Where the president of a corporation duly executed and delivered powers of attorney to Thus substituting "if, however," for "when-transfer the stock on the books of the corporaever," as the court did in State v. Fountain, the provisions would read as follows:

tion, the holder had a prima facie title to the stock for value, and, on presenting the certifi cates and assignments to the corporation, was entitled to receive new certificates issued in its own name.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

6. CORPORATIONS 139-TRANSFER OF STOCK [ attorney, executed in blank as to date and ON CORPORATE BOOKS-EVIDENCE.

In an action by the holder of certificates of stock duly assigned and delivered by the president of a corporation to compel the corporation to transfer the stock on its books and to deliver new certificates, evidence that the president had received no consideration for the transfer of the stock except the holder's agreement to suppress all knowledge of a misappropriation of its funds by the president's son-in-law and not to prose cute him was properly excluded. 7. CORPORATIONS

130-TRANSFER OF STOCK

ON CORPORATE BOOKS. In such case neither the president nor the corporation could interpose the alleged illegal consideration to defeat the holder's demand for a transfer of the stock on the books of the corporation, after the contract for the transfer of stock by the president to the holder was fully executed, as the holder to sustain its right to relief was not required to invoke the aid of the illegal transaction by reason of its possession of the certificates of stock with irrevocable power of attorney from the owner to transfer them.

8. COURTS 37(1) JURISDICTION-FOREIGN CORPORATIONS- WAIVER OF OBJECTION BY FAILURE TO PLEAD.

In mandamus to compel a foreign corporation to transfer shares of its stocks on its books, the question of the court's jurisdiction to award the relief would be deemed to have been waived, where it was not raised in the pleadings; although Act June 8, 1893 (P. L. 345) extends only to corporations having their chief place of business within the county or doing business or having their property in whole or in part within the county.

Appeal from Court of Common Pleas, McKean County.

name of transferee, authorizing the transfer of the stock on the books of the defendant corporation. The bank presented its petition to the court below, averring, inter alia, that Camp was the president and J. S. Walker the treasurer of the defendant company; that the petitioner was the owner of 478 13/79 shares of the capital stock of the company, and had been the owner thereof since April 24, 1912; that said shares of stock were represented by certain numbered certificates, and that they had, for value received, been transferred to the bank by indorsement thereon executed by Camp in the presence of a witness; that the certificates were delivered to the bank at the time of the transfer, and were then in its possession; that a representative of the bank had presented the certificates at the office of the defendant company at Smethport, Pa., and demanded the transfer of the stock upon the books of the company and the issue of new certificates therefor; that repeated requests for the transfer of the stock had been made, and frequent efforts had been made to secure the transfer, but the company refused to transfer the stock on its books and to issue new certificates; that by reason of the premises the petitioner had suffered great damage, and had no specific and adequate remedy at law-and prayed the court to issue a writ of mandamus, commanding the company to transfer the shares of stock repMandamus by the Commonwealth, on rela-resented by the certificates and to issue new tion of the Citizens' National Bank, Port certificates therefor. An alternative writ was Allegany, Pa., against T. W. Camp, president, awarded. The defendant company filed a reand J. S. Walker, treasurer, of the Consoli- turn to the writ, in which it denied that the dated Glass Company, the Consolidated Glass plaintiff bank had presented the certificates Company and T. W. Camp, intervening de- and made demand for the transfer of the fendants. Peremptory mandamus awarded, stock on its books or that it had refused to and respondents appeal. Affirmed. make the transfer; that since the commencement of this proceeding Camp had advised the defendant company that he had transferred the stock to the bank for an illegal consideration, and claimed he was still the owner thereof; that he would ask the court for permission to intervene in the proceeding to protect his interest in the stock; and that, if the transfer was made for an illegal consideration, the bank was not the owner of the stock and, therefore, not entitled to have it transferred. The defendant prayed that the company be dismissed with its costs until it had been legally determined that the bank is the owner of the stock "and until the requirements of the statutes in other respects had been complied with." The plaintiff bank filed a reply to the defendant's return to the alternative writ, denying that the stock was transferred by Camp to the bank for an illegal consideration, as set forth in the return, and averring that the transfer was made for a valuable consideration, the details of which are therein stated. Camp presented his petition to the court below, and asked permission to intervene on the ground that part of the consideration for the transfer of the stock

Argued before BROWN, C. J., and MESTREZAT, MOSCHZISKER, FRAZER, and WALLING, JJ.

F. D. Gallup, of Smethport, John G. Johnson, of Philadelphia, and John E. Mullin, of Kane, for appellants. Alex. Simpson, Jr., of Philadelphia, C. W. Catlin, of Port Allegany, and William E. Burdick, of Bradford, for appellee.

