author: SAYERS, P. J.,

text:
    Clarence Huffman Motor Company v. Hess et al.

      Constitutional law — Title of act — Lien for purchase money of automobiles —Act of April 27, 1925.

    1. Section 2 of the Act of April 27, 1925, P. L. 286, relating to certificates of title to motor-vehicles and liens thereon, is unconstitutional, inasmuch as the provision or purpose of the section is not referred to in the title of the act.

      Bankruptcy — Lien—Judgment note — Preferred claim — Exemption—Automobiles.

    2. Where a purchaser of an automobile has given a judgment note with waiver of exemption to secure the balance of the purchase money, and subsequently, in bankrupt proceedings, the automobile has been set aside to the bankrupt as his exempted property and the seller’s claim for a preference has been refused, and he thereupon withdraws his claim, the seller may thereafter enter judgment on the note and levy upon the automobile at any time before the bankrupt is discharged.
    3. In such case, a certificate issued by the highway commissioner to the purchaser and held by the seller gives no lien for the unpaid balance of the purchase money.
    Petition to set aside sheriff’s levy. C. P. Greene Co., March T., 1927, No. 11.

      W. C. Montgomery, for plaintiff.

      Charles S. Carter and William J. Kyle, for defendants.
    May 9, 1927.
   SAYERS, P. J.,

The matter before the court grows out of a petition filed by Cyrus Howard Hess, one of the defendants in this case, on March 14, 1927, praying the court to set aside a levy made by the sheriff upon the property of petitioner, a certain Hudson automobile coach, fully described in the petition, which was awarded to the petitioner as his exemption in bankruptcy. The petition prays that the levy be set aside forthwith and the sheriff be directed to deliver possession of the property to the petitioner. An answer was filed to this petition by the Clarence Huffman Motor Company.

Prior to the beginning of this proceeding, a judgment had been entered in favor of the plaintiff, Clarence Huffman Motor Company, and against Mrs. Pauline Hess and C. H. Hess, alias Cyrus Howard Hess, at No. 142, March Term, 1927, in the Court of Common Pleas of Greene County, Pa. This judgment was entered Jan. 26, 1927, by confession on a note containing a warrant of attorney to confess judgment, and containing also a waiver of “the benefit of the exemption law or any act of assembly relative to executions now in force or hereafter to be passed.”

On Jan. 31, 1927, a petition of the defendants, together with their specific affidavit of defence, was presented to the court, praying that the judgment should be opened and the defendants let into a defence, and a rule was issued thereon, returnable to the first Monday of March, 1927. All proceedings on the judgment and fieri facias were stayed until further order of the court, subject to the lien of the levy made on said writ. The plaintiff filed an answer to the rule and petition to open judgment on March 7, 1927. No testimony was taken and nothing has been done by the plaintiff or defendants concerning the rule to open judgment, and without disposing of this rule the defendant, Cyrus Howard Hess, has filed his petition to set aside the levy on the automobile, as hereinbefore set forth. No depositions were taken on the rule to open judgment, and the facts as hereafter found by the court and to which reference was made in arguments of counsel are admitted in the papers filed, and from the file papers the court finds the following

Facts.

On July 1, 1926, the Clarence Huffman Motor Company sold and delivered to Cyrus Howard Hess and his wife, Pauline Hess, the automobile coach described in the petition for the sum of $800, $300 of the consideration being paid at the time of sale and a balance of $500 remaining unpaid to be secured in the following manner and according to the agreement then entered into between the plaintiff and defendants: The defendants executed and delivered to the plaintiff their certain exemption promissory note with warrant of attorney to confess judgment, dated July 1, 1926, in the sum of $500, in which they agreed to pay the balance of the purchase money on the automobile at the rate of $50 monthly, payable on the first day of each month until paid, with interest. At the same time and as part of the transaction and agreement to secure the payment of the purchase money on this note and in accordance with the provisions of the Act of May 24, 1923, P. L. 425, as amended by the Act of April 27, 1925, P. L. 286, the Clarence Huffman Motor Company endorsed and delivered to Cyrus Howard [Hess] a certificate of title for said automobile, and Hess made application under oath for a new certificate of title, setting forth that the automobile was being transferred subject to the lien for purchase money held by the Clarence Huffman Motor Company to the amount of $500. The State Highway Commissioner issued a new certificate to “Howard Hess,” showing that it was subject to a lien for $500 in favor of the Clarence Huffman Motor Company, and this certificate was delivered to the Clarence Huffman Motor Company, which still holds the same as evidence of its alleged lien to secure its legal claim for purchase money, as provided by the last recited act of assembly.

The said defendants subsequently made three payments of $50 each upon said note and on account of their said contract to pay for the automobile.

On Nov. 12, 1926, Cyrus Howard Hess was declared a voluntary bankrupt by the United States District Court for the Western District of Pennsylvania, and he filed his schedules in bankruptcy and performed such other acts as were required of him by the bankruptcy law, and on March 9, 1927, filed his petition for a discharge in bankruptcy. The bankrupt has not yet obtained his discharge.

The Clarence Huffman Motor Company, on Dec. 24, 1926, filed a proof of claim against the bankrupt in the sum of $858.56, claiming on the note and contract for the sale of the automobile as a secured claim. The referee refused to allow the claim as a secured claim or to pass upon the question as to whether or not the claim of the plaintiff was a lien against defendants’ automobile, and the proof of claim was withdrawn by the Clarence Huffman Motor Company.

On Dec. 13, 1926, the Hudson automobile coach was valued and appraised and set aside to the bankrupt as his exemption, and on Dec. 24, 1926, the Clarence Huffman Motor Company filed exceptions to his claim for exemption, and in these exceptions the motor company claimed to have a lien for unpaid purchase money on the automobile set apart to the bankrupt as his exempted property. The exceptions were dismissed by the referee in bankruptcy and no appeal was taken from the order of the referee. On the same day, Jan. 26, 1927, judgment on the said note was entered in this court on warrant of attorney and confession, and execution was issued thereon and placed in the hands of the sheriff, who levied upon the Hudson coach belonging to defendant, Cyrus Howard Hess, or to both defendants, as the case may be.

It is admitted in the petition to open the judgment filed by the defendant that the note on which the judgment was entered was given to secure payment of the purchase money on the automobile, and it is not denied by him in any of the papers filed that, as a part of his arrangement to secure the balance of the purchase money on this automobile, a certificate of title was secured from the State Highway Commissioner, setting forth that the title was in “Howard Hess,” one of the defendants above named, subject to the lien of the Clarence Huffman Motor Company for the balance of the purchase money remaining unpaid on the said automobile.

Discussion.

It is claimed by the plaintiff in this case that at the time the automobile was set apart to the bankrupt as a part of his exemption the plaintiff had a legal claim or lien on the automobile, which was evidenced by the note on which judgment was entered and secured by the lien reserved in the certificate of title issued to the bankrupt by the State Commissioner of Highways, and that said lien was properly filed and secured to the defendant in the manner required by law and can be enforced by the entry of judgment on the note and execution thereon, as has been done in this case. The petitioner, Cyrus Howard Hess, claims that the plaintiff had no lien on the Hudson coach at the time he became a bankrupt, and that the note on which judgment and execution was issued in this case was a provable claim in bankruptcy, and that the plaintiff, having notice of the bankruptcy proceeding and having offered to prove his claim, the debt evidenced by the said note was discharged and the plaintiff thereafter had no right to enter judgment upon the note and to issue execution thereon and levy upon the property of the defendant, Cyrus Howard Hess. The plaintiff replies by stating that the automobile having been claimed by the bankrupt as a part of his exemption and set apart to him was subject to plaintiff’s lien as reserved in the certificate of title from the State Highway Commissioner, and as evidenced by the note taken as a part of the contract to secure the purchase money, and that the plaintiff now has a right, in order to enforce its lien, to enter its judgment and to proceed by execution to sell the automobile of the defendant.

There does not seem to be any construction by the courts as to the effect and operation of the lien clause in the Act of 1925, providing for the registration of titles to motor-vehicles. The amended section 2 of the Act of April 27, 1925, P. L. 286, provides, inter alia,: “Said certificate of title shall contain such description and other evidences of identification of said motor-vehicle as the commissioner may deem reasonably necessary and proper, together with a statement of any liens, encumbrances or legal claims which the applicant may show to be thereon, together with the name and address of holder of said lien, encumbrance or legal claim, and said certificate of title shall be delivered to the person holding the first lien, encumbrance or legal claim upon said motor-vehicle and retained by such person until the entire amount of such lien, encumbrance or legal claim is fully paid by the owner of said motor-vehicle, when the said certificate of title shall be delivered to said owner.”

If it was the purpose of this act to create, secure or preserve a lien in favor of the vendor of motor-vehicles, or provide for the filing or registering with such purpose in view of “a statement of lien, encumbrance or legal claim” as a lien, it fails utterly. The title to the act, as amended, reads as follows: “To amend sections one, two, three, six, seven, thirteen, fifteen and sixteen of an act approved the twenty-fourth day of May, one thousand nine hundred and twenty-three (Pamphlet Laws, four hundred and twenty-five), entitled ‘An act providing a system of registering titles to motor-vehicles for the protection of owners of motor-vehicles and to facilitate the recovery of motor-vehicles stolen or unlawfully taken; regulating the certification of such titles, the purchase, sale and transfer of motor-vehicles, and their registration; providing for the collection of fees, for the certification of titles, and for disposition thereof; forbidding the destruction, removal, alteration, covering or defacement of any engine, manufacturer’s or other distinguishing number or identification mark on motor-vehicles; and providing for the assignment of special numbers in certain cases; imposing duties on the State Highway Commissioner, sheriffs, constables, police officers and other peace officers; and providing penalties.”

