網頁圖片
PDF
ePub 版

and the brakes of his car were in good T. Roberts Appel, for rule. order, he was not able to stop within that distance and thus avoid the acci- B. F. Davis, contra. dent. And this, too, although he saw the gateman at the gate, looking in the November 5, 1914. Opinion by SMITH, opposite direction and in a situation that P. J. indicated at least the possibility of his being about to lower it. This case is to

This is a proceeding on a rule to show be distinguished from Hudson v. Lehigh cause why an order of this Court to F. Valley R. R. Co., 54 Pa. Superior Ct., B. Sweigart, administrator of the estate 107, which, it was held, was for the jury of Magdalena Sweigart, deceased, to sell There, it is said, it was shown by plain- real estate for the payment of her debts tiff's evidence that he was riding a

should not be revoked. Only the petibicycle and was moving slowly and tion on which the rule was awarded is looking and listening for approaching before us. No answer has been filed. trains ”; that “ he observed the gate Therefore that which is set forth in the was up and, not hearing or seeing any petition is taken as true, and if a cause moving engine or car, he proceeded of action appears, the making of the rule along the street.” The gatekeeper occu- absolute follows. pied a station from which he operated It is contended on behalf of the petithe gates. He had seen the plaintiff ap- tioner that Magdalena Sweigart had no proaching at a distance of forty feet, title to this estate. It is admitted that but paid no further attention to him. she had been in possession of it more Here a gong sounded as the gate began than thirty-three years, and respondent's to descend, which plaintiff heard while counsel argues that she had title by adeight or ten feet from the gate, but he verse possession. Whether she had or was unable to stop his automobile in had not a title is immaterial in this protime to avoid the collision, owing to the ceeding: A judicial sale is authorized, speed at which he was traveling. We

which is notice to every one that the think it clear that plaintiff was guilty of administrator will offer for sale the contributory negligence under the rule decedent's right, title and interest, whatwhich the trial judge laid down, and that ever that may be. The rule of caveat he should have given binding instruc- emptor has been emphasized, and no one tions for the defendant.

need be injured. If the decedent had no And now, the motion is allowed and

title, there is no occasion for the petijuc'gment for the defendant is entered tioner to be concerned. non obstante veredicto upon the whole

The rule is discharged at the cost of record.

the petitioner.

[blocks in formation]

debtors among creditors, preferring only Legal Miscellany. the wage-earner.

The majority of the charges are directed against the administration of the

law, and to the fact that men attempt to Alleged Evils of the Bankruptcy Law. defraud their creditors even though

there are bankrupt statutes, and through BY ABRAM I. ELKUS,

the medium of fraudulent bankruptcies. Of the New York Bar.

Other evils complained of in the ad

ministration of the law are excessive The present bankruptcy law, enacted costs, and the collusive action of friendly in 1898, has been longer in effect than creditors with the bankrupt, and the any prior bankruptcy act in this coun- fraudulent disposition of their property try. There have been numerous com- by bankrupts immediately before bankplaints with reference to the act itself ruptcy, to be covered up by friendly and to the methods of administering it, bankruptcy proceedings and the appointbut on the whole the mercantile com

ment, if possible, of friendly receivers. munity has found it satisfactory. cessive costs of the proceeding. In most To anyone whose mind travels back to

The first of these complaints is the exthe state of chaos which existed in all

of the cases this really has no foundation the states of the Union with their differ- in fact, especially as compared with the ent laws affecting insolvency and bank- cost of bankruptcy or insolvency proruptcy, some states preferring local ceedings under the state statutes. In any creditors to foreign ones, it is an im- event the recent amendments to the mense relief, whether he be attorney, bankruptcy act have limited the fees of creditor, or debtor, to know that there is receivers, where it was claimed most of one universal law applying to the whole these evils existed, and the fees of subject.

trustees have always been regulated by That there should be criticism of the statute according to the amount of money law itself was inevitable. Most of this passing through the hands of the truscriticism is directed against the effect of tee. These fees are not large, and little the law as applying to peculiar conditions

or no protest is made against the fees throughout the country.

which the receivers and trustees now reOne complaint is heard in many of the ceive. As to fees awarded counsel, these Southern and Western States; for in- are entirely within the discretion of the stance, that unscrupulous people pur- court, and fees are not awared without chase household necessities upon credit, notice to creditors and full opportunity and, after running the gamut of all those to be heard. No judge willingly awards whom they can persuade to trust them excessive fees. Of course, to a creditor for an amount exceeding $500, file a peti- smarting under a heavy loss, any fee tion in bankruptcy, and are discharged which may be awarded seems to be exfrom their debts. It is claimed that they cessive, and the inevitable prejudice then move elsewhere and begin the same which the layman has for the lawyer is procedure over again. Amendments to also shown up when the lawyer's fee is cover this abuse of the law have been to be considered. before Congress and are now pending. If there is an abuse, the remedy is

