Commonwealth v. Kohut et al.

defendants were proprietors of the various places mentioned in the bill and the owners of the premises. No notice was given to the defendants of the presentation of the bill, but a number of them, having obtained information that the bills were asked for, appeared by counsel and were heard. The learned Deputy Attorney-General of the Commonwealth, relying upon section 7 of the Act of March 27, 1923, P. L. 34, as follows, "If it is made to appear by affidavit, or otherwise, to the satisfaction of the court that such nuisance exists, a temporary writ of injunction shall forthwith issue restraining the defendant from conducting or permitting the continuance of such nuisance until the conclusion of the proceedings," strenuously contended that it was the duty of the court to at once issue a temporary injunction. The issuing of such an injunction was equally strenuously resisted by counsel who appeared for the defendants. All the judges sat in banc, and all of them are agreed that temporary injunctions should not issue in these cases, although we wish it to be understood that our action at the present time is not to be taken as a precedent. These applications are the first that have been presented to us under the act. Upon the argument, the learned Deputy AttorneyGeneral stated that temporary injunctions had been granted by all the courts in this state when asked for, with but one exception. He did not know, nor can we know, how fully the matter was presented to those courts. With all due respect for what may have been done in other counties, it must be remembered that communis error non facit jus, and we must, as a court, be satisfied that a preliminary injunction is proper before we ought to issue it. There seems to be no reported decision either of the Supreme, Superior or lower court on the subject, but the proposition is a new one. Instead of prosecuting the proprietors and trying the cases before a jury, a court of equity is asked to try these defendants, and if the court finds them to be guilty, to punish them by depriving both the proprietors and the owners of property of the use of their premises for a year. One of the counsel cited on the argument United States v. Lot 29, 296 Fed. Repr. 729, where a Federal court held that even upon a final hearing injunction should not issue, and, in this connection, we refer to Hedden v. Hand, 90 N. J. Eq. 583, where it was held that equity would not restrain the use of premises where it was alleged that prostitution and habitual sales of intoxicating liquor had made it a nuisance. In that case the court said: "Keeping in view that the maintenance of disorderly houses was a crime at common law and was punishable and abatable in the courts of criminal jurisdiction only, it is clear that the effect of making such a crime punishable and abatable in the court of chancery is to deprive a defendant of his constitutional right to have an indictment preferred against him by a grand jury of the county in which such nuisance is alleged to exist and a trial by jury. ..." It may be that upon a more careful and elaborate consideration of the question we will not adopt those views. Our Supreme Court has held that officers have a right to seize intoxicating liquor and, after condemnation, to destroy it, because all intoxicating liquor, with a few exceptions, is contraband. They have also held that automobiles engaged in transporting liquor may be condemned and sold, but even in this latter case they have held that, under certain circumstances, trial by jury must be had if demanded: Com. v. One Ford Truck, 85 Pa. Superior Ct. 43. According to the public prints, the Supreme Court of the United States has recently decided that search of a dwelling without a warrant and without probable cause is unlawful. This prohibition legislation is a matter of recent adoption, and well-considered opinions on the subject are not numerous. Under these circumstances, preliminary injunctions should not issue. Remembering the fact that, ordinarily,

Commonwealth v. Kohut et al.

preliminary injunctions are not granted where the complainant has an adequate remedy at law, it is provided, both by the clause above cited and by the equity rules of the Supreme Court, that a temporary injunction ought not to issue as of course. The clause in the act is "to the satisfaction of the court.” The Supreme Court equity rule provides that preliminary injunctions shall only issue where “immediate and irreparable loss or damage will result to the plaintiff before the matter can be heard on notice." It is plain that the "strong arm of the law," as an injunction has often been called, ought not to be extended unless circumstances demand it. Another reason sometimes given for the withholding of preliminary injunctions is that they will not be granted in case of delay or laches. We made notes of all the alleged sales. In each of the cases the dates of the sales were in June and July last. It is true that the Commonwealth said they would prove violations even as late as last month, but as the cases now stand, they all show a delay of over three months in presenting the application. In conclusion, we repeat we are not passing on the merits of these applications. We invite a full discussion of the legal questions involved on the hearing, and the references which we have made are only given by way of suggestion to counsel concerned. This is the only opinion that will be filed. In each of the cases an order will be filed fixing Monday, Nov. 30, 1925, as the day of hearing.

From Henry D. Maxwell, Easton, Pa.

Fenstermacher v. Fenstermacher.

Divorce-Master's report-Error in name of respondent.

The report of a master recommending a divorce will be stricken from the argument list and his appointment revoked, where he overlooked the fact that, in the publication of the subpoena by the sheriff, the Christian name of the respondent was erroneously inserted as Raymond A. instead of Reynold A., his true name.

Argument on master's report. C. P. Lehigh Co., Jan. T., 1925, No. 84.

