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public charity under the Act of 1901; and Wilson M. Loux, a director, book-keeper if a convent building for housing teachers is and the manager of the corporation. While a necessary adjunct of such school, so also an appearance of wrong doing may be estabmay a play-ground for the school children lished, this with nothing more, would not be a necessary adjunct. At all events upon be sufficient to establish fraud; that fraud this motion it must be so taken, because it must be proven and cannot be presumed is is so averred.

so evident a legal maxim that a citation of We, therefore, refuse plaintiff's motion authorities would be superfluous. for judgment.

It is hardly worth while, however, to pursue the foregoing inquiry any further, as

we have legislation in Pennsylvania indicatC. P. of

Lehigh Co. ing the proceedure to be followed to estab

lish the liability of the officers and directors Loux Creamery Co. v. Tice et al.

of a corporation, delinquent in the performCorporations - Directors-Miegal Dividends ance of their duties as such, Sections 41

Acts of July 18, 1863, Ľ. L. (1864) and 42 of the Act of July 18, 1863, P. L. 1102, and April 29, 1874, P. L. 73. 1102, 1864, read as follows: "Sec. 41. The liabilities of officers and directors of a cor

stockholder, or officer in such corporation, poration, delinquent in the performance of their shall be held liable for its debts, or contracts, duties as such, must be determined in the mode unless a judgment is recorded against it, provided by the Act of July 18, 1863, P. L. (1864) and the corporation shall neglect, for the 1102, and April 29, 1874, P. L. 73.

space of thirty days after demand made, on They are not assets of the corporation so as to execution, to pay the amount due, with the give a general receiver authority to enforce them officer's fees, or exhibit to him real or perthrough a proceeding in equity.

sonal estate of the corporation subject to be Motion to change decree.

taken on execution, sufficient to satisfy the Frank Jacobs and M. P. Schantz for same, and the execucion shall be returned plaintiff.

unsatisfied. George W. Aubrey, Butz edo Rupp, Ira returned, the judgment creditor, or any

Sec. 42. After the execution shall be so 7. Erdmin and Calvin E. Arner for defend- other creditor, may file a bill in equity, in ants.

behalf of himself, and all other creditors of October 2, 1916. GROMAN, P. J.-- the corporation, against it, and all persons The receiver of the Loux Creamery Com- who are stockholders therein at the time of pany, a Pennsylvania corporation, filed his the commencement of the suit in which judgbill in equity, alleging that certain unearned ment was recovered, or against all the dividends were paid by the board of direct- officers liable for its debts and contracts, for ors from time to time, and that other pay- the recovery of the sums due from said corments were made negligently and by conniv- poration, to himself and such other creditors, ance by the defendants as directors of the for which the stockholders or officers may corporation.

be personally liable, by reason of any act or After taking the testimony of the com- ommission, on its part, or that of its officers, plainant, the court, under Rule 68 of the as stated in preceding Sections of this act, equity rules, entered a decree of dismissal setting forth the judgment and proceedings without hearing evidence on behalf of the thereon, and the grounds upon which it is defendants. The plaintiff filed a motion expected to charge the officers or stockholdto change the decree dismissing the bill. ers, personally."

The one question going to the marrow of The Act of April 29, 1874, P. L. 73, the controversy, it the jurisdiction lies, is-Section 39, reads as follows: "If the directhave the directors of this corporation, in the ors of any company declare any dividend performance of their duties, exercised reas- when the company is insolvent, or the payonable and ordinary care, skill and diligencement of which would render it insolvent, in conducting the business of the corpora- they shall be jointly and severally liable for tion? If they did, there could be no recov- all the debts of the company then existing, ery. During the taking of the testimony, and for all thereafter contracted, so long as it was conceded that certain of the directors they respectively continue in office: Procould not be held liable, but an effort was vided, that the amount for which they shall made to bring home liability on the part ofl be liable shall not exceed the amount of

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Sections 41 8. 1863, P. L. "Sec. 41.

