author: Knight, J.,

text:
    Lower et al. v. Norristown-Penn Trust Co., Trustee, et al.

      Ruby R. Vale and Nelson P. Fegley, for complainants.

      Franklin L. Wright and Henry I. Fox, for defendants.
    Dec. 21, 1928.
   Knight, J.,

This is a suit in equity brought by the plaintiffs against the defendants to compel the defendant, Norristown-Penn Trust Company, trustee, to pay over certain funds in its possession to the plaintiffs.

The parties have agreed upon the facts which have been presented to the court in the form of a case stated.

Questions involved.

The questions involved are as follows: 1. Has the time for distribution of the principal arrived and can the court decree a determination of the trust? 2.Can an annuitant renounce and release the right to receive an annuity?

Findings of fact.

1. Isaac Taylor, on June 25, 1924, delivered to the Norristown-Penn Trust Company certain securities of the par value of $25,000, to be held by the said trust company for the uses and trusts declared and set forth in a declaration of trust executed and delivered by the said 'Isaac Taylor to the said trust company on the same day.

2. The purpose of the said Isaac Taylor, as set forth in the declaration, was to create a trust fund “for the special benefit of his daughter, Ella R. Taylor Lower, and her children, and also for an allowance unto Lottie Greth during life.”

3. The said Isaac Taylor reserved for himself and his wife the privilege of drawing upon the accumulated income during the lifetime of either, and then the declaration further provides: “1. After the death of Isaac Taylor and of his wife, Mary J. Taylor, to pay out of the income in monthly installments, the sum of Twenty-six Dollars ($26.00) per month unto Lottie Greth, for and during the term of her life, in recognition of her faithful service to said Taylor and wife.”

4. Paragraph 4 of the declaration provides: “Subject to the foregoing, the said trust fund shall be held in trust and kept invested and with increments reinvested for the benefit of the children of said Ella R. Taylor Lower and herself, and to be distributed to the children of the said Ella R. Taylor Lower and herself, in equal shares, share and share alike, when the youngest child now living shall reach the age of twenty-one years.”

5. Paragraph 8 of the declaration provides: “Distribution to grandchildren attaining the age of twenty-one years shall be subject to the duty upon the part of the trustee to reserve sufficient moneys to provide income for the monthly allowance to Lottie Greth.”

6. Isaac Taylor, the settlor, died on Dec. 26, 1927, his wife, Mary J. Taylor, having predeceased him. Ella R. Taylor Lower, his daughter, is now alive and has two children, Mary Lower, twenty-four years old, and Ruth Lower, twenty-three years old, both of whom are alive and sui juris. There are no children of deceased children of Isaac Taylor, the settlor.

7. Lottie Greth, the annuitant, is now alive and of sound mind, but has refused to accept any part of the said annuity and has filed with the trustee her written declaration that she will not at any time in the future receive or accept any part thereof, and has further notified the trustees that she will execute any release required by the trustee releasing it from all liability to her for payment of the annuity.

8. The trustee has distributed in cash or in kind to the beneficiaries, other than Lottie Greth, the principal and accumulated income, but is holding the sum of $8000 to provide income for the payment of the annuity to Lottie Greth.

9. All the beneficiaries of the trust, including Lottie Greth, are of full age and of sound mind. Ella R. Taylor Lower and her two daughters, Mary Lower and Ruth Lower, are the heirs-at-law and only heirs-at-law of Isaac Taylor, the settlor.

Discussion.

The diligence of counsel and our own research has failed to disclose one case in Pennsylvania or elsewhere arising under a deed of trust in which the facts were similar to the present controversy.

There are numerous cases arising under wills in which the courts have been asked to decree the determination of testamentary trusts.

We see no reason, however, why the rules pertaining to testamentary trusts should not apply with equal force to a trust created by deed or declaration.

The pertinent law was declared by Chief Justice Moschzisker in the case of Stafford’s Estate, 258 Pa. 595, in the following language: “The rule is established that ‘no matter what may be the nominal duration of an estate given to a trustee, it continues in equity no longer than the thing sought to be secured by the trust demands;’ and when that demand has been fully satisfied, ‘although the trust may not have ceased by expiration of time,’ yet, if all the parties who are or who may be interested in the trust property are in existence and are sui juris, and if they all consent and agree thereto, courts of equity may decree the determination of the trust.”

Applying this rule to the case at hand, we have all of the parties who are or may be interested in the trust in existence and sui juris and all of them, including the trustee, agreeing that the trust may be determined. We have then to inquire whether the thing sought to be secured by the trust still continues.

It was plainly the intent of the settlor, Isaac Taylor, to reward an old and faithful servant by giving her an annuity for life.

In the preamble of the declaration of trust he declares that one of the purposes of the instrument is to secure “an allowance unto Lottie Greth during life.” Thereafter mentioned first among the objects of his bounty, he directs the trustee “to pay out of the income, in monthly installments, Twenty-six Dollars per month unto Lottie Greth for and during the term of her life.”

Again, in the eighth paragraph he provides that no distribution shall be made to the grandchildren until the trustee shall retain a sum sufficient to provide for the monthly allowance to Lottie Greth.

The object of the settlor is apparent. He wanted to make some provision for a faithful retainer during the balance of her life, and he sought to guard against her improvidence by directing that the allowance should be paid to her monthly.

The thing then sought to be secured by the trust agreement has not been attained, unless the renunciation of Lottie Greth and her refusal to accept the annuity work an extinguishment of the settlor’s provision in her behalf.

That she can refuse to accept the monthly payments as they are offered her appears plain. No one has any interest in these monthly allowances but herself, and if she refuses to take them she cannot be compelled by law to accept them.

Can she then renounce and release her right to receive the annuity?

The declaration of the settlor does not create a spendthrift trust for Lottie Greth; it lacks all of the elements of such a trust. There is no provision that the annuity shall be free from the debts of the annuitant or that she may not alienate or anticipate the payments, nor is it given for her maintenance or support.

The direction that the trustee shall pay the monthly allowance “unto Lottie Greth” does not constitute it a spendthrift trust: Harrison v. McCana, 11 W. N. C. 239.

The annuity to Lottie Greth was a chose in action for the payment of money (2 Ruling Case Law, 2), and as such could be assigned or released by the annuitant: 3 Corpus Juris, 203.

The purpose of the settlor in creating an allowance for Lottie Greth having failed, the trust fund is distributable, as the children of Ella R. Lower are now twenty-one years of age.

We have next to consider the disposition of the sum retained by the Norris-town-Penn Trust Company to provide for the allowance of Lottie Greth.

The declaration of trust is rather carelessly drawn and there is no express or specific gift over of the portion of the principal required to produce the Greth allowance.

Is this sum disposed of by the terms of the declaration of trust or must it be paid to the personal representatives of the estate of Isaac Taylor, the settlor? In either event, the ultimate beneficiaries are the same.

The intention of the settlor is plain. He created a trust fund for his daughter and his two grandchildren and made the whole fund, up to the time of distribution, subject to the payment of the allowance to Lottie Greth. Looking forward to the time of distribution, he provides, in paragraph 8 of the declaration, “that distribution to the grandchildren attaining the age of twenty-one years shall be subject to the duty upon the part of the trustee to reserve sufficient moneys to provide income for the allowance to Lottie Greth.” It, therefore, appears that the settlor intended that from the shares of the grandchildren should be deducted a sum sufficient to provide the allowance, and yet in the fourth paragraph he directs that the trust fund and accrued interest shall be distributed among his daughter and grandchildren, share and share alike. Gathering his intention from the four corners of the declaration, we are of the opinion that the settlor intended to and did dispose of the entire trust fund; should Lottie Greth be living when his grandchildren became of age, the fund and accrued interest should be distributed, retaining from the shares of the grandchildren a sum sufficient to earn the Greth allowance, which sum should be paid to the grandchildren upon the death of Lottie Greth, as he desired his grandchildren and his daughter to share equally in the fund. As the Greth annuity drops out, the fund held by the trust company should be distributed to the grandchildren, if taken from their shares; if not, to the daughter of the settlor and his grandchildren in equal shares.

We have found as a fact that Lottie Greth is sui juris, but this finding is based entirely upon the case stated as presented to us signed by all the parties. The annuitant herself did not appear in court and we had no opportunity of seeing her or of examining her upon the genuineness of her consent and desire to give up her allowance.

The action of Lottie Greth in renouncing a provision made for her is so contrary to common experience, so opposed to the acquisitiveness of human nature, that under ordinary circumstances, sitting as a chancellor, we would feel impelled to require this woman to appear in open court, represented by her own counsel, and there give the reason for her unusual and unnatural act.

The high standing of the parties, however, precludes all suspicion of overreaching or undue influence, although, of course, we premise our conclusion upon the assumption that Lottie Greth is in fact sui juris and that no fraud has been practiced upon her.

From the facts found and the above discussion, we draw the following

Conclusions of law.

1. Lottie Greth, the annuitant, being of full age and sui juris, can renounce her right to receive the allowance provided for her under the declaration of trust made by Isaac Taylor, and her proper release will absolve the trustee from all obligation to pay to her, now or hereafter, the said allowance or any portion thereof.

2. The refusal of the said Lottie Greth to take or receive the allowance defeats the purpose of the settlor and renders void the provision made by the settlor in her behalf.

3. The purpose of the settlor in creating an allowance for Lottie Greth having failed, and all parties interested or who may be interested being sui juris and having agreed and consented thereto, the court may decree a determination of the trust.

4. By the declaration of trust the settlor disposed of the entire trust fund, and upon the determination of the trust at this time the sum held to protect the Greth allowance must be paid to the grandchildren of Isaac Taylor if reserved from their shares, otherwise to Ella R. Taylor Lower, Mary Lower and Ruth Lower, share and share alike.

5. The costs of this proceeding to be paid by the trustee out of the trust funds.

And now, Dec. 21, 1928, it is ordered, adjudged and decreed that the prothonotary mark these findings of fact and conclusions of law filed, thereafter to become a part of the record of the case, and enter the following decree nisi:

That the trust created by Isaac Taylor, dated June 25, 1924, is hereby adjudged and decreed terminated and ended.

