McClure Co. vs. Washington Tin Plate Co. The purpose, of course, in calling their attention to the other agreements which had been proposed, at least, and had been discussed among the parties, was to caution that that was not the question in the case. In support of its motion for judgment non obstante veredicto, the defendant's counsel urges that the Court should have given binding instructions for the defendant because of the principles set forth in the fifth point presented by the defendant and which was affirmed by the Court. There is no trouble with the law submitted in the fifth point presented by the defendant; the only trouble with that point is the evidence to sustain it. I was in great doubts at the time and am in greater doubt now whether I should have affirmed that point for the reason that there was no evidence to sustain the proposition. The question of the McClure Company claim against the Washington Tin Plate Company admittedly was not discussed in the negotiations between the representative of the Tin Plate Company and the treasurer of the McClure Company in the efforts of the Tin Plate Company to get some settlement for the merchandise shipped, and the treasurer of the McClure Company stated he did not know anything about the condition of the books of the McClure Company when he wrote the letters to the Tin Plate Company enclosing the notes in settlement of the account for tin plate purchased. While the conduct of the treasurer of the McClure Company in this regard might be evidence of the fact that the McClure Company had accepted O'Connor as its debtor and released the Tin Plate Company, it was not conclusive on that subject and, therefore, defendant is not entitled to judgment non obstante veredicto. Duties of School Teachers. Public Schools-Directors-Books and reading. School Directors under the School Code have a legal right to require teachers in their employ to do professional reading, and to satisfy themselves by a written or oral test that said teachers have carefully and intelligently read the prescribed book or books. Directors before adopting any course of reading should submit it to the State Superintendent of Public Instruction. "Has either the Board of School Directors or the District Superintendent the legal right to require the teachers in their employ to do professional reading, and to satisfy themselves by a written or oral test that said teachers have carefully and intelligently read the prescribed book or books?" The District Superintendent has the right to see and it is his duty “to see that in every district there shall be taught the several branches required by this Act (School Code of 1911) as well as such other branches as the board of school directors may require" (Sec. 1149, Act of May 18, 1911-School Code, P. L. 371); and "in case the board of school directors shall fail to provide competent teachers to teach the several branches required in this Act it shall be the duty of the district superintendent to notify the board of school directors, in writing, of its neglect and in case provision is not made forthwith for teaching the branches aforesaid to report such fact to the Su Duties of School Teachers. perintendent of Public Instruction, whose duty it shall be to withhold any order for such district's share of the State appropriation until the County or district superintendent shall notify him that competent teachers of the branches aforesaid have been employed. And in case of neglect or refusal by the board of school directors to employ such competent teachers as aforesaid for one month after receiving notice from the county or district superintendent that such teachers have not been provided, such district shall forfeit absolutely its whole share of the State appropriation for the year." (Sec. 1150 of Act of May 18, 1911, P. L. 371.) Under these provisions, and without these, the board of directors and the district superintendent would have the right, and it would be their duty, to require of the teachers such professional (the profession of teaching), reading and study as would enable them to maintain proper efficiency for the service. Any other conclusion would be a confession that teaching was the one profession or science incapable of progress or development; of course the requirement of professional reading must be reasonable and appropriate to the character of the teaching required. Sufficient time should be allowed for such reading and study before an examination thereabout, and such examination should be conducted with absolute fairness and impartiality, and if in writing, the questions should be plainly put and easily understood and the teachers should be known by numbers and not by names. I can appreciate the possible distrust of teachers in such a requirement and the examination thereon. It could very easily be made the means of injustice to those whom the board or the district superintendent might desire to discharge, irrespective of competency, which should be the only test, though I confess I would be slow to believe that in the profession of teaching, one so vital to the welfare of a people, there should be any motive of those having to do with the instruction of youth that was not absolutely altruistic. To