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Marietta's Assignees vs. Frisbee Hardware Company.

they were taken by the defendant, and there now is before us a motion cf the defendant for judgment in its favor non obstante veredicto. Two reasons are assigned in support of the motion, (1) that at the time the goods were retaken by the defendant Mrs. Marietta was insolvent and that the defendant had a right to stop the goods in transit and retake them, and (2) that the plaintiff trustees, never having qualified as such or filed a bond for the faithful compliance with their duties, could not maintain the action. We are of opinion that there is no merit in the first reason assigned. in fact it is not relied on confidently by counsel. The right of stoppage in transit by an unpaid vendor, on the insolvency of the vendee, exists until the goods have arrived at their destination and have passed into the possession or actual control of the vendee. Hays and Black vs. Mouille & Co., 14 Pa., 48. But when the transit is at an end and the delivery is complete the right to retake the goods is gone. Cabeen vs. Campbell, 30 Pa., 254. "The actual delivery to the vendee or his agent, which puts an end to the transitus or state of passage, may be at the vendee's own warehouse, or at a place which he uses as his own though belonging to another, for the deposit of goods, or at a place where he means the goods to remain until a fresh destination if communicated to them by orders from himself." Diehl vs. McCormick, 143 Pa., 584; Fee vs. Emporium Lumber Company, 50 Pa. Superior Ct., 557. In the present case the goods shipped by the vendor had been at the point of destination for a period of more than six months. They had passed into the actual control of the vendee, who had removed many of them from the freight station and disposed of them in the ordinary course of business. The transit was at an end and the delivery of the goods into the control of the purchaser had been completed. The actual delivery was at the freight station of the railroad company, which Mrs. Marietta, with permission from the company, used as her own, her agent and representative having a key to the freight station for the purpose of removing any of the articles in controversy at any time desired. It was there that Mrs. Marietta meant the goods to remain until a fresh destination should be communicated to them by her orders. Therefore, an end had been put to the transit or state of passage of the goods and the defendant company had no right to retake them when it did.

Nor do we consider meritorious the second reason assigned in support of the motion for judgment non obstante veredicto. It is true it has been held that the trustees of an insolvent debtor cannot sustain an action in right of the insolvent without first having given bond. Immel vs. Stoever, 1 P. & W., 262; Power vs. Hollman, 2 Watts, 218; Willis' Lessee vs. Row, 3 Yeates, 520. That, however, was because the acts of assembly then in force expressly directed that trustees appointed thereunder should give bond before acting as such trustees. But that is not the requirement now. Counsel for the defendant bases his argument on the 12th section of the Act of June 4, 1901, P. L. 404, which provides that "the assignee or receiver shall, before entering on the performance of his duties, give bond, with sufficient sureties, to the Commonwealth, for the use and benefit of all parties in interest, in at least double the value of the insolvent's estate." But the Act of 1901, being in effect a bankruptcy act. is suspended by reason of the existence of the federal Bankruptcy Act of July 1, 1898, and does not become operative as to persons and subjects to which the Federal Act applies. Potts vs. Smith Manufacturing Company, 25 Pa. Superior Ct., 206. The 20th section of the Act of June 16, 1836, P. L. 735, relative to proceedings to obtain the discharge of insolvent debtors from confinement or custody, is not applicable here. Therefore we must refer to the Act of June 14, 1836, P. L. 630, for the provision on this subject now in force in cases of this character. After providing for the filing by the assignee or assignees of an

Marietta's Assignees vs. Frisbee Hardware Company.

inventory or schedule of the effects of the assigned estate, within thirty days after the execution of the assignment, and the filing of an appraisement thereof by appraisers appointed by the court, it is provided in the 5th section of that act that "the assignee or assignees, as aforesaid, shall, as soon as such inventory and appraisement shall have been filed, give a bond or bonds, with at least two sufficient sureties, to be approved by one of the judges of the said court, in double the amount of the appraised value of the estate so assigned." Under this provision it was held in Dallam vs. Fitler, 6 W. & S., 323, that a sale of goods by an assignee who had not given bond passed a perfect title, the court there saying: "The giving bond, however, does not seem, in this act of assembly, to be made a condition precedent to the assignee's acting. If an assignee neglects to file an inventory or give bond, the remedy seems to be, under the 11th and 23rd sctions, to cite him before the court to show cause why he should not be dismissed; but there is nothing in the act which requires these preliminaries to be performed before the assignee can be qualified to act. On The contrary, it seems to contemplate that the title and power vest from the execution of the assignment, and that the assignee must be proceeded against for neglect of duty if he omits them." On the same subject it was said by the court in Whitney's Appeal, 22 Pa., 500: "There would be plausibility in the argument of the defendant in error, if it could first be shown that he was not a trustee or an assignee until he had given bond and filed an inventory; but the law is not so. The assignment takes effect upon the day of its execution and delivery, whereas the inventory may be filed within thirty days thereafter, and the bond is to be given as soon as the inventory and appraisement shall be filed." This statement was quoted with approval in the later case of Hechman vs. Messinger, 49 Pa., 465, in which also the case of Dallam vs. Fitler, 6 W. & S., 323, was cited and quoted from with approval. We are of opinion that the action by the

plaintiff trustees was legal.