That the Norristown-Penn Trust Company, upon receipt of a proper release from Lottie Greth, shall pay to the plaintiffs in this action, in accordance with the terms of our fourth conclusion of law, all moneys in its hands, principal and interest, properly belonging to said trust fund, after deducting therefrom the costs of this proceeding and any proper charges that it may have against said fund.

The prothonotary is further ordered and directed to give counsel in the case, as well as Lottie Greth, notice, as required by the Rules of Equity Practice, that unless exceptions thereto are filed within ten days of this date, the decree above nisi will become the final decree as of course.

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


source: Caselaw Access Project

author: MacDade, J.,

license: Public Domain

text:
    Commonwealth v. Litchfield.

      William J. MacCarter, District Attorney, and William B. McClenacham, and Louis S. Bloom, Assistant District Attorney, for Commonwealth.

      J. L. Kilcoyne, Evan B. Lewis and R. W. Beatty, for defendant.
    June 21, 1929.
   MacDade, J.,

The above case was called by the district attorney for trial before us on June 12, 1929, which date it was scheduled for trial on our printed list, or calendar of criminal trials, in due course, but the defendant failed to respond to the call when his name was called three times.

No explanation was given for his absence, either in person or by attorney, although he gave security on March 27, 1929, when the alleged offense was committed, before an alderman in the City of Chester in the sum of $2000 (own recognizance), to appear at the June Sessions, 1929, of our Quarter Sessions Court, to answer such charges as might be preferred against him, namely, operating a motor-vehicle while under the influence of intoxicating liquor, in violation of the Act of Assembly of the Commonwealth of Pennsylvania of May 11, 1927, § 621, par. (f), P. L. 886, which reads as follows:

“It shall be unlawful for any person to commit any of the following acts:
“(f) To operate a motor-vehicle while tinder the influence of intoxicating liquors ... or permit any person who may be under the influence of intoxicating liquor ... to operate any motor-vehicle owned by him or in his control or custody.”

This is a misdemeanor for which the defendant must be indicted by the grand jury, which was done June 3, 1929, and upon conviction of its violation, the following penalty is provided, namely, $200 or imprisonment for three months, or both such fine and imprisonment. The Act of 1929 amends the Act of 1927 by increasing the imprisonment to three years. See section 620, paragraph (f), Act of Assembly of May 1, 1929', effective June 1, 1929.

When the defendant was duly indicted on June 3rd aforesaid, the district attorney publicly announced, as is the custom, that the said case was listed for trial on June 12, 1929, at 9 A. M. (Standard Time), and when said time arrived, the above took place. (See Notes of Testimony filed.)

The transcript was filed March 30, 1929, and the indictment thereon, as referred to above, is as follows:

“In the Court of Quarter Sessions of the Peace of the County of Delaware. No. 42, June Sessions, 1929.
"County of Delaware, ss.:
"The Grand Inquest of the Commonwealth of Pennsylvania, inquiring for the County of Delaware, upon their respective oaths and affirmations, do present, That Herman V. Litchfield, late of the said County Yeoman, on the twenty-seventh day of March, in the year of our Lord one thousand nine hundred and twenty-nine, at the County aforesaid, and within the jurisdiction of this Court, with force and arms, etc., did unlawfully, wilfully and maliciously operate a certain motor-vehicle while under the influence of intoxicating liquors, in and upon a certain public highway in the City of Chester, County of Delaware, and State of Pennsylvania, contrary to the form of the Act of the General Assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.
“WM. J. MacCARTER, Jr.,
“District Attorney.”

The defendant not appearing for trial on June 12th to answer his indictment, the district attorney then asked in open court that the recognizance be forfeited and a bench warrant issue for the defendant. Before acting upon this usual application of the district attorney when a defendant does not answer when called for trial, we learned upon inquiry the following:

Mr. Bloom: This is a charge of operating a motor-vehicle while under the influence of intoxicating liquor. The defendant's name has been called. He doesn’t answer.

Mr. McClenachan: Before asking that a bench warrant be issued, I want to call the court’s attention to a rule which has been served on the clerk of the court of this county yesterday in behalf of the United States District Court in Philadelphia. It appears that a petition has been filed by Herman V. Litchfield to George W. Coles, United States Attorney for the Eastern District of Pennsylvania, before this rule was issued and served on the' party here, directing this court to show cause why the proceeding should not be removed to the District Court of the United States. The case is one of driving an automobile while the operator was intoxicated, and the order says that the defendant was acting as a Federal prohibition officer in making investigations of liquor violations in the City of Chester under assignment by Colonel Samuel O. Wynne, Federal Administrator for the Fifth Prohibition District of Pennsylvania, and that the defendant was acting under color of his office as prohibition agent. The rule is not returnable until Friday. We feel that we can go ahead with the trial of the case, and if he is not here we can have a bench warrant issued. The rule is not absolute until the hearing is heard on Friday. Nothing stays any of the proceedings.

The Court: What is the charge against Litchfield? Mr. McClenachan: Operating a motor-vehicle while the operator was under the influence of intoxicating liquor.

The Court: What has the United States to do with that? Mr. McClenachan: He is an agent; an agent of the Prohibition Department, a Federal prohibition officer.

The Court: But the same as any ordinary person-? Mr. McClenachan: And we contend he ought to be the same as any ordinary person coming within the jurisdiction of this court.

The Court: This happened in the City of Chester? Mr. McClenachan: Yes, sir. He has been indicted for that offense and, notwithstanding the fact he is a prohibition enforcement agent, he is the same as any other individual driving a motor-vehicle along the highways of this State and in this county and ought to be amenable to the laws providing for such cases.

The Court: The man referred to is a United States officer? Mr. McClenachan: Yes, sir.

The Court: And he is charged with operating a motor-vehicle while under the influence of intoxicating liquor? Mr. McClenachan: Yes, sir.

The Court: And his case is scheduled for trial today? Mr. McClenachan: Yes, sir.

The Court: Witnesses are here? Me. McClenachan: Yes, sir.

The Court: And you are served with this (indicating)? Mr. McClenachan: Yesterday.

The Court: With what? Mr. McClenachan: With notice of rule to show cause why writ of habeas corpms mm causai should not issue.

The Court: What is the petition? Mr. McClenachan: We have the order.

The Court: The court may look at it, but can’t you read it? Mr. McClenachan: An order from the United States District Court.

The Court: That looks like a carbon copy. Mr. McClenachan: This is the order filed.

The Court: You are handing up a part of the record in the case? Mr. McClenaehan: It was handed to the clerk of court of this county yesterday and by him handed to us. Mr. Meli has a certified copy of the order.

The Court: What I want to know, is that (indicating) the original which was served? Mr. McClenachan: No.

The Court: Where did you get that (indicating)? Mr. McClenachan: This (indicating) is the paper, copy of the original. This is what was served on the clerk of the courts in this county.

The Court: The original of this was directed to the clerk of the Quarter Sessions of Delaware County? You don’t tell me where you received this paper (indicating). Mr. McClenachan: I received it from the district attorney and I presume he got it from the clerk of the court.

The Court: Is that (indicating) what was served on the clerk of the court? Mr. McClenachan: Yes, sir.

The Court: Why isn’t it filed? Mr. McClenachan: We can have it marked filed now.

The Court: Well, I don’t know. You will have to tell me. Mr. McClenachan: We might mark it filed now.

The Court: We can’t consider anything that is not filed. Mr. McClenachan (to the clerk): Mark it filed. (Paper so marked.) Mr. McClenachan: Issued on petition of the defendant himself and gotten up on representations by George W. Coles.

The Court: The district attorney calls our attention to the paper. When it is filed, let us know what it is. Mr. McClenachan: The order is here.

The Court: Read it. Mr. McClenachan (reading):

"In the District Court of the United States for the Eastern District of Pennsylvania. June Term, 1929, No. —.—.
"United States of America ex rel. Herman V. Litchfield v. Commonwealth of Pennsylvania, City of Chester.
"Rule to show cause why writ of habeas corpus mm causa should not issue.
Order.
“And now, to wit: June 11, 1929, it being represented to this Court by George W. Coles, United States Attorney for the Eastern District of Pennsylvania, that the above named petitioner, Herman V. Litchfield, now under indictment for driving while intoxicated, in the Quarter Sessions Court of Delaware County, Pennsylvania, his case being listed for trial at Media, Pennsylvania, on June 12, 1929, at 9.30 A. M. (Daylight Saving Time), was, at the time of his alleged driving while intoxicated, to wit, on March 27, 1929, acting under color of his office, to wit, was acting as a Federal Prohibition Officer in making investigations of liquor violations in the City of Chester, Pennsylvania, being accompanied at the time by Prohibition Agent E. R. Walton, both the said petitioner and the said E. R. Walton being at the time under assignment by Col. Samuel O. Wynne, Federal Administrator for the Fifth Prohibition District of Pennsylvania, to make the said investigation of liquor violations in Chester, Pennsylvania. Now, on motion of the said George W. Coles, United States Attorney aforesaid, a rule is granted on the Clerk of the Court of Quarter Sessions of Delaware County, Pennsylvania, to show cause why a writ of habeas corpus cum causa should not issue from this Court directed to the Court of Quarter Sessions of Delaware County, Pennsylvania, requiring it to stay all further proceedings in the case of Commonwealth v. Herman V. Litchfield, listed for trial in the said Court of Quarter Sessions of Delaware County, Pennsylvania, on Wednesday, June 12, 1929, at 9.30 A. M. (Daylight Saving Time), and to remove all further proceedings in the said cause of Commonwealth v. Herman V. Litchfield to this Court under the provisions of section 33 of the Judicial Code, subject to the provisions of section 37 of the Judicial Code.
“Said rule is made returnable to this Court on the 14th day of June, 1929, at 10 o’clock (Daylight Saving Time).
“A copy of this Order to be delivered to the Clerk of the said Quarter Sessions Court of Delaware County, Pennsylvania, or left at his office, by the United States Marshal for the Eastern District of Pennsylvania, or by his deputy, or by some other person. “By the Court: DICKINSON, J.”