MESTREZAT, J. This is a proceeding by mandamus instituted by the Citizens' National Bank of Port Allegany, Pa., the plaintiff, to compel the defendant, the Consolidated Glass Company, a West Virginia corporation, having its principal place of business in Smethport, McKean county, this state, to transfer on its books 478 13/79 shares of its capital stock, the certificates for which, with powers of attorney in blank to transfer, are in the possession of the plaintiff bank.

T. W. Camp was the president of the defendant company and the owner of the stock in dispute, and, on April 24, 1912, assigned and transferred the certificates for the stock to the bank, with an irrevocable power of

The first and second assignments of error relate to the admission of certain testimony; the third, to excluding certain testimony; the fourth, to the action of the court in directing | tiff. a verdict for the plaintiff; the fifth and sixth, [5, 6] The third assignment alleges that to the refusal of a new trial; and the sev- the court erred in excluding defendant's ofenth, to the order awarding the peremptory | fer to show that Camp received no consideramandamus.

new certificates issued therefor, being the is- to enable Camp to set aside the alleged unsue on the trial, was established prima facie lawful contract, which was fully executed, by proof that the certificates, with accom- and to prevent the completion of the legal tipanying assignments, were held by the bank. tle to the stock in the plaintiff by transferThis proof was before the court and jury ring it on the books of the company. In other when the offer, the subject of this assign- words, it would be granting the defendants ment, was made and rejected. The plaintiff affirmative relief by, in effect, annulling the bank was not required in the first instance to alleged illegal agreement. The proceeding is introduce further evidence to entitle it to a against the Consolidated Glass Company, and verdict in the framed issue, nor did it offer to sustain its right to relief the plaintiff bank further evidence to show the consideration or was not required to invoke the aid of the ilto sustain its title to the stock. The plain- legal transaction. The bank has in its postiff, therefore, had shown by unimpeachable session the certificates of stock, with irrevevidence its right to have the stock transfer- ocable powers of attorney from the owner to red on the books of the defendant corpora- transfer them, and, being thus clothed with tion when the latter made the offer in ques- the indicia of title, it can assert its right to tion, and thus attempted to show that "the demand the transfer without calling to its consideration for the transfer was illegal aid the contract with the owner by which it and against public policy." It is well set- obtained title to the stock. In the trial of the tled that the court will not aid either party issue, therefore, the bank could and did make to enforce an illegal transaction, but will out a case without disclosing an illegal conleave them where it finds them. The plain-tract for the transfer to it of the stock by tiff cannot make it the basis of his claim, nor can the defendant rely upon it to meet the plaintiff's demand. If the plaintiff can establish his claim without the assistance of the illegal contract, the court will sustain the action and permit him to recover. Sauer v. McKees Rocks Sch. Dist., 243 Pa. 294, 90 Atl. 150. In announcing this doctrine, almost a century ago, in Swan v. Scott, 11 Serg. & R. 155, 164, it was said:

"The test whether a demand connected with an illegal transaction is capable of being enforced at law is whether the plaintiff requires the aid of the illegal transaction to establish his case. If a plaintiff cannot open his case without showing that he has broken the law, a court will not assist him, whatever his claims in justice may be upon the defendant; and if the illegality be malum prohibitum only, the plaintiff may recover, unless it be directly on the forbidden

contract."

Applying this rule to the present case, it is clear that neither Camp nor the defendant company can interpose the alleged illegal consideration to defeat the plaintiff's demand for the transfer of the stock on the books of the company. The contract for the transfer of the stock by Camp to the bank was fully executed. Camp assigned and delivered the certificates of stock to the bank, and they were in its possession at the time this proceeding was instituted. The title to the stock had passed from Camp and was vested in the bank. It was no longer an open transaction, but entirely consummated as to both parties. The defendants, therefore, cannot be permitted to attack the legality of the transaction or agreement, as, if successful, it would be tantamount to the court lending its assistance

the owner, and, there being no legal defense shown, the learned court was right in directing a verdict for the plaintiff.

[8] The other assignments are without merit and need no special notice. The act of June 8, 1893 (P. L. 345) confers jurisdiction on the courts of common pleas to issue writs of mandamus to all corporations having their chief place of business within the county, or doing business or having their property in whole or in part within the county, and the appellant contends that the court below did not have authority to compel by mandamus the defendant to transfer the stock in question to the plaintiff. It is sufficient to say that the question was not raised by the defendant or Camp in their pleadings, nor was it considered or determined by the court below, and may therefore be considered as waived. It may be suggested, however, that the petition for the writ avers that the pe titioner "has no specific and adequate remedy at law," to which the return of the corporation made no reply. Camp was granted leave to and did intervene as a defendant under section 9 of the act of 1893, and was authorized, as permitted by the section, to conduct the subsequent proceedings at his own expense. He thereupon became a party defendant, and was in a position to raise the question in the court below whether or not the court could compel by mandamus the transfer of stock of a foreign corporation whose chief place of business was in the county in this state in which the writ was issued. Judgment affirmed.

1. EVIDENCE 126(1)-"RES GESTE"-DECLARATIONS OF INSURED.

In an action upon an accident insurance policy, where it appeared that insured, shortly after brushing his teeth, was seized with violent coughing and choking, his statements to his wife, 15 minutes afterwards, when the choking had ceased and as soon as he was able to speak, that the choking was caused by bristles from his toothbrush becoming lodged in his throat, were admissible as part of the res gestæ. 2. EVIDENCE 118-"RES GESTÆ."

The "res gesta" are the circumstances which are the undesigned incidents of the litigated act and which are admissible when illustrative of such act, are incidents which may be separated from the act by a lapse of time more or less appreciable, and which are necessary incidents in the sense that they are part of the immediate preparations for or emanations of such act, and are not produced by the calculated policy of the actors.

3. EVIDENCE 118-"RES GESTE"-ADMIS

OBJECTIONS.

237(2)-EVIDENCE

In an action on an accident insurance policy, where the court limited the decedent's physician to statements made by the deceased as to his symptoms and sensations, his testimony, beyond such ruling, that deceased had told him that his illness was caused by the lodgment of toothbrush bristles in his throat which remained in the case by reason of defendant's failure to object or to move to strike it out, was not reversible error.

6. TRIAL105(1) OBJECTIONABLE TESTI

MONY-FAILURE TO OBJECT.

Such testimony, to which there was no objection or motion to strike, remained in the case as a part of the testimony.

LING, JJ.

Paul Smith, of Harrisburg, and Herman Berg, Jr., of Carlisle, for appellant. Conrad Hambleton, of Carlisle, and J. H. Reiff, of New Cumberland, for appellee.

MESTREZAT, J. This suit was brought on an accident insurance policy by which the defendant company agreed to pay the plaintiff $7,500 in case of the death of her husband "resulting from bodily injuries, effected directly and independently of all other causes, through external, violent, and accidental

means."

The plaintiff alleges in her statement that her husband, Ben Eby, died on April 13, 1916, and that his death was caused solely by an accident within the terms of the policy; that about 8 o'clock on the morning of that day, while he was brushing his teeth, a number of the bristles of the tooth brush which he was using became loosened from the brush and lodged in his throat, causing violent coughing, choking, vomiting, and strangling, resulting in his death about noon of the same day. The defendant company, in its affidavit of defense, denies these averments, and alleges that the death of the assured resulted directly and exclusively, and independently of any accident, from organic lesions or disease, and not from an accident within the meaning of the policy.

It appears from the testimony of his wife that Eby was apparently in good health prior to the accident, and had not theretofore been in bad health; that about 8 o'clock on the morning of April 13th, he arose from his bed and went into the bathroom, was suddenly seized with violent choking and strangling, became sick, and died about noon of that day. Under objection and exception, the plaintiff introduced testimony to prove the cause of his death, as laid in the statement.

Medical experts, including the attending physician, were called by the plaintiff, and they testified that, in their opinion, Eby's

7. WITNESSES ~286(2)—EXCLUSION OF SUR-death was caused by cerebral hemorrhage, REBUTTAL-DISCRETION OF COURT.

superinduced by coughing, strangling, and vomiting. The physicians called by the defendant, among them being the physician who

In action upon accident insurance policy, where a physician who had performed a post mortem testified in chief that he found the brain in a normal condition, in contradiction of plain-held the post mortem examination tiff's contention that deceased had died from cerebral hemorrhage caused by choking, and where plaintiff called a physician, who testified in rebuttal, it was not an abuse of discretion to refuse to permit defendant's witness to be called in surrebuttal to testify as to matters about which he had testified in chief.

two

months after the death, were of the opinion that death did not result from cerebral hemorrhage but from natural causes; that the symptoms testified to by the attending physician were not those of cerebral hemorrhage; and that such hemorrhages are not caused by

Appeal from Court of Common Pleas, Cum- spasms of coughing. berland County.

The learned trial judge, in an exceptionally Assumpsit on a policy of life insurance by clear charge, submitted to the jury to deterJennie A. Eby against the Travelers' Insur-mine whether: (a) Eby sustained internal ance Company, Hartford, Conn. Verdict for injury from the bristles of the toothbrush

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
102 A.-14