Bill in Equity for an injunction.

Lloyd and Kopyscianski for the Plaintiffs.

L. S. Walter, A. G. Shoener and A. L. Snyder for the Defendants.

There was no intimation of fraud in the

where the effort is to secure the lien against the personal property in the hands of a third party? We think not. The attachment is merely an "auxiliary to the old modes of execution." It is a collateral process to the regular action between the plaintiff and de- June 26, 1916. MOSER, J.-After a fendant; Kase v. Kase, 34 Pa. 128. "It is, careful perusal of the testimony adduced in therefore, mere execution process, so far as this case, and, having examined the authorithe debtor is concerned. The scire facias to ties submitted by counsel, we have concluded the garnishee is auxiliary to the execution, that no good cause has been shown, nor any and designed only to accomplish the execu- good reason given, why the preliminary intion purposes of the process. As between junction should be continued and made the creditor and debtor, it is as essentially | permanent. an execution as a fieri facias, and the proceedings under it are a levying an execution transaction complained of; there was no as truly as the seizing of goods under a fieri proof of any conduct on the part of any facias;" Strouse's Executor v. Becker, 44 member of the board that was fraught with Pa. 206. See, also, National Bank of the least suspicion. Each step leading to Spring City v. Bank of Pottstown, 11 the consummation of the contract was taken Montg. Co. Law Repr. 64. It is a double only after a free and frank discussion of the process against the defendant and collater- various propositions encountered and preally against the garnishee; McDonald v. sented to the board as their work progressed. Stear, 7 Dist. R. 190. At least some members of the board made considerable investigation before deciding upon the kind or character of building that was finally adopted. Due and legal advertisement was given and there was open and fair competition in the bidding. The testimony disclosed no irregularities whatever in the letting, but the complaint is that the contract was not awarded to the lowest bidder. When we consider the size and importance of the contract and work, it cannot be said that the difference between the lowest bid and that of the successful bidder, as disclosed by the testimony, was so large a sum as to color the letting with irregularities or fraud, or to make the same illegal.

If these views are correct, and they are well supported, we must hold the attachment execution is a civil process within the meaning of the Act of 1915, though no

per

effort was made to serve the defendant sonally. The case falls within the terms of that legislation, and the defendant cannot be deprived of the exemption given by indirection; Davidson v. Barclay, 63 Pa. 406. The process in this case could not have issued solely against the garnishee, but must be primarily against the defendant to acquire rights against the former. As the issuance of any such writ against him was forbidden, the whole proceeding must fall.

The rule is made absolute, and the attachment is dissolved and proceedings dismissed, at the costs of the plaintiff.

C. P. of

The code provides that contracts involving large sums of money shall be awarded

to the lowest and best bidder. The school directors, who were called as witnesses, declared, that, in their judgment, the contract was given to the best bidder. From their testimony it appears that, at the time the

Northumberland Co. Schweitzer et. al. v. Reichert et. al. School code-School board-Discretion-board took action in the matter, it was the Building-Injuncnion.

judgment of that body that the best bidder was the one to whom the contract was The necessity for the erection of a school buildawarded. Various reasons were givin by ing and its size and style are matters within the sound discretion of the directors, with the exer- the board members for their decision in the cise of which the court will not interfere by in-premises. Under those circumstances the junction except in cases of a clear abuse of such judgment and discretion of the School Under the Act of May, 1911, commonly called Board prevails unless it can be shown that the School code, the directors have a discretion to the directors acted arbitrarily, capriciously or award a contract to a person not the lowest fraudulently; Commonwealth v. Mitchell, bidder, if in their judgment the person to whom 82 Pa. 343; Lamb v. Redding, 234 Pa. 481. the contract was awarded was the best bidder; The size and style of the building is likethis discretion is reviewable only when the direc

discretion.

tors act arbitrarily, capriciously or fraudulently. wise a matter for the sound discretion of

Work Legal Record

Vol. XXXI THURSDAY, SEPTEMBER 27, 1917. No. 20

which has become lost. In the meantime judgment d. s. b. had been entered upon it in the sum of $800, which was afterwards stricken off on defendant's motion for variance. That is to say: While the figures $800 appeared in the proper place, the words in the body of the note are "Eight" dollars,due, as plaintiff says, to mere clerical omission in filling up the blank form.