The Court: Is it certified at all? Mr. McClenachan: It is not certified.

The Court: No seal? Mr. McClenachan: No, sir.

The Court: Mr. Meli has a certified copy of it? Mr. McClenachan: We sent him in and they gave him a certified copy of this order which is the same as this order < indicating).

The Court: You claim this (indicating) is simply a copy, do you? Mr. McClenachan: Yes, sir.

The Court: A copy of the order which was made? Mr. McClenachan: Yes, sir. There is no certification or attestation of any kind.

The Court: We won’t stand on technicalities. You are now calling the case? Mr. Bloom: Yes, sir.

The Court: When is this matter to be heard? Mr. McClenachan: The 14th of June, which will be Friday of this week.

The Court: Is it made returnable in Philadelphia or is it to be put on our list? Mr. McClenachan: Returnable to the District Court of the United States in Philadelphia. That (indicating) is a rule to show cause returnable on the 14th.

The Court: The court makes this suggestion if you desire to handle the case in this way: We cannot try it because, assuming that is an order of the United States Court, as a matter of comity we would recognize any order of the United States Court as a superior court to this. The United States Government has a right to remove any and all cases it sees fit to be removed to the United States Court under the Act of Congress. That applies to criminal as well as civil causes. In your position as district attorney, you may call the case and continue it formally until next Monday. Meanwhile, you will attend court in Philadelphia in response to that rule and make the necessary answer thereto and the court will then dispose of it and inform the- court that we have continued the case, although we have called it for trial. Let us keep our records straight here. The bail is good. It is simply continued until Monday because of the intervention of the United States Government through its United States Attorney. The district attorney will make the answer for the clerk of the court, and in Philadelphia the court may decide it has no jurisdiction in this matter, that it is purely a State offense, but let the United States Court pass upon that and we won’t interfere with them, and if it is necessary for us to make the decision, we will make the decision Monday.

Generally, is that the way they would handle a charge against a Federal officer being charged with such an offense, driving a motor-vehicle while under the influence of intoxicating liquor? If one were to commit murder in this county, would the United States remove the case of murder to the United States Court and try him there in times of piping peace, not on the high seas? Mr. McClenachan: I presume so.

The Court: This man has violated an act of assembly of this Commonwealth and it has exclusive right to try him in this jurisdiction. It may be that they will so decide in Philadelphia. At the same time, as long as this rule has been taken to show cause why writ of habeas corpus should not issue, we will let them pass upon it first, and the district attorney may be present at the hearing, and I have no doubt at all but that the district attorney can convince Judge Dickinson it is purely a State offense.

The case is formally continued until Monday, June 17, 1929, at 10 A. M. .

We directed the district attorney to pursue this course because we thought the Federal court should hear and determine the jurisdictional question before granting the writ of certiorari unless there was a pressing emergency, which latter is not the case, and continued the case until June 17, 1929, at 9 o’clock A. M. (Standard Time) : In re Duane, 261 Fed. Repr. 242.

The above decision was rendered under Judicial Code, § 33, which code was amended by the Act of Aug. 23, 1916, 39 Stat. at L. 532, including therein “any officer of the courts of the United States” or either House of Congress.

However, we were not obliged to give the district attorney such instructions, for we had nothing before us of any Federal intervention. The paper we had before us was alleged to have' come from the Federal court from this district. It was a carbon copy of an order only and not even certified. It was said to have been handed to the Clerk of the Court of Quarter Sessions on the day the case was scheduled for trial here (June 12th). Indeed, under the ruling (In re Vadner, 259 Fed. Repr. 614) it was held that the State court does not lose jurisdiction until an order is filed therein from the Federal court directing the removal.

That was not done in the instant ease, and our high regard for the Federal court, together with the spirit of comity so necessary in effectually enforcing our laws without judicial friction, motivated us to postpone action to permit the Federal authorities to get themselves properly before both courts.

It certainly was not our duty to honor such paper writing, purporting to be an order of the Federal court, for several reasons: (1) Even if the service had been legal and the matter properly before us, the writ of habeas corpus cum causa was issued inadvisedly under the circumstance of the instant case; and (2) the State does not desire the trial to be had in the Federal court, for it is in the attitude of protesting that the trial should be had in its own court. It would suffer the removal in invitum.

The proper practice to be observed by the Federal authorities would be as to the removal of a cause to pursue the course indicated in Tennessee v. Davis, 100 U. S. 257. See Judicial Code, § 33; Desty’s Federal Pro., § 106.

It would not be amiss to suggest the following as a form of petition of removal, which was used in a case where a revenue officer was indicted for murder, as follows:

"Tour petitioner, James M. Davis, would most respectfully show to the Court that on the twenty-first day of May, 1878, at the May Term of the Circuit Court of Grundy County, Tennessee, the grand jurors for the State of Tennessee, at the instance of E. M. Haynes, as prosecutor, indicted your petitioner for wilfully, premeditatedly, deliberately and of his malice aforethought, killing one J. B. Haynes, which indictment and criminal prosecution so instituted is still pending against your petitioner in the Circuit Court of Grundy County, within the Middle District of Tennessee.
“And he further shows that no murder was committed; but, on the other hand, the killing was committed in his own necessary self-defense to save his own life; that at the time the alleged act for which he was indicted was committed he was, and still is, an officer of the United States, to wit, a deputy collector of internal revenue, and the act for which he was indicted was performed in his own necessary self-defense, while engaged in the discharge of the duties of his office as deputy collector of internal revenue; and he was acting by and under the authority of the internal revenue laws of the United States, and was done under and by right of his office, to wit, as deputy collector of internal revenue. It is his duty to seize illicit distilleries and the apparatus that is being used for the illicit and unlawful distillation of spirits, and while so attempting to enforce the revenue laws of the United States, as deputy collector, aforesaid, he was assaulted and fired upon by a number of armed men, and in defense of his life, returned fire.
"In view of these facts, your petitioner prays that said cause may be removed from the Circuit Court of Grundy County to the District Court of the United States for the Middle District of Tennessee for trial, and that a certiorari issue. And as in duty bound he will ever pray. “JAMES A. WARDER.,
"Attorney.”

Where order of removal should be made, it would be proper to issue a writ of certiorari to the state court to remove the suit to the Federal court.

In practice, this should be followed by an order of the state court staying proceedings in the state court when the case has been removed by order of a District Court of the United States after the latter court has had the averments of the petition to remove verified by a person or persons in whom the court has confidence. The evidence should be sufficient to satisfy the conscience of the court that justice can be had in the state court in prosecuting the defendant for a violation of a state law, which act was not done while engaged in the discharge of the duties of his office as a prohibition enforcement officer of the United States and while he was acting by and under the authority of the prohibition laws of the United States, and was done under and by right of his office, to wit, as a prohibition enforcement officer.

In practice also—

A certified copy of the order of removal to the District Court of the United States is filed in the state court; but the proper procedure is to issue a writ of certiorari in cases where the application to remove is made to the Federal court: Loveland on Federal Procedure, “Removal of Causes;” Virginia v. Felts, 133 Fed. Repr. 85.

In the latter case, concerning the writ to issue out of the Federal court, the following is found in the opinion, commencing on page 88:

“It will be observed that the statute makes no provision where the prosecution is commenced by a capias or process of arrest for any other writ than that of habeas corpus cum causa. This writ, where, as is usually the ease, the petitioner has given bail and is not in actual custody, is not well adapted to the purpose in view. It is adapted to be addressed to the person who has the petitioner in his custody, and commands such person to bring the body of the petitioner before the court whose clerk issues it and make known the cause of his capture and detention. A not unusual practice, where the petitioner is not in actual custody, is to address the writ to the marshal of the Federal district and issue a duplicate, which is served on, or left at, the office of the clerk of the state court in which the indictment is pending.
“No provision is made for the issue of a writ of certiorari in a case commenced by capias or other process of arrest. As a rule, the clerk of the state court, obeying so far as he can the command of the writ of habeas corpus cum causa, sends to the Federal court the original bill of indictment (which should be identified by proper certificate of the state court clerk), or certifies a copy thereof, along with a copy of the orders, if any, made by the state court in connection therewith. If, however, the clerk of the state court fails or refuses to do either (and unless his proper fees are paid or tendered him, he can, I think, rightfully so refuse), the course to be pursued is set out in section 645, Revised Statutes (now Judicial Code, § 35).
“It has been mooted whether it is the duty of the state or of the petitioner to procure the indictment and proceedings of the state court. I do not think this is the duty of the state. It suffers the removal in invitum. It is in the attitude of protesting that the trial should be had in its own court. As the state does not desire the trial to be had in the Federal court, and as the court cannot try the case until the indictment has been procured (or until it has been supplied by affidavit or otherwise), it follows that the duty of procuring or supplying the indictment does not rest on the state but on the petitioner.”

Therefore, we hold that a writ of habeas corpus cum causa, if this order is so intended, is not well adapted to the purpose in view as the petitioner has given bail and is not in actual custody.

