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Geisenberger & Rosenthal and John clear unequivocal identification of the E. Malone for rule.
debt. Judge Porter in delivering the
opinion of the Court says, "The settleS. V. Hosterman contra.
ment of an account and striking of a March 27, 1915. Opinion by Hass- balance is a clear admission of a precise LER, J.
indebtedness, the balance so ascertained
becomes a new principal; it cannot be reThe defendant was discharged as a examined to ascertain the items or their bankrupt in the District Court of the character, except upon proof of fraud or United States for the Eastern District of mistake. An account stated is an answer Pennsylvania on March 17, 1908. Prior to the plea of the statute of limitations to his discharge he was indebted to the as to the items of which the account is plaintiff on a book account for $75.82. composed : Tassey v. Church, 4 W. & S. On May 25, 1908, he paid to the plaintiff 141; Johns v. Lantz, 63 Pa. 324; Ruch v. $10 on account of this indebtedness, and Fricke, 28 Pa. 241 ; McClelland's Execupromised to pay the balance of it, upon : tor v. West's Administrator, 70 Pa. 183. which promise the plaintiff brought this When parties have had mutual dealings suit. The trial resulted in a verdict in an admission by the defendant of a definhis favor, and we are now asked to enter ite balance due against him is primajudgment for the defendant non obstante facie evidence of plaintiff's demand; veredicto.
Buckley v. Maryland Paving Company, In Murphy v. Crawford, 114 Pa., 496, 132 Pa. 572; Anderson v. Best, 176 Pa. the law applicable to cases of this kind 498; McGinn v. Benner, 180 Pa. 396. is stated as follows: "In a suit brought The letter of the decedent in evidence to recover a claim which had been barred contained an unequivocal acknowledgby a discharge in bankruptcy, the follow- ment of a specific balance due against ing distinct principles may certainly be him upon general account and an express considered as settled by the decision of promise to pay it. The learned court the Court:–First, the effect of the cer- below did not fall into error in allowing tificate in bankruptcy is to extinguish the the claim.” debt, not merely to bar the remedy for its At the trial the plaintiff testified that recovery; second, the prior legal obliga- the defendant came to his place of busition is sufficient consideration for a new
ness on May 25, 1908, and paid $10 on promise to pay it; third, the promise to account of his indebtedness to the plainbe effective must be clear, distinct, and tiff, and said, “I am going to pay it all unequivocal without qualification or con- up," and on page 5 of the notes of testidition; and fourth, in an action upon mony it appears he said, “I gave him an such claim, the declaration must be upon itemized statement at the time he paid me the new promise and not upon the orig- the $10." In view of this testimony there inal obligation.”
can be no doubt as to what indebtedness The defendant does not question the the defendant referred when he made the correctness of any of the principles stated promise. It was not uncertain or equivoabove, but he argues that the indebted- cal. It is true the defendant denied that ness was not sufficientlv identified, so as he had made such promise, or that he to make the promise to pay it clear, dis- paid anything on account of his claim, tinct and unequivocal. We do not think but that was a question for the jury, and this objection is well founded. The iden- we submitted it to them. Having found tification of a debt is the same as is in- that he did make the promise, and that volved in cases where the statute of limi- | the indebtedness was identified as testitations is barred by a new promise: fied to by the plaintiff, there is no reason Hobough v. Murphy, 114 Pa. 358. advanced why we should disturb their
In Peter's Estate, 20 Sup. 223, it is verdict, and we, therefore, discharge the decided that the settlement of an account | rule to show cause why judgment should and the striking of a balance is a clear not be entered for the defendant 1. 0.7'. admission of an indebtedness, and was a
her home with her, never intimated that Orphans' Court.
any interest was unpaid.
R. C. Collins testified that no interest
had been paid since he put the title to Estate of Thomas C. Collins, Deceased.
the farm in his wife. If this is correct, Charge-Interest—Presumption of Pay- lins never made any demand for it in
in view of the fact that Isabella C. Colment or waiver.
nearly twenty-three years, the inference Certain real estate was conveyed in 1884 is irresistable that she forgave it. In the and subsequently re-conveyed subject to a absence of evidence to the contrary, as charge, the interest on which was payable to the decedent's widow but she never made any
fact it is presumed to have been paid. demand for it for nearly twenty-three years, i The only testimony tending to impeach although at times making her home with the the presumption is that of R. C. Collins, last grantee, her daughter-in-law.
who received the money with which to Held, on petition of the first grantee, the widow's son, that the court should refuse to
pay it, who promised to pay it, and who order payment of the interest because the pe
said he had paid it. We find that the titioner had no standing, to ask it and it was presumption has not be rebutted. presumed to either have been forgiven or paid. In the brief of counsel for respondent Rule
interest for payment of
reference is made to the limitation act of charge. O. C. of Lancaster County, Bad this' Act been offered as “a defense
April 27, 1855, P. L. 369, Section 7 April Term 1914, No. 108.
under the general issue," the petitioner's H. Edgar Sherts for rule.
efforts would have been halted. John A. Nauman contra.
