Графични страници
PDF файл
ePub
[ocr errors]

Rule to set aside service of writ.

The act does not say “where the party The grounds for the rule are given in resides at the time the insurance is effectthe Court's opinion.

ed,” nor does the place of assignment or V. K. Keesey for rule.

the place of residence of the assignee set

tle the jurisdiction. In the first act it is E. W. Spangler, contra.

the location of the property destroyed, for July 2, 1883. WICKES, P.J. The com

then only does the right of action accrue, pany defendant was incorporated under and in the supplement it is as we have the laws of this state, and has its princi- said, and, for the same reason, where life pal office at the city of Allentown, in Le- becomes extinct or the accident occurs. high County. Suit has been instituted by

This view of the acts of assembly does the plaintiff in this county, and we are not, we think, conflict with the decisions asked to set aside the service of the writ. of the Supreme Court in Quinn v. Fidelity

The admitted facts disclose that Louisa Beneficial Society and Spangler v. Penn. Rousch resided in the Borough of York Aid Society, 4 YORK LEGAL RECORD 33 at the time the company's certificate of and 34; 12 W. N. C. 311 and 312. In insurance was issued upon her life, to wit, the latter case it is said “the insuron August 29th, 1878. That she assigned ance was effected in York County—the the said certificate of membership to the subject of the risk died there," indicating plaintiff on the 16th of September, 1878, that something more is necessary than a who was at that time, and continues to be residence in the county at the time the cera resident of this county. That on the tificate of membership is issued. Certainly 28th day of November, 1879, Louisa in the absence of an assignment, her legal Rousch moved to the city of Baltimore, representatives living in Baltimore, and in the State of Maryland, and resided sueing in this State, could not select this there until her death, which occurred forum, but would be required to sue in October 28th, 1882.

Lehigh-why then should the assignee, Suit was brought in this county, and whose rights are derived directly through the writ directed to the sheriff of Lehigh the insured, enjoy a more extended priviCounty, and returned served by him, un- lege in this regard. der the supposed authority of the acts of We think the service of this writ must Assembly, approved April 24, 1857, (P. be set aside. L. 318,) and its supplement of April 8, 1868, (P. L. 70.) The original act per- Vendor and Vendee--Change of posmitted suit to be brought “in any county session.-A change of location of the where the property insured may be lo- property is not essentially necessary. If cated, and to direct any process to the the purchase was in good faith and for a sheriff of either of the counties of this valuable consideration, followed by acts commonwealth.” The supplement of intended to transfer the possession as well 1868 declares that all the provisions of the as the title, and the vendee assumed such former act “shall apply to life and acci- control of the property as to reasonably dent insurance companies."

indicate a change of ownership, the deTo say in the act of 1857 that suit may livery of possession cannot, as matter of be brought in the county where the prop- law, be held insufficient-13 Pittsburgh erty insured is located is tantamount to | Legal Journal 453. saying in any county where the property insured is destroyed, and hence the loca- Blue, Green and Gray are the names of tion of the property destroyed would de- three merchants doing business in the termine the jurisdiction in which suit Bowery, New York, within a block of could be brought.

each other.

VOL. IV.

No. 19.

[ocr errors]

a

YORK LEGAL RECORD. for which they received credit on the

plaintiffs' books. THURSDAY, JULY 12, 1883.

Second. That Jacob Johnson was the COMMON PLEAS.

member of the firm of M. S. Johnson &

Co., who conducted this transaction with Thomas, Chambers & Co. v. Everhart & Co. the plaintiffs, and that at the time when Sale—- Personal Property—- Change of

the sale was made, it was the understand

ing that M. S. Johnson & Co. were to have Possession.

the use of the car on paying for it—it was J. & Co., being indebted to T., C. & Co., sold to them a

so stated at the time the plaintiff's bought powder car, with the understanding, however, that J. & Co. were to have the use of it by paying switch charges and a certain sum per year. The car was removed from

the car—that Jacob Johnson said that he the switch

upon which it was standing, to another. Seven or eight days thereafter the car was used by J. & Co., and

was to have the use of it according to afterwards; and finally, while so used, was attached and sold as the property of the said J.& Co. HELD, in an action

agreement, and that Mr. Holland, one of of replevin brought by T., C. & Co: against the purchaser the plaintiffs, with whom the sale and

salethe plaintiff recover The removal of the car from one switch to another, was purchase of the car was negotiated, said 1 sufficient change of possession to vest the property in the plaintiff.

