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and the brakes of his car were in good order, he was not able to stop within that distance and thus avoid the accident. And this, too, although he saw the gateman at the gate, looking in the opposite direction and in a situation that indicated at least the possibility of his being about to lower it. This case is to be distinguished from Hudson v. Lehigh Valley R. R. Co., 54 Pa. Superior Ct., 107, which, it was held, was for the jury. There, it is said, it was shown by plaintiff's evidence that he was riding a bicycle and "was moving slowly and looking and listening for approaching trains"; that "he observed the gate was up and, not hearing or seeing any moving engine or car, he proceeded along the street." The gatekeeper occupied a station from which he operated the gates. He had seen the plaintiff approaching at a distance of forty feet, but paid no further attention to him. Here a gong sounded as the gate began to descend, which plaintiff heard while eight or ten feet from the gate, but he was unable to stop his automobile in time to avoid the collision, owing to the speed at which he was traveling. We think it clear that plaintiff was guilty of contributory negligence under the rule which the trial judge laid down, and that he should have given binding instructions for the defendant.
And now, the motion is allowed and judgment for the defendant is entered non obstante veredicto upon the whole record.
Estate of Magdalena (or Molly) Sweigart, deceased.
Sale for debts-Title.
An order to sell a decedent's real estate for payment of debts should not be revoked because the decedent's title to the property is in doubt.
Rule to revoke order of sale. O. C. of Lancaster County. June Term, 1914, No. 40.
T. Roberts Appel, for rule.
B. F. Davis, contra.
November 5, 1914. Opinion by SMITH, P. J.
This is a proceeding on a rule to show cause why an order of this Court to F. B. Sweigart, administrator of the estate of Magdalena Sweigart, deceased, to sell real estate for the payment of her debts should not be revoked. Only the petition on which the rule was awarded is before us. No answer has been filed. Therefore that which is set forth in the petition is taken as true, and if a cause of action appears, the making of the rule absolute follows.
It is contended on behalf of the petitioner that Magdalena Sweigart had no title to this estate. It is admitted that she had been in possession of it more than thirty-three years, and respondent's counsel argues that she had title by adverse possession. Whether she had or had not a title is immaterial in this proceeding. A judicial sale is authorized, which is notice to every one that the administrator will offer for sale the decedent's right, title and interest, whatThe rule of caveat ever that may be.
emptor has been emphasized, and no one need be injured. If the decedent had no title, there is no occasion for the petitioner to be concerned.
The rule is discharged at the cost of the petitioner.
Alleged Evils of the Bankruptcy Law.
BY ABRAM I. ELKUS,
Of the New York Bar.
The present bankruptcy law, enacted in 1898, has been longer in effect than any prior bankruptcy act in this country. There have been numerous complaints with reference to the act itself and to the methods of administering it, but on the whole the mercantile community has found it satisfactory.
To anyone whose mind travels back to the state of chaos which existed in all the states of the Union with their different laws affecting insolvency and bankruptcy, some states preferring local creditors to foreign ones, it is an immense relief, whether he be attorney, creditor, or debtor, to know that there is one universal law applying to the whole subject.
That there should be criticism of the law itself was inevitable. Most of this criticism is directed against the effect of the law as applying to peculiar conditions throughout the country.
One complaint is heard in many of the Southern and Western States; for instance, that unscrupulous people purchase household necessities upon credit, and, after running the gamut of all those whom they can persuade to trust them for an amount exceeding $500, file a petition in bankruptcy, and are discharged from their debts. It is claimed that they then move elsewhere and begin the same procedure over again. Amendments to cover this abuse of the law have been before Congress and are now pending.
Again, numerous complaints are made about the ease with which debtors are discharged from their debts although they have committed fraud in many instances not covered by specific provisions of the act. All these can be easily remedied by amendments which do not affect the main substance of the law; namely, the equal distribution of the assets of
debtors among creditors, preferring only the wage-earner.
The majority of the charges are directed against the administration of the law, and to the fact that men attempt to defraud their creditors even though there are bankrupt statutes, and through the medium of fraudulent bankruptcies.
Other evils complained of in the administration of the law are excessive costs, and the collusive action of friendly creditors with the bankrupt, and the fraudulent disposition of their property by bankrupts immediately before bankruptcy, to be covered up by friendly bankruptcy proceedings and the appointment, if possible, of friendly receivers. cessive costs of the proceeding. In most
The first of these complaints is the exof the cases this really has no foundation in fact, especially as compared with the cost of bankruptcy or insolvency proceedings under the state statutes. In any event the recent amendments to the bankruptcy act have limited the fees of receivers, where it was claimed most of these evils existed, and the fees of trustees have always been regulated by statute according to the amount of money passing through the hands of the trustee. These fees are not large, and little or no protest is made against the fees which the receivers and trustees now receive. As to fees awarded counsel, these are entirely within the discretion of the court, and fees are not awarded without notice to creditors and full opportunity to be heard. No judge willingly awards. excessive fees. Of course, to a creditor smarting under a heavy loss, any fee which may be awarded seems to be excessive, and the inevitable prejudice. which the layman has for the lawyer is also shown up when the lawyer's fee is to be considered.
