whom the pension is payable a certificate of the court to which said fiduciary is accountable, showing that he has accounted as required by law, and that the account has been approved, or that the requirement for accounting has been waived by the court, if such is the fact. Pursuant to this regulation of the Bureau of Pensions, the committee petitioned the court March 9, 1915, March 7, 1917, Jan. 30, 1919, Feb. 21, 1921, April 16, 1923, and Feb. 16, 1925, respectively, and obtained orders of court waiving the filing of the biennial accounts required by the United States Bureau of Pensions.

Section 40 of the Act of June 13, 1836, P. L. 589, requires every committee, at least once in three years, and oftener, if required by the court, to render an account of the property of the lunatic committed to his care, including the particulars of his receipts and expenditures, which shall be filed in the office of the prothonotary for the information of the court and the inspection of all parties concerned. In Simco’s Estate, 6 D. & C. 813, 815, we held that until a lunatic has died or shall have become restored to reason, or another committee has been appointed, there can be no one in being authorized to make a settlement or properly guard his interests; that a triennial account filed by the commitee of a lunatic is only for the information of the court and the parties who may be entitled in remainder; and that such an account should not be advertised for confirmation, as no confirmation, nisi or otherwise, can be made. In thus ruling, we entirely overlooked the Act of May 3, 1909, P. L. 391, which provides, inter alia, that all committees of the estates of lunatics may triennially, after the passage of that act, file their accounts in the appropriate courts, which shall be duly audited and confirmed absolutely to the date of filing. This act was repealed by section 63 of the Fiduciaries Act of 1917 (Act of June 7, 1917, P. L. 447, 554), in so far only as it relates to trustees subject to the jurisdiction of the Orphans’ Court.

The petitioner should have filed her first triennial account on or about June 16, 1916, and her subsequent accounts triennially thereafter. The order of the court made March 9, 1915, waiving the filing of a biennial account, as required by the United States Bureau of Pensions, was properly entered, but all subsequent orders waiving the filing of biennial accounts were improvidently entered, for the reason that the practical effect of these orders was to nullify the statute requiring the filing of triennial accounts. A statute cannot be set aside by an order of court. Had the committee filed her first triennial account in 1916, the filing of the second biennial account, as required by the United States Pension Bureau, might also properly have been waived; and since the second triennial account required by statute and the third biennial account required by the United States governmental regulations were to be filed in 1919, there was no need to apply for a waiver to file a biennial account in 1919, if the committee had discharged her duty by filing her second triennial account. In other words, so long as a committee is in default respecting the filing of a triennial account under the statute, the filing of a biennial account required by the regulations of the Pension Bureau will not be waived by order of court.

Petition refused, at the cost of the petitioner.

From 3VI. M. Burke, Shenandoah, Pa.


author: Martin, P. J.,

text:
    Bromley v. Hadley, Controller.

      Public officers — Civil officers — Chief personal porperty assessor of the City of Philadelphia — Member of legislature — Incompatible offices — Constitutional law — Article ii, section 6 — Act of April 7, 1927.

    1. The chief personal property assessor of the Board of Revision of Taxes of the City of Philadelphia, appointed under the Act of April 7, 1927, P. L. 149, is not a civil officer -within the meaning of article ii, section 6, of the Constitution, which provides that “no senator or representative shall, during the time for which he may have been elected, he appointed to any civil office under the Commonwealth.”
    2. The chief personal property assessor is a mere clerk or employee of the Board of Revision of Taxes, appointed by the board, and removable at its pleasure, and, as such, exercises no independent functions of government as a public or civil officer.
    Case stated. C. P. No. 5, Phila. Co., June T., 1927, No. 22624.

      R. R. Vale, for plaintiff; £>. D. Wilson, for defendant.
    Nov. 1, 1927.
   Martin, P. J.,

On April 7, 1927, the Governor approved an act of the legislature entitled: “An act providing for the appointment of assessors of personal property in counties of the first class; defining their duties and fixing their salaries.”