The title fails to give notice of any such provision or purpose, and, consequently, that part of section 2 relating to the notation in the certificate of title of a lien and the delivery of the certificate to the claimant to be held until the lien, encumbrance or legal claim is fully paid by the owner can have no effect to create, secure or preserve to said claimant any lien on the motor-vehicle. If such was the purpose of this section, it violates article hi, section 3, of the Constitution of this State, because this provision of the act is not referred to in the title. See Com. v. Smith, 8 D. & C. 702, discussing another clause in the same act.

For this reason, we do not agree with the claimant that the issuing of a certificate of title to the purchaser, setting forth the amount of encumbrance or lien and delivery thereof to the holder of said lien, is the manner especially provided by law in Pennsylvania for evidencing and making secure to the holder thereof a lien or encumbrance against an automobile. It is apparent from the language of this part of section 2 that some effort was being made to protect lien holders or legal claimants, but the very fact that no such purpose is expressed in the title of the act makes it doubtful as to what the legislature really did intend.

Whether or not title can only be transferred by the State Highway Commissioner, as provided in the Act of 1925, as and when the full amount of the claim or lien has been paid is a matter with which the court has no concern at present. In the opinion of this court, and for the further reason above set forth, we think he would have no right to refuse to transfer the title because of unsatisfied legal claims. The act of assembly giving him power in the premises gives him no authority to determine whether or not an alleged legal claim against the title is or is not an encumbrance.

We feel that the claimant, having withdrawn his claim, is in the same situation as a creditor with notice of bankruptcy, who did not present his claim to the referee. The claimant here is, then, relegated to his judgment note as the sole evidence of his claim, and it has no semblance of a conditional sale or bailment contract. It is admitted by plaintiff in his argument and brief “that no conditional sale contract or bailment lease was executed between the parties, and that the note and application for and certificate of title are the sole contract between the parties.” The foundation of the claim is a promissory note under seal with warrant to confess judgment and waiving inquisition, and lien thereunder could be secured only by entering judgment on the warrant, issuing execution and obtaining á levy on the motor-vehicle, as was done in this ease.

The statement in the certificate of title that there was a lien in favor of the Huffman Motor Company for unpaid purchase money would not change the note, which was but evidence of a debt, into a lien or encumbrance.

The fact that the note was for an unpaid balance of purchase money on said automobile does not and cannot make the claim a lien on the same, where the bankrupt has set aside to him the automobile as his exemption.

Can a creditor who has full notice of the bankruptcy proceeding, and whose claim was listed, enter judgment after the bankruptcy and before the bankrupt is discharged upon a judgment note made before the bankruptcy, containing a waiver of exemption, and issue execution and levy upon the property set apart to the bankrupt as his exemption?

It is a well settled principle of law that where property is set aside to a bankrupt as his exemption, the ownership of it simply remains in him as it was, and that if there was a lien against it before the bankruptcy, he still holds it subject to the lien. “The exemption is created by the State law, and the assignee acquires no title to the exempted property. If the creditor has a claim against it, he must prosecute that claim in a court which has jurisdiction over the property, which the bankrupt court has not:” Lockwood v. Exchange Bank, 190 U. S. 204; Progressive Co. v. Friedman, 81 Pa. Superior Ct. 151-155.

Section 67 (d) of the Bankruptcy Act provides: “Liens given or accepted in good faith and not in contemplation of or in fraud upon this act, and for a present consideration, which have been recorded according to law, if record thereof was necessary in order to impart notice, shall, to the extent of such present consideration only, not be affected by this act.” We have already concluded that plaintiff had no lien by virtue of any record in the office of the State Highway Commissioner.

The facts in this case should not be confused with the line of cases holding that where a judgment was entered, or a lien was secured by execution, levy or attachment before bankruptcy, on a note containing a waiver of exemption, if such property be set aside to the bankrupt as his exemption, the lien secured by the levy before bankruptcy remains and the bankrupt takes the property subject to that lien, so that the judgment creditor may proceed to have the sheriff sell the property: Fehley v. Barr, 66 Pa. 196; Bassett v. Baird, 85 Pa. 384; Streeper v. McKee, 86 Pa. 188; Greenfield v. Golder, 42 Pa. Superior Ct. 462; Progressive Co. v. Friedman, 81 Pa. Superior Ct. 151.

The petitioner in this case claims that the situation is exactly similar to the case of Claster v. Soble, 22 Pa. Superior Ct. 631. It is there held that “where a creditor of a bankrupt, holding a judgment note with a waiver of exemption, does not present it in bankruptcy proceedings, although he has knowledge of such proceedings, and in fact proves other claims, he cannot thereafter enter up the judgment note and enforce the judgment against the bankrupt or against goods set apart by the trustee in bankruptcy to the bankrupt under his claim for exemption under the bankrupt law.”

It appears in the last recited case that the defendant was adjudicated a bankrupt as of Feb. 4, 1901, and the judgment was entered on the note April 22, 1901, and fi. fa. issued the same day. The levy was made on the goods and property set aside to the bankrupt as his exemption, and on application to the court by petition similar to one in this case, the writ of fi. fa. was stricken off. The bankrupt’s discharge had been granted in that case. It is nowhere set forth in the reported case when the judgment was entered and levy made with reference to the date of the bankrupt’s discharge. The decision in that case seems to be overruled in the later case of Realty Co. v. Gioshio, 50 Pa. Superior Ct. 185, 189. In the last recited case the defendant became a bankrupt on Dec. 29, 1910, and the plaintiff, without presenting his claim before the referee in bankruptcy, entered his judgment on Feb. 14, 1911, issued an execution and caused the sheriff to levy upon personal property that had been set aside as the defendant’s exemption. In the Gioshio case, discussing the case of Claster v. Soble, the opinion of the Superior Court proceeds as follows:

“Therefore, that case does not touch the point under consideration. As to Claster v. Soble, 22 Pa. Superior Ct. 631, it must be conceded that the facts in it are much like those in the present case. We have examined the printed arguments in that case and the opinion of this court, and we conclude that the point was not raised and decided that, notwithstanding the discharge of the defendant and his release from personal liability, the levy and lien of the execution on his exempted property might have been sustained. That point not having been specifically raised and decided, we do not feel bound by that decision upon the facts and questions raised in the present case. In our case, after the bankruptcy proceedings had released and restored the exempted goods to the possession of the defendant, the sheriff levied upon the same. After said seizure, the goods were virtually in the possession of the sheriff in the custody of the law. The question then arises, why should the discharge of the defendant in bankruptcy, his release from personal liability, operate to take the chattels from the sheriff and restore them to the former owner? We understand both the law and the practice in bankruptcy makes a distinction between the release from personal liability and the release from a valid lien effected by a discharge in bankruptcy. Conceding that the bankrupt’s discharge releases him from personal liability, why should not the lien continue on the property and the plaintiff be permitted to sell that property for the satisfaction of his debt? . . .
“The United States Supreme Court recognizes the right of creditors in whose favor exemption has been waived to proceed against the exemption set apart to the debtor under the state law, and also the right of the court to withhold the discharge of the bankrupt, if he be otherwise entitled thereto, until a reasonable time has elapsed for the excepting creditor to assert in a state tribunal his alleged right to subject the exempt property to the satisfaction of his claim: Lockwood v. Exchange Bank, 190 U. S. 294.
“In the present case the plaintiff did not need a stay of proceedings in the bankruptcy court as to the discharge of the defendant, because the plaintiff was proceeding legally, before the discharge, to sell the exempted property after it had been appraised and delivered to the defendant, when, at the instance of the defendant, the court stayed the plaintiff’s writ till the defendant had procured his discharge. Now, to hold that this not only relieved the defendant from personal liability for the plaintiff’s claim, but also discharged the exempted property from the lien of the levy and took it out of the custody of the law, would allow the defendant to take advantage of his own wrong. If the plaintiff was proceeding lawfully to sell the exempted property till the execution was stayed by the court, there can 'be no doubt but said stay was illegal, and, therefore, the defendant should gain no advantage therefrom. We think a correct conclusion is reached by holding that the discharge in bankruptcy released the defendant from personal liability to the plaintiff and released his other property from plaintiff’s claim, but left the lien of the levy valid and capable of enforcement.”

The effect of this decision is that the judgment creditor under this waiver of exemption had a right to enter judgment and obtain a valid levy and lien against the exempt property at any time before the bankrupt was actually discharged.

A discharge goes to the remedy; it does not cancel the debt. It' destroys the remedy on all provable debts other than those falling within the exceptions of section 17 (1 Collier on Bankruptcy, 596), and relates back to the date of the adjudication (page 600). A judgment obtained more than four months prior to the adjudication could not be enforced thereafter personally against the bankrupt, though it might be a lien against his real estate, and a levy or attachment might make it a lien on his personal property. But it seems that the holder of a judgment exemption note may proceed even after petition is filed to enter his judgment and proceed by levy or attachment, as the case may be, against the exempt property.