A motion for a new trial was filed by the defendant, but was not pressed, counsel conceding that the case is to be determined wholly on the questions of law involved.

And now, May 20, 1914, after argument by counsel and upon due consideration, and for the reasons set forth in the opinion herewith filed, the motion for a new trial is overruled and dismissed and a new trial is reinsed, the motion for judgment for the defendant non obstante veredicto is denied, and it is ordered that judgment be entered on the verdict of the Jury upon payment of the jury fee.

Springer's Contested Election.

Elections-Contest-Act of May 19th. 1874-Petitioners for Contest-Qualifications of.

A proceedings to contest an election for tax collector, under the Act of May 18, 1874, the 18th section of which requires the petition in such a case to be signed by at least twenty-five qualified electors who voted at the election contested, and to be verified by at least five of the petitioners, will be quashed where one of the five petitioners who verified the petition resided in one voting district of a township but voted in a different district thereof.

Such an elector was not a qualified voter of the election district wherein he cast his ballot, and therefore was not a qualified elector who voted at the election contested. By Section 1 of Article VIII of the Constitution of Pennsylvania one of the qualifications of an elector is that "he shall have resided in the election district wherein he shall offer to vote at least two months immediately preceding the election."

In a proceeding to contest an election an affidavit of the required number of qualified electors is essentially necessary to give the court jurisdiction.

Motion to quash proceeding. No. 131 September Sessions, 1913. Q. S. Fayette County.

David E. Bane and Sterling, Higbee & Matthews, for petitioners.
George Patterson and Reppert. Sturgis & Morrow, for respondent.

VAN SWEARINGEN, J. June 23, 1914.-Following the election for tax col lector in North Union Township, on November 4, 1913, the election officers made return that Frank Y. Springer had been elected to that office, having received twelve more votes than his nearest competitor, James W. Beatty, and Springer was given a certificate of election. On November 25, 1913, a contest on behalf of Beatty was commenced by petition under the provisions of the Act of May 19, 1874, P. L. 208. Later a motion to quash the proceeding was filed, testimony in support of the reasons assigned therefor was taken, and the matter now is before the court on that motion.

One of the reasons assigned in support of the motion is that the petition for the contest was not verified by five qualified electors who voted for tax collector at the election. That reason we think must be sustained. The 18th section of the Act under which the proceeding was instituted provides that in this class of contests the petition shall be signed by at least twenty-five qualified electors who voted at the election contested, and shall be verified by at least five of the petitioners. By the first section of Article 8, of the Constitution of Pennsylvania, one of the qualifications of an elector is that "he shall have resided in the election district where he shall offer to vote at least two months immediately preceding the election." It was shown by the evidence that Charles Vance, one of the signers of the petition in this case and one of the five persons who made the affidavit to the petition, resided in the fifth voting district of North Union Township but voted in the first district. He was not a qualified voter of the clection district wherein he cast his ballot, and therefore was not a "qualified elector who voted at the election contested." No wrong was intended by Vance. He voted at the place at which he had been accustomed to vote for a number of years. But prior to the election out of which this contest grows the lines of the voting districts of the township, by a proper proceeding in court, had been rearranged, which placed Vance in the fifth district instead of in the first. The newly arranged districts had been finally cstablished, and were matters of public record. for more than five months prior to this election. Vance alleged at the hearing that he had not been informed and did not know of the changed lines of the districts, and for that reason voted at the old polling place in district No. 1.

Springer's Contested Election.

But under the circumstances Vance was not qualified under the law to become one of the signers of the petition and one of the five persons required to make the affidavit thereto. The petition was not verified as required by the Act of Assembly, and the court acquired no jurisdiction of the proceeding. "An affidavit of the required number of qualified electors is essentially necessary to give jurisdiction." Williams vs. Johnson, 16 W. N. C., 223. This objection being fatal to the proceeding it is not necessary to consider the other reasons assigned in support of the motion to quash.

And now, June 23, 1914, for the reasons set forth in the opinion herewith filed, the petition is quashed and the proceeding is dismissed.

Judgment

Ahmed vs. Schwartz and Abrams.

Capias ad satisfaciendum—Jail sentence-Wage earner discharge.