the school board. The court has no right to interfere, except perhaps where there is a violent or arbitrary abuse of discretion. No such condition has been established in this case, nor do we think there is sufficient merit One of the reasons now assigned for this in the remaining complaints advanced by the motion involves a point contested at the plaintiffs to warrant the chancellor in con- trial, viz: the question whether the suit tinuing the injunction. proceeds technically on the note, thus castThe preliminary injunction is hereby dis-ing upon plaintiff the burden of reformation. solved and the bill dismissed at the cost of That can best be answered by reference to the plaintiffs. Unless exceptions are filed the statement itself, and no reason appears hereto within ten days, counsel for defend-for changing the view expressed at bar that ants is directed to prepare and present a the true cause of action pleaded is the breach final decree in accordance herewith.

C. P. of

by vendee of an executed contract of sale, to which the note was related only as collateral security. This is believed to be so selfLackawanna Co. evident on inspection of the pleading that dis cussion would be quite superfluous.

Allen v. Nichter.
Evidence-Immateriality—Introducing col-

lateral issue.

The motion has been entertained only for the purpose of reviewing an adverse ruling on an offer of evidence by defendant.

On a suit to recover balance owing by defend-| He stood confronted with an admission ant on his purchase of plaintiff's interests in a certain company, where the amount of defendant's in writing that the transaction was just down payment is in dispute, and it is shown that what plaintiff said it was. This was his defendant, in a letter written to R, whose inter- letter of December 6, 1908,to one Reynolds, ests in the same company he had also purchased, whose interest in the company he had admitted the down payment to be as alleged by bought out along with that of plaintiff. plaintiff, an offer by defendant to prove that the letter was so written at plaintiff's instance in He wrote to solicit Reynolds' assistance in order to deceive R, is objectionable both on ground disposing of his holdings at anything above of immateriality and also as tending to introduce what it had cost him. He referred to the a collateral issue.

That defendant at the time of his purchase transaction now in question and, inter alia, borrowed money sufficient to make such down to the cash payment of $350 to plaintiff payment as he alleged, is irrelevant, when plain-with a note for $800.

tiff was neither a party nor privy to the transaction. It was then offered to prove by him on Motion for new trial. his own behalf that the letter was so written at the instance of plaintiff in order to perpetrate a deception upon Reynolds. On objection the offer was excluded as an attempt to avoid the writing by showing his own turpitude.

J. F. Bell and J. L. Morris, for Plaintiff. W. J. Douglas, for Defendant. June 14, 1917. NEWCOMB, J.-There was a verdict for plaintiff in assumpsit for the balance owing by defendant on his purIt is to be borne in mind that he was acchase of plaintiff's interest in an enterprise corded the privilege of denying the truth called the Anthracite Granolithic Separating of his writing. That is not the point at Company, for the consideration of $1,150. stake. The question is whether it was his The single question at issue as defined by further privilege to make proof of his disthe pleadings was the amount of the down honest motive. Had the letter induced payment. By plaintiff it was alleged to action by Reynolds to his own prejudice in have been $350; by defendant, $1,142. a matter giving rise to a suit by him against Thus defendant admitted a balance of $8, this defendant, no doubt the objection would while plaintiff's claim was $800. be well taken by Reynolds. As between The date of sale was 10th November, the present parties on an issue for which the 1908. To secure the balance a judgment writing was in no sense responsible, the note was then and there given by defendant validity of the objection on that specific

ground is not entirely clear. The offer would, however, seem to be objectionable both on the general ground of immateriality and also as tending to introduce a collateral issue.

Exceptions to Auditor's report.
Ehrehart Bange for exceptions.

T. F. Chrostwaite, contra.

for wages of herself and certain of her minor children for various domestic services, successively rendered by them separately, which it is alleged amounted to a practically continuous service, from the death of the testatrix's husband on the 17th day of December, 1913, to the death of the testatrix herself, on the 17th day January, 1916.

