aise for which the note was given would | be used by the light company, and that he knew that said goods, which were the consideration of the note, could not and would not be used until the light company obtained a franchise from the city of Wilkes-Barre, which franchise has not yet been granted; and, further, that the said Roth, in violation of the solemn agreement, had had this note discounted at the Wyoming Valley Trust Company. None of these defenses were offered at the trial, but Drs. Tobias and Clark attempted to prove that they had not been duly notified of the demand and protest, and also they defended on the legal proposition that, as the note was endorsed by them for the accommodation of the light company and was used by the light company by delivering it to the plaintiff for an antecedent debt, the defendants could not be held upon their accommodation endorsement, relying on Raken v. Henry, 16 Dist. R., 207. That case undoubtedly and forcibly makes it clear that generally the law in Pennsylvania with reference to accommodation endorsements requires a new consideration to move to the endorser if he is to be held liable in case the note was pledged or delivered for the securing of an antecedent debt of the person for whose accommodation the note was endorsed; and "that the transfer of the negotiable instrument for a pre-existing debt does not constitute a person a holder for valuable consideration; that to so constitute him, under such circumstances, there must be a new consideration; as where it can be shown that time was given in consideration for obtaining the note as security for the debt, or any other such present and valuable consideration; for a pledge on such terms would be the same as a pledge for money paid down."

Two American cases are cited in that opinion as having been decided in states where a negotiable instruments act had been adopted practically similar to our Act of May 16, 1901, P. L. 194. Brooks 7. Sullivan, 129 N. C., 190, decided that the statute worked a change in the law, and that under it, when a negotiable note is transferred before maturity as collateral security for a pre-existing debt, the

assignee is a holder for value who takes free from equities of which he had no notice. And Payne v. Zell, 98 Va., 294, decided in that state that under section 27 of the Negotiable Instruments Act “a holder of collateral is a holder for value to the extent of the amount due him.” The learned judge in Raken v. Henry, 16 Dist. R., 207, finds that "neither one of the two American cases analyzes the statute or strikes us as being a correct exposition of the law on the subject," but quotes with approval Sutherland v. Mead, 80 App. Div. (Sup. Ct.), 103, a New York decision, in which Judge Hatch, in a thoughtful and well-considered opinion, states: "Since 1882 it has been the settled law of this state that accommodation makers of negotiable paper were not liable to the holder thereof where the same had been fraudulently diverted from the use for which it was made, and the holder had received it solely as collateral security for an antecedent debt; . . . and (this) still is the law unless the negotiable instruments. law has changed the same. . . . There is nothing in this enactment which has changed the law. . . . All of (the statute) can be harmonized without subtle refinement of reasoning by construing (section 26 in the Pennsylvania statute) to mean that to constitute an antecedent or pre-existing debt a valuable consideration in support of the promissory note that had been fraudulently diverted as valid in the hands of a bona fide holder, the latter must have canceled and in legal effect paid and discharged the antecedent or pre-existing debt."

In this case, there is evidence that on September 27th, one day after the date of the note, the amount thereof was credited to the account of the WilkesBarre Light Company by the plaintiff, leaving the indebtedness of the light company at $574.36; and, therefore, there was evidence to be submitted to the jury whether in fact the note was taken as collateral security for the antecedent debt, the debt itself surviving, or whether it was taken in payment of the debt; but, holding the view that under the circumstances of this case there was a full and fair consideration to the endorsers, and that the principles referred

were not applicable, we charged the jury as follows:

"When a person endorses or makes a note for the accommodation of another person, as, for instance, these two defendants who are here to-day made this note for the accommodation of the Wilkes-Barre Light Company, and stipulates that this note should be used in a particular way, and it is used in some other way, by handing it, for instance, to a person for whom it was not intended to apply on an antecedent debt or an existing indebtedness to that person, the endorser or accommodation maker would, have the right to set up as a defense that it was not intended that that note was to be used in that way, and that it was a fraud on him to use it in a way it was not intended. But when a person endorses a note for the purpose of using it in a particular way, that way being to give to it somebody who is a creditor of the person for whom the endorsement is made as an accommodation, and the note is used exactly as contemplated, the endorsement carries with it the liability that the law intends to put on an endorser, which means that the endorser will pay the note at its maturity if the maker does not, and if the endorser is duly notified by protest of the failure to pay after demand at the time of maturity."

