66 In re Philip Butt Alleged Insolvent (No.2.) eratur. While, technically, a failure of the surety on an insolvent's bond to surrender the principal at the time named therein works a forfeiture Thereupon the Court granted a rule to present, the only order that is made is, show cause, returnable on the third Mon- that the defendant shall appear on the day of August, 1913. At the same time, Saturday before the third Monday of he filed a deed of assignment and sched-April next, for a hearing upon his origule of his debts and assets, and pre-inal petition, and that due notice shall sented his bond, with Philip D. Butt as be given in accordance with the Act of surety, in the sum of $175.00, condi- Assembly to all the parties in interest, tioned that he should appear at the and that proof of the same shall at that hearing of the aforesaid rule and comply time be presented to the Court, and that with all the requisitions of the said law this order is made without prejudice. and abide all the orders of the said Court in that behalf." The third Monday of NOTE.-See following case. August was Monday, August 18, and on that day the Court was not in session and no hearing was had. The Court was in session on several days during that term and on numerous days in succeeding terms; but no appearance or application of any kind was made until December 27, 1913, when he filed another petition, asking for a continuance nunc pro tunc, and praying that some time be designated by the Court for a hearing. A rule was thereupon granted, returnable on the third Monday of January, 1914. At that time, January 19, 1914, a motion was made to continue the hearing until the third Monday of March, 1914. In the meantime, on August 29, 1913, Howard Liveright filed an answer to the original petition, in which he set forth that the defendant had violated the provisions of the Act of Assembly and had not surrendered himself, and prayed that the rule should be discharged. Subsequently, the assignee appointed in the deed of assignment was removed, and another assignee was appointed in his stead. It was only after all these proceedings on the part of the contesting creditor that the continuance was applied for. Upon carefully considering the question, I am of the opinion that a hearing should be had on the defendant's application for his discharge. What effect his conduct has had upon the bond we do not now intend to decide, nor do we pretend, by the order fixing the hearing, to interfere with or prejudice the rights of the creditor to recover upon the bond, if forfeited. It would appear to us that his long delay has worked that effect; but that question, however, will probably be met at a later date. For the of the bond, and fixes the liability of the bail, In such case the defendant will be given an Insolvent Book No. 1, p. 298. C. P. of Lancaster Co. Application for discharge as insolvent debtor. Rule for judgment for want of a sufficient affidavit of defense. Petition for entry of exoneratur on bail bond. B. F. Davis, for defendant and petitioner. John E. Snyder and F. Lyman Windolph, contra. July 11, 1914. Opinion by LANDIS, P. J. On March 28, 1914, we filed an opinion in this case (see In re Philip Butt, an Alleged Insolvent, supra, p. 369), and in disposing of the numerous questions now raised, we will commence where we then left off. By it, we directed the defendant to appear "on the Saturday before the third Monday of April next, for a hearing upon his original petition, without prejudice. By subsequent continuances, the matter was postponed to Saturday, June 13, 1914. The defendant was then present, but the Court, on account of the press of other business, was unable to hear the case. It was then continued until Monday, June 15, 1914, when it and the other matters pertaining to the case were duly argued before us. We have now concluded that the defendant shall finally appear on Saturday, July II, 1914, to be heard and examined on his application for discharge as an insolvent debtor. McClurg v. Bowers, 9 S. & R., 24, it was doubted whether such an order was the subject of a writ of error. No reason is there given, but it may be found in the phraseology of the Statute 4 Anne, chap. 16, sec. 20, regulating proceedings on bail bonds, etc. That Act, which has been held to be in force in this state, provides that the Court where the action is brought may by rule or rules of the same Court give such relief to the plaintiff or defendant in the original action. and bail on the bail bond, as is agreeable to justice and reason; and the rule or rules of the said Court shall have the . said bond.' The discretionary power thus vested in the Courts of Common Pleas was considered in Roop v. Meek, 6 S. & R., 542, in which it was held that a writ of error did not lie to an order of Court staying proceedings on a bail bond, though the suit thereon had been previously arbitrated and an award made