Notice of application for removal should have been given to the State court a reasonable time before the time for hearing, as well as the time fixed for trial of the cause in the State court: Carson & R. Lumber Co. v. Holtzclaw, 39 Fed. Repr. 578; 47 Fed. Repr. 836; 8 C. C. A. 92; 59 Fed. Repr. 209; 34 Fed. Repr. 225; Ellison v. L. & N. R. R. Co., 112 Fed. Repr. 805; 50 C. C. A. 530. See Madisonville Traction Co. v. Saint Bernard Mining Co., 196 U. S. 239, 49 L. Ed. 462, which latter case holds among other things that:

“1. If a case be a removable one, that is, if the suit in its nature be one of which the circuit court could rightfully take jurisdiction, then, upon the filing of a petition for removal in due time, with a sufficient bond, the case is, in law, removed, and the state court in which it has been pending will lose jurisdiction to proceed further, and all subsequent proceedings in that court will be void.
“2. After the presentation of a sufficient petition and bond to the state court in a removal case, it is competent for the Circuit Court, by a proceeding ancillary in its nature, without violating section 720 of the Revised Statutes, forbidding a court of the United States from enjoining proceedings in a state court, to restrain the party against whom a cause has been legally removed from taking further steps in the state court.
“3. It is well settled that, if, upon the face of the record, including the petition for removal, a suit does not appear to be a removable one, then the state court is not bound to surrender its jurisdiction and may proceed as if no application for removal had been made.” And, at page 253, it is said: “A state cannot, by any statutory provisions, withdraw from the cognizance of the Federal courts a suit or judicial proceeding in which there is such a controversy” (i. e., between citizens of different states).

These summary statements were made in 1904, but they are entirely applicable to the provisions of the Judicial Code, 36 Stat. at L. 1087, et seq*

Proper practice would be to serve the state court with a certified copy of petition for removal and its order thereon so that a proper record could be made in the instant case. Certainly the court was entitled to the courtesy of having the defendant appear before it, together with his attorney, when the case was called on both June 12th and June 17th. From all we learn from the record before us, we still retain jurisdiction because the record upon its face makes no ease for removal: Iowa Central Ry. Co. v. Bacon, 236 U. S. 305; Virginia v. Rives, 100 U. S. 313; Murray v. Louisiana, 163 U. S. 101; Powers v. Kentucky, 101 U. S. 303; Virginia v. Paul, 148 U. S. 107.

However, if a judgment has been rendered by the District Court, conceding that it may protect its jurisdiction by injunction against further proceedings in the state court, even if jurisdiction be improperly assumed and retained, the jurisdictional question can be reviewed by the United States Supreme Court, and, until reversed, the judgment is binding on the state coux-t and cannot be treated as a nullity: C. & O. Ry. Co. v. McCabe, 213 U. S. 207; Dowell v. Applegate, 152 U. S. 327.

We have no knowledge fx-om our record that the Federal Court has made an order of removal in the instant case, and until we do we shall retain jurisdiction. However, if an order of removal has been made, and while we may contend that such would be improperly assumed and retained, yet we must not treat such order as a nullity.

•In view of these circumstances, we again continued the case until June 21, 1929, at 9 o’clock (Daylight Saving), and yet the defendant failed to appear on both occasions. To all intents and purposes, the defendant is subject to our jurisdiction, retaining the same because of no record of removal of the cause to the Federal court; so, therefore, upon motion of the district attorney, the defendant’s recognizance was forfeited and a bench warrant directed to be issued for the apprehension of the said defendant. The court has, however, stayed its process until we are officially advised that there is an order of removal, in which event the bench warrant will not be executed; but in the event there is no order of removal from the Federal court prior to our September Term of the Court of Quarter Sessions, the said bench warrant will be served upon the defendant; hence, to be brought before us for such action as the court may hereafter deem just and proper according to the exigencies.

In conclusion, we fail to perceive after a careful and exhaustive examination and searching analysis wherein the Federal court has jurisdiction of the present cause, for emphatically the offense committed and charged against the defendant was not done under the color of the office of Federal prohibition officer and by authority of the Prohibition Law, inclusive of the Federal and State Constitutions and Federal and State laws.

While it is conceded under section 31 of the Judicial Code, 36 U. S. Stat. at L. 1096; Rev. Stat., 641; Act of March 3, 1911, ch. 231, § 316, Congress, in order to maintain the supremacy and secure the observance of Federal rights and immunities, may authorize the removal of a prosecution for a state offense into the Federal courts and the presence of the Federal element confers jurisdiction over the whole cause (Tennessee v. Davis, 100 U. S. 257); and, further, it was held, in the latter case, that:

“The United States is a government with authority extending over the whole territory of the Union, acting upon the states and the people of the states. While it is limited in the number of its powers, as far as its sovereignty extends, it is supreme. No state can exclude it from exercising any authority conferred upon it by the Constitution, obstruct its authorized officers against its will, or withhold from it, for a moment, the cognizance of any subject which that instrument has committed to it.
“The general government must cease to exist whenever it loses its power of protecting itself in the exercise of its constitutional powers. It can act only through its officers and agents, and they must act within the states. If, when thus acting and within the scope of their authority, those officers can be arrested and brought to trial in a state court for an alleged offense against the law of the state, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection — if their protection must be left to the action of the state court — the operations of the general government may at any time be arrested at the will of one of its members.
“No such element of weakness is to be found in the Constitution.
“The judicial power of the United States by the express words of the Constitution extends 'to all cases in law and equity arising under the Constitution, the laws of the United States and treaties made or which shall be made under their authority.’
“That provision embraces alike civil and criminal cases arising under the Constitution and laws of the United States: Cohens v. Virginia, 6 Wheat. 399. Both are equally within the domain of the judicial power of the United States.
“A case arises under the Constitution of the United States, not merely where a party comes into court to demand something conferred upon him by the Constitution or by a law or treaty, but wherever its correct decision as to the rights or defense of either party depends upon the construction of either. It is in the power of Congress to give the Circuit Courts of the United States jurisdiction of such a case, although other questions of fact or of law may be involved in it.
“If the case, whether civil or criminal, be one to which the judicial power of the United States extends, its removal to the Federal court is no invasion of state domain. On the contrary, a denial of the right of the general government to remove them, to take charge of and try any case arising under the Constitution and laws of the United States, is a denial of the conceded sovereignty of that government over a subject expressly committed to it. It is a denial of a doctrine necessary for the preservation of the acknowledged powers of the government. The power to remove is as ample in criminal as in civil cases. The exercise of that power as to criminal prosecutions is seen in the Act of Feb. 4, 1815; again in the Act of March 2, 1833, § 3, ch. 57, and more recently in the Act of July 13,1866.”

But the argument is much pressed upon us that it is an invasion of the sovereignty of this State (Pennsylvania) to withdraw from its courts into the courts of the general government the trial of prosecutions for alleged offenses against the criminal laws of the State when the acts, as claimed in the case at bar, were not done under the color of his office or any prohibition laws or treaties or on account of any right, title or authority claimed by such officer (defendant) or other person under such law. Certainly, the petition for removal should' contain not only that the act for which the defendant was indicted was done under color of his office as a prohibition enforcement officer or under color of the prohibition laws; not merely while he was engaged in performing his duty as a prohibition officer, but that it was done under and by right of his office in his attempts to discharge his official duty. The Act of Congress authorizes the removal of any cause, when the acts of the defendant complained of were done, or claimed to have been done, in discharge of his duty as a Federal officer. It makes such a claim a basis for the assumption of Federal jurisdiction of the case and for retaining it at least until the claim proves unfounded.

It ought, therefore, to be considered as settled that the constitutional powers of Congress to authorize the removal of criminal cases for alleged offenses against the state laws from state courts to the District Courts of the United States when there arises a Federal question in them, is as ample as its power to authorize the removal of a civil case. Such power is indispensable to the enforcement of Federal law. It was more necessary that this jurisdiction should be entered over criminal than over civil cases. If it were not admitted that the Federal judiciary has jurisdiction of criminal cases, then was nullification ratified and sealed forever; for a state would have nothing more to do than to declare an act a felony or misdemeanor to nullify all the laws of the Union.

The argument that it is an invasion of the sovereignty of a state to withdraw from its courts into the courts of the general government the trial of prosecutions for alleged offenses against the criminal laws of a state, even though the defense presents a case arising out of an Act of Congress, ignores entirely the dual character of our government. It assumes that the states are completely and in all respects sovereign. But when the National Government was formed, some of the attributes of state sovereignty were partially, and others wholly, surrendered and vested in the United States. Over the subjects thus surrendered, the sovereignty of the states ceased to extend. Before the adoption of the Constitution, each state had complete and exclusive authority to administer by its courts all the law, civil and criminal, which existed within its borders. Its judicial power extended over every legal question that could arise. But when the Constitution was adopted, a portion of that judicial power became vested in the new government created, and, so far as thus vested, it was withdrawn from the sovereignty of the state. Now the execution and enforcement of the laws of the United States, and the judicial determination of questions arising under them, are confided to another sovereign, and to that extent the sovereignty of the state is restricted. The removal of cases arising under those laws from state into Federal courts is, therefore, no invasion of state domain. On the contrary, a denial of the right of the general government to remove them, to take charge of and try any case arising under the Constitution or laws of the United States, is a denial, of the conceded sovereignty of that government over a subject expressly committed to it.

Federal sovereignty, as well as the sovereignty of states, is limited and restricted by the Constitution. Certain powers, legislative, executive and judicial, are possessed by each, independent of the other, and, in the exercise of such powers, all agree that they act as separately and independently of each other as if the line of division was traced by landmarks visible to the eye: Ableman v. Booth, 21 How. 506, 516; 62 U. S. xvi, 169, 173.

In the instant case, matters of fact are not in dispute; and it appears by the record that the defendant, at the time mentioned in the proceedings in the United States court de hors our record, was duly indicted of the crime of “operating a motor-vehicle while under the influence of intoxicating liquor” by the grand jury of Delaware County, where the offense was committed, and that the indictment is still pending in the proper court of the State where it was filed.

Adjudged cases are not necessary to show that no Federal court created by Congress had jurisdiction of the offense, as the offense was committed on land within the State, and not within any place over which the United States had exclusive jurisdiction. None of these matters can be successfully controverted; and, if not, then it follows that the exclusive jurisdiction of the offense was vested in the State court, unless it can be held that the prisoner, merely because he was a prohibition officer, is privileged to remove the State indictment found by the grand jury of the State into the Federal court for trial.

