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words of the Act, neither she, nor her to testify, nor would proof of his hand husband, under Bitner v. Boone, supra, writing be admitted; Mackrel v. Wolf, is competent to testify to any fact occur- 104 Pa. 421. If disinterested at the time ing in Finley's life time.

of attestation, but becoming interested And it matters not that the facts to afterward, proof of his hand writing which the interested witnesses were call- could be received ; Hamilton v. Varsdon, ed on to testify to may have been such to 6 Binn. 45. which Finley was an entire stranger, in In this case, I think it plain that the which he was not a participant, or in subscribing witness was rendered incomwhich he was represented by an ageni petent to testify by Finley's death, and living and competent to testify and be that proof of his hand writing could not present at the trial; Sutherland v. Ross, have been received. 140 Pa. 379. It is the occurrence of the It is to be regretted that the plaintiff fact in the life time of the decedent party, did not prove this part of her case by and not his participation in it thai ex- competent testimony and thus save the cludes the other party; Sutherland v. need of a new trial. It is to be observed Ross, supra, and cases there cited which that both the lessors were upon the stand are full to the point; Parry v. Parry, 130 and neither one was asked about the exePa. 94; Karns v. Tanner, 66 Pa. 297. cution of the leases.

Neither is it material that Marshall, Rule for new trial made absolute. the execution creditor, indemnified Finley. The estate of the latter is still pri- Taylor v. Baltimore and Lehigh Railroad Co. marily liable, and is defending this suit; Railroads-Insolvent-Receiver - Powin fact must do so in order to make the

ers of-Sale of indemnity available; and whether the indemnity shall prove fruitful may depend States Circuit Court in Pennsylvania stands

A writ of fi. fia. issued from an United on a suit on the bond. It is obvious that

upon the Act of April 7, 1870. Finley's estate has an interest in the suit,

Its execution is dependent upon that statute to which that of Mrs. Quickel is adverse; and there can be no stronger warrant for its exand it is that fact, and not the quantum ecurion upon the property of the corporation of the interest, that excludes the adverse- this court, than a fi fia, issued out of a court of

defendant, now in the hands of the receiver for ly interested witness from testifying; this Commonwealth, upon the same property

. Greenleaf Evid. 14th edit. p. 507. And The estate and effects of the defendant corif the bond of indemnity had the effect of poration are in the custody of the court, and removing Finley's interest, it could only therefore the fi. fia. cannot be executed after

the appointment of a receiver, without the condo so by transferring it to Marshall by

sent of the court. Finley's act in accepting the bond, and

The court having taken charge of the propthe witness would be as incompetent erty of the corporation, it is required to preagainst Varshall as against Finley's ad- serve as far as possible the equities of all parministrator.

ties in interest, including, of course, the crediIt was of vital importance to the plain-tors in this proceeding.

When a Court, upon a petition and without tiff's case to prove that the leases referred objection, granted leave to a U. S. Marshall to to were actually executed at the time they execute a writ of fi. fia. upon the property of a bear late, for they constitute her only corporation of which it had appointed a retitle to a large part of the property for ceiver, such leave will be revoked upon petition the levy and sale of which this suit is of intervening creditors, showing that their brought. If executed at that time, then claims would be jeopardized and their liens

. her execution was a fact occurring in the The court will authorize a receiver of a raillife time of Finley, which cannot be es- road company to issue certificates for the purtablished by an adversely interested wit- chase of a locomotive, where it is satisfied that ness. It seemed at the trial that the com- the safe and convenient operation of the road.

such purchase is imperatively demanded for petency of a subscribing witness rested

It is the right and duty of the Court to keep on a somewhat different principle, but the road in safe and successful operation, while the supposed Jistinction is illusive and it is under the control of the Court. It must be unsubstantial. The rule at common law kept a going concern, for the benefit of the

hondholders, creditors and all parties interested. was that when a subscribing witness was interested as well at the time of the exe- should be operated even at the expense of

The public good requires that railroads cution as at the trial, he was incompetent some detriment to private interests.



