witness failed to testify as may be appointd for a solvent but em- principal barrassed corporation, and in such case expected and thereby surprised him, without in any manner indicating that the surprise was caused by something said or done, the non-suit will not be taken off, although the statute of limitations has run as to a part of the claim. the receiver has no greater rights, as against a conditional vendor, than are possessed by the conditional vendee himself: Deere Plow Co., 287 Pa. 92, 99. Where a court appoints a receiver for a solvent corporation the appointment of a receiver does not change the status of the corporate property or suspend the ordinary remedy of a creditor: Cowan v. Plate Glass Co., 184 Pa. 19; Blum Bros. v. Girard National Bank, 248 Pa. 148. 157, 158. While it is true that the taking off of a voluntary non-suit is in the discretion of the court, and no appeal will lie from such an order, such discretion must be moved by the ground. The fact that the statute of limitations has run is not sufficient. establishment of some legal or equitable Rule to take off voluntary non-suit. Refused. P. Herbert Reigner and John A. Kep Paul D. Edelman, for defendant. The case was tried on the theory that the rights of the parties are to be deter-pelman, for plaintiff and rule. mined as to the date of the decree appointing the receiver and so treated by the court in his opinion and the decree entered. 0. 7'. sus Motion for judgment n. tained and motion for new trial refused. The decree is entered in accordance with the practice approved in Reber v. Schroeder, 221 Pa. 152. Now, January 6, 1928, judgment non obstante veredicto entered in favor of the plaintiff, the Sullivan Machinery Co., a corporation, and against Roy T. Griffith, receiver for the Rowena Coal Company, for the property named and described in the writ. C. P. of Simpson v. Schmitt Stevens, J., November 21, 1927.Plaintiff brought a suit in trespass to recover from defendant damages for the death of his wife and for the wrecking of his automobile. On April 19, 1927, the case was called for trial. One of plaintiff's witnesses testified to a state of facts which disclosed no liability on the part of the defendant, and the plaintiff elected to follow the advice of Chief Justice von Moschzisker, in Trial by Jury, sec. 150, where he says: "The voluntary, like the involuntary, or compulsory, non-suit, has the advantage of affording plaintiff a chance to have another day in court, since, on payBerks Co. ment of costs, he may institute a second suit for the same cause of action; but one should never take a voluntary non-suit unless quite sure that it is the best course to pursue, for, differing from the involuntary non-suit, there is less likelihood of its removal by the trial court, unless, at the time of entry, leave is asked to subsequently move the court to take it off," citing Koecker v. Koecker, 7 Phila. 371, 375; Garrat v. Garrat, 7 Yeates 244. Practice Voluntary non-suit- New action-Petition to take off non-suitDiscretion of court-Statute of limita On June 15, 1927, the pulaintiff paid the costs, and on Jnne 23, 1927, instituted a new suit. The effect of this was to abandon the first suit, and counsel for the plaintiff, upon the argument, admitted that such was the intention. Upon the service of the statement in the second suit upon the defendant, it disclosing that the action was barred by the statute as to damages for the death of the wife, which occurred May 29, 1926, the defendant, on August 9, 1927, moved that the statement be stricken off. A rule was granted. If the plaintiff here had supported the ground of surprise alleged, as in Link v. Anselm, 37 Pa. C. C. Rep. 597, we would have a different situation. No such effort has been made in this case. On October 22, 1927, the plaintiff presented a motion to take off the non-suit because (1) it had been suffered because It is our opinion that where the plainhis principal witness failed to testify as tiff, after suffering a voluntary non-suit expected, (2) another suit is and will be without at the time asking leave to subbarred by the Statute of Limitations, and (3) he has paid the costs in the case. A sequently move to take it off, pays the rule to show cause was granted. The mo- costs in the case and brings a new action, tion was not supported either by affidavit and several months thereafter, and after or by depositions. the defendant has moved to strike off the plaintiff's statement in the second action, without leave of court, moves to strike off the non-suit in the oirginal case on the ground that his principal witness failed to testify as expected and thereby Upon the argument, the plaintiff asked that both matters, the rule to show cause why the voluntary non-suit in the first case should not be taken off, and the rule to strike off the statement in the second case, be considered together, and asked completely surprising him, without in any that the latter rule be made absolute, which was done. We are therefore concerned only with the rule to show cause why the voluntary non-suit should not be taken off. manner establishing or even indicating that the surprise was caused by something said or done, the non-suit should not be taken off, even though the Statute of Limitations has run as to a part of his When the voluntary non-suit was suf- claim: Koecker v. Koecker, 7 Phila. 371; Chase v. Chase, 16 Distr. R. 448; First fered, leave was not asked to subsequently move to take it off. No motion Nat. Bank of Bangor v. Amer. Bangor was made within the time required by Slate Co., id. 860, 864-5; Betts v. HayRule 244 of our rules of court, to wit, ward, 7 Phila. 158; Slocumb v. Hunsickfour days. The motion which was filed er. 8 Montg. 