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. has de...Six . Dollars.

SECOND. "On the 13th day of July, and that any balance remaining upon the 1916, Jerry Waltrick deposited his own death of either shall belong to the survivor. moneys to the amount of Six Hundred Jere Waltrick..... ($600.00) Dollars, in the Western National posited in this Bank. Bank, a Corporation of the United States Hundred Dollars... of America, doing a general banking business in the City of York, in the County of York aforesaid, and then and there received from the said Western National Bank a certificate of deposit, a true copy whereof and of all the endorsements thereon is attached to this statement and made part hereof.

THIRD. "After the death of Jerry Waltrick and before the probate of his last will, on, or about the 5th day of March, 1917, at the City of York, in the County of York and State of Pennsylvania, the defendant, Harry A. Hockensmith, presented the within mentioned certificate of deposit at the banking house of the said Western National Bank and then and there wrongfully and unlawfully received from the said bank the sum due upon the said certificate, to wit, Six Hundred ($600.00) Dollars, deposited and Ten ($10.50) Dollars and Fifty Cents, interest, thereon, said sum of money being then and there the property of the estate of Jerry Waltrick, deceased, and not the property of the said Harry A. Hockensmith, and thereafter wrongfully and unlawfully converted the said sum of money to the use of him, the said Harry A. Hockensmith, and though often requested to pay the said sum to the plaintiff, he always, and still does, wrongfully and unlawfully refuse

so to do.

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Payable to the order of self or
Harry Hockensmith on return of
this certificate properly endorsed.. $600 00
10.50
CHAS. H. EMIG,
for Cashier.
Thirty days notice must be given for the
withdrawal of this deposit.

Interest 3 per cent. per annum if left 6 months.

Interest 3 per cent. per annum if left 12 months.

Not subject to check. (Endorsed)

HARRY HOCKENSMITH.

The affidavit of defence admits the matters set forth in paragraphs one and two of the statement but denies the matters set forth in the third paragraph, as follows:

"THIRD: The Defendant denies the matters set forth in Paragraph "Third" of the Plaintiff's statement, and for answer thereto specifically avers:

"(a) That Jerry Waltrick, the decedent mentioned in the plaintiff's statement, on the 13th day of July, 1916, requested the defendant to accompany him to the place of business of the Western National Bank in the City of York, Pa., the corporation mentioned in the Plaintiff's statement, for the purpose of providing suitable compensation to him, the defendant, for the care and support which he, the defendant, had provided for him, the said Jerry Waltrick, continuously throughout the previous period of three or more years, during which the said Jerry Waltrick had resided with the defendant.

"(b) That the defendant as requested accompanied the said Jerry Waltrick to the Banking house aforesaid, whereupon the said Jerry Waltrick proposed to deposit the sum of Six Hundred Dollars with said Bank on condition that the said Defendant was to have the absolute ownership of said fund, subject to the provision that the Defendant was to pay the funeral expenses of the said Jerry Waltrick upon the happening of his death.

"(c) That the said Jerry Waltrick did deposit and the said Bank thereupon received from the said Jerry Waltrick the aforesaid deposit of Six Hundred Dollars and issued

its certificate of deposit for said sum, pay-ceived no other compensation than the aforeable to the order of himself, the said Jerry said certificate of deposit or the proceeds. Waltrick, or Harry Hockensmith, the de- thereof. fendant, upon the terms which appear by the copy of said certificate of deposit set forth in Plaintiff's statement.

"(h) The Defendant specifically denies as averred by the Plaintiff that he wrongfully and unlawfully received from said Bank the sum due on said certificate of deposit, to wit, Six Hundred Dollars deposited and Ten Dollars and Fifty Cents interest thereon.

"(d) That immediately after the said Bank had received said deposit and issued said certificate of deposit, in furtherance of the said Jerry Waltrick's intention to pay of money was then and there the property "(i) The Defendant denies that said sum the defendant for the care and support, which he, the defendant, had accorded the said of the estate of Jerry Waltrick, deceased, Jerry Waltrick, and for his funeral expenses, and not the property of said Defendant, but which he, the defendant, should subsequently, on the other hand avers that said certificate upon the death of the said Harry Waltrick, of deposit and the money due thereon was defray he, the said Jerry Waltrick, delivered by reason of the terms of the certificate itto the defendant, said certificate of deposit as and for the defendant's own property.