Section 1 enacts: “That the board of revision of taxes in counties of the first class shall, on April first, one thousand nine hundred and twenty-seven, and every five years thereafter, appoint one chief assessor of personal property and eight deputy assessors of personal property, and shall have the power to fill all vacancies that may occur by death, resignation or otherwise, and shall have the power to remove any such assessor for incompetence, neglect or refusal to faithfully perform his duties.”

In section 2 it is declared to be the duty of the chief assessor and deputy assessors to assess all personal property subject to taxation for county purposes, and they are vested with “all of the powers and duties conferred by law on assessors with respect to the assessment of taxable personal property.”

Section 3 fixes the salary of the chief assessor at $5000 per annum, and that of each of the deputy assessors at $4000.

The City Council of Philadelphia, by Ordinance approved July 8, 1927, appropriated money to provide for the salaries of the chief and deputy assessors of personal property.

The Board of Revision of Taxes of the City of Philadelphia duly appointed Wallace Bromley chief personal property assessor, the appointment to take effect June 1, 1927.

The Controller of the City of Philadelphia has withheld his approval of the warrants drawn by the Board of Revision of Taxes for the payment of the salary of Wallace Bromley, the chief personal property assessor, and assigned as his reason for withholding payment, that Wallace Bromley is disqualified from holding the office by the restrictions of article II, section 6, of the Constitution of Pennsylvania, which provides that “no senator or representative shall, during the time for which he may have been elected, be appointed to any civil office under the Commonwealth.”

Prior to the appointment of Wallace Bromley as chief personal property assessor, he was a Representative in the General Assembly of the Commonwealth of Pennsylvania, having been elected in 1926 to represent the 14th District of the County of Philadelphia for the term of two years from Dec. 1, 1926. He tendered his resignation to the Honorable Thomas Bluett, Speaker of the House of Representatives, as of May 31, 1927. The resignation was accepted the same day.

This amicable action was instituted by Wallace Bromley against WillB. Hadley, Controller. A case stated was agreed upon, setting forth the facts, and stipulating if the court be of the opinion that the appointment and employment of Wallace Bromley as chief personal property assessor for the Board of Revision of Taxes is not a “civil office” as comprehended by article XI, section 6, of the Constitution of Pennsylvania, judgment shall be in favor of the plaintiff and against the defendant; but if the court should decide the appointment and employment is that of a “civil office,” the judgment should be for the defendant and against the plaintiff.

The instructions received by Bromley from the Board of Revision of Taxes direct that he be head of the department comprising the personal property assessors and responsible to the Board of Revision of Taxes in seeing that its instructions with respect to the taxing of personal property are carried out. His duties, clerical and administrative, are defined in detail.

He exercises no function of government; his tenure of office is indefinite; neither an oath or bond is required of him; and by the terms of the act providing for his appointment, the Board of Revision of Taxes is vested with the power of removal. Appointments are to be made every five years; but the term is for no assuredly definite time when there is lodged in the appointing power the right of removal.

He exercises the functions of a clerk in the employ of the board. He does not act as the Board of Revision, but for the board. There is no delegation of sovereignty in the position that he occupies; the encumbent is an employee, not an officer. He has no direct connection with, or responsibility to, the public; but is entirely subordinate to the Board of Revision; and can be removed at any time if, in the opinion of the board, he is incompetent, negligent or refuses to faithfully perform his duties.

In Olmstead v. The Mayor of New York, 42 N. Y. Superior Ct. Reps. 481, it was said that the term “office” “implies an authority to exercise some portion of the sovereign power of the state, either in making, administering or executing the laws. An officer is one who holds such an office. An employee is one who receives no certificate of appointment, takes no oath of office, has no term or tenure of office, discharges no duties and exercises no powers depending directly on the authority of law, but simply performs such duties as are required of him by the persons employing him, and whose responsibility is limited to them, and this, too, although the person so employing him is a public officer and his employment is in and about a public, work or business.”

