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Geisenberger & Rosenthal and John clear unequivocal identification of the

E. Malone for rule.

S. V. Hosterman contra.

debt. Judge Porter in delivering the opinion of the Court says, "The settlement of an account and striking of a

March 27, 1915. Opinion by HASS- balance is a clear admission of a precise

LER, J.

The defendant was discharged as a bankrupt in the District Court of the United States for the Eastern District of Pennsylvania on March 17, 1908. Prior to his discharge he was indebted to the plaintiff on a book account for $75.82. On May 25, 1908, he paid to the plaintiff $10 on account of this indebtedness, and promised to pay the balance of it, upon which promise the plaintiff brought this suit. The trial resulted in a verdict in his favor, and we are now asked to enter judgment for the defendant non obstante veredicto.

In Murphy v. Crawford, 114 Pa., 496, the law applicable to cases of this kind is stated as follows: "In a suit brought to recover a claim which had been barred by a discharge in bankruptcy, the following distinct principles may certainly be considered as settled by the decision of the Court-First, the effect of the certificate in bankruptcy is to extinguish the debt, not merely to bar the remedy for its recovery; second, the prior legal obligation is sufficient consideration for a new promise to pay it; third, the promise to be effective must be clear, distinct, and unequivocal without qualification or condition; and fourth, in an action upon such claim, the declaration must be upon the new promise and not upon the original obligation.'

The defendant does not question the correctness of any of the principles stated above, but he argues that the indebtedness was not sufficiently identified, so as to make the promise to pay it clear, distinct and unequivocal. We do not think this objection is well founded. The identification of a debt is the same as is involved in cases where the statute of limitations is barred by a new promise: Hobough . Murphy, 114 Pa. 358.

In Peter's Estate, 20 Sup. 223, it is decided that the settlement of an account and the striking of a balance is a clear admission of an indebtedness, and was a

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indebtedness, the balance so ascertained becomes a new principal; it cannot be reexamined to ascertain the items or their character, except upon proof of fraud or mistake. An account stated is an answer to the plea of the statute of limitations as to the items of which the account is composed: Tassey v. Church, 4 W. & S. 141; Johns v. Lantz, 63 Pa. 324; Ruch v. Fricke, 28 Pa. 241; McClelland's Executor v. West's Administrator, 70 Pa. 183. When parties have had mutual dealings an admission by the defendant of a definite balance due against him is primafacie evidence of plaintiff's demand; Buckley v. Maryland Paving Company, 132 Pa. 572; Anderson v. Best, 176 Pa. 498; McGinn v. Benner, 180 Pa. 396. The letter of the decedent in evidence contained an unequivocal acknowledgment of a specific balance due against him upon general account and an express promise to pay it. The learned court below did not fall into error in allowing the claim.”

At the trial the plaintiff testified that the defendant came to his place of business on May 25, 1908, and paid $10 on account of his indebtedness to the plaintiff, and said, "I am going to pay it all up," and on page 5 of the notes of testimony it appears he said, "I gave him an itemized statement at the time he paid me the $10." In view of this testimony there can be no doubt as to what indebtedness the defendant referred when he made the promise. It was not uncertain or equivocal. It is true the defendant denied that he had made such promise, or that he paid anything on account of his claim, but that was a question for the jury, and we submitted it to them. Having found that he did make the promise, and that the indebtedness was identified as testified to by the plaintiff, there is no reason advanced why we should disturb their verdict, and we, therefore, discharge the rule to show cause why judgment should not be entered for the defendant n. o. v.

Orphans' Court.

Estate of Thomas C. Collins, Deceased. Charge-Interest-Presumption of Pay

ment or waiver.

Certain real estate was conveyed in 1884 and subsequently re-conveyed subject to a charge, the interest on which was payable to

the decedent's widow but she never made any demand for it for nearly twenty-three years, although at times making her home with the last grantee, her daughter-in-law.

Held, on petition of the first grantee, the widow's son, that the court should refuse to order payment of the interest because the petitioner had no standing to ask it and it was presumed to either have been forgiven or paid. Rule for payment of interest on charge. O. C. of Lancaster County, April Term 1914, No. 108.

H. Edgar Sherts for rule.
John A. Nauman contra.

February 25, 1915. Opinion by
SMITH, P. J.

her home with her, never intimated that any interest was unpaid.

R. C. Collins testified that no interest had been paid since he put the title to the farm in his wife. If this is correct, in view of the fact that Isabella C. Collins never made any demand for it in nearly twenty-three years, the inference is irresistable that she forgave it. In the absence of evidence to the contrary, as a fact it is presumed to have been paid. The only testimony tending to impeach the presumption is that of R. C. Collins, who received the money with which to pay it, who promised to pay it, and who said he had paid it. We find that the presumption has not be rebutted.

In the brief of counsel for respondent reference is made to the limitation act of Had this Act been offered as "a defense April 27, 1855, P. L. 369, Section 7. under the general issue," the petitioner's efforts would have been halted..

The petitioner is R. C. Collins. His complaint is that he "has repeatedly demanded the payment of the said sum of Thirty-one Hundred Twenty-seven and 74-100 Dollars ($3,127-74) of the said Mary E. Collins and that she has neg

Even if she owed this money, why should she pay it to him? It was not owing to him. From the testimony it can be inferred that he owes her. His prayer is that the Court "make such order or decree for the payment of the said interest out of said real estate as shall be just and proper, in accordance with the Act of April 28, 1899, in such case made and provided." This Act, P. L. 120, provides a way by which only a widow may collect interest on money which has been charged upon real estate for her use. No widow is here invoking the application of the Act; nor even as the legal representative of a widow's estate does the petitioner proffer the claim.

The purpose of this rule is an order on Mary E. W. Collins to pay $3,127.74 interest on a real-estate charge of $1,-lected and refused to pay the same. 380.44. The charge was placed for the widow of the decedent, Isabella C. Collins, who has since died. Subject to the charge on April 1, 1884, a farm was conveyed to R. C. Collins, her son, and a son of the decedent. On the fifth of June, 1891, he conveyed it to his sister, Bertha I. Collins, and on the same day she conveyed it to Mary E. Collins, who is the wife of R. C. Collins, but with whom she has not lived for seven or eight years. From April, 1884, to this time he has had full control of the farm and has taken all the increments and income thereof. The change of title in no way changed the management or beneficiary. It was understood between R. C. Collins and his wife, after the conveyance to her, that he would pay the interest on the charge, and she testified that he had told her that he had done so, also that she had seen several receipts given by Isabella C. Collins on account of the interest. No demand was ever made of Mary E. Collins for any interest. Isabella C. Collins, though at times making

The prayer of the petitioner must be denied because he has no standing; because if there is a debt, he has no right to demand its payment; because there is no debt, because if there had been one it is either forgiven or is presumed to have been paid.

Rule dismissed at the cost of petitioner..

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 law

Resolution 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.

(From the Legislative Journal)

Mr. Geiser asked and received unanimous consent to present the following resolution, which was read by the Clerk: Be it resolved by the House of Representatives of the General Assembly of the Commonwealth of Pennsylvania in the death of Hon. William U. Hensel, former Attorney General of this Commonwealth, another great citizen of Pennsylvania has been taken away,

of Pennsylvania, but of the Union. His general learning and his professional ability deserved and received the respect and the admiration of all who knew him. His genial personality won for him the love of all who knew him well. As Attorney General he reflected lustre upon the office and established an ideal that his successors can be proud to follow. As an historian his great heart found its best expression. His busy life was not permitted to crowd out the opportunities he sought to study the characters of Hensel this State has been deprived of the 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 of 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

and be it further

Resolved, In the taking away of William U.

zen who ever held this Commonwealth in the greatest love and reverence, and whose ethical standards were ever of the highest nature, and

be it further

Resolved, Inasmuch as Pennsylvania has of the highest and most difficult and trying offices in the State, it is but fitting that this body should publicly evince some token of the great respect and esteem in which he was held by his fellow citizens; therefore be it

been bereft of one who at one time filled one

Resolved, That when this House adjourns this week it adjourn in memory of the late William U. Hensel, former Attorney General of Pennsylvania, and be it

Resolved, That a copy of this resolution be spread upon the, Journal of the House, and a copy thereof be sent to the family of the de

ceased.

