"2. That the delivery of said certificate by said bank was a delivery to both Jerry Waltrick and Harry A. Hockensmith.

If the plaintiff sustains his specific averment that the money in question was the money of the decedent's estate, and that the "3. Harry A. Hockensmith having sur- defendant wrongfully or unlawfully approvived Jerry Waltrick became the absolute priated it to his own personal use, it would, owner of the fund of which the certificate in all probability, become necessary for the was the evidence, by operation of the terms defendant to produce evidence as to individof the certificate itself, and under the law ual right to the money, and this would was clearly entitled to draw the funds due probably have to be evidence other than his thereon. personal testimony.

estate.

The plaintiff in his statement filed specifically charges that the money belongs to the If this charge be sustained by the evidence, it might become necessary for the defendant to show that he did not unlawfully appropriate it to his own use.

The fact that he drew the money from the bank by surrendering the certificate before he was authorized to act as executor, is not explained by the pleadings. He must have had possession of the certificate of deposit at the time he drew the money, but his right of possession depends upon various facts which must be properly shown before an intelligent adjudication can be rendered. From the statement we must conclude that the money was originally deposited by the decedent as "his own moneys," and that he, the decedent, "then and there received from bank," the certificate of

the said

deposit in question.

It is, therefore, evident that no judgment can now be entered upon the pleadings.

Motion for judgment is refused, and defendant is hereby required to file an additional affidavit of defense within ten days from this date.

Abstracts of Recent Decisions.

Negligence-Seven Year Old Girl-Manhole-Falling Into-Protection From Danger.-Judgment for defendant upon the whole record was refused where plaintiff, aged seven years, fell into the manhole over underground conduits of an electric light could not escape liability by showing that company, in that the defendant company what it did for the protection of the public was that which was commonly done by the city or by other persons opening or obstructing the streets. The question in the end was whether the means employed were under the circumstances reasonably safe, and this was a question for the jury. Ceronich v. Duquesne Light Company, (Allegheny C. P.,) 65 Pittsburg Legal Journal 698.

Depositions-Reading to Witness-Admission.--Plaintiff brought suit for recovery of damages for injuries received by being struck by an automobile, owned and driven by defendant, on August 21, 1916. “On October 27, 1916, plaintiff's deposition was taken before a Notary Public, counsel for both plaintiff and defendant being present. Plaintiff died November 4, 1916. At the trial the deposition was offered by counsel for plaintiff and objected to on the single ground that it had not been signed by the witness. The objection was overruled. HELD, on motion for a new trial and judgment non obstante veredicto, that the deThe language used in qualifying the gen- position of deceased plaintiff was properly eral certificate of deposit implies an under- admitted and read in evidence, even though standing or agreement between the parties it had not been read to or by him after it at the time the money was deposited. We was written out and assented to and signed are not enlightened by the pleadings as to by him.-Smith v. Michie, (Montgomery the meaning of the agreement. ¡C. P.,) 33 Montgomery Co. Law Rep. 262.

The statement specifically shows that, although the certificate of deposit expressly states "that either may withdraw on his or her individual order during their joint lives," there had been no withdrawal of any part of the money deposited during the joint lives of the payees.

Lackawanna Co. Evans v. Scranton Protective Associa

Where the by-laws of an association provide that action against any member for conduct detrimental to the purposes of its organization shall be based upon a charge in writing signed by the person or persons making the same, and specifying offense alleged to have been committed, the association has no power, in the absence of such specific charge, to declare a vacancy in an office for the obvious purpose of ousting the incumbent as a penalty for such misconduct.

Demurrer to return to alternative writ of mandamus.

C. B. Little for plaintiff.
P. V. Mattes for defendants.

Defendants justify on no specific authority, either under the constitution or laws of the society; but upon what they regard as general and comprehensive power conferred by Section 1, Article VII, of the by-laws, as follows:

"Should any member of this association violate any of its laws or say or do anything that may be justly construed as injurious, detrimental or hurtful to the purpose for which this association has been organized and incorporated, charges may be preferred against said member or members by any member in good standing. If, after having been notified and given a fair trial, said member or members are found guilty of charges that may have been preferred against him or them, he or they may be dealt with in such manner by this association as may seem best for its purposes."

The power thus conferred is certainly plenary on its face. The penalty of conviction is limited only by the pleasure of the convicting tribunal, and as such gives rise to the objection that it is void for unreasonableness.

The objection is not without merit though the proper disposition of the case makes it

swer on the other side is that the ac ministration of the law is subject to the "rule of reason," and that would protect the convict against any unlawful or oppressive penalty.

August 1st, 1917. NEWCOMB, J. --The defendant society and certain of its executive officers are sued jointly. In like manner they join in the return to the alternative writ and no question is raised as to their joint liability, if liable at all. Plaintiff is a member of the association in good standing, and at the time of the grievance complained unnecessary to decide the point. The anof was exercising the functions of vice-president by virtue of his election last December for the term of one year. Since May 2, 1917, he has been excluded from the office and he sues to test the legality of the society's proceedings to oust him. From what developed at the argument we ventured to believe that the cause of provocation was rather trivial; that to keep it alive would only tend to impair the usefulness of the association; and therefore we have made an earnest effort to bring about an amicable settlement of the controversy, though without

The weakness of that argument is that it only serves to emphasize the capricious character of the law and thus to reinforce the objection. By what standard shall it be known when the penalty is within the rule of reason? Who is to determine what penalties would conform, and what would be obnoxious to the rule? Penal laws are not to be enforced by such arbitary sanction. But for present purposes the objection on Plaintiff, with one group of members, in- that ground may be disregarded. The procurred the displeasure of another group by ceeding itself was irregular. Section 2 of sending a telegram to members of assembly the same law requires that "all charges at Harrisburg, criticising the form and char- against a member shall be submitted in writacter of a bill pending before the legislature ing together with the signed name of the in which the association had taken an active interest. As a measure of punishment the

success.

person or persons making said charges and specifying the offense which has been alleged

to have been committed. The association the quasi statute law of the society itself. will then appoint a committee whose duty it The defect was not cured by appearance of is to probe thoroughly into all the details of the accused and a contest on the merits. said charges and report as soon as possible The return is at pains to show that he has its findings to the association." at all times denied the authority of the association in the premises. and, therefore, the proceeding is still open to objection.