That is entirely consistent with the doctrine laid down in the New York case already referred to that an accommodation maker was not liable to a holder where the note had been fraudulently diverted from the purpose for which it was made. In view of the fact that both defendants were directors of the company under whose management the debt had been incurred at a time when the company had not yet begun business, and was still waiting to acquire franchises in the city in which it operated, whereby they were more or less interested to see that the initial debts of the company should be provided for, and in view of the fact that by delivering this note to the plaintiff, who was clamoring for his pay, additional time was procured for the corporation which they were managing, it seems to us that there is

tion passing to these endorsers through the fact that an advantage was gained by this means for the corporation which they were managing, and, therefore, on the plainest principles of justice, it must be held that they received value for their endorsement and cannot set up the defense that they were merely accommodation endorsers without value. As between them and their company this defense would be good. As between them and a creditor of their company, who had dealt with the company under their management and who accepted the company's note, when endorsed by them, and credited it to the company's account, reducing the book evidence of the company's indebtedness thereby, they are not accommodation endorsers, but endorsers for value.

Rule for new trial is discharged, and judgment is directed to be entered in favor of plaintiff on the verdict.

Commonwealth v. Church.

Justice of the peace-Proceedings under the posting act - Trespass - Title to land Acts of July 21, 1901, P. L. 608, and April 14, 1905, P. L. 169.

A proceeding by the commonwealth_under the posting act of April 14, 1905, P. L. 169, is in the nature of a proceeding for summary conviction, and cannot be transmitted by the justice to the court of common pleas upon the affidavit of defendant to the effect that the title to the land is in question. The act of July 21, 1901, P. L. 608, does not apply to such a proceeding.

Motion to strike off and dismiss transcript from justice of the peace. C. P. of Forest Co. September Term, 1913, No. 18.

Opinion by HINCKLEY, P. J.

Upon June 11, 1913, a complaint was made before a justice of the peace in name of the commonwealth by Jessie M. Brennen, that the defendant, upon June 8, 1913, wilfully and maliciously entered upon the land of the plaintiff, "which land was prominently posted by printed notices according to the Act of Assembly of A. D. 1905, and did at said time com

mit such wilful trespass "; and a warrant in the name of the commonwealth was issued charging the defendant with "trespass under the Act of 1905," and the defendant arrested and brought before the justice. The defendant then before hearing, made affidavit that the title to land will come in question as she verily believes and expects to be able to prove, and that she did not wilfully trespass upon posted lands of the complainant; and entered into recognizance, etc., and thereupon the justice ceased to proceed with the case, and transmitted the record to the Court of Common Pleas of Forest County, under the provisions of the Act of Assembly approved July 21, 1901, P. L. 608, and the transcript and proceedings were filed in this court to the above number and term.

This motion is made to strike off and dismiss this record for the reason that the Common Pleas has no jurisdiction of the case for reasons apparent on the record.

This proceeding is brought under the provisions of the Act of Assembly, April 14, 1905, P. L. 169, and is the nature of a summary conviction. Com. v. Zimmerman, 56 Pa. Super., 311; Com. v. Mitchell, 24 D. R., 496.

Numerous authorities have been cited by the counsel for the motion for the purpose of showing that this is a summary conviction, and that appeal from summary convictions must be taken under the constitutional provision, and the act of 1876, upon special allowance, and then only upon cause shown, and must be taken to the Quarter Sessions. There is no doubt about the correctness of this proposition, and if this were an appeal from a summary conviction after trial before a justice of the peace, it would necessarily fall for want of an allowance by this court for such appeal, and, of course, because it has been filed in the wrong court. However, this record does not constitute, nor purport to be, an appeal. It is a transmission by a justice of the peace of his record pursuant to the provisions of the Act of July 2, 1901, P. L. 608, where defendant has made oath, and otherwise complied with the provisions of this act, and the justice thereupon, against the protest of

the commonwealth, refuses to proceed with or hear the case.