No ch corporation, is, or contracts, ed against it, eglect, for the and made, on due, with the n real or per• subject to be to satisfy the be returned

-n shall be so ditor, or any

in equity, in er creditors of ad all persons at the time of in which judgainst all the

contracts, for From said corther creditors, r officers may of any act or of its officers, 7s of this act, od proceedings on which it is

such dividend, and if any of the directors Receivers of U. S. District Court may are absent at the time of making the div- without first obtaining leave of Court. idend, or object thereto, at said time, and

Affidavit of defence praying that file the objections in writing with the clerk of statement of claim be set aside an of the company, they shall be exempted ment stricken from record. from such liability."

H. Shoemaker and George L. R Relative to the matters under consid“ra- plaintiffs. tion, and having the above legislation in C. H. Bergner for defendants. mind, it may be illuminating as well as in

February 2,1917.

KUNKEL, P.) structive this uime to quote from defendants have filed their affidavit Childs v. Adams, +3 Pa. Sup. Ct. 236 fence, in which they pray that the se (1910), "Where the president and treasu- the statement of claim may be set as rer of a corporation are permitted to con- the statement stricken from the reco trol and manage the whole business of a is urged that there is no provisio corporation without any interference by the

practice act of May 14, 1915, P. L. directors or stockholders

, and they declare recting where the statement shall and distribute dividends in good faith out

authorizing it to be served; tha of what they suppose is profits, although

not be filed and served so the company is in fact insolvent, they can affidavit of defence before the returi not be compelled to pay back the sums thus the original writ; and that the ser distributed to the corporation by a bill in the statement, having been made by equity fied against them by the general

a copy thereof on the defendants, receiver of the company. Their only liabil

Their only liabil- eive. It is also objected that the ity is to the creditors who must first have has not obtained leave from the the amount of their indebtedness adjudi- States district court, whose receivers cated in an action against the corporation, fendants are to bring this action and then file their bill for themselves and

thein. other like creditors against the oficers who

As to the objection that the act may have made the illegal payments.

expressly direct where statemento The liabilities of the officers and direc: shall be filed it is sufficient to say tors of a corporation specially imposed act prescribes the procedure to be upon them by the statute, are not assets of in actions brought in the court of the corporation so as to give a general re- pleas. It contemplates the comme ceiver authority to enforce them."

or the pendency of an action in the The dismissal of the bill must be sus. It, therefore, necessarily follows tained for want of jurisdiction.

plaintiff's statement of claim is to be Motion to change the decree dismissing

an action there commenced or the bill in the above cause, dismissed.

Under the statute the statement is

step in the procedure when the ac C. P. of

It is true there is no express diri American Lumber & Mfg. Co. v. Ens- the act that the statement shall be

minger Lumber Co.'s Receivers. but it is provided that an affidavit o: Service of statement Time of filing affida

shall be filed by the defendant withi vit of defence Practice Act of May 14,

days from the day when the staten

served. Thus service of the stat 1915, P. L. 483.

recognized and authorized by neces The practice Act of May 14, 1915, P. L. 483, plication. presupposes an action already brought in the Court of Common Pleas. The statement is the

It is also true that there is no ti first step in the procedure when the action has when the statement shall be filed. been commenced.

is said in the act whether it shall Service of the statement is recognized and au- before or after the return day; but thorized by necessary implication.

There is no prohibition against filing the state-no prohibition against filing it be ment before the return day, and defendant thus return day. Therefore we woul may be compelled to file an athidavit of defence justified in limiting the act by holi before the return day or before he is in Court it may not be filed before that time. pursuant to the writ of summons.