"Therefore, be it resolved, that this organization summon its vice-president, Dr. D. W. Evans, to appear before an investi- with costs. gating committee and make answer to the charges that his actions are detrimental and hurtful to the purpose of this organization, and the said committee be instructed to give

the vice-president a fair and impartial hear- Statement-Tort--Capias to Hold to Bail

It will therefore be necessary for the case to be tried upon the questions raised by the 2. On or about March 3, 1917, the defendant, upon information by a certain Clarence C. Uffle- statement and affidavit of defence or such man, issued to Thad S. Stroman, Constable for additional defenses as the defendant shall the Sixth Ward of the City of York, a warrant see proper to file within the next ten days for the arrest of the plaintiff on a charge of from this date. larceny by baillee of a certain 7-H. P. "Indian"

motor cycle, and also issued to said constable a

search warrant for the seizure of said motor cycle. C. P. of

3. By virtue of the said writs the defendant

was duly arrested by the said constable, and a certain 7-H. P. "Indian" motor cycle of the value

of one hundred dollars, then in the plaintiff's pos- Judgments-Opening-For Materials and

defendant, the answer of the plaintiff, and companied the plaintiff, the defendant and the depositions of the parties and their wit- her husband, all of whom appeared as witnesses. The controversy grew out of a con- nesses. The testimony of the defendant. tract in which the plaintiff, H. O. Berger, and her husband was to the effect that when agreed to do the plumbing work of a dwell- the note was given on Friday, March 23, ing house being erected by the defendant. 1917, and the release of lien executed, the The plaintiff's place of business was at plaintiff agreed to return not later than the Homewood in the City of Pittsburgh, and middle of the week following and complete the defendant resided in Bellevue, where his contract, which he did not do, and she the new house was being erected. The was obliged to have it done by another. contract was oral, whereby the plaintiff The defendant called James J. Coolman, agreed to furnish the material and do the who testified that he, representing the dework for $455.00, according to the testi- fendant, wrote a letter to the plaintiff mony of the defendant, or for $590.00, as requesting him to do the work. That letter claimed by the plaintiff. When the note was dated March 29, 1917, six days after was made it is conceded that the plumbing the execution of the note, and just about the work had not been entirely finished, but the time the plaintiff was to return and comextent of the unfinished work is now a mat- plete his contract, according to the evidence ter of controversy, the plaintiff contending of the defendant and her husband. That that his contract nearer completion letter contains the following:

*

than the defendant is willing to concede. "You have been paid in full, partly by cash The plaintiff undertakes to justify any and partly by a judgment note. We wish delay on his part by setting up the unbusi- to notify you that if the work is not comness-like methods of the carpenter or con- pleted at once and the completion started tractor, while the latter, as well as the de- this coming Monday, April 2nd, 1917, fendant, insists that the work of completing another plumbing contractor will be hired, the building was delayed by the plaintiff. the work completed, and the amount charged Thus stood the matter at the time of giving up to you."

the note. Just before the note was made The letter was offered in evidence, and the defendant negotiated a loan with which its admission objected to by the plaintiff. to pay the contractor and material men, and We do not understand this offer. If that it became necessary to secure the release of letter was properly mailed to the plaintiff, the plaintiff and others.of their right of lien. and if it appeared that he made no reply, it Up to this time the plaintiff had been paid would have been of some consequence to the only $50.00, but he agreed to and did exe- defendant's case; but strange to say there cute the release of liens on payment to him was no attempt to prove that the letter in cash of the further sum of $100.00 and marked Exhibit "A" was a copy of an the delivery of the judgment note in ques-original mailed to the plaintiff, or that any tion, which is dated March 23, 1917, at notice was given him to produce the origthirty days, for $305.00, and was entered of inal. Coolman is simply asked if Exhibit record May 8, 1917. "A" is the paper that he wrote, to which he

The real question in the case is this: answered "Yes." If Exhibit "A" is the Was the note given in full satisfaction of letter he sent, in what way did it get into the plaintiff's claim for work and materials the possession of the witness? It it was furnished down to that time, and was the only a copy why did he not so say and foldefendant discharged from further liability low up with the proof in the usual and to complete the job, as he now contends, or proper way? We will not consider Exhibit was it given, as defendant claims, on condi- "A" as evidence in the case. tion that the plaintiff was thereafter to com- The defendant also called Mr. McKisplete the job according to his contract, sock, a plumber, who testified that it would which note, when paid, was to operate as a cost about $300.00 to complete the plumbfull payment of the plaintiff's contract price? ing work. There is evidence by the The question grows out of what actually defendant's husband that he notified the took place at the time of giving the note, at the defendant's home in Bellevue, on that evening.

There were four persons then present, being the plaintiff, Mr. Morton who ac

plaintiff to complete the job. In addition to the evidence of the plaintiff and Morton that the note was given in full settlement to that time, and the plaintiff released from further obligation under his contract, the