Where a wage earner is arrested upon a capias ad satisfaciendun which is based upon a judgment which would not have been discharged by proceedings under the insolvency law of 1901, he is not entitled to his discharge from a jail sentence upon other grounds of the satisfaction of the writ. Being a wage earner the bankruptcy law does not apply to him and the question of the discharge of the debt for the non-payment of which he was committed must be determined by the terms of the insolvency law of 1901.

In the matter of Application of Jacob Schwartz for Discharge. No. 1491-1914. C. C. Allegheny County.

Sidney J. Watts, for plaintiff.

John R. Frankel, for petitioner.

WAY, P. J., December 14, 1914.-This is an application for the discharge of the petitioner from imprisonment on a writ of capias ad satisfaciendum issued out of this Court, the petitioner having filed a petition in the Common Pleas Court in insolvency under the provisions of the Act of 1901. This petitioner being a wage earner is not subject to being declared an involuntary bankrupt, (See Peckham's Estate, 35 Supr. Ct., 330) consequently as to him the Pennsylvania insolvency law is not suspended by the operation of the United States bankruptcy law. Under the provisions of the State insolvency law, it appearing that the claim for which he is now under arrest would not be discharged by the acceptance of a dividend by the creditors, and it further appearing that the petitioner is under arrest for the collection of a judgment founded on actual force, it is accordingly ordered that the rule heretofore granted by this Court to show cause why the petitioner should not be released from custody be discharged and that the petitioner forthwith surrender himself to the keeper of the Allegheny County Jail, there to be imprisoned under the aforesaid writ of ca. sa. for a period of sixty days from the date of his said surrender.

Municipalities-
Damages.

Argyle vs. Borough of North Braddock.

-Streets

Change of grade

Abutting property owner

Viewers were appointed to assess damages to property owners caused by the raising of a street to a new grade fixed by borough ordinance. A property owner upon an alley which crossed the street sought to have his damages, resulting from the change of grade of the alley to correspond with the grade of the street, fixed by the Board of Viewers appointed to determine the damages to the property owners abutting upon the street. The Viewers reported he was not entitled to damages at this time because there was no change of grade of the alley. It appearing that an ordinance had been passed about the time of changing the grade of the street whereby the grade of the alley had been changed to correspond to the grade of the street and that when the contractor was reconstructing the street he raised the grade of the alley gradually so that at the point of its intersection with the street the grade was the same. This was apparently done with the sanction of the Borough Engineer.

Held that the owner of the lot abutting on the alley was entitled to have ascertained the damages which he had suffered or was likely to suffer by the change of the grade of the alley unless it should clearly appear that what was done by way of filling up the alley was not done by the borough or with its sanction but was the unauthorized act of the contractor.

Sur exceptions to viewers' report. No. 1709 October Term, 1914. C. P. Allegheny County.

Carl C. Baldridge, for plaintiff.

Joseph F. Mayhugh, for defendant.

SHAFER, J., December 15, 1914.-From the viewers' report it appears that the exceptant is the owner of a lot abutting on Copeland Alley in the Borough of North Braddock. In the viewers' report this lot is said to be located at the intersection of Copeland Alley and Copeland Avenue, but in the maps accompanying the report it appears to be seventy-five feet away from the corner. The Borough of North Braddock raised the grade of Copeland Avenue, which does not abut on exceptant's property, some six feet and passed an ordinance for the grading and paving of it. At the same time they passed an ordinance for the change of grade of Copeland Alley, and raised the grade of that alley so that at Copeland Avenue it was of the same grade as the new grade of that avenue. No ordinance or resolution was passed for the actual grading of Copeland Alley, but when the avenue was graded it was of course impossible to go from the alley onto the avenue without raising a part at least of Copeland Alley. The viewers' report states that the contractor raised the level of Copeland Alley so as to afford access to the avenue as an incident to the paving of the avenue. It is stated, however, and not denied, that the engineer of the borough directed the operation and that it was done under the sanction of the borough. The actual change of grade thus made of Copeland alley extended for about 150 feet along the alley and raised the grade considerably in front of the exceptant's property. The exceptant thereupon took proceedings to have his damages by the change of grade of Copeland Alley determined. The viewers reported he was not entitled to any damages at this time because this did not amount to a change of grade of the alley.

If no ordinance had been passed changing the grade of the alley it might well be considered that the filling actually done on the ground was to be treated as merely incidental to the change of grade of the avenue, but as the viewers have found that the street was raised two feet in front of this property, it is evident that the plaintiff must be entitled to some remedy for whatever damage has been done him, either by a view or an action of trespass. If he were to bring an action of trespass for the obstruction of the street, against the borough, he would be met by the fact that the borough was only following out its own ordinance and only raising the alley to the grade which it had established. The borough is not in position to repudiate what the

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