Service of statement of claim may be made by is urged, that if the act be inter serving a copy on defendant.

permit this to be done the defendar

Dauphin Co. been commenced.

or stockhold

4. P. L. 73, -If the directany dividend ht, or the payer it insolvent, rally liable for

then existing, ted, so long as

Office: Pronich they shall che ainuunt of

be compelled to file an affidavit of defense C. P. of

Allegheny Co. in many cases, as in the present one, before the return day or before he is in court, pur

Sweeney v. Allegheny County. suant to the command of the original writ. Pleading and Practice-Municipal CorporaThis situation, however, is not withcut pre

tionsA ffidavit of Defense-Act of May cedent in the history of legal procedure in

14, 1915, P. L. 483. this state. Under the act of June 16, 1836, a rule of reference may be entered and the It would seem that under the Practice Act of defendant required to answer before the 1915, the Legislature intended to require unireturn day; Henness v. Meyer, 4 Wharton and trespass regardless of the personality of the

formity of pleadings in all actions of assumpsit 358; Febr v. Reich, 36 Pa. 172. This parties, whether individual or corporate, except decision was placed upon the ground that as therein designated, and municipal corporations there was no prohibition in the act of 1836 are not exempt from its provisions. against such a practice. Under the act of In re rule to strike off endorsement on April 19, 1901, P. L. 88, regulating the statement to file affidavit of defense. practice in replevin, the defendant may be required to file his affidavit of defense to the

Rody P. & M. R. Marshall for plaintiff. plaintiff's declaration even though the statut- Beatty, Magee Martin for defendant. ory time for filing the affidavit expires before the return day of the writ, and judgment

February 23, 1917. Davis, J.--The defor want thereof before the return day is fendant has taken the following rule on the not premature; Griesmer v. Hill, 225 Pa. plaintiff, viz: "To show cause why the 545. And under the act of May 25, 1887, endorsement on the statement of claim filed P. L. 271, relating to procedure, $$4 and by plaintiff in this case requiring the defend6, the plaintiff's statement is permitted to be ant to file an affidavit of defense within filed before the defendant is in court in fifteen days should not be stricken from the answer to the command of the summons,

record, proceedings to be stayed in the meanbut by express enactment the defendant is time pending the disposal of the rule.': given until the return day to file an affidavit This is an action of assumpsit, and the deof defense. The practice act of 1915 would fendant contends that it cannot be required be no advance in speeding litigation upon to file an affidavit of defense under the prothe act of 1887 or prior legislation on the visions of the "Practice Act, nineteen fifteen," subject if we were to hold that nothing can P. L. 83; that prior legislation and debe required of the defendant toward this cisions places the defendant in the class of end before the day on which he is com- municipal eorporations which were cxempted manded to appear.

from filing affidavits of defense in actions of The service of the statement of claim was law, and that the “Practice Act does not made by serving a copy thereof on the de- repeal by implication the acts exempting fendants. In the absence of any provision municipal corporations from filing an affiin the act prescribing the manner of service we davit of defense.” see no reason why a service which followed

Section 25 of the Act, however, provides the usual practice should not be sustained. The right of the plaintiff to commence the provisions hereof are repealed.”

"all acts or parts of acts inconsistent with and maintain this action against the receivers of the district court, without first obtaining The Act is an Act entitled, “An Act rethe court's leave, is fully warranted by the lating to practice in the Courts of Common act of congress of August 13, 1888; Hal- | Pleas in actions of assumpsit and trespass, lowell v. Williams, 217 Pa. 501.

except actions for libel and slander; preThe prayer to set aside the service and to scribing the pleadings and procedure to be strike the statement of claim from the observed therein; and giving the courts record is denied. The defendants, under power to enforce its provisions.” $20 of the act under consideration, may file The Act relates to "pleadings and proa suppismental affidavit of defense to the ceedings to be observed” by plaintiff and averments of fact con ained in the statement defendant in the two forms of action. within fifteen days from this date.

Section 7 defines the nature of the affi* See. Brownsworth & Co. v. Sulkin, 30 York davit to be filed by persons who are parties LEGAL RECORD 181, where the opposite view was acting in a representative capacity; and sectaken.

tion 13 defines in actions of trespass the Allegheny Co. legheny County.

- Municipal Corpora Defense-a of las

No. 3

Vol. XXXI

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Martin for detendant.