"(e) That the defendant thereupon on said 13th day of July, 1916, received said certificate of deposit from said Jerry Waltrick, for the purposes above mentioned and held the same until the time of the death of said Jerry Waltrick, which occured on the third day of March, 1917, and thereafter on or about March 5th, 1917, he presented said certificate of deposit to said Western National Bank for payment and received the amount due thereon, to wit: Six Hundred Dollars and Ten Dollars and Fifty Cents

interest.

both by the bank and the said Jerry Waltrick, the property of him, the defendant.

self and delivery thereof to the defendant,

"(j) The Defendant denies that he wrongfully and unlawfully converted said snms of money to his own use, but affirmatively avers that he applied the necessary part thereof, to wit, the sum of One Hundred and Seventy Dollars and Twenty-eight cents to the payment of the funeral expenses of the said Jerry Waltrick as he had previously agreed, and the remainder thereof he applied on account of the services, boarding and lodging, which he had previously furnished to the said Jerry Waltrick, as agreed upon between the said Jerry Waltrick and the defendant, as more particularly above set forth."

"(f) That the defendant applied so much of said proceeds as was necessary to pay the funeral expenses of the said Jerry Waltrick, From the pleadings must be observed, that to wit, the sum of One Hundred and Seventy this controversy is between two executors of Dollars and Twenty-eight Cents and the re- the same estate; there is nothing before ust mainder thereof he applied towards the pay-to indicate that any rights of creditors or of the care and support which he, the de- heirs of the deceased depend in any way fendant, had theretofore furnished to the said Jerry Waltrick, during a previous period of about four years, which was in accordance

Waltrick and the defendant, and agreeably with the agreement between the said Jerry to the delivery of said certificate of deposit to the defendant.

upon the outcome of the present contention.

The direct charge in the plaintiff's stateCourt to believe that the plaintiff as exment, is a charge of fraud. There is nothing in the proceedings which would induce the ecutor of the decedent's estate has any better rights to the custody of the money than the "(g) That said Jerry Waltrick was par-defendant has as such trustee. tially blind and required unusual care and The plaintiff says in his statement that attention and said services and his boarding the defendant "wrongfully and unlawfully and lodging for a period of about four years received from the bank the sum due upon during which the said Jerry Waltrick lived the said certificate, said sum

continously with the defendant, and during of money being then and there the property which the said services, boarding and lodg- of the estate of Jerry Waltrick, deceased, ing were furnished to the said Jerry Wal- and not the property of the said Harry A. trick, without interruption, were of great Hockensmith, and thereafter wrongfully and value, to wit, of the value of about One unlawfully converted the said sum of money Thousand Dollars, and for which services, to the use of him, the said Harry A. Hockboarding and lodging, the defendant re- ensmith."

That allegation is not made clear by any-Leith v. Diamond Nat. Bank, 234 Pa. 557, thing else in the statement and could only L. R. A. 1916 E, (note III, page 291). be regarded as an assumption or conclusion It is plain, that the affidavit of defence

of the plaintiff if it were not for the light will require proof by the plaintiff of the which the affidavit of defense throws upon | matters alleged in his statement.

it. The defendant's supplemental affidavit The motion for judgment for want of a of defense says, that, "The said Jerry Wal-sufficient affidavit of defence is, therefore, trick proposed to deposit the sum of six hun-overruled. dred dollars with the said bank on condition that the said defendant was to have the absolute ownership of the said fund, subject to the provision that the defendant was to pay the funeral expenses of the said Jerry Waltrick upon the happening of his death.

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"That immediately after the said bank had received said deposit and issued said certificate of deposit, he, the said Jerry Waltrick, delivered to the defendant the said certificate of deposit as and for the defendant's own property."

The plaintiff's contention seems to be based upon the assumption that because the money represented by the certificate of deposit was not drawn out of the bank in the lifetime of the decedent, it thereupon became a part of the decedent's estate; and construing the language of the qualifying clause which appears on the certificate of deposit to suit his own theory, concludes that the effect of the clause resulted in a gift contingent on the death of the donor.

C. P. of

Schuylkill Co.

Com. ex rel. v. Sitler.

Tax Collector-Vacancy-Appointment of
Successor-Release of Surety.

When the court appoints one to fill an alleged vacancy in the office of tax collector and lacks such power the appointment so made will not oust the elected collector nor release the sureties on

his bond.

Rule to set aside fi. fa.
J. O. Ulrich for rule.
A. L. Shay, contra.