If there is an abuse, the remedy is simple. It is in the hands of the creditors in the first instance. If the fees are too large a vigorous protest based upon actual facts will produce results. It is only when the creditor neglects to protest, and then, after the matter is fixed by decision, assails and complains. that the situation arises as it is now.
As to the fraudulent practices, of
course it is impossible with any statute, the bankrupt that the fraudulent bankto change human nature. Men whose ruptcy does not pay. A bankrupt must minds are bent towards deceiving or dispose of his stolen property at sacricheating will always endeavor to cheat ficial prices. He is mulcted on every and deceive. Legislatures can only en- side, usually by the attorney in whom he act laws which make it more difficult to confides and who is at times a co-concheat and deceive, and to more readily spirator, until finally after his attempts punish the offender. Whenever a new to escape he saves little or nothing from statute is enacted, heading off or pun- the wreck. The vigorous prosecution ishing some new method of defrauding, has made him understand that honesty then the keen-witted defrauder invents, is the best policy, and should be pursued or endeavors to invent, some new way for that reason if no other. to circumvent the statute, and it will only be when the millennium is reached that there will be no frauds attempted. It is a fact that debtors attempt to dispose of their property before bankruptcy, and after covering up the disposition by false books and accounts, endeavor to hinder creditors from obtaining their rights by causing to be filed so-called friendly petitions and endeavoring to obtain friendly receivers. Perjury is of course the necessary concomitant of these proceedings, but perjury in bankruptcy proceedings is now punishable as contempt of court. See Re Fellerman, 17 Am. Bankr. Rep., 785; Re Bick, 19 Am. Bankr. Rep., 68; Re Schulman, 23 Am. Bankr. Rep., 809. That is a speedy way of punishing the perjurer.
It is also easy now for the creditor to intervene in any bankruptcy proceeding by simply filing notice and demanding notice of all the proceedings. The bankruptcy courts will not appoint receivers who will act in a friendly manner to fraudulent bankrupts. If one is appointed, however, the procedure to have hin removed is simple, expeditious, and effective.
The rules recently adopted, that attorneys for petitioning creditors shall not be the attorneys for the receivers, will furnish speedy and effective relief in these matters. Furthermore, the speedy and prompt punishment meted out to fraudulent bankrupts will do much toward making them respect the law. Creditors everywhere are now on the alert. They have organized in the different trades and societies, and they employ attorneys and others to watch the proceedings of bankrupts and debtors. But above all, the lesson is being taught
Attempts have been made from time to time, and are now being made, in Congress, to repeal the bankruptcy act. One member of Congress has introduced at every session since its enactment a bill to repeal this law. His action is based upon the claim that local creditors should have preference over foreign creditors, and he has stated that he believes in his state the debtors and merchants need not go outside the state to purchase their merchandise. This was in reply to the statement that if his policy was carried out credit might be refused to other than local creditors.
Such a narrow policy will never prevail. The tendency of modern business is to obliterate, rather than insist upon, state lines in business matters.
-Case and Comment.
LANCASTER LAW REVIEW. plaintiff.
VOL. XXXII.] FRIDAY, DEC. 13, 1914. [No. 7
Wrightsville Hardware Co. v. Assets ization Co. (No. 3).
On April 12th, 1912, the Wrightsville
Common Pleas--Equity. Hardware Co. wrote to H. T. Kingsbury
offering to purchase "all the property, both real and personal, of the Grey Iron Co. of Mount Joy, Pa.," if he and his associates should purchase it at a reReal-ceiver's sale about to be held and be able to give a good title, which offer he accepted, and subsequently purchased the Injunction affidavits-Practice-Officers property, but refused to convey it to the of corporation Contract to sell prop - Hardware Co., alleging that he could not erty-Purchase by third party-Spe- give title. Subsequently, however, he cific performance Subject-matter- conveyed it to the Assets Realization Parol evidence - Prior proceedings- Co., who had notice of the claim of the | Hardware Co., and the latter brought this suit.
April 19, 1913. Opinion by HASSLER,
Officers of a corporation are not to be considered as parties to a proceeding in which the corporation is a party, and may therefore make the affidavits as to the material facts of the bill required before a preliminary injunction may issue.
Where one purchases a property from another who has previously agreed to sell it to a third party, and such person had notice of such previous agreement of sale, a specific performance can be decreed against such subsequent purchaser.
Where a writing is complete in itself designating the subject-matter of a contract, parol evidence may be received to identify and locate the latter where specific performance is asked for.
