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Sur petition of the York Lodge No. affected with the guilty knowledge of its 148 Loyal Order of Moose, for an order officer, and is therefore not such an innoon the Secretary of Banking, liquidator cent holder of the securities, as can sucof the City Bank of York, Pa., to deliver cessfully defend on that ground, against to the petitioner certain bonds, in No. 51 the demand of the owners thereof: ConAugust Term, 1923, in the Court of neautville Bank's Assigned Estate, 280 Common Pleas of York County, Pa. Pa. 545; Winslow v. Harriman Iron Co., Order granted.

42 S. W. 698; Ballard v. Audobon Nat. Robert C. Fluhrer, for petition.

Bank, 222 Fed. 57; Curtis v. Crawford

Co., Band, 110 Fed. 830; Ditty v. Bristol Robert S. Spangler, contra.

Nat. Bank, 75 Fed. 769; 9 C. J. Par.

102, page 63; 7 C. J. Par. 134, p. 530. Wanner, P. J., March 23, 1925.— The The case of Cochrane v, Fox Chase bonds in question in this case belonged Bank, 209 Pa. 34, cited by respondents to the York Lodge No. 148, Loyal Order counsel, does not rule this case. The seof Moose, and were delivered by the trus-curities in question in that case were tees of said Lodge to William H. Boll, pledged as collateral by an outside party, assistant cashier of The City Bank of who had fraudulently obtained them York, Pa., for sale.

without any knowledge or notice of that He, however, pledged the bonds to the fact being brought to the attention of the City Bank as collateral to secure a loan officer of the bank transacting the busiof $4300.00 to himself, and when the City Bank was closed, said bonds

And now to wit, March 23rd, 1925: held in its possession as collateral to'se- It is ordered that Peter G. Cameron, seccure said loan, which has never been repaid.

retary of banking, deliver up and re

turn to York Lodge No. 148, Loyal OrNo other officer of the City bank, ex- der of Moose three Kingdom of Nethercept the said assistant cashier, participat-lands Bonds, for 7500 guilders, now in ed in, or had knowledge of, this transac- the possession of said secretary of banktion.

ing, which came to his hands among the Said bonds having been scheduled as assets of the City Bank of York, Pa. assets of the City Bank by the secretary of banking, and offered for sale as such, the owners thereof, petition the court for an order upon the secretary of banking

OBITUARY to deliver up the same to the petitioners. The contention of the respondent is,

John J. Bollinger that the securities are negotiable bonds, without any external indicia of Following a lingering illness of nearly ownership in any particular person upon a year, John J. Bollinger, a member of them, when they were received by the the York County Bar since 1901, died bank in the ordinary course of business, Monday afternoon, March 23, 1925, at it is an innocent holder and they are not 2:30 o'clock, at his home, No. 125 Carrecoverable by the owners thereof. lisle street, Hanover, Pa. After spending

But the well settled rule of law is that several months as a patient in the York the burden of proof is upon the holder of hospital he returned to his home in Hanstolen bonds, in defending against the over two months ago. claim of the owner thereof, to show that John J. Bollinger was born at Hanhe acquired them without knowledge, or over, January 13, 1878, son of Jesse and notice, either actual or constructive, of Ella Bucher Bollinger. His father was the fraudulent acquisition of the same a merchant at that place. His mother by the holder of them.

occupied the home of her ancestors on But in this case, it was the assistant Carlisle street since the death of her cashier of the City Bank itself, who husband. She died just a month ago. fraudulently converted the bonds of the Her son, John, died unmarried. He had petitioner to his own use. Under such I resided with his mother since his father's circumstances, it is held that the bank is death.

as

Mr. Bollinger obtained his preparatory his chosen profession he devoted rare education in the public schools of his na- mental equipment and absolutue integtive town and was a graduate of the rity. He was soon recognized as a good Hanover High school in 1893 with the lawyer. Clients found in him a careful first class to complete the regular high and conscientious adviser and their inschool course and hold commencement terests were served with strict fidelity. exercises.

