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tofore been distributed in due form to the agree to do; but they ought not to be parties entitled thereto and are not subject charged by strained construction, and on to the lien of said bond. That the remain-doubtful conjecture;" Weaver v. Shryock, ing surety, John W. Steacy, died on the 2nd [6 S. & R. 264.

day of March, 1917, and that the obligation That the sureties on the bond in question of said bond will, at an early date, cease to are all dead, and that the principal obligor be a lien upon the real estate of said last is cognizant of that fact, is made plain to named surety." the Court by the admissions made in the answer filed in response to the averments contained in the relator's petition.

It is also plain that no liability under the bond now exists, for which the sureties could be held liable. From those obvious facts, and from an inspection of the bond itself, the contract mentioned in the bond is

6. The prayer of the petition is "That the Hanover and McSherrystown Street Railway Company, defendant in the said proceeding, be ordered and decreed to enter into and file with * * (this) Court, a bond with surety or sureties to be approved by the Court, conditioned to indemnify and save harmless your petitioner, the successor an executory one; and the liability is yet to of the plaintiff in the above lien, against all arise which could hold any of the sureties suits, actions, claims, demands and damages on the bond or their estates liable. That by all persons on account of any accident at the estates of the deceased sureties have been either of said crossings occasioned by the disposed of by actual distribution under neglect of the defendant, its officers, agents legal process and by will, are matters of or employees, said bond to be in the sum of record of which this Court has official twenty thousand dollars." knowledg. We are, therefore, of the opinion that the liability of each of the deceased

7. The defendant's answer does not deny the averments of plaintiff's peti- sureties on the bond was terminated by tion, but says, that the estates of the said death; and the personal representatives or deceased sureties have not been so distri- the estates of said deceased sureties could buted that the obligation which they signed not be held under the present contract as sureties has ceased to be a lien upon the when viewed by the facts of this case; 32 real estate bound by it. Cyc. p. 85, pl. 6; Slagle & Co. v. Ambrose et al., Executors, 1 Mons. 30; Weaver v. Shryock, 6 S. & R. 262; Stoner v. Stroman, 9 W. & S. 85; United States v. Eli R. Price, 50 U. S. 82; Guy v. Ward et al., (Conn.) 34 Atl. 1025; Eben D. Jordan v. Elizabeth Dobbins, Admrs. (Mass.) 122 Mass. 168; Coulthart V. Clementson, (Eng.) V Queen's Bench 42.

The answer also denies the right of this Court to require it to file another bond under the facts.

The argument advanced in support of the second contention is, that under the 12th section of Article V of "the Public Service Company law," approved June 26, 1913,

In support of the first proposition the defendant argues through its counsel, "that there is an engagement here to indemnify what may at any time occur, and that this engagement extends to the representatives of the sureties." An endeaver is made to support this argument by several cited authorities. Those citations are not deemed applicable to the circumstances of the present case. They tend to establish the principle P. L. 1408, this Conrt has no jurisdiction that where a person becomes a guarantor to determine the present contention. That that a contractor or covenantor will perform section reads as follows: Except in cases in a definite and well defined thing for con- which grade crossings are in process of abolisideration in a specified time, and fails in tion at the time of the passage of this Act, the performance of his promise, the surety under agreement or contract with a munior his estate may be held liable for the cipality, as set forth in the proviso of section known and estimated amount of loss. five of article three of this act, the commission shall have exclusive power to dete mine, order and prescribe, in accordance with plans and specifications to be approved by it, the just and reasonable manner, including the particular point of crossing, in which trakts or other facilities of any public service company may be constructed across the tracks or other facilities of any other public

The case now being considered involves no past or present actual claim during the life of the bond nor does it involve any credit which could have been obtained be cause of the names on the bond as sureties. "Sureties are viewed with a favorable eye, both in law and equity. They should be held to the performance of what they clearly

service company at grade or above, or below it excepted from the operation of the act the grade, or at the same or different levels; or abridgement or impairment of any of the in which the tracks or other facilities of any obligations, duties or liabilities of any public railroad corporation or street railway cor-service company in equity or under the exporation may be constructed across the istent common or statutory law of the comtracks or other facilities of any other railroad monwealth, when it provided in Section 29 corporation or street railway corporation, of the same Article that "such obligations, or across any public highway, at grade, or duties, and liabilities shall be and remain as above or below grade; and to determine, heretofore. "And * * *nothing in this order and prescribe the terms and conditions act contained shall in any way abridge or of installation and operation, maintenance alter the existing rights of actions or remeand protection of all such crossings which dies in equity or under the common or may now or hereafter be constructed, in-statutory law of the Commonwealth, it becluding the stationing of watchman thereat, ing the intention that the provisions of this and the installation of lights, block or other Act shall be cumulative, and in addition to system of signaling, safety appliances, devices, such rights of action and remedies;" P. L. or such other means or instrumentalities as 1419.