The dismissal of a case for want of jurisdiction is not a bar to a subsequent proceeding in a court which has jurisdiction.
J. S. Black and Coyle & Keller, for
The plaintiffs offered by letter to purchase for a stipulated price from K. all the property, real and personal, of a certain manufacturing company if K. and his associates should purchase it at a receiver's sale about to be held and be able to give a good title, which offer was accepted in writing. K. subsequently purchased the property, but refused to convey it to the plaintiff, stating that he could not give a good title, but subsequently it was conveyed to the defendants, who had been given prior notice of the plaintiff's contract with K.
Held, that the plaintiff was entitled to specific performance and an injunction to restrain conveyal by the defendant.
S. R. Zimmerman, Kenneth K. Mackenzie and W. U. Hensel, for defendant.
Bill in equity for specific performance. Motion to dissolve preliminary injunction. C. P. of Lancaster County. Equity Docket No. 5, page 421.
[For finding of facts, see Wrightsville Hardware Co. v. Assets Realization Co. (No. 1), 31 LAW REVIEW, 145.]
CONCLUSIONS OF LAW.-Five reasons are given by the defendants why this motion to dissolve the preliminary injunction should be sustained. They are as follows:
1. It is argued by defendants' counsel that the preliminary injunction should be dissolved because it was granted without injunction affidavits having been filed, sworn to by two persons not parties to the suit. Two affi lavits were filed, but one of them was sworn to by W. A. Coventry, president of the plaintiff corporation, who also made affidavit to the truth of the bill. This it is contended is not sufficient. All that is required is that the affidavits contain all the material facts alleged in the bill, and be sworn to by two persons who are not parties to the proceeding. The affidavits do contain the material allegations of the bill, and are within the personal knowledge of the affiants. Both of the affiants are officers of the plaintiff corporation. Neither, however, is a party to the proceedings. and, consequently, both are proper persons to make the affidavits. The officers
of the corporation are not parties to a proceeding in which the corporation is a party. If they were to be so considered it would be difficult, if not impossible, for many corporations to obtain a preliminary injunction where, as here, any business of the corporation is involved. The officers attend to the business of many corporations and are the only ones who know the facts involved, and, consequently, the only ones who can make such affidavits from personal knowledge. The fact that W. A. Coventry made affidavit to the bill does not affect his competency to make one of the required injunction affidavits. The bill need not have been sworn to, but even though that was necessary, there is nothing in our equity practice to prevent him from making one of the injunction affidavits. 2. The defendants contend that there can be no enforcement of the contract involved here, because there is no contract between the plaintiff and the defendant.
The contract is in writing, between the plaintiff and H. T. Kingsbury, who was acting in the matter for himself and A. A. Tisdale. The plaintiff, by letter dated April 12, 1912, offered to buy at a price mentioned" all of the property, both real and personal," of the Grey Iron Company of Mt. Joy, Pa. This offer was accepted, and it was further agreed that $3,500 or $4,000 was to be paid at the time of the sale in the event that the said Tisdale and Kingsbury were the successful bidders. The property was then about to be sold by the receivers of the Hardware & Woodenware Manufacturing Company, and A. A. Tisdale be
came the successful bidder. The amount which was to be paid at the time of the sale was paid, and the balance was subsequently tendered, which tender has been continued in by the plaintiff. The only matter about which there can be any question is whether the subject-matter of the contract, viz., the real and personal property of the Grey Iron Company, is described in the contract with such certainty as is required in such cases.
In Bispham's Equity, Sec. 377, Third Edition, the rule is laid down that "All agreements, in order to be enforcable in this Court, must be certain and definite.. . . . This rule, however, is subject to two qualifications. . . . Secondly, that in obedience to the maxim, Id certum est quod certum reddi potest, performance will be decreed if the means of ascertaining the contract are at hand."
In Ranney v. Byers, 219 Pa., 332, the land was described as the Byers' Place," and it was held to be a sufficient description. Justice Mestrezat, in delivering the opinion of the Court, says:
Parol testimony is not admissible to establish any essential part of the declaration. But when the writing is complete in itself, stating the subject-matter. designating the cestui que trust and his interest in the subject-matter, there is no reason why parol evidence should not be received to identify and locate the subject of the writing. The distinction between parol evidence when offered for the latter purpose and when offered for the purpose of naming or designating the subject-matter of the contract is of vital importance and determines its admissibility. While, as we have seen, in creating a trust, it is essential to its validity that the writing designate the subjectmatter, no language or form of words, however, has been prescribed by the statute, the simple requirement being that the subject, as stated, be definite and certain. When, therefore, the instrument names a definite subject, it satisfies the statute, and parol evidence is admissible to identify or locate it on the ground." While that case involves a declaration of trust, the rule applicable to the description of the subject-matter