Administrator-Account

Shrader's Estate.

-Counsel Fees-Discretion of the Court.

In fixing counsel fees in the settlement of an estate, the court will consider the amount of the estate actually brought into court, and the litigation involved, where the domicile of the decedent is apparently fixed in a foreign jurisdiction by the grant of letters there, and no question of domicile was raised at the audit in the ancillary proceedings.

Sur Exceptions to Counsel Fees. No. 370 September Term, 1915. O. C. Allegheny County.

Chauncey Lobingier and M. M. Edmundson, for accountant.
Thomas M. Marshall, Jr., for exceptant.

MILLER, J., October 13, 1915.-The total fund received by the administrator and accounted for is $1,417.18; credits are claimed for moneys paid for counsel fees and expenses of witnesses in litigation for a total of five hundred dollars.

The record and the testimony show that letters of administration were granted on this decedent's estate in West Virginia, June 1, 1910; that subsequently thereto a will was offered for probate in West Virginia, which was contested on the part of counsel for the accountant in behalf of certain of the decedent's heirs; this litigation seems to have resulted in the grant of letters to the executor named in the will.

In the meanwhile, on June 5, 1911, letters of administration were granted to the present accountant in this county. The only funds received by the accountant were deposits in the Dollar Savings Bank of this city; apparently, the decedent had certain moneys in a bank in Elizabeth, this county, which had been paid to the West Virginia administrator; this accountant brought an action by bill in equity to compel payment here; this litigation, by agreement, resulted in a dismissal of the bill. It appears also that the counsel for accountant made efforts to locate and óbtain possession of certain assets of the decedent, consisting of stocks, payments for which were made through a bank in Ohio. In the will contest proceedings counsel were paid by their individual clients and assert that no part of the charges here are for the litigation touching the validity or probate of the will. No proof was offered here as to the domicile of the decedent. As it appears, however, that letters were first granted in West Virginia and still continue there, the presumption must be that these letters were granted in the belief that West Virginia was her domicile. If so, then, at most, letters in Allegheny County could only have been ancillary and the accountant could only have been concerned in the collection of assets found within this jurisdiction.

Under these circumstances, and taking into account the amount of the estate that is actually brought into court, the charges made for counsel fees are excessive. While the litigation undoubtedly was carried on in good faith by the counsel for the accountant here, apparently much of it arose out of the differences between the different heirs. Primarily some of it could have been avoided if the concession be accepted that the letters of administration first granted in West Virginia fixed the question of residence and made the accountant there responsible for the decedent's entire estate. Accordingly, the first, the second, the third and the fourth exceptions are sustained; the accountant is surcherged with the amounts thereof, to wit: $211.00.

For all the services rendered by counsel as compensation, three hundred dollars is deemed ample.

Elkin vs. Goff.

Property of Defendant

Foreign Attachment
Conveyance-Procedure.

Real Estate-Fraudulent

Plaintiff issued a writ of foreign attachment and summoned garnishees. Renting agents of the real estate involved presented a petition setting forth that one Brown obtained title to said property by deed, which was duly recorded, from Byron H. Goff, who had obtained title to the property from Ellen M. Goff, his mother, defendant in said writ, by a previous conveyance. A rule was granted to show cause why the writ should not be quashed. In answer to this rule, plaintiff alleged that the property had been conveyed by the mother to the son, that the deed was a voluntary conveyance and in fraud of creditors.

Held: That under the Act of 1836, P. L. 580, a writ of foreign attachment could issue only against the property of the defendant. That this property was not now the property of defendant, and that the question as to a fraudulent conveyance could not be tried in this proceeding. Writ quashed.

Foreign attachment.

County.

No. 1178 October Term, 1915. C. P. Allegheny

H. Q. Walker, for plaintiff.

William A. Wilson, for petitioner.

writ of foreign

EVANS, J., October 26, 1915. The plaintiff issued a attachment against the defendant at the above number and term, and the Sheriff returns that he has "attached all rights, title and interest of the defendant in the within described real estate by serving Mrs. Mance, Mary Thomas, John O'Connor, Mrs. Price, Steve Kirby, William Miller, Albert Kurcher, William Howenstein and S. S. Selfedgle, all garnishees, by handing a true and attested copy of the within writ to each of them and making known to them individually the contents thereof and at the same time summoning the said parties as garnishees." Howard Brown & Brother present their petition alleging that they are the renting agents of one Byron H. Goff, who is the owner of the real estate described in the Sheriff's return and foreign attachment; that Brown obtained title to the said property September 21st, 1912, by deed of that date, and recorded on September 30th, 1912, in the Recorder's office of Allegheny County in Deed Book Vol. 1767, page 115; that the writ of foreign attachment has sequestered the rents in the hands of the tenants who refuse to pay the petitioners, and prays that the writ of foreign attachment be quashed, on which a rule to show cause was granted. In answer to the rule the plaintiff alleges that the property was conveyed to Byron H. Goff by the defendant, his mother, and that the deed was a voluntary conveyance and in fraud of creditors.