in favor of the plaintiff. Speaking of the Court's action in that case, it is said: They granted such relief as appeared to them to be agreeable to justice. In this and many other matters intrusted to judicial discretion, they are the sole judges of what is agreeable to reason and justice; and the exercise of that discretion cannot be reviewed in another forum.' But without resting the decision on this technical ground, which was raised but not pressed on argument, we think the learned Judge of the Common Pleas was correct in the general view he took of the case. Let us now take up the rule for judg-nature and effect of a defeasance to the ment for want of a sufficient affidavit of defense. It will be remembered that the defendant gave his bond, in the sum of $175.00, with Philip D. Butt as surety, and a rule was then granted that he should appear on the third Monday in August, 1913. When that time arrived, the Court was not in session. It did, however, meet on several days during that term, and on numerous days during the succeeding terms. No appeal or application was made by the defendant for his discharge until December 27, 1913, when he asked that the matter be continued nunc pro tunc. This failure on his part is claimed by his creditor to have worked a forfeiture of the bond. We think that this proposition is generally correct, and that technically a failure of the surety in such a bond to surrender the principal at the time therein named works a forfeiture of the bond, and the liability of the bail thereby becomes fixed. If nothing else were taken into account, we should be obliged to make this rule absolute. There is, however, a remedy which the Court can apply when it is deemed that justice demands a relief from the forfeiture, and as we mean to apply that relief in this case, we, for this reason, refuse to enter judgment. It is true that the cause upon which the plaintiff based his suit cannot now be considered by us. The judgment obtained before the alderman, unappealed from, was conclusive as to that, and, after a transcript had been entered in this Court and a fi. fa. and a ca, sa, entered thereon, it made no difference, so far as we were concerned, what the original cause of action was. But it is asserted in the petition that, about the time the rule was returnable, B. F. Davis. Esq., counsel for the defendant, was feloniously assaulted by an Italian, and confined to his house and bed, and was unable to attend to business for some weeks. It is true that, in the answer, it was asserted by the plaintiff that Mr. Davis was not confined to his house on August 18. It is stated by counsel that the complaint shows that Mr. Davis was assaulted on August 8, 1913, and, as we all know, he was seriously injured. It was also alleged in the original affidavit of defense that the defendant, by reason of physical disability, he having met with an accident, was prevented from appearing in Court at that time, and it is admitted that there was no court on August 18, which was the third Monday in August. Therefore, I think, under all the circumstances, the defendant ought to have an opportunity to be discharged in the regular way, and, as we have above said, we have fixed Saturday, July 11, 1914, for the purpose of having him make his application. If he then appears and is regularly discharged, and pays the costs of all these proceedings up to the present time, then we will direct an exoneratur to be entered on the bond. We think that this is "agreeable to justice and reason." The reason why we make the order on condition as to costs is, that we feel he was not as expeditious as he ought to have been. R. I'. Alexander and S. V. Hosterman, contra. July 11, 1914. Opinion by HASSLER, J. We think the affidavit of defense contains two defenses to plaintiff's claim, either one of which is sufficient to prevent judgment. The plaintiff's claim is based on a written contract. In this contract the plaintiff leased to the defendant a moving-picture theater for a period of sixty days, and agreed to act as agent for the defendant to manage, operate and direct it at a salary of $35 a week, to be paid by the defendant. In addition, the plaintiff was to "receive as agent for distribution the expense of operation approximately as per schedule A hereto attached, which must never exceed said schedule, $285 a week, for which receipted bills shall be forwarded within five days after delivery of money to him." The plaintiff claims to have acted as such agent in making, operating and directing the theater for nine weeks, having thus earned $315, and alleges that he has only been paid $243.34, leaving due him the sum of $71.66. In his supplemental affidavit of defense the defendant alleges that the plaintiff only worked eight and foursevenths weeks, and earned only $300. He gives dates and amounts of nine NOTE. Defendant appeared July 11th and was discharged, Howard