His counsel was given only after patient One year after his graduation he en

study and mature deliberation. tered the freshman class of Franklin and Hlis conduct at the bar was unpreMarshall college, Lancaster, where he tentious. He was not hasty to lead his completed the full classical course. Soon clients into litigation, but when occasion after returning to his home he entered required he would present their cause to the law offices of Ross & Brenneman, court and jury with ability and zeal. York, that firm being composed of N. His cases were invariably prepared with Sargent Ross, who is at present a Judge painstaking care. As time went on, his of the Courts of York County, and the diligence brought him a successful prac

, late Henry C. Brenneman, who had for

tice. Except for his services on the merly been County Superintendent of county board of viewers, of which he Public Schools of York County. Mr. has been a member for several years, Bollinger was admitted to the bar on his activities were largely given to his July 23, 1901, and remained associated clients. At the age of forty-seven, when with the firm of Ross & Brenneman in coming into full development and ripe the practice of law until the election of experience and enjoying the well earned Mr. Ross to the bench and the death of rewards of faithful work, he has been Mr. Brenneman. At the time of his cut down in the prime of professional death he had offices in the John Hartman life. building

To the court Mr. Bollinger gave the During his whole legal career he also utmost respect and good faith. He was had an office in Hanover where he gave true to the best ideals and noble traattention to clients in the evening.

ditions of the bar. His relations with He is survived by a sister Mary, the his professional brethren were uniformly wife of Rev. Dr. Paul E. Koller, Mans- happy and courteous. His vivacious disfield, Ohio; brother, Preston Bollinger, position and sparkling wit enlivened Philadelphia, and a sister, Anna, wife of every social occasion. His presence alJ. F. Rebert, Hanover.

way's meant good cheer and his friends The deceased was a member of the were numerous and steadfast. The bar Emanuel Reformed church of Hanover has lost a loyal and beloved member and since early boyhood and was also a mem

we here record our affectionate regard ber of different fraternal organizations for his and we shall long cherish the

memory of his life and character. On Wednesday morning, March 25, 1925, Walter B. Mays, Esq., in the

Robert S. Spangler, H. C. Niles, and presence of a large number of the mem- R. P. Sherwood, Esqs., seconded the mobers of the bar, specially assembled, tion, and made eulogistic addresses. moved the court to spread upon the min-Hon. N. Sargent Ross, Judge, paid a utes of the court the following minute:

beautiful and feeling tribute to the memThe members of the York County Bar have been deeply saddened by the death ory of Mr. Bollinger. An order was of John J. Bollinger, Esq., who died male directing the minute to be made a March 23, 1925, after a brave battle with part of the permanent records of the lingering illness.

court. President Judge Wanner, in Mr. Bollinger was admitted to this bar making the order, spoke in appreciative on July 23, 1901. Endowed with a keen terms of Mr. Bollinger's diligence and and alert mind, he readily gained a sound integrity as a lawyer. knowledge of the law and a thorough grasp of its fundamental principles. To

C. P. of

Allegheny Co. and damage by the fire to be $2,370.50.

On December 7, 1921, the plaintiff, Coury, Etc. v. Standard Fire

Couury, assigned his claim to the use Insurance Co.

plaintiff, William Wuerthele. On March 15, 1922, this suit was brought, marked

for the use of Wuerthele, and the afPleading und practice-motion to fidavit of claim made by Wuerthele only,

without setting out any knowledge he had amend after entering judgment for part of the case before he became assignee, of claim- d ffidavit to amended state- and this statement of claim alleges that

on November 21, 1921, the parties duly ment.

entered into an agreement for submisPlaintiff's motion to amend a statement of

sion to appraisers of the question of loss claim in assumpsit, after entering judgment and damage, and a correct copy of the on the amount admitted to be due in the af-agreement is attached to the statement fidavit of defense, was refused, as he had alleged a state of facts to which the defend- / of claim; that the appraisers were duly ant agreed, admitting liability by reason of qualified, and on December 3rd made that state of facts, and the plaintiff cannot what was purported to be an award in be allowed to amend his statement and set up a state of facts inconsistent not only with favor of the plaintiff for $2,370.50 which his former allegations, but also with his award was duiy filed with the defendant. acting upon them in court by entering a judgment founded thereon.

