Volume 4 — Pennsylvania District & County Reports

<p>Automobile insurance — Valued policy — Power of adjuster to bind by agreement to pay full insured value.</p> <p>1. When an automobile policy definitely states the value of the machine insured, it is a valued policy and fixes the value the property insured as a standard in case of total loss, notwithstanding the fact that there are provisions in the policy relative to the determination of the loss, the amount to be paid, the right of the company to make repairs, and, in case of dispute between the parties, for arbitration, as these clauses apply only to cases in which the loss is partial.</p> <p>2. An insurance policy in which the property insured is valued at practically 20 per cent, under its cost price at the time of the issuance of the policy is not a gambling contract.</p> <p>3. It is within the implied powers of an adjuster of losses to bind an insurance company by an agreement that if the automobile insured were not repaired to the satisfaction of the owner, the company would pay the full insured value of the machine.</p> <p>4. A provision in the policy that sixty days must elapse between the proof of loss and the bringing of the suit does not apply where the insured and the adjuster have reached an agreement by which the company is to pay the full insured value of.the property destroyed, and the company refuses to make such payment; in such case, suit may be brought by the insured as soon as the company repudiates the agreement made by the adjuster.</p>

<p>Indictment for maintaining gambling device. Motion to quash indictment. Q. S. Lancaster Co., April Sess., 1923, No. 3.</p>

<p>Vendor and vendee — Executory agreement to convey — Statute of Frauds— Specific performance.</p> <p>1. Where one executes an agreement to convey real estate as agent for a vendor in the presence of the principal, and with his consent and approval, the fact that the agency was not created by an instrument in writing is immaterial, and the Statute of Frauds does not apply to the case.</p> <p>2. Under a clause in an executory agreement of sale, whereby the agreement “is to become null and void and all money paid on account thereof to be refunded unless the agreement is approved by the owner of the premises within five days from the date thereof,” the vendor may disapprove the agreement for any cause, although the clause was inserted solely for the purpose of enabling him to make certain financial arrangements for paying ofl! a mortgage upon the property, not yet due, and the mortgagee, after the agreement was executed, agreed to accept the money on the date of settlement.</p>

Rule to show cause why judgment should not be entered in favor of defendant for costs and counsel fee in interpleader proceedings. C. P. Crawford Co., May T., 1923, No. 6.

<p>Beal estate brokers — Commissions earned — Parol to vary writing.</p> <p>1. A real estate broker who has procured: a purchaser acceptable to the vendor has earned his commission, although the contract of sale was never in fact carried out, even though the failure may have been caused by the purchaser’s refusing to preform.</p> <p>2. To an action by a broker for his commission based upon a memorandum signed by the vendor at the foot of the contract of sale, promising to pay the amount of the commission, an affidavit of defence is insufficient which avers an oral agreement between the vendor and the broker, by which the commission was not to be paid until the purchaser had settled and paid for the property, that the broker, as part of his services, was to see that the provisions of the contract of sale were carried out, and to look after the owner’s interests up to and including the settlement, and that the purchaser had failed to make final payment, in the absence of an averment of fraud, accident or mistake, as a basis for varying the agreement embodied in the memorandum.</p>

