Sur petition of the York Lodge No. 148 Loyal Order of Moose, for an order on the Secretary of Banking, liquidator of the City Bank of York, Pa., to deliver to the petitioner certain bonds, in No. 51 August Term, 1923, in the Court of Common Pleas of York County, Pa. Order granted.

Robert C. Fluhrer, for petition.
Robert S. Spangler, contra.

affected with the guilty knowledge of its officer, and is therefore not such an innocent holder of the securities, as can successfully defend on that ground, against the demand of the owners thereof: Conneautville Bank's Assigned Estate, 280 Pa. 545; Winslow v. Harriman Iron Co., 42 S. W. 698; Ballard v. Audobon Nat. Bank, 222 Fed. 57; Curtis v. Crawford Co., Band, 110 Fed. 830; Ditty v. Bristol Nat. Bank, 75 Fed. 769; 9 C. J. Par. 102, page 63; 7 C. J. Par. 134, p. 530.

The case of Cochrane v. Fox Chase Bank, 209 Pa. 34, cited by respondents counsel, does not rule this case. The se

Wanner, P. J., March 23, 1925.-The bonds in question in this case belonged to the York Lodge No. 148, Loyal Order of Moose, and were delivered by the trus-curities in question in that case were tees of said Lodge to William H. Boll, assistant cashier of The City Bank of York, Pa., for sale.

pledged as collateral by an outside party, who had fraudulently obtained them without any knowledge or notice of that fact being brought to the attention of the officer of the bank transacting the busi

ness.

He, however, pledged the bonds to the City Bank as collateral to secure a loan of $4300.00 to himself, and when the City Bank was closed, said bonds were still held in its possession as collateral to se- It is ordered that Peter G. Cameron, secAnd now to wit, March 23rd, 1925: cure said loan, which has never been repaid. retary of banking, deliver up and return 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 banking, which came to his hands among the assets of the City Bank of York, Pa.

tion.

Said bonds having been scheduled as 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 to deliver up the same to the petitioners.

The contention of the respondent is, that as the securities are negotiable bonds, without any external indicia of ownership in any particular person upon them, when they were received by the bank in the ordinary course of business, it is an innocent holder and they are not recoverable by the owners thereof.

But the well settled rule of law is that the burden of proof is upon the holder of stolen bonds, in defending against the claim of the owner thereof, to show that he acquired them without knowledge, or notice, either actual or constructive, of the fraudulent acquisition of the same by the holder of them.

OBITUARY

John J. Bollinger

Following a lingering illness of nearly a year, John J. Bollinger, a member of the York County Bar since 1901, died Monday afternoon, March 23, 1925, at 2:30 o'clock, at his home, No. 125 Carlisle street, Hanover, Pa. After spending several months as a patient in the York hospital he returned to his home in Hanover two months ago.

John J. Bollinger was born at Hanover, January 13, 1878, son of Jesse and Ella Bucher Bollinger. His father was a merchant at that place. His mother occupied the home of her ancestors on Carlisle street since the death of her husband. She died just a month ago. Her son, John, died unmarried. He had resided with his mother since his father's

But in this case, it was the assistant cashier of the City Bank itself, who fraudulently converted the bonds of the petitioner to his own use. Under such circumstances, it is held that the bank is' death.

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 school course and hold commencement exercises.

and conscientious adviser and their interests were served with strict fidelity. His counsel was given only after patient study and mature deliberation.

One year after his graduation he entered the freshman class of Franklin and His 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 praclate 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 with the firm of Ross & Brenneman in the practice of law until the election of Mr. Ross to the bench and the death of Mr. Brenneman. At the time of his death he had offices in the John Hartman building.

During his whole legal career he also had an office in Hanover where he gave attention to clients in the evening.

clients. At the age of forty-seven, when coming into full development and ripe experience and enjoying the well earned rewards of faithful work, he has been cut down in the prime of professional

life.

To the court Mr. Bollinger gave the true to the best ideals and noble traHe was utmost respect and good faith. 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, Philadelphia, and a sister, Anna, wife of J. F. Rebert, Hanover.

The deceased was a member of the Emanuel Reformed church of Hanover since early boyhood and was also a member of different fraternal organizations.

position and sparkling wit enlivened every social occasion. His presence always meant good cheer and his friends were numerous and steadfast. The bar has lost a loyal and beloved member and we here record our affectionate regard for his and we shall long cherish the memory of his life and character.

On Wednesday morning, March 25, Robert S. Spangler, H. C. Niles, and 1925, Walter B. Mays, Esq., in the 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 made 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 making the order, spoke in appreciative terms of Mr. Bollinger's diligence and integrity as a lawyer,

Mr. Bollinger was admitted to this bar on July 23, 1901. Endowed with a keen and alert mind, he readily gained a sound knowledge of the law and a thorough grasp of its fundamental principles. To

amended statement of claim. Conrad & FlaHavhan, Frank 1. Gos-award above mentioned; admit the makser, John R. Frankel and John D. Meyer, for plaintiff.