IOBST, J., Sept. 21, 1925.-The master and examiner recommended a decree in divorce. Evidently the master did not carefully examine the record papers or he would have noted an error in publication. From the record it appears that the whereabouts of the respondent are unknown. Therefore, the attorneys for the libellant proceeded by way of publication and procured an order of court for that purpose. An examination of the papers shows that the prothonotary inadvertently and erroneously inserted the name of Raymond A. Fenstermacher as the name of the libellant in the order for publication, whereupon the sheriff of the county in the publication erroneously used the name Raymond A. Fenstermacher, libellant.

The error is so apparent, and the Christian name of the party libellant as advertised so at variance with the correct name of the libellant, that the notice, if called to the attention of the respondent, might readily be ignored. She is not the wife of Raymond A. Fenstermacher, and, therefore, would not be interested in any divorce proceeding instituted by an individual of that

name.

Now, Sept. 21, 1925, this case is stricken from the argument list, the appointment of the master revoked, and the libellant permitted to proceed with his case by proper publication, whereupon he may again ask for the appointment of a master and examiner.

From Edwin L. Kohler, Allentown, Pa.

Corporations Guaranteeing Mortgages.

Corporations guaranteeing mortgages-Supervision of Banking Department-Acts of June 7, 1923, P. L. 498, and June 15, 1923, P. L. 809.

Pennsylvania corporations formed for the purpose of guaranteeing mortgages and foreign corporations chartered for the like purpose are subject to the supervision and regulation of the Department of Banking.

Department of Justice. Opinion to Hon. Peter G. Cameron, Secretary of Banking.

ANDERSON, Dep. Att'y-Gen., May 10, 1926.—Your letter of April 22, 1926, requesting information, first, as to whether a Pennsylvania corporation formed for the purpose of guaranteeing mortgages is subject to the Department of Banking; and, second, what action must be taken by a foreign corporation formed for a like purpose in order to comply with the rules of said department, has been received and given careful consideration.

Both questions would seem to have been answered by the portion of the Administrative Code of June 7, 1923, P. L. 498, which relates to the powers and duties of the Department of Banking, and by the Banking Act of 1923, approved June 15, 1923, P. L. 809. These two pieces of legislation obviously received consideration by the general assembly at one and the same time and are to be read together as forming the statutory policy of the state with respect to the executive department of which the Secretary of Banking is the head.

In section 50a-2202, article XXII, of the Administrative Code, it is provided as follows:

"The Department of Banking shall have supervision over:

"(a) All corporations now or hereafter incorporated under the laws of this or any other state and authorized to transact business in this state, which have power to receive, and are receiving, money on deposit or for safekeeping otherwise than as bailees, including all banks, banking companies, co-operative banking associations, trust, safe deposit, real estate, mortgage, title insurance, guaranty, surety and indemnity companies, savings institutions, savings banks and provident institutions.”

Section 4 of the Banking Act of 1923 charges the Department of Banking "with the duty of taking care that the laws of this Commonwealth in relation thereto shall be faithfully executed and that the greatest safety to depositors therein or therewith and to other interested persons shall be afforded." That section proceeds as follows: "The said supervision, duties and powers shall extend and apply to the following corporations now or hereafter incorporated under the laws of this state or under the laws of any other state and authorized to transact business in this state; namely, all such corporations having power to receive and receiving money on deposit or for safekeeping otherwise than as bailee, including all banks, banking companies, co-operative banking associations, trust, safe deposit, real estate, mortgage, title insurance, guarantee, surety and indemnity companies, savings institutions, savings banks and provident institutions. The said supervision, duties and powers shall also extend and apply to mutual savings funds, building and loan associations and corporations doing a safe-deposit business only."

From the legislation just quoted, it is obvious that a corporation formed for the purpose of guaranteeing mortgages is subject to the Department of Banking.

The said legislation also renders it possible for the Secretary of Banking to impose upon foreign corporations operating as aforesaid the same restric

Corporations Guaranteeing Mortgages.

tions which are imposed upon Pennsylvania corporations under like conditions.

You are advised specifically on this latter point that, in addition to the requirements of the law dealing with the steps which a foreign corporation must take in order to be registered to do business in Pennsylvania, such corporations, if they are mortgage guarantee companies, may be subjected by your department to all the supervision and regulation imposed upon corporations organized under the provisions of the Pennsylvania statutes. From C. P. Addams, Harrisburg, Pa.

Kieser v. Shenk.

Statement-Sufficiency of-Striking off-Practice Act of May 14, 1915,

P. L. 483.

1. The preliminary paragraph of a statement setting forth the name of the parties and that the suit is brought "upon a cause of action whereof the following is a statement," need not be numbered.

2, The fact that the residences of the parties are not given is not material, nor need the statement give the hour of the accident or allege that the trespass on which the suit was founded was committed in the county in which the suit was brought. These objections are not sufficient cause to strike off the statement. The defendant can ask for a more specific statement if desired.