summarize, subject to the above limitations, "the board of school directors or the district superintendent have the legal right to require the teachers in their employ to do professional reading, and to satisfy themselves by a written or oral test that said teachers have carefully and intelligently read the prescribed book or books." I beg to suggest that in the event of any case. of dispute between the board or the district superintendent and the teachers as to the kind of reading and examinations, it would not be amiss in the interests of that harmony, which should prevail if the interests of the children are to be first considered, that the course of reading, etc., should first be submitted to and approved by you, etc. Very truly yours, FRANCIS SHUNK BROWN, Certiorari-Attachment Magee vs. Duff. Notice--Return-Act of 1845. Judgment of Justice of the Peace will not be reversed where summons in assumpsit was issued January 9, returnable January 14. The five days required by statute are to be computed by excluding the first and including the last. Where attachment proceedings were started before judgment was entered before Justice of the Peace and the attachment dissolved, notice to garnishee was not required, and another attachment proceedings could be begun afterward and would be valid under the Act of 1845, Section 3. Certiorari. No. 325 April Term, 1915. C. P. Allegheny County. W. Heber Dithrich, for plaintiff in error. CARPENTER, J., March 10, 1915. The record discloses a somewhat unusual state of facts. It appears that a Summons in Assumpsit was issued January 9, 1915, returnable January 14th, 1915, between the hours of six and seven o'clock, P. M. It appears also that on the same day Mrs. Duff made affidavit that defendant owed her $20.00 for four weeks board and thereupon an attachment was issued and the Duquesne Steel Foundry Company summoned as Garnishee. The record further shows that on the 13th day of January, the defendant (plaintiff in error) made the necessary affidavit to secure a writ of Certiorari and that the writ issued January 14th, and was served the same day upon the Justice of the Peace. When the affidavit for Certiorari was made, and when the writ issued the following day there were two proceedings pending before the Justice. The writ was served. The record does not show what hour the service took place, but the Justice in his answer in response to demand for fuller return says it was served before any judgment was entered. The transcript of the attachment shows that it was dismissed. The ⚫ answer of the Justice shows that the suit in Assumpsit and the Attachment issued the same day were independent of each other though both were for⚫ the purpose of collecting the debt. So far as the record of the suit in assumpsit is concerned we see no error that would justify a reversal. It appears that the summons was issued January 9th, return January 14th, between the hours of 6 and 7 o'clock P. M. It was duly served, defendant did not appear, plaintiff was sworn and judgment publicly entered. Execution was issued February 4th, 1915, and return of "No goods," etc., made, and on the 5th of February an Attachment Execution was issued and the Duquesne Steel and Foundry Company summoned as Garnishee. The attachment was returnable February 11th. The Garnishee was required to make answer to interrogatories within eight days after service and did so, admitting that it owed defendant $22.00. Judgment was entered and on February 16th execution was issued against the Garnishee and the money paid to the Constable. As stated above, the Justice dismissed the first attachment and it is not before us. The first three specifications of error relate to the first attachment and for the reason stated need not be discussed. The fourth specification cannot be sustained. Our attention has not been called to any law requiring the Justice to notify a garnishee that an attachment has been dissolved. The fifth specification is scarcely consistent with the averments of the affidavit filed by defendant when sueing out his writ of Certiorari. Counsel for Plaintiff in Error cites Goldman vs. Teitlebaum, 10 D. R. 53, in support of his contention that a summons issued January 9th, returnable January 14th, is not legal. But in the case of Justice vs. Meeker, 30 Magee vs. Duff. Superior Court 207, the summons was issued on the 17th returnable on the 22nd of the same month and the judgment was held valid. We assume that the attachment execution was issued under the provisions of the Act of 1945, Section 3. The judgment is affirmed. Osterling et al. vs. The Minsinger Company. Statute of Limitations-Payment- Contract-Question for Jury. A check on account made within six years before suit brought would toll the statute of limitations, but when it was claimed to have been in full payment, it was a question for the jury, taken with the other evidence. Sur motion for judgment non obstante veredicto, and for a new trial. No. 2480 April Term, 1913. C. P. Allegheny County. J. M. Russell, for plaintiffs. Joseph C. Bily, for defendant. SHAFER, P. J., April 17, 1915.