However, while the question is not withAugust 27, 1917. WANNER, P. J.out interest, its practical importance disap. This auditor's report is objected to because pears here in light of the fact that in he rejected the claim of Agatha C. Brady substance defendant had already testified to the same thing on cross-examination at an earlier stage of the trial and he had the benefit of it in the charge. The attention of the jury was called to his explanation of the letter, with the instruction that it was entitled to their fair and impartial consideration in passing upon the decisive question, viz: the personal credibility of the opposing witnesses. That summed up the whole controversy and is believed to have been all that defendant could ask.

The issue was in the narrowest possible compass; the verdict is believed to be in accordance with the credible evidence, and it should not, therefore, be disturbed.

The motion is denied and the rule to show cause discharged.

ORPHANS' COURT

Brockley's Estate

Decedents' Estates-Claims Against-Competency of Witness Practice before Auditors.

Claimant testified to services rendered by herself and minor children to decedent during her lifetime. HELD, that her testimony should have been promptly rejected by the Auditor, as she was clearly incompetent.

Evidence objected to should ordinarily be admitted or rejected at once by the auditor, so that counsel offering it may know whether or not to offer other similar evidence, and objecting counsel whether or not to cross-examine the witness.

There was no evidence of any specific contract, verbal or written, for said services, or of any payment. or demand for payment of the same, in the lifetime of the testatrix, and claiments right to recover for the services of her minor children, was based upon an assignment of the same to her by her husband, subsequent to the testatrix's death.

The testatrix, Mary A. Brockley, had been taken into the family of the claimant's parents when she was a child, and she and the claimant were raised practically as sisters, although there seems to have been no legal adoption of the testatrix. She lived near to the residence of Agatha C. Brady in the Borough of Hanover, during the period of the rendition of these services. Similar services had been rendered by the claimant and her minor children during the lifetime of testatrix's husband, for which no payment had ever been made, and for which no claim for payment was presented against his estate.

Some difficulty in disposing of these exceptions grows out of the somewhat inaccurate record of the rulings of the auditor at the taking of the testimony in the case. Some objections to evidence offered do not seem to have been specifically ruled upon at all, either at the taking of the testimony or in the auditor's report. The question of the competency of the claimant as a witness in Testatrix's statements to several physicians that her own behalf as to matters occurring in claimant should receive something for what she the lifetime of the testatrix was reserved by had done were too indefinite to establish a con- the auditor, when objections to it were

If objections to her testimony had been deferred until after the close of the testimony, or to the argument of the exceptions, when the claimant might not have been able to substitute other evidence for her own testimony, they could not then have been sustained to her prejudice.

tractual relation.

The exceptions must be dismissed, because without the claimant's own testimony the evidence is clearly insufficient to establish her right to recover anything more than what was awarded her by the Auditor.

made. She was held competent in his report, because her cross-examination made subsequent to the objection, covered new matters happening in the lifetime of the Even admitting her testimony, as the Auditor | testatrix, which the witness had not testified did, his findings of fact, on which he based the to in chief. rejection of this claim, are not so clearly errone

ous as to justify the Court in sustaining the exceptions.

Other rulings entered on the transcript of the testimony, apparently were not made

at the taking of the testimony, but subsequently, in preparing the auditor's report. Similar irregularities and omissions on This case is not ruled by Clad's Estate, the part of the auditor were held, in the 214 Pa. 141, and similar cases, in which the Hoke Estate, 29 YORK LEGAL RECORD 128, claimant did not testify in chief, as in this to require the re-commitment of the auditor's case, to matters occurring in decedent's lifereport for specific rulings on all objections time, but was rendered competent by being to evidence. In this case it is unnecessary first cross-examined as to those matters, by to recommit because of the legal conclusions the other side. reached by the Court.

The testatrix's statements to several physicians to the effect that claimant was to Evidence objected to should ordinarily be for her were not made in the presence of receive something for what she had done admitted or rejected at once by the auditor, the claimant and were too indefinite to esso that counsel offering it may know whether tablish a contractual relation between her or not to offer other similar evidence, and and the testatrix. They could not at any objecting counsel whether or not to cross-rate be construed as a promise of payment examine the witness. to claimant for the services of the children, to which the husband alone was then entitled.