Motion to strike off plaintiff's statement. 1925, No. 47.

C. P. Lancaster Co., March T.,

Charles G. Baker, for motion; L. R. Geisenberger, contra.

LANDIS, P. J.-It is complained that the statement filed in this case is not in compliance with the Practice Act of May 14, 1915, P. L. 483, because the preliminary paragraph, which sets forth the names of the parties, is not numbered. There is no reason why it should be, for it states that the suit is brought "upon a cause of action whereof the following is a statement," and immediately thereafter the paragraphs are arranged in due form, each containing one material allegation. This is, in my judgment, a compliance with the act. The fact, too, that the residences of the parties are not given is not material. There is nothing in the act of assembly which requires this.

It is also objected that the day or the hour of the accident is not given, and that the statement does not allege that the trespass was committed in the County of Lancaster. Neither one of these objections, even if true, is of sufficient consequence to strike off the statement. If the defendants desire more particular information on these subjects, they can ask for a more specific statement, and if the plaintiffs have the information, the court can crder it to be given. As a matter of fact, in the first paragraph, the time is fixed as "on or about the 1st day of September, 1924," and in the second paragraph it is said that "at or about the intersection of Ephrata State Road, another public highway in the State of Pennsylvania, with the said Manheim Pike, a certain motor-vehicle under the charge, custody and control of the defendants, their servant, agent, workman or employee, was caused and permitted to come into contact and collision with the motor-vehicle in which the wife-plaintiff was a passenger." Even though Lancaster County is not named, I am of the opinion that, for the present, the allegations are sufficient, and that we ought not to strike off the statement on such grounds. The motion is, therefore, overruled.

From George Ross Eshleman, Lancaster, Pa.

Yost v. Yost.

Gift inter vivos-What constitutes-Husband and wife.

1. To constitute a gift inter vivos there must be an intention to make the gift then and there and an actual or constructive delivery, but when the intent is clear and from a husband to his wife, acts of a donor may be construed as amounting to a delivery which were not free from uncertainty and ambiguity.

2. Where it appeared that the parties, who were then husband and wife, had no home of their own, the husband being away most of the time, and when they were together they resided with the parents of either one, and the husband bought a victrola, telling his wife it was for her, and had it sent to his parents' house, the ownership of the victrola was a question for the jury in replevin proceedings and their verdict sustaining the alleged gift to the wife should stand.

Replevin. Motion for judgment for defendant n. o. v. C. P. Lancaster Co., March T., 1924, No. 55.

H. Frank Eshleman and John E. Malone, for motion.

John M. Groff, contra.

LANDIS, P. J., Dec. 26, 1925.-This was an action of replevin for a victrola, brought by the plaintiff against Warren Yost, formerly her husband. The evidence for the plaintiff showed that in 1915, while the plaintiff was sick in a hospital, her husband bought the victrola from Kirk Johnson & Company and had it sent to his father's house on Conestoga Terrace, near Lancaster City. She testified that her husband then told her that he bought it for her. While this contention on her part was denied by him, yet the verdict establishes its truth.

It is, however, claimed that, as this victrola was not actually handed over to her, there was no such delivery as was necessary to establish her title, and that, therefore, judgment should be entered for the defendant notwithstanding the verdict.

These parties never had a home of their own. He worked away from this locality and was absent a great deal. Sometimes he would come back at weekends, and both of them would be together at her parents' house, and sometimes they would go together to his parents' house on Conestoga Terrace. When he was away, she lived at her parents' house. We charged the jury that if they believed "under all the facts that he did give it to her, then" they might "find in favor of the plaintiff." If they believed "that he did not give it to her, that he sent it to his father's house and kept it there and it was his and not hers, then" they would "find a verdict in favor of the defendant."

The general rule is that one sui juris and compos mentis has the right, in the absence of fraud, to make a gift inter vivos of his property. But to constitute such a gift, there must be an intention to make a gift, expressed in words or acts. It was held in Malone's Appeal, 38 Legal Intell. 303, in a per curiam opinion, that "if a valid gift was made, it is of no consequence, as between husband and wife, that the former subsequently became the custodian of it."

It is true that in Reese v. Philadelphia Trust Co., 218 Pa. 150, it was said by Stewart, J., that "to constitute a valid gift inter vivos, two essential elements must combine: an intention to make the gift then and there, and such an actual constructive delivery at the same time to the donee as divests the donor of all dominion over the subject and invests the donee therewith." See, also, Sullivan v. Hess, 241 Pa. 407. In Leitch v. Diamond National Bank, 234 Pa. 557, it was stated that "if the language used by a donor is clear and unambiguous, showing a clear intent to make a gift and a belief on his part that he had done all that was necessary to complete it, then the act of delivery,