The statement then contains the averAn assignee's affidavit to a motion to ment “that said appraisers did not funcamend a plaintiff's statement of claim was tion as appraisers, within the intent of held invalid where the assignment was made after the happening of all the material mat- the provisions of the policies hereto attors averred in the statement, and did not s tached, and consequently were not comshow what means of knowledge he had or why the plaintiff himself did not make the petent to make this award," and that affidavit.

the appraisal was unfair and unjust and Sur rules to show cause why the use

not binding on the plaintiff. To this plaintiff should not be allowed to file of defense, in which they make defense

statement defendants filed an affidavit amended statement of claim.

for the whole claim except as to the Conrad & FlaHavhan, Frank 1. Gos- award above mentioned; admit the makser, John R. Frankel and John D. Meyer, ing of the award; allege that it was acfor plaintiff.

cepted by both parties, and that the de

fendants agreed to pay their pro-rata John 17. Haverty, for defendants. share in accordance therewith, and al

Shafer, P. J., December 30, 1924.- lege their willingness to pay that proThese actions are upon policies of fire rata share, and that the plaintiff had' deinsurance on

clined to receive it. A praecipe for isthe same property, and the proceedings in each seem to be the sue was filed in February, 1923, and sanie.

nothing further appears to have been The fire occurred October 17, done until January 9, 1924, when the 1921. On November 21st the plaintiff, Coury, and the defendant in each case

plaintiff filed in each of these cases a entered into agreements to arbitrate the praecipe directing the prothonotary to amount of the loss, as provided in the enter judgment for the share of the depolicies. The written agreements con

fendants in the award as “the amount tain the name of Edward Wuerthele as

admitted to be due the plaintiff in the one of the arbitrators, and show his name, ceed for the balance. On October 24,

affidavit of defense” and electing to prostricken out and the name of Carl Partee written in its place, and the agreement 1924, this motion to amend was made, annexed to the statement of claim and a rule granted. shows that Carl Partee and the other ar- The proposed amendment alleges that bitrator named were sworn on the 21st on or about November 21, 1921, the of November, 1921, and selected an um-parties entered into an agreement for umpire, made an award showing the loss submission to Edwin J. Wuerthele, and two arbitrators, without joinder of the another, as appraisers, and that after the umprie, made an award showing the loss' signing of the agreement and without his

reform

consent, the name of Charles Partee was amounts to a plea in abatement or a plea in substituted for that of Edwin J. Wuer- bar; an special plea, or any other technical

pled under the common law system of pleadtheie, and that Partee and the other ap-ing, it must now be treaetd as a “question praiser thereupon made the award as of law," and adjudged accordingly. heretofore stated, and that the award the husband and the wife, for damages re

Where two actions were brought, one by being made by appraisers, not as agreed sulting from the alleged injury of the wife, upon by the plaintiff, was void, and in an automobile collision, and another for

injuries sustained by the husband in the thereupon claiming the loss originally same collision, and the matter was brought sued for.

before the court by affidavits of defense raisOne objection made by defendants to of the actions discontinued, with leave to the

ing questions of law, the court ordered one the allowance of the amendment is that plaintiff's to

the pleadings in the it is not sworn to by the plaintiff, but piher so as to include their separate claims

for damages. by an assignee of the plaintiff, who received his assignment after the happen

Affidavits of defense raising questions ing of all the material matters contained of law in Tucker \linder and Marion in the affidavit, and without showing Winder, his wife, v. I. K. Lukacker, No. What means of knowledge he had and 201 August Term, 1924, and in Tucker Why the plaintiff himself does not make Winder v. I. K. Lukacker, No. 202 Authe affidavit. We are of opinion that gust 'Term, 10924, in the Court of Comthis objection is well taken. There is, mon Pleas of York Co., Pa., however, another objection which goes In No. 201 the plaintiffs claimed damto the right of the use plaintiff to amend , ages for injuries sustained by the wife in as praved for, and that is that in each of an automobile collision, and in No. 202 these cases he has entered judgment the plaintiff, who was one of the plainagainst the defendant for the amount tiffs in 201, claim damages sustained by admitted to be due, which amount the him personally in the same collision. No. affidavit of defense plainly shows was so 202 was ordered discontinued, with leave admitted because it was the amount of to the plaintiffs in No. 201 to reform the award. The fact that a party has their pleadings so as to include the damsworn to a certain state of facts does

ages

claimed in No. 201. not prevent him from afterwards amending and alleging something different or Il'alter B. Hays, for plaintiff. contrary but where, as in this case, he has alleged a state of facts to which the Harvey d. Gross, for defendant. defendant agrees, admitting liability by

Ross, J., February 16th, 1925.-It apreason of that state of facts and the plaintiff takes judgment on that admis- pears from the plaintiff's statement that

on or about the 5th day of May, 1924, sion, it seems to us that he cannot be allowed to amend his statement and set in broad daylight, the plaintiffs, in comup a state of facts inconsistent not only pany with Moses Winder and the latter's with his former allegations, but also with wife, Agnes Winder, were riding in an his acting upon them in court by enter- automobile southwardly upon the public ing a judgment founded thereon. The highway known as the York Road about rules to allow the amendment prayed for a mile north of Cockeysville, in the State are therefore clischarged.

of Maryland, said automobile being driven by Moses Winder."