The petitioner is R. C. Collins. His
complaint is that he "has repeatedly deFebruary 25, 1915. Opinion by manded the payment of the said sum of SMITH, P. J.
Thirty-one Hundred Twenty-seven and The purpose of this rule is an order | 74-100 Dollars ($3,127.74) of the said on Mary E. W. Collins to pay $3,127.74 Mary E. Collins and that she has neginterest on a real-estate charge of $1,- lected and refused to pay the same. 380.44. The charge was placed for the Even if she owed this money, why should widow of the decedent, Isabella C. Col- she pay it to him? It was not owing to lins, who has since died. Subject to the him. From the testimony it can be incharge on April 1, 1884, a farm was con- ferred that he owes her. His prayer is veyed to R. C. Collins, her son, and a that the Court "make such order or deson of the decedent. On the fifth of
cree for the payment of the said interest June, 1891, he conveyed it to his sister, out of said real estate as shall be just Bertha I. Collins, and on the same day and proper, in accordance with the Act she conveyed it to Mary E. Collins, who of April 28, 1899, in such case made and is the wife of R. C. Collins, but with provided.” This Act, P. L. 120, prowhom she has not lived for seven or eight vides a way by which only a widow may years. From April, 1884, to this time he collect interest on money which has been has had full control of the farm and has charged upon real estate for her use. taken all the increments and income No widow is here invoking the applicathereof. The change of title in no way tion of the Act; nor even as the legal changed the management or beneficiary. I representative of a widow's estate does
It was understood between R. C. Col- the petitioner proffer the claim. lins and his wife, after the conveyance The prayer of the petitioner must be to her, that he would pay the interest on denied because he has no standing; bethe charge, and she testified that he had cause if there is a debt, he has no right told her that he had done so, also that to demand its payment; because there is she had seen several receipts given by no debt, because if there had been one Isabella C. Collins on account of the in- it is either forgiven or is presumed to terest. No demand was ever made of have been paid. Mary E. Collins for any interest. Isa- Rule dismissed at the cost of petibella C. Collins, though at times making ' tioner.
ACTION OF THE STATE LEGISLATURE | might serve as beacon lights to guide his
ON MR. HENSEL'S DEATH. fellow men along life's way. As a lawResolution in the House, March 2, 1915. Rela- yer he was a leader not only of the bar tive to the Death of Hon. W. U. Hensel.
of Pennsylvania, but of the Union. His
general learning and his professional (From the Legislative Journal )
ability deserved and received the respect Mr. Geiser asked and received un- and the admiration of all who knew him. animous consent to present the following His genial personality won for him the resolution, which was read by the Clerk: love of all who knew him well. As At
Be it resolved by the House of Representa- torney General he reflected lustre upon tives of the General Assembly of the Com- the office and established an ideal that monwealth of Pennsylvania in the death of Hon. William U. Hensel, former. Attorney As an historian his great heart found its
his successors can be proud to follow. General of this Commonwealth, another great citizen of Pennsylvania has been taken away, best expression. His busy life was not and be it further
permitted to crowd out the opportunities Resolved, In the taking away of William U. Hensel this State has been deprived of the he sought to study the characters of presence of a most charming personality, a
those who have gone before and whose man of integrity of the highest degree, a man efforts have made this Commonwealth oi eloquence, of unusual literary ability, a man what it is, and his home county and the deeply learned in the law and a fellow citi. State at large can well be proud of the zen who ever held this Commonwealth in the greatest love and reverence, and whose ethical numerous shafts and tablets that mark standards were ever of the highest nature, and the surging tide of history as Quaker and be it further
Mennonite and Scotch-Irish coped with Resolved, Inasmuch as Pennsylvania, has the antagonism of a wilderness to make been bereft of one who at one time filled one of the highest and most difficult and trying of it a "Land of Flowers.” But the richoffices in the State, it is but fitting that this ness of his life becomes more apparent body should publicly evince some token of the as we study him as a man. Of him it great respect and esteem in which he was held
can well be said that he was a true friend by his fellow citizens; therefore be it
Resolted, That when this House adjourns and that to know him was to love him. this week it adjourn in memory of the late From the grind of a busy professional William U. Hensel, former Attorney General life he would frequently turn aside to of Pennsylvania, and be it Resolved, That a copy of this resolution be and much of the joy of his life was won
extend to a fallen friend a strong arm, spread upon the. Journal of the House, and a copy thereof be sent to the family of the de- by sharing his great strength with his ceased.