may to the Commission appear reasonable There is no request now to have any of and necessary to the end, intent and purpose the requirements of the decree made in this that accidents may be prevented and the case abridged, or altered, and nothing is safety of the public promoted. No such requested which would tend to change excrossing shall be constructed without the isting actions or remedies in equity; but we approval of the commission, evidenced by its are only asked to do that, which in effect, 'Certificate of Public Convenience,' as pro- would be an enforcement of the terms of vided in section five of Article three of this the decree of the court of equity, made on Act; but in no case shall the approval or the 30th of August, 1893. That there can consent of any court, board, or other com- be no lack of equity in this proceeding, is mission or officer, or of any municipality, be evidenced by the fact that a similar request necessary therefore. was made by the defendant to this Court on the 1st day of March, 1909, and was granted without any objection by the plaintiff, when the bond with sureties as originally approved by the Court was changed by the substitution of the sureties who are now all dead and, as we have before observed, are no longer liable for the fulfilment of the terms of the decree.

"It shall be proper, however, for the commission, by general rule or order, whenever the same can be properly regulated by suitable general rule, to prescribe the terms and conditions under which such crossing may be constructed, operated, maintained, or protected without the particular approval of the Commission." *

The act (Sec. 12) also says the commis- It is deemed just and equitable, that the sion shall have exclusive power to order prayer of the petition be granted and there"any crossing aforesaid, now existing or fore the rule granted is hereby made hereafter constructed" "to be absolute. relocated or altered, or to be abolished,"

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In such a case the testimony of the defendant whether she recognized it. Upon her ansthat she was not indebted to the estate of the decedent is incompetent, since such testimony would relate to transactions between the witness and the

decedent, and fall within the provisions of the

wering in the affimative, counsel for the defendants requested an offer. Whereupon counsel for plaintiff stated: "The note is admitted, but the purpose for which it was given is denied. I want to show the purpose for which the note was given; that is,

Act of 1887.

Rule for new trial.

E. H. Deysher and Earle I. Koch for de- the consideration. We offer to show that fendants and rule. the considertion, $950, so expressed in the note, was given as the balance due on some purchase money for a farm situated in Caernarvon township, which the parties admit to have purchased, and for which a deed was given by Moses Beam." To this defendants objected, assigning a number of reasons, one of which was that "Moses Beam, one of the parties to the transaction, is dead, and therefore, the witness is incompetent," under Act of May 13, 1887, Sec. 5, (E), P. L. 159.

The giving of this note was a transaction between this witness and the defendants, and not between Moses Beam and the detendants. This witness was, therefore, competent to testify to that which, at the time of the giving of the note, was stated by them to be its consideration. The objection of counsel was to the offer to show the consideration, and not to the form of the question which followed the overruling of the objection to the offer. It was only when plaintiff's counsel (p. 2 N. of T.) asked the witness what conversation she had with Ella Richard that there was an objection to

Silas H. Rothermel for plaintiff.

October 15, 1917. WAGNER, J.-This is an action brought by Elizabeth Beam, as executrix, against the defendants, upon a promissory note for $950, dated March 31, 1915, made payable to her individually. The statement avers that this note was given by defendants on account of a sum which was due and owing the decedent, Moses Beam, by the defendants at the time of his death for land conveyed and sold by him to Ella Richards, in her lifetime.

One of the reasons advanced at the trial as a defense to the suit and argued as a reason for a new trial, was that the note was made to the plaintiff in her individual capacity and not as an executrix of the estate of Moses Beam, deceased, and that therefore this action by her as personal representative could not be maintained.