Berks Co. provision in the will of David Stepp, which provides that the sum of four hundred dollars should go to the children of John H. Stepp if James S. Stepp should die without heirs.

Wills-Bequest-Construction of Words "die without heirs."

HELD, also, that the words "to be paid within one year after my decease," referred merely to the time of payment in case decedent should survive the testator, and that decedent took the legacy

Decedent, prior to his death, received payment of a legacy, from the estate of his step-brother We are of the opinion that the legatee, under the following clause of the latter's will: James Stepp, became entitled absolutely to "I give and bequeath to my step-brother, James S. Stepp, the sum of $400. The above sum to be this legacy of $400.00 at the death of paid to him within one year after my decease, David Stepp: for the general principle is and should he die without heirs the above sum laid down that the words "and should he shall fall back to the children of my son John H. die without heirs" must be construed to Stepp." Decedent died without children, and the heirs of John H. Stepp claimed the amount of the mean death without heirs during the lifelegacy out of his estate. HELD, that the words time of the testator. Thus, in Mickley's "die without heirs" must be construed to mean Appeal, 92 Pa. 514, Chief Justice Sharsdeath without heirs during the lifetime of the wood says: "It is very clearly settled, both testator, and that decedent took the legacy unconditionally. in England and in this state, that if a bequest be made to a person absolute in the first instance, and it is provided that in the event of death, or death without issue, another legatee or legatees shall be substituted to the share of legacy thus given, it should be construed to mean death without issue before the testator." This principle is illustrated by very many subsequent cases, and will control in the construction of bequests such as the one in question, unless the will affords clear evidence of the contrary intent, that the first taker is referred to or treated as living at a period subsequent to the death of the testator; Jessup v. Smuck, 16 Pa. 327; Stoner v. Wunderlich, 196 Pa. 168; Daniel's Estate, 27 Sup. Ct. 358.

unconditionally.

Claim of children of John H. Stepp. Adam B. Rieser, for claimants. John B. Stevens for accountant. SCHAEFFER, P. J.-The account contains the proceeds of personal estate, and shows a balance for distribution of $3,873.42.

Against this balance there was presented a claim of $400, with interest, by David R. Stepp, Mahlon R. Stepp, Katharyn Reist, Sara Himmelberger, Esther Oese and Howard R. Stepp, children of John H. Stepp, deceased. John H. Stepp was a son of David Stepp, deceased, under the provisions of whose will the claim arises.

Counsel for the children of John Stepp argued that the words "The above sum to be paid to him within one year of my decease," show that the testator David Stepp contemplated that his stepbrother James Stepp would survive him, and that the event of his dying without heirs would occur after the death of the said David Stepp. We do not think that these words take the

David Stepp, who was a step-brother of James Stepp, the decedent here, died testate on June 26, 1886, and in his will dated July 16, 1881, which was duly probated on the 26th day of July, 1886, and recorded in the Register's office, in Will Book No. 15, page 557, provided inter alia, as follows: "Item. I give and bequeath to my step-case out of the general rule. They merely brother James S. Stepp the sum of four hundred dollars. The above sum to be paid to him within one year after my decease, and should he die without heirs the above sum shall fall back to the children of my son John H. Stepp."

refer to the time of the payment of the legacy in case James Stepp should survive the testator, but do not designate any period or fixed time when or within which he should die without heirs. The time is annexed to the payment of the legacy, and this supports the view that James Stepp took the bequest, of $400.00 absolutely at the death of David Stepp. "The legacy shall be deemed vested or contingent just as

A release offered in evidence shows that the sum of four hundred dollars, in pursuance of the aforesaid item, was paid by John Stepp, the executor of David Stepp, to James Stepp, the decedent in this case. the time shall appear to have been annexed The children of John Stepp now contend to the gift or the payment of it;" Moore v. that they are entitled to this bequest of Smith, 9 Watts 403, Smith's Estate, 226 $400.00, because at the death of James Pa. 304. Stepp, who died without children on January 4, 1915, it vested in them under this

The claim of the children of John Stepp is disallowed.