powers of the court to inquire into the validity of a judgment at the instance of a creditor, and it is not necessary to follow the act in such proceeding. In such case the petitioner is not entitled to relief as a matter of right, if not acting under the statutes, but to move the court must produce proof that would justify a chancellor in entering a decree against the judgment. In such case the facts that the judgment was confessed at the time when the defendant was being pressed for the payment of his debt to the petitioner, that the plaintiff said that he was doing it to save the defendant from being sold out by the sheriff, that the plaintiff has not shown where he got the money and that he is in debt to almost the value of his real estate, are sufficient to justify a chancellor in entering a decree against the judgment. The proper procedure in such case is not to open the judgment, but to grant an issue to try its validity, making the petitioner the plaintiff. Rule to inquire into the validity of judgment, etc. C. P. of Lancaster Co., January Term 1912, No. 283. J. Hale Steinman and John E. Malone, for rule. B. F. Davis, contra. July 3, 1915. Opinion by HASSLER, J. The allegations in the petition filed by A. J. Steinman, administrator of Susan S. Šteinman, deceased, are as follows: The above judgment for $1,500 was entered on a judgment note dated March 19, 1912, and on February 20, 1915, an| attachment ad lev. deb. was issued on it, in which the Southern Mutual Insurance Company was made garnishee. A. J. Steinman, administrator of Susan S. Steinman, deceased, is a creditor of James L. Wilson, the defendant in the judgment, he having a judgment against said Wilson for $902.15, entered to January Term, 1915, No. 113, upon which an attachment ad lev. deb. was issued March 11, 1915, in which the Southern Mutual Insurance Company was made garnishee. He alleges in his petition "that he is informed, believes and expects to prove that the judgment note given by James L. Wilson to Lewis Feldser for $1500, hereinbefore referred to, is invalid and fraudulent, and that the same was given without consideration and with intention to hinder, delay, embarass and defraud creditors, and your petitioner expects to be able to establish these facts.' The petitioner asks "that the Court grant a rule to show cause why the validity and bona fides of the above mentioned judgment confessed by James L. Wilson to Lewis Feldser, for $1500, should not be inquired into and issue granted for that purpose." are The Act of July 9, 1897, P. L. 237, provides a full, adequate and complete remedy for creditors, whether their claims have been reduced to judgment or not, to attack the validity and bona fides of a confessed judgment upon which an execution has been issued. The averments in the petition, namely, that the judgment complained of is a confessed judgment, that execution has been issued on it, and that the petitioner is a creditor of the defendant in the judgment, and the request to have the validity and bona fides of it inquired into, all the facts that are necessary to enable the petitioner to proceed under this act. The act further requires that, before a rule is granted, the petitioner shall give bond, to be approved by the Court, conditioned for the payment of all costs incurred in the proceedings and all damages sustained by the plaintiff because of the proceedings. It is decided in Page v. Williamsport Suspender Company, 191 Pa., 511, that, if such bond has not been given, the Court is without jurisdiction to grant the rule or to proceed under the act. It also provides that either may have an issue to try by a jury, any matter alleged in the petition and denied in the answer. These proceedings have not complied with the act of assembly, in that no bond has been given, no hearing has been fixed, nor asked for, nor has the petitioner asked for an issue to try before a jury the question of the validity of the judgment, or whether it has been given. to defraud creditors, (which are allegations in his petition) since the same have been denied in the answer. They cannot therefore be maintained under the Act of 1897 and must be dismissed unless the Act does not furnish an exclusive remedy for inquiring into the validity and bona fides of judgments. Prior to the passage of the act, through | the exercise of the equitable powers of its equitable powers, courts of common this Court. He is not, under this form pleas in Pennsylvania, under the forms of proceeding, entitled to such an issue. of common law, exercised the right to as a matter of right, upon request, as is inquire into the validity and bona fides the case under the statute, but he must of confessed judgments, when, as here, show his right by establishing the truth the application was made by a judgment of his allegations against the judgment creditor. That such right existed is well by proof that would