In Com. ex rel. v. Murphy, 11 Dist. R. 361, 362, Judge Weand said: “The thought running through every definition of an officer is that he shall perform some service or owe some duty to the government, state or municipal corporation and not merely to those who appoint or elect, him. . . .”

“The distinction between officer and placeman is that the former must take an oath of office; the latter, not,” citing 63 N. C. 199.

The chief assessor is not designated in the act as an officer, and his duties, by the terms of the act, are limited to assessments on personal property for county purposes.

“ ‘Civil officer’ is a term embracing such officers as in whom part of the sovereignty or municipal regulations or the general interests of society are vested. . . . ‘Civil officers . . . are governmental agents — they are natural persons — in whom a part of .the state’s sovereignty is vested or reposed, to be exercised by the individual so entrusted with it for the public good. The power to act for the state is confided to the person appointed to act. It belongs to him upon assuming the office. He is clothed with the authority which he exerts, and the official acts done by him are done as his acts and not as the acts of a.body, corporate:’” 11 Corpus Juris, 797, title “Civil Officer,” and notes.

“It sometimes becomes both necessary and important to ascertain what elements are essential to constitute a public officer and to distinguish official status from that of an agent, employee or contractor. The word ‘office’ implies a more or less permanent delegation of a portion of the governmental power, coupled with defined duties and privileges, continuous in their nature, and which, upon the death, resignation or removal of the incumbent, devolves on his successors:” Tiedeman on Municipal Corporations (ed. 1894), § 67.

“This clerk is not required to take an oath of office, gives no bond, and can be appointed at the pleasure of the board:” Com. ex rel. v. Murphy, supra.

“An employee is one who receives no certificate of appointment, takes no oath of office, has no term or tenure of office, discharges no duties and exercises no powers depending directly on the authority of the law, but simply performs such duties as are required of him by the persons employing him, and whose responsibility is limited to them, and this, too, although the person so employing him is a public officer and his employment is in and about a public work or business:” Olmstead v. The Mayor of New York, 42 N. Y. Superior Ct. Reps. 481, cited in the opinion of the Attorney-General, 12 Dist. R. 587-590.

And now, to wit, Nov. 1, 1927, the court being of opinion that the appointment and employment of Wallace Bromley as chief personal property assessor of the Board of Revision of Taxes of the City of Philadelphia was not a “civil office” under this Commonwealth as the term is used in article IX, section 6, of the Constitution of Pennsylvania, judgment is entered in favor of the plaintiff and against the defendant.


author: Stern, P. J., and Gordon, Jr., J.,

text:
    McCoach’s Case.

      Attorney-at-law — Suspension from practice — Misconduct.
    An attorney at law will be suspended from practice for a period of one year where the evidence shows that he received and retained fees for which he rendered no service; that he received money for cash bail, which he did not apply to that purpose; that he aided and abetted a client in removing liquor and secreting it; and that, in a proceeding against a client, he resorted to political influence in an effort to abort the proceedings.
    Petition by Committee of Censors of the Law Association of Philadelphia under Rule of Court No. 215. C. P. No. 2, Phila. Co., March T., 1927, No. 14884.

      Shippen Lewis and Thomas Stokes, for Committee of Censors.

      William I. Stanton, for respondent.
    Dec. 12, 1927.
   Stern, P. J., and Gordon, Jr., J.,

This is a petition for the disciplining of an attorney, filed by the Committee of Censors of the Law Association under Rule 215 of the Rules of Court.

The complaint of the Committee of Censors involves allegations of misconduct by the respondent in three instances. In two of these he is charged with having received and retained fees from clients for ■ which he rendered no services, and .in the third he is charged with having received money from a client for cash bail, which he did not use for that purpose, but retained when its return was demanded.

The respondent has filed an answer to the charges, in which he claims that, with respect to the fees for which he is alleged to have rendered no services, services were rendered by him; while with respect to the money alleged to have been given for cash bail and to have been retained by him, he claims that, at the conclusion of the litigation in which the money was received, his client agreed that he should retain it in final settlement for his services therein. In addition, the respondent states in his answer that, notwithstanding his asserted right to retain the moneys received by him in each case, he has, since the initiation of this proceeding, returned to his respective clients the amounts in question.

