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leged to have been delivered at or about 0. C. of

Schuylkill Co. the same time or in connection with the transaction for which he brought suit or

Estate of John L. Geiger at some other and different transaction and time.

“5. The affidavit is too vague and in- Partition-.lppointment of an auditor definite to permit him to file any reply thereto or prepare a defense thereto at

-Confirmation of account. the trial of said cause."

In all cases where, in consequence of proSection 21, of the “Practice Act tale shall be converted into cash, the

ceedings in partition, any share in real es1915," P. L. 483, authorizes the court, phans' court may appoint an auditor to as

certain whether there are any liens or other upon motion, to strike from the record a

incumbrances on such real estate. pleading which does not conform to the

The administrator or trustee is the proper provisions of this act.

party to make the application for an auditor

which should be done before confirmation of The motion charges that the supple- the sale. mental affidavit of defense does not con

In re confirmation of account of trusform to the provisions of the act.

tee to sell real estate in partition. ConThe purpose

of the statement of claim, firmation refused. the answer, and the reply is to establish an issue to be tried. The issue is to be E. D. Sinith, for accountant. formed before the trial: Williams V. Williams, 79 Pa. Supr. Ct. 189.

T. 1. JcCarthy, George Ellis and W.

11. Fausset, for heirs. The defendant's set-off or counterclaim is to be regarded as his statement Wilhelm, P. J., May 5, 1924.-Audit of claim, and, we think, can be attacked of the first and final account of J. Milin the same way that an original state-ton Boone, trustee to sell the real estate ment can be attacked, for the reply can- of John L. Geiger, late of the borough of not be made with more definiteness than St. Clair, Schuylkill county, Pennsylthe supplemental statement is made, es-vania, deceased. pecially when it raises material matters

This account should not be confirmed not contained in the original statement or affidavit of defense. "At the trial,

because all of the costs incident to a neither party is permitted to make any proper distribution of the balance redefense which is not set forth in an af maining in the hands of the accountant fidavit of defense or reply thereto, ex

have not been presented. No distribucept in case of an administrator or exec

tion should be made without the appointutor, guardian or committee, or in tres- ment of an auditor, or perhaps, if it is

incumbent upon the court to make distripass cases as provided by sections 7 and 13 of the act."

bution, until after proper certificates of

search have been obtained from the So far as the supplemental affidavit of proper officers, and the cost of these cerdefense divulges, we cannot tell if the tificates or fees of an auditor would no set-off pertains to the contract upon doubt be a proper charge against the which the plaintiff bases his suit.

fund remaining in the hands of the acThe motion to strike off the supple-countant for distribution. mental affidavit of defense must there- Under the act, in all cases where in fore prevail.

consequence of proceedings in partition And now, February 4th, 1924, the sup- the share or any part thereof of an heir plemental affidavit of defense filed Octo- or a party in interest in real estate shall ber 15, 1923, is ordered stricken from be converted into cash, the orphans' the record, with leave to file an addi- court, before making a final decree contional, supplemental or amendatory affi- firming the partition or sale as a foresaid, davit, secundum regulam, within fifteen may appoint a suitable person as auditor days from this date.

to ascertain whether there are any liens

cause

or other encumbrances on such real es- if within twenty years; and against heirs tate affecting the interests of the parties, and devises from the date of the ances

lor's death, or for twenty years if the It is not compulsory on the court to death occurred more than twenty years appoint an auditor to pass upon the prior: Phillips Estate, 47 Pittsburgh trustee's account unless an application therefor be made. It may adjudicate the sumed that a certificate of search against

Law Journal 77. But it cannot be asaccount itself: Wister's Appeal

, 125 Pa judgment will warrant a distribution be

. 526. It is 110 ground for refusing con

there may be other creditors firmation of the sale that no auditor has been appointed to ascertain the liens limitations, it is not necessary judgment

equally entitled. “To toll the statute of against heirs: Zittle's Estate, 4 Lancas- should be taken. Suit brought within ter Law Review 163.