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, a special plea, or any other technical plea under the common law system of pleadtheie, and that Partee and the other ap-ing, it must now be treaetd as a "question of law," and adjudged accordingly. praiser thereupon made the award as heretofore stated, and that the award the husband and the wife, for damages reWhere 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 thereupon claiming the loss originally sued for.

injuries sustained by the husband in the

same collision, and the matter was brought

before the court by affidavits of defense raising questions of law, the court ordered one of the actions discontinued, with leave to the plaintiffs to reform the pleadings in the other so as to include their separate claims

for damages.

In No. 201 the plaintiffs claimed damages for injuries sustained by the wife in an automobile collision, and in No. 202 the plaintiff, who was one of the plaintiffs in 201, claim damages sustained by him personally in the same collision. No. 202 was ordered discontinued, with leave to the plaintiffs in No. 201 to reform their pleadings so as to include the damages claimed in No. 201.

One objection made by defendants to the allowance of the amendment is that it is not sworn to by the plaintiff, but by an assignee of the plaintiff, who received his assignment after the happenAffidavits of defense raising questions. ing of all the material matters contained of law in Tucker Winder 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, 1924, in the Court of Comthis objection is well taken. There is, mon Pleas of York Co., Pa., however, another objection which goes to the right of the use plaintiff to amend as prayed for, and that is that in each of these cases he has entered judgment against the defendant for the amount admitted to be due, which amount the affidavit of defense plainly shows was so admitted because it was the amount of the award. The fact that a party has sworn to a certain state of facts does not prevent him from afterwards amending and alleging something different or contrary but where, as in this case, he has alleged a state of facts to which the Harvey A. 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 sion, it seems to us that he cannot be al-on or about the 5th day of May, 1924, in broad daylight, the plaintiffs, in comlowed to amend his statement and set up 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 of Maryland, said automobile being drivare therefore discharged. en by Moses Winder."

C. P. of

York Co.

Winder et al. v. Lukacher

Walter B. Hays, for plaintiff.

"While plaintiffs were thus riding along their right-hand side of the said highway, an automobile belonging to and being operated by the defendant and running northwardly collided with the autocompanions were riding, severely injurmobile in which the plaintiffs and their

Practice—Affidavit of defense raising questions of law-Consolidation of ac-ing the plaintiff, Marion Winder."

tions.

If the question of law raised by an affidavit of defense amounts, in effect, to a deit should be SO murrer, treated; if it

The question of law raised by defendant is as follows: "The above action was entered in said court on August 20, 1924, and on the same day Tucker Winder, one

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 alleged negligent act or acts of the defendant which occasioned the injury. Defendant therefore respectfully requests the court to hear and dispose of the question of law so raised in accord ance with the provisions of Section 20 of the Practice Act of May 14, A. D. 1915, P. L. 483."

It appears by an investigation of the records, occasioned by the question of law raised by the affidavit of defense, that, in the present suit, the husband is suing the defendant for injuries occasioned by the alleged collision which, it is alleged, was caused by the carelessness of defendant. At the same time, the present plaintiff entered suit against the same defendant for injuries alleged to have been received by himself, at the same time, under the same circumstances, and based upon the same alleged acts of carelessness of the same defendant.

Such multiplicity of suits has been vetoed by decisions of our appellate courts. The case of Fields v. Phila. Rapid Transit Co., 273 Pa. 282, decides practically that "A single claim arising either in contract or tort, cannot be divided and

It was not explained at the argument why four separate suits were brought, had the right of action "in only one suit but it is plain that the husband and wife brought in the names of the husband and wife," as the Act of 1895 prescribes.

The question now before the court is not a demurrer, for demurrers in Pennsylvania practice have been abolished by the "Practice Act 1915." It is not "a statutory demurrer" (whatever that term. means), but it is simply a plain "question of law" raised by the defendant under his statutory right, the 20th section of the "Practice Act 1915." by an “affidavit of defense."

"A demurrer

*

* *

cording to etymology, that the objecting imports, acbecause no sufficient statement has been party will not proceed with the pleading. judgment of the court whether he is made on the other side, but will wait the bound to answer:" Stephens on Pleading, 44. The intricacies of the several comabolished with the evident view of makmon law forms of demurring have been promptly effective. Whatever the quesing litigation more easily and more tions of law raised by the "affidavit of made the subject of several suits." Since of law so raised may be set down for defense" may amount to, such "questions 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, treated. If it amounts to a plea in abatein effect, to a demurrer, it should be so ment or a plea in bar, a special plea or penses and loss of her services may pro-dulged in by lawyers under the old comany other of the many technical pleas inperly be united in one cause of action with his claim for property damages aris-mon law system of pleading, it, nevertheing out of the same accident." Hug, et less, must now be treated by the court as ux. v. Hall, 79 Supr. Ct., 392. See also In Stephens on a "question of law." opinion of Mr. Justice Linn in case of Pleading, 144, it is said, "that on a deFrankel 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 to it."

that "the claim of a married woman for damages for personal injuries resulting from the negligence of the defendant, and the claim of her husband for his ex

The Act of Assembly approved May 8th, 1895, P. L. 54, sec. 1, makes it imperative on the husband or wife who claim damages for injuries, to seek redress only in one action, and the 4th section of the Act makes it the imperative duty of "the court to consolidate such suits as are brought separately by

The question of law raised in this case calls our attention to the court's records. Those records disclose that there are four suits entered against one defendant when the law expressly forbids, by an Act of General Assembly, the bringing of more (at the most) than two suits.