78; Riverside Glass Wks. v. Kittanning Ins. Co., 36 Pittsb. L. J. 356; and upon which a rule to show cause was I T. & H. Practice (6th ed.) p. 920. We issued was too late, first, because it was not based upon leave granted at the time are not unmindful of the fact that the the non-suit was suffered, and, second, taking off of a voluntary non-suit is within the discretion of the court, and that no because by the failure to ask leave, by the payment of the costs, and by the institu- appeal from such an order will lie: Heiltion of the second suit, the first suit was man v. McKinstry, 18 Pa. Super. Ct. 70, ended and abandoned and could not be affirming 24 Pa. C. C. Rep. 185. But revived. Nor do we think that the plain-tablishment of some legal or equitable such discretion must be moved by the estiff has made a showing sufficient to justify the taking off of the non-suit if leave grounds, none of which are established in so to move had been granted. He says that the Statute of Limitations has run is this case. Without more, the simple fact that his principal witness failed to testify not sufficient. We think that when the as expected, thus completely surprising him. We are left to guess as to the basis plaintiff suffered a voluntary non-suit, without asking leave to subsequently of plaintiff's expectancy and surprise. As said in Walton v. Heald, I Phila. 132, by move to take it off, he took himself out Sharswood, J., "The discretion of the of court and closed the door behind him, court in taking off non-suits is strictly a legal discretion-guided by fixed rules. The ground of surprise may, in some cases, avail a party, and may be a sufficient reason for taking off the non-suit; but then it must be a case where, from something said or done, the surprise was caused." and that he has failed to establish any far as that case is concerned. The motion reason for the re-opening of that door so is therefore denied. And now, to wit, November 21, 1927. the motion to take off the voluntary nonsuit is refused, and the rule to show cause discharged. 4. That no proper legal recognizance was entered on the information upon which said indictment is based. An examination of the records in this The local Act of March 26, 1869, P. L. 539, made applicable to York County by the Act of March 7, 1872, P. L. 244. requires that case shows that defendants waived a criminal informations be returned to the dis trict attorney within five days after the binding over or committal of any defendant charged with a felony or any other criminal offense. Where a defendant is held to answer at the next sessions and an indictment is not found until the succeeding term, the court will quash the indictment, provided the defendant has done no act by which he waived his right to move to quash and has not been guilty of laches. Where an information was not returned to the defendants were bound over to court, and the recognizance was returnable at the Octountil the subsequent January Sessions, and the defendants, with their counsel, were in court in person at the January Sessions, when, with their consent, the case was con the district attorney within five days after ber Sessions, and no indictment was found hearing before the justice of the peace; entered into their own recognizance, without surety, for their appearance at the court of quarter sessions of the peace to be held at York, on the third Monday of October, A. D. 1927. The information was not returned to the district attorney within the time provided by the local act of March 26, 1869, P. L. 539, made applicable to York County by the Act of March 7, 1872, P. L. 244. On December 22, 1927, the information was On returned to the district attorney. January 4, 1928, an indictment based upon said information was acted upon by the grand jury and returned as a true bill. The court has knowledge that on January 6, 1928, the case against the above defendants was duly called for trial; that defendants, with their counsel, were in court in person at the January Term; that on January 6, 1928, with the consent of the defendants, the case was continued. Bail, for the appearance of the defendants at the April Term, 1928, was voluntarily entered by the defendants on January 9, 1928. That the motion to quash was made on January 16, 1926, after the John A. Hoober, for defendants. expiration of the January Term, and afAmos W. Herrmann, district attorney, ter bail had been entered by the defendand Harvey A. Gross, for Common-ants for their appearance at the April tinued to the next April Sessions, and they voluntarily entered their recognizance for appearance at the April Sessions, and no motion ors, a motion to quash the indictment, made after the expiration of the January Term, was dismissed. was made to quash the array of grand jur Motion to quash the indictment in Commonwealth against Howard L. Rehmeyer and Malcolm M. Miller, No. 48, January Session, 1928, in the Court of Quarter Sessions of York Co., Pa. Motion overruled. wealth. Term. As matter of law, it is to be rememSherwood, J., March 22d, 1928.-The bered that a motion to quash is addressed defendants are charged in this indictment to our discretion, and must be sustained with assault and battery committed upon one Arthur R. Fox, a member of the state police. On January 16, 1928, a motion to quash the indictment was duly filed averring the following reasons: upon the clearest and plainest grounds. When public policy and a just regard for the impartial administration of justice would be violated, surely we ought to take care not to lend too ready an ear to a dilatory motion. Where a defendant 44, 45, 46, 47, 49 and 50, of January is held to bail to answer at the next ses- Term, 1928, pending in the local court, sions and an indictment is not found un- are in each case overruled. til the succeeding term, the court will fendant has done no act by which he C. P. of Delaware Co. Freas v. Moore Modern Electric Actions Co. Parties Amendment The question for determination presents itself in the form of whether any rights of the defendant have been violated by the presentation of a bill of indictment to the grand jury acting at the succeeding term of the court when the defendants had entered bail returnable to Substitution of name of defendant. the term immediately preceding the term at which said bill of indictment was found. The defendants, of course, had the right to