holder, to whom he note was indorsed by the payee, against the maker. After argument the Court ordered a supplemental affidavit. The original affidavit set forth that one Baker, to whose order he note was drawn, is still, as deponent believes, and expects to be able to prove, the owner of said note, and that the plaintiff's name is used as a mere cover to prevent the defendant from having a defence. That the note was an accommodation note given to said Baker, with whom deponent had large transactions still unsettled, and that deponent had a good defence against Baker, as he was, in fact, indebted to him. The supplemental affidavit set forth that the belief in the first affidavit of defendant was based on information received from the said Baker, who had informed him, since the suit on the note was brought, "That I have not allowed any of your notes to go to protest, but have protected you in every case, whilst you have allowed all my notes to go to protest; and I think it very hard that you have so done." And that afterwards, having called Baker's attention to the protest and suit on this note, Baker said, "You shall have credit on it." Wister, for rule. The information on which defendant relies wholly fails to show any defence as against an endorsee before maturity and the original affidavit is too vague. Williams v. Harding, WEEKLY NOTES, p. 344. Gustine v. Cummings, WEEKLY NOTES, p. 105. Yerkes, contra. The defendant swears to a defence as against the payee, and this, coupled with the information which leads him to believe that the holder is not bona fide, is sufficient. The affidavit alleged that the goods, as set out in the copy of account filed, were purchased on a six months' credit from September 15, 1874. That in January, 1875, before the expiration of this credit, expressly agreed on, plaintiffs brought an action ́ to recover price of said goods. That the credit of defendant was thereby so injured that in the sale of the said goods he suffered a loss of one thousand dollars, and, in his general business, at least four thousand dollars. The Court gave defendant leave to file a supplemental affidavit. C. P. No. 3. WILSON V. KAHN. May 16. Book entries-True copy-Allegation of variance between copy filed and the original entry—Rule to produce book-Practice. Rule for judgment for want of sufficient affidavit of defence. Action on a book account for goods sold. entries in action between the same parties, comIn the copy filed of plaintiff's book of original menced in No. 4, there is no charge made against defendant for the goods alleged to have been purchased, nevertheless in this suit plaintiff has filed a paper purporting to be a copy of his book account which does charge deponent with the purchase of is not a true copy of the entries of plaintiff's book said goods, and that deponent believes the copy filed debts, and that there is a material variance between said book and the paper filed. Leave being granted defendant to file a supplemental affidavit, it set forth : That by reason of the contradictions between the copy filed in No. 4 and that in the present suit, the the book entries, and that the variance between the deponent believes the copy filed is not a true copy of book and copy consists in this, viz.: That the charges against defendant are not contained in said book, while the copy alleges them to be therein. A rule had been taken on the plaintiff to produce his book of original entries. Stutzbach, for rule. It is not sufficient to say defendant believes this is not a correct copy The plaintiff resides in New York, and it would be very inconvenient to send his book of entries here. Folz, contra, cited: Shaw v. Baildon, 1 Troubat & Haly, 383, n. Reigel v. Breidenhart, 1 Troubat & Haly, 385. We have ruled plaintiff to produce his book of entries, which he has failed to do; the copy filed should be a true copy. PER CURIAM. As this is not the common law method of obtaining judgment, plaintiff must be careful to proceed regularly. Rule discharged. The supplemental affidavit alleged that after the sale of the aforesaid goods, plaintiff took a second C. P. No. 3. FOELKer v. Cunningham. order from defendant for between three and four thousand dollars' worth of goods, to be delivered in February, 1875, which goods were never delivered, though defendant was always willing to pay for them, to the damage of the defendant of one thousand dollars, which amount he claims as a set-off. Montgomery, for rule. May 31. Practice-Judgment by default-Appeal from alderman. Rule for judgment by default for want of an appearance Judgment was obtained before an alderman for the plaintiff and an appeal taken by the defendant, the transcript showing that the suit was for work and A demand arising from an independent tort cannot labor done and materials furnished. Copy of book be set off in an action on a contract entries and an affidavit of defence were filed, but the defendant did not enter an appearance, and plaintiff's counsel said that he could not be found for service of a copy of rule to plead. The plaintiff now moves for judgment for want of an appearance. P. K. Erdmann, for rule. On appeal from an alderman, proceedings are de novo as to declaration, etc. 1 T. & H. Pr. 89. Owen v. Shelhamer, 3 Binn. 45. The transcript of a magistrate on an appeal is equivalent to a narr., and plaintiff can rule defendant to plead without filing a narr. Doerle v. Johnson, 7 Phila. 