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entry, and that he is now under indict- | within six months of the service of the

ment for this offense in the Quarter Sessions Court of this county.

The depositions show that Jacob Albright obtained possession of the property in 1868 through an agreement with George Paules, the then owner of it. Conrad Ziegler loaned money to Paules, who conveyed it to him as security for this money in order to save taxes. It was agreed between Conrad Ziegler, who knew of the agreement between Paules and the petitioner, and who was the grandfather of Jacob Ziegler, the respondent, Paules and the petitioner that the petitioner was to pay this money as he could. Upon the death of Conrad Ziegler all the purchase money not having been paid, his son and heir agreed that the original agreement should be continued and that the balance was to be paid by work done for him and his two sons, of which the respondent is one. Upon the death of John Ziegler, his son Jacob assented to the agreement. The petitioner claims that the amount due has been paid.

In pursuance of this arrangement the petitioner moved on the property, made substantial alterations, and paid all taxes. He continued to reside upon the property from 1868 to 1911. In the latter year he moved to York, having rented the property to a nephew, for whom he left a key at the neighbor's. By some means the respondent then got possession of the property, which he rented to Harry Kieffer, who farmed the lot but did not occupy the house except to have "some fertilizer in the outside attachment to the house." On May 5, 1914; the petitioner took possession of it, and has retained possession up to the present time. This petition was filed on May

23. 1914.

From the testimony, we find that the petitioner is in actual possession of the land in question; that he claims to have title to it, which claim is not without reason that the respondent is out of possession and claims title to it. These are all the facts necessary to give us jurisdiction to issue the rule prayed for.

We, therefore, grant a rule upon Jacob Ziegler to bring his action of ejectment

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A surety on a sheriff's interpleader bond who was compelled to pay a judgment against himself in a suit on the bond, and has had transferred to him by order of the court the creditor's judgment and award in Orphans' Court against his principal, can recover on the same against the estate of a deceased surety on the bond of the administrator of his deceased principal, although such deceased surety was also the creditor whose judgment he had paid.

Rule for a new trial. C. P. of Lancaster Co. August Term, 1914, No. 21. B. F. Davis, for defendant and rule. M. E. Musser, J. W. Brown, Coyle & Keller and I. U. Hensel, contra.

January 9, 1915. Opinion by HassLER, J.

tor's bond given by Harry Binkley as This is an action upon an administraadministrator of the estate of Clara Y. Binkley, deceased. Benjamin N. Nolt. defendants' testator, is a surety on the bond. John M. Froelich, the use-plaintiff, was a surety on the interpleader bond given by Clara Y. Binkley during her lifetime, and as such surety was compelled to pay Benjamin N. Nolt the sum of $1,273.21, with interest and costs. This judgment was presented by Benjamin N. Nolt at the audit of the account of Clara Y. Binkley's estate, and $1.118.67, the balance of her estate, was awarded to it. This adjudication of the Orphans' Court has been confirmed absolutely. Having paid the judgment obtained by Benjamin N. Nolt on the interpleader bond, John M. Froelich petitioned this Court to compel Benjamin N. Nolt to transfer to him the award in his favor made by the Orphans' Court in the

estate of Clara Y. Binkley, which was accordingly done. On appeal to the Superior Court this action on our part was affirmed, in Commonwealth v. Froelich, 56 Sup., 604 (31 LAW REVIEW, 233).

The administrator of Clara Y. Binkley, deceased, not having paid the award, this suit on his bond was commenced. At the trial, the jury, under our instructions, found a verdict for the plaintiff. The defendants' fourth reason for a new trial is as follows:

"4. The verdict should have been in favor of the defendants because the equity of Benjamin N. Nolt, deceased, was superior to that of John M. Froelich, Mr. Froelich having been bail on an interpleader bond for Clara Y. Binkley, deceased, thereby enabling her to get title to goods and chattels levied upon by Nolt under the act of assembly, and which subsequent trials showed that the title to the same was not in Clara Y. Binkley, but in her husband, Henry Binkley, subject to the levy of Benjamin N. Nolt, but by reason of Froelich's becoming bail Nolt was unable to realize upon his execution."

When Benjamin N. Nolt became the surety on the bond of Harry Binkley as administrator of Clara Y. Binkley, deceased, he engaged to be responsible for the acts of said administrator. He has failed to pay the award to John M. Froelich, and the sureties on the bond are liable to do so. No question of equity arises. If some third party had been a surety on the bond, there could be no question of his liability, and Benjamin N. Nolt is in exactly the same position. The fact that he was also a creditor of Clara Y. Binkley does not alter this liability or change what he agreed to do' when he became surety on the bond in question. As is said by Judge Porter in Com. . Froelich, 56 Sup., 604, "When Benjamin N. Nolt became surety upon the administration bond of Harry Binkley, he did not make himself a surety for the payment of the debts of Clara Y. Binkley; he is not in the position of a surety for Clara Binkley. He can only be required to answer for the conduct of Harry Binkley, the administrator, but he cannot because of the fact that he was

once a creditor of the estate cancel his liability on the administration bond and defeat the rights of Froelich who has succeeded to his rights as a creditor."

There is no merit, therefore, in this reason. The other reasons are general and do not require consideration. The rule for a new trial and the rule for judgment non obstante veredicto are discharged.

Lanpher, Skinner & Co. v. H. B. Herr.

Sale by sample-Return of goods. Where a purchaser elects to reject goods not conforming to the sample, he must promptly return them, or at least give notice of his refusal to accept them, and where he gives no notice of refusal and waits six months to return them, he is liable for the price, although it was agreed that the vendor would take back at cost goods not like the sample if the purchaser could not sell them. Such agreement did not absolve the purchaser from his duty to notify the vendor that the goods were not of the quality ordered.

Rule for judgment for want of a sufficient affidavit of defense. C. P. of Lan

caster Co. August Term, 1914, No. 63. Geisenberger & Rosenthal, for rule. Chas. W. Eaby, contra.

January 9, 1915. Opinion by HASSLER, J.

The plaintiff, according to his statement, sold and delivered mackinaws to the defendant on August 18 to the value of $145. On two other occasions, the latter of which was on December 20, 1913, it sold and delivered to him goods to the value of $9.58, making its total claim $154.58. On account of this the defendant made two payments, one on January 21, 1914, of $50, and the other on January 31, 1914, of $33, leaving a balance due the plaintiff on its claim of $71.50.

The defendant in his affidavit of defense admits the purchase and receipt of the goods. He alleges that at the time of their purchase, which was by sample, it was agreed that the plaintiff would take back all goods at cost which the defendant could not sell if they did not

correspond with the sample; that some were not like the sample, and that on February 24, 1913 (1914) he shipped to the plaintiff by P. R. R. such goods to the value of $71.50. He does not aver in what particular they were not like the sample, nor that the plaintiff, whose place of business is in St. Paul, Minnesota, received them.

A vendee who receives a thing purchased into his possession before he has become acquainted with its quality has, if dissatified, but one of two courses to pursue: either to retain it and claim a deduction, or reject it and attempt to rescind the contract: Estes v. Kauffman,

44 Sup., 114. If he chooses to reject it he must act promptly and return the goods, or at least give notice of his refusal to accept them. If he unduly delays, he affirms the validity of the contract as performed by the vendor, and he cannot relieve himself of his liability to pay for them: Longacre v. Dinan, 2 Northampton, 325. In Lees & Co. v. Eichinger, 19 L. L. R., 27, a delay of three and a half months was held to be

cuse him. He knew when he received and examined them whether they were in accordance with the sample, and it was his duty then to have notified the plaintiff of its failure to send goods of the quality ordered. We make absolute the rule for judgment for want of a sufficient affidavit of defense, and enter judgment for the plaintiff for the sum of $76.68.

Rudy v. Kegel.
Sheriff's interpleader.

The plaintiff in a sheriff's interpleader canhe had bought, a printing-press and type which not claim, among other printing material that he had not bought, on the ground that when the defendant in the execution bought it, it was agreed between them that it was to become part of the plant and could not be removed.

Sheriff's Interpleader Issue. Rule for a new trial. C. P. of Lancaster County. September Term, 1914, No. 24.

S. R. Zimmerman and John E. Ma

B. F. Davis, contra.

an unreasonable delay by the vendee lone, for plaintiff and rule.
when it was agreed the goods were to be
returned "if not sold or not satisfac-
tory." In Tete Bros. v. Eshler, II Sup..
224, a delay of three months in rejecting
goods was held not to be a prompt re-
jection by the vendee, and he was held
to have accepted them.

Where there is no dispute as to the facts, the question of whether the vendee acted promptly in rejecting goods that were not like the sample is one for the court and not for the jury: Kessler v. Perrong, 22 Sup.. 578; Drovers & Mechanics Bank v. Newton, 6 Kulp, 193.

There is no dispute as to the facts in this case, as we accept the allegations of the affidavit of defense as true. The defendant waited from August 18, 1913, until February 24, 1914, a period of more than six months, to return the goods, and does not allege that he gave plaintiff notice of his refusal to accept them. This was not acting promptly, and is, therefore, not a sufficient defense to plaintiff's claim.

The fact that he was to return them only if unable to sell them does not ex

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January 9, 1915. Opinion by LANDIS, P. J.

This case was submitted without argument. The matters involved therein arose out of an issue in Interpleader, and the dispute to be determined was purely one of fact. It was, therefore, submitted to the jury for their finding. As to the Challenge Gordon Press and the type purchased by Halbach from John Baer's Sons, it was not claimed that Rudy had ever bought or paid for these articles. His sole contention in this regard was that he had told Halbach that if he brought them to Rudy's printing estab lishment, they would become part of the plant, and that Halbach assented to that arrangement. But Halbach absolutely denied this story, and even the proof of the plaintiff's own witnesses, who were present when the conversation took place, was to the effect that, when Rudy made the above condition, Halbach said. nothing in reply. Even, however, if such an agreement was made by Hal

bach, he could not so agree to the prejudice of his then existing creditors. The facts were left to the jury under the law, and we think they correctly decided the case.

| dishonorable," as well as "unjust," and soon found a way to declare them invalid as well. The first attempt to steer clear of the difficulty was made in a New Hampshire decision, 6 N. H., 164, where

The rule for a new trial is now dis- it was argued that when several persons charged.

Rule discharged.

Legal Miscellany.

Contract of Subscription.

A promise to contribute money to charitable, religious, or educational pur poses, however laudable and morally binding, cannot be enforced upon any principle of contract law. Theory and decision are in irreconcilable conflict with the enforcement of such subscription promise. Many courts, however, seeing only what was to their mind the justice of the situation, have solved the question by cutting the Gordian knot and disregarding the fundamental principles of contracts. However proper this may be from the viewpoint of justice, good faith, or moral obligation, it can only be regarded as a piece of judicial legislation, violative of the governmental functions of the judiciary. In a recent case in Iowa, Brokow v. McElroy (Ia., 1913), that state has fallen in line with other jurisdictions in such summary solution of the problem.

To support the subscriber's promise, a consideration is essential. Consideration, according to the traditional definition, is either detriment incurred by the promisee or a benefit received by the promisor in exchange for the promise. Ordinarily, the subscription paper contains neither a request by the subscriber nor a promise by the beneficiary; the subscription usually is a mere gratuity. This objection has been conclusive to the English courts. The American courts also, at first, found this difficulty insuperable, and all such subscriptions were held null and void for want of consideration. The courts, however, had pronounced such defenses as "base and

subscribe a paper for some common public object, the promise of each is a consideration for the promise of the others, and the payee of the paper may enforce the promise against each subscriber. This seemed plausible, and a legal way of overcoming the objection, and it was accordingly adopted and approved, without much reflection, in several jurisdictions. But, in most instances, the subscribers do not give their and, even if they do, and the mutual promises in exchange for each other,

tion for each other so as to create a valid promises do form a sufficient consideracontract, it would be a contract between them and a third person. Now, in many the co-signers only, and not between States, a third person cannot sue on a contract made for his benefit; and in several of the States which allow a beneficiary to sue, he cannot bring the suit in

his own name.

Another view that beneficiary or its representatives imports a promise to apply the funds properly, and this promise supports the subscriber's promises. This, it seems, is purely fictitious and forced reasoning. In a few cases, the fact that other subscriptions have been induced has been held to be a good consideration. But, as Mr. Chief Justice. Gray said in one case, 121 Mass., 528, this is "inconsistent with elementary principles. Similar promises of third persons to the plaintiff may be a consideration for agreements between those persons and the defendant; but as they confer no benefit upon the defendant, and impose no charge or obligation upon the plaintiff, they constitute no legal consideration for defendant's promise to him." In Beatty v. Western College, 177 Ill., 280, the Court enforced the gift "upon the ground of estoppel, after the institution has extended moneys and incurred liabilities on the faith of the promise, and not by reason of any valid consideration in the original undertak

ing." This avoids the contractual diffi- | and gave him a deposit-slip stating that culty only by substituting an infringe- his deposit account had been credited ment of the doctrine of estoppel. The with the amount of the check on that most generally accepted theory considers date, and afterwards the plaintiff drew the subscription as an offer, which is checks in the usual course of his business made binding when the work for which against said deposit, which were paid by the subscription was made has been the defendant. Subsequently he placed done, or liability incurred in regard in other moneys and checks to the credit of such work, on the faith of the subscrip- his account, as had been his custom betion. This necessitates an implied re- fore and after said date. It is alleged. quest by the promissor that such liability further, that the plaintiff, under his dealbe incurred an implication of fact not ings as a depositor with the defendant, usually justifiable. had the right to draw immediately against his account credited with the deposit of the check stated, but that about a month subsequently to the deposit of the check the defendant charged his deposit account with the amount of the check, taking this sum from him without his knowledge or consent, and, after charging his account with this sum, refused, after demand, to return it to him or to his account, and notified him that the check had been lost in the mail, and for this reason it could not be returned to him.

The same courts have often based their decisions on different theories. The theory that has been advanced is that the acceptance of the subscription by the law has been thrown on this subject, due to the desire of the courts to enforce a promise binding in morals but not in law, in violation of well-settled principles of contract. If the policy of the State is promotive of education, religion and philanthropy, if it is desirable, from motives of public policy, that such subscriptions, although gratuities, should be enforced because numerous worthy institutions are absolutely dependent upon them, such enforcement should be obtained through suitable enactment by the legislature, and not through judicial legislation which is subversive of the symmetry of our view.

-Pennsylvania Law Review.

Held, that the court below erred in sustaining a general demurrer to the petition and in dismissing the case. Under the allegations of the petition, the transaction between the depositor and the bank constituted a sale of the paper to the bank, and vested the title to the same in the bank, and the cash became the property of the depositor, and the bank did not have the right to charge back the amount of the check against the account

Right of Bank to Charge Back to Depositor of the depositor.
Check Lost in Mail.

In Spooner v. Bank of Donalsonville,
82 S. E., 625, decided by the Supreme
Court of Georgia, the syllabus by the
Court is as follows:

In this suit, brought to recover of the defendant bank a stated sum, it is alleged, in substance, that the plaintiff was a depositor in the defendant bank, and carried a deposit account therein to his credit, subject to his check. On a certain day he deposited to his credit in the bank a check drawn on a bank at another place by a named person, payable to the order of the plaintiff, and by him indorsed in blank, which check so deposited, the defendant received and placed as a credit on plaintiff's deposit account in the bank

Jackson, a rough, sued a man for assault, and yet, when the man appeared in court, he was bitten all over his face and ears horribly.

"How about this?" the judge said to Jackson sternly. "Here you sue a man for assault, and he comes into court marked all over with your teeth!"

"Well, judge, your honor," said Jackson, he pounded me so hard while he was assaultin' me that I had to have something to bite on, or else I couldn't have stood it."-New York Times.

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