two years is equally effective. CertifiThe administrator or trustee is the cates from the prothonotary do not ordiproper party to make the application for narily show the bringing of such suits the appointment of an auditor and for and no proof of the state of the record his own sake should certainly do so; and has been made in this present case. the application should be made before There may or may not be other creditthe confirmation of the sale or partition. ors, but the question cannot be disposed It does not necessarily follow that be- of by mere assumption": Estate of David cause an auditor was not appointed be- Beynon, 48 Pittsburgh Law Journal 381. fore the confirmation of the sale that the Lpon the certificate of the prothonotary court does not now have power to ap- being filed showing that no such suits point an auditor or make distribution of have been entered, distribution will be the fund : Lucas' Appeal, 53 Pa. 104. made direct to the heirs: Estate of But the court in that case also said: "We Phoebe A. Phillips, 47 Pittsburgh Law hope that hereafter, in all cases coming Journal 77. within the provisions of the forty-ninth Lien of debts of the decedent are paysection (Act of March 29th, 1832, and able out of the proceeds of a partition practically re-enacted in Section thirty-sale: Commonwealth v. Poole, 6 Watts ihree of the Partition Act of 1917) the 32. Jurgments against heirs are to be executor or administrator will apply to paid to the judgment creditors: Lucas' the court to appoint an auditor for the Appeal, 53 Pa. 104. If the certificates purposes specified in the section. Every show there were no liens against the inprudent man for his own sake would terest of a deceased heir at the time of certainly do so."

his death, his share should be paid to his Distribution should not be made until personal representatives: Beynon's Esafter it has been ascertained whether tate, 48 Pittsburgh Law Journal 381. hiens exist against the ancestor whose On presenting a certificate that no suit estate is partitioned and the heir. Where has been brought to establish lien, distrian heir died before his ancestor's lands bution may be made direct to the heirs : are partitioned, the auditor should ascer- Stover's Estate (No. 2), 8 York 27. tain not only the liens existing against From the above it can readily be unsuch heir at the time of his death, but derstood that this account is not ripe for also his general debts, the lien of which confirmation, and a distribution should has not expired: Kerr's Estate, 4 Phila. not be attempted under the circum182; Bevron's Estate, 48 Pittsburgh Law stances. It appears to be incumbent Journal 381. This act being for the pro- upon some person in interest to begin tection of lien creditors, the trustee can- such proceeding as is necessary within not defeat the right of such creditors by the rules above laid down, and the law misapplying the fund: Lucas' Appeal, 53 governing the partition of decedents' es

tates, including distribution. Judgment searches must be taken out And now, May 5, 1924, confirmation against the ancestor for twenty years iof the account is refuserl without preprior to the sale, or until he acquired title judice.

Pa. 104.

C. P. of

York Co.' by the secretary of banking without first

| having a formal hearing on the subject or City Bank, etc., v. Bentz, et al. securing the official approval of the attorney

general.

Demurrer to the bill in equity by the Equity Jurisdiction - Demurrer - G. Cameron, Secretary of Banking, in

City Bank of York, Pennsylvania, Peter Bill to enforce personal liability of stock- possession thereof, v llenry C. Bentz and holders-Filing and recording of certifi- others, defendants, in the Court of Com

mon l'leas of York County, Pa., sitting cate of taking possession of bank-Bank-in equity, Vo. 1 August Term, 1923. ing Act of 1923-Secretary of banking, The bill was filed against twenty-seven powers, &c.-appointment of secretary things that Peter G. Cameron was ap

defendants, and averred among other of banking questioned collaterallyTak- pointed commissioner of banking by the ing possession of bank without hearing, governor of Pennsylvania, and after the &c.—.Idministrative Code of 1923 is approval of the Act of June 15, 1923, he

was appointed secretary of banking, constitutional

which office he held at the time of the

filing of the bill; that, on April 24, 1923, When special equitable jurisdiction is conferred by statute, the general rule limiting a

while he was commissioner of banking, plaintiff to his remedy at law does not apply. pursuant to the Act of Assembly, he took

Sec. 37 of the Act of June 15, 1923, P. L. possession of the City Bank of York, 809-826 conrers upon the courts of common Pa.; that the bank is insolvent, and by pleas equitable jurisdiction to enforce the payment of personal liability of stock hold- statements of assets and liabilities, &c., ers of an insolvent state bank on bill of showed that there is a deficit of $1,110,complaint by the Secretary of Banking.