<p>Attachment execution issued by justice of the peace on a judgment before him, and certiorari of the record — Opening judgments of justice of the peace.</p> <p>1. A certiorari to an attachment execution before a justice of the peace does not bring up for review the proceedings upon which the original judgment was founded, unless such original judgment is void on its face.</p> <p>2. When the writ of summons has been properly served, the failure of the record of the justice to show affirmatively that he had received evidence in support of the plaintiff’s claim is an irregularity which may be waived, and the defendant, in order to avail himself of such error, must take his writ of certiorari within twenty days after the entry of the judgment.</p> <p>3. Where the record of the justice of the peace shows that judgment was entered by default against the garnishee in the attachment execution proceeding, and that such default was the failure of the garnishee to appear and answer, under oath or affirmation, the interrogatories within eight days, such default, by the express terms of the statute, is sufficient to warrant the entry of judgment against the garnishee.</p> <p>4. A judgment in favor of a plaintiff, without more, is a judgment against the defendant named in and served with process, unless there is something on the record to show uncertainty about his identity.</p> <p>5. If dissatisfied with a judgment, a garnishee in an attachment execution proceeding before a justice of the peace has two courses open to him, (a) to obtain a writ of certiorari within twenty days after the rendition of the judgment, or (S) to appeal from said judgment within twenty days and file such appeal in the Court of Common Pleas on or before the next term thereof.</p> <p>6. When a justice of the peace has given his decision and entered judgment accordingly, his authority to interfere with it, except as provided by the statute, is at an end.</p> <p>7. There are only two' statutory modes authorizing any change in the judgment of a justice of the peace after it has been once rendered: Where, under the 4th section of the Act of March 20, 1810, 5 Sm. Laws, 161, within twenty days after the rendition of the judgment, an appeal is desired by either party, in which case, upon notice to the adverse party to appear, and, upon appearance, the adverse party consents, the judgment may be opened; but where the adverse party does not appear and does not consent, the only relief'is by appeal; and, under the 7th section of the same act, where judgment has been obtained against a defendant by default, it may be opened for the purpose of set-off and a rehearing granted, but then only in the manner provided by the statute.</p>

Rule for judgment for want of a sufficient affidavit of defence, and rule to strike off set-off and counter-claim. C. P. No. 5, Phila. Co., June T., 1923, No. 2874.

<p>Application to have ballots of absent voters counted. C. P. Dauphin Co., sitting as a Return Board.</p>

<p>Road law — Damages—Assessment—Board of viewers — Appeals—Courts— Jurisdiction — Quarter Sessions — Common Pleas — Appeal before final confirm^ ation — Acts of April 15, 1891, and May 26, 1891.</p> <p>1. The Acts of April 15, 1891, P. L. 17, and May 26, 1891, P. L. 116, expressly provide the right of appeal from the Court of Quarter Sessions to the Court of Common Pleas where viewers appointed by the Quarter Sessions have assessed damages for the opening, widening or changing of grade of any street, road or highway.</p> <p>2. The provisions of the two above mentioned acts have been saved from repeal and continue in force as the existing law of the Commonwealth under the Sproul Act of May 31, 1911, P. L. 468, and its amendments, including the Act of April 6, 1921, P. L. 107.</p> <p>3. The right of appeal so provided may be exercised by the party aggrieved before final confirmation by the court of the award of the viewers.</p>

<p>Criminal law — Search for weapons and liquors■ — -Warrant not necessary— Loaded revolver in overcoat carried on arm — Evidence—Return of property.</p> <p>1. Under suspicious circumstances, a police officer has the right to search the person of any one for concealed weapons. It is not necessary to procure a warrant.</p> <p>2. Where a loaded revolver is carried in the outside overcoat pocket and the overcoat is carried over the arm, the jury may properly return a verdict that the defendant is guilty of carrying concealed deadly weapons.</p> <p>3. Where officers are told by a truck driver that certain trucks are loaded with liquor, and the officers smell the liquor about the trucks, it is proper for them to search the trucks and seize the liquor and use the same as evidence against the truck drivers, even though the officers do not have a search warrant. The clause in the United States and State Constitutions prohibiting "unreasonable searches and seizures” does not apply to this case.</p>

<p>Petition of the Register of Wills to reopen adjudication sur appeal from assessment of transfer inheritance tax and answer. O. C. Phila. Co., Jan. T., 1922, No. 567.</p>

<p>Mothers’ assistance — Remarriage of mother and subsequent divorce — Act of July 10, 1919.</p> <p>1. Under the Act of July 10, 1919, P. L. 893, where a mother with four dependent children remarries after the death of her husband, but thereafter secures a divorce from her second husband, she is entitled to assistance from the Mothers' Fund if she is poor, of proved character, and the children are still dependent upon her for support.</p> <p>Desertion by husband — Absence for more than seven years — Presumption of death.</p> <p>2. "Where a woman is deserted by her husband, and she is not able to find him for seven years, she is not entitled, after the expiration of that period, to assistance from the Mothers’ Assistance Fund on the presumption that her husband is dead.</p>

<p>Motion for judgment non obstante veredicto. C. P. No. 5, Phila. Co., June T., 1922, No. 8382.</p>