December 10, 1917. KOCH, J.-Judgment was entered at No. 328, May Term, 1916, on a bond given by Clinton E. Sitler, collector of taxes of the Borough of Tamaqua, and a writ of fi. fa. to No. 10, September Term, 1917, was issued on said judgment to collect from Sitler and his bondsmen $1379.17 due to the Borough of Tamaqua upon the tax duplicate issued to said C. E. Sitler in the year 1913, and another writ of fi. fa. was issued to No. 11, September Term, 1917, to collect $3779.19 due to the County of Schuylkill for taxes due to it on the same duplicate. W. A. Sitler, one of the sureties on the bond, now asks us to set aside these executions. C. E. Sitler, by virtue of his office and the placing of said duplicate in his hands, was authorized to collect the taxes levied and assessed for borough and county purposes in the year 1913. In the neighborhood of two years These conflicting theories and facts as and upwards after Sitler got said duplicate, stated by the pleadings, render it impossible he left for parts unknown and was later for a Judge to decide from the pleadings charged with embezzlement, located in alone. Technically, under the plaintiff's Oregon, arrested, brought back, indicted, theory, the conditions as they are now pre- tried, convicted and sentenced to jail. In sented, might be made, by subsequent in- his absence, and, before his apprehension, vestigation and legal testimony, to establish his bondsmen petitioned our court to appoint a gift conditioned on the death of the donor, one of their number to fill the office of colwith no delivery in the lifetime; but that, lector of taxes in said borough, and one under the affidavit of defense, is in dispute. "A gift in the lifetime of the donor may be found by the triers of fact, and may be proved by the declarations of the donor;

On the other hand the defendant clearly states a contract between decedent and himself in the lifetime of the decedent.

A delivery of the money in his lifetime as a consideration.

George M. Krell was appointed in September, 1915. Sitler was also authorized to collect the taxes levied and assessed for the years 1914 and 1915. When he left for

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negligence caused a loss to the defendant, plaintiff would be liable to him for such loss." HELD, not to be error.

An instruction that the bank could not be held liable under any and all circumstances for failure to foreclose these mortgages, but would be held only to the exercise of such care of the collateral as a man of ordinary prudence would give to important affairs of his own, was as favorable to the plaintiff as the rules of law would permit. No. 4, October Term, 1917.

Motions for new trial and for judgment. non obstante veredicto.

D. H. Yost and Niles Neff for motion. S. B. Meisenhelder and Jas. G. Glessner, contra.

the west, his brother remained as his deputy in charge of the office and this court had no authority whatever to appoint Krell under the circumstances. The petitioner, who is the father of C. E. Sitler, now seeks to avoid his own liability on the bond, claiming that Krell's appointment released him and all the other sureties on the bond. Since neither the court nor any member of it had any authority whatever to appoint Krell and thereby virtually oust Sitler, such appointment would not release the sureties on Sitler's bond. Krell, being unlawfully in office, cannot reap the benefits of it and his work may was admitted at the trial of this case that April 8th, 1918. WANNER, P. J.-It prove fruitless to him, if Sitler avails him- the amount of principal and interest due on self of his legal rights in the premises. the notes in suit was $9805.27. Against The taxes stated in his duplicate for 1913 this defendant claimed a set-off of $3041.36, should have been fully accounted for by said sum being the proceeds of sale by the Sitler long before he absconded. Reports plaintiff, of thirty-three shares of City Bank of auditors are conclusive, unless appealed stock which he alleged that the plaintiff had from; Commonwealth v. Keenan, 31 Sup- held as collateral to secure payment of one erior Court 586. The executions were of the notes in suit, but which the Bank Issued upon proper certification of the amounts due and no writs of scire facias the notes which it held against the defendcontended was a general collateral for all

were needed to ascertain the amounts. The rule is discharged.

City Bank v. Reiker.

ant.

The defense made to the remainder of the plaintiff's claim was, that the defendant on April 6th, June 28th, and August 6th, 1916, had notified the plaintiff's cashier to foreclose two mortgages for $7000.00 and

Collateral Security -Liability of Holder-$10,000.00 respectively, which were then Depreciation.

Plaintiff was the holder of two notes against defendant, as collateral security for which it held two mortgages against a third party, of which defendant was the legal owner, and which mortgages, by reason of the depreciation of the land which they covered, were worthless. Defendant offered evidence to show a notice to

plaintiff by him, to foreclose the mortgages, and claimed a loss, by reason of failure to make such foreclosures, in excess of the amount due on

held by it as collateral security for the notes in suit, and that by reason of the plaintiff's neglect to do so, a total loss of their value had been suffered by the defendant, because of the subsequent depreciation in the value of the real estate upon which said mortgages were liens. It was admitted that at the time of the trial the uncollected mortgages were still in the possession of the plaintiff.

the notes. The jury found for the defendant. whether such notice to foreclose had actually The disputed questions of fact. (1) On a motion for judgment for plaintiff n. 6. been given, (2) whether or not the plaintiff

HELD, that the judgment must be refused.