inquire into the drawing and composition of the grand jury which was to pass upon the charges against them, or in other words, the right of challenge to the array and for cause; they also were entitled to notice of the presentation of the bill of indictment to the term at which was presented by the district attorney. Where an action is brought against indi viduals trading as a partnership under a fictitious name, an amendment substituting a corporation of the same name, will not be allowed. the record is amendable, but if a new defendant is sought to be brought in, the amendment must be refused, and this whether or not the Statute of Limitations has run. Where one is summoned by a wrong name Petition to amend by substituting new The facts found defendant. Refused. from the records and knowledge C. H. Godfrey & Robert B. Greer, for of the court shows that the plaintiffs. defendants were in court ready to proceed with the trial of the case. That the case was continued with their consent. That after continuance with their consent, bail was voluntarily entered and that no motion asserting a right of challenge to the array or for cause has been made at any time. It would seem that under such state of facts defendants had notice of the presentation of the bill and waived their right of challenge to the array or for cause: Com. v. Brennen, 193 Pa. 569; Com. v. Dingman, 26 Superior Court 615; Com. v. Williams, 54 Superior Court 545, and Com. v. Gallo, 70 Superior Court 548. We, therefore, conclude that the motion to quash must be overruled. And now, to wit, March 22, 1928, the motion to quash the bill of indictment in this case is overruled. Similar motions were made on indictments Nos. 43,44, 45, 46, 47, 49 and 50, of January Sessions, 1928, pending in our local courts involving the same facts. And now, to wit, March 22, 1928, for the reasons set forth in this opinion, the motions to quash in indictments Nos. 43, H. G. Sweney, for defendants. Fronefield, P. J., October 3, 1927This is a petition to amend the plaintiff's Modern Electric Company, a corporation, statement of claim, substituting Moore as defendant. his statement of claim against three men, The defendants filed their affidavit of defense alleging that the goods were not sold nor delivered to them, but were sold to the Moore Modern Electric Company, a corporation, whereupon the plaintiff seeks permission to file an amended statement of claim against the corporation, with a notice to file an affidavit of defense. The motion seeking permission does not, in any way, connect the corporation with the individuals who were summoned, nor does the affidavit of defense show any relationship, nor is there anything in the record to show that they are in any way connected with the corpora John R. Geyer, for plaintiff. tion, or that the corporation was sued or commissions. Statutory demurrer. Overhad any notice, or that it has been sum- ruled. moned through those who were sued; and, so far as appears, is not in court: Wright v. Copper Co., 206 Pa. 274; Tonge v. Item Publishing Co., 244 Pa. 417. James G. Hats, for defendant. Wickersham, J., April 27, 1927.-The Where one is summoned by a wrong plaintiff brought its action to recover name, the record is amendable, but if a from the defendant the sum of $1,350, new defendant is sought to be brought which is based upon a written contract in, the amendment is to be refused: Gir-signed by Albert Koenig and Salome V. ardi v. Lumber Co., 232 Pa. 1. This is Koenig, a copy of which is attached to true whether or not the statute of limita- plaintiff's statement and marked Exhibit tions has run: White Co. v. Fayette Co.. 43 Pa. Superior Ct. 532; Markowitz v. Dye Works, 73 Pa. Superior Ct. 129. In McGinnis v. Oil Works, 251 Pa. 407, and Fitzgerald's Estate, 252 Pa. 568, cited by the plaintiff, the proper parties were summoned but by a wrong name. A, which provides, inter alia, that, in consideration of the realty corporation agreeing to list in its office the property of Albert Koenig and Salome V. Koenig, at No. 2101 North Sixth Street, in the City of Harrisburg, known as Maple Grove Hotel: And now, October 3rd, 1927, the mo"I hereby grant to you the exclusive tion to amend the record by substituting right to sell, or exchange, or to contract a corporation as defendant in the place to sell or exchange said property within of three individuals, trading, etc., is re-hereof, and thereafter until you receive a period of twelve months from the date fused. C. P. of Dauphin Co. Backenstoss Realty Corporation v. Koenig Husband and wife-Joint contract with broker to sell realty-Tenants by entireties-Liability of survivor-Joint and several contract-Exclusive agency Sale by owner. Where husband and wife contract with a broker to give them the exclusive right to sell realty which they own as tenants by entireties, such contract is both joint and several and is enforceable against the wife alone after the death of her husband, since she succeeds to the entire ownership and is, therefore, liable for services rendered under the contract. It was not necessary that the contract be reaffirmed by the wife, after the death of her husband where, under its terms, it had not expired. Defendant is liable to the brokers under the exclusive agency given, even though she herself procured the purchaser. * * * from me a ten days' notice terminating. receipt of which is hereby acknowledged, "It is further agreed that upon any sale or exchange or contract for the sale or exchange of said property made by me within three months next after the termination of this agreement to any person with whom you have had negotiations for the sale or exchange of same and of which I shall have been advised, I shall pay you the full commission as herein indicated. * * * "This agreement to bind as well the heirs, executors, administrators and assigns of the parties hereto as well as the parties themselves." The defendant filed an affidavit of defense raising questions of law. All perAssumpsit by real estate broker for tinent facts alleged in plaintiff's state |