Where the records of the prothonotary's 379.98; that he deemed it necessary to office and of the recorder's office of the pro- enforce the individual liability of the per county showed that the Secretary of Stock holders, and made demand for the Banking had filed and recorded a copy of his certificate that he has taken possession of payment of such liability; and the the property of an insolvent bank, as re- amount of stock held by each defendant quired by Sections 22 and 32 of the Act of and his individual liability as holder of June 15, 1923, P. L. 809-820-823, a demurrer to a bill in equity by the Secretary of Bank- said stock; and prayed for a decree for liability of stock holders of the bank, on the for the amount of his personal liability. ing to enforce the payment of the personal the payment by each of the defendants ground that the bill does not aver the filing and recording of such certificate, was dis- The nature of demurrer is indicated missed.

by the opinion. Demurrer overruled. The Banking Act of 1923, P. L. 809 took up the department of banking with the Sec- Robert S. Spangler, for complainant. retary of Banking at its head, as provided in the general administrative code, and pro- Cochran, W’illians & Kain and H. O. ceded to establish by adequate legislation the future powers and duties of said officer Ruhy, for demurrer. in the administration of said department, before it repealed the Act of 1919; therefore,

l'anner, P. J., March 31, 1924.— The the authority of the secretary of banking defendant's contention that the court has under the Acts of 1919 and 1923 was continuous for all necessary proceedings in the no equitable jurisdiction in this case, beadministration of the affairs of a bank of cause the plaintiff has an adequate remwhich the Commissioner of Banking had taken possession prior to the approval of the edy at law for the recovery of the asAct of 1923.

sessments in question, is fully met by the The secretary of banking is a de facto following statutory provision of Section officer, the regularity of whose appointment by the governor can not be inquired into con 37, of the Act of June 15, 1923, P. L. laterally.

|809-826, viz: “If any stockholder shall A detailed statement showing the insol- fail or refuse to pay such assessment vency of the bank and its unsafe and un- within such time, the secretary shall sound condition the transaction of banking business, is a sufficient allegation have a cause of action at law or in equity in a bill by the secretary of banking to en- against such stockholders, either severalforce the payment of personal liability of ly or jointly with other stockholders, for stock holders of the bank to justify the tak- í ing possession of the property of such bank'the amount of such assessment, together

a

for

a

with interest from the date when the this bank under the provisions of the same was due and payable.” Section 29 Act of 1919, on the 24th day of April, of the Act of June 15, 1923, P. L. 809- 1923. The Act of June 7th, 1923, P. L. 822, by giving the secretary of banking, 498, known as the “Administrative in winding up the affairs of an insolvent Code," which went into effect at 12 bank, all the rights, powers, and duties, 'o'clock noon, June 15th, 1923, only reof a receiver appointed by a court of pealed such parts of section 5 of the Act equity, also indicates that court as one in of 1919 as were inconsistent with the which the necessary proceedings may be provisions of the code. It continued the had. The authority of the legislature to department of banking in clause (a), define the jurisdiction of our courts, and section 205 of said Act P. L. 510, and to regulate procedure therein, has always provided that the head of said departbeen recognized in the decisions. There- ment should thereafter be known as the fore when special equitable jurisdiction secretary of banking. Sections 3 and 7, is conferred by statute, as is done in this of Article 1, of the code, P. L. 502-504, case, the general rule limiting a plaintiff transmitted the powers of the officers of to his remedy at law, does not apply: 21 any department which might be abolC. J. 69; Brackenburg v. Ilodgins, 102 ished, to their successors, so that proAtl. 106-107; 5 Brews. Eq. Prac. Sec. ceedings begun in such abolished depart5494, page 265.

ment or by officers whose positions were Another reason assigned in support of abolished, are to be carried on by their this demurrer is, that the bill in equity respective successors in such departdoes not contain a specific allegation that ments or positions. The Banking Act of the plaintiff as secretary of banking, has June 15th, 1923, P. L. 809, which becomplied with the statutory provision of came effective on the 15th day of June, Sections 22 and 32 of the Act of June at one minute after 12 o'clock, noon, also 15th, 1923, P. L. 800-820-823, which re- continued the banking department with quires him to file in the prothonotary's the secretary of banking at its head, and office a copy of his certificate, that he has after fixing his powers and duties in detaken possession of the property of the tail, repealed the Act of 1919. Section insolvent bank, and also to record the 35 of said act, P. L. 809-825, also vests

in the office of the recorder of in the secretary of banking all the powdeeds. The records of the prothono- ers and duties of the former commistary's office, however, show the filing of sioner of banking, and authorizes the such a certificate by Peter G. Cameron, secretary of banking to prosecute all Commissioner of Banking, on the 26th pending actions and proceedings of his day of April, 1923, and it further ap- predecessor, in courts of law