The Quarter Sessions, then, has jurisdiction in appeals allowed from summary convictions before a magistrate; and the Common Pleas has jurisdiction for the trial of cases transmitted to that court by a justice of the peace or magistrate pursuant to said Act of 1901.

If the defendant's contention here is correct, the result would be that not only would the jurisdiction of the magistrate, but the Court of Quarter Sessions would be ousted, and this summary proceeding, metamorphosed into an action of trespass in the Common Pleas.

It must be apparent from such incongruous result that the Act of 1901 was never intended to, and does not apply to, summary convictions.

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The Acts of 1810 and 1876 gives justices jurisdiction, except in cases of real contract," when the title to lands. may come in question. These provisions relate clearly to actions of a civil character between private parties.

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The Act of 1814 gives jurisdiction to magistrates in trespass and trover, except when the defendant shall make oath that the title to lanes will come in question." (In Shober v. Henry, 4 Dist., 505, held repealed by Act of 1879.)

Under the Act of 1814, if the defendant made the requisite oath, the case was dismissed, but this result is now prevented by the Act of 1901, which is entitled "a supplement" to the Act of 1814, and the case does not fall, but goes on in the Common Pleas.

The whole history of the Acts of Assembly in question, relating to summary convictions and suits before a justice of the peace, and the practice under them, as well as the language of the Act of 1901, clearly indicate, we think, that the latter act, and the others of a similar character, are only applicable to proceedings of a civil character between private parties, and have no place on proceedings of this character, a summary conviction.

The wording of the Act of 1901: "In any action trespass brought before a magistrate, etc. . . . Defendant shall enter into recognizance . . . to pay the plaintiff such sum as shall be recovered;

of Common Pleas, and the said suit shall then be proceeded in, in the said 'court as if originally rightly brought therein.' The costs shall be paid in equal shares by the plaintiff and the defendant."

If either party refuses to pay the same, judgment may be entered against the party so refusing and execution issued for the collection; all signify that a civil action of trespass between individuals, or of a private nature, is intended to be reached in this act. A summary convietion is not covered by the words " action of trespass." It is not usually described as a suit between parties, plaintiff and defendant, but the commonwealth and defendant, and cannot be under any circumstances brought in the Common Pleas. It certainly is not contemplated that execution should be issued against the commonwealth for costs, as might follow. As heretofore stated, the reading of the Acts of Assembly sufficiently indicate that they were not intended to apply to cases of this character.

The legislature possesses large powers in the matter of creating new offenses and prescribing mode of conviction. See Van Swartow v. Com., 24 Pa., 131; Com. v. Hazen, 20 Super. Ct., 487; Fulton County v. Tate, 47 Pa., 532; Com. v. Craine, 12 Pa. C. C., 286; Duquesne Boro. School Dist. v. Pitts., 184 Pa., 160; Com. v. Borden, 61 Pa., 272; Hoffman v. Com., 123 Pa., 75; Com. v. Groff, 8 LANC. LAW REV., 267; Com. v. Statzer, 5 Pa. C. C., 256.

This is a purely statutory proceeding, where the magistrate is given exclusive jurisdiction, and before there can be consideration of the case by the Appellate Court there must be a hearing by such magistrate, and his jurisdiction is not ousted by the defendant making the oath and complying with the provisions of the Act of 1901.

The motion to dismiss the proceedings transmitted by the justice is made absolute.

In a suit for money paid when a minor, under a lease and sale contract for a piano,

an affidavit of defense is insufficient which

denies that the plaintiff was a minor when he

made the contract for the reason that he did not disclose the fact at the time, and further claims that the defendant has sustained damages by reason of the lease greater than the sum sued for without denying the allegation in the statement that notice of the rescission was given about two weeks after the contract.

Rule for judgment for want of a sufficient affidavit of defense. C. P. of Lancaster Co. August Term, 1914, No. 94. Frank S. Groff, for rule. W. U. Hensel, contra.