Liveright, creditor, objecting, who took exception to said discharge and subsequently appealed to the Su-weekly payments, ranging from $173.34 perior Court. Wonders vs. Gunzenhauser. Salary Payment-Affidavit of defense. In a suit for salary as agent for the lessee of a moving-picture theater for nine weeks at $35 a week under a written agreement, an affidavit of defense is sufficient which avers that the plaintiff worked only eight and foursevenths weeks and gives dates and amounts of nine payments, which it avers covered his salary and expenses, and also that he collected an additional salary for a manager whom he did not employ, doing this work himself, whereas the contract stipulated that the plaintiff was to receive only $35 a week. April Term. 1914. No. 68. Rule for want of a sufficient affidavit of defense. F. Lyman Windolph, for rule. to $285 each, and alleges that the amount due the plaintiff was paid in these weekly payments, together with all expenses. which he was to distribute according to the contract. This is stated with sufficient particularity. In addition, the defendant alleges that the plaintiff collected $120 for the salary of a manager, when he did not have such an employee, and did not pay out that amount. If this is true, and we must take it as true in this proceeding, he should not have collected this amount from the plaintiff, and must return it. He cannot claim it for himself, because, as he contends, he did the work of such manager, for the contract provides that he was to do his work for $35 a week. He was only to collect from the plaintiff $14 per week for a manager when he had one in his employ, and not having had one in his employ he did not act in Orphans' Court. Small's Estate. Practice, O. C. — Review — Final confirmation of account Act of Oct. 13, 1840. Notice of the filing of an account, given by advertisement, as provided by law, is as effective and binding as actual notice, and the mere fact that a party interested has placed her matters in the hands of an attorney-at-law, who neglected to inform her of the filing of the account, is not good ground of relief under which she is entitled to have an account reviewed. A bill of review will not be granted where it appears upon the petition that the award to which exception is taken has been paid by the accountant. Where is appears on the face of the record, by an examination of the will, that the executor has taken credit in his account for payments made to himself, which are prima facie illegal, it is the duty of the court, under the Act of October 13, 1840, P. L. (1841) I, to grant the review. Payments made to himself are not within the exception to the act. Petition for bill of review. O. C. of Northampton Co. R. A. Stotz, for petitioner. edge of the contents of the account or that it had been filed until the confirmation thereof had become absolute." The exact date that she acquired knowledge should have been set forth, but as the petition was presented on June 24, 1912, in this case that omission is not serious. She further averred that she had retained a member of the bar of this county to advise her when the account was filed and with reference to its contents, and that he had not so advised her until after confirmation had become absolute; that the account is incorrect and erroneous: First, because the executor charged 5 per cent on both the real and personal property administered. The amount of this item was $234.85. Second, that he paid Sarah E. Small for services to the widow of the decedent. $145. Third, that he charged for the decedent's board the sum of $435. The executor filed an answer, in which he set forth that he filed two accounts, the first one in July, 1911, which was confirmed absolutely in September, 1911; that the petitioner had copies of that account; that subsequently the real estate was sold; that the petitioner was present at the sale and knew the property was sold, and that the money was paid over; that he filed his account on December 6, 1911, and that it was duly advertised, and that during that period the petitioner was at her home in this county, and especially that Sarah E. Small, to whom the $145 had been paid, had since died; that his compensation was not excessive, and that the petitioner had told him to use the funds of the estate for the support of their mother. A replication to the an This is a citation to the executor of an estate. The petition was by a daugh-swer was permitted to be filed at the ter. She alleged that her father died in argument. At the argument, it was 1896, leaving considerable real and per- earnestly contended that the petitioner sonal estate (without mentioning the had discharged her duty when she reamount of each), having made his last tained counsel to look after this account; will, a copy of which was attached to the that the counsel owed a duty to the petition, wherein he gave his wife use court, and that if he