<p>Electric light, heat and power companies — Statutory right of way — Telephone wires as part of equipment — Public Service Commission — Act of May 21, 1921.</p> <p>1. A corporation authorized by its charter to supply to the public electricity for light, heat and power, having received a certificate cf public convenience under the Act of May 21, 1921, P. L. 1057, and having appropriated and acquired, and being in possession of, an easement over certain land for the erection, maintenance and operation of apparatus, equipment and facilities for the transmission and distribution of electricity, and, having upon the right of way so acquired, erected a transmission system, may, as a part of said equipment and facilities, string upon the towers which carry the transmission wires a telephone line to be used exclusively in connection with, and for the purpose of, the maintenance and operation of said transmission system, where the telephone line is necessary for the operation of the transmission system.</p> <p>2. It is not necessary, under the Act of May 21, 1921, P. L. 1057, to Invest a corporation with the right to construct, as a part of its plant, such an appliance as a telephone line that the Public Service Commission specially authorize it as equipment necessary for carrying on the business. The special power conferred upon the commission by that statute is restricted to a determination of the facts upon which the statutory grant of authority to appropriate a right of way is conditioned; and this question having been decided by the commission in favor of the corporation, further questions as to the extent and scope of the grant, such as whether a structure of a particular kind may be placed upon the right of way, are questions to be settled by the courts.</p>

<p>Crimes — Witnesses. — Grand jury — Incompetent testimony — Motion to quash indictment — Act of March SI, 1860.</p> <p>1. An indictment which charged conspiracy, larceny by bailee and misdemeanor was quashed on motion where it appeared that the only witness who testified before the grand jury was not legally sworn because his name was not endorsed upon the bill of indictment, that the witnesses whose names were endorsed upon the bill of indictment did not appear, and that there was nothing but hearsay evidence testified to by the witness who did appear.</p> <p>2. Testimony which would be incompetent at a trial is incompetent before the grand jury and cannot support an indictment.</p> <p>3. Under section 10 of the Act of March 31, 1860, P. L. 427, 433, only those witnesses whose names have been endorsed by the district attorney on the bill of indictment can be sworn and testify before the grand jury.</p> <p>4. An indictment has such a serious effect upon a person’s reputation that absolute precision and compliance with the law must not be sacrificed to dispatch.</p>

<p>Rule for a new trial. C. P. Lancaster Co., Oct. T., 1921, No. 39.</p>

<p>Rule to open judgment. C. P. No. 5, Phila. Co., Sept. T., 1923, No. 8001.</p>

<p>Witnesses — Cross-examination—Defendant’s witness employed by casualty company — New trial.</p> <p>The fact that plaintiff’s attorney asked defendant’s investigator, when under cross-examination, whether he was not in the employ of a casualty company, which question was not answered by the witness, is not, in itself, sufficient to require the court to withdraw a juror, and, hence, the refusal of the court to do so is not ground for new trial.</p>

<p>Contracts — Construction of agreement fixing royalties on gross retail selling price.</p> <p>Under an agreement for royalties based upon the gross retail selling price of machines, less selling commission, which contains a clause providing "that gross retail selling price is mutually understood to mean the amount of money at which the machines are retailed for, less a selling commission of not more than 12 per cent, for every machine sold; and to include all motors, engines, parts and attachments which are a part and parcel of the machines; no parts, however, to be sold except with or for a machine or for repairs," royalties must be paid by the licensee upon the gross retail selling price, less selling commissions, of all machines sold, including all motors, engines, parts and attachments which are a part and parcel of the machine and including parts which are sold with a machine or for a machine or for repairs, and whether sold simultaneously with the machine or separate and apart from machines.</p>

<p>Exceptions to decree of hearing judge dismissing appeal from assessment of transfer inheritance tax. O. C. Phila. Co., July T., 1922, No. 157.</p>