weaker fellow men. At no time was the Mr. Geiser. Mr. Speaker, I move that beauty of his strength more pronounced this resolution be adopted at once.
than in the quiet, patient, resignation, as Mr. Hess. Mr. Speaker, and mem- he saw the forces of decay steal ruthlessbers of the House, it is with deep regret ly upon him, and when the end was near and sadness that I arise to second this he bowed his head in patient submission motion. In the death of William Uhler to the will of Him "who doeth all things Hensel, Lancaster has lost its foremost well.” citizen and the Commonwealth of Penn- William Uhler Hensel is dead, but his sylvania one of its most worthy sons. eloquence and influence still lives. EngHe brought to the field of his various land has had her Gladstone; Ireland has activities a strong body and a vigorous had her O'Connell, and Lancaster has mind. As an editor he proved to be one had her Hensel. of the most versatile of the men of let- On the question. ters. His contributions to the litera
Will the House agree to the adoption ture of his day reflect a scope of vision
of the resolution ? that makes the reason for his greatness plain. His great soul dwelt on the bor
It was unanimously agreed to. derland of the infinite and as he caught glimpses of the larger life beyond he sketched them with his pen that they
C. P. AND Q. S. OPINIONS. against Garnishee on answers filed made
absolute and judgment for plaintiff for By JUDGE LANDIS.
$200.71. Saturday, March 20, 1915.
M. Frank, trading as the Fashion ?'.
Harry Contor. Rule for judgment for Wolfer v. Penna. Water & Power defendant non obstante veredicto disCo. Exceptions to opinion and decree charged. dismissed and decree entered for plaintiff.
Lilie E. Weitzel 2. Joseph D. Black. Resh and Brubaker v. Brubaker. Rule i manager of Lancaster Storage Company to enter appeal nunc pro tunc made ab- Rule for a new trial discharged and rule solute.
for judgment for defendant non obstante Union Trust Co. v. Mowrer. Excep
T'eredicto. tions overruled and judgment for plain- Laura Schoenberger v. Louis N. Spentiff for $624.39.
cer, executor of Edward Cook, deceased. Maurer Lawrence. Certiorari. Rules for new trial and for judgment for Exceptions overruled and certiorari defendant non obstante veredicto disdismissed.
charged. Simmons v. Erb. Certiorari. Excep
Harry V. Pearce v. Barton S. Martin. ceptions sustained and proceedings of magistrate set aside.
Rule for a new trial discharged. Penn Forest Coal Co. 7'. Lefever. Vernon Ringler v. Walter G. Bushong. Rule for judgment for want of a suffi- Rule for a new trial discharged, and rule cient affidavit of defense discharged. for judgment non obstante veredicto
Weitzel v. Holbein. Rule to open made absolute and judgment for defenjudgment made absolute.
dant for $500. Ulrich v. Ulrich. Certiorari. Excep
W. G. Kendig, C. F. Bowman and A. tion overruled and certiorari dismissed. Com. v. Myers. Rule for new trial L. A. Rhoads, trading as the Realty Co.
v. Fred. Herold. Rule for judgment for made absolute.
want of a sufficient affidavit of defense Saturday, March 27, 1915. By JUDGE made absolute and judgment for plaintiff LANDIS.
for $41.50. Jacob C. Weaver v. Herman Wohlsen. The Rudolph Wurlitzer Company v. Rule to strike off judgment of non-suit Kirk Johnson and Co. Rule for judgdischarged.
ment for want of a sufficient affidavit of Kate Hoover 7. Joseph Haefner. Rule defense made absolute, and judgment for new trial discharged.
entered for plaintiff for $1,318.76. Ida Neff v. Charles T. Scheid, Albert B. F. Heisler 7. Jacob Siegler and Co. McCutcheon, John Reese, Annie Scheid, Rule for judgment for want of a suffet al., Trustees, members and officers of cient affidavit of defense discharged. Lady Franklin Council, No. 85, of Penn
Amos F. Sweigert 2. S. F. Sweigart. sylvania, Daughters of Liberty. Bill in equity; answers and proofs, final hear- Bill
, answer and testimony. Rule dising, bill dismissed at costs of plaintiff.
charged at plaintiff's cost.
