vested rights are in jeopardy, no appeal | might lead to proceedings which would is there for the intervention of a policy remove the cloud overhanging the title, to protect innocent purchasers, and there it could not more definitely establish the is no apparent reason why the Court fact that it is real estate with which we should again exceed its jurisdictional are concerned than has been done; and authority and encroach upon the rights being real estate it would be stultifying of the heirs. Reasons enough there seem for the Court to stamp the administrato be to decline to meddle with a matter tor's irregularities with the seal of its not of concern to the administrator. approval by recognizing his "Real Estate" account as an administration account. Besides a ratification of this procedure might be regarded as a precedent the consequences of which should not be overlooked. At the audit the exceptants' counsel dwelt upon the irregularities and pronounced the sale void. Nonetheless distribution of its proceeds was urged, and further he insisted that there should be surcharges. True, it was suggested that quit-claim deeds would be given, and the Court was complacently advised to embody an order to that effect in its decree. A petition for a rule to show cause why the order of the sale should not be revoked and the sale set aside would have been entertained, but it did not appear to be necessary as the heirs were left in a position to adjust matters amongst themselves, which seemed likely to happen in view of the suggestion as to quitclaim deeds. The Court has the inherent and essential right in the discharge of its duties to exercise the power of reviewing and modifying its proceedings and decrees, and might, therefore, have acted on its own motion. Strikingly fitting would such an action be in this case where the administrator, not by fraud, but by a mistake which might have been the equivalent to it, became the agent of the Court for the sale of the real estate of which he became the purchaser, if there was some injury to be healed. Dundas's Appeal, 64 Pa. 325, which has been emphasized, is not an analogous case. There the testator gave his executors full power to sell" real estate, devised it to them to sell, which worked a conversion; therefore it was proper for the executors to account for the proceeds of the sale. As the sale was wholly independent of the Court and subject to none of its decrees, it is readily seen why the Court denied its power to set it aside. Sackett v. Twining, 18 Pa. 199, also cited by exceptants, decides that a decree of the Orphans' Court cannot be collaterally attacked in a Court of Common Pleas. 66 While a decree setting aside the sale Sixty dollars is not extravagant pay for the services rendered the adminissecond exception has no merit. trator by his counsel, and therefore the A commission of five per cent, amounting to fifty-five dollars, is small compen sation for the services of an administrator. From the fact that this one made a gain on the sale of the personal property of $334.47 over the appraised valuation of $792.38 is in his favor. In his account he asks for a credit of $86.00 for "compensation and commissions." He esti mated the value of his services at five per cent on the money handled by him. His measure was accepted, but the calculation has been made only on the amount handled by him as administrator. The error assigned by the fourth exception is, the failure to surcharge the accountant "with the proceeds of sale of pigs, cow and hiefer belonging to the Estate." There was no proof that these animals belonged to the estate; on the contrary, the testimony showed that they did not. What the purpose of the exception to the award of $55.65 to the Register of Wills for the balance of collateral inheritance tax is has not been intimated. If there is any reason why this award should not have been made or the amount is incorrect it ought to have been pointed out, for it has not been discovered. The only remaining exceptions are the sixth and eleventh, which are in a class with the fifth and call for no comment. All the exceptions are dismissed and the adjudication is confirmed absolutely. Common Pleas–Law. the said Pennsylvania Railroad Company, admitting its liability to the extent of about $13,000, paid to the said Jonas B. Reist, the said amount of damage, exReist, Now for Use of St. Paul Fire & Marine cluding and withholding the said sum of Insurance Co., Subrogee, v. Pennsyl vania Railroad Co. $4,200, which had been previously paid by the said plaintiff, the St. Paul Fire & Practice (C. P.) - Form of action-Marine Insurance Company, in discharge Rights of subrogee-Negligence. An averment by the plaintiff in its statement that the defendant admitted its liability for certain damages caused by its alleged