<p>Practice, C. P. — Service of process — Domicil—Intention to change domicil — Service on defendant’s parents — Bight of parents to take rule to strike off — Sheriff’s return — -Act of July 9, 1901, P. L. 614.</p> <p>1. Where the defendant In a writ of summons, who is a single man, has left his parents’ home in good faith, after he had sold all his possessions, and gone to another state to- seek employment, with the announced intention of not returning, he cannot be served with process by leaving the writ at his parents’ home.</p> <p>2. In such case the sheriff’s return is fatally defective if it states that the service was made at the home of defendant’s father, and that the writ was read and made known to an adult member of the family, to whom a “true and attested copy" was handed, without showing that the service was made at defendant’s “place of residence.”</p> <p>3. The parents ,of an absent defendant, who has been illegally served with process, may take a rule to strike the service off.</p>

<p>Petition for declaratory judgment. O. C. Dauphin Co.</p>

<p>Judges — Appointment—Member of legislature — Constitution, art. ii, sect S, and art. ii, sect. 6 — Civil office.</p> <p>1. The office of judge of the Court of Common Pleas is a “civil office” within the meaning of article ii, section 6, of the Constitution, which provides that “no senator or representative shall, during the time for which he shall have been elected, be appointed to any civil office under this Commonwealth.”</p> <p>2. Resignation by a senator or representative during the four years or two years of the term for which he was elected will not qualify him for appointment to a judgeship.</p>

Rule for judgment for want of a sufficient affidavit of defence, and rule for judgment for want of sufficient reply to defendants’ counter-claim. C. P. No. 5, Phila. Co., Dec. T., 1923, No. 5232.

<p>Practice, C. P. — Rule for commissions — Interrogations—Rule of course.</p> <p>1. A rule for a commission to take testimony on interrogatories is a matter of course and needs no order of court to sustain it.</p> <p>2. If a witness resides out of the State, a rule for a commission on interrogatories is proper to take his testimony.</p>

<p>Rule for judgment for defendant n. o. v. C. P. Lancaster Co., April T., 1921, No. 21.</p>

<p>Insurance — Fire insurance — Proof of loss — Waiver—Conduct of adjuster.</p> <p>The action of a defendant fire insurance company in sending its adjuster to inspect a burned automobile covered by a policy of insurance, and his statement to one of the plaintiffs that everything had been done by the assured that was necessary to protect their claim, and his further statement, after examining the car, that the car was a total loss, of which the defendant company had been given prompt notice, worked a waiver of the necessity for filing formal proofs of loss, although the policy required that such proofs of loss be furnished within sixty days, it being a case of a single chattel and the loss being a total one.</p>

<p>Mechanic’s lien. Rules to show cause why lien should not be stricken off and to show cause why lien should not be amended, etc. C. P. Allegheny Co., April T., 1923, No. 4.</p>

<p>Practice, C. P. — Affidavit of defence — Question of law — Defence on merits —Act of May U, 1915.</p> <p>1. Under the Act of May 14, 1915, P. L. 483, it is improper practice in an affidavit of defence to raise questions of law by way of demurrer and at the same time to answer to the merits of the case.</p> <p>2. If such an affidavit is filed, the court will treat as surplusage the averments as to the merits and pass upon the questions of law raised therein.</p> <p>Practice, C. P. — Caption of case — Statement—Names—Amendment.</p> <p>3. Where a statement of claim properly sets forth the name of the plaintiff in its caption, and the name endorsed on the hack of the statement does not tally with the name in the caption, the court will permit an amendment so that the name will properly appear on the endorsement.</p>

<p>Rule for judgment for want of a sufficient affidavit of defence. C. P. Lancaster Co., March T., 1923, No. 50.</p>

<p>Indictment — Averments—New trial — Arrest of judgment — Cold storage— Act of June 26, 1919.</p> <p>An indictment which charges a violation of the Cold Storage Act of June 26, 1919, P. h. 670, and does not set forth that the eggs alleged to have been sold by defendant have been kept “for a period of thirty days and over in. cold storage," and fails to aver that the eggs were sold "at retail,” is fatally defective, and a motion in arrest of judgment was granted.</p>