We have a recent case in the Superior Court, Progressive Co. v. Friedman, 81 Pa. Superior Ct. 151, deciding that the debtor’s exemption is subject to the claim of a creditor as to whom the bankrupt has waived his exemption, and attachment execution is an appropriate process to reach it. In the last recited case the judgment was entered prior to adjudication. The trustee sold all the bankrupt’s property, including the part claimed as his exemption, and set aside these proceeds in lieu of the exempted property. Attachment execution was issued and served on the trustee. The bankrupt petitioned, inter alia,, to set aside the attachment execution. The rule was made absolute by the court below. The Superior Court said: “There could be no doubt of the propriety of the court’s action if the obligation of the defendant were a promise to pay without a waiver of exemption and without a levy before the bankrupt’s discharge. . . . The exemption is created by the State law and the assignee acquired no title to the exempt property. If the creditor has a claim against it, he must prosecute that claim in a court which has jurisdiction over the property which the bankrupt court has not. This view was restated in Lockwood v. Exchange Bank, 190 U. S. 294, wherein . . . ‘the district court was directed to withhold the discharge of the bankrupt until a reasonable time had elapsed for the executing creditor to assert in the state tribunal his right to subject the exempt property to the satisfaction of this claim.’ In Chicago, B. & Q. R. R. Co. v. Hall, 229 U. S. 511, it was decided that section 67 (f) of the Bankrupt Act does not defeat a creditor’s right in the exempt property acquired by contract or by waiver of exemption. These may be enforced or foreclosed by judgments obtained even after the petition in bankruptcy was filed.”

Following the line of reasoning in the above ease as we understand it, we have arrived at the following

Conclusions of law.

1. That the certificate of title from the State Highway Commissioner held by the plaintiff in this case does not of itself create, enlarge or preserve any lien in favor of the plaintiff against the automobile described in the said certificate of title.

2. That the contract for the purchase of the automobile, the judgment note taken for the purchase money and the alleged legal claim or lien set out in the certificate of title for the automobile held by the plaintiff, taken together, do not create, enlarge or preserve any lien against defendant’s automobile and in favor of the plaintiff.

3. That, under the facts in this case, the plaintiff has a right at any time before the bankrupt is discharged to proceed by execution and levy upon the automobile set apart to the bankrupt as his exemption and collect his debt.

And now, May 9,1927, after consideration of the papers filed and the briefs and arguments of counsel, the rule to show cause why the levy made upon the property of the petitioner should not be set aside is discharged, at cost of the petitioner. Prom S. M. Williamson, Waynesburg, Pa.


source: Caselaw Access Project

author: BERGER, J.,

license: Public Domain

text:
    Walter v. Jenkins et al.

      Sheriff — Authority of deputy to bind sheriff — Landlord’s warrant — Principal and agent.

    1. A deputy sheriff in executing a landlord’s warrant is a mere agent of tne landlord and does not act in his official capacity.
    2. If he distrains upon horses and makes a contract with another person to keep and feed them, the sheriff is not liable on the contract.
    3. If the horses were seized away from the premises of the tenant, the seizure was a trespass, unless they were removed from the rented premises within thirty days from the date of the levy; and the seizure was a trespass ®Z> imtio, if tne provisions of the Act of March 21, 1772, 1 Sm. Laws, 370, were not complied with.
    4. An agent has no implied authority to do what the principal himself is not authorized to do.
    5. A party who avails himself of the act of an agent must, in order to charge the principal, prove the authority under which the agent acted.
    Motion for judgment n. o. v. C. P. Schuylkill Co., Sept. T., 1926, No. 743.

      Roscos R. Koch, for plaintiff.

      John B. McGurl, R. A. Graeff and Daniel F. Boyle, for defendants.
    May 2, 1927.
   BERGER, J.,

The jury rendered a verdict against the defendant and he has filed motions for a new trial and judgment n. o. v. The defendant, Robert E. Jenkins, was Sheriff of Schuylkill County for the term ending Jan. 4, 1926, and William B. McCool was one of his duly appointed deputies. On Oct. 23, 1924, McCool, on a landlord’s warrant, which defendant admits in paragraph 3 of his affidavit of defense had come “into his hands” for execution, levied on two horses and one wagon then in the possession of George Baehert, in the Borough of Tamaqua. The landlord who issued the warrant was a Mrs. Bradigan, and the goods were seized as the property of one Darker, who probably was her tenant. The landlord’s warrant was not produced at the trial, and there is not a scintilla of evidence showing the terms of the lease between Mrs. Bradigan and Darker — assuming their relation to have been that of landlord and tenant — the amount of rent alleged to be due, or the location of the demised premises. On the argument of the pending motions, it was admitted by plaintiff’s counsel that the property was not seized upon premises in the possession of Darker, as Mrs. Bradigan’s tenant, and the testimony of Bachert that the horses and wagon had been in his possession a month before their seizure is uncontradicted. McCool did not impound the property on the premises where he seized it, but removed the horses and wagon to the premises of J. C. Walter, the plaintiff, with whom he made an oral contract on Oct. 23, 1924, for the keep of the horses at SI each per day, and for the storage of the wagon at $1 per day. The plaintiff kept this property from Oct. 24, 1924, until the expiration of the defendant’s term as sheriff, Jan. 4, 1926. When the contract was brought to the attention of Joseph J. Kenney, the sheriff’s first deputy, by demand made by the plaintiff for payment, a month or two after he had entered upon the performance of the contract which he had with McCool, he was told, in effect, that the sheriff was not liable under the contract, because McCool had acted as the agent of Mrs. Bradigan in the execution of the landlord’s warrant, which had been given to him by John F. Whalen, Esq., as her attorney. Kenney testified that he directed the plaintiff to take the horses to Mrs. Bradigan, and the plaintiff testified that she refused to accept them. The plaintiff demanded payment from Jenkins himself, after he had had possession of the property for about six months, and he refused to pay him, stating, in substance, that he was not liable upon McCool’s contract, because it was not entered into in the discharge of a duty connected with the execution of a writ issued out of court. The defendant’s point for a verdict was refused, and the case was submitted to the jury, which rendered a verdict for the plaintiff in the sum of $1415.70.

The case was tried by counsel for each party as though the sheriff had an official duty to perform in the execution of the landlord’s warrant, which was admittedly accepted for execution by McCool, his deputy. Since we do not accept this view, it is unnecessary to consider the authorities cited on the extent of the implied power of a deputy sheriff to bind his principal, the sheriff, as to those things necessary to the proper execution of a writ coming into his hands in an official capacity. A sheriff or a constable is not bound to make a distress for rent, for all the duties imposed upon them by statute are those which follow the distress, or those which relate to appraisement and sale, should that become necessary, as is prescribed by the Act of March 21, 1772, 1 Sm. Laws, 370; 2 Purdon’s Digest, 2177, 2182. See, also, Com. v. Sheppard, 2 Clark, 393, 395; McElroy v. Dice, 17 Pa. 163, 169. A constable or other officer executing a warrant in landlord and tenant proceedings is the mere agent of the landlord and does not act in an official capacity: Murphy v. Chase et al., 103 Pa. 260, 262, 263; Ramsdell v. Seybert, 27 Pa. Superior Ct. 133, 136; Williams v. Kocher, 28 Dist. R. 939, 940; Pickering Co. v. Lutz (No. 2), 67 Pa. Superior Ct. 479, 482.

The seizure of the horses and wagon by McCool in the execution of the landlord’s warrant was a trespass; for a distress, in the absence of a special provision in the lease otherwise, can be executed only on the demised premises, unless the goods were fraudulently and clandestinely removed within thirty days from the date of the levy, and fraud will not be presumed from a simple removal: Grant and McLane’s Appeal, 44 Pa. 477, 479, 480; Owens v. Shovlin, 116 Pa. 371, 375, 376; Ball v. Penn, 10 Pa. Superior Ct. 544, 546. Even if the seizure of the horses and wagon, and their impounding under McCool’s contract with Walter, the plaintiff, had originally been lawful, the subsequent failure to give notice of the seizure to the tenant, to appraise the goods within five days thereafter, and to sell the seized property after six days’ notice following the appraisement, as is prescribed by section 1 of the Act of March 21, 1772, would have rendered the seizure by McCool a trespass ab initio. A distress for rent is a statutory proceeding, and all statutory requirements must be strictly followed. An irregular seizure is a trespass; if a seizure is regular, but the subsequent steps prescribed by statute are not taken, the landlord becomes a trespasser ab initio: Snyder v. Boring et al., 4 Pa. Superior Ct. 196; Oliver v. Wheeler, 26 Pa. Superior Ct. 5, 7; Richards et al. v. McGrath, 100 Pa. 389, 399; Brown et al. v. Stackhouse et al., 155 Pa. 582, 584, 585; Ehrhart v. Esbenshade, 233 Pa. 18.

The plaintiff did not prove that the defendant had authorized McCool to enter into a contract with him. Upon the contrary, the pleadings, the evidence, the presentation of the case, and the plaintiff’s present contentions in support of his verdict indicate that the liability of the defendant is supposed to grow out of the exercise of an implied power in McCool, the deputy sheriff, to bind the defendant, the sheriff, for the custody and keep of the distrained property. No such implied power, as we have already shown, vested in McCool by virtue of his official capacity. The defendant himself was merely the agent of the landlord to execute the landlord’s warrant, and, even though it be assumed that McCool was the designated agent of the defendant, he was, nevertheless, without power to hind the defendant by the contract here in question. The distress was a trespass, because not made and pursued in conformity with the Act of March 21, 1772. Therefore, McCool ceased to be the agent of the defendant the moment he departed from the requirements of the statute essential to a lawful distress. It cannot be assumed that the defendant authorized McCool to commit a trespass: Manegold v. Quinn, 45 Pa. Superior Ct. 482, 486, 487.

