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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. Steaky, 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 6. The prayer of the petition is "That I answer filed in response to the averments the Hanover and McSherrystown Strect contained in the relator's petition. Railway Company, deícndant in the said It is also plain that no liability under the proceeding, be ordered and decreed to enter bond now exists, for which the sureties into and file with * * (this) Court, a bond could be held liable. From those obvious with surety or sureties to be approved by facts, and from an inspection of the bond itthe Court, conditioned to indemnify and self, the contract mentioned in the bond is 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 surcties 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 7. The defendant's answer does not that the liability of each of the deceased 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 The answer also denies the right of this et al., Executors, i Mons. 30; Weaver v. Court to require it to file another bond Shryock, 6 S. & R. 262; Stoner v. Stroman, under the facts.

9 W. & S. 85; United States v. Eli R. In support of the first proposition the Price, 50 U. . S. 82; Guy v. Ward et al., defendant argues through its counsel, "that (Conn.) 34 Atl. 1025; Eben D. Jordan v: there is an engagement here to indemnify Elizabeth Dobbins, Admrs. (Mass.) 122 what may at any time occur, and that this Mass. 168; Coulthart v. Clementson, engagement extends to the representatives (Eng.) V Queen's Bench 42. of the sureties." An endeaver is made to The argument advanced in support of the support this argument by several cited auth- second contention is, that under the 12th orities. Those citations are not deemed ap- section of Article V of "the Public Service plicable to the circumstances of the present Company law," approved June 26, 1913, case. They tend to establish the principle / P. L. 1408, this Conrı has no jurisdiction that where a person becomes a guarantor to determine the present contention. That chat 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 commis

The case now being considered involves sion shall have exclusive power to dete i mine, no past or present actual claim during the order and prescribe, in accordance with life of the bond nor does it involve any plans and specifications to be approved by it, credit which could have been obtained be the just and reasonable manner, including cause of the names on the bond as sureties. the particular point of crossing, in which "Sureties are viewed with a favorable eye, trakts or other facilities of any public service both in law and equity. They should be company may be constructed across the held to the performance of what they clearly I tracks or other facilities of any other public

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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 ex-
poration may be constructed across the listent common or statutory law of the com-
tracks 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 poblic 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 reme-
and 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 be-
cluding 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 uch 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 ex-
crossing 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
Nocessary therefore.

was made by the defendant to this Court on "It shall be proper, however, for the com- the ist day of March, 1909, and was granted mission, by general rule or order, whenever without any objection by the plaintiff, when the same can be properly regulated by suit- the bond with suretics as originally approved able general rule, to prescribe the terms and by the Court was changed by the substituconditions under which such crossing may tion of the sureties who are now all dead be constructed, operated, maintained, or and, as we have before observed, are no protected without the particular approval of longer liable for the fulfilment of the terms the Commission."

of the decree. 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 perition 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,"

C. P.

Berks Co. The same section provides for "compensa

Beam v. Richard et al. tion for damages which the owners of ad- Promisory Notes-Suit by Executrix--Evijacent property taken, injured, or destroyed,

dence-Competency. may sustain in the construction, relocation, alteration, or abolition of any such crossing made to her individually by a debtor of the es

Where an executrix accepts a promissory note specified in this section.”

tate, she may sue upon the note either individualA diligent perusal of that section fails to ly or as executrix. sustain the respondent's contention.

Where the subject of a suit is a promissory note The decree, upon which the relator's ap- given by defendant to an executrix in payment of plication is now made and is based upon was cutrix is competent to show the consideration by

a debt due the decedent, the testimony of the exemade August 30th, 1893. It is a mandatory staring what was said to her by the defendant au order which issued out of a Court of Equity the time the note was given. The Act of 1887 and has been in force ever since. It is does not apply, as the giving of the note was a

transaction between the witness and the defendreasonable to believe that it is such a con

ants, and not between the decedent and the dedition as the legislature apprehended when fendants.

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In such a case the testimony of the defendant whether she recognized it. Upon her ans. that she was not indebted to the estate of the de; wering in the affimative, counsel for the decedent is incompetent, since soch testimony would relate to transactions between the witness and the

fendants requested an offer. Whereupon decedent, and fall within the provisions of the counsel for plaintiff stated: “The note is adAct of 1887.

mitted, but the purpose for which it was Rule for new trial.

given is denied. I want to show the pur

pose for which the note was given; that is, E. H. Deysher and Earle I. Koch for de- the consideration. We offer to

how that fendants and rule.

the considertion, $950, so expressed in the

note, was given as the balance due on some Silas H. Rothermel for plaintiff.

purchase money for a farm situated in October 15, 1917:

WAGNER, J.-- This Caernarvon township, which the parties is an action brought by Elizabeth Beam, as admit to have purchased, and for which a executrix, against the defendants, upon a deed was given by Moses Beam.” To this promissory note for $950, dated March 31, defendants objected, assigning a number of 1915, made payable to her individually reasons, one of which was that “Moses The statement avers that this note was given Beam, one of the parties to the transaction, by defendants on account of a sum which is dead, and therefore, the witness is incomwas due and owing the decedent, Moses petent,” under Act of May 13, 1887, Sec. 5, Beam, by the defendants at the time of his (E), P. L. 159. death for land conveyed and sold by him to The giving of this note was a transaction Ella Richards, in her lifetime.

between this witness and the defendants, One of the reasons advanced at the trial and not between Moses Beam and the deas a defense to the suit and argued as a rea- tendants. This witness was, therefore, son for a new trial, was that the note was competent to testify to that which, at the made to the plaintiff in her individual ca- time of the giving of the note, was stated by pacity and not as an executrix of the estate them to be its consideration. The objecof Moses Beam, deceased, and that there- tion of counsel was to the offer to show the fore this action by her as personal representa- consideration, and not to the form of the tive could not be maintained.

question which followed the overruling of It is plain from the pleadings in this case, the objection to the offer. It was only when together with the evidence thereon, that the plaintiff's counsel (p. 2 N. of T.) asked the fruits of a recovery on this promissory note witness what conversation she had with will be assests of the estate of Moses Beam, Ella Richard that there was an objection to 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 Defendants assign as a reason for a new for which the mortgage or note was given trial error in admission against defendants' and the amount due. But if this note or objection, of the evidence of Elizabeth Beam mortgage for $1,000 was not sufficient to as to the consideration of this note. On cover the indebtedness of the defendants, page 1, N. of T., counsel for plaintiff hand- then the defendants were to pay to the wited the note to the witness and asked her ness the amount of the indebtedness which

Vol. XXXI

No 38.

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QUARTER SESSIONS
Work Legal TRecord

Q. S. of

Lehigh Co. THURSDAY, JANUARY 31, 1918.

Roth's Petition was more than the amount of $1,000. That Detective-Proof Required Act of May subsequently, upon the husband refusing to

23, 1887, P. L. 173. sign the papers which had been drawn up in Mr. Friday's office, Mrs. Richard figured Affirmative and convincing proof ought to be up and determined the amount due, and furnished to the Court that the applicant for a

detective license has the proper qualifications. that then the promissory note in question for $950 was delivered by defendants to

In re Petition of Clinton W. Roth for a this plaintiff. An examination of her evi- license to conduct the business of a Detective. dence shows that it was limited to the trans- Horace W. Schantz for Petitioner. 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 no‘e 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

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

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 conse- Act, and the matter came up for hearing on quence of an indebtedness by her to her

October 8th, 1917. From the testimony father's estate. She testified that the

then submitted by the petitioner and now sideration for the note was farm stock re

on 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, carning 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

advancement. The assurance was given to tion between her and her father.

the court by the petitioner that eventually Reasons for new trial discharged.

he expected to retire from the railroad service, and give his entire time and attention to the duties of the business of a detective.

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

was

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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 Pétition for a license as detec-
subpoenaed 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 curts in the true the certificate of citizens attached
tate. Judge Endlich, of Berks County, in to the petition is intended to supply the re-
Smith'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 languag: "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 al-
120 Pa. 328, 342; Kelminski's License, 164 most similar language. See Burnett's Ap-
Pa. 231) that he is a person experienced in plication, 75 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 privi- The foregoing cited authorities indicate
leges and duties of officers charged with the construction placed upon the . Act of
their pursuit and arrest, possessed of the re- 1887 by this court, and the practice to be
quisite courage, moderation, coolness and followed in applications for a license for the
intégrity to act judiciously and efficien:ly in purpose of conducting the business of a
trying situations, mindful of the rights of detective.
citizens and the extent and limitations of The testimony submitted in this applica-
the powers of peace officers, and that he is a tion does not meet the requirements of the
person of unblemished character, free from act so as to entitie the petitioner to a license.
objectionable Habits and degrading associa- The testimony adduced is very creditable to
tions, above the suspicion of having been or the petitioner, but the proof does not go far
becoming implicated in blackmailing schemes enough.
or the bringing of prosecutions for the pur- Application denied.
pose of settlement and extortion, discreet,
honest; truthful and reliable. The licensing Q. S. of,

Lancaster Co. of such a person can be of no menace to the

Com. v. Rodman public. The licensing of any other sort can Maintenance for wife and child - When never be a public necessity, nor supposed to

will be modified after divorce. have been intended by the legislature. An

Rule to revoke decree for maintenance. applicant for the renewal of a detective's license ought to furnish similar proof that, John A. Nauman, for rule. during the term of his expiring license, he

B. F. Davis, contra.. 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

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

per week.

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