-The action is for a balance alleged to be due on a book account for stone sold by plaintiff to defendant. The defense was that the whole amount of stone sued for was not delivered as claimed, and that a check had been given by the defendant and received by the plaintiff in full payment of the claim according to defendant's measurement, and the statute of limitations. As to the dispute about the actual measurement of the stone, there was testimony from which the jury might have found in favor of either party. The circumstances of the giving of the check which was claimed to be in full payment were also in dispute, and the question whether the check was so taken was a proper one for the jury. As to the statute of limitations, it was claimed by the plaintiff that the payment made by the check which was within six years of the bringing of the suit, being a payment on account, tolled the statute. There can be no doubt that if it was paid admittedly on account, it would have that effect. The defendant claimed that he made known to the plaintiff that the check was all he intended to pay. The plaintiff gave testimony tending to show that although the defendant made this assertion at the time, yet he afterwards made the statement he made this payment on account. This together with the evidence offered as to bills afterwards being frequently sent by the plaintiff to the defendant and not responded to, thereby making an account stated, as the plaintiff claimed, was submitted to the jury, on the question of whether the statute was tolled or not, and they found this question also in favor of the plaintiff. As to the motion for judgment non obstante veredicto, we cannot see how the case could have been taken from the jury; and as to the motion for a new trial, we are of opinion that the verdict was warranted by the evidence. The motions are therefore both refused. Partnership Dissolution creditors-Exemption. In the Matter of Wolk. -Priority of claims-Individual and partnership A and B being in partnership, A sold out his interest to B, and B subsequently went into bankruptcy. Upon proof of claims by creditors of the partnerships and individual creditors of B, it was held that the individual creditors should have priority in payment out of all the assets of B, including the former partnership property. By reason of the sale from A to B, the partnership was dissolved, the property vested individually in B and the right of priority of the partnership creditors for payment out of this property had been lost. As the property was that of B individually, he was entitled to claim the exemption therefrom. No. 7078 in Bankruptcy. U. S. District Court, Western District of Pennsylvania. Morris, Walker & Allen, for trustee. Alpern & Seder and A. C. Teplitz, for claimants. THOMSON, J., March 13, 1915.-The facts necessary for the determination of the legal questions certified by the referee are within narrow limits. A partnership existed between Jacob Wolk and Al Isaacs, under the firm name of Wolk & Company. At the hearing before the referee counsel for the respective parties stipulated as follows: "It is admitted by counsel representing both sides that up until January 8, 1914, Wolk & Company was a sub-sisting co-partnership between Jacob Wolk and Al Isaacs, and on that date, by agreement of Isaacs and Wolk, Isaacs sold his interest in the partnership to Jacob Wolk for the sum of $500.00, and that for said $500.00 he received from said Wolk two notes of $250.00 each, dated January 7, 1914, at four months and eight months respectively. These notes were discounted by J. N. Wolk on January 19, 1914. "It is admitted, that there is no evidence that this transaction, whereby it is claimed the partnership was dissolved, was intended in any way to defraud the creditors of the partnership. "It does not appear whether the firm of Wolk & Co., at the time of the alleged dissolution of the firm was solvent or insolvent. It is admitted, that subsequently to the dissolution of the partnership Jacob Wolk individually purchased goods and merchandise to the extent of $175.00 for his business." This stipulation of the parties simplifies the situation, and I think makes the questions certified not difficult of solution. The sale by Isaacs to Wolk being made in good faith without any intention to defraud the creditors of Wolk & Company, and there being no evidence that the firm was at the time of the sale insolvent, the sale worked a dissolution of the firm, vested title to the property in Wolk, which thereupon became no longer partnership, but individual, property. The claims of J. N. Wolk, A. Wolk, Sol Wolk and J. M. Wolk, which were allowed by the referee, were the individual debts of Jacob Wolk, created after the dissolution of the firm, and after the property had ceased to be partnership property, and had become the individual property of Wolk. Under these circumstances, the individaul creditors of Wolk would be entitled to priority over the creditors of the firm. While the partnership exists the right of each partner, as between themselves, in the property of the firm, is his interest in the surplus after the payment of the partnership debts. In the distribution of partnership funds, the members of the firm have a right to insist that the partnership debts be first paid out of that fund, as there is a legal liability resting on each member |