Again, numerous complaints are made simple. It is in the hands of the credabout the ease with which debtors are itors in the first instance. If the fees discharged from their debts although are too large a vigorous protest base1 they have committed fraud in many in- upon actual facts will produce results. stances not covered by specific provisions It is only when the creditor neglects to of the act. All these can be easily reme- protest, and then, after the matter is died by amendments which do not affect fixed by decision, assails and complains the main substance of the law; namely, that the situation arises as it is now. the equal distribution of the assets of 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 Attempts have been made from time be when the millennium is reached that to time, and are now being made, in there will be no frauds attempted. It is Congress, to repeal the bankruptcy act. a fact that debtors attempt to dispose One member of Congress has introduced of their property before bankruptcy, and at every session since its enactment a bill after covering up the disposition by false to repeal this law. His action is based books and accounts, endeavor to hinder upon the claim that local creditors should creditors from obtaining their rights by have preference over foreign creditors, causing to be filed so-called friendly and he has stated that he believes in his petitions and endeavoring to obtain state the debtors and merchants need not friendly receivers. Perjury is of course go outside the state to purchase their the necessary concomitant of these pro- merchandise. This was in reply to the ceedings, but perjury in bankruptcy pro- statement that if his policy was carried ceedings is now punishable as contempt out credit might be refused to other than of court. See Re Fellerman, 17 Am. local creditors. Bankr. Rep., 785; Re Bick, 19 Am. Such a narrow policy will never preBankr. Rep., 68; Re Schulman, 23 Am. vail. The tendency of modern business Bankr. Rep., 809. That is a speedy way is to obliterate, rather than insist upon, of punishing the perjurer.

state lines in business matters. It is also easy now for the creditor to

-Case and Comment. intervene in any bankruptcy proceeding by simply filing notice and demanding notice of all the proceedings. The bank

ORPHANS' COURT. ruptcy courts will not appoint receivers wo will act in a friendly manner to On Thursday, December 10, 1914, the fraudulent bankrupts. If one is ap- following matters on the Argument list pointed, however, the procedure to have were summarily disposed of by JUDGE hiin removed is simple, expeditious, and Smitu: effective.

Estate of Annie P. Huber. Exceptions The rules recently adopted, that attor- to the adjudication dismissed. neys for petitioning creditors shall not Estate of George W. Runner. Rule be the attorneys for the receivers, will to open the adjudication discharged. furnish speedy and effective relief in Estate of Samuel McCleneghan. Rule thiese matters. Furthermore, the speedy for order to pay adjusted and costs paid. and prompt punishment meted out to Estate of William K. Winters. Exfraudulent bankrupts will do much ceptions to adjudication dismissed. toward making them respect the law. Estate of Lemon B. Studevroth. CitaCreditors everywhere are now on the i tion for account. Rule made absolute. alert. They have organized in the dif- Estate of Aaron Widders.

Rule to ferent trades and societies, and they em- open the audit made absolute. ploy attorneys and others to watc' the Estate of John George Leitenberger. proceedings of bankrupts and debtors. Rule for payment of award discharged But above all, the lesson is being taught I and audit reopened.

*

J. S. Black and Coyle & Keller, for LANCASTER LAW REVIEW. plaintiff. Vol. XXXII.] FRIDAY, DEC. 13, 1914. [No. 7 kenzie and W. U. Hensel, for defendant.

S. R. Zimmerman, Kenneth K. Mac

On April 12th, 1912, the Wrightsville Common Pleas--Equity. Ilardware 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 reWrightsville Hardware Co. v. Assets Real-ceiver's sale about to be held and be able ization Co. (No. 3).

to give a good title, which offer he ac

cepted, and subsequently purchased the Injunction affidavits Practice-Officers property, but refused to convey it to the

of corporationContract 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, conveved it to the Assets Realization Parol evidence - Prior proceedings- Co., who had notice of the claim of the Jurisdiction.

Hardware Co., and the latter brought

this suit. Officers of a corporation are not to be considered as parties to a proceeding in which April 19, 1913. Opinion by HASSLER, the corporation is a party, and may therefore J. make the affidavits as to the material facts of the bill required before a preliminary injunction may issue.