that Johnson should have the use of the The agreement that J. & Co. were to have the use of the car by paying for it. Accordingly, either car by paying the switch rent, repairs and $18 per year," was such a qualification of the plaintiffs' possession as to at the time of the transaction above rerender the sale fraudulent in law.

ferred to, or in a short time afterwards the The possession of the car by the plaintiffs was not so continued as to make it available to them against the claims of the creditors of J. & Co.

terms on which M. S Johnson & Co.

were to have the use of the car, and the The report of the Referee in this case,

amount of “rent” to be paid by them was (Hon. Thomas E. Cochran, now deceased,) although never excepted to, and definitely settled and agreed upon between therefore not confirmed by any judicial Jacob Johnson and the plaintiffs. The car

was never used by the plaintiffs; but havaction thereon, is nevertheless so decisive of the question involved, that, upon re ing been constructed for the special purquest, we have given it place in our col- pose of transporting powder, was used by

M. S. Johnson & Co. until the dissolution umns.

of that firm in 1872 or 1873, when M. S. The suit was replevin, brought by the Johnson went to Chambersburg and went plaintiff for one four-wheeled house car

out of partnership, and afterwards by of the alleged value of $354.00, claimed Jacob Johnson until its sale under execuby the plaintiffs to belong to them. The tion as hereinafter mentioned. defendants claimed property, gave bond to the Sheriff, and retained possession of Third. That the day after the sale of the car.

the car by M. S. Johnson and Co., to the A: N. Green for plaintiff.

plaintiffs, Thomas G. Cross, Esq., the

clerk of the plaintiffs, gave directions, in Blackford & Stewart for defendant.

compliance with their instructions, to have The Referee's report is in substance as

the car removed from the switch of Geo. follows:

A. Barnitz, to which it was locked by a First. On the 5th day of September, chain around the wheel, to the switch of

. 1870, Jacob Johnson and Milton S. John- John M. Brown, a short distance from son, then partners in the business of manu- Barnitz's, and the removal was made by facturing powder, were indebted to

some employee of the Northern Central Thomas, Chambers and Co., the plaintiffs Railway Company with whose track both in this suit, and on that day sold to said switches were connected, where the car plaintiffs the car, which is the subject of was seen two or three days afterwards, the present action, in part settlement of and was then in the possession of the that indebtedness, for the sum of $300, plaintiffs.

[ocr errors]

a

on the

Fourth. That on the 16th day of July, levy, condemnation, execution and sale to 1874, the car, being in the possession of them under legal process in Maryland, Jacob Johnson and in the county of Baltir their possession and title to the car are more and State of Maryland, process of good and available in law against the attachment was issued by Henry Weir, a plaintiff's claim. Justice of the Peace of said county, on the

The first question that seems to suggest oath of one Jarrett Cole, representing that itself is, was the sale by M. S. Johnson & Jacob Johnson was indebted to the affiant Co. to the plaintiffs on the 5th day of in the sum of $13.36, and was not a resi- September 1870, attended or followed

, dent of, and did not reside in the State of within a reasonable time thereafter, with Maryland. Similar proceedings were had

an open, complete and actual possession at the instance of Pleasant Hunton,

of the property ? 15th, and Thomas J. Hunton on the 18th

If it was not, the sale was not valid day of the same month and year, for $70.62 and $14.89 respectively. Joseph W. Nel- against creditors. The evidence seems son, the constable, to whom the writs of clearly to establish the fact that such pos

session of the car was taken. It is said attachment at the suits of Jarrett Cole

that “the delivery must be actual, and such and Pleasant Hunton were issued, return

as the nature of the property of the thing ed that he had “levied on the rights and titles of the said Jacob Johnson in and sold, and the circumstances of the sale,

will reasonably admit, and such as the unto one powder car and contents.” On

vendor is capable of making ;” Billingsly the 15th of August, 1874, the justice en

v. White, 9 P. F. Smith 464; McMarlin v.