be sufficient to jussettled, and is most fully and clearly tify a chancellor in entering a decree shown in Cochran v. Eldridge, 49 Pa., against it. 365. The question then arises, does the fact that the Act of 1897 gives a full, adequate and complete remedy for a judgment creditor to question the validity and bona fides of a confessed judgment suspend and bar the proceedings to do the same, by the courts of common pleas under their equitable powers? While it is well settled that equity will not take jurisdiction where the parties have a full, adequate and complete remedy at law, the rule does not apply where equity originally had jurisdiction and a subsequent statute gives a remedy at law. In Wesley Church v. Moore, 10 Pa., 273, it is decided that the extension of the remedy by action at law to cases originally within the jurisdiction of equity, and particularly the system adopted in Pennsylvania of administering equitable relief through the medium of common law forms, is no bar to the equitable jurisdiction of the courts for the same cause. In Dinner v. Van Dyke, 25 Sup., 433, it is decided that equity has jurisdiction of a bill to compel satisfaction of a mortgage and to restrain proceedings thereon, notwithstanding that the Act of April 3, 1851, P. L., 868 gives a complete remedy at law. In Hutchinson v. Dennis, 217 Pa., 290, it is decided that, where equity has jurisdiction and a statute afterwards confers jurisdiction upon courts of law, the jurisdiction of the court of equity is not taken away. From these cases, it will be seen that, even though the act of assembly furnishes a complete remedy for the relief sought here, the remedy, which existed before its passage, of having the matter decided by the Court under its equitable powers is not taken away, and the next question for our consideration is, whether the petitioner has shown such a case as entitles him to the relief prayed for in The allegations of want of consideration and intention to hinder, delay and defraud the creditors of James L. Wilson contained in the petition are denied by the plaintiff in the judgment, in his answer. The testimony shows that when an attempt was made to collect petitioner's claim from James L. Wilson, the defendant, he confessed the judgment in question to Lewis Feldser. B. F. Feldser, a son of Lewis Feldser testified that Lewis Feldser said in his presence that he did this (referring to the judgment) to save Wilson, as they were going to sell him out. Lewis Feldser denies this. Lewis Feldser was not a man of wealth. He owned real estate, which he testified was worth $5500, against which were liens to the amount of $5100. He says he loaned $500 to the defendant in March 1910, and $1000 in March 1912, when the judgment was given. He does not seem to be able to explain where he got this money; at least, he does not do so satisfactorily. He says he obtained it in 1909 or 1910 through mortgages, and then says that he used the money he received from the mortgages for other purposes, and that he got this from his business, which was selling sewing machines and other goods through the country. He had a bank account, but did not keep this money in the bank. He says he kept it in his pocket and under the rug or mat in his house. The proof of these facts, we think, meets the requirements of such an application. The fact that the judgment was confessed at the time the defendant was being pressed for the payment of his debts to the petitioner, that the plaintiff said he was doing it to save Wilson from being sold out by the sheriff, and further that the plaintiff has not shown his ability to lend this money nor satis factorily explain where he got it, and that he is in debt to almost the value of his real estate, are sufficient in our opinion to justify a chancellor in entering a decree against the judgment. The proper procedure in cases of this kind is not to open the judgment, but to grant an issue to try its validity and bona fides: Cochran v. Eldridge, 49 Pa., 365; Campbell v. Sloan, 62 Pa., 481. As the petitioner is attacking the judgment, the burden is on him to prove that it is invalid and has not been given in good faith. He must, therefore, be made the plaintiff in the issue. We, therefore, grant an issue in which A. J. Steinman, Administrator of Susan S. Steinman, deceased is plaintiff, and Lewis Feldser is defendant, to try by jury whether the note given by James L. Wilson to Lewis Feldser on March 19, 1912, upon which judgment was issued to January Term 1912, No. 283, was given to defraud, delay and hinder the creditors, or any of the creditors of James L. Wilson, and whether it was without consideration. Rule made absolute. John Hart, the plaintiff. About December 15, 1913, she became ill, and was taken to a hospital, where she was operated upon for appendicitis. She died on December 21, 1913, leaving a husband, but no children, surviving. The