Nobody before ever pretended that such an offense ever was or could be defined by an Act of Congress as an offense against the Federal authority or that the District Court or any other Federal court has or ever had any jurisdiction of such a case to try or sentence such an offender for such an offense. Federal courts have no common law jurisdiction in criminal cases, nor can such courts proceed to try or punish .any offender, except when authorized by an Act of Congress, passed in pursuance of the Constitution: Pennsylvania v. Wheeling Br. Co., 13 How. 518, 563; United States v. Worrall, 2 Dall. 384, 393; Cooley, Const. Lim., 4th ed., 26; Ex parte Bollman, 4 Cranch, 75, 98.

Jurisdiction, both of civil and criminal cases, is, beyond doubt, conferred upon the general government by several of the clauses of the 3rd article of the Constitution, describing the judicial power, entirely exclusive of that possessed by the tribunals of the states; but it is equally clear that none of them, except the introductory clause of section 2 of that article, authorize any Federal court to re-examine the judgment of a state court in a criminal case or to supersede the power of a state court to exercise its lawful jurisdiction in such a case.

Legislative power is, undoubtedly, vested in Congress to pass laws to define and punish offenses against the authority of the United States; but it does not follow, by any means, that a prisoner charged with murder committed in violation of the laws of a state may claim to be tried in a Federal District Court or that a state indictment for such an offense constitutes a case arising under the Constitution or the laws of the United States or that it can in any way become cognizable in such a tribunal; certainly not unless it can be removed there in pursuance of some Act of Congress defining the offense and providing for the trial and punishment of the offender. Persons charged with offenses against the authority of the states find ample guarantees of a fair trial in the laws of the states and the usages of the state courts, and if the Federal officers need more, it belongs to Congress to provide the remedy in some mode authorized by the Constitution: 1 Kent’s Comm. (12th ed.), 340.

Ordinary regulations of police, says Cooley, have been left with the states, nor can it be taken from them and exercised under legislation by Congress. Nor can the National Government, through any of its departments or officers, assume any supervision of the police regulations of the states. All that the Federal authority can do is to see that the states do not, under cover of this power, invade the sphere of national sovereignty, obstruct or impede the exercise of any authority which the Constitution has confined to the Nation, or deprive any citizen of rights guaranteed by the Federal Constitution: Cooley, Const. Lim. (4th ed.), 715.

No direct general power over these objects, says Marshall, C. J., is granted to Congress, and, consequently, they remain subject to state legislation: Gibbons v. Ogden, 9 Wheat. 203.

Within state limits, says Chase, C. J., an Act of Congress upon the subject can have no constitutional operation: United States v. DeWitt, 9 Wall. 41, 45; 76 U. S. xix, 593, 594.

Acts of Congress cannot properly supersede the police powers of the state, nor can the police powers of the state override the national authority, as the power of the state in that regard extends only to a just regulation of rights with a view to the due protection and enjoyment of all; and if the police law of the state does not deprive any one of that which is justly and properly his own, -it is obvious that its possession by the state and its exercise for the regulation of the action of the citizens can never constitute an invasion of national jurisdiction or afford a basis for an appeal to the protection of the national authorities.

Had the defendant been permitted, arguendo, to drive and operate the motor-vehicle in question unmolested by the peace officers while he was under the influence of intoxicating liquor and had run down recklessly and killed one of the police officers who was on duty, say, a traffic officer, could the proposition of removal of the case be less astonishing than the one set forth in the case at bar. Judging from the record, the indictment is against the prohibition enforcement officer for operating while under the influence of intoxicating liquor a motor-vehicle against the peace and dignity of the State of Pennsylvania. No special groupd is set forth for the removal, nor anything that can be tortured into a reason for withdrawing the case from the jurisdietion of-the State court, unless it be that the defendant is a Federal enforcement officer.

Whatever defense he has to this indictment can as well be made in the State court as in the District Court, unless it be assumed that a Federal officer is entitled as a matter of right to transfer every indictment against him for crime, when found in a state court, into a Federal court for trial.

Persons accused of capital or other infamous crimes must be indicted by a grand jury, and when the offense is committed in a state, they must be tried in the state where it was committed; but attention is not called to any article or section of the Constitution that forbids that a Federal officer shall be tried in a state court for murder committed in the state, against the peace and dignity of the state and contrary to the form of the state statute defining the offense.

Large concessions were made by the states to the United States, but they never ceded to the National Government their police powers or the power to define and punish offenses against their authority, as admitted by all courts and all commentators upon the Constitution, which leads us to the following conclusions:

1. That the Revised Statute in question does not authorize the removal of this indictment for an offense against the laws of the State from the State court, where it is pending, into the District Court of the United States for trial.

2. That if it does purport to confer that authority, it is unconstitutional and void.

We have prepared the above opinion touching the essentialia, in the above case, which is confined mainly to criminal prosecutions for indictable offenses, as merely tentative. Nothing herein is intended as the expression of an unalterable opinion, as this is prepared in advance of the trial, and chiefly for the purpose of directing the attention of the district attorney and the defendant and his counsel to some of the nicer questions which will probably arise later when the defendant is arraigned for trial before a state court: State of Virginia v. Felts, 133 Fed. Repr. 85.

The following authorities may be advantageously consulted concerning the questions hereinabove considered: Tennessee v. Davis, 100 U. S. 257, 25 L. Ed. 648; Davis v. South Carolina, 107 U. S. 597, 27 L. Ed. 574; Virginia v. Paul, 148 U. S. 107, 13 Sup. Ct. 536, 37 L. Ed. 386; Chicago R. R. Co. v. Ohle, 117 U. S. 123, 6 Sup. Ct. 632, 29 L. Ed. 837; Carson v. Dunham, 121 U. S. 421, 7 Sup. Ct. 1030, 30 L. Ed. 992; Kansas City Ry. Co. v. Daughtry, 138 U. S. 303, 11 Sup. Ct. 306, 34 L. Ed. 963; Abranches v. Schell, Fed. Cas. No. 21, 4 Blatchf. 256; Findley v. Satterfield, Fed. Cas. No. 4792, 3 Woods, 504; Fisk v. Union Pacific Ry. Co., Fed. Cas. No. 4827, 6 Blatchf. 362; Galvin v. Boutwell, Fed. Cas. No. 5207, 9 Blatchf. 470; Georgia v. O’Grady, Fed. Cas. No. 5352, 3 Woods, 496, 24 Int. Rev. Rec. 5; Murray v. Patrie, Fed. Cas. No. 9967, 5 Blatchf. 343; State v. Port (C. C.), 3 Fed. Repr. 117; Hoyt v. Wright (C. C.), 4 Fed. Repr. 168; Mackaye v. Mallory (C. C.), 6 Fed. Repr. 750, 751; Georgia v. Bolton (C. C.), 11 Fed. Repr. 217; Eaton v. Calhoun (C. C.), 15 Fed. Repr. 155; Gribble v. Pioneer Co. (C. C.), 15 Fed. Repr. 689; State v. Fletcher (C. C.), 22 Fed. Repr. 776; Clarkhuff v. Wisconsin Ry. Co. (C. C.), 26 Fed. Repr. 465; Kessinger v. Hinkhouse (C. C.), 27 Fed. Repr. 884; Smith v. Chicago Ry. Co. (C. C.), 30 Fed. Repr. 722; Anderson v. Appleton (C. C.), 32 Fed. Repr. 857; Imperial Co. v. Wyman (C. C.), 38 Fed. Repr. 574, 3 L. R. A. 503; North Carolina v. Kirkpatrick (C. C.), 42 Fed. Repr. 689; Curnow v. Phœnix Co. (C. C.), 44 Fed. Repr. 305; Goodnow v. Litchfield (C. C.), 47 Fed. Repr. 754; State v. Sullivan (C. C.), 50 Fed. Repr. 593; Carico v. Wilmore (D. C.), 51 Fed. Repr. 196, 200; Com. v. Bingham (C. C.), 88 Fed. Repr. 561; 18 Ency. Pl. & Pr., 181, 372, et seq.

We hold that the case in our court, being a prosecution of the defendant for a State erime for which he is indicted, is not removable under the provision of the Judicial Code authorizing removal of prosecutions against Federal officers on account of any act done under color of their office, any more than if such Federal officer had perjured himself or conspired to suppress evidence and was indicted in the State court for falsely stating that certain material matters had not transpired or entered into a conspiracy, when he knew that they had, pending a State investigation through a coroner into the circumstances of a death. The latter cause cannot be removed on account of any act done under color of office: Maryland v. Soper, U. S. S. Ct. Reps., 70 L. Ed., 449, 459, 462; 270 U. S. 9; Id. 36; Id. 44; section 33 of the Judicial Code, as amended Aug. 23, 1916, 39 Stat. at L. 532, chap. 399, U. S. Comp. Stat. 1015, Fed. Stat. Ann. Supp., 1918, page 401.

The text of the amended section, in so far as it is material here, is set out below:

“Section 33. That when any civil suit or criminal prosecution is commenced in any court of a state against any officer appointed under, or acting by, authority of any revenue law of the United States, now or hereafter enacted, or against any person acting under, or by authority of, any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title or authority claimed by such officer or other person under any such law, or is commenced against any person holding property or estate by title derived from any such officer and affects the validity of any such revenue law, or against any officer of the courts of the United States, for or on account of any act done under color of his office or in the performance of his duties as such officer, or when any civil suit or criminal prosecution is commenced against any person for or on account of anything done by him while an officer of either House of Congress in the discharge of his official duty in executing any order of such House, the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the District Court next to be holden in the district where the same is pending, upon the petition of such defendant to said District Court, and in the following manner:” 70 L. Ed. 452.