393. "Appearances shall be entered hereafter by a paper filed and endorsed by the prothonotary, or one of his clerks, with the time of filing the same." Court Rule C. P. No. 3. Rule XXX. 109, p. 92. Rule absolute. and another young man, not, however, stating that he was the agent of the said persons, or disclosing his principals. The room was taken possession of by the firm of Oakford & Clark (Clark being the defendant's son), who paid the rent at the end of the first month, and took a receipt therefor in the firm name, but afterwards fell into arrears. They were notified by the plaintiff to quit and not to remove their goods. The plaintiff afterwards took possession of the premises, in August, 1874. A letter of the plaintiff written to Oakford, notifying him that the plaintiff looked to him for the rent, was given in evidence; this the plaintiff explained, by showing that it was written at the request of the defendant. The jury gave a verdict for the plaintif for half the amount of rent claimed. Croasdale, for the defendant, for the rule. There should be a new trial, as the verdict should have been either for the whole amount of the rent claimed or for nothing. The receipt estops the plaintiff. [THAYER, P. J. Nothing is plainer than that a landlord may give a receipt to the actual occupant without discharging the lessee.] Rule refused. KENNEDY V. MULLER. C. P. No. 4. May 31. Innkeeper-Right of detention for unpaid board— Fraud. Motion for a new trial. This was an action of trover brought for the recovery of the value of a trunk, against an hotel keeper in New York. On the trial it appeared that the plaintiff, a young woman, while travelling from Rochester to New York, joined one Shannon and his wife, and went with them to the defendant's hotel, where Shannon registered all three of them under his name. They remained there nine days, and during this time Mrs. Shannon used the clothing in the trunk. When they left-which they did together-their board being unpaid, the defendant seized the trunk, for which the plaintiff made no claim until some months after, when she tendered her share of the board, and demanded restitution of the trunk, which was refused. Shannon, on his examination at the trial, testified that he had nothing to do with the trunk. The Court [ELCOCK, J.] charged that the right of seizing baggage extended only to that of the boarder in default. The jury rendered a verdict for the plaintiff. Landlord and tenant-Estoppel-Non-disclosure of fendant had the right to seize the trunk, as the plaintiff principal by agent. Motion for a rule for new trial. This was an action brought to recover for the use and occupation of a room. The plaintiff, who owned a building in which he transacted his business and in which the room in question was situated, was waited upon by the defendant, who said he wished to take the room for his son was guilty of fraud in allowing the clothing to be used by Mrs. Shannon, and going about herself under the name of Shannon, and cited Chitty on Contracts [11th Am. Ed.], p. 679, n. Rule refused. C. A. V. June 1. J. H. Stevenson, for rule. The note of a feme covert, even if given for necessaries for which she could be sued, is void. Dorrance v. Scott, 3 Wh. 309. Keiper v. Helfricker, 6 Wr. 325. Luse, contra. The goods bought by defendant were necessaries. The defendant is to be held as a feme sole trader, no formal declaration being necessary. P. L. Act February 22, 1718, Purd. Dig. 692, § 1. Jacobs v. Fetherstone, 6 W. & S. 346. Rule absolute. C. A. V. C. P. No. 4. LACKMAN V. RAILROAD Co. Common carrier-Reasonable regulation-Tender of fare. Motion for rule for a new trial. This was an action on the case against the Union Passenger Railway Company. The testimony for the plaintiff was to the effect that upon entering the car on the defendant's line, he placed his ticket upon the Slawson box. The conductor insisted upon his placing it in the box, which the plaintiff refused to do, and the conductor thereupon ejected him from the car. A scuffle ensued, in which the plaintiff had his clothes torn, and lost his watch and chain. Witnesses testified to the Slawson box being a great nuisance, etc. A witness for the company testified that it was not. ELCOCK, J., instructed the jury (in substance) that the plaintiff was bound to put his ticket in the box, if not too inconvenient and dangerous. Verdict for plaintiff, one cent damages. Dolman, for the plaintiff, moved for a new trial, and argued that it was not competent for the company to impose on its passengers the duty of depositing their fare in the box. May 31. C. P. No. 4. BRODERICK V. MCHENRY. Affidavit of defence- Vendor and vendee of chattels - Caveat emptor-Representation not a warranty. Rule for judgment for want of a sufficient affi davit of defence. This was an action of assumpsit on a promissory note. The affidavit set forth that the note was given in payment for “twenty pressed bales of old papers containing seven thousand seven hundred pounds;" that the defendant bought these bales from the plaintiff, who was at the time in Baltimore, as also were the bales; and that, on the faith of the plaintiff's statement that the bales contained good paper suitable for defendant's business, the note was given in payment therefor; that from the fact of the paper being in bales, the defendant had no other means of knowing their contents than the representations of the plaintiff who sold them; that, after receiving and giving the note for the paper, the defendant, on breaking open the bales, found the same contained paper, mixed to a large extent with rubbish and woollen rags," not suitable for his business, and contrary to the plaintiff's representation. That the defendant gave one and one-half cent per pound for the paper, whereas, owing to its condition, it was not worth more than one-half cent per pound. Megargee, for the rule. THE COURT, referring to the case of Whitaker v Eastwick, 25 P. F. Smith, 229, made the ru'e absolute. Weekly Notes of Cases. VOL. I.] signing for error, inier alia, the portion of the charge above given. Erdman & Stiles, for plaintiff in error. To create a fraudulent preference the preferred THURSDAY, JUNE 10, 1875. [No. 37. creditor must have notice of his debtor's embarrass Supreme Court. March 25. Jan. '75, 75. KEMMERER v. TOOL. Upon the trial it appeared that in April, 1868, Kemmerer loaned to the present bankrupt, $4000, taking a note therefor, with a warrant of attorney to confess judgment, which was immediately entered up; at that time Knerr was the owner of a vacant lot and a house in Allentown, an ore-bed worth $20.000, and besides this a half-interest in 21 acres of land. During 1868, Knerr sold the land, the ore-bed, and the house in Allentown, Kemmerer at the same time releasing the lien of his judgment upon these properties, from the proceeds of which sale he was paid $1350 on account. In 1869, Knerr bought the "Marx" farm, a tract worth $11,000. In May, 1870, Kemmerer, wishing to extend the lien of his judgment to this property, obtained from Knerr, and without any resistance from the latter, an amicable revival of the judgment of 1868. Kemmerer testified that at this time he was entirely ignorant of Knerr's embarrassment, and that he made no particular inquiries as to Knerr's condition. Evidence was given in rebuttal by plaintiff that several parties either had brought, or were about to bring, suit against Knerr at this time. The Court below (LONGAKER, P. J.) charged, inter alia, as follows: 46 66 "It is a fact that the debt sought to be secured by "the revival was not created at that time but was subsisting since January, 1868, and whenever the "debt is thus subsisting and a revival is taken merely "to extend the lien thereof, it is an act done out of the usual course of business, and being so done it 'was the duty of the defendant to make an inquiry as to the solvency or insolvency of Knerr, and on "failure so to make the inquiry, the presumption fol"lows that the defendant would have found reasonable cause to induce the belief that Knerr was "insolvent or was contemplating insolvency. There being no evidence that such inquiry was made, you are instructed that this requisite has been established." ment. Buchanan v. Smith, 16 Wall. 277. Wilson v. Bank, 17 Wall. 473. Slack v. Turner, Leg. Int. 1874, p. 308. Taking a lien for an antecedent debt prima facie imports that the creditor lacks confidence in the debtor, and puts him on proof to show that he made inquiry and was fairly satisfied of the debtor's solvency. In re Wright, 2 B. R. 155. White v. Raftery, 3 B. R. 53. May 10. THE COURT. The errors assigned, except the third, to the charge of the Court, may be dismissed with the general remark, that they are not sustained. We have no doubt of the jurisdiction of a State Court to entertain such an action, and although in an ordinary case it may be doubted whether a bona fide creditor, who has received from a sheriff the amount of his claim and may in good conscience retain it (though the payment to him was by mistake), can be compelled by an action to refund, yet in this particular class of cases that question is precluded by the express provisions of the thirtyfifth section of the Bankrupt Act, that the assignee may recover the property or the value of it, from the person so receiving it, or so to be benefited," in contravention of the enactment as to fraudulent preferences. We think, however, that there was error in so much of the charge excepted to as instructed the jury that when a subsisting debt is secured by judg ment, and a revival is taken merely to extend the lien thereof, it is an act done out of the usual course of business, and being so done, it was the duty of the defendant to make an inquiry as to the solvency or insolvency of Knerr, and on failure to make the inquiry, the presumption follows that the defendant would have found reasonable cause to induce the belief that Knerr was insolvent or was contemplating insolvency. There being no evidence that such inquiry was made, you are instructed that this requisite has been established" namely that the defendant, Kemmerer, had reasonable cause to believe that Knerr was insolvent. That the learned Judge was supported by some of the bankrupt decisions in the Federal Courts, prior to the determination of the Supreme Court of the United States in Wilson v. City Bank, 17 Wall. Rep. 473, must be conceded. But the Supreme Court in that case gave a more liberal and reasonable construction of the Bankrupt Act in support of the rights of bona fide creditors. It was held that something more than passive non-resistance of an insolvent debtor to regular judicial proceedings, in which a judgment and levy on his property are obtained, where the debt is due and he is without just defence to the action, is necessary to show a preference of a creditor or a purpose to defeat or delay the operation of the Bankrupt Act; that, though the judgmentcreditor in such case may know the insolvent conThere was a verdict and judgment for the plain-dition of the debtor, his levy and seizure are not void tiff, from which defendant took a writ of error, as- under the circumstances, nor any violation of the Bankrupt Law; and that a lien thus obtained by him | Collins, and in favor of Freas and wife in right of the will not be displaced by subsequent proceedings in wife. bankruptcy against the debtor, though within four months of the filing of the petition. We must assume in this argument that Kemmerer had no knowledge of Knerr's insolvency and no reasonable cause to believe it, unless from the bare fact that Knerr, on his, Kemmerer's, application, was willing to consent to a revival of his judgment, so that it might be a lien on real estate, acquired by Knerr subsequently to its date. What was there in this to excite Kemmerer's suspicion or put him on inquiry? Is it out of the usual course of business for a judgment creditor, the lien of whose judgment is about to expire, to say to his debtor, "I do not wish to put you to any unnecessary costs by adverse process; give me an amicable revival?" It may be said to be almost an every-day thing. The advantage is all on the side of the debtor, not of the creditor. Kemmerer might at once have sued out an execution, made a levy an the after-acquired real estate, and thus secured the lien which he was desirous of obtaining. Surely the mere circumstance that the debtor consented to do a thing which in any aspect was for his own benefit, should not be allowed to af fect the creditor with knowledge of insolvency, which from no other facts he had any reasonable cause to believe. Yet the charge of the learned Judge certainly went this far. Judgment reversed and a venire facias de novo awarded. Marr, a witness of plaintiff, at whose office the arbitrators had met, and who had taken part in their deliberations as the friend of both parties, stated on cross-examination that he had no interest in the award, and that he had never told Mr. Collins that he wanted the money to pass through his hands, that he might pay himself a debt owed to him by Freas. The defendant then offered to prove by a witness that Marr had made the above statement to Collins. This offer the Court admitted, to prove interest in Marr, but not for any other purpose. Exception for defendant. The defendant also showed that the submission was made by Collins and Freas alone, and that Mrs. Freas was an entire stranger to the transaction. The defendant presented the following point: "Under a submission by Freas and Collins, an award embracing a matter relating to Mrs. Freas is bad." Answer. [While it is true that the arbitrators can only pass upon matters submitted to them, yet, if these arbitrators in making up their award included matters in controversy between Mr. Collins, Mr. Freas, and his wife, it would be valid if the jury believe that it was the agreement and intention of the parties to this suit that they should do so, and that, without regard to the circumstances whether the money was due to Freas, or to Freas in right of his wife."] The Court below (WALKER, A. L. J.) charged: ["On the part of the plaintiff it is contended, that, as this judgment was opened on the affidavit of the de[See Loucheim v. Henzey, Weekly Notes, 177, and Check- fendant, he will not be allowed to avail himself of land v. McNiel, 32 Law Times, 367.] Opinion by SHARSWOOD, J. [in full]. March 5. Jan. '74, 50. COLLINS V. FREAS. Arbitration and award Subject of reference— Award in favor of wife of party bad, if she is not included in submission-Evidence-Judicial proceedings-Judgment on an award when opened unconditionally not admissible for party who held it-Witness may be contradicted as to statements as to his motives made on cross-examination. Error to the Common Pleas of Schuylkill County. This was an action of debt upon an award brought by Freas and wife, in the right of the wife, against Collins. The docket entries were as follows: Feb. 19, 1871. Writ issued; same day, Narr., and award filed. May 1, 1871. Judgment against the defendant for want of an affidavit of defence. June 12, 1871. Rule granted upon plaintiff to show cause why judgment should not be opened or stricken off. June 26, 1871. Rule absolute. The defendant then pleaded: “ Nil debet," and "No submission, no award, and that the award was not authorized by the submission." Upon the trial, the plaintiff offered to put in evidence the record of the judgment obtained in the case. Defendant objected. Objection overruled. Exception. Plaintiff then proved a parol submission by Collins and Freas of all matters in dispute to three arbitrators, and offered in evidence their award against technical objections, but must rest upon the merits of his case. This is, no doubt, the law as a general proposition."] Verdict and judgment for the plaintiff for full amount of award. The defendant took a writ of error, assigning for error evidence. 1. The admission of the record of the judgment in 2. The refusal to admit evidence to contradict Marr. 3. The answer to defendant's point (in brackets). 4. The charge, as above given (in brackets). Farquhar (with whom was F. W. Hughes), for plaintiff in error. The record of a judgment which has been stricken off or opened unconditionally, is not legal evidence. Ridgeley v. Spencer, 2 Binn. 70 Leeds v. Bender, 6 W. & S. 315. 2. It was proper to show that Marr on his crossexamination made a false statement, if that statement was material to the issue. 1 Starkie on Evidence, 135. 1 Greenleaf's Evidence, 450. The motives which operated upon the mind of a witness are not immaterial or collateral to the issue, but, when he has been a participant in the transaction, serve to place his conduct in its true light. Gaines v. Commonwealth, 14 Wr. 319. 3. There was no evidence in the case that Mrs. Freas was a party to the submission. J. W. and J. Ryan, contra. |