failed to perform of his real and personal property for life. his duty to the client, the court should It would appear from the will that, after relieve the client. This is not the acthe widow's death, the estate was to be cepted view of the matter. The proper divided into four parts. She also averred view is that the neglect of counsel is to that the executor filed his account on be considered as the neglect of the client. December 6, 1911, and that it was abso- Relying on Ward . Letzkus, 152 Pa., lutely confirmed; that she had no knowl-318, and other cases, we so decided in as the third item, in which the executor claims the sum of $435, is concerned, there is no allegation that Henry Small did not board his mother for twenty-nine months, nor is there any allegation that $15 a month was not reasonable compensation. We also think it is manifest that the provision made by the decedent for his wife could not have been sufficient for her maintenance. If we could decide this application independently of the Act of 1840, in the exercise of our best discretion, we would refuse the entire application. However, a consideration of the cases cited above and of the Act of 1840 shows that the second and third items come within the Act of 1840; the consideration, as we have shown above, by the fact of payment. While there seems to have been unwarrantable confusion in the decisions of this state on the subject of bills of review, yet, if the decisions above referred to are carefully studied, there should be no trouble in determining when they should be allowe and when refused. In addition to these decisions, we shall quote from Riddle's Estate, 19 Pa., 431, as a summary which applies to this case, as follows: "A bill of review, according to the first of the ordinances of Lord Chancellor Bacon respecting bills of that kind, can be brought only in two cases. The first is for error in law appearing in the body of the decree, without further examination of Kaumagraph Co. v. Thissen Silk Co., II Northamp. Co. Repr., 412, affirmed in 42 Pa. Superior Ct., 110. The petitioner gains nothing from that feature of her case. Since App, Executor, 7. Dreisbach, 2 Rawle, 287, to the present day, it has uniformly been held that "notice given agreeably to the rules of court, or by the directions of an act of assembly, is as effective and binding as actual notice." See Priestley's Appeal, 127 Pa., 420; Ferguson, Assignee, v. Yard et al., | 164 Pa., 586, and Donnelly 7. Byers, 234 Pa., 339. It might be sufficient to end our discussion here and to quote the per cur. delivered in Gosner's Estate, 133 Pa.. 528, a case from this county, but the learned counsel for the petitioner, under-second one being excluded from present standing fully the legal rules governing cases of this kind, which are set forth in Priestley's Appeal, 127 Pa., 420; Gosner's Estate, 133 Pa., 528; Kachline's Estate, 7 Pa. Superior Ct., 163, and the two late cases of Milliken's Appeal, 227 Pa., 502, and Dox's Estate, 227 Pa., 606, nevertheless urges that, under the authority of Ehrhart's Estate, 31 Pa. Superior Ct., 120, irrespective of the Act of 1840, we should grant this application as a matter of grace. This view of the case compels us to examine the items specifically. It is a mistake to speak of the charge of 5 per cent as an illegal one. A careful examination of the late cases decided by the Supreme Court, such as Moore's Estate (No. 2), 211 Pa., 343; Harrison's Estate, 217 Pa., 207, and Sin-matters of fact; and the second is for nott's Estate, 224 Pa., 333; s. C., 231 Pa., 299, will show that there is no set rule as to percentage allowed to executors and trustees on the sale of real estate. The rule is, fair compensation for the amount and character of labor performed and responsibility involved. The executor is entitled to some compensation; whether it is excessive is a pure question of fact: Le Moyne's Ap-Pet., 13. Even if an absolute decree be peal, 104 Pa., 321; Priestley's Appeal, 127 Pa., 420. There is nothing in that item. So far as money paid to Sarah E. Small is concerned, no equitable relief will be granted, because it comes plainly within the exception of the Act of 1840, that the act shall not apply where the money has been paid. So far new matter which hath arisen after the decree. A bill of review may also, by special leave, be allowed for new proof that has come to light after the decree which could not possibly have been used at the time when it passed. It is said that this rule has never been departed from: Barb., Eq. Prac., 90; Coop., Eq. Pl., 89; Story's Eq. Pl., sec. 404; 13 made against an infant, it seems to be necessary that his infancy should appear upon the face of the decree. In this country the bill, answer and pleadings are regarded as forming part of the decree, and in that respect the course here differs from the English practice: 13 Pet., 13." The will of the decedent is a |