An agent has no implied authority to do what the principal himself is not authorized to do. In Blair v. Boring, 200 Pa. 27, a constable who made an unlawful sale of distrained goods after the landlord had given him an indemnifying bond against liability likely to arise from the sale was amerced in an action of damages brought by the owners of the goods. He then brought an action on the bond to recoup himself, but binding instructions given against him in the court below were sustained on appeal. The application of the same principle to the present case seems to be a complete bar to the plaintiff’s right to recover. Moreover, a party who avails himself of the act of an agent must, in order to charge the principal, prove the authority under which the agent acted. The burden of proof lies on him to establish the agency and the extent of that power: Lauer Brewing Co., Limited, v. Schmidt, 24 Pa. Superior Ct. 396, 403, 404; Dodge v. Williams, 47 Pa. Superior Ct. 302, 305, 306; Mahoning Valley Bread Co. v. Baltimore & Ohio R. R. Co., 83 Pa. Superior Ct. 379, 382; American Car and Foundry Co. v. Alexandria Water Co., 221 Pa. 529, 536; Interstate Securities Co. v. Third National Bank, 231 Pa. 422, 429. The plaintiff in this case did not prove the agency of McCool for the defendant in accordance with the principle just stated. The defendant’s motion for judgment n. o. v. is, therefore, sustained.

Judgment n. o. v. for the defendant is hereby directed to be entered upon payment of the jury fee. From M. M. Burke, Shenandoah, Pa.


author: Harvey, P. J.,

text:
    Clarion Baptist Association’s Charter.

      Corporations — Charter—Name—Church law.

    Where an unincorporated association of congregations of the Baptist denomination known as the "Clarion Baptist Association’’ by the unauthorized action of the majority excluded a minority of the members of the association because the latter refused to conform to a departure from the ecclesiastical usages, customs and principles of the association, such minority may organize and obtain a charter as a corporation of the first class under the name of “The Clarion Baptist Association.”
    Application for charter. C. P. Clarion Co., Dec. T., 1927, No. 53.

      Corbett & Hugh and M. H. Davis, for petitioners.

      Rev. John J. VanGorder and Rev. H. W. Jones, for protestants.
    Dec. 22, 1927.
   Harvey, P. J.,

A petition for a charter of the first class under the Act of Assembly of Pennsylvania, approved April 29, 1874, P. L. 73, and the supplements thereto, was filed in this court Sept. 27, 1927, for the incorporation of a proposed corporation to be known as the Clarion Baptist Association. Hearing thereon set for Saturday, Oct. 15, 1927, at 10 o’clock A. M. On request of attorney representing persons desiring to be heard in protest to incorporation, hearing continued. Protest to the granting of decree for such incorporation filed Oct. 24, 1927. Hearing fixed for Thursday, Nov. 17, 1927, at 2 o’clock P. M. Answer to protest filed Nov. 10, 1927.

Hearing held at time appointed. Petitioners represented by Don. C. Corbett, Esq., and M. H. Davis, Esq., and protestants by Rev. John Van Gorder, of Butler, Pa., and Rev. H. W. Jones, of Grove City, Pa.

Petition presented, accompanied by proofs of the publications of notice of application, and certificate from the office of the Secretary of the Commonwealth that a search of the records of the office fails to disclose any conflict between aforesaid title (The Clarion Baptist Association) and any other name, title or designation heretofore requested under the provisions of the Act of May 16, 1923, P. L. 246. Petition perused and examined and found to be in proper form and within the purposes named in charter of the first class under Act of April 29, 1874, and the supplements thereto.

Protest against granting the charter prayed is, in substance, as follows: That on or about A. D. 1837, twenty-one Baptist Churches in Western Pennsylvania organized an association styled “Clarion Baptist Association,” which association is functioning with the same objects and purposes as those of the proposed incorporation. That the granting of a charter is an infringement upon their rights.

This protest is signed by the pastors of the following-named Baptist Churches, averred members of the Clarion Baptist Association aforesaid, namely: First Baptist Church of Butler, by John J. VanGorder, pastor; First Baptist Church of Grove City, by Harvey J. Jones, pastor; Calvary Temple Baptist Church of Pittsburgh, Pa., by Charles Embrey, pastor; Oakland, Deanville and Leatherwood Churches, by James M. McKinley; Limestone, Corsica and Zion Churches, by C. C. Clawson; Union Baptist Church, by L. S. Hoyle, pastor.

Answer to protest filed, in substance, as follows: Organization of an unincorporated association called the “Clarion Baptist Association” about A. D. 1837, and [this association] has existed as such to the present ■ date, not denied.

That the granting of a charter as applied for is an infringement upon the rights of said association is denied. In support of said denial, petitioners aver: (1) The Clarion Baptist Association, at its 90th annual meeting at Richardsville, Pa., Sept. 6-7, 1927, resolved to apply for a charter of incorporation as a corporation of the first class, to be called the “Clarion Baptist Association,” and appointed certain persons to make application for such charter. (2) The organization applying for the charter is the “Clarion Baptist Association,” adherent to the doctrines, principles and teachings of the Baptist Church, and is recognized as such by the Pennsylvania Baptist General Convention. (3) The protestants do not represent the “Clarion Baptist Association,” but are seceders therefrom, and do not adhere to the doctrines of the Baptist Church, and have no standing to file the protest in this case.

The application is in due form. The purpose and object is lawful. The questions to be resolved are:

1. Are the churches as represented by the petitioners the true “Clarion Baptist Association” by reason of their steadfast adherence to the doctrines, principles and rules of the regular Baptist faith, working in accord with the united and general work and benevolences, of the regular Baptist Churches at home and abroad?

2. Are the churches as represented by the protestants averred representing a majority of the churches constituting the Clarion Baptist Association as of Sept. 7-9, 1926, by reason of action taken at the meeting held Sept. 7-9, 1926, the true “Clarion Baptist Association,” and the use of the name “The Clarion Baptist Association” by the petitioners an invasion of the rights of protestants to the exclusive use of that name?

3. Will the granting of the charter applied for be “not injurious to the community” (a provision in the Act of April 18, 1927).

Great latitude was allowed in the examination of persons at the hearing on this matter for the purpose of arriving at a knowledge of the status and the rights of the respective parties under the civil law, for it is by and under the civil law this matter shall be adjudged.

From the evidence before us, we find as facts the following:

1. Each individual church of the Baptist denomination is supreme in the control of its own affairs, its powers in that respect being limited only by the Constitution and laws of the land. There is‘no organized body of the Baptist denomination having the power of dictation to the individual church.

2. That there is an unincorporated association known as the Clarion Baptist Association, constituted of Baptist Churches located in Clarion, Butler, Jefferson, Armstrong and adjacent counties, and has been in existence about ninety years past. That originally the association was composed of twenty-one Baptist Churches located within the district named.

3. That at the annual meeting of the association, held in 1925, certain resolutions were introduced to be presented for adoption at the next annual meeting as part of the constitution. Resolution No. 6 being, in section 1, a creed, a statement of belief or confession of faith. Section 2. “That the association refuse to fellowship into its meetings churches or pastors who refuse to subscribe to this confession of faith.” That this resolution was presented and adopted at the annual meeting of the association held Sept. 7-9, 1926, at Corsica, Pennsylvania.

4. That at least four of the churches constituting the association refused to subscribe to Resolution No. 6.

5. That at the next annual meeting convened at Richardsville, Pennsylvania, at an afternoon session held Tuesday, Sept. 6, 1927, the delegates, or messengers, as denominated in the Baptist Church, from the churches refusing to subscribe to Resolution No. 6 were refused fellowship in the meeting; the program changed, and the delegates or messengers denied the right to vote. The program, as prepared, after changes removing pastors who refused to subscribe to Resolution No. 6, appointed to preach certain sermons, and others substituted, was proceeded with. Business transacted. Election of officers for the ensuing year. By motion, duly carried, only those who had subscribed to article XV of the constitution, including both sections 1 and 2, were declared entitled to and permitted to vote. On motion, the moderator declared the session adjourned to meet at some other place-on the call of the moderator. That subsequently, on the same day, in the evening, the delegates, or messengers, from the churches refusing to subscribe to Resolution No. 6, and denied fellowship and the right to vote at the afternoon session, convened a meeting at the same place (continued the following day). The clerk of the association, elected at the regular annual meeting in 1926, was present and called the meeting to order, and, after organization, the program was proceeded with, the election of officers and the transaction of business. At this meeting, at the session held Wednesday, Sept. 7, 1927, was passed the resolution appointing a committee to make application for the incorporation of the Clarion Baptist Association in these proceedings being considered.

Discussion.

It is not for us to enter the realm of doctrinal controversy or church administrative regulations. It has no place in these proceedings except as cause, or rocks, upon which the membership of churches constituting the Clarion Baptist Association as of Sept. 7-9, 1926, threatens to split. The association through its existence of nearly ninety years seems to have moved along “in the even tenor of its way” until two or more years ago, when a disturbing element or factor was introduced. Upon the merits of that factor, we do not presume to pass.

Upon the organization of the original association, each member church undoubtedly subscribed to the faiths, beliefs, rules, regulations and practices set forth in its constitution and by-laws. Probably, through the years, some of the original member churches may have disbanded or dropped out of the association and new ones were added. The constitution may have been amended and the by-laws altered. In any event, prior to the meeting of Sept. 7-9, 1926, the association was a united body with established constitution and by-laws. An examination of the constitution as of that date reveals:

(Article ill) That articles of faith satisfactory to the body are essential for admission to membership in the association.

(Article iv) It (the association) disclaims all authority over churches or individuals.

(Article v) Each church shall send to each annual meeting letters “containing a declaration of their continuance in the faith,” etc.

(Article xiv) The association shall have power to make any necessary alterations or additions by making known the desired change one year previous to its being voted for.

Nowhere can we find any specific provision for the expulsion of a member church. Doubtless, in case of notorious un-Christian and un-Baptistic practices or beliefs, measures would be found to that end, but even then conclusive grounds would have to be shown if demanded.