September 26, 1914. Opinion by HASSLER, J.

The plaintiff's claim is for money paid on account of a contract for the lease and sale of a piano, made by him with the defendant on January 16, 1913, when he was a minor. In his statement the plaintiff alleges that he was a minor when he made the contract, and that two

weeks after making it, viz., on February I, 1913, he notified the defendant that The piano he disaffirmed the contract. was never delivered to the plaintiff, but always remained in the defendant's possession. In his affidavit of defense the defendant denies that the plaintiff was a minor when he made the contract, for

the reason that he did not disclose the fact at the time the contract was made; and further claims that he has sustained damages to the piano by reason of the lease to an amount greater than the sum named by the plaintiff.

The denial of the plaintiff's age is not The defendant gives the sufficient. reason for his knowledge of the fact that the plaintiff is of age, and it is not a good one. It is, therefore, not such a 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.

A minor can disaffirm his contract and recover back what he has paid on account of it if he returns or offers to return what he receives by means of it, or if he has received no benefit from it: 22 Cyc., 617; Wilson v. McCullough, 19 Pa., 77; Whichcote v. Lyle's Executors, 28 Pa., 73; Ruchizky v. DeHaven, 97 Pa.,

202.

In this case the plaintiff did not receive anything under the contract, and consequently had nothing to return before he could disaffirm the contract and recover the amount paid by him on account of it. The defendant, however, claims damages because of the contract, and it is urged that the plaintiff cannot recover until he puts the defendant in the same position he was in when the contract was made. In this part of his defense the defendant does not set forth a claim that he can recover. He retained possession of the piano and never delivered it to the plaintiff. The plaintiff alleges, and the defendant does not deny, that notice was given to the defendant by the plaintiff about two weeks after the contract was made of the plaintiff's rescission of it. No damages to the piano claimed by the defendant could have occurred in that time, and therefore there were none that it was necessary for the plaintiff to pay to put the defendant in the same position he was in at the time the contract was made.

We make absolute the rule for judgment for want of a sufficient affidavit of defense, and enter judgment for the plaintiff for $103.25.

Tegal Miscellany.

Liquidated Damages or Penalty. The question whether a sum stipulated to be paid in case of default under a contract is a penalty or liquidated damages is a question of construction to be decided upon the terms of each particular contract having regard to the circumstances existing at the time of the making of the contract, and not at the time of the breach. The words used by

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the parties, "penalty or liquidated damages," may prima facie be supposed to mean what they say, but they are by no means conclusive; the court must find out from all the terms and circumstances whether the payment stipulated is in truth a penalty or damages. The essence of a penalty is a payment of money stipulated as in terrorem of the offending party; the essence of liquidated damages is a genuine pre-estimate of damage by agreement. These are doctrines governing the question which may be said to be found passim in nearly every case and text-book. But they do not dispose of the whole problem of construction, which remains one of the most delicate in our jurisprudence, and various tests have been suggested which the House of Lords called to its aid in giving its final decision on the muchdiscussed case of Dunlop Pneumatic Tyre Co. v. New Garage and Motor Co., in which judgment was delivered last week. The question was whether a clause in an agreement called a “Price Maintenance Agreement," which provided for the payment of a fixed price "by way of liquidated damages and not as penalty as penalty" upon the breach of any of several conditions was to be construed as it stood, or to be read as imposing a penalty. The defendants having broken. the agreement by selling certain covers and tubes at less than the current pricelist, an inquiry had been directed as to damages before the master, and he had assessed the damages at 51. for each default, as provided by the agreement. On appeal to the Court of Appeal this decision was reversed by a majority (Lord Justice Kennedy dissenting), and the House of Lords now unanimously reinstated the finding of the master, upholding the award as for "liquidated damages." The main tests applied to arrive at this judgment were the conflicting ones set out in the judgments of Lord Watson in Elphinstone v. Monkland Iron Co. (1886)-there is a presumption (but no more) that it is a penalty "when a single lump sum is made. payable by way of compensation on the occurrence of one or more or all of several events, some of which may occa