Divis, J.-The de · following rule on the show cause why the tatement of claim filed e requiring the detend vit of defense within t be stricken from the be staved in the meanosal of the rule."

assumpsit, and the de t it cannot be required defense under the proe Act, nineteen fifteen," or legislation and de endant in the class of 5 which were exempted of defense in actions of Practice Act does not

the acts exempting $ from filing an affi

mit Silk Company. The defendant Work Legal Trecord

to throw the remaining three bales,

ing that the silk contained in all of THURSDAY, MAY 31. 1917

bales was of a much inferior grade

agreed upon and could not be throu•effect of not filing an affidavit of defense on

price fixed by the parties without ser the part of the defendant.

to the defendant. The plaintiff iss This Act is comprehensive in specifying writ of replevin to obtain possession the only pleadings now to be used in the two said remaining three bales and the de forms of action. Sections 3 and 4 abolishes resisted the delivery thereof, contend all other pleas and demurrers.

it had a special or qualified property It would, therefore, seem under this Act for the value of the work done on t that the Legislature intended to require uni- bales delivered to the Summit Sil formity of pleadings in all actions of assump- pany as aforesaid. The plaintiff sit and trespass regardless of the personality any qualified property or interest w of the parties, whether individual or cor- of the defendant in the silk takes porate, except as therein designated.

sheriff under the writ: ist, because To hold that the defendant does not come the terms of the contract. the de within the provisions of this Act leaves all municipal corporations outside of all plead- been thrown and shipped; 2nd, bec:

was not to be paid until after the ings in the two forms of action unless re- three bales seized by the sheriff quired to conform to the provisions of the same. The Act does not exempt them as that the defendant might have had f

separate and distinct shipment; that parties from its provisions, and necessity done was special and not general, an does not require such exemption.*

fore, these three particular bales co be held for previous work done on t

bales. C. P. of

Northumberland Co.

From the agreement and course Gorli & Co. v. Perfect Silk Throwing Co. ing between these parties, as disc Replevin-Lien on personal property for the testimony, it appears that after

work bestowed thereon-Motion n. o. v. fendant completed its work in the tr. In the absence of a special agreement, a trades of the raw s:lk, the product was for man has a lien for work done on goods deposited by the defendant to whomsoever the with him for manufacture.

directed it should be shipped. W Where there is a contract 10 manufacture defendant delivered the finished ma several articles at an agreed price, the tradesman has a lien upon any one or more of the articles in sent a bill for the services rendere his possession for Jabor bestowed upon other consignee and a duplicate thereof articles embraced in the contract.

plaintiff

. The work was paid for th Where under a contract for finishing goods for and the settlements at times extend manufacture by lots, it is disputed as to whether or not several separate shipments comprise a

period of thirty or sixty days. Ti single lot, the question is for the jury.

tiff takes the position that the de Action of Replevin.

acquired no special property in said

der the conditions thus disclosed, b Voris Auten for the Plaintiff.

of the doctrine enunciated in Lee v. J.W. Gillespie for the Defendant.

47 Pa. 398, where it was held that February 26, 1917. Moser, J.-In this ner who contracts to tan hides furnis action the plaintiff shipped six bales of raw by a firm, and to return the leath silk to the defendant to be thrown or from them, in a reasonable time, a twisted at the defendant's throwing plant in agreed on for tanning and transpo Elysburg, this County. Three of the said payable after delivery, has no pro bales were worked and finished and were the leather, afcer it is finished and r subsequently forwarded by the defendant, delivery, such as will justify its d at the instance of the plaintiff, to the Sum- by him.”

In that case there was a special ag * An amendment to the Practice Act of 1915, / which is not the situation in the approved May 3, 1917, provides that counties, being considered. The customary a cities, boroughs, townships, school districts and other municipalities shall not be required to file business methods ordinarily in vogu an affidavit of defense."

transactions were pursued in the

Act, however, provides aits inconsistent with re repealed." entitled, "An Act reve Courts of Common ssumpsit and trespass, bel and slander; pre

and procedure to be d giving the courts Collisions.