While agents of a Federal prohibition director are, in searching for evidence of certain violations of the Volstead Act and its amendments, and of the Constitution of the United States, relating to the manufacturing, etc., of intoxicating liquor, within the protection of a statute authorizing the removal to a Federal court for trial of a prosecution against an officer acting under authority of any revenue law of the United States, the statute does not apply to prohibition agents when acting as such; yet the provision.of section 28, title II, of the National Prohibition Act, giving the commissioner, his assistants, agents and inspectors all the protection in the enforcement of the act which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquor under the laws of the United States, gives them the benefit of the statute permitting the removal of proser cutions for acts committed in the performance of their duties from state to Federal courts for trial. •

Therefore, however, a Federal prohibition officer, prosecuted in a state court for a crime alleged to have been committed by him, must, to secure the right to remove the cause to a Federal court for trial, establish fully and fairly by the allegations of his petition for removal that he was immune from punishment by the state because what he did was justified by his duty under the Federal law.

A Federal officer, seeking to remove a prosecution against him from a state to a Federal court for trial, should be candid, specific and positive in explaining his relation to the transaction for a crime growing out of which he had been indicted, and in showing that his relation to it was confined to his acts as such officer.

In the Soper cases, Chief Justice Taft held for the court that a petition by Federal prohibition agents to remove to a Federal court for trial a prosecution against them for murder is not sufficient which states that the acts alleged to have been done by them are alleged to have been done at a time when they were engaged in the discharge of their official duties as Federal prohibition officers, and in making and attempting to make an investigation concerning a violation of the National Prohibition Act and other internal revenue laws, and in reporting the results of said investigation, and in protecting themselves in the discharge of their duty, that the prosecution is on account of acts alleged to have been done by petitioners at a time when they were engaged in the performance of their duties as Federal prohibition agents, without anything to show that they were not doing other than official acts at the time, or that the acts done leading to the prosecution were done under color of their official duties.

Removals were declined also in the same cases for conspiracy and perjury. All were remanded to the state court upon writs of mandamus instituted in behalf of the State of Maryland.

As Chief Justice Taft most aptly states: “The prosecution to be removed under the section must have been instituted ‘on account of’ acts done by the defendant as a Federal officer under color of his office or of the revenue or prohibition law. There must be a causal connection between what the officer has done under asserted official authority and the state prosecution. It must appear that the prosecution of him for whatever offense has arisen out of the acts done by him under color of Federal authority and in enforcement of Federal law, and he must, by direct averment, exclude the possibility that it was based on acts or conduct of his, not justified by his Federal duty.”

In invoking the protection of a trial of a state offense in a Federal court under paragraph 33, a Federal officer abandons his right to refuse to testify because accused of crime, at least to the extent of disclosing in his application for removal all the circumstances known to him out of which the prosecution arose. The defense he is to make is that of his immunity from punishment by the state, because what he did was justified by his duty under the Federal law and because he did nothing else on which the prosecution could be based. He must establish fully and fairly this defense by the allegations of his petition for removal before the Federal court can properly grant it. It is incumbent on him, conformably to the rules of good pleading, to make the case on which he relies so that the court may be fully advised and the state may take issue on a motion to remand: Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U. S. 146, 151, 152, 58 L. Ed. 544, 546, 547, 34 Sup. Ct. Rep. 278, and cases cited. See, also, concurring opinion of Mr. Justice Field in Virginia v. Rives, 100 U. S., at page 332, 25 L. Ed. 674, 3 Am. Crim. Rep. 524, and Hanford v. Davies, 163 U. S. 273, 279, 41 L. Ed. 157, 159, 16 Sup. Ct. Rep. 1051.

We think that the averments of the defendant in the limited pleadings we have before us are not sufficiently informing and specific, in any event, to make a case for removal under section 33.

His averments amount to hardly more than to say that the offense on account of which he is charged was at a time when he was engaged in performing his official duties in making, or attempting to make, an investigation concerning a violation of the National Prohibition Act, but the averments should negative the possibility that he was doing other acts than official acts at the time and on this occasion or make it clear and specific that whatever was done by him leading to the prosecution was done under color of his Federal official duty.

In order to justify so exceptional a procedure, the person seeking the benefit of it should be candid, specific and positive in explaining his relation to the transaction growing out of which he has been indicted and in showing that this relation to it was confined to his acts as an officer.

There is nothing of record which excludes the possibility that the State prosecution was based on acts of the officer outside of his official duties — that during the interval of operating an automobile the defendant was engaged exclusively in the performance of official acts.

The prosecution to be removed under the section must have been instituted “on account of” acts done by the defendant as a Federal officer under color of his office or of the revenue or prohibition law. There must be causal connection between what the officer has done under asserted official authority and the state prosecution. It must appear that the prosecution of him for whatever offense has arisen out of the acts done by him under color of Federal authority and in enforcement of Federal law, and he must, by direct averment, exclude the possibility that it was based on acts or conduct of his, not justified by his Federal duty: Maryland v. Ford, 12 Fed. Repr. (2nd Series) 289.

From William R. Toal, Media, Pa.


author: Landis, P. J.,

text:
    Louis A. Irwin, Inc., v. McCullough et al.

      J. Andrew Frantz, for plaintiff; Guy K. Bard, for defendant.
    Jan. 19, 1929.
   Landis, P. J.,

This case was once before presented to us on an affidavit of defense raising a question of law [11 D. & C. 11]. We decided that question in favor of the plaintiff. It is now to be considered on a rule for judgment for want of a sufficient affidavit of defense.

According to the plaintiff’s statement, the claim is based upon a promissory note, which reads as follows:

“$920.00 Harrisburg, Pa., May 13, 1924.
“Three months after date we promise to pay to the order of Office Service Co., at the Mechanics Trust Company, Harrisburg, Pa., Nine Hundred Twenty xx/100 Dollars, without defalcation, for value received.
“Democratic State Committee,
A. E. McCullough, Chairman.
E. M. Miley, Sec’t’y.”

It was asserted that the defendants, at the time the said promissory note was executed, were acting as chairman and secretary, respectively, of the Democratic State Committee, an unincorporated association. It is not claimed that the amount of the note has ever been paid.

In the affidavit of defense they admit that they were acting as chairman and secretary, respectively, of the Democratic State Committee, an unincorporated committee, when they gave the above note. They allege, however, that they were chosen or elected by the Democratic State Committee to represent said committee, and were authorized by said committee to make contracts, incur obligations and execute promissory notes like the note described by plaintiff, on behalf of said committee; that the said Democratic State Committee was the duly organized, authorized and sole governing body of the Democratic Party, a political party of the State of Pennsylvania; that the Democratic State Committee, described in said note, was then composed of the following members, all of them residents of Pennsylvania (here follow, in the affidavit of defense, the names of 112 persons residing in all parts of this State). It was averred that the defendants were not members of the Democratic State Committee at the time the note was executed. It was also claimed that such party was a legal political party, in conformity with the acts of assembly; that the Democratic State Committee is a definite body or entity; and that the members of this committee should be the real defendants, and not the present defendants, as the note was given by McCullough and Miley as agents, upon the authority of the Democratic State Committee.

If this was a new or novel question, we might at some length discuss it. We have, however, already done so in an opinion filed Dec. 31, 1927 [11 D. & C. 11]. The affidavit of defense asserts no facts which were not then considered. The ease of Franklin Paper Co. v. Gorman, 76 Pa. Superior Ct. 276, fully covers the present one. It was there held that the members of an unincorporated association, other than those within the provisions of the Act of April 28, 1876, P. L. 53, are individually liable for the debts of the organization which they contract or authorize. Nor is the plaintiff bound to sue all of the members of the organization nor all of the members of a committee. Those who contract the debt or give their obligation for it must pay it, and if any contributions are to be made, the burden falls on those people to collect from their fellows. In Dunlap Printing Co. v. Ryan, 275 Pa. 556, it is said: “In an action against five members of a political campaign committee to recover for printing, where plaintiffs at the trial enter a discontinuance as to one defendant and the case is continued, it is reversible error for the court, at the next trial, to dismiss the suit and enter judgment for defendants. . . . In such case, the liability of the defendants may be joint or several, or it may be partly joint and partly several, depending on how the goods were purchased from plaintiff, or on defendants’ subsequent refusal or ratification of purchases not directly made by themselves, but by one of their number. . . . The defendants cannot complain if plaintiff fails to include every one in the action who is liable, or fails to discover proof against every one included.” Here, the printing was presumably ordered by the defendants, or ratified by them, for they gave their promissory note for the amount of the bill. See, also, Kurie v. Dodson Day School, 9 D. & C. 451.

The rule is now made absolute and judgment is entered in favor of the plaintiff and against the defendants for the sum of $920, with interest from Aug. 13, 1924, making $1164.72. Rule made absolute.

From George Ross Eshleman, Lancaster, Pa.


author: Holland, P. J.,

text:
    Roth’s Estate.

      William F. Dannehower, Sr., for accountant.

      Thomas Hallman, for claimant.
    Feb. 11, 1929.
   Holland, P. J.,

The adjudication in the above estate upon the first and final account of the executrix was confirmed nisi Oct. 2,1928, and no exceptions thereto having been filed became absolute Oct. 12,1928.

On Oct. 29, 1928, Perry Neiffer filed his petition alleging that he was the legatee referred to in the item of decedent’s will, which is as follows: “I give and bequeath the sum of Five Hundred Dollars ($500) to whomever I shall be making my home with at the time of my decease.”

He offered to prove facts from which could be inferred that he came within the description of the person with whom decedent was making her home at the time of her decease.

It appeared that the claimant had not received personal notice of the audit of the account, and that his attorney had not received any such notice, notwithstanding claimant’s counsel had served notice upon counsel for the accountant that he represented the claimant who was claiming the $600 referred to in the said item of the will. Under the circumstances, accountant did not oppose opening the adjudication, and it was accordingly opened and a hearing had Nov. 28, 1928.

There were called as witnesses, Perry Neiffer, the claimant; his sister, Sarah M. Spare; W. E. Bartlett, a friend of Perry Neiffer; Catharine Roth, the decedent’s sister; May Hallman, a neighbor of decedent; and Dr. H. Croskey Allen, the decedent’s physician.