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It is plain from the pleadings in this case, together with the evidence thereon, that the fruits of a recovery on this promissory note will be assests of the estate of Moses Beam, deceased. In 18 Cyc. pp. 874, 875, we the question asked. This evidence was have this: "The rule seems to be well settled clearly admissible as showing admissions to that if the fruits of the recovery will be as- the witness, the personal representative sets the representative may declare either in of the deceased, of indebtedness as bearing his representative capacity or in his own upon the consideration for which subsename. This rule applies equally whether quently the note in question was given. the action is on tort or contract, and wheth- Her testimony was that she and Ella Richer the consideration flows from the decedent ard went to Mr. Friday's (an attorney) ofor the representative." The rule thus stated fice to get a settlement from her (Ella Richapplies to actions on notes: see supra. In ard) of the balance due from her on the Boggs, administrator of Boggs v. Bard and land conveyed by the decedent during his others, executors of Johnson, 2 Rawle 102, lifetime. That they were both agreed to it is held: "Where the debt to be recovered have a note or mortgage drawn up for is assets, the plaintiff may name himself ad- $1,000, that being about the amount agreed ministrator, and sue as such on contract to be due. That if subsequently it was demade by him;" see also Peries v. Aycinena, termined that this amount was more than 3 W. & S. 64. This defense to the action the indebtedness, that then Mrs. Beam was cannot, therefore, be sustained. to pay her the balance between the $1,000 for which the mortgage or note was given and the amount due. But if this note or mortgage for $1,000 was not sufficient to cover the indebtedness of the defendants, then the defendants were to pay to the witness the amount of the indebtedness which

Defendants assign as a reason for a new trial error in admission against defendants' objection, of the evidence of Elizabeth Beam as to the consideration of this note. On page 1, N. of T., counsel for plaintiff handed the note to the witness and asked her

Work Legal Record

Vol. XXXI

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QUARTER SESSIONS

Lehigh Co.

Roth's Petition

Detective-Proof Required-Act of May 23, 1887, P. L. 173.

was more than the amount of $1,000. That subsequently, upon the husband refusing to sign the papers which had been drawn up in Mr. Friday's office, Mrs. Richard figured up and determined the amount due, and that then the promissory note in question for $950 was delivered by defendants to this plaintiff. An examination of her evidence shows that it was limited to the trans-j action between the plaintiff and the defend- October 15, 1917. GROMAN, P. J.ants, and related to the consideration for Clinton W. Roth on September 5th, 1917, which the note was given. It was, there- filed his application for a license to conduct fore, not incompetent under the Act of 1887. the business of a detective under the provi

Another matter alleged as error is that sions of the Act of May 23rd, 1887, P. L. the Court sustained the objection to this 173. The Act provides that it shall and question put to Mrs. Richard (N. of T., may be lawful for the Court of Quarter p. 29): "State whether or not you were in- Sessions to issue a license upon payment of debted to your father's estate in the sum of a fee of Twenty-five ($25.00) Dollars, for $950 for real estate purchased from him?" the use of the county; the license to extend That question as it stood related not to the for the period of three years; to be revocable occurrences of the time when this note was at all times by the court upon cause shown; signed, but to transactions between the de- no license to be granted until satisfactory cedent and this witness as a defendant, and proof of competency and integrity of the consequently was not admissible under said petitioner be made to the court; and a bond Act of 1887. Her evidence was excluded in the sum of Two Thousand ($2,000) only as it bore upon the transactions be- Dollars conditioned for the faithful and tween her and her father. When she was lawful performance of the duties of the questioned as to what she had said in Mr. appointment be given and executed by the Friday's office with reference to an indebt- petitioner. Under the terms of the bond edness to her father's estate there was no any person injured or aggrieved by any unobjection, and her evidence was admitted. lawful act of the detective may bring suit She testified that she had not there said that thereon. The application was duly advershe was indebted to her father's estate or tised as required by the provisions of the that this note was given upon and in conseAct, and the matter came up for hearing on October 8th, 1917. quence of an indebtedness by her to her From the testimony father's estate. She testified that the conthen submitted by the petitioner and now sideration for the note was farm stock reon file in this proceding it appears petitioner ceived or to be received to the extent of is a reputable citizen of Allentown, Penn$950 from the plaintiff individually, and sylvania, and a man of large family. He that by reason of the return of the farm is at present employed as a flagman by the stock to plaintiff, the indebtedness represent- Philadelphia and Reading Railway Comed by the note was wiped out. We do not pany, earning One Hundred ($100.00) consider that there was any error in exclud- Dollars per month, with opportunities for ing her evidence bearing upon the transac- the court by the petitioner that eventually advancement. The assurance was given to tion between her and her father. he expected to retire from the railroad service, and give his entire time and attention to the duties of the business of a detective.