<p>Exceptions to adjudication. O. C. Phila. Co., July T., 1923, No. 2083.</p> <p>The auditing judge, Thompson, J., filed an adjudication, from which the following is an extract:</p> <p>“The moneys in the hands of the accountant, as shown by the account, amount to $453.74, and the same was claimed by the guardian of the minors on account of their exemption of $500. The United States of America presented a claim for $486.99 for moneys erroneously paid to decedent in his lifetime under the following circumstances: Annas M. Jones, the decedent, was entitled to and was awarded compensation by the United States Veterans’ Bureau for disabilities received in the United States Military Service during the late war. He was also in vocational training and received a vocational allowance for himself, his wife and two children from Sept. 27, 1921, to May 16, 1922. The aggregate sum paid to him for vocational allowance was $1267.91. While he was receiving vocational allowance and under vocational training, he was not entitled to compensation payment. The Vocational Rehabilitation Act approved June 27, 1918, 40 Stat. at L. 617, expressly provides, in section 2 thereof, that no compensation shall be paid for the period during which any person is receiving vocational training and vocational training allowance. Compensation check for $1343 was paid the deceased during the period he was in vocational training, and was for adjusted compensation. This cheek was deposited with the Franklin Trust Company, and no other moneys were deposited by the deceased with the Franklin Trust Company. The deceased drew on said deposit, and at the time of his death left a balance of $250 of said deposit. It is admitted by both sides that the very sum remaining in the Franklin Trust Company is part of the check given by the United States to the decedent through a mistake on the part of one of the Government’s employees. The actual overpayment on the adjusted accounts between the vocational and the compensation rights of the deceased under the Acts of Congress amounted to $486.99, and a portion of this overpayment has been clearly identified. It was contended on behalf of the guardian that the United States of America was a general creditor of the decedent, and as such was postponed in payment to the children’s exemption of $500.</p> <p>“It is clear to my mind that, in so far as the $250 remaining on deposit with the Franklin Trust Company is concerned, the United States of America is entitled to recover the same, not as a general creditor, but on the theory that it was the identical money paid under a mistake of fact, and as to the balance of the claim of the Government, it is, of course, a general creditor and postponed to the claim of the children for their exemption. Money paid under a mistake of fact can be recovered back, and the question suggests itself as to how can it be recovered. If the identical money paid can be earmarked, such as, for example, being specie in a bag, I have no doubt that an action in replevin would lie for the same. If, however, the money were mingled with funds of the payee,' there is only one way to recover the same, namely, by an action in assumpsit. There is no trust relation between the payor and payee from the mere fact of payment by mistake; the parties deal with each other as debtor and creditor, and, therefore, a question of trust does not arise; but even in a trust relation the money charged with the trust would have to be identified. See Girard Trust Co. v. Harrington, 23 Pa. Superior Ct. 615; Kunkel et al. v. Kunkel, 267 Pa. 163; Potter v. Lehigh Valley R. R. Co., 80 Pa. Superior Ct. 237.”</p>

<p>Public officers — Supervisors — Furnishing own teams — Criminal law— Road law — Act of March SI, 1860.</p> <p>An indictment charging that a supervisor furnished his own team for work on a township road and accepted pay for the same, charges an offence under section 66 of the Act of March 31, 1860, P. L. 400, although it is not averred that there was any corrupt or dishonest intent or unfairness in the price charged for the services.</p>

<p>Rule to strike off mechanic’s lien. C. P. Lancaster Co., M. L. D. No. 8, page 442.</p>

<p>Exceptions to, and motion to strike off, plaintiff’s answer to bill of discovery. C. P. Delaware Co.</p>