On May 18, 1893, petition of plaintiff This is the only authority known to was filed, setting forth the insolvency of this court for the ordering and execution the company, and praying for the ap- of the fi. fa. in question. For the Acts pointment of a receiver and on same day of Congress of 1789, 1790, 1828, and othWinfield J. Taylor was appointed re- er similar acts, providing that the modes ceiver as prayed for. On May 31, 1893, of process in circuit and district courts in petition of bondholders of the York and suits at law shall be the same in each Peachbottom Railroad Co, to rescind the state as shall be allowed by the Supreme appointment of Taylor and praying for Court of such states, see U. S. R. S., I the appointment of the York Trust, Real Stat. at Large 54; R. S., sec. 721, etc., Estate and Deposit Co. as such receiver. and a review of said Acts of Congress in June 28, 1893, petition of Joseph M. Riggs v. Johnson Co., 6 Wall. 166; WayStreet for the removal of said Taylor man v. Southard, 10 Wh. I; U. S. v. filed. On January 29, 1894, leave was Halstead, 10 Wh. 51. granted to the U. S. Marshall for the As to the practice under said Acts, see Eastern District of Pennsylvania to exe- the following cases; Wayman v. Southcute the writ of alias fi. fa. issued against ard, and U. S. v. Halstead, supra; Ross the Baltimore and Lehigh Railroad Co. v. Duvall, 13 Pet. 45; U. S. v. Knight, upon a judgment in the U. S. Circuit 14 Pet. 301; Massengill v. Downs, 7 Court. March 1, 1894, petition for re- How. 760. vocation of said permission to sell. After The Act of Congress of June 1, 1872, hearing the Court filed the following U. S. R. S., p. 174, sec. 916, is as folopinion:

lows: "The party recovering a judgment March 3, 1894. BITTENGER, J.-At in any common law case in any circuit or the time of the presentation of the bill district court shall be entitled to similar and petition of Alexander P. Colesberry, remedies upon the same, by execution or United States Marshall for the Eastern otherwise to reach the property of the District of Pennsylvania, the defendant judgment debtor as is now provided in corporation and Winfield J. Taylor, the like causes by the laws of the state in receiver appointed by this court, appear- which said court is held, or by any laws ed by counsel and joined in the prayer hereafter enacted which may be adopted for the making of the order and decree by such circuit or district court; and such of the court authorizing the execution of court may from time to time, by general the above mentioned writ. In the ab- rules adopt such state laws as may, heresence of objection, upon said bill and pe- after, be in place in such state, in relation tition, and the assent of said defendant to remedies upon judgments as aforecorporation, and the receiver, the court said, by execution or otherwise." made the order and decree which the The fieri facias, therefore, stands upon present intervening creditors and other the Act of Assembly of April 7, 1870, creditors of like character now pray the above cited. Its execution is dependent court to suspend or modify or revoke. upon that statute and there can be no

The execution issued by the circuit stronger warrant for its execution upon court is part of the suit, and is the means the property of the corporation defendemployed for enforcing the judgment. ant, now in the hands of the receiver for We cannot inquire into the regularity this court, than a fi. fa, issued out of a and validity of either the judgment or the court of this Commonwealth, upon the fieri facias. If either is to be attacked, same property. the attack must be made in the court en- The creditors asking to intervene in tering the judgment and issuing the exe- this case and for a suspension or modificution. This is too well settled to re- cation of the order and decree of the quire the citation of any authorities.

court allowing the execution of the fieri The first section of Act of Assembly of facias, upon examination of their bills April 7, 1870, P. L. 58, Purdon's Digest, and petitions appear to be creditors of p. 359 pl. 118, provides for the levy and the corporation defendant, before and sale of any personal, mixed of real prop- since the appointment of the receiver. erty, franchises and rights, of any cor- These intervening creditors aver that poration, upon a fieri facias, as therein they had, and have liens upon the propprovided.

erty, rolling stock, &c., of said corpora

tion, some of them prior in right to the It is ordered and decreed that the order lien of the mortgages.

Some of the and decree of the court made on the 27th claims and demands are against the re- day of January, 1894, permitting and ceiver; and are similar to claims recog- authorizing Alexander P. Colesberry, nized by the court and ordered to be paid Esq., Marshall of the United States for by the receiver. It is further averred the Eastern District of Pennsylvania, to that their claims are jeopardized and execute the alias writ of fi. fa., recited in their liens are endangered by the impend- said order and decree, to wit: No. 15, ing sale on the fi. fa., and they assert that October Sessions, 1893, in the Circuit they are entitled to equitable relief, to Court of the United States, Eastern Disprevent irreparable injury.

trict of Pennsylvania, upon the personal, The estate and effects of the defendant real and mixed property, franchises and corporation are in the custody of the rights, of the said defendant corporation court, and therefore the fieri facias can- in the hands of Winfield J. Taylor, renot be executed after the appointment of ceiver, be and the same is hereby revoked. a receiver, without the consent of the Motion for permission to purchase, &c. court.