In this case, we must assume that the four or more churches refusing to sign Resolution No. 6 were admitted into fellowship at the meeting of Sept. 7-9, 1926, on their letter containing a declaration of their “continuance in the faith” under article v of the constitution. That, immediately upon their refusal to sign or subscribe to Resolution No. 6, they were automatically deprived of their membership, rights and privileges in the association. Why? Did they repudiate the “principles of the constitution” then in' existence— article II? Was there any change or changes in the Articles of Faith? Was it in resistance to domination disclaimed in article IV of the constitution? Or was it a combination of all?

Articles of Faith satisfactory to the body are essential for admission to membership in the association. We must conclude that those already members of the association possessed and possess qualifications, including Articles of Faith, entitling them to membership. If one church, or one pastor, should adopt and persistently maintain religious opinions contrary to the accepted standards or doctrines, principles and rules of the general Baptist denomination, it cannot be gainsaid means would be found to expel it or him from the regular Baptist communion. A coalition of several churches under similar conditions would not alter the principle involved. That, however, does not enter this issue except as it may affect the terms of the original agreement or contract of the Clarion Baptist Association. Even then it might have remained for an ecclesiastical court of the Baptist denomination to determine the doctrinal points had not the law governing the agreement of the original association been breached by action of a majority, making void the acts of the majority at meetings subsequent to Sept. 7-9, 1926, from which minority delegates, or messengers, were excluded.

Under the democratic form of government existing in the Baptist denomination, while each church is supreme in the control of its own affairs, in the original Articles of Association of the Clarion Association, a contract was entered into binding upon its members.

Article xiv of its constitution is vague in many ways, but of one thing we may be certain — no ex post facto law or provision may be passed by a party to a contract, however greatly in majority, abrogating or depriving a minority without its consent of its rights fixed by the contract.

While progess in the world, even in religious matters, should not be restricted unduly, yet there are certain fundamental principles and established rights to which people cling and in which they are guaranteed by our national constitution, among them the right to worship God according to the dictates of each person’s own conscience. We, therefore, feel that the principle enunciated in McGinnis v. Watson, 41 Pa. 9, is applicable in this case, namely, “the ecclesiastical laws, usages, customs and principles which were accepted among them (in this case just prior to Sept. 7-9, 1926, among the churches and regulating the association) before the dispute began, are the standard for determining which party is right,” and that the association exceeded its powers in adopting Resolution No. 6, incorporating article XV into the constitution as noted in minutes of the meeting of the 89th annual session of the Clarion Baptist Association, held in the Mt. Pleasant Church, Corsica, Penna., Sept. 7-9, 1926, under and by which certain churches were arbitrarily excommunicated and deprived of their rights, power and privileges as members in the Clarion Baptist Association, the effect of which was exhibited at the annual meeting held at Richardsville, Penna., Sept. 6, 1927, afternoon session, at which non-subscribing pastors and churches refusing to sign Resolution No. 6 were denied the right to fellowship in the program prepared and to vote on questions arising. It is true that a majority of delegates, or messengers, representing a majority of the churches composing the Clarion Baptist Association voted for Resolution No. 6 of the session of Sept. 7-9, 1926, and at the afternoon session of Sept. 6, 1927, at Eichardsville, but majorities, be it in matters ecclesiastical or temporal, must follow established laws and practices, and minorities possess rights that must be recognized. The denial of the right to vote to accredited delegates, or messengers, of churches already members in good standing in the association, under the circumstances and state of facts here presented, was an assumption of power not possessed by a portion of the membership, however great the majority.

We find and hold the Clarion Baptist Association to be of those churches and pastors who hold fast to the faiths and beliefs of the fathers and adhere to the principles and doctrines of the regular Baptist denomination. That the petitioners are representatives of the association under authorization at the Eichardsville meeting of Sept. 6-7, 1927, and that the action is but the incorporation of that which is now unincorporated, and the use of the name is no invasion or infringement upon any rights of the protestants.

We are of the opinion, upon consideration of all the evidence, that the action of the majority at the Eichardsville meeting at the session held on the afternoon of Sept. 6, 1927, in arbitrarily excluding accredited delegates, or messengers, because of the refusal of the churches they represented to subscribe to Eesolution No. 6 of'the meeting of Sept. 7-9, 1926, from fellowship, taking part in the program authoritatively prepared, and from voting on matters arising, was improper, irregular and illegal and contrary to article IV of the constitution; and that, upon the withdrawal of delegates from the meeting before the completion of the program officially prepared, the remaining delegates, or messengers, were fully warranted in reorganizing the meeting, as they did, to continue and conclude the program as officially prepared and transact business properly brought before such meeting. In this opinion, as to the rights of majorities and minorities, we are supported in principle by Winebrenner v. Colder, 43 Pa. 244, and cases therein cited; Kerr v. Trego, 47 Pa. 292; App v. Lutheran Congregation, 6 Pa. 201. Also, Barton’s Eules of Order for Eeligious Assemblies, pages 92-93, 118-120; Robert’s Eules of Order, Revised, § 47, page 201, § 74; Action of Pennsylvania Baptist General Convention held in Philadelphia, Oct. 20, 1927. We are not required to pass upon the constitutionality of article xv, incorporated in the constitution, set out in minutes of meeting of Sept. 7-9, 1926, raised at the hearing.

As to granting the charter “not being injurious to the community,” as specified in the Act of April 18, 1927. We must assume that the “community” in this case comprises the district in which the rights and powers under the charter are effective.

Careful examination of the application fails to reveal any means in the proposed corporation whereby the faith and beliefs of the membership or doctrines and principles of the Baptist Church may be affected or the right of self-government taken from the several churches constituting an incorporated association. We do, however, call attention to the expression in the application for charter “according to the constitution,” etc., of said corporation. A charter is the “constitution” of a corporation.- By-laws not inconsistent with the purpose and object contained in the application upon which a charter is granted, and not otherwise, may by proper procedure be passed. Incorporation for special purposes seems not adverse to usage in the Baptist denomination: Hiscox’s New Directory for Baptist Churches, page 338, note No. 5. In other religious denominations it is recommended and encouraged. It affords an entity in which titles, trusts, endowments and funds for general assoeiational objects may be vested and the same administered under powers possessed under the laws.

And now, Dec. 22, 1927, after perusing and examining the application for a charter for The Clarion. Baptist Association, filed in this court Sept. 27, 1927, accompanied by proof of the publication of the notice of such application, and finding the same in proper form (the word “constitution,” line third from bottom of page 2 of application, to be eliminated) and within the purposes named in charter of the first class under the law in Pennsylvania, and after hearing the protest filed against granting the said charter, the evidence presented and the arguments of parties at the hearing thereon, after careful consideration, for the reasons contained in foregoing opinion, we find the application lawful and the object and purpose not injurious to the community. Let an order and decree thereon that the charter be approved be drawn accordingly.


author: Kirkpatrick, Dist. J.,

text:
    Sovich v. Reading Co., successor to Phila. & Reading Ry. Co.

      Pleading — Statement of claim — Insufficiency of information given — Motion to strike off — Motion for more specific statement — Practice Act of 1915.

    Under the Practice Act of May 14, 1915, P. L. 483, a motion to strike off a statement of claim will be dismissed where the real complaint of the defendant is that the statement of claim does not furnish him with sufficient information to enable him to draw an adequate affidavit of defense, the proper remedy in such a case being a motion for a more specific statement.
    Listie Coal Co. v. Hall Bros. & Co., 18 Del. Co. Reps. 102, followed.
    Motion to strike off statement of claim. District Court of the United States for the Eastern District of Pennsylvania, June T., 1925, No. 11516.

      Carl G. Kirsch, for plaintiff; Wm. Clarke Mason, for defendant.
    March 3, 1928.
   Kirkpatrick, Dist. J.,

In this case, the real complaint of the defendant is that the statement of claim does not furnish him with sufficient information to enable him to draw an adequate affidavit of defense. He should have moved for a more specific statement. Instead, his motion is to strike the statement of claim from the record. In an opinion in Listie Coal Co. v. Hall Brothers & Co., Inc., 18 Del. Co. Law Reps. 102, Judge Dickinson clearly and concisely explained the theory and requirements of the Pennsylvania Practice Act in the following language:

“There are familiar distinctions, the sight of which should never be lost. We have here to do with a pleading. Every litigant plaintiff must have suffered a legal injury and a damage. The injuria and the damnum are distinct. He must have, moreover, not merely a grievance but a remedy. The injuria and the damnum constitute his cause of action and his legal remedy is in his right of action. The primary and main function of the pleading of fhe plaintiff is to set forth this cause of action, because if he does not have this he has nothing. This is of the substance of the pleading to which other functions are added. One is to apprise the defendant of what the complaint made of him is, so that he may be required to answer it and an issue either of fact or law be thus raised. These are of the substance of a pleading, but it must likewise have form. In our modern systems of pleading, almost without exception, the form is prescribed by statute. This is a legal ipse dixit. All remonstrance is silenced by the ita lex scripta est argument. A good statement of claim is thus a triumvirate. In the inverse order of their real value there must be (1) compliance with the required form; (2) a fact statement which will serve the purpose of a bill of particulars; and (3) the disclosure of a good cause of action. The Pennsylvania Practice Act of 1915 recognizes all these distinctions. It is a procedural act and first classifies actions and provides for appropriate process writs. It next prescribes the forms which pleadings must take and provides an appropriate remedy for failure in compliance. If a statement of claim is defective in form-, the question may be raised by a rule to strike it off; if sufficient facts are not averred to inform the defendant of what he is called upon to answer, he may have a rule for a more specific statement, and if no cause of action is set forth, the statement may be challenged by a statutory demurrer.”

Motion to strike off statement of claim is dismissed.


author: Marx, P. J.,

text:
    Kalbach’s Estate.