<p>Exceptions to adjudication of hearing judge sur appeal from Register of Wills. O. C. Phila. Co., July T., 1922, No. 651.</p> <p>Lamorelle, P. J., filed the following adjudication:</p> <p>This matter came before me, Lamorelle, P. J., upon petition, answer and replication. On Sept. 21, 1923, a hearing was had, when Otto Wolff, Jr., Esq., and Francis C. Adler, Esq., appeared for the petitioners, and William M. Boenning, Esq., appeared for the Commonwealth.</p> <p>Those facts which are material follow:</p> <p>By deed dated Nov. 6, 1872, Colson Hieskell, Jr., conveyed all his property, real and personal, unto Nathan Myers and John B. Myers, in trust, to keep the same invested on interest and to collect the income thereof and either to pay the net residue of such income unto Colson Hieskell, Jr., or to apply and disburse the same for his maintenance and support during his life; and in trust, upon his death, for the use and benefit of his children and descendants, and, in event that he should die without leaving descendants, “then and in such case In Trust for such person and persons and for such Estates and interests as would be entitled to the same under the intestate laws of Pennsylvania if the said Colson Hieskell had died seized and possessed of said Trust Estate intestate, unmarried and without issue. . . .”</p> <p>There was a provision in the deed by which the settlor could appoint by will one-third of the income for the benefit of his widow for life. He died unmarried.</p> <p>There was a further provision that whenever in the judgment of the trustees the settlor should be deemed and considered of sufficient prudence, discretion and ability to manage and control himself and his affairs in a suitable and businesslike manner, they could restore the property to him free and clear of the trust, conditioned, however, on the acquiescence of his mother. The trustees never exercised this power.</p> <p>While there was no right of revocation in terms in the deed, it would appear that a power of disposition effective after death did exist; for, after providing that the income should be paid to or used for the settlor for life, the following clause appears: “that neither the said income nor the capital or principal of the said trust estate shall be liable to or bound by the debts, contracts or engagements of the said Colson Hieskell, Junior, nor liable to be anticipated, attached, assigned or disposed of by the said Colson Hieskell, Junior, by any act which shall become operative in his lifetime. . . .”</p> <p>The settlor executed no such instrument, so far as the record shows.</p> <p>Colson Hieskell, Jr., died May 12, 1922, intestate, unmarried and without issue. His mother predeceased him.</p> <p>The Commonwealth has assessed transfer inheritance taxes at 10 per cent, under the Act of June 20, 1919, P. L. 521, as amended by the Act of May 4, 1921, P. L. 341. A sister of the settlor, Mary H. Maulé, heir-at-law and next of kin, along with the substituted trustee, The Commonwealth Title Insurance and Trust Company, have appealed.</p> <p>The property held by the substituted trustee is that conveyed by the deed of 1872, except as changed by sales and reinvestments.</p> <p>The Commonwealth’s contention is ingenious. It is in effect that the settlor has provided in his deed that, in event he dies without wife or descendant him surviving, he is to be treated as dying intestate; that the one who takes, takes as of the date of his death; that nothing passes to her until that time; that the right of as well as the actual enjoyment are one and the same thing, and that, therefore, taxes are to be assessed under the law which is at that time in effect. This proposition is sound if there is an intestacy or the equivalent of one, and the conclusion logically follows. But there is no intestacy in fact. A gift to one who would take if the settlor died intestate is, after all, a gift by and because of the deed. The deed designated the method of determining the beneficiary, and at the time of the execution of the deed in 1872, the title which passed then from the settlor passed to the one or more answering the description of next of kin and heir-at-law, subject only-to its being divested in case the settlor left surviving descendants or by writing effective after his death disposed of the principal. Had the settlor made no provision other than for his wife or children and issue, or had he in terms elected to die intestate, then and in such cases the argument of the Commonwealth should prevail.</p> <p>Except as to the phase of the question discussed by Mr. Boenning in his brief on behalf of the Commonwealth, and as to which Frisbie’s Estate, 266 Pa. 574, leans towards the views expressed by me, and which I deem controlling, I am unable to distinguish the instant case from our decisions in Houston’s Estate, 2 D. & C. 334, 276 Pa. 330, and in Dolan’s Estate, 3 D. & C„ 264, and I am, therefore, of opinion that the Commonwealth erred in assessing tax at 10 per cent, under the acts above recited, and that, on the contrary, it should have assessed tax at 5 per cent, under the Act of May 6, 1887, P. L. 79 (see Jewell’s Estate, 20 Dist. R. 1055), and I enter the following decree:</p> <p>And now, to wit, Oct. 29, 1923, the appeal is sustained and the record is remitted to the Register for proper action in accordance with this opinion.</p>

<p>Automobiles — Negligence — Village street — Collision with bog suddenly running into street.</p> <p>1. Where, in an action for damages for the death of the plaintiff’s minor son, seven years of age, from being struck by an automobile driven by the defendant along a borough street, it appears that the boy, who was playing tag with another boy, suddenly darted out in front of the defendant’s car from behind another car parked between crossings and there was no evidence to show that the defendant was driving too rapidly or that he saw the boy or by vigilance could have avoided the collision, a compulsory non-suit is properly entered.</p> <p>2. A vehicle need not be under instant control between street crossings, and the driver is not bound to anticipate that a child will suddenly run across the street in front of his car.</p>