John R. Brimmer 2. William H. McBy JUDGE HASSLER.
Laughlin. Bill, answer and testimony. Erie City Iron Works v. C. G. Schu- Decree entered for plaintiff. berth. Rule for judgment for want of sufficient affidavit of defense dis
Com. 2. Willard G. Eaby. Rule to charged.
modify order of Court made absolute
and order reduced to $3.50 per week. Harry L. Stauffer 2. W. W. Ream, defendants, the Ephrata National Bank, of Com. 2. John D. Hastings. Demurrer Ephrata, Garnishee. Rule for judgment to indictment. Indictment quashed.
“The indictment is, therefore, clearly
LANCASTER LAW REVIEW. drawn under this section of the Act of
1913, and as the Act of 1913 is, in our Vol. XXXII.) FRIDAY, APRIL 9, 1915. [No. 23 opinion, unconstitutional, we sustain the
John M. Groff, District Attorney, Coyle & Keller, A. H. Woodward, J. E. B. Cunningham and John C. Bell, At
torney General, for appellant. Commonwealth v. Falk (No. 1).
An act seeking to accomplish one genConstitutional law - Art. 3, Sec. 3 of
eral purpose by one general means will
be deemed to contain but one subject. Constitution-Domestic Animal Sani
Com. v. Hospital, 198 Pa. 270. | tation Act of July 22, 1913.
Blood v. Mercelliot, 53 Pa. 391. The Domestic Animal Sanitation Act of July Payne v. School Dist., 168 Pa. 386. 22, 1913, P. L. 929 does not contain more than Com. v. McCarthy, 2 Lanc. L. R. 139. one subject in violation of Art. 3, Sec. 3 of
Clearfield County v. Poor Dist., 135 the Constitution. But one purpose is sought by this act, of which its title gives sufficient Pa. 86. notice and every provision reasonably and Com. v. Green, 58 Pa. 226. directly relates thereto.
If an act of assembly is capable of two The Act properly regulates the transporta-constructions one of which render the tion of any animal, wild or domestic under the control of man, which might spread dis-act unconstitutional and the other of ease to domestic animals.
which would render the act constituThe presumption is always in favor of the tional, the latter construction will be constitutionality of an Act of Assembly and it cannot be declared void unless it violates adopted by the courts. the constitution clearly, palpably, plainly and
Comth.v. McCann, 14 Pa. Sup. Ct. 221. in such manner
as to leave no doubt and Third. The attempt made to destroy hesitation.
this act of assembly is manifestly an atWhile the legislature cannot delegate its powers, it can make a law to delegate a power tempt to impale legislation upon the to determine some fact or state of things upon sharp horns of criticism such as the which the law makes its own action depend. courts have uniformly held abortive. It makes no difference under what parti
Allegheny County Home's App., 77 cular section of a statute an indictment may Pa. 80. have been drawn, nor are the infirmities of such section of the indictment thereunder ma
Millville Boro v. Evergreen Ry Co. terial, provided the indictment is good under 131 Pa. 1-15. some other section which is valid. An indictment for driving an animal hav- of the contents of the act, although this
The title is almost a complete index ing tuberculosis without permission of the State Live Stock Sanitary Board" contrary
is not required. to the Act of Assembly in such case made Blood v. Mercelliott, 53 Pa. 391. and provided” would be good under the Act Comth. v. Green, 58 Pa. 226. of March 30, 1905, P. L. 78, if the Act of
Boro of Washington v. McGeorge, July 22, 1913 were unconstitutional.
146 Pa. 248. Appeal No. 90 of October Term 1914 Comth. v. Shirley, 152 Pa. 170. by the Commonwealth of Pennsylvania Comth. v. Muir, 180 Pa. 47. from judgment of Q. S. of Lancaster Comth. v. Jones, 4 Pa. Super. 362. County.
Franklin v. Hancock, 204 Pa. 110. The Court below Hassler, J., sustained Comth. v. Lloyd, 178 Pa. 308. a demurrer to the indictment drawn un- The presumption is always in favor of der the Act of July 22, 1913, P. L. 928 the constitutionality of an act of as(See 31 Law Review 181).
sembly. On appeal the following error was Cooper v. Telfair, 4 Dall. 14. assigned.
Erie and N. E. R. R. Co. v. Casey, 1. The Court erred in sustaining the 26 Pa. 300. demurrer as follows to wit:
Speer v. School Dist., 50 Pa. 157.