funeral expenses were defrayed by the plaintiff, and they amounted to about $130.00. On December 20, 1910, she became a member of Anooka Council No. 177, Degree of Pocahontas, and remained a member of the order until her decease. Her husband brought suit against the Council, in the name of the secretary and a member, and, upon the trial, judgment of non-suit was entered, which we are now asked to take off. The only question presented is, whether, at the time of her death, she was a beneficial member of the order, and this I think must be solved largely by its constitution and bylaws. Sec Article XXVIII, Section 1, of the constitution, declares that, "in the event of the Great Spirit calling a beneficial member from the hunting ground of their fathers, the Council shall appropriate the amount prescribed in the by-laws (not less than twenty fathoms). **" tion 2, Article IV, of the by-laws, declares that, "in the event of the Great Spirit calling a member from the hunting grounds of their fathers, who has been a member one great sun, and is in good Beneficial societies By-laws - Death standing when death occurs, $100.00 or John Hart v. Lottie Sheaffer, Secretary, benefits-Arrears. One agrees by becoming a member of a beneficial association to be bound by its reasonable by-laws. In a suit against a beneficial society for death benefits, the plaintiff must prove that the deceased was beneficial, and a non-suit is properly entered where the "due book of the deceased member shows that she was not beneficial under the by-laws. Rule to strike off judgment of nonsuit. C. P. of Lancaster County, March Term, 1914, No. 61. B. F. Davis, for rule. Section one hundred fathoms of wampum shall suns dues for three moons shall not be entitled to receive any benefits until two moons after all arrearages are paid, and if over six moons in the arrears, shall receive no benefits for four moons after all arrearages are paid, and if one great June 3, 1915. Opinion by LANDIS, sun in arrears, shall be suspended from P. J. B. C. Atlee, contra. all rites and privileges of the order." Annie Elizabeth Hart was the wife of Article XXXI, Section 1, of the constitu tion provides that "a member indebted | all demands, is to be subject to the com plaisance or generosity or sympathy of the local collectors, the operation of the order and its beneficent objects might easily be obstructed and defeated. The provision for prompt remittance is essential to the successful management of the business. It has been well said, with reference to the clause in the contract re to the Council to an amount equaling thirteen seven suns' dues shall be considered a non-beneficial member and will not be entitled to benefits, to vote, to serve on committee, or hold any chieftaincy.' According to the rules of the order, a sun means a day, seven suns a week, and a moon a month. Under these provisions of the constitution and by-leasing an insurer from liability on faillaws, I think it was encumbent upon the plaintiff to show that his wife was beneficial at the time of her death. Upon that point, he introduced her "Due Book," which is the account kept between her and the Council, from which it appears that she was in arrears, and that she was not beneficial either when she made the last payment or at the time of her death. It, therefore, seems to me that the plaintiff has no right to re cover. In Young v. Aeolian Council No. 17, 59 Sup., 174, it was held that a "a beneficial association may provide in its constitution that a member in arrears for thirteen weeks shall not be entitled to benefits until four weeks after all such arrearages have been paid in full ""; that, "if a member has been in arrears for thirteen weeks, and has, at the expiration of such time, renewed the payment of dues, but at the time of his death the probationary period of four weeks has not elapsed, no death benefits can be paid by reason of his death." See, also, Philips v. Aid Society, 6 Sup., 157. In McClenaghan v. Cincinnatus Council, 20 Sup., 229, it was held that, by becoming ure of the insured to pay the premium, that it is not one of those catching clauses which are made the subject of adverse criticism, but is a demand that prompt payment be made of the only consideration which gives vitality to the contract of insurance. Such a clause is not to be considered as having been waived by the company, save under circumstances when some officer authorized to represent the company in such a matter has done something by which the insured may have been reasonably led to believe that the conditions would not be insisted upon: Sydnor v. Ins. Co., 26 Pa. Superior Ct., 525. The doctrine of waiver, as asserted against contracts of this character, to prevent the strict enforcement of conditions contained therein, is in effect the application of the doctrine of estoppel and is only to be invoked when the conduct of the company has been