<p>Petition for attachment. C. P. Somerset Co., Sept. T., 1923, No. 86.</p>

<p>Partnership — Verdict—Indexing names of individual partners — Moulding verdict — Act of March 26, 1915.</p> <p>1. Where an action is brought against a number of parties in their individual rights and as partners, and a verdict is rendered against the partnership only, the court may so mould the verdict as to add the names of the individual parties to it, and in such form it may be indexed, against the individual parties as well as the partnership.</p> <p>2. Under the Act of March 26, 1915, P. L. 18, a partnership is liable for any wrongful act done with its authority, and the members are responsible individually for the action of their partners who have dealt with the party injured.</p>

<p>Promissory notes — Banks—Note executed in blank wrongfully filled in by executive officer — Notice to bank.</p> <p>1. The cashier of a bank and the treasurer of a trust company are the active and general executive officers of their corporations. The actions of such officer are the actions of his corporation, and his knowledge is notice to it and imparts to it whatever knowledge of a transaction he possesses. If such officer, for the benefit of the corporation, takes a note, blank except as to signature, and wrongfully fills it up, it operates as a fraud, whether so intended or not, upon the party who entrusted him with it, for which the corporation is answerable; and when it seeks to enforce the note, the corporation is bound by his action in the procurement of it affecting its validity and cannot recover.</p> <p>2. In such case, the corporation will not be permitted to shield itself behind the fraud of its officer and save itself from loss by laying it at the door of the party sought to be held, on the ground that the latter put into the wrongdoer’s hands the means of perpetrating the fraud.</p> <p>Practice, C. P. — Judgment n. o. v. — Requisites.</p> <p>3. Generally, it is only where the evidence is undisputed that the court can direct a verdict or enter judgment against the verdict. Undisputed evidence means evidence the weight of which is so clear and manifest that a verdict against it would have to be set aside.</p>

<p>Exceptions to adjudication. O. C. Phila. Co., Jan. T., 1893,. No. 462.</p>

<p>Rule to show cause why compulsory non-suit should not be stricken off. C. P. Northampton Co., April T., 1922, No. 102.</p>

<p>Rule for judgment for want of sufficient affidavit of defence. C. P. Luzerne Co., Dec. T., 1923, No. 493.</p>

<p>Motion for a new trial and in arrest of judgment. O. and T. Dauphin Co., Sept. Sess., 1923, No. 1.</p>

<p>Public officers — Township supervisors — Vacancy—Neglect to take oath— Filling vacancy by appointment — Act of July H, 1917.</p> <p>Where a regularly elected township supervisor in a township of the second class neglects to take the oath and enter upon the duties of the office, a vacancy occurs, and the court, within a reasonable time after the commencement of the term of office, on a petition alleging such vacancy, and signed by a supervisor and more than ten voters, who are owners of real estate in the township, may fill the vacancy by appointment, which will not be revoked on account of allegations in the petition that the regularly elected township supervisor failed and neglected to file his oath of office because of misrepresentations by certain of the petitioners for the appointment, which allegations did not prevail on hearing.</p> <p>Act of July 14, 1917, P. 1.. S40, considered.</p>

<p>Ejectment. Motion for judgment n. o. v. C. P. Dauphin Co., Sept. T., 1922, No. 486.</p>

<p>Equity — Equity rules — Auditor—Death of auditor' — Receiver—Refusal to answer questions.</p> <p>1. Where an auditor was appointed before the adoption of Equity Rules 59 and 70%, doing away with auditors, and died thereafter, and another person was appointed auditor, the proceedings should be concluded in the manner in which they had been begun before the adoption of the rules.</p> <p>2. Where a receiver, whose accounts are being audited, refuses to answer questions propounded to him before the substituted auditor, and does so on advice of counsel, and because of alleged lack of jurisdiction of the auditor, the court, after he has been surcharged by the auditor, will, on finding that the auditor has jurisdiction, direct that on filing of a proper affidavit by the accountant, the matter be referred back to the auditor to take further testimony and report.</p>