At the hearing of this petition it was agreed that the testimony taken by the Committee of Censors should be considered as the evidence before us.

In the case relating to the complaint of Ella Cobb, the Committee of Censors has found as follows:

1. David McCoach has been a member of the bar of this court for at least ten years.

2. On or before Nov. 19, 1926, Ella Cobb filed her complaint with your petitioners, alleging that she had retained David McCoach as attorney to apply for a pardon for John L. Cobb, her son, who is in prison, that she had paid McCoach $100 and given him a note for $150 as a retainer and that he had rendered her no services.

3. Your petitioners have heard the testimony of the plaintiff and respondent and have found that David McCoach received the money and note as stated in the above complaint, that he has appropriated to his own use the money and proceeds of the note, and that he has rendered no services to his client.

We are not disposed to disagree with this finding of the committee. It should be noted, however, that the respondent claims that during the period covering this transaction he was sick, and that, so far as she was able, his wife attended to his professional matters for him. In addition, he claims, and in this respect is uncontradicted, that the agreement between him and Mrs. Cobb was that he would present the petition for a pardon upon the payment of a fee of $250, $100 of which was paid in cash and $150 by a note, which Mrs. Cobb has never paid. The respondent claims, also, that he did appear before Judge Davis, who had sentenced the prisoner, and asked for a parole, which was refused.

In the case relating to the complaint of Josephine Le Maire, the Committee of Censors has found as follows:

1. David McCoach has been a member of the bar of this court for at least ten years.

2. On or before June 9, 1926, Josephine Le Maire filed her complaint with your petitioners, alleging that she had retained David McCoach to institute divorce proceedings for her, that she had paid him $200 and that he had done nothing.

3. Your petitioners have heard the testimony of the complainant and of the respondent and have found that David McCoach received $200, as above stated, and that he has appropriated the money to his own use, without rendering any services to his client.

We agree with the findings of the Committee of Censors in this matter, with the additional observation that it would seem, from the testimony of the respondent, that the money was paid to his wife, who, as already noted, was looking after his affairs while he was sick, and we are of opinion that the respondent’s neglect of the case was occasioned, to some extent at least, by his illness and the confused condition of his affairs during that period.

In the case relating to the complaint of John Russell, the Committee of Censors has found as follows:

1. David McCoach has been a member of the bar of this court for at least ten years.

2. In the fall of 1924, John Russell, who then conducted a saloon at Broad Street and Washington Avenue, Philadelphia, was arrested, together with his bartender, Bart Gralia, on a charge of violating the liquor laws. Russell employed David McCoach to represent him and Gralia, and paid him a fee of $650, which was agreed by both to be in full payment for McCoach’s professional services.

3. On Nov. 20, 1924, Magistrate Pennock held Russell and Gralia for court, and bail in the sum of $500 each was furnished by Thomas Shea, of No. 1542 Christian Street, Philadelphia. On Nov. 22, 1924, the grand jury ignored the bill of indictment against Russell and found a true bill against Gralia. On his trial, Gralia was acquitted.

4. At some time or times in November and December, 1924, and January, 1925, Russell paid McCoach $800 on the latter’s demand for that sum to be used as cash bail in the criminal proceedings. In January, 1925, Russell paid McCoach a further sum of $500 on the latter’s demand for that sum to be be used as security in certain equity proceedings for the padlocking of Russell’s saloon.

5. McCoach did not use either of the said sums of $800 and of $500 in behalf of Russell, and on the conclusion of the said criminal and equity proceedings refused to repay the $1300 so received by him or any part thereof.