such as induced action in reliance upon it, and where it would operate as a fraud upon the insured if the insurer were afterwards allowed to disavow its conduct and enforce the conditions" See, also, Mooney v. Supreme Council of the Royal Arcanum, 243 Pa., 463. a member of the association the decedent The provision of Section 2 of Article agreed with it and its membership that VII of the by-laws, which declares that all his rights therein were subject to the" it shall be the duty of the Keeper of enforcement of its reasonable by-laws; and in Mathers v. Protected Home Circle, 55 Sup., 421, that compliance with the laws of the order with respect to the payment of dues is of first importance. Henderson, J., in delivering the opinion in that case, said: "Insurance of this character is only temporary; it extends from month to month; performance by each of the members of the order is necessary to a successful operation of the plan. If the control of the collection of the dues, on which it depends to meet Records to notify each and every member two 7 suns previous to becoming 3 moons in the arrears and a member shall be charged 5 inches for each and every notice," does not affect the present controversy. In the first place, there is no evidence that such notice was not given to the deceased, because all that the plaintiff testified to was, in effect, that he had not seen any such notice. Outside of that, however, I do not think that even the failure of the officer to give such a notice would keep the member beneficial, for the burden is upon her to comply with the rules of the order and make payments as required by its laws. Under this view, I have not discussed the proposition as to whether or not the action could be maintained at law, and in any event must be proceeded with by bill in equity. It is concluded that the judgment of non-suit was properly entered, and I now refuse to take it off. The rule to show cause why judgment of non-suit should not be taken off is now discharged. Rule discharged. Quarter Sessions. treat it as one offence." In Commonwealth v. Ault, 10 Sup., 651, it is decided that one offence may be committed to the injury of two or more persons, and in such cases the offence may be charged in one count of an indictment. So far as the indictment shows, the offence charged is a single offence against three persons. It is proper, therefore, to embrace it in one count of the indictment. The other reasons contained in the motion to quash are without merit and do not require discussion. We refuse to quash the indictment. Legal Miscellany. Commonwealth v. Hastings. An assault and battery against three persons may be charged as a single offence in one count of an indictment. Indictment for assault and battery. Motion to quash indictment. April Sessons, 1915, No. 117. Indictment No. 75. John A. Nauman, for motion. John M. Groff, Dist. Atty., contra. July 3, 1915. Opinion by HASSLER, J. The indictment in this case charges the defendant with having committed assault and battery and aggravated assault and battery upon three persons. It is contended that this charges three separate and distinct offences, and that it is, therefore, bad for duplicity and should be quashed. In Wharton's Criminal Pleading and Practice, Sec. 254, it is said: "A man may be indicted for the battery of two or more persons in the same count without rendering the count bad for duplicity." In 1 Bishop on Criminal Law, Sec. 1061, it is said that, "where the same blow wounds or kills two men, it is competent for the pleader to charge it as inflicted on the two; in other words, the prosecuting power may, if it pleases, Redress for Death at Sea. More than fourteen years ago, writes Hon. Harrington Putnam in the July Case and Comment, the Maritime Law Association of the United States, a body of practitioners and judges representing both seacoasts and the Great Lakes, outlined a bill to be enacted by Congress to give a remedy for death, to the Federal courts sitting in admiralty. The scope of the measure was simply to grant the same jurisdiction as to a tort causing death as had always been exercised to redress a tort causing injury to property. Yet Congress was strangely unresponsive. The very appearance of such a bill was at first deemed burdensome to shipping and transportation interests. Hearings were had before committees, but little ensued. In the discussions that ensued, the matter of such a remedy for death was taken up and approved by successive votes of the American Bar Association, who appointed a committee to urge the enactment of such a measure. A practical difficulty is the overlapping of the state and Federal jurisdictions where admiralty courts deal with torts on state waters. There is a dangerous possibility of a double recovery. If the Federal law is made paramount, the representatives in Congress naturally feel that the states are surrendering to |