      Wills — Cy pres doctrine — Tombstones—Trusts and trustees.

    1. Gy pres is a rule of judicial construction designed to aid the court to ascertain and carry out, as nearly as may be, the intention of the donor. Though followed, it has never been bodily taken into the law of Pennsylvania. As adopted by the law of Pennsylvania, it is a reasonable doctrine by which a well-defined charity, or one where the means of definition are given, may be enforced in favor of the general intent, even where the mode or means provided for by the donor fail by reason of their inadequacy or unlawfulness.
    2. In Pennsylvania, the doctrine of cy pres is not confined to the administration of charities, but is equally applicable to devises and contracts wherein the future is provided for, and it is an essential element of equity jurisprudence.
    3. A trust for the purchase and erection of tombstones is not a charity, nor is it a devise or contract providing for the future, and cannot, therefore, be interpreted and executed under the cy pres doctrine.
    4. Where a testator creates a trust for the purchase and erection of tombstones by clear and express language which is impossible of performance, such trust is inoperative and the trustees will be relieved of its execution.
    5. Tombstones, like heirlooms, pass to the heirs of decedent. They are not devisable; nor do they pass as personal property.
    Petition for declaratory decree construing will. O. C. Berks Co., File No. 1099.

      Wellington M. Bertolet, for petitioner.

      W. A. Witman, Jr., for next of kin and residuary legatee.
    April 16, 1927.
   Marx, P. J.,

The Berks County Trust Company and Wellington M. Bertolet, trustees under the will of Caroline Kalbach, deceased, seek a declaratory decree defining their authority under Section (b), Item “Third,” of decedent’s said will.

From the testimony submitted, we find facts essential to the disposition of the petition as follows:

1. Caroline Kalbach, late of Reading, died on Aug. 23, 1916, leaving a last will and testament, in writing, dated June 8, 1916, probated June 5, 1917, before the Register of Wills of Berks County, Pennsylvania, and under which letters testamentary were issued to The Berks County Trust Company and Wellington M. Bertolet, executors named therein.

2. In due course, said executors filed their account in the Orphans’ Court of Berks County, and under an adjudication thereon there came into the hands of these petitioners the sum of $5680.15, to be held and applied under the terms of the trust established under decedent’s last will and testament.

3. Sigmund Reider, life beneficiary under said trust, died on Oct. 25, 1926; said trustees thereupon, on Jan. 29, 1927, filed their account in this court, showing a balance of $5031.90, personal estate, principal account, and $57.85, personal estate, income accrued since Oct. 25, 1926, in their hands.

4. The terms of the trust rest upon the following portions of the last will and testament of Caroline Kalbaeh, deceased, to wit:

“Third. I give, devise and bequeath all the rest, residue and remainder of my estate of every kind to the Berks County Trust Company of Reading, Pa., and Wellington M. Bertolet in trust to pay the net income thereof in quarterly instalments to Sigmund Reider during his natural life and upon his death to dispose of the principal in the following manner:
“(a) To pay to the Charles Evans Cemetery Company clear of any collateral inheritance tax which may become due thereon the sum of Six Hundred Dollars in trust to keep in good order and repair forever the burial lot of my deceased husband, Abraham O. Ehrgood, being lots Nos. 51 and 52, Section D 1 sub. in said Cemetery, the burial lot of my father, Isaac Kalbaeh, being lot No. 30, Section D, in said Cemetery, and the burial lot of Henry Mertz (Matz) and William Meyers, being lot No. 32, Section L, in said Cemetery, in good order and repair forever and forever. ■
“(b) I direct my executors hereinafter named to purchase from the Epp Granite Company, of Reading, Pennsylvania, ten tombstone slabs of the very best flawless Richmond Granite; each slab to be seven feet long, forty-two inches wide and sixteen inches high; each slab to be bordered by an ivy vine, berries and creepers, all to look full and natural; three big heavy oak leaves to be carved on each corner of each slab; a wreath of natural looking roses with stems full of thorns, rosebuds and rose leaves, natural looking daisies, forget-me-nots, bleeding hearts and broad ribbon bow, similar in size and design to that carved on the tombstone of George William Washington Kal-baeh Gehry, to be carved on each of said slabs, excepting the slabs to be placed on the grave of my two children, Charlotta and Mabel Matz, which is to have two similar wreaths of smaller design and two inscriptions, and excepting the slab to be placed on the grave of my three children, Abraham, Isaac and Susannah Ehrgood, which is to have three similar wreaths of smaller design and three inscriptions; all work on the top of said slabs, such as lettering, wreaths, ivy vine, leaves, berries, creepers and oak leaves, to be raised; each of said slabs to cost, including foundation and erection, the sum of Three Hundred and Fifty Dollars ($350), not more and not less. I direct my said executors to have said slabs suitable and appropriately inscribed and placed in Charles Evans Cemetery as follows:
“One on my own grave on the burial lot of my deceased husband, Abraham O. Ehrgood.
“One on the grave of my father, Isaac Kalbaeh.
“One on the grave of my mother, Susannah Kalbaeh.
“One on the grave of my sister, Eva Anna Dannahower.
“One on the grave of Daniel J. David Levan, who lived with my father.
“One on the grave of my brother, Charles Adam Kalbaeh.
“One on the grave of my brother, George William Washington Kalbaeh.
“One on the grave of my two children, Charlotta and Mabel Matz.
“One on the grave of my three children, Abraham, Isaac and Susannah Ehrgood.
“One on the grave of Sigmund Reider.
“When the slabs designated for graves of my father’s lot are ready to be placed, I direct that the two small tombstones on the graves of my sister Mary Elizabeth Kalbach and my brother Isaac Lewis Kalbach be moved to the foot end of George William Washington Kalbach’s grave.
“In order to erect the six slabs on the graves on burial lot of my father, Isaac Kalbach, it will be necessary to remove six old tombstones which were placed on said graves at my direction and expenses; and I direct that the said six old tombstones be given by my executors to my brother John Henry Kalbach, provided that he removes the tombstones now on the grave of his son William Thomas Kalbach and places it, re-inscribed, on the grave of my uncle Henry Matz. In case my said brother refuses to accept the said six old tombstones on such condition, then I direct my executors to provide for the grave of my said uncle, Henry Matz, a tombstone similar to that which is now on the grave of Susannah Matz, wife of the said Henry Matz.
“I direct that the tombstone now on the grave of Charlotta and Mabel Matz be moved to the burial lot of William Meyers and there placed on the grave of his two children, and that said stones be re-inscribed.
“(c) I direct my executors hereinafter named to pay the funeral expenses of the said Simund Reider upon his death, giving him the same sort of funeral as I have provided for myself and expending no more than $178.75 for his funeral. It is my desire and wish that only the mother and sisters of the said Sigmund Reider be permitted to attend his funeral, and that he be buried in Charles Evans Cemetery on the lot of Abraham O. Ehrgood on which I am to be buried.
“(d) I direct my executors hereinafter named to pay all the rest, residue and remainder of said principal to the Reiffton Fire Company of Reiffton, Exeter Township, Berks County, Pennsylvania, its successors and assigns.”

5. Petitioners, said trustees, allege their inability and the impossibility to literally perform the testamentary directions contained in section “6,” above recited. Testimony was submitted in support of this allegation, and from this testimony the further facts are found.

6. The Epp Granite Company, of Reading, Pennsylvania, cannot furnish ten tombstone slabs of the very best flawless Richmond granite, each slab 7 feet long, 42 inches wide and 16 inches high, each slab bordered and carved as detailed, at a cost, including foundation and erection, of $350 for each slab.

7. No other marble or quarryman or firm or other person or concern whatsoever can furnish and erect such slabs at a cost of $350 each.

8. The rough stone, of the type, quality'and dimensions stipulated, would cost, to-day, not less than $410 for each slab, and the completed and erected memorial could not be furnished for less than $850.

9. The Epp Granite Company would furnish and erect, at a cost of $350 each, ten slabs of Oglesby granite, approximating in style and quality the Richmond granite, each slab being 6 feet 6 inches long, 3 feet wide and 12 inches high, sand-blasted and finished by hand, the border and ornamentation more simple than stipulated, but approximately the same.

10. Slabs of the length and width stipulated could not be placed over the graves designated, without crowding slab against slab, over the entire width of the lots.

11. The grave of testatrix and those of the three children, Abraham, Isaac and Susanna Ehrgood, and that of Sigmund Reider are on the lot of her deceased husband, Abraham O. Ehrgood, lots 51 and 52, section D 1 sub., Charles Evans Cemetery, Reading, Pennsylvania.

12. On the lot of Isaac* Kalbaeh, lot 30, section D, said cemetery, are the graves of Isaac Kalbaeh, Susannah Kalbaeh, Eva Anna Dannahower, Daniel J. David Levan, Charles Adam Kalbaeh, George William Washington Kal-bach, and the graves of two children, Mary Elizabeth Kalbaeh and Isaac Lewis Kalbaeh, children of Isaac Kalbaeh.

13. The graves of the two children of testatrix, Charlotta and Mabel Matz, are on the lot of Henry Matz and William Meyers, lot 32, section L, said cemetery.

14. Placing slabs on the said lot of Isaac Kalbaeh, over the graves designated, will necessitate the removal of five tombstones now in position.

15. The next of kin of Isaac Kalbaeh, deceased, now living, are Ellen Stamm, a granddaughter, and Mary Tuckey, a great-granddaughter. Both appeared in court and protested against the removal of the existing tombstones and the placing of the slabs directed by the will.

Discussion.