negligence cannot change the form of action from trespass to assumpsit. of the policy"; and that the defendant refuses to pay and denies liability to the plaintiff. The defendant filed an affidavit of defense setting up, inter alia, that the de Such admission might be evidence to estab-fendant stands in no contractual relation lish negligence but not to establish a promise to pay. The defendant, admitting its liability in damages for negligence to the extent of $13,000, paid that amount to the plaintiff, excluding and withholding $4,200 previously paid by the use-plaintiff (the fire insurance company) for which said use-plaintiff took a subrogation receipt and assignment. Thereupon said useplaintiff brought an action in assumpsit against said defendant to recover said $4,200. Held, that assumpsit would not lie. with the St. Paul Fire & Marine Insurance Company and that its right of action, if any, is in trespass. The plaintiff moves for judgment for want of a sufficient affidavit of defense. raise the sole question of law whether the The pleadings now before the court plaintiff's statement shows a good cause of action against the defendant. The form of the action is assumpsit, but the facts averred in the statement fail to indicate anything from which it follows, or might be inferred, that the defendant Motion for judgment for want of a is under any express or implied contracsufficient affidavit of defense. C. P. of tual relation to the plaintiff. The averDauphin Co. March Term, 1918, No.ment is that the defendant admitted its The rights and remedies of such insurance company must be worked out through the rights which the insured had against the railroad company. 259. Hargest & Hargest, for plaintiff. C. H. Bergner, for defendant. May 31, 1918. Opinion by HENRY, P. J., 52nd District, Specially Presiding. This action is brought in assumpsit. The plaintiff's statement avers that certain houses owned by Jonas B. Reist, while covered by fire insurance in the St. Paul Fire & Marine Insurance Company, were destroyed by fire, due to the negligence of the defendant; that the said insurance company paid to Reist the sum of $4,200, being the amount called for by its policy insuring said houses, and under a provision of the policy, the insurance company took from the insured his "subrogation receipt and assignment to the extent of $4,200" of his right of action against the defendant railroad company; that demand was made upon the defendant for payment of the damage caused by the destruction of the houses, and "after investigation liability for certain damages caused by its alleged negligence, but such admission could not change the form of action or raise a promise to pay. The admission might be evidence to establish negligence, but not to establish a promise to pay. The rights and remedies of the insurance company must be worked out through the rights which the insured had against the railroad company, and in no event are they greater or can they rise higher than those of the insured. Under the facts averred in the statement Jonas B. Reist could only have brought suit against the railroad company in an action of trespass, and the insurance company cannot through assignment or subrogation change this form of action, in attempting to recover a part of the damages caused by the alleged negligence of the defendant. The motion of the plaintiff cannot prevail. And now, to wit, May 31, 1918, the motion of the plaintiff for judgment for want of a sufficient affidavit of defense is overruled. LANCASTER LAWREVIEW saving with such a certificatte, and saving VOL. XXXVI] FRIDAY, DEC. 27, 1918. also bills for injunction, where counsel shall certify that there has not been time [No.9 to print the same. And such injunction bills shall be withdrawn and deemed finally dismissed as of course, unless Common Pleas Equity. within twenty days after filing the same, Henry Eby, Trustee v. Abram R. Eby. printed copies are filed and served." In this case, there is nothing on the record to show that the bill was subsequently printed and filed and served in Bill for injunction - Lack of time to accordance with this rule. There is a print-Equity Rule 14. A bill of complaint for injunction filed with a certificate of insufficient time to print, will be finally dismissed on motion where there was a printed copy of the bill appended to the papers but it was not marked filed nor served within twenty days, as required by Equity Rule 14. Bill for injunction. Motion to dismiss bill. C. P. of Lancaster Co. in Equity. Equity Docket No. 6, page 159. Chas. W. Eaby and John E. Malone, for motion. B. F. Davis and Coyle & Keller, contra. December 21, 1918. Opinion by LANDIS, P. J. On June 15, 1916, the plaintiff filed his bill of complaint against the defendant, and appended to it was a certificate that there