9 tered judgment of condemnation of the property attached as of the goods and English, 24 P. F. Smith 300; McKibben

v. Martin, 14 P. F. Smith 352. In this chattels and effects of Jacob Johnson, de

case the subject of the sale was a railroad fendant, and on the 18th day of the same

It could not be removed from the month and year, issued an execution to

track for use in any other way; it was the same constable commanding him to

fitted only for transportation by rail. The sell the attached property, including the car in controversy in this case, to the de- very next day after the sale steps were

taken for its removal from Barnitz's fendants who paid the amount of the pur

switch, to which it was fastened by chase money to the officers, and received

chains, to Brown's switch, some distance possession of the car.

-not far off; where it remained, and the Fifth. That the value of the case at the plaintiffs had it under their dominion and time of the sale of the Constable to the control. If there had been no arrangedefendants on the 31st day of August, ments between buyer and seller at the 1874, was $175.00.

time of purchase and sale to qualify the The facts thus found constitute, as I rights of the purchasers, and if the possesbelieve the material facts in the car, as sion had been continued in them, I have proved and necessary to its determination. no doubt that the transfer of possession The plaintiffs contend that they estab

would have been effectual. a

was Co. to them as will protect the property there any stipulation connected with the from levy and sale at the suit of creditors purchase and sale of the car, by which of M. S. Johnson & Co., or Jacob John- the vendors retained a beneficial interest

The defendants deny this conten- in the property for their own interest or tion of the plaintiffs, and insist that the advantage? At the very time of the property, being in the possession of Jacob sale, according to the testimony of the Johnson, at the time of its attachment, | plaintiff's witnesses, it was agreed be

car.

lish such a sale by M. S. Johnson and & The second inquiry that arises is,

son.

[ocr errors]

a

tween the parties that M. H. Johnson 19 P. F. Smith, 134, the Supreme Court and Co., and Jacob Johnson should have said "But in this case before us, the the right to use the car by paying for it, possession taken by the plaintiff was not and in accordance with that agreement, exclusive. At the most it was only conin about a week or ten days we find the current, and it continued but seven or car in their use and possession. The pur- eight days, and was then surrendered, chasers never used it—it was used only when the vendor had the exclusive posby the vendors. The testimony of Jacob session and carried on the business just as Johnson, a witness called by the plaintiffs, he did before the sale;

and if and the one who effected the sale to them, the possession for the seven or eight days or one part of it, was—"'we were to keep succeeding the sale had been conclusive, the car, and pay them $18 a year, the instead of covenant, it would not have switch rent and repairs." It wa pow- vested the title in the plaintiff because the der car, exactly adapted to the uses of possession was then surrendered to the the uses of the firm of M. S. Johnson and vendor. Change of possession must not Co., and of Jacob Johnson, who were only be actual, but it must be continued in manufacturers of powder. They had an order to render a sale valid as against the advantage in thus bargaining for the use vendor's creditors.” In Webster v. Peck, of the car, as is evident from Johnson's 31 Conn. 495, cited in Davis v. Bigler, 12 studied reference to it, when after the P. F. Smith 242, this doctrine is stated : transaction was closed, he and M. Hol- "Where the vendor of a horse within a week land went to the plaintiff's clerk and told after the sale bired him of the vendor and him of the sale. Johnson then said “he was using him to all appearance as his would have to have the use of the car own in the same manner as before the according to the agreement.” Was not sale, it was held a restoration of the posthis a reservation of the property for the session.” See also Twine's Case, and use and benefit of the vendors ? “It was notes, i Smith's Leading cases, Part 1, part of the transaction and contempora- beginning on page 34, and especially neous with its consumation." It qualified page 77. The possession of personal the delivery of the possession of the car property is always a leading index of to the plaintiffs with such stipulations in ownership; and if not real, tends to give favor of the vendors, as to render “the

a false credit, and to lead to the perpetrasale, whether fraudulent in part or not, tion of frauds upon innocent parties. In clearly fraudulent in law, because there the present case, the possession by the was no such change of possession as the vendees was not so continued as to make law requires in order to render a sale valid the sale valid against the creditors of the as against creditors : "Bentz v. Rockey, vendors. As Jacob Johnson continued in 19 P. F. Smith 71.