Testatrix directs application of the bulk of her estate to the purchase and erection of ten granite slabs or tombstones. If it were possible to carry out the details of her directions and to comply with her wish, our own views of the propriety of such a disposition would not dare interfere with such compliance. However, testimony taken, upon which were based findings of facts 6, 7 and 8, clearly establishes the impossibility of full compliance with the wishes of testatrix. Under the petition presented, the trustees of the fund ask us to declare, inter alia, whether, under an application of the cy pres doctrine, they may approximate the testamentary directions and details and purchase tombstones as specified in our 9th finding of fact.

Cy pres, sometimees called the doctrine of approximation, is a rule of judicial construction, designed to aid the court to ascertain and carry out, as nearly as may be, the intention: of the donor: Tincher v. Arnold, 147 Fed. Repr. 665, 675. It lay within the province of ecclesiastical courts and became, in their hands, an instrumentality of much good and of far-reaching mischief and fraud. Though followed, it has never been bodily taken into the laws of our State. Gibson, C. J., in Methodist Church v. Remington, 1 Watts, 218, 227, speaks of the ecclesiastical administration under this doctrine as “too grossly revolting to the public sense of justice to be tolerated in a country where there is no ecclesiastical establishment.” As adopted by us, it is “. . . a reasonable doctrine, by which a well-defined charity, or one where the means of definition are given, may be enforced in favor of the general intent, even where the mode or means provided for by the donor fail by reason of their inadequacy or unlawfulness.

“Our jurisprudence furnishes several illustrations of the doctrine thus restricted: 1 Pa. R. 49; 2 W. & S. 81; 10 Barr, 26; 17 S. & R. 91.
“6. The meaning of the doctrine of cy pres, as received by us, is, that when a definite function or duty is to be performed, and it cannot be done in exact conformity with the scheme of the person or persons who have provided for it, it must be performed with as close approximation to that scheme as reasonably practicable; and so, of course, it must be enforced. It is the doctrine of approximation, and it is not at all confined to the administration of charities, but is equally applicable to all devises and contracts wherein the future is provided for, and it is an essential element of equity jurisprudence:” Philadelphia v. Girard Heirs, 45 Pa. 9, 28.

Under our law, then, this rule would appear to be applicable only to trusts constituting charities and devises and contracts wherein the future is provided for. See, also, 11 Corpus Juris, 361; Thompson’s Estate, 282 Pa. 30, 37, and Kimberly’s Estate, 249 Pa. 483.

The trust under the Kalbach will is for the purchase and erection of tombstones. It is not a charity: Todd v. St. Mary’s Church, 45 R. I. 282, 120 Atl. Repr. 577; Page on Wills (2nd ed.), pars. 1076 and 1087. It is, furthermore, not a devise or contract providing for the future. It is purely and entirely a trust for private or personal use, to be performed presently, forthwith completed and making no provision for the future. The rule of ey pres may not be applied to the interpretation and execution of the trust now before us.

May this court, under its general equity or statutory powers, modify and order an approximation of the testamentary direction? Relative to wills, the function of the court is (1) to determine testator’s intent, and (2) to carry out that intent. In ascertaining testator’s intent, his words alone must be considered. If his intent can be gathered from these words, nothing may be added, withdrawn or changed. In cases of inaccuracy or mistake, where testator’s intent clearly appears from the will at large, words may be transposed, added or eliminated in order to properly express that intent: Cooper’s Estate, 150 Pa. 576, 578; Oyster v. Oyster, 100 Pa. 538, 541.

In this testamentary provision there is no uncertainty or doubt. It is clearly and positively expressed, and leaves no doubt as to the intent of testatrix. In this case the rule applies: “The intention being established by the will, the law should adjudge accordingly:” MeKeehan v. Wilson, 53 Pa. 74, 77.

Since the provisions of section (b), Item “Third,” of this will clearly express testatrix’s intent, and that intent is impossible of performance, it remains only for this court to declare the section inoperative. This conclusion will not, however, affect the validity of other parts of the will: Baum’s Estate, 260 Pa. 33.

It may be noted that this decision does not in any way interfere with the right of trustees to place over the grave of testatrix a tombstone of size, character and construction in keeping with the funds in hand and as limited by law, without regard to the testamentary provision. It would appear that the paramount purpose of testatrix was to provide tombstones for those who had none, and that her subservient or secondary purpose was to remove several existing stones and have ten of one style, quality and cost. This secondary purpose is now declared inoperative. Against her paramount purpose and the fulfilling of it stand the protests of surviving next of kin of Isaac Kalbach, deceased. They resist the removal of the tombstones on the Kalbach lot, wherein six of the slabs were to be placed. Since tombstones, like heirlooms, pass to the heirs of decedent, are not devisable nor pass as personal property (1 Williams on Executors, 846; Seager v. Bowle, 1 Addams, 541), there would seem to be effect to their opposition. This, again, would render impossible compliance with testatrix’s paramount wish. Relative to tombstones for the graves of Sigmund Reider and the five children of testatrix, Charlotta Matz, Mabel Matz, Abraham Ehrgood, Isaac Ehrgood and Susanna Ehrgood, in the absence of valid and legal opposition thereto, we believe the paramount purpose of testatrix should be carried out. The matter of selection of such stones and the prices to be paid will be left to the discretion and judgment of trustees under the limits of law.

And now, to wit, April 16, 1927, in accordance with the foregoing opinion, it is ordered and decreed that section (b), Item “Third,” of the last will and testament of Caroline Kalbach, deceased, as set forth in the petition, pursuant to which this decree is made, be and the same is inoperative, and that the trustees named, to wit, The Berks County Trust Company and Wellington Bertolet, be and hereby are discharged and relieved from fulfilling, or attempting to fulfill, or approximating, the requirements thereof.

From Charles K. Derr, Reading, Pa.


author: Whitten, J.,

text:
    Seidler v. Gayville Supply Company.

      Equity — Receiver—Rule on receiver to show cause why claim should not be collected.

    1. Where, on a rule to show cause why a receiver should not proceed to collect from stockholders balances alleged to be due and owing by them on their stock subscriptions, the court was of the opinion, from the proofs produced at the hearing on the rule, that it was improbable that a suit by the receiver against the subscribers of the capital stock would result in the recovery of any money for the use of the creditors, the court refused to direct the receiver to institute such suit.
    2. However, since it is possible that another creditor may be able to produce proofs that the subscribers had not paid the full amount of the subscriptions, such creditors should not be barred from proceeding against the corporation and its stockholders by a creditors’ bill to enforce the alleged liability.
    3. Payment of subscriptions by transfer of property to corporation considered.
    Petition and rule to show cause why receiver should not proceed to collect amounts alleged to be due from stockholders. C. P. Westmoreland Co., No. 1258, in Equity.

      Maurice J. K. Davis and Gregg & Gregg, for rule; Marker & Rial, contra.
    March 31, 1927.
   Whitten, J.,

Upon a bill filed by O. E. Seidler, a stockholder of Gayville Supply Company, a Pennsylvania corporation, the court appointed a temporary receiver in order to protect the assets of said corporation from being sold, it being alleged that said corporation was insolvent.

It has since been shown that the said corporation was then and is now insolvent.

After the insolvency of said corporation was established, at the instance of Wilson & Company, a common creditor thereof, the court granted a rule on the receiver to show cause why he should not proceed to collect from the stockholders thereof the balance alleged to be due and owing by them to said corporation for capital stock subscribed for by them prior to the incorporation thereof.

The receiver answeréd that, according to his best information and belief, the subscribers for the said shares of stock, subsequent to such incorporation, had paid the amount thereof to the corporation by the transfer to it of merchandise of greater value than the amount of such subscriptions.

At a hearing upon said rule it was shown:

1. M. A. Gay, O. E. Seidler and W. F. Feely each subscribed for 100 shares of stock of the par value of $50 per share, and that, prior to the granting of the charter, 10 per cent. ($2500) of the authorized capital stock was paid to the treasurer of the corporation.

2. The total assets of the corporation — other than the alleged unpaid stock subscriptions — for distribution among creditors is about $1800, while the total indebtedness is about $6200.

3. Nov. 28, 1924, the directors of said corporation, by resolution duly adopted and recorded on the minutes of the board, purchased from the Gay-ville Supply Company, a partnership composed of Seidler, Gay and Feely, all the merchandise and assets of such partnership for the sum of $21,000. The corporation made payment therefor by issuing to said partners 420 shares of capital stock, including the stock already subscribed for by the said partners. The said resolution states that the said merchandise was worth the sum of $21,000.

4. On the same day, at a meeting of the stockholders of the said corporation, a resolution was adopted ratifying and approving the action of the board of directors in purchasing the said merchandise.

5. In March, 1924, a member of the said partnership made statements to a representative of Bradstreet Company, showing the assets of said partnership to be as follows:

Merchandise ..........................................$5000.00
Fixtures .............................................. 3000.00
Cash ................................................. 1000.00
Accounts receivable..................................... 5000.00
Total.........................................$14,000.00

A member of the partnership also stated that the firm owed about $9000. However, it appears that Gay, one of the partners, subsequent to the sale of said firm assets to the corporation, paid debts of the said firm in excess of $15,000.

“1. In an action by the receiver of an insolvent corporation to recover for an alleged unpaid stock subscription on the ground that it has not been paid in cash but in property, and this manner of payment had not been set forth in the articles of association, as required by the Act of April 17, 1876, P. L. 30, there can be no recovery where it appears that the property was acquired by the corporation from the defendant and the stock certificate issued to him in payment several months after the certificate of incorporation was signed by him, where it does not appear that at the time the certificate of incorporation was signed it was known that the stock subscription would be paid for in property.

“2. If the payment was made in property suitable for the purposes of the corporation at a just valuation and without fraud, it was a valid payment, of which creditors could not complain.

rt3. A corporation, once it has been formed and is actually being operated, may accept in payment of an original and unconditional stock certificate its fair equivalent in property.