was not sufficient time to print the bill. On October 8, 1918, the defendant's solicitors moved to dismiss the bill, on the ground that, as the original bill had been filed on June 15, 1916, and no printed copy of it was either filed or served upon the defendant or his solicitors within the time fixed by the Equity Rules, they were entitled to have the bill dismissed, as of course. Rule 14 of the Equity Rules provides that "all bills, and subsequent pleadings, including amendments, where such amendments exceed one hundred consecutive words, shall be printed on white, sized paper of a convenient size. This rule shall not apply where counsel shall certify that his client, by reason of poverty, is unable to pay for the same. The Prothonotary shall not permit any such unprinted pleadings to be filed, printed copy of the bill appended to the papers, but it is not marked filed, and apparently nothing outside of the printing was ever done with it. It is, therefore, manifest that the bill must be dismissed at the costs of the plaintiff, and this is accordingly done. Bill dismissed, at costs of plaintiff. Common Pleas-Law. Herr vs. Witmer. Promissory note-Payment by suretyPossession of note- Practice Act of May 14, 1915, Sec. 20-Form of action before magistrate. In an action to recover the amount paid by the plaintiff as surety on the defendant's promissory note, judgment should not be entered for the defendant on request because the note is in the possession of the defendant and a copy thereof is not attached to the statement. On appeal from a magistrate, the proceeding is de novo and the name given to the action by the justice is immaterial. It is not necessary, therefore, where the justice's record describes the action as assumpsit or 66 trespass," for the plaintiff to disclaim one form of action before recovery. vinced he has no right to ask for judg-payment by him; but this prima facies ment. can be overcome by proof, and whether The plaintiff filed his statement in or not the surety or the debtor paid the proper form, and therein set forth that, debt to the holder of the note is a quesat the defendent's request, he became tion of fact for the jury. In Shamburg surety on two notes given by the defend- v. Abbott, 112 Pa. 6, it was decided that, ant, aggregating $207.50; and that he "whenever one person is legally bound was compelled to pay them, and did pay to pay the proper debt of another, the them, at the Keystone National Bank of former in a certain sense occupies the Manheim. He has brought suit to re- position of surety for the latter, and if cover from the defendant this amount, the surety pays the debt, he has a right and now asserts that, the notes having of action against his principal," and that come into the possession of the defend-"this right of action may sometimes be ant, he is unable to attach copies of them to the statement. It will be observed that this suit is brought, not upon the notes, but because the plaintiff, as surety, on the defendant's default, was obliged to pay them. It was upon the implied promise of the defendant to keep him harmless, and because of the primary liability of the defendant to lift them, when due. I do not, therefore, think that it was necessary to attach the notes to the statement; and, in any event, their omission was only a matter of form, which can at any time be rectified. The defendant, however, seems think that, because he in some way obtained possession of the notes, and because they are not now in the possession of the plaintiff, the law presumes that they were paid by the defendant, and the plaintiff is precluded, by reason thereof, from asserting anything to the contrary. This position is, in my judgment, untenable. It is true that a negotiable instrument is discharged by payment in due course by or on behalf of the principal debtor. Act of May 16, 1901, P. L. 194, sec. 119. But this provision has no application when considering the rights between an original debtor and his surety on the note. The surety must pay the obligation before he has recourse to the principal debtor, or his responsibility must be definitely fixed; for, until that time, he has suffered no loss and cannot maintain an action. He may then recover from the principal, even though the note should not be at the time in his possession. Upon the trial, the possession of the note by the debtor is prima facie evidence of asserted by an independent suit and at other times in the form of subrogation." In Hill v. Voorhies, 22 Pa. 68, it was held that a surety in a note given by ostensible partners, who pays the note, is entitled to the usual remedies against all the partners, whether ostensible or dormant, and that he might be subrogated to the remedies on the note, or he might have his action for money paid for the use of the partnership, and