It developed from the testimony of these witnesses that decedent owned a double house, with about three acres of ground, in Limerick Township. She died seized of this house and piece of ground, June 14, 1927. In November, 1926, decedent invited claimant, Perry Neiffer, who was her cousin, to come and live in the house. The understanding and arrangement was that Neiffer was to have one side of the house, including one room and a kitchen on the first floor, two rooms on the second floor and one-half of the cellar. This was to be occupied exclusively by Neiffer, while decedent was to exclusively occupy the other side of the house, which was identically constituted. Claimant was to pay decedent $4 per month rent. Decedent and claimant were to share the fruit growing on the place. The cellar was also divided between decedent and claimant.

Claimant entered into possession of his half of the house November, 1926. He set up his own housekeeping, did his own cooking in his own kitchen, which he also used as his dining room. He kept his part of the premises in order and maintained his own private establishment. He kept his provisions in his part of the cellar. Decedent similarly maintained her own private establishment in the other half of the house. It appears that, before the claimant came into possession, decedent had the house altered in certain particulars, thus to adapt it for the occupancy of two separate tenants.

The heater, which heated the entire house, was the only thing that was used jointly by them. Each paid for half the coal and both attended to the heater.

Claimant never paid decedent any rent, because decedent refused to take it, in consideration of the fact that claimant worked the garden and took general care of the grounds. So that claimant lived there rent free from November, 1926, to January, 1928, when the place was sold; the time of the sale, it being observed, being about a year after decedent’s death.

It is apparent from these facts that the relation between decedent and claimant was that of landlord and tenant. Decedent owned the house and paid the taxes. She occupied one-half and rented the other half to claimant. Their establishments were distinct and separate. In no sense could it be said that decedent at any time was making her home with Perry Neiffer. The correctness of this conclusion is so clear and apparent that argument seems superfluous.

We, therefore, hold that Perry Neiffer does not answer the description of the possible legatee referred to in the said item of decedent’s will, and his claim is disallowed.

And now, Feb. 11, 1929, the petition is dismissed, at the cost of the petitioner and the adjudication is reaffirmed absolutely.

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


author: Coughlin, J.,

text:
    Mitchell v. Mitchell.

      L. R. Holcomb, for libellant.
    Feb. 11, 1929.
   Coughlin, J.,

The libellant, nineteen years old. The master, in a well prepared and learned report, recommends that a divorce be granted.

The libel was filed by the minor libellant in her own name and not by a “next friend.”

A nineteen-year-old married woman is under two disabilities, infancy and coverture. The legislature has removed the latter and a married woman may now bring action for divorce in her own name. The disability of infancy still remains, and the action should have been brought with the intervention of a trustee or “next friend.” See Bruder v. Bruder, 9 D. & C. 80. Also, Coven v. Coven, 6 D. & C. 794.

In view of the fact that an amendment would not alter the cause of action or change the parties after the running of the statute of limitations, we have determined to give libellant an opportunity to amend her libel upon notice to respondent.

Leave is granted to present a petition to amend libel by adding the name of libellant’s next friend.

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


author: Stearne, J.,

text:
    Baird’s Estate.

      James S. Rogers, for life-tenants; J. Claude Bedford, for remainderman.

      Theodore S. Paul, for trustee.
    July 5, 1929.
   Stearne, J.,

The life-tenants and the remainderman both object to the distribution directed by the Auditing Judge of the proceeds of sale of corporate stock.

Oral and documentary evidence was presented which is largely undisputed. An agreed stipulation as to the facts and figures was presented to the Auditing Judge, the effect and legal deductions to be drawn therefrom being largely the basis of the present controversy.

The record discloses that decedent died June 17, 1918, possessed of the entire capital of the Acme Staple Company, which capital consisted of 1000 shares of the par value of $100 each. The stock was sold by the trustee, and the Auditing Judge directed the distribution of the fund as between the life-tenants and the remainderman as follows:

Proceeds of sale of stock........................... $255,000.00
Book value at death................•.....$109,877.05
Excessive depreciation restored............ 8,480.00
$118,357.05
Dividends advanced decedent, in lifetime, but declared after death, deducted........ 15,500.00
Intact value.............................$102,857.05
Gain to life-tenants...................... 152,142.95
- $255,000.00

Neither exceptant objects to the deduction of the dividend item of $15,500 as above. Decedent had, in his lifetime, already withdrawn this sum out of surplus on account of anticipated dividends, and, therefore, it is quite proper that the surplus account, in determining “intact value” of the stock, should be reduced by this sum, even though the actual declaration of the dividend was deferred until after the death.

The life-tenants object to the inclusion in the “intact value” of the item of $8480 (excessive depreciation). The remainderman contends that the Auditing Judge should also have added to the “intact value” an item of $45,555.20, which the corporation had written off its books in the decedent’s lifetime, but which was subsequently restored by the directors after his death.

Nirdlinger’s Estate, 290 Pa. 457, is the leading authority in Pennsylvania concerning the present subject-matter, and lays down the rules for our judicial determination.

As the stock was sold, and there is no question of cash or stock dividend involved, the case comes under the general head (page 461) “(B) where earnings are undistributed by the corporation, but their value is reflected in dollars in the hands of the trustee, through a sale of the stock by him.”

Mr. Justice Kephairt, speaking for the court, says (page 475) : “Where the trustee sells stock which represents, in part, accumulated earnings sufficiently earmarked that they can be ascertained, the life-tenants are entitled to an apportionment of these earnings, not in any manner reducing the intact value of the corpus.”

“Intact value” is defined by the court as follows: “The effect of the rule is to give to the life-tenants the income which has been earned since the trust came into being, but, at the same time, to preserve the value of the corpus as it was at the date of the death of the testator, or, to use a more convenient term, to preserve the intact value of the estate. This intact value includes the par value of the stock, plus any accumulation of income, earned before the death of the testator . . . from it must be subtracted capital losses.”

The court also said (page 471): “. . . The courts do not endeavor to control, manage or direct the internal affairs of a company.”

Item of $8480.

By the stipulation the parties agreed that the corporation charged from its books an excessive amount of depreciation from 1915 to 1926, of which $8480 was excessively charged off during the period preceding decedent’s death. The books were corrected after the death. The real effect of this adjustment was to correct a mistake. Had the correct amount of depreciation been deducted instead of the excessive sum, the book value at the death would have been $8480 greater. Because the directors of the corporation, even after the death, corrected this mistake on their books, we can discover no error on the part of the Auditing Judge in adding this amount to the book value of the stock. Justice and equity would seem to indicate that such adjustment was properly made.

Item of $45,555.20.

Two boards of directors of the corporation valued assets possessed by the corporation at two separate figures. When the corporation was formed, certain assets, consisting of “unexpired lease, fire policies, patent rights, goodwill and trade names,” were purchased at an agreed value of $51,397.84, and for which capital stock was issued. On Nov. 30, 1917 (about a year prior to the death), the corporation charged from its books an item of $45,555.20. Thereafter such item (with an unexplained slight addition thereto) left such articles valued at $6233.99. The book value of the stock at the date of death reflected in its value this latter figure.

A year after the death the board of directors restored to the books the item of $45,555.20, and thereafter, and until the sale, carried the assets on its books at $51,789.19, under the style and title “patent rights, trade-mark and goodwill.”

The remainderman insists that this item be added to the book value as of the date of decedent’s death.

It must be noted that the action of the board after the death was not an attempt to correct a mistake made before the death. One board valued the assets at one figure and the other board at a different figure. Certainly this court is not called upon to determine which of the two boards correctly valued the assets. The Supreme Court clearly states that we are not concerned with the internal management of the corporation. This court is interested only in preserving the intact value of the principal for the remainderman and to see to it that no income is improperly accumulated and withheld from the life-tenants. As there is no allegation or proof of fraud, accident or mistake, we feel we are bound by the figures as they appeared on the books of the corporation at the time of the death.

While the Auditing Judge was not obliged to hear testimony concerning this item, nevertheless, he did so, and makes an absolute finding that there was no value in such assets. As the finding of an Auditing Judge will not be disturbed except for manifest error, and there appears to be none, this finding should conclusively and finally settle all questions.

Upon a careful review of the entire record, we are convinced that the Auditing Judge has committed no reversible error. All the exceptions are dismissed and the adjudication is confirmed absolutely.

Lamorelle, P. J., did not sit.


author: Martin, P. J.,

text:
    Warfel v. Mutariello.

      C. Lawrence Cushmore and William A. Schnader, for plaintiff.

      Michael Spat ola, for defendant.
    July 20, 1929.
   Martin, P. J.,

An affidavit for a warrant of arrest was filed in this ease, in which it was alleged “that on June 12, 1929, defendant called at the plaintiff’s place of business at Lancaster, Penna., and selected from plaintiff’s stock thirteen calves of a total weight of 2410 pounds, which defendant stated he wished to buy. Said calves were set aside in a special pen, and defendant went away, stating that he would return shortly with money to pay for the same. Later in the same day, while plaintiff was temporarily absent from his place of business, defendant returned and removed the said calves, without the knowledge of the plaintiff, and without paying for the same as agreed.” These allegations were supported by the testimony at the hearing.

There were other charges contained in the affidavit, but the fraud committed in the purchase of the thirteen calves furnished sufficient ground upon which to issue the warrant of arrest and to hold the defendant.

It appeared from the testimony that defendant did not profit by his illegal conduct; that his ice-plant was removed for his failure to pay the instalment due upon it; and after the calves were killed, the meat spoiled and was unsalable.

There was no testimony to contradict the evidence of this loss to defendant, and it is not an unfair presumption that, although the debt to plaintiff was fraudulently created, defendant intended to pay for the calves when he sold the meat, and was prevented from doing so by reason of the meat having spoiled.

Defendant’s conduct brings him within the provisions of the Act of July 12, 1842, P. L. 339. The warrant of arrest was properly issued and defendant should be held, but in view of the unfortunate circumstances attendant upon the loss of the meat, it is proper that the bail should be reduced.

And now, to wit, July 20, 1929, the motion to quash the warrant of arrest is refused. The bail heretofore fixed in the sum of $2000 is reduced to the sum of $500. Bond to be approved by the prothonotary.


text:
    Arthur v. Arthur et al., Executors.