Reasons for new trial discharged.

Affirmative and convincing proof ought to be furnished to the Court that the applicant for a detective license has the proper qualifications.

In re Petition of Clinton W. Roth for a license to conduct the business of a Detective.

Horace W. Schantz for Petitioner.

During the last October sessions of criminal court, a constable, who was also a detective licensed by this court, plead guilty to extortion, and was sentenced to pay a fine of Twenty-five ($25.00) Dollars, costs and

undergo imprisonment in the Lehigh county Judge Halsey, of Luzerne County, in Re jail for the period of six months; imprison- Application of Fierro for a detective license, ment suspended. The court immediately 12 Luzerne Legal Register Reports, Page issued a rule on the detective referred to to 278, in an opinion filed May 6th, 1904. show cause why the license issued by this took the same view of the application for a court should not be revoked. On October license as heretofore expressed by Judge 8th last at a regular session of this court an Endlich. application for a license was withdrawn by Judge Bregy, in the Court of Quarter the petitioner who held a license for the last Sessions of Philadelphia County, in Re three years, after a number of witnesses were Dickerson's Petition for a license as detecsubpoenaed in opposition to the issuing of a tive, 5 Lackawanna Jurist, Page 292, on license, and before hearing had. The court January 8th, 1904, in an opinion therein was thus led to investigate the construction filed, uses the following language: "It is laced on the Act by other courts in the true the certificate of citizens attached tate. Judge Endlich, of Berks County, in to the petition is intended to supply the reSmith's Petition, 5 District Reports, Page quirement of the act, to furnish to the court 467, in an opinion filed January 20th, 1896, "satisfactory proof of the competency and uses the following language: "The applicant integrity" of the person applying. It is the for a new license, under the Act of 1887, court that is to be satisfied. The opinion of ought to furnish affirmative and convincing the others, as expressed by their signatures proof (to be weighed in connection with the being to a paper, is not to me "satisfactory judge's personal knowledge and observation proof." In an opininion written by me in of the applicant; Raudenbusch's Petition, 1895 I expressed the same thought, in al120 Pa. 328, 342; Kelminski's License, 164 most similar language. See Burnett's ApPa. 231) that he is a person experienced in plication, 5 Dist. Reps. 3; also Smith's the essentials of the business he proposes to Petition, 5 Dist. Reps. 465. What was engage in, acquainted with the methods and there decided is now reaffirmed." habits of criminals, familiar with the privileges and duties of officers charged with their pursuit and arrest, possessed of the requisite courage, moderation, coolness and integrity to act judiciously and efficiently in trying situations, mindful of the rights of citizens and the extent and limitations of the powers of peace officers, and that he is a person of unblemished character, free from objectionable habits and degrading associations, above the suspicion of having been or becoming implicated in blackmailing schemes or the bringing of prosecutions for the purpose of settlement and extortion, discreet, honest, truthful and reliable. The licensing of such a person can be of no menace to the public. The licensing of any other sort can never be a public necessity, nor supposed to have been intended by the legislature. An applicant for the renewal of a detective's license ought to furnish similar proof that, during the term of his expiring license, he has come up to the above requirements, both September 22, 1917. LANDIS, P. J.affirmative and negative. His license has On July 29, 1917, the defendant was heard not made him an officer of the court, and on a charge of desertion, and he was thereon the latter cannot, therefore, be presumed to sentenced to pay his wife, Eleanor Rodman, have official knowledge of the facts concern- for the support of herself and her minor ing him. There is no provision in the statute child, Mabel Rodman, the sum of three for relicensing without inquiry. Every ap- dollars per week. He now asserts that, on plication is a new one as regards the neces- April 23, 1917, he was divorced in the sity of proof of competency and integrity.". Court of Common Pleas of this county from

The foregoing cited authorities indicate the construction placed upon the Act of 1887 by this court, and the practice to be followed in applications for a license for the purpose of conducting the business of a detective.

1

The testimony submitted in this application does not meet the requirements of the act so as to entitie the petitioner to a license. The testimony adduced is very creditable to the petitioner, but the proof does not go far enough. Application denied.

Q. S. of,

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Lancaster Co.

Com. v. Rodman Maintenance for wife and child -When will be modified after divorce.

Rule to revoke decree for maintenance.
John A. Nauman, for rule.
B. F. Davis, contra..

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