of pears that the same was also recorded in equity. The Banking Act of 1923, suthe recorder's office of this county on the pra, therefore took up the department of 26th day of April, 1923. The statutory banking with the secretary of banking as requirement of the Act of 1919, which is its head, as provided in the general Adthe same as that of the Banking Act of ministrative Code, and proceeded to es1923, supra, was therefore properly com- tablish by adequate legislation the future plied with by the commissioner of bank- powers and duties of said officer, in the ing while said Act of 1919 was the au- administration of said department, bethority under which he was officially fore it repealed the Act of 1919. There acting

was, therefore, continuous authority unThe objection that the present secre- der the Acts of 1919, the “Administratary of banking is not vested with the tive Code," and the “Banking Act of same authority as the commissioner of 1923," for all necessary proceedings by banking had under the Act of 1919, 51- the secretary of banking, in the adminpra, to continue the proceedings begun istration of the affairs of this bank. by him under said act, is not sustained

Defendants also contest the regularity by a careful examination of the legisla- of the appointment of the present secretion on the subject. The commissioner tary of banking by the governor.

The of banking took charge of the effects of authority of the governor to make the

same

or

appointment is conferred upon him by C. P. of

Montgomery Co. clause (a) of section 206, of the code,

Schiesser v. Hartman P. L. 510.

The present secretary of banking is a de facto officer, the regu- Defendant's appeal-Striking off aplarity of whose appointment by the governor cannot be inquired into collaterally real - Ittorney at law as suretyRule in this proceeding. The right to hold the of court. office and to perform its duties could on

A defendant's appeal will not be stricken ly be tested in a direct proceeding by loff because a member of the bar became quo warranto. The allegation in the surely on the appeal in violation of a rule of

court prohibiting such action, plaintiff's bill is, that the secretary of

It is an obligation of a member of the bar banking was duly appointed to said of- to obey and respect rules of court relating to fice by the governor of the common- attorney's conduct, but a client should not be wealth, which is sufficient for the

prejudiced by the conduct of the attorney. pur

A citizen should not be deprived of a boon poses of this case.

given by law, unless he has done something It is contended that the “Administra- to warrant a forfeiture of the privilege contive Code” is unconstitutional because it

ferred. violates the following provision of ar- Motion to strike off appeal from the ticle III, Section 3, of the Constitution judgment of justice of peace. Refused. of the Commonwealth, viz: "Yo bill, except general appropriation bills, shall be

Ilarren H. Cogswell, for plaintiff. passed containing more than one subject Evans, High, Dettra & Swarte, for which shall be clearly expressed in the defendant. title." Since the filing of this objection, however, in the recent unreported case Williams, J., March 28, 1924.

The of Comth. ex. rel. v. Snyder, the su- single reason given in support of the preme court, on the 7th day of January, above motion is that the surety on the 1927, filed an opinion overruling a sim- appeal bond is a member of the bar--the ilar objection to said code, and holding reason being assigned, doubtless, because the general executive department of the our Rule Thirty-seven (37) says that no state government to be a single subject attorney shall become surety in appeals for legislation which may be structurally from justices of the peace. reorganized and the administrative work The rule is hoary with age. So long and executive machinery of the govern- has it lived that the memory of the oldment systematized in one act of assem- est living local practioner runneth not to bly.

the contrary thereof. Since it has surThe detailed statement showing the in- vived revision after revision of the rules, solvency of the City Bank, and its un- it must have been founded, originally, on safe and unsound condition for Wie fur- the best of reasons; otherwise, long ago, them transaction of a banking business it would have been abrogated. Most is, in our opinion, a sufficient allegation members of the bar readily understand in the bill, to justify the secretary of why the rule persists, for, among other banking in taking possession of the prop- purposes, it serves to afford all lawyers erty of said City Bank, without first hav- protection from the annoying importuniing a formal hearing on the subject, or ties of clients. securing the official approval of the at- An ancient and wholesome rule, it is torney general, vide, Sec. 21 of Act of no different from any other rule of court 1919, P. L. 209-221; also Sec. 21 of Act in that it ought to be obeyed. For an of 1923, P. L. 819.

officer of the court knowingly and delibAnd now, to wit, March 31, 1924: The erately to violate the rule may seem to demurrer is overruled and judgment will show on his part not only a lack of cobe entered for the plaintiff against the operation with the other members of the respective defendants filing said demur- bar, the majority of whom, apparently, rer, on presentation to the court of a at least, favor the retention of the rule,

udgment in proper form, for its signa- but, also want of appreciation of the atture, secundum regulum.

titude of, if not actual disrespect towards

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