Stewart, Niles & Neff for motion. “After property has once passed into V. K. Keesey, contra. the hands of a receiver, no person can

On March 26, 1894, a petition was acquire any lien upon it by judgment, filed for leave to purchase a locomotive execution, "attachment, garnishment or for the use of the road. To this petition other process, without leave of the court objections were filed by one of the bondappointing the receiver"; Gluck & Beck- holders. er on Receivers of Corporations, p. 131, April 3, 1894. BITTENGER, J.-Upon note 1, and cases cited; 2 Weimer Penna. hearing this application and the affidavits R. R. Law, pp. 819, 820, and cases cited filed in support thereof, it appears to our in note; Wood's Rail Way Law, 1656- satisfaction that the purchase of an ad1657

ditional locomotive is imperatively deIn Robinson v. The Allegheny and manded, for the safe and convenient opGreat Western Railway Co., 66 Pa. 160, eration of that portion of the Baltimore an execution levied upon land of a rail- and Lehigh R. R. situate in the county of road company, in the hands of a receiver, York and State of Pennsylvania, in the was set aside by the court below, and the legal custody of the Court; that the condecision affirmed by the Supreme Court, venience of the patrons of the road as because the land was in legal custody well as the safety and convenience of the and could not be levied upon.

traveling public urgently demand the acThese decisions are based upon the quisition of said additional motive power. principle that the property of a corpora- It is the right and duty of the Court to tion after insolvency and the appointment keep the road in safe and successful operof a receiver is in custody of the law and ation, while it is under the control of the not subject to execution, for the reason Court. It must be kept a going concern, that after the appointment of a receiver for the benefit of the bondholders, credino creditor can obtain a preference over tors and all parties interested. The pubanother creditor by virtue of any lien, or lic is also concerned, "the public good the fruits thereof.

requires that railroads should be operWe think the creditors asking to inter- ated even at the expense of semne detrivene in this cause and praying for the ment to private interests: 20 Am. and relief specified in their bills are entitled Eng. Enc. of Law 428, 429, and cases to the equity invoked. The court hav- cited. ing taken charge of the property of the "So if, at the instance of any party corporation, is required to preserve as rightfully entitled thereto, the Court far as possible the equities of all parties should appoint a receiver of the property, in interest, including, of course, the cred- the same being railroad property, and itors in this proceeding.

therefore under obligation to the public Therefore on both authority and prin- of continued operation, it, in the adminciples of equity, the order of the court istration of such receivership, might allowing the execution of the fi. fa, in rightfully contract debts necessary for question must be revoked.

the operation of the road, either for la


X**k Legal Record. and that upon payment of $2.00 costs by the de

fendant he would enter a non-suit; this was Vol. VII. THURSDAY, APRIL 19, 1894. No. 45. her

agent, judgment was rendered for the plainpaid, but without further notice to defendant or

tiff and a transcript filed in the Prothonotary's bor, supplies, or rentals, and make such office. Held, to have been such fraud and misexpenses a prior lien on the property it- conduct on the part of the Justice as will lead self; Kneeland vs. Am. Loan Co., 136 U. the Court to set aside the proceedings. S. 98.

After the payment of the costs by the de

fendant, according to the Justice's proposition, And now, upon motion of Stewart, he had no jurisdiction to proceed further in Niles & Neff, solicitors for the Receiver, the case. and upon due consideration of the peti- Certiorari to proceedings before Geo. tion and affidavits filed, and after notice E. Sherwood, Esq. to all parties in interest, as directed by

This litigation first appeared before the this Court on March 26, 1894, it is or- Court in Simpson v. Musser, 6 YORK dered and decreed, that Winfield J. Tay- LEGAL RECORD 163, on a motion to strike lor, Receiver, be and he is hereby author- off a judgment entered on a transcript ized to purchase a locomotive as prayed from the Justice's docket, on the ground in said petition, and he is hereby author- that the transcript showed that the sumized and empowered to issue to the ven

mons was served more than one year dor of such locomotive, or to any person after it was issued and judgment renderwho will furnish the money thereon for ed and execution issued before service of the purpose of making such purchase a judgment. The Court, BITTENGER, J., certificate or certificates to the amount of overruled the motion, holding that the $2,000, in the form following:

conflicting dates in the transcript was Balto. & Lehigh Railroad Company.

doubtless a clerical error. Balto. Forwarding & Railroad Company. No.

The cause next came up in the shape Receiver's Certificate. This is to certify that there is due to of a motion for a special allocatur for a or order

certiorari to the proceedings before the

dollars for (money borrowed, or locomotive fur- Justice. This motion was granted. See

Simpson v. Musser, No. 2, supra 74. nished, as the case may be) by to the Balto. & Lehigh Railroad

The certiorari having been allowed, exCompany and Balto. Forwarding and ceptions were filed to the Alderman's Railroad Company. This certificate is proceedings. issued by the Receiver in pursuance of an

Geo. B. Cole for exceptions. order of the Court of Common Pleas of H. S. McNair, contra. York County, Pennsylvania, sitting in March 17, 1894. BITTENGER, J.-The Equity, made on the 3rd day of April, exceptions filed, relating to the merits of 1894, and is payable out of any funds in the plaintiff's claim, cannot be effective his hands or that may come into his in setting aside the proceedings of the hands, applicable thereto, with interest Alderman. The evidence against the from date at the rate of six per cent. validity of the plaintiff's claim for propayable semi-annually at such date as fessional services to defendant, is theremay be fixed by the Receiver by public fore not admissible. It is apparent to the notice of thirty days, published in one court that the demand of the plaintiff is newspaper in the City of York, from without merit and that no judgment and after which date interest thereon will could have been recovered by him, had cease. The said certificate and money there been an appearance and a trial upsecured thereby to be a first and on the merits. It is proven that the deprior lien on the said road, rolling stock, fendant was sick at the time of the bringfranchises and income according to law. ing of the suit and that his illness con

tinued for a long time thereafter. She Musser's Administrator v. Simpson.