Mr. Geiser. Mr. Speaker, I move that this resolution be adopted at once.

Mr. Hess. Mr. Speaker, and members of the House, it is with deep regret and sadness that I arise to second this motion. In the death of William Uhler Hensel, Lancaster has lost its foremost citizen and the Commonwealth of Pennsylvania one of its most worthy sons. He brought to the field of his various activities a strong body and a vigorous mind. As an editor he proved to be one of the most versatile of the men of letters. His contributions to the literature of his day reflect a scope of vision that makes the reason for his greatness plain. His great soul dwelt on the borderland of the infinite and as he caught glimpses of the larger life beyond he sketched them with his pen that they

numerous shafts and tablets that mark the surging tide of history as Quaker and Mennonite and Scotch-Irish coped with the antagonism of a wilderness to make of it a "Land of Flowers." But the richness of his life becomes more apparent as we study him as a man. Of him it can well be said that he was a true friend and that to know him was to love him. From the grind of a busy professional life he would frequently turn aside to extend to a fallen friend a strong arm, and much of the joy of his life was won by sharing his great strength with his weaker fellow men. At no time was the beauty of his strength more pronounced than in the quiet, patient, resignation, as he saw the forces of decay steal ruthlessly upon him, and when the end was near he bowed his head in patient submission to the will of Him "who doeth all things. well."

William Uhler Hensel is dead, but his eloquence and influence still lives. England has had her Gladstone; Ireland has had her O'Connell, and Lancaster has had her Hensel.

On the question.

Will the House agree to the adoption of the resolution?

It was unanimously agreed to.

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against Garnishee on answers filed made absolute and judgment for plaintiff for $200.71.

M. Frank, trading as the Fashion v. Harry Contor. Rule for judgment for defendant non obstante veredicto discharged.

Lilie E. Weitzel v. Joseph D. Black. manager of Lancaster Storage Company. Rule for a new trial discharged and rule for judgment for defendant non obstante veredicto.

Laura Schoenberger v. Louis N. Spencer, executor of Edward Cook, deceased. Rules for new trial and for judgment for defendant non obstante veredicto discharged.

Harry V. Pearce v. Barten S. Martin. Rule for a new trial discharged.

Vernon Ringler v. Walter G. Bushong. Rule for a new trial discharged, and rule for judgment non obstante veredicto made absolute and judgment for defendant for $500.

W. G. Kendig, C. F. Bowman and A. L. A. Rhoads, trading as the Realty Co. v. Fred. Herold. Rule for judgment for want of a sufficient affidavit of defense

Saturday, March 27, 1915. By JUDGE made absolute and judgment for plaintiff LANDIS.

Jacob C. Weaver v. Herman Wohlsen. Rule to strike off judgment of non-suit discharged.

Kate Hoover v. Joseph Haefner. Rule for new trial discharged.

Ida Neff v. Charles T. Scheid, Albert McCutcheon, John Reese, Annie Scheid, et al., Trustees, members and officers of Lady Franklin Council, No. 85, of Pennsylvania, Daughters of Liberty. Bill in equity; answers and proofs, final hearing, bill dismissed at costs of plaintiff. By JUDGE HASSLER.

Erie City Iron Works v. C. G. Schuberth. Rule for judgment for want of a sufficient affidavit of defense discharged.

v.

Harry L. Stauffer 2. W. W. Ream, defendants, the Ephrata National Bank, of Ephrata, Garnishee. Rule for judgment

for $41.50.

The Rudolph Wurlitzer Company v Kirk Johnson and Co. Rule for judgment for want of a sufficient affidavit of

defense made absolute, and judgment entered for plaintiff for $1,318.76.