      Wallington & Shiok, for plaintiff.

      J. Fitzpatrick and B. J. Henry, for C. J. Arthur.
    July 26, 1929.
   Martin, P. J.,

A bill in equity was filed averring that complainant was forced to leave the house of her husband, Charles Jacob Arthur, the defendant, and that for 797 weeks he neglected to provide for her. She claims there is due her $10 for each week, a total of $7970.

It is averred in the bill that the father of the defendant, Charles Jacob Arthur, died in 1928, leaving a will, which was probated in the office of the Register of Wills of Montgomery County, and that letters testamentary were granted to I. Warner Arthrur, Jr., and The Bryn Mawr Trust Company, the executors; that Charles Jacob Arthur is a legatee and devisee under the will and has an interest in the estate of the value of $6000; that the estate was listed for audit and adjudication before the Orphans’ Court of Montgomery County during the month of June, 1929, when it was expected that the share of Charles Jacob Arthur would be awarded to him; that Charles Jacob Arthur has removed from the State of Pennsylvania and is a resident of the State of California.

The bill prays for a decree in accordance with the provisions of the Act of Assembly approved May 23, 1907, P. L. 227, amended by the Act of April 27, 1909, P. L. 182, ordering an attachment of Charles Jacob Arthur’s interest in the estate of I. Warner Arthur, deceased, pending final hearing and disposition of the bill; that an injunction issue restraining the executors from distributing to Charles Jacob Arthur any part of the estate, and for general relief.

The Bryn Mawr Trust Company, executor, filed a petition under the Act of March 5, 1925, P. L. 23, averring that this court is without authority to entertain the bill; that the jurisdiction conferred upon the Court of Common Pleas by the Act of May 23, 1907, amended by the Act of April 27, 1909, was superseded by the Act of July 12, 1913, P. L. 711, creating the Municipal Court of Philadelphia, which provides that the jurisdiction of the Municipal Court shall be exclusive in all proceedings against any husband wherein it is charged that he has without reasonable cause separated himself from his wife, and has neglected to maintain his wife: Section 11 (a). ,

It is claimed by complainant that as there is no repealing clause in the act establishing the Municipal Court, and the jurisdiction of that court is limited to a sum less than that alleged to be due complainant, the Municipal Court has no jurisdiction in this case, and complainant is relegated to the remedy provided by the Act of 1907 and the amendment of 1909 (supra). The amendment of July 11, 1923, P. L. 1035, provides that the Municipal Court shall have jurisdiction in all civil actions at law and in equity where the value of the matter or thing in controversy, exclusive of interest and costs, does not exceed the sum of $2500. But in Scott v. Scott, 80 Pa. Superior Ct. 141, a bill in equity was filed under the terms of the Act of 1907, which was dismissed on demurrer. The lower court was affirmed, and it was held that the Municipal Court has exclusive jurisdiction which supersedes process under the Act of May 23, 1907, P. L. 227.

The exclusive jurisdiction in proceedings against husbands, conferred by the Act of 1913, is not limited by the amount of money involved, as in other cases instituted in the Municipal Court.

And now, to wit, July 26, 1929, the rule to show cause why service of the bill of complaint should not be set aside and the bill dismissed is made absolute; and it is ordered and decreed that service of the bill of complaint in the above-entitled case be set aside and the bill dismissed for want of jurisdiction,.


author: Marx, P. J.,

text:
    Keck’s Estate.

      George B. Balmer, for exceptant; Paul D. Edelman, for accountant.
    May 25, 1929.
   Marx, P. J.,

The exceptions here filed to our adjudication of March 30, 1929, raised the single question of the bar of the statute of limitations to an indebtedness of the exceptant to the decedent.

Inventoried as assets of this decedent’s estate, inter alia, were two promissory notes given by W. H. Sharadin, the exceptant, to the decedent, dated Sept. 15, 1921, and Nov. 15, 1921, respectively. The former promised payment of the sum of $50 on demand; the latter, the sum of $200 on demand. The decedent died on April 11, 1928. Neither note bore the endorsement of interest payment nor any other notation indicating a renewal, extension or novation of the obligations. The notes were inventoried and appraised and were included in the balance for distribution as shown by the account upon which our adjudication was based. The maker of these notes, W. H. Sharadin, took, under the terms of the will of decedent, a pecuniary bequest of $1500, one-fourth of the residue of the estate. Against his distributive share of the estate, we charged, inter alia, the aforesaid two notes, with interest. Exceptant alleges error in this, and supports his allegation by pleading the bar of the statute of limitations. The accountant, answering the plea of the bar of the statute of limitations, placed in evidence the following writing, signed by the exceptant and found among the possessions of the decedent at the time of his death:

«250.00
Aug. 14-1923-
«Notes dated Sept. 15, 1921, and Nov. 15, 1921, and on which interest has not been paid to date, the endorser relinquishes all his claim on his furniture, brick-a-brack or whatever said apartment No. 3, at 1006 Washington Street, Wilmington, Del., may contain — to the holder of these notes—
“(Sgd.) W. H. Sharadin.”

He also placed in evidence a letter written by the exceptant to the decedent, his uncle, under date of Aug. 14, 1923, the relevant part of which reads: “Uncle Prank — Am attaching form to the two notes — and on which you are fully covered.”

It will be noted that the letter bears the same date as the writing before recited, and it is but reasonable to conclude that the one accompanied the other, and that the writing is the “form” to which reference is made in the recited portion of the letter.

Relative to the question thus raised, the limit and applicability of the statute of limitations and the bar thereof, we quote from the case of Palmer v. Gillespie, 95 Pa. 340, 344: “It is not essentially necessary that the promise be actual or expressed, provided the other necessary facts are shown. A clear, distinct and unequivocal acknowledgment of a debt is sufficient to take a case out of the operation of the statute. It must be an admission consistent with a promise to pay. If so, the law will imply the promise without its having been actually or expressly made. There must not be uncertainty as to the particular debt to which the admission applies. It must be so distinct and unambiguous as to remove hesitation in regard to the debtor’s meaning.”

Applying the rule thus established to the facts of this case, we note that at the beginning of the writing of Aug. 14, 1923, exceptant specified the sum of $250. He refers to notes dated Sept. 15, 1921, and Nov. 15, 1921, the aggregate of which was $250. Exceptant further stipulates that no interest had’ been paid to that date, Aug. 14, 1923. He relinquishes his claim on furniture, etc., contained in his apartment in Wilmington, Del., to the holder of these notes. Having done this, he states, in his letter of the same date, that the holder of the notes is fully covered. What is meant by the term “fully covered” need not be left to speculation. This was a letter by a nephew to his uncle; no technical words or expressions were used. The entire letter is couched in such ordinary language as usually passes between an uncle and his nephew on friendly terms. It cannot be asserted that the exceptant intended a sale or conveyance of the furniture, for there is no evidence of any offer or acceptance thereof nor mention made of such disposition of the indebtedness to which exceptant refers. So far as any term or expression contained in the letter or the written statement is concerned, the indebtedness remained undisturbed and continued, with this exception, that where, before, the payee of the notes held them without any collateral or outside protection whatsoever, he was now, in consequence of exceptant’s relinguishment of claim on furniture, “fully covered,” collaterally secured.

Our conclusion, from a careful examination of the relationship of the parties, the condition of the described notes, and the language of the letter and other writings of Aug. 14, 1923, is that what exceptant tendered and the decedent accepted as of Aug. 14,1923, was an assignment of exceptant’s interest in the furniture, to be held by the payee of the notes as collateral security for the payment of the same.

Having thus concluded, the question arises whether such an assignment of collateral on Aug. 14, 1923, tolled the operation of the statute of limitations. There is sufficient here to satisfy us that the two notes, to which reference is made in the writing of the exceptant, are the two notes which we charged against and deducted from his distributive share. Their identity has been fully and satisfactorily established.

Exceptant in his argument contends that the giving of collateral security for the payment of a note and the continued holding of collateral security will not interfere with the running of the statute of limitations against the principal indebtedness. He bases his contention principally upon the decision of our Supreme Court in Hartranft’s Estate, 153 Pa. 530. An examination of the facts of that ease discloses that the collateral there given was given at the time of the execution and delivery of the note, and it was held that the mere continued holding of the collateral could not be construed an acknowledgment of the indebtedness by the maker. From the time of the delivery of the note and the collateral there was no further or additional move on the part of the maker. In the instant case, circumstances are, however, different. Had this collateral been delivered on either Sept. 15th or Nov. 15, 1921, there can be no doubt that the bar of the statute of limitations would intervene and prevent the collection, and, consequently, the charging against exceptant’s distributive share of the indebtedness. Here, however, there was a distinct acknowledgment on the part of the maker of the notes. On Aug. 14, 1923, referring to the notes, admitting failure to pay any interest whatsoever, he delivers collateral so that the payee of the notes may be “fully covered.”

This case is ruled, rather, by the principle laid down in Souder’s Estate, 169 Pa. 239. There the debtor owed the decedent, in 1879, the sum of $7000. In March, 1882, the debtor transferred to the decedent 140 shares of stock. There, as here, the debt would have been barred by the operation of the statute of limitations, had it not been for the intervention of the assignment and transfer of this stock. Relative to the same, the lower court said (page 244): “The debt is not barred by the statute. The transfer of the Chester stock in 1882 was a clear and distinct acknowledgment of the debt, from which a promise to pay was reasonably deducible (Palmer v. Gillespie, 95 Pa. 340), and it took place within six years of the death of the testatrix.”

This language of the court below is adopted by the Supreme Court on appeal, quoted on page 248.

From this decision and theory we have found no variance. Our conclusion is that there was no error in charging the distributive share of the exceptant with the amounts due on these two notes.

Now, May 25, 1929, the exceptions are accordingly dismissed and the adjudication is confirmed absolutely.

Prom Charles K. Derr, Reading, Pa.