The Act of 1836, P. L. 580, authorizing the writ of foreign attachment provides that: "A writ of attachment, in the form aforesaid, may be issued against the real or personal estate of any person not residing within this Commonwealth, and not being within the county in which such writ shall issue, at the time of the issuing thereof."

Assuming for the purpose of this case that the conveyance by which Byron H. Goff got title to this property was a voluntary conveyance and in fraud of creditors, yet the property is not the property of the defendant, and it is only the property of the defendant that can be attached. As between Ellen M. Goff and Byron H. Goff, the land belongs to him, and this is not a proceeding to try the question as to whether the conveyance from Ellen M. Goff to Byron H. Goff was in fraud of creditors. It may be this is a perfectly valuable bona fide conveyance, and if so, proceedings such as this would tie up the property of the petitioner for an indefinite period of time until the controversy between the plaintiff and the defendant could be settled. The plaintiff has a remedy to determine the question whether this is a conveyance in fraud of creditors or not, and he should pursue that remedy.

Elkin vs. Goff.

ORDER.

And now, October 26, 1915, the rule heretofore granted on the plaintiff why writ of foreign attachment should not be quashed is made absolute. To which order counsel for defendant excepts. Exceptions allowed and bill sealed.

Gregor vs. Nagode.

Certiorari-Justice of the Peace-Trespass-Consequential Damages.

Plaintiff recovered judgment before a Justice of the Peace for damages resulting from the construction of a sewer by the defendant, which caused the water to flow off the township road onto plaintiff's land, thereby injuring his crops. On certiorari that the Justice had no jurisdiction, the damages being consequential,

Held: That if defendant constructed a sewer as alleged, it was as direct an act of trespass as though he had hauled the water there in a wagon and dumped it onto the land of the plaintiff. Judgment affirmed.

Certiorari from Justice of the Peace. No. 923 October Term, 1915. C. P. Allegheny County.

A. H. Mercer, for plaintiff in error.

Franklin A. Ammon, for defendant in error.

EVANS, J., October 25, 1915. This is a certiorari directed to A. W. McMillen, Esq.. Justice of the Peace, to bring up the record of the judgment of Frank Nagode against John Gregor. The record of the Justice of the Peace discloses that the plaintiff brings his suit to recover damages resulting from the construction of a sewer by the defendant which caused the water to flow off the township road onto the plaintiff's land, thereby injuring his growing crops.

It is urged by the plaintiff in error that the damages in this case are consequential and therefore the magistrate had no jurisdiction. I am unable to agree with the position of plaintiff in error. If the defendant in the judgment constructed a sewer and by means of that sewer carried water onto the plaintiff's land damaging his crops, it was as direct an act of trespass as though he had hauled the water there in a wagon and dumped it onto the land of the plaintiff.

ORDER.

And now, October 25, 1915, the judgment of the Justice of the Peace in the above entitled case is affirmed.

Commonwealth ex rel. Travis vs. Cobban Company et al.

Quo Warranto-Service-Return.

Service of a writ of quo warranto will be set aside, where the Sheriff's return shows that ten full days did not elapse between the date of service and the return day of the writ.

Quo warranto. No. 562 October Term, 1915. C. P. Allegheny County.

McVicar, Hazlett & Gardner, for plaintiff.

Wallace & Watson, for defendants.

EVANS, J., October 20, 1915. On July 29, 1915, the relator filed a suggestion for a writ of quo warranto, which writ was issued apparently on the thirtieth day of July, 1915, returnable to August 9, 1915. Both those dates are scratched out on the original paper and in place is inserted the 23rd day of August as the date of the issuing of the writ and September 6, 1915, as the date of the return of the writ. On August 9th there appears an order of the court as follows: "And now, to wit, August 9, 1915, the return day of the writ in the above entitled case is extended to August 23rd, 1915." On August 23, 1915, there is filed an order of court as follows: "And now, August 23rd, 1915, on motion of attorneys for relator, the return day for the writ in the above entitled case is hereby extended to September 6th, 1915." On the back of the writ is the return of the Sheriff, which is as follows: "Served, August 28, 1915, on Walter H. Cobban, an officer of the Walter H. Cobban Company, defendant, and Walter H. Cobban, individually, by handing true and attested copies of the within writ together with true and correct copies of the order of court to him and making known to him the contents thereof. Served, August 30, 1915, on L. A. Burnett, an officer of the Walter H. Cobban Company, defendant, by handing a true and attested copy of the within writ to him and making known to him the contents thereof. 'N. E. I. as to J. Sherman Campbell, an officer of above named corporation."