B. F. Heisler v. Jacob Siegler and Co. Rule for judgment for want of a sufficient affidavit of defense discharged.

Amos F. Sweigert . S. F. Sweigart. Bill, answer and testimony. Rule discharged at plaintiff's cost.

John R. Brimmer v. William H. McLaughlin. Bill, answer and testimony. Decree entered for plaintiff.

Com. v. Willard G. Eaby. Rule to modify order of Court made absolute and order reduced to $3.50 per week.

Com. v. John D. Hastings. Demurrer 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

Superior Court.

Commonwealth v. Falk (No. 1).

Constitutional law-Art. 3, Sec. 3 of Constitution-Domestic Animal Sani!tation Act of July 22, 1913.

The Domestic Animal Sanitation Act of July 22, 1913, P. L. 929 does not contain more than one subject in violation of Art. 3, Sec. 3 of the Constitution. But one purpose is sought by this act, of which its title gives sufficient notice and every provision reasonably and directly relates thereto.

The Act properly regulates the transportation of any animal, wild or domestic under the control of man, which might spread disease to domestic animals.

The presumption is always in favor of the constitutionality of an Act of Assembly and it cannot be declared void unless it violates the constitution clearly, palpably, plainly and in such manner as to leave no doubt and hesitation.

While the legislature cannot delegate its powers, it can make a law to delegate a power to determine some fact or state of things upon which the law makes its own action depend.

It makes no difference under what particular section of a statute an indictment may have been drawn, nor are the infirmities of such section of the indictment thereunder material, provided the indictment is good under some other section which is valid.

An indictment for driving an animal having tuberculosis without permission of the State Live Stock Sanitary Board "contrary to the Act of Assembly in such case made and provided" would be good under the Act of March 30, 1905, P. L. 78, if the Act of July 22, 1913 were unconstitutional.

Appeal No. 90 of October Term 1914 by the Commonwealth of Pennsylvania from judgment of Q. S. of Lancaster County.

The Court below Hassler, J., sustained a demurrer to the indictment drawn under the Act of July 22, 1913, P. L. 928 (See 31 LAW REVIEW 181).

On appeal the following error was assigned.

I. The Court erred in sustaining the demurrer as follows to wit:

demurrer."

John M. Groff, District Attorney, Coyle & Keller, A. H. Woodward, J. E. B. Cunningham and John C. Bell, Attorney General, for appellant.

An act seeking to accomplish one general purpose by one general means will be deemed to contain but one subject.

Com. v. Hospital, 198 Pa. 270. Blood v. Mercelliot, 53 Pa. 391. Payne v. School Dist., 168 Pa. 386. Com. v. McCarthy, 2 Lanc. L. R. 139. Clearfield County v. Poor Dist., 135 Pa. 86.

Com. v. Green, 58 Pa. 226.

If an act of assembly is capable of two constructions one of which render the act unconstitutional and the other of which would render the act constitutional, the latter construction will be adopted by the courts.

Comth. v. McCann, 14 Pa. Sup. Ct. 221. Third. The attempt made to destroy this act of assembly is manifestly an attempt to impale legislation upon the sharp horns of criticism such as the courts have uniformly held abortive.

Allegheny County Home's App., 77 Pa. 80.

Millville Boro v. Evergreen Ry Co. 131 Pa. 1-15.

The title is almost a complete index of the contents of the act, although this is not required.

Blood v. Mercelliott, 53 Pa. 391.
Comth. v. Green, 58 Pa. 226.

Boro of Washington v. McGeorge, 146 Pa. 248.

Comth. v. Shirley, 152 Pa. 170.
Comth. v. Muir, 180 Pa. 47.

Comth. v. Jones, 4 Pa. Super. 362.

Franklin v. Hancock, 204 Pa. 110.
Comth. v. Lloyd, 178 Pa. 308.

The presumption is always in favor of the constitutionality of an act of assembly.

Cooper v. Telfair, 4 Dall. 14.

Erie and N. E. R. R. Co. v. Casey, 26 Pa. 300.

Speer v. School Dist., 50 Pa. 157.

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