did not appear, as is shown by the AlderAlderman-Certiorari to-Misconduct of

man's return. The evidence further -Special allocatur.

shows that although an execution was In a suit before a Justice of the Peace, de-issued, it was not served, with the knowlfendant's agent called upon the Justice and explained the nature of plaintiff's claim, where edge of the defendant, on account of upon the Justice said there was "nothing in it,” her severe illness.

This certiorari was especially allowed Road Commissioners v. Flickinger, 51 by the court, to prevent injustice on the Pa. 48. application of William I. Reisinger, ad- Sharswood, J., in Fisher v. Nice, 60 ministrator of the estate of Julia Wusser, Pa. 109, says, in reference to certiorari, with the will annexed, alleging that the “We never hear evidence to the merits of Alderman was without jurisdiction, and the case, but only what occurred before had practiced a trick and fraud in enter- the Alderman." ing the judgment; and only for these In Lacock v. White, 19 Pa. 495, on causes can these proceedings be set aside. page 498, it is said by Black, C. J., "So

The exceptions go principally, to the a judgment obtained by any trick or misbehavior of the Alderman entering fraud will be reversed, if a certiorari be the judgment, and his want of jurisdic- taken within a reasonable time after it is tion. George E. Sherwood, Esq., since discovered." deceased, was the Alderman before whom See also Shell v. McConnell, i Pears. the proceedings were had. The evidence 27; McMullen v. Orr, 8 Phila. 342; Right clearly shows that after the suit was v. Ringler, i C. C. R. 156; Spille v. brought the plaintiff in the certiorari, Robinson et al., 2 C. C. R., 642; Dunfee William I. Reisinger, acting for the de- v Vargason et al., 3 C. C. R. 207; Baker fendant, called at the Alderman's office, v. Rickert, 2 Dist. R. 195; Van Why v. and made inquiry about the nature of Broigonder, 3 Kulp 202. In this latter the claim of the plaintiff in suit; that he case the proceedings were set aside bewas informed by the Alderman, that it cause it was shown that when the defendwas for professional services by the ant demanded a transcript for appeal, the plaintiff, as physician to defendant; that justice informed him that the plaintiff said Reisinger informel the Alderman had withdrawn the suit. that the plaintiff had not treated the de- The payment of the costs, to wit, $2.00 fendant as a patient, but that the plaintiff by the defendant in this proceeding, to was seeking to recover the sum of $50.00, the Alderman, upon his promise and the amount of the claim in suit, for mak- agreement to discontinue the suit, was the ing an affidavit for the defendant in a end of said action. After such payment claim for pension, by her; that hereupon the Alderman was without jurisdiction the Alderman said there was "nothing in to proceed further, especially' as no day it" and that upon the payment of $2.00 of hearing was appointed and notice costs, by the defendant, he would enter a thereof given to the defendant Julia Musnon suit; that said $2.00 was subsequent- ser. All the authorities are, that a judgly paid by defendant to the Alderman, ment entered under circumstances such through her daughter; and the suit was as these is invalid, and will be set aside believed to be dismissed and ended, until on certiorari if the writ is issued in a a transcript was filed in the Prothono- reasonable time after notice of the judgtary's office on the day of — 189—; ment is received by the defendant. that the administrator did not know of These proceelings must therefore be the existence of the judgment until the set aside. granting of letters of administration to The proceedings before the Alderman him, which the record shows was on the are set aside and his judgment reversed. 26th day of August, 1892.

These facts, we understand, are undis- ORPHANS' COURT. puted. Certainly there is no evidence to the contrary. It is, however, earnestly,

Schue's Estate. contended, by the counsel for the plain- Will-Conversion byInterest of legatiff in the judgment recovered before the

tees-Attachment creditor. Alderman, that the evidence in support of these facts is not admissible, and that the State should be sold, and the proceeds to be di

Testator by his will directed that his real esrecord returned is conclusive.

vided among his children. L., one of the legaIn this he is clearly mistaken. On tees, after the making of the will, became inhearings of a certiorari before the Court debted to the testator's estate in an amount of Common Pleas, parol evidence is in- largely in excess of his share under the will

. a imissible, except to establish want of HEL!, that an attaching creditor of L.'s took

nothing jurisdiction or corruption in the justice;' It requires no citation of authorities to es

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