(For finding of facts, see Wrightsville Where one purchases a property from an- Hardware Co. v. Assets Realization Co. other who has previously agreed to sell it to

(No. 1), 31 LAW REVIEW, 145.) a third party, and such person had notice of such previous agreement of sale, a specific

CONCLUSIONS OF LAW.-Five reasons performance can be decreed against such sub- are given by the defendants why this sequent purchaser.

motion to dissolve the preliminary inWhere a writing is complete in itself desig; junction should be sustained. They are nating the subject-matter of a contract, parol

as follows: evidence may be received to identify and locate the latter where specific performance is

1. It is argued by defendants' counsel asked for.

that the preliminary injunction should be The dismissal of a case for want of juris- dissolved because it was granted without diction is not a bar to a subsequent proceed- | injunction affidavits having been filed, ing in a court which has jurisdiction.

sworn to by two persons not parties to The plaintiffs offered by letter to purchase the suit. Two affilavits were filed, but for a stipulated price from K. all the property, real and personal, of a certain manufacturing

one of them was sworn to by W. A. Covcompany if K. and his associates should pur- entry, president of the plaintiff corporachase it at a receiver's sale about to be held tion, who also made affidavit to the truth and be able to give a good title, which offer of the bill. This it is contended is not was accepted in writing. K. subsequently purchased the property, but refused to convey it

sufficient. All that is required is that the to the plaintiff, stating that he could not give affidavits contain all the material facts to the defendants, who had been given prior two persons who are not parties to the a good title, but subsequently it was conveyed alleged in the bill, and be sworn to by notice of the plaintiff's contract with K. Held, that the plaintiff was entitled to spe- i the material allegations of the bill, and

proceeding. The affidavits do contain cific performance and an injunction to restrain conveyal by the defendant.

are within the personal knowledge of the

affiants. Both of the affiants are officers Bill in equity for specific performance of the plaintiff corporation. Neither,

Motion to dissolve preliminary in- however, is a party to the proceedings, junction. C. P. of Lancaster County. and, consequently, both are proper perEquity Docket No. 5, page 421.

sons to make the affidavits. The officers

of the corporation are not parties to a | came the successful bidder. The amount proceeding in which the corporation is a which was to be paid at the time of the party. If they were to be so considered sale was paid, and the balance was subit would be difficult, if not impossible, sequently tendered, which tender has for many corporations to obtain a pre- been continued in by the plaintiff. The liminary injunction where, as here, any only matter about which there can be any business of the corporation is involved. question is whether the subject-matter The officers attend to the business of of the contract, viz., the real and permany corporations and are the only ones sonal property of the Grey Iron Comwho know the facts involved, ani, con- pany, is described in the contract with sequently, the only ones who can make such certainty as is required in such such affidavits from personal knowledge. cases. The fact that W. A. Coventry made afti- In Bispham's Equity, Sec. 377, Third davit to the bill does not affect his com- Edition, the rule is laid down that “All petency to make one of the required in- agreements, in order to be enforcable in junction affidavits. The bill need not this Court, must be certain and definite. • have been sworn to, but even though that This rule, however, is subject to was necessary, there is nothing in our two qualifications. . . . Secondly, that equity practice to prevent him from in obedience to the maxim, id certum making one of the injunction affidavits. est quod certum reddi potest, perform2. The defendants contend that there

ance will be decreed if the means of can be no enforcement of the contract ascertaining the contract are at hand.” involved here, because there is no con

In Ranney v. Byers, 219 Pa., 332, the tract between the plaintiff and the de

land was described as the Byers' fendant.

Place," and it was held to be a sufficient It is well settled that where one pur-description. Justice Mestrezat, in dechases property from another, who has livering the opinion of the Court, says: previously agreed to sell it to a third - Parol testimony is not admissible to party, and such person had notice of establish any essential part of the decsuch previous agreement of sale, a spe- laration. But when the writing is comcific performance can be decreed against plete in itself, stating the subject-matter. such subsequent purchaser : Kerr v. Day. I resignating the cestui que trust and his 14 Pa., 112; Napier v. Darlington, 70 interest in the subject-matter, there is Pa., 64; Borie v. Satterthwaite, 180 Pa.,

no reason why parol evidence should not 542.

be received to identify and locate the 3. It is also contended that there can subject of the writing. The distinction be no specific performance of the con- between parol evidence when offered for tract decreed, because it is not certain the latter purpose and when offered for and definite in its terms.

the purpose of naming or designating the The contract is in writing, between the subject-matter of the contract is of vital plaintiff and H. T. Kingsbury, who was | importance and determines its admissiacting in the matter for himself and A. bility. While, as we have seen, in creatA. Tisdale. The plaintiff, by letter dated ing a trust, it is essential to its validity April 12, 1912, offered to buy at a price that the writing designate the subjectmentioned "all of the property, both matter, no language or form of words, real and personal,” of the Grey Iron however, has been prescribed by the Company of Mt. Joy, Pa. This offer statute, the simple requirement being was accepted, and it was further agreed that the subject, as stated, be definite and that $3,500 or $4,000 was to be paid at certain. When, therefore, the instruthe time of the sale in the event that the ment names a definite subject, it satisfies said Tisdale and Kingsbury were the the statute, and parol evidence is admissuccessful bidders. The property was sible to identify or locate it on the then about to be sold by the receivers of ground.” While that case involves a the Hardware & Woodenware Manufac- declaration of trust, the rule applicable turing Company, and A. A. Tisdale be- to the description of the subject-matter

« 上一頁繼續 »