If we assume that what appears to be a very irregular proceeding in the extension of return days to be valid, we have this writ served upon two of the defendants on the 28th of August, and another one upon the 30th of August, returnable the 6th of September. The first service was only nine days before the return day, and the second was served seven days before the return day. On September 7th, the defendants appeared and moved the court to set aside the service of the writ and the return of the service for the reason that the service of the writ on the 28th of August was ineffective for the reason that ten full days did not elapse between the date of service and the return day of the writ. That reason appears to be good and the service of the writ is set aside.

Commonwealth vs. Miller.

Misdemeanor- -Pollution of Streams- -Coal Mines-Province of CourtBurden of Proof-Act of May 1, 1909, P. L. 353, Section 16.

On appeal from a judgment of a Justice of the Peace on an information by a fish commissioner charging defendant with polluting a stream containing fish by permitting water from a coal mine to flow into the creek, the information failed to alleged that this stream contained fish or fish food prior to the time the offense was alleged to have been committed. Testimony on this point was had at the trial, but it was contradictory.

Held: That as the purpose of the Act of May 1, 1909, P. L. 353, Section 16, was to protect food fish, the defect in the information was fatal and could not be supplied by testimony, and that more must be charged in the information than that the alleged offense arose from the discharge of water from coal mines, as nothing is said in the Act about coal mines. The Act of June 27, 1913, P. L. 640, prohibits the deposit of coal, culm or refuse from coal mines, but excepts water pumped or flowing therefrom and would not apply.

In this case, a trial was had in the Quarter Sessions on a criminal offense without a jury.

Held: It was for the Court to pass upon the weight of the evidence and credibility of witnesses, and where the prosecution failed to establish the guilt of the defendant beyond a reasonable doubt, it was the duty of the Court to acquit.

The defendant was the assistant superintendent of a coal mine and the information had been made the day following his appointment.

Held: In the absence of any evidence that he had done some act to pollute the stream by which he could be held criminally liable, there could be no conviction.

The prosecution offered testimony that the defendant could have adopted measures to have prevented the pollution complained of. Defendant offered evidence in rebuttal.

Held: That when the prosecution assumed this burden, it was bound to prove its contention like any other fact, and there could be no conviction when the proof did not bring it clearly within the proviso in the 16th Section of the Act of 1909.

Trespass. No. 45 December Sessions, 1914. Q. S. Somerset County.

l'irgil R. Saylor, District Attorney, Ernest O. Kooser and Francis J. Kooser, for plaintiff.

Percy Allan Rose, Charles F. Uhl, Jr. and Charles Ealy, for defendant.

RUPPEL, P J., May 17, 1915.-An information was made against the defendant charging him with polluting a stream under the 16th section of the Act of 1st May, 1909, P. L. 353. Several witnesses were called before the Justice of the Peace on behalf of the Commonwealth, but no evidence was submitted by the defendant, and the justice found the defendant guilty and imposed a find of $100.00 and costs. From this conviction and sentence an appeal was taken to the Court of Quarter Sessions, and the case was tried without a jury. A large number of witnesses were heard on part of the Commonwealth and also on behalf of the defendant. The undisputed facts are: That Dark Shade Creek in Shade Township, Somerset County, was inhabited by fish prior to the year 1914, and that trout, catfish and other varieties were frequently caught in the stream from McGregor's Dam down to its confluence with Clear Shade, some miles below; that in the year 1912, the Loyalhanna Coal and Coke Company opened mines and commenced the mining and removal of coal from the B or Miller seam, at a point almost opposite McGregor's Dam, and the drainage from this mine, which was a drift mine, flowed into the Shade Creek just below the McGregor Dam. Joseph Patterson had been the superintendent of the coal company since it commenced its operation in this field, and a Mr. Severn was his assistant and on the ground during the whole of the time until the summer of 1914. On the 17th of August, 1914, the defendant, Archibald Miller, succeeded Mr.