“4. The burden of proof is upon the subscriber who has paid for his stock something else than cash to show that the transaction was based upon a contract with the company, that it was fair and that the property had been valued by those representing the corporation in good faith:” Krebs, Receiver, v. Oberrender, 274 Pa. 154.

“3. A receiver represents not only the corporation but all its creditors, and, as to the latter, it is his duty to secure all the assets available for their payment.

“4. Statutes which furnish appropriate remedies for the creditors of corporations as against the stockholder must be strictly followed; but where no specific remedy is provided, then the common law remedy of a claimant may be enforced by him, or by a receiver on behalf of all like situated, and a bill in equity can be maintained to secure appropriate* relief:” Cochran v. Shetler, 286 Pa. 226.

Ordinarily, the liability of subscribers to pay for corporation stock is enforced by the receiver of the corporation. However, this may also be accomplished by means of a creditors’ bill: Savidge on Penna. Corp., § 1042.

The court is of the opinion, from the proofs produced at the hearing upon the above rule, that it is improbable that a suit by the receiver against the said subscribers to the capital stock of the corporation would result in the recovery of any money for the use of the creditors of the corporation, and, therefore, the court is constrained not to direct the receiver to institute such suits.

However, since it is possible that another creditor may be able to produce proofs that such subscribers for capital stock have not paid the full amount of their subscriptions, they should not be barred from proceeding against the corporation and its stockholders by means of a creditors’ bill to enforce the alleged liability of such stockholders.

Decree.

And now, March 31, 1927, after hearing the parties and their witnesses and arguments of counsel, and after due consideration, the petition of Wilson & Company is dismissed, without prejudice to the right of any creditor of the said corporation to file a creditor’s bill against said corporation and its stockholders for discovery and to enforce the rights of such creditors.

From William S. Rial, Greensburg, Pa.


author: Fuller, P. J.

text:
    Commonwealth v. Gushinski.

      Game laws — Illegal fishing — Sunday—Act of fishing defined! — Statutes— Reference to.

    1. The act of fishing as intended in State regulatory statutes means any attempt to remove fish from their water habitat. It begins when the device is put into the water, continues while it is in the water, and is consummated when the device is pulled out of the water with the fish captured; but consummation is not essential.
    2. One who takes out of water a fishing device, as a net, though he does it on Sunday and others may have put the device in place on another day, is guilty of transgressing the Sunday fishing statute. (Act July 28,1917, art. ii, § 10, P. L. 1215).
    3. Where defendant has not so testified, there would be no presumption that he had withdrawn a net actuated by merciful intention to free the fish from imprisonment, and particularly where it was not shown that the fish were discontented or suffering from the confinement.
    4. Where a prior proceeding is a nullity through want of jurisdiction in the magistrate, it will not necessarily present an obstacle to further prosecution.
    5. Failure to state definitely the title and section of the statute violated is not fatal to the prosecution, where the Pamphlet Laws contain only one pertinent act passed on that date and where that act has only one section to which the accusation can be referred.
    Appeal from summary conviction for fishing on Sunday. Q. S. Luzerne Co., June T., 1920, No. 430.

      D. A. Fell and Herman J. Goldberg, for defendant.
   Fuller, P. J.

In this case we have the same prosecutor, the same defendant, the same magistrate, the same accusation and the same fish involved in the case of Com. v. Gushinski, No. 324, June Term, 1920, which came to technical grief. With zeal undiminished by disaster, the fish warden has renewed his attack upon the •evil-doer: Fiat justitia, ruat coelum.

On hearing of this appeal, the following facts were established:

1. On Sunday, July 18, 1920, the defendant was caught red-handed by the watchful warden and his co-adjutor in the very act of drawing from Raub’s Pond, in Lake Township, a net containing two perch and one catfish. These fish, we may observe in passing, were too diminutive to make their confiscation a motive for official activity.

2. The net had been placed some days before July 18th by some undisclosed malefactor, possibly the proprietor of the pond, and the defendant on that day merely pulled it up, with the result aforesaid.

3. For this identical act, the defendant was convicted in a former magisterial proceeding, which, on appeal, was reversed for want of jurisdiction on the ground of fatal defect in the information.

The learned counsel for defendant now urge the following grounds for reversal of this later judgment, viz.:

(1) The defendant did not fish on Sunday by merely pulling up a net which had been placed on another day.

(2) The legal presumption of innocence and a reasonable doubt, in the absence of proof showing when the fish actually entered the net, warrant the inference that they had entered on a prior day, and, if so, their rescue on Sunday from a watery grave was an act of mercy, permissible even on that holy day.

(3) The proceeding is barred by. the judgment in the prior proceeding.

(4) The information does not disclose where it was taken nor the township in which the magistrate officiates.

(5) Nor does it specify the title or section of the statute whose violation is alleged.

1. The first ground has the merit of ingenious novelty, having never before been seriously urged, or, if urged, never decided, in any case brought to our attention. Notwithstanding a superficial appearance of frivolity, the proposition should not be treated with ridicule. It calls for a serious answer to the question whether a person can properly be said to fish when he does no more than pull out of the water a device by which fish are or may be restrained of their liberty. This involves a definition of fishing, and in the light of our personal experience, extended over half a century, we define it to be a human effort, successful or unsuccessful, by any device, to remove from water the piscatorial denizen thereof, a performance demanding patience, involving skill, accompanied by profanity and usually followed by mendacity. The operation begins the moment that the device, for example, a hook or a net, enters the water, continues all the time it is in the water, and is consummated when it brings the denizen from the water. The consummation is not essential to the definition at all, for the operator is fishing when he drops the hook or places the net in the water, fishing while he leaves the device in the water, and still fishing when he pulls it out, regardless of results. The three steps in the performance, though connected in fact, are not legally joint but sever-able. This being so, the man who pulls the device out is fishing, though another man has put it in; and likewise fishing on Sunday when he pulls it cut on that day, though it was put in on Saturday. Now, if the consummation be not essential to the definition, so that a man is fishing when he merely puts the unsuccessful device in, a fortiori, must he be fishing when he pulls the successful device out. Qui sentit commodum, sentiré debet et onus, and nemo allegans suam turpitudinem audiendus est; hence, it would be irrational for the man who actually catches the fish to say he is not fishing. On this argument, if two men use the same device, for example, a net, which one of them sets and then departs and the other man pulls out the net with fish therein, neither of them has been fishing, a palpable reductio ad absurdum. The argument is only available as a defense if the man who pulls up the net is exclusively actuated by a desire to remove the device without fish; in other words, has no intention nor expectation of bringing out fish with the device. This, however, is not urged in the present case, and the defendant frankly admits both the intention and the expectation,:although he protests it would have been otherwise if he had known in advance the diminutive size of these particular fish.

Overruling, therefore, the first defense, we address ourselves to the second.

2. It is claimed that defendant may have been actuated by the merciful intention to free the fish from the pains of imprisonment, and, if so, this inference should be drawn in his favor on the principle of reasonable doubt and presumptive innocence. This contention, like the first, should not be summarily dismissed on a superficial appearance of foolishness. It deserves, and we have accorded, thoughtful consideration, which leads to these conclusions :

(1) The defendant, though competent, has not testified that he was thus actuated, but the contrary, and, therefore, with the1 assistance of inherent probability, we are thoroughly convinced in fact, beyond a reasonable doubt, that in pulling those fish from their native element into a cruel world, exposed to the possible piscatorial appetite of the officials, he was not actuated by any sentiment of mercy whatever.

(2) A consideration equally fatal to the plea is that these fish were not suitable objects of mercy at all, nor could they have possibly been regarded as such by the defendant. They were not seeking to escape, but accepted the situation in perfect contentment. They suffered no pain of body or mind. Indeed, we are advised by naturalists that fish, owing to lack of adequate sensory equipment, are physically and mentally incapable of feeling pain, and that even when gasping in the throes of apparent agony are really not suffering at all. This thought may console the tender-hearted fisherman who has occasion to pull out a hook swallowed by a fish. So we overrule the second defense.

3. Inasmuch as the prior proceeding was a nullity for want of jurisdiction, and was so decided, there has been no prior adjudication which can possibly operate as an obstacle to the present proceeding, and so we overrule the third defense.

4. If the statute required the prosecution to be brought before any particular magistrate, for example, the justice of the township in which the pond is located, we would think that the information should show upon its face this jurisdictional requirement; but the statute expressly enables the prosecution to be brought before any justice of the county, and, consequently, we overrule the fourth defense, suggesting, however, that it is always foolish for magistrates to risk reversal on objections which might be easily avoided with a little care.

5. A similar suggestion is proper concerning the fifth defense, namely, that the information fails to state the title and section of the statute violated. It merely specifies “the Act of Assembly approved the 28th day of July, A. D. 1917,” a very loose form of averment; but, inasmuch as the Pamphlet Laws of that year contain only one pertinent act approved on that date, and inasmuch as that act contains only one section to which the present charge can possibly be referred, we allow our intelligence to supply the deficiency.

Our treatment of this case has been exhaustive because we have begun to weary of it and wish to end it here and now. The officials at last are justified, the magistrate has achieved the miracle of returning a record, which, if not perfect, is at least passable, astute evasion of punishment has reached its limit, the perpetrator of that crime, July 18th, is brought to justice, those pitiful little fishes so ruthlessly routed from their quiet abode on the holy day of rest are avenged, the Christian Sabbath is restored to its pinnacle of strict observance against the subtle Mephistophelian argument of private property, the private pond must abjure the protection of its supposed prerogative to break the Fourth Commandment, and the judgment is affirmed.

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