"While plaintiffs were thus riding C. P. of

York Co.

along their right-hand side of the said Winder et al. v. Lukacher highway, an automobile belonging to and

being operated by the defendant and run

ning northwardly collided with the autoPractice—-1 ffidav'it of defense raising mobile in which the plaintiffs and their

|

companions were riding, severely injurquestions of law-Consolidation of ac-ling the plaintiff, Marion Winder.” tions.

The question of law raised by defend

ant is as follows: "The above action was If the question of law raised by an affida- entered in said court on August 20, 1924, vit of defense amounts, in effect, to a de

treated;

it and on the same day Tucker Winder, one

murrer,

it

should

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of the above plaintiffs, entered a second husband and wife, with their respective action in said court to No. 202 August costs, upon the application of either Term, 1924, in both of which actions the party." plaintiff is claiming damages which arise out of the same accident, transaction, or why four separate suits were brought,

It was not explained at the argument alleged negligent act or acts of the de- but it is plain that the husband and wife fendant which occasioned the injury. I had the right of action “in only one suit Defendant therefore respectfully requests the court to hear and dispose of brought in the names of the husband and the question of law so raised in accord-wife,” as the Act of 1895 prescribes. ance with the provisions of Section 20 of The question now before the court is the Practice Act of May 14, A. D. 1915, not a demurrer, for demurrers in PennP. L. 483."

sylvania practice have been abolished by

the "Practice Act 1915." It is not a It appears by an investigation of the statutory demurrer" (whatever that term records, occasioned by the question of means), but it is simply a plain "queslaw raised by the affidavit of defense, tion of law" raised by the defendant unthat, in the present suit, the husband is der his statutory right, the 20th section suing the defendant for injuries 'occa- of the “Practice Act 1915," by an "affisioned by the alleged collision which, it davit of defense." is alleged, was caused by the carelessness

"A demiurrer

imports, acof defendant. At the same time, the cording to etymology, that the objecting present plaintiff entered suit against the party will not proceed with the pleading. same defendant for injuries alleged to because no sufficient statement has been have been received by himself, at the made on the other side, but will wait the same time, under the same circumstances; judgment of the court whether he is and based upon the same alleged acts of bound to answer:" Stephens on Pleading, carelessness of the same defendant.

14. The intricacies of the several comSuch multiplicity of suits has been vetoed by decisions of our appellate courts. abolished with the evident view of mak

mon law forms of demurring have been The case of fields v. Phila. Rapid Tran- ing litigation more easily and more sit Co., 273 Pa. 282, decides practically promptly effective. Whatever the ques: that “A single claim arising either in tions of law raised by the “affidavit of contract or tort, cannot be divided and defense” may amount to, such "questions made the subject of several suits." Since of law so raised may be set down for the above cited ruling of the Supreme hearing and disposed of by the court." Court, our Superior Court has decided If the question of law so raised amounts, that "the claim of a married woman for damages for personal injuries resulting treated. 'If it amounts to a plea in abate

in effect, to a demurrer, it should be so from the negligence of the defendant, ment or a plea in bar, a special plea or and the claim of her husband for his ex

any other of the many technical pleas inpenses and loss of her services may pro- dulged in by lawyers under the old comperly be united in one cause of action with his claim for property damages aris- mon law system of pleading, it, neverthe

less, must now be treated by the court as ing out of the same accident.” Hug, et

a "question of law." In Stephenson ux. v. Hall. 79 Supr. Ct., 392. See also Pleading. 147. it is said, "that on a deopinion of Mr. Justice Linn in case of Frankel v. Quaker City Cab Co., 82 Pa murrer, the court will consider the whole

.

record and give judgment for the party Supr. Ct., 217-218.

who, on the whole, appears to be entitled The Act of Assembly approved May to it.” 8th, 1895, P. I. 54, sec. I, makes it im- The question of law raised in this case perative on the husband or wife who calls our attention to the court's records. claim damages for injuries, to seek re- Those records disclose that there are four dress only in one action, and the 4th suits entered against one defendant when section of the Act makes it the impera- the law expressly forbids, by an Act of tive duty of "the court to consolidate General Assembly, the bringing of more such sits as are brought separately by (at the most) than two suits.

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