make assessments on the stock for defraying the expenses of the association; the assessment on no share to exceed ten ($10) dollars in any one year, and if the lot assigned to a share has not been built upon, occupied or enclosed, the assessment not to exceed six ($6) dollars in any one year. 3. To each share of stock a lot in the association's grounds shall be assigned, the owners having the right to build cottages thereon and to occupy or lease the same, the assessinent of taxes when fixed by the board of managers to be due on or before the fifteenth of July in each year, and to be a charge against the respective lots until paid; all persons in default of payment for thirty (30) days after the assessment becomes due to incur a penalty of three ($3) dollars per lot, to be added to the charge against the lot or lots of the one making default; the treasurer to collect the same by process of law after a default for a period of six (6) months. 4. From the date of the incorporation in the year 1876 there has been held upon the grounds of the defendant a yearly camp 6. The property of the corporation has been in no way diverted from the purpose for which it was intended, and there has been no abandonment of the purpose of its charter, and the property has not been used for secular or worldly purposes further than is authorized by the terms of the charter. CONCLUSIONS OF LAW. 1. The plaintiff's stock is liable for the assessments levied upon it by the board of managers, and the lots assigned to the said stock are liable to and are properly charged with the said assessments. 2. The prayer for an injunction and receiver cannot be granted, and the bill is dismissed at the costs of the plaintiff. For plaintiff, C. F. & E. J. McKenna. For respondent, Thos. J. Ford, Harrison Bock. Court of Common Pleas, WASHINGTON COUNTY. KELLEY v. BRADLEY. meeting of about ten days duration con- Justice of peace-Attachment-Fraud-Act of ducted according to the doctrine and usages of the Methodist Episcopal Church, these meetings being held in a building owned by the association, and being of a religious character and presided over by a minister of that church, and consisting of regular church services, and of prayer meetings, and other religious meetings. In addition regular services have been held in the auditorium on each Sunday with sessions of Sunday school for the members of the association and others, all being conducted in accordance with the usages and doctrines of the said church. 5. The cottages have been occupied by the owners or their tenants during the summer season, and they have occasionally, at their expense, without any charge upon, the association, held in the said auditorium entertainments such as lectures, lantern exhibitions, concerts, and other social and moral entertainments, and occasionally the occupants of the buildings have had outdoor sports of an entirely harmless and innocent character for the amusement and entertainment of the members of the association and their friends. July 12, 1842. On December 11, 1902, the plaintiff in error, then defendant below, sued out writ of certiorari to D. M. Donehoo, Esq., a justice of the peace in and for said county. On the 11th day of February, 1903, plaintiff in error gave notice of rule to take depositions of witnesses, which were taken, both sides being represented by counsel, and the same is before the court along with the proceedings had before the justice. The defendant below, H. A. Kelley, is and has for ten years past been a resident of Washington, Washington county, Pa. He is by occupation and trade a driller of oil and gas wells, with the machinery and drill ing appliances for the proper pursuit of said appears from the affidavit that the intended business belonging to him. At the time of the issuance of the writ of attachment in this case he was and for some time had been drilling wells in Greene county, Pa., when he contracted in his business the debt due the plaintiff below, Bradley. He had loaded his machinery and tools upon the cars at Waynesburg, Greene county, Pa., and was having them shipped by rail to some point in the state of West Virginia. While said machinery and tools were in transit and at the railroad station in Washington, Pa., the home county of the defendant, Kelley, the plaintiff sued out the writ of attachment and attached said machinery and tools in the custody of the railroad company. The first ground of objection to the record of the justice issuing the attachment is that the affidavit of the plaintiff is insufficient to give the justice jurisdiction. His exception cannot be sustained in view of what the affidavit contains and the decisions upon this requirement under the Act of July 12, 1842, P. L. 346. In Spencer v. Bloom, 149 Pa. 106, it is held that an affidavit which charges fraud in general terms, following the language of the Act of July 12, 1842, is sufficient to give a justice of the peace jurisdiction to issue an attachment; see also Bugu v. Smull, 39 Pa. 302, to same effect. In this case now under consideration the affidavit upon which the attachment was issued is more specific than in Gates v. Bloom, 149 Pa. 107, and the other cases cited by counsel for plaintiff in error. It charges the fraud in language of the Act of 1842, which would seem to be sufficient under the authority of Goslin v. Place, 32 Pa. 520. The affiant in his affidavit charges that the removal of the personal property of the defendant to another state by the defendant is about to take place with intent to defraud removal for fraudulent purposes is from the county, as is shown by the averment "from the state" in which the debtor lives, every purpose of the act in using the language, "remove from the county," has been served, and without injury or prejudice to any person or interest. It is true the language is "as deponent verily believes," but he nevertheless makes the direct charge of fraud in language of the act, and this gives the justice jurisdiction of the case. On the exceptions to the manner of service. of writ and inventory of personal property attached on the defendant debtor, they cannot be sustained; the plaintiff in error has shown by the rule to take depositions that the requirements of the act in this particular were observed by the constable, though there might be some doubt of this if it were to be gathered alone from his return. From the character and nature of the goods attached in transit, i. e., boilers, engines, drilling tools, etc., there was such a seizure by the officer and arrangement with the carrier of them that would relieve against an actual manual seizure of them and taking and holding them personally in custody. The defendant was not denied the right to give bond for the goods when attached. Altogether we can find no substantial error or irregularities in this proceeding. The exceptions are therefore all dismissed and the judgment of the justice sustained. And now, July 10, 1903, exceptions dismissed and judgment of justice affirmed. For plaintiff, David Sterrett. For defendant, W. A. H. McIlvaine. [From Harry Russell Myers, Esq., Washington, Pa.] Orphans' Court, WASHINGTON COUNTY. his creditors, the very language of the attach- In re Estate of JOSEPH B. WILLI ment act, except the affiant uses the word state instead of county; but this cannot be held as defeating this attachment, when the removal was clearly from the place of residence of the debtor out of his county and state also, and out of the reach of his creditors and beyond the jurisdiction. When it SON, Deceased. Wills-Gift for maintenance-Security by legatee. A will which provides that "I give and bequeath to my beloved wife the remainder of my property, personal and real, to have and to hold and to use the same or so much thereof as may be necessary for her comfortable maintenance during her natural life," entitles the widow to have the balance, shown by the account, paid over to her without giving security for the protection of remaindermen or residuary legatees. No. 63 Feb. T., 1903. Opinion by TAYLOR, J. 1903. Filed July 10, "for her full use during her lifetime," and at her death, if any left, I desire it "to go to other parties," entitles the widow to receive the money without security or condition. To the same effect are Fisher v. Redsecker, 19 Pa. 113; Pennock's Estate, 20 Pa. 268; Satterthwait's Appeal, 42 Pa. 25. And now, July 10, 1903, the citation is made absolute, and the said Samuel H. The decedent in and by his last will pro- Willison, executor of the will of Joseph B. vided inter alia as follows: "Item. I give and bequeath to my beloved wife, Eliza Willison, the remainder of my property, personal and real, to have and to hold and to use the same, or so much thereof as may be necessary for her comfortable maintenance during her natural life." By the petition the widow seeks to have the balance of $2,264.75 shown by the final account of the executor paid over to her without security. The issue is one of law on the admitted facts, by petition and answer, over the above item quoted from decedent's will. This bequest is not within the Act of February 24, 1834, Sec. 49, nor the Act of May 17, