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aise for which the note was given would assignee is a holder for value who takes be used by the light company, and that free from equities of which he had no he knew that said goods, which were the notice. And Payne v. Zell, 98 Va., 294, consideration of the note, could not and decided in that state that under section would not be used until the light com- 27 of the Negotiable Instruments Act "a pany obtained a franchise from the city holder of collateral is a holder for value of Wilkes-Barre, which franchise has to the extent of the amount due him.” not yet been granted; and, further, that The learned judge in Raken v. Henry, the said Roth, in violation of the solemn 16 Dist. R., 207, finds that “neither one agreement, had had this note discounted of the two American cases analyzes the at the Wyoming Valley Trust Company. | statute or strikes us as being a correct

None of these defenses were offered exposition of the law on the subject," at the trial, but Drs. Tobias and Clark but quotes with approval Sutherland v. attempted to prove that they had not Mead, 80 App. Div. (Sup. Ct.), 103, a been duly notified of the demand and New York decision, in which Judge protest, and also they defended on the Hatch, in a thoughtful and well-considlegal proposition that, as the note was ered opinion, states: “Since 1882 it has endorsed by them for the accommoda- been the settled law of this state that tion of the light company and was used accommodation makers of negotiable by the light company by delivering it to paper were not liable to the holder the plaintiff for an antecedent debt, the thereof where the same had been fraududefendants could not be held upon their lently diverted from the use for which accommodation endorsement, relying on it was made, and the holder had received Raken v. Henry, 16 Dist. R., 207. That it solely as collateral security for an antecase undoubtedly and forcibly makes it cedent debt; . . . and (this still is the clear that generally the law in Pennsyl- law unless the negotiable instruments vania with reference to accommodation law has changed the same. . . There is endorsements requires a new considera- | nothing in this enactment which has tion to move to the endorser if he is to changed the law. . . . All of (the statbe held liable in case the note was ute) can be harmonized without subtle pledged or delivered for the securing of refinement of reasoning by construing an antecedent debt of the person for (section 26 in the Pennsylvania statute) whose accommodation the note was en- to mean that to constitute an antecedent dorsed; and “that the transfer of the or pre-existing debt a valuable considnegotiable instrument for a pre-existing eration in support of the promissory note debt does not constitute a person a that had been fraudulently diverted as holder for valuable consideration; that valid in the hands of a bona fide holder, to so constitute him, under such circum- the latter must have canceled and in legal stances, there must be a new considera- effect paid and discharged the antecedent tion; as where it can be shown that time or pre-existing debt." was given in consideration for obtaining In this case, there is evidence that on the note as security for the debt, or any September 27th, one day after the date other such present and valuable consid- of the note, the amount thereof was eration; for a pledge on such terms credited to the account of the Wilkeswould be the same as a pledge for money Barre Light Company by the plaintiff, paid down.”

leaving the indebtedness of the light Two American cases are cited in that company at $574.36; and, therefore, opinion as having been decided in states, there was evidence to be submitted to where a negotiable instruments act had the jury whether in fact the note was been arlopted practically similar to our taken as collateral security for the anteAct of May 16, 1901, P. L. 194. Brooks cedent debt, the debt itself surviving, or 1. Sullivan, 129 N. C., 190, decided that whether it was taken in payment of the the statute worked a change in the law, debt; but, holding the view that under and that under it, when a negotiable note the circumstances of this case there was is transferred before maturity as collat- a full and fair consideration to the eneral security for a pre-existing debt, the 'dorsers, and that the principles referred to in Raken v. Henry, 16 Dist. R., 207, | sufficient evidence of direct considerawere not applicable, we charged the jury tion passing to these endorsers through as follows:

the fact that an advantage was gained “When a person endorses or makes a by this means for the corporation which note for the accommodation of another they were managing, and, therefore, on person, as, for instance, these two de- the plainest principles of justice, it must fendants who are here to-day made this be held that they received value for their note for the accommodation of the endorsement and cannot set up the deWilkes-Barre Light Company, and stipu- fense that they were merely accommodalates that this note should be used in a tion endorsers without value. As beparticular way, and it is used in some tween them and their company this deother way, by handing it, for instance, to fense would be good. As between them a person for whom it was not intended and a creditor of their company, who to apply on an antecedent debt or an ex- had dealt with the company under their isting indebtedness to that person, the management and who accepted the comendorser or accommodation maker would pany's note, when endorsed by them, and have the right to set up as a defense credited it to the company's account, rethat it was not intended that that note ducing the book evidence of the comwas to be used in that way, and that it pany's indebtedness thereby, they are not was a fraud on him to use it in a way accommodation endorsers, but endorsers it was not intended. But when a person for value. endorses a note for the purpose of using Rule for new trial is discharged, and it in a particular way, that way being to judgment is directed to be entered in give to it somebody who is a creditor favor of plaintiff on the verdict. of the person for whom the endorsement is made as an accommodation, and the note is used exactly as contemplated, the

Commonwealth v. Church. endorsement carries with it the liability that the law intends to put on an en- Justice of the peaceProceedings under dorser, which means that the endorser the posting act - Trespass Title to will pay the note at its maturity if the land Acts of July 21, 1901, P. L. maker does not, and if the endorser is 608, and April 14, 1905, P. L. 109. duly notified by protest of the failure to pay after demand at the time of ma

A proceeding by the commonwealth under

the posting act of April 14, 1905, P. L. 169, turity.”

is in the nature of a proceeding for summary That is entirely consistent with the conviction, and cannot be transmitted by the doctrine laid down in the New York case justice to the court of common pleas upon already referred to that an accommoda- the affidavit of defendant to the effect that

the title to the land is in question. The act tion maker was not liable to a holder of July 21, 1901, P. L. 608, does not apply to where the note had been fraudulently such a proceeding. diverted from the purpose for which it was made. In view of the fact that both

Motion to strike off and dismiss trandefendants were directors of the com- script from justice of the peace. C. P. pany under whose management the debt of Forest Co. September Term, 1913, had been incurred at a time when the No. 18. company had not yet begun business,

Opinion by HINCKLEY, P. J. and was still waiting to acquire franchises in the city in which it operated, L'pon June 11, 1913, a complaint was whereby they were more or less inter- made before a justice of the peace in ested to see that the initial debts of the name of the commonwealth by Jessie M. company should be provided for, and in Brennen, that the defendant, upon June view of the fact that by delivering this i 8, 1913, wilfully and maliciously entered note to the plaintiff, who was clamoring upon the land of the plaintiff, "which for his pay, additional time was procured land was prominently posted by printed for the corporation which they were notices according to the Act of Assembly managing, it seems to us that there is ' of A. D. 1905, and did at said time com

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mit such wilful trespass "; and a war- | the commonwealth, refuses to proceed rant in the name of the commonwealth | with or hear the case. was issued charging the defendant with The Quarter Sessions, then, has juris“ trespass under the Act of 1905," and diction in appeals allowed from sumthe defendant arrested and brought be- mary convictions before a magistrate; fore the justice. The defendant then and the Common Pleas has jurisdiction before hearing, made affidavit that the for the trial of cases transmitted to that title to land will come in question as she court by a justice of the peace or magisverily believes and expects to be able trate pursuant to said Act of 1901. to prove, and that she did not wilfully If the defendant's contention here is trespass upon posted lands of the com- correct, the result would be that not only plainant; and entered into recognizance, would the jurisdiction of the magistrate, etc., and thereupon the justice ceased to but the Court of Quarter Sessions would proceed with the case, and transmitted be ousted, and this summary proceeding, the record to the Court of Common Pleas metamorphosed into an action of tresof Forest County, under the provisions pass in the Common Pleas. of the Act of Assembly approved July It must be apparent from such incon21, 1901, P. L. 608, and the transcript gruous result that the Act of 1901 was and proceedings were filed in this court never intended to, and does not apply to, to the above number and term.

summary convictions. This motion is made to strike off and The Acts of 1810 and 1876 gives jusdismiss this record for the reason that tices jurisdiction, except in cases of the Common Pleas has no jurisdiction real contract,” when the title to lands of the case for reasons apparent on the may come in question. These provisions record.

relate clearly to actions of a civil charThis proceeding is brought under the acter between private parties. provisions of the Act of Assembly, April The Act of 1814 gives jurisdiction to 14, 1905, P. L. 169, and is the nature of magistrates in trespass and trover, exa summary conviction. Com. v. Zim- cept when the defendant shall make oath merman, 56 Pa. Super., 311; Com. v. that the title to lanes will come in quesMitchell, 24 D. R., 496.

tion.” (In Shober v. Henry, 4 Dist., Numerous authorities have been cited 505, held repealed by Act of 1879.). by the counsel for the motion for the Under the Act of 1814, if the defendpurpose of showing that this is a sum- ant made the requisite oath, the case mary conviction, and that appeal from was dismissed, but this result is now summary convictions must be taken prevented by the Act of 1901, which is under the constitutional provision, and entitled “a supplement

a supplement ” to the Act of the act of 1876, upon special allowance, 1814, and the case does not fall, but goes and then only upon cause shown, and on in the Common Pleas. must be taken to the Quarter Sessions. The whole history of the Acts of AsThere is no doubt about the correctness sembly in question, relating to summary of this proposition, and if this were an convictions and suits before a justice of appeal from a summary conviction after the peace, and the practice under them, trial before a justice of the peace, it as well as the language of the Act of would necessarily fall for want of an 1901, clearly indicate, we think, that the allowance by this court for such appeal, latter act, and the others of a similar and, of course, because it has been filed character, are only applicable to proceedin the wrong court. However, this ings of a civil character between private record does not constitute, nor purport parties, and have no place on proceedto be, an appeal. It is a transmission by ings of this character, a summary cona justice of the peace of his record pur- viction. suant to the provisions of the Act of The wording of the Act of 1901 : In July 2, 1901, P. L. 608, where defendant any action trespass brought before a has made oath, and otherwise complied magistrate, etc

... Defendant shall with the provisions of this act, and the enter into recognizance .. to pay the justice thereupon, against the protest of 'plaintiff such sum as shall be recovered; the justice, instead of dismissing Eshleman v. Kirk Johnson & Co. the suit, shall transmit a copy of his

Contract Minors Rescission Part record to the prothonotary of the Court of Common Pleas, and the said suit

payment-Damages. shall then be proceeded in, in the said A minor can disaffirm his contract and recourt as if originally rightly brought cover what he has paid if he has received therein. The costs shall be paid in equal

no benefit. shares by the plaintiff and the defend- under a lease and sale contract for a piano,

In a suit for money paid when a minor, ant.”

an affidavit of defense is insufficient which If either party refuses to pay the same, denies that the plaintiff was a minor when he judgment may be entered against the made the contract for the reason that he did

not disclose the fact at the time, and further party so refusing and execution issued claims that the defendant has sustained damfor the collection; all signify that a civil ages by reason of the lease greater than the action of trespass between individuals, or

sum sued for without denying the allegation of a private nature, is intended to be

in the statement that notice of the rescission

was given about two weeks after the contract. reached in this act. A summary convietion is not covered by the words “ action Rule for judgment for want of a suffiof trespass." It is not usually described cient affidavit of defense. C. P. of Lanas a suit between parties, plaintiff and caster Co. August Term, 1914, No. 94. defendant, but the commonwealth and defendant, and cannot be under any

Frank S. Groff, for rule. circumstances brought in the Common W'. U. Hensel, contra. Pleas. It certainly is not contemplated that execution should be issued against September 26, 1914. Opinion by Hassthe commonwealth for costs, as might LER, J. follow. As heretofore stated, the reading of the Acts of Assembly sufficiently

The plaintiff's claim is for money paid indicate that they were not intended to

on account of a contract for the lease apply to cases of this character.

and sale of a piano, made by him with The legislature possesses large powers the defendant on January 16, 1913, when in the matter of creating new offenses he was a minor. In his statement the and prescribing mode of conviction. See plaintiff alleges that he was a minor Van Swartow v. Com., 24 Pa.,

when he made the contract, and that two

131; Com. v. Hazen, 20 Super. Ct., 487; Ful2 weeks after making it, viz., on February ton County v. Tate, 47 Pa., 532; Com. 1, 1913, he notified the defendant that v. Craine, 12 Pa. C. C., 286; Duquesne he disaffirmed the contract. The piano Boro. School Dist. v. Pitts., 184 Pa.,

was never delivered to the plaintiff, but 160; Com. v. Borden, 61 Pa., 272; Hoff- always remained in the defendant's posman v. Com., 123 Pa., 75; Com. v. Groff, session. In his affidavit of defense the 8 Lanc. Law Rev.

, 267; Com. v. Statzer, defendant denies that the plaintiff was a 5 Pa. C. C., 256.

minor when he made the contract, for This is a purely statutory proceeding, the reason that he did not disclose the where the magistrate is given exclusive fact at the time the contract was made; jurisdiction, and before there can be con

and further claims that he has sustained sideration of the case by the Appellate damages to the piano by reason of the Court there must be a hearing by such lease to an amount greater than the sum magistrate, and his jurisdiction is not named by the plaintiff. ousted by the defendant making the oath

The denial of the plaintiff's age is not and complying with the provisions of the sufficient. The defendant gives the Act of 1901.

reason for his knowledge of the fact that The motion to dismiss the proceedings the plaintiff is of age, and it is not transmitted by the justice is made ab

a good one. It is, therefore, not such a solute.

denial as is required in an affidavit of defense, and we must take the allegation of the plaintiff that he was a minor when he entered into the contract as true.

202.

A minor can disaffirm his contract and the parties, “penalty or " liquidated recover back what he has paid on account damages,” may prima facie be supposed of it if he returns or offers to return to mean what they say, but they are by what he receives by means of it, or if no means conclusive; the court must find he has received no benefit from it: 22 | out from all the terms and circumstances Cyc., 617; Wilson v. McCullough, 19 Pa., whether the payment stipulated is in 77; Whichcote v. Lyle's Executors, 28 truth a penalty or damages. The essence Pa., 73; Ruchizky v. DeHaven, 97 Pa., of a penalty is a payment of money

stipulated as in terrorem of the offendIn this case the plaintiff did not receive ing party; the essence of liquidated anything under the contract, and conse- damages is a genuine pre-estimate of quently had nothing to return before he damage by agreement. These are doccould disaffirm the contract and recover trines governing the question which may the amount paid by him on account of it. be said to be found passim in nearly

The defendant, however, claims dam- every case and text-book. But they do ages because of the contract, and it is not dispose of the whole problem of urged that the plaintiff cannot recover construction, which remains one of the until he puts the defendant in the same most delicate in our jurisprudence, and position he was in when the contract various tests have been suggested which was made. In this part of his defense the House of Lords called to its aid in the defendant does not set forth a claim giving its final decision on the muchthat he can recover. He retained pos- discussed case of Dunlop Pneumatic session of the piano and never delivered Tyre Co. v. New Garage and Motor Co., it to the plaintiff. The plaintiff alleges, in which judgment was delivered last and the defendant does not deny, that week. The question was whether a notice was given to the defendant by the clause in an agreement called a “ Price plaintiff about two weeks after the con- Maintenance Agreement,” which protract was made of the plaintiff's rescis- | vided for the payment of a fixed price sion of it. No damages to the piano “by way of liquidated damages and not claimed by the defendant could have as penalty” upon the breach of any of occurred in that time, and therefore there several conditions was to be construed were none that it was necessary for the as it stood, or to be read as imposing a plaintiff to pay to put the defendant in penalty. The defendants having broken the same position he was in at the time the agreement by selling certain covers the contract was made.

and tubes at less than the current priceWe make absolute the rule for judg- list, an inquiry had been directed as to ment for want of a sufficient affidavit of damages before the master, and he had defense, and enter judgment for the assessed the damages at 51. for each plaintiff for $103.25.

default, as provided by the agreement. On appeal to the Court of Appeal this

decision was reversed by a majority Legal Miscellanp.

(Lord Justice Kennedy dissenting), and the House of Lords now unanimously reinstated the finding of the master, up

holding the award as for “liquidated Liquidated Damages or Penalty. damages.” The main tests applied to The question whether a sum stipulated arrive at this judgment were the conto be paid in case of default under a ficting ones set out in the judgments of contract is a penalty or liquidated dam- Lord Watson in Elphinstone v. Monkages is a question of construction to be land Iron Co. (1886)—there is a predecided upon the terms of each partic- sumption (but no more) that it is a penular contract having regard to the cir- alty “when a single lump sum is made cumstances existing at the time of the payable by way of compensation on the making of the contract, and not at the occurrence of one

or all of time of the breach. The words used by several events, some of which may occa

or more

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