that in such case the note taken and signed by the ostensible partners and their surety was competent evidence. It was also contended that this being an appeal from the judgment of a justice. in which the record shows that the summons issued directed the defendant to defend a plea of "assumpsit or trespass, plaintiff cannot recover in one form of action until he has disclaimed cause of action on the other, or expressly elected upon which ground he wishes to present his case. I can see no force in this proposition. The plaintiff is not asking for judgment at this time. But, even if he was, it would make no difference. The proceeding on appeal is in the Court of Common Pleas de novo. case of Ankeny v. Eby, 35 LANC. LAW REVIEW, 65, the Court, in discussion a similar objection, said: “On appeal from a justice of the peace, the name given to the action by the justice is immaterial, and the plaintiff can file a statement for breach of contract, although the justice had wongfully denominatetd the original action before him as 'trespass for damages.' In the recent For these reasons, the Request for Judgment is denied. Request denied. East Mountain Coal Co. v. Sacandaga Coal Co. Appeal-Award of arbitrators-Domestic corporation-Bond. Where a domestic corporation takes an appeal from an award of arbitrators, security for the debt need not be given. A bond for the costs is sufficient. Rule to strike off appeal from award of arbitrators. C. P. of Lackawanna Co. November Term, 1916, No. 433. E. A. DeLaney and A. A. Vosburg, for plaintiffs. H. W. Mumford, for defendants. February 25, 1918. Opinion by EDWARDS, P. J. The defendants, domestic corporations, in an appeal from an award of arbitrators, gave bail for costs only. Plaintiff claims that bail should have been given for the debt also. The decision of the question involves the consideration and interpretation of several acts of assembly. We find no decision in either of the appellate courts on the point in dispute. There are nearly a dozen cases in the lower courts. The majority of them favor the proposition that a domestic corporation may appeal from an award of arbitrators without giving security for the debt. The best considered of all the cases are the fol lowing: Delong v. R. R. Co., I Woodward's Decisions, 191; Rush v. Home Mutual Association, 4 C. C. Rep. 523; McConnell v. R. R. Co., I Lack. Leg. News_343; Erie &c. R. R. Co. v. Railway Co., 3 Pitts. 232. We are of the opinion that the defendants were not bound to give bail absolute for the debt. Now, February 25, 1918, rule discharged. Legal Miscellmut In Memoriam of Justices Potter and At a meeting in Pittsburgh of the Allegheny County Bar Association, held on November 22, 1918, minutes were adopted in memory of Justices Potter and Mestrezat, and addresses were made by Chief Justice J. Hay Brown, Hon. W. H. S. Thompson, and Thos. Patterson, L. K. Porter, D. W. McDonald, J. Boyd Duff, and Clarence Burleigh, Esqs. Chief Justice J. Hay Brown said: MR. CHAIRMAN: The sore distress, brethren of the Bench and Bar of Pennsylvania, which came to your highest Court seven months ago and has called us together at this time, is without a precedent. Within just a fortnight the Angel of Death beckoned two of its members, and each was ready for the summons, for both had walked with God from childhood. Our Brother Potter, who was first called, was the son of a minister of the Gospel, from whom there came to him as his best heritage, moral and intellectual worth. While others here will speak in detail of the activities of his busy, useful life, which ended while the rays of the day's sun were still shining upon him and before the shadows of night had darkened over him, it is fitting that I speak a word of respect and esteem for him on behalf of his colleagues in his judicial life. Potter was appointed a member of the On September 26, 1900, William P. Supreme Court of the State, to fill a Justice Henry Green, and, in 1901, he vacancy caused by the death of Chief was elected for a full term of twenty-one years. He brought to the Court no judicial experience, but did bring to it the always needed helping hand of the successful active practitioner. From the day he came to us until he last sat with us in the consultation room-barely ten days before his death-we were constantly helped by his large experience and good judgment as a practitioner, especially when questions involving business and commercial interests were under consideration, and assignments went to him. from time to time for his aptitude in dealing with them. The hard-working, intelligent lawyer became per saltum the industrious, painstaking, learned and conscientious judge. Sixty-five volumes of the State Reports are the lasting memorials of his well-performed judicial labors. His consuming thought in every |