There is evidence to support these findings of the committee. They depend almost exclusively, however, upon the testimony of Russell, the complainant, who had retained the respondent to represent him in a prosecution for illegal possession of liquor. Russell’s evidence is in many particulars contradictory, and, when viewed as a whole, is not of the most convincing character. There is little, if any, dispute upon the controlling facts of the case between the respondent and the complainant, Russell, as to the transactions between them. The respondent admits that he received the $1300 in question for cash bail and that he held it upon that trust. He contends, however, that during the progress of the transaction in which he was originally retained other litigation arose, and that he performed services of a rather extensive character. His position is that, when the whole matter was cleared up for his client, he, the respondent, thought he was entitled to further fees for the additional services rendered by him, and that when he spoke to Russell upon the subject, Russell instructed him to retain the $1300 in full satisfaction for all the services rendered in the case. This contention is contradicted by Russell. The Committee of Censors had the opportunity of seeing and hearing the witnesses, and we are inclined to adopt, and do adopt, the findings of the committee upon this point. In doing so, however, it may be observed that upon a cold reading of the testimony alone, it would be somewhat difficult definitely to decide this dispute between the parties.

There is another feature of the respondent’s testimony which was not referred to by the Committee of Censors, and which we deem it our duty to comment upon. The respondent stated and admitted in his examination that, in the course of representing Russell, he committed two discreditable acts: First, during the night before an anticipated raid upon Russell’s saloon by the police, he advised and aided Russell in removing therefrom liquor kept by him in violation of law, and in secreting these contraband goods; and, second, in the prosecution or prosecutions brought against his client, he resorted to political influence in an effort to abort the prosecutions.

The details of the respondent’s activities in this regard are not told, but the inference from his testimony is sinister and alarming. It is scarcely necessary to comment upon such conduct as is disclosed by these two admissions. It is unworthy of the profession, and the lawyer who is guilty of it brings the administration of justice into disrepute and lays himself open to the gravest consequences. Were we satisfied that the respondent, when he committed these professional wrongs, was in full health and entirely responsible for his acts, we would without hesitation disbar him; and, in withholding such an order for the present, we do not wish to be understood as condoning such conduct to any extent. In view of the fact, however, that the respondent has returned to the various clients the fees and moneys which are in dispute, and of his undoubted serious sickness during this period, we deem that it will be sufficient to suspend him from the practice of law for such time as will serve to indicate to him, and to the bar, our condemnation of his conduct.

It is accordingly ordered that the said David McCoach, the respondent, be suspended from his office as attorney of this court for the period of one year from this date, and the prothonotary is directed to notify the prothonotary of the Supreme and Superior Courts of Pennsylvania and the Clerk of the Orphans’ Court of Philadelphia County of this action.


author: Van Dusen, J.,

text:
    Palmer’s Estate.

      Wills — Construction—Gifts to’ married women for sepa/rate use.

    A legacy to a married woman for her sole and separate use gives her an absolute interest, except in so far as her use of the fund is restrained to protect her from the influence of her husband, and on her death her personal representative is entitled to the fund as distinguished from the testator’s residuary legatees.
    Exceptions to adjudication. O. C. Phila. Co., April T., 1882, No. 274.
    Henderson, J., Auditing Judge. . . . The trust in this estate arose under the will of Harriet R. Palmer, who died April 8, 1882, whereby, inter alia, she provided as follows:
    “Item 4. I give and bequeath to Mrs. Emma Robinson, wife of Joseph Robinson, of Camden, New Jersey, and to her sister, Mrs. Anna Keim, wife of John S. Keim, of Philadelphia, each one thousand dollars ($1000) for their sole and separate use respectively.”
    The fund accounted for is the $1000 bequest to Emma Robinson, which has been held by the accountant as trustee for her sole and separate use.
    Emma Robinson died Nov. 2, 1926, being survived by her husband, Joseph Robinson, and a daughter, Bertha R. Young, her sole next of kin. She left a will, probated at her domicile in Atlantic County, New Jersey, whereof Bertha R. Young is executrix.
    Counsel, on behalf of the personal representatives of Rev. John King Dunn, deceased, residuary legatee under the will of Harriet R. Palmer, contended that Emma Robinson had but an equitable life estate in the $1000 trust fund, and that the remainder, being undisposed of, passed under the residuary clause of the will.