"pleadings and proed" by plaintiff and orms of action. ne nature of the affiersons who are parties ive capacity; and seecions of trespass the

had between these parties. The work was it is agreed there never had been any formal to be paid for after it was performed and surrender of the policy in manner required after the silk was delivered in accordance by its terms. Indeed there is only an equiwith the shipping directions of the plaintiff. vocal and uncertain averment of that step In the absence of any special agreement the in plaintiff's statement, met by a distinct defendant did not waive its right to a quali- denial of surrender in defendant's answer ; fied property in the goods for the services although the company is not seeking to avoid rendered; Mathias v. Sellers, 86 Pa. 486. liability on that ground. It does, however,

Under the instructions given, the jury contend that the fact ought to have weight found by their verdict that the raw silk on the question of interest; and that is befurnished by the plaintiff in the six bales lieved to be true. In other words, to be above referred to was inferior in quality to entitled to damages for detention at the the grade contemplated by the parties in legal rate of interest, plaintiffs would have their contract. The furnishing of this in the burden of showing surrender in due ferior silk that could be thrown only at a form, or waiver thereof by the company. loss to the defendant was not a compliance They do neither one. The omission is afwith the terms of the agreement entered in-firmatively pleaded by the company with the to between the parties hereto but was a vio- qualification that no advantage is sought to lation thereof; therefore the plaintiff is not be taken of it except in initigation of damin a position to complain that the defendant ages, so to speak, if the plaintiffs are in waived its right to a lien by virtue of an position to make a valid surrender. agreement which the plaintiff disregarded The circumstances of the case make it an and which was abrogated by the plaintiff's amicable action in everything but form, and own conduct.

suggest that substantial justice would be The jury found that the six bales of silk done by the payment of the principal sum numbered respectively 1797, 1938, 1932, together with such interest as may be pre1910, 1911 and 1942, comprised what was sumed to have accrued to the fund in bank, designated by the parties as one lot, being say three per cent., pending the controversy. lot numbered 2438. It is true, as plaintiff Julgment accordingly. contends, that these bales were not received by the defendant in one shipinent, but there was ample testimony to sustain the jury's C. P. of

Lackawanna Co. finding that both the plaintiff and the de

Cadden v. Equitable Life Assurance fendant regarded the said six bales to be a single lot. That question was squarely

Society submitted to the jury and their verdict is a Guardian and ward-Pouers of guardiancomplete answer to the plaintiff's assertion

Life insurance benefits. that the lien of the defendant was special Where beneficiaries named in a life insurance and no“ general and that the particular policy have the option to accept the surrender bales taken by the sheriff could not be held aries is authorized by virtue of his office, and

value of the policy, a guardian of minor beneficifor previous work done on other bales. So without any order of court, to accept the amount far as this case is concerned, the verdict of and give his receipt binding the wards, unless his the jury established the fact that the six powers in this respect are restricted by statute. bales referred to comprised one single lot. the premiums, and accepting the surrender value

As between keeping a policy alive by paying. That being their conclusion from the testi- at a given time, it is the duty of a guardian to mony we are of the opinion, that in the elect whichever appears to be most beneficial to absence of some special agreement, the de- the ward. fendant had a qualified property in, or lien legal rate of interest, the beneficiary has the

To be entitled to damages for detention at the upon the three bales taken into possession burden of showing surrender of the policy in the by the sheriff under the writ, for the work manner required by its terms, or waiver thereof

by the company. done on the other three bales. The plaintiff's motion for judgment n. o.

Motion for judgment. v. is hereby overruled and an exception noted. R. A. Zimmerman, for plaintiffs.

The same is believed to be true here and Warren, Knapp, O'Malley & Hill, for must be deemed decisive in plaintiff's favor. defendant. The only doubt in mind goes to the question April 23, 1917.

NEWCOMB, J.- The of interest, if any, payable by defendant. action is assumpsit for the surrender value As we understand the argument of counsel, of a paid-up policy of life insurance issued

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