possession of the property after the dis

solution of the firm of M. S. Johnson & A third inquiry that arises is, was the possession of the car taken by the plain Co., his creditors could seize and sell it in tiffs so continued as to make it available

satisfaction of his debts. to them against the claims of creditors of The defendants' counsel submitted to M. S. Johnson and Jacob Johnson. We the undersigned in writing and requested find it back in the hands of the vendors him to answer in like manner three sevein a short time. Johnson testified that he ral points, which are attached to this retook the first load of powder in that car port. I answer that the said points are after the 6th of September, some six, all correct propositions of law, and, referseven, eight or ten days, to Hagerstown ring to the views above expressed, also or Chambersburg. In Miller v. Garman, that so far as they are applicable to the

a

facts of this case, they are correctly stated. notorious as against the vendor, i e, the I deem it unnecessary to give distinct and property must either pass from the detailed answers to each, as the above re- seller to the buyer, or the seller must pass port sufficiently defines my views of the away from the property leaving it in the law of the case applicable to its special possession of the buyer : facts, and particular answers to the points Garman v. Cooper, 22 Smi. 32.

Worman v. Kramer, 23 Smi. 385. would consist of mere repetition of what

Davis v. Bigler, 12 Smi. 246. I have already said.

Barr v. Reitz, 3 Smi. 256. On the views which I entertain of the [This case reminds us of another of a facts and law of this case, I am of the somewhat similar nature, in which Wm. opinion that the plaintiffs have no cause Hay, Esq., now deceased. (and law partof action, and do, therefore render my ner of Mr. Cochran) was Referee. That award in favor of the defendants.

was the case of Tochterman V. Adams The defendants points were as follows:

Express Company, 1 YORK LEGAL Re

CORD 165. The goods of the plaintiff, ist. If Johnson, the alleged vendor of the plaintiffs, sold to plaintiffs the car in John Tochterman, Jr., were attached in question, but retained possession of said Maryland and sold as the property of John

Tochterman (plaintiff's father.) The car, and continued to use it as before said

Adams Express Company were served as alleged sale, the transaction as a sale was fraudulent and void as against the creditors garnishees in the attachment, but failed to

. of the vendor of the plaintiffs, although appear. They notified plaintiff of the at

, no actual fraud was intended by the par

the time within which to attend to the ties, and the plaintiffs are not entitled to

matter, and when he arrived at Baltimore recover in this suit:

the goods were sold. He brought suit Garman v. Cooper, 22 Smith 32. Trunick v. Smith, 13 P. F. Smith 18.

against the company, and the Referee 2d. If Johnson, the vendor of the plain- found for the plaintiff. tiffs, actually sold the car in question to the plaintiffs ; and if at the time of the

Abstracts of Recent Decisions. sale, or within a reasonable time thereafter, the plaintiffs took possession of the

(Cases not otherwise designated are said car, and within a few days subse- Supreme Court cases.) quently re-delivered said car to their vendor, Johnson, and Johnson continued, after suits.--Suit was brought before a justice

Justice of the Peace--Set-off-Two such redelivery to him, to use said car as of the peace for the price of a barrel of his own, and his name remained upon the coal oil, and judgment given for the full car, as before such sale to plaintiffs, the amount of the claim. The defendant had sale as between the creditors of Johnson complained before suit that there was a and his vendees was fraudulent, and the therefor, before another justice, who gave

leakage, and subsequently brought suit plaintiffs are not entitled to recover in judgment in his favor. Held, on certiothis suit :

rari, that the proceedings before the second Garman v. Cooper, 22 Smi. 32.

justice must be reversed, as the demand Davis & Pugh v. Bigler & Son, 12 Smi. 242. should have been presented as a set-off

3rd. That to constitute a valid sale of in the first suit.-Armstrong v. Johnson, personal property as against creditors of (Chester C. P.) 2 Chester County Rea vendor there must be an open, complete

ports 64. and actual possession of the property

VERNON, the star route juror who was taken by the vendee at the time of, or

seized with fits, some said delirium trewithin a reasonable time after the sale, mens, in the court room, has fallen heir which possession must be continued and to a large sum of money.

« ПредишнаНапред »