      A separate-use trust may be attached to an absolute estate, and it will not alter or impair the incidents oí the estate except to the extent of suspending the power of alienation: Steinmetz's Estate, 3 Dist. R. 440, 168 Pa. 176; Faries’s Appeal, 23 Pa. 29.
    In Williams’s Estate, 29 Dist. R. 233, this court authorized the expenditure of principal of such a trust for the maintenance of the cestui que trust, who was aged and infirm.
    Equitable estates descend in the same manner as legal estates: Van Rensselaer v. Dunkin, 24 Pa. 252; in which case it was held that a gift of income, unlimited as to time, to a married woman for her sole and separate use was equivalent to a gift of the property itself, and upon her death it passes to her personal representative. This case effectually disposes of the contention that an absolute gift is cut down to a life estate by attaching to it a separate-use trust.
    I will award the trust fund to the executrix of the deceased cestui que trust, at the audit of whose account it may be determined whether the fund is subject to the payment of her debts, and distribution made to the parties entitled to her estate. The further question may then be determined, under Dallett v. Taggart, 223 Pa. 180, and cases therein cited, whether the cestui que trust had power to dispose of the fund by her will, or whether it passes to the parties entitled under the intestate laws of her domicile.

      John Russell, Jr., for exceptions.

      Sydney G. Gest and Robert T. McCracken, contra.
    Dec. 30, 1927.
   Van Dusen, J.,

Testator’s will provided:

“Item 4. I give and bequeath to Mrs. Emma Robinson, wife of Joseph Robinson, of Camden, New Jersey, and to her sister, Mrs. Anna Keim, wife of John S. Keim, of Philadelphia, each one thousand dollars ($1000) for their sole and separate use respectively.”

■ This sum was awarded to a trustee appointed for the purpose to hold for the separate use of Mrs. Robinson (Kiefaber’s Estate, 8 D. & C. 231; Van Blunk’s Estate, 275 Pa. 589). The latter has now died leaving a will probated in New Jersey. The Auditing Judge awarded the fund to the New Jersey executrix, on the settlement of whose accounts it would be determined whether such fund was liable for the debts of the beneficiary, and whether she had power to dispose of it by will, or whether it passes to the parties entitled under the intestate laws of her domicile. Exceptions are filed by the residuary legatees of the creator of the trust, claiming that the eifect of the separate use was to cut the apparent absolute estate down to a life estate.

The contrary was established in Faries’s Appeal, 23 Pa. 29; Van Rensselaer v. Dunkin’s Executors, 24 Pa. 252; Dubs v. Dubs, 31 Pa. 149; Rank v. Rank, 120 Pa. 191. In Van Rensselaer v. Dunkin there was a gift of income only, and yet it was held that the married woman impliedly took a fee, under a well-known principle, in spite of the separate use. When we notice that the successful claimants in those cases were the persons entitled to the married woman’s estate in case of intestacy, including the husband as tenant by the curtesy, we are prepared to understand the cases which have misled the exceptants, viz., Steinmetz’s Estate, 168 Pa. 175; Dallett v. Taggart, 223 Pa. 180.

In those cases the unsuccessful parties claimed as devisees under the married woman’s will, and they failed because of the well-settled Pennsylvania rule that the beneficiary of a separate-use trust has no power during cover-ture to dispose of the fee by will (unless the trust gives such power), though she owns the fee and it descends as her property. The purpose is to protect her from the influence of her husband: Lancaster v. Dolan, 1 Rawle, 231; Thomas v. Folwell, 2 Whart. 11. To this extent she is under the disability of a married woman at common law, as the Married Woman’s Enabling Acts do not apply to property held for separate use: MacConnell v. Lindsay, 131 Pa. 476.

Her executor, however, is still her personal representative, entitled to receive this portion of her personal property like any other, though the will may be ineffective to dispose of it.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Henderson, J., did not sit.