The disputed questions of fact (1) whether bad afterwards been guilty of culpable negnotice to foreclose had actually been given; (2) ligence in not foreclosing the mortgages, whether or not the plaintiff had afterwards been (3) whether the plaintiff's negligence was guilty of culpable negligenee in not foreclosing; (3) whether plaintiff's negligence was the direct, the direct cause of any loss to the defendant, cause of any loss to the defendant-were all were all necessarily left to the jury to decide necessarily left to the jury to decide upon the upon the conflicting evidence in the case, on conflicting evidence on those subjects. those subjects.

The Court instructed the jury "If the jury find that plaintiff (after notice to foreclose) was guilty

The verdict of the jury was for the de

of supine negligence in not doing so, and this fendant. The plaintiff now moves for a

new trial and for judgment non obstante that negligence was a loss to the defendant, veredicto against the defendant. the plaintiff would be responsible for such loss."

The only errors assigned in support of these motions which were insisted upon at the argument, were the Court's answers to the plaintiff's points, and its instructions to the jury to the effect, that if the jury found from the evidence that the plaintiff was guilty of supine negligence in not foreclosing the collateral mortgages as directed to do by the defendant, that it would be responsible for any loss directly resulting there

from to him.

The plaintiff's third and fourth points which were general requests for binding instructions in favor of the plaintiff, were refused because of the conflicting testimony on the material questions of fact already referred to.

The instructions given to the jury by the Court in its general charge, prior to its answers to these points, were to the same effect, and seem to be well sustained by numerous authorities.

In Hanna v. Holton, 78 Pa. 334, it was specially held that where a collateral is lost by the insolvency of the debtor, through the supine negligence of the creditor, that the

latter must account for the loss to his own debtor. Agnew, J., said: "By the assignment a privity in contract is established, which invests the assignee with the ownership of the collateral, for all purposes of dominion over the debt assigned. He alone is empowered to receive the money to be paid upon it, and to control it in order to This is the ground of the creditor's liability protect his right under the assignment. for the collateral, as stated by Tilghman, C. J., in Lyon v. Huntingdon Bank, 12 S. "I. A creditor who holds collateral for & R. 68; and also by the court in Beale v. a debt is not bound upon request of the The Bank, 5 Watts 530. It is, therefore, debtor to sell or realize on the collateral. settled in this state that where the collateral His refusal to do so is not per se negligence. is lost by the insolvency of the debtor in the The debtor's remedy is to pay the note, and collateral instrument, through the supine then he can enforce return of the collateral." | negligence of the creditor, he must account

The plaintiff's first and second points covering the question of negligence in this case, with the Court's answers thereto, were as follows:

"Answer. This point is refused as writ- for the loss to his own debtor, who invested ten. Though plaintiff's refusal to realize him with its entire control; Miller v. Bank on the collateral at once is not negligence Gettysburg Bank, 8 Watts 192; per se, if the jury find from the evidence U. S. v. Peabody, 8 Harris 454; Dyott's that it was afterward guilty of supine neg- Estate, 2 W. & S. 490; Chambersburg Inc. ligence in not doing so, and this negligence Co. v. Smith, 1 Jones 120; Sellers et al. v. caused a loss to the defendant, plaintiff Jones, 10 Harris 427; Lishy v. O'Brien, would be liable to him for such loss. 4 Watts 141; Muirhead v. Kirkpatrick, 9 Harris 237; Ins. Co. v. Marr, 10 Wright 504."

The latest decisions of the appellate courts on this subject affirming and following the above cited cases are Bank of Commerce v.

Fisher, 65 Pa. Super. 369 and Farmers
Nat. Bank of Beaver Falls v. Nelson, 255

"II. Giving to the testimony of the defendant all possible weight, his only claim regarding the mortgages assigned by him as collateral August 20th, 1915, is, that on three occasions, to wit; April 6th, June 28th, and August 6th, 19.6, he stated to the plaintiff's cashier that he desired! the plaintiff to have them foreclosed, this Pa. 455. In the latter the Court, after redid not oblige the plaintiff to comply, or make it responsible for any loss which might arise by reason of alleged decrease in market value of the mortgaged land after such request."

ten.

viewing previous auhorities concludes "Hence take all necessary legal steps to preserve the it is clear, we think, that the creditor must collateral, and if it is lost by his negligence he is responsible to his debtor." The holder of collateral security," says the Court

"Answer. This point is refused as writ-in Muirhead v. Kirkpatrick, 21 Pa. 237, If the plaintiff, after receiving said alleged notices, was guilty of supine negligence in not foreclosing the mortgage, or selling the same, and the direct result of

"is bound to preserve it, or collect it and apply it for the benefit of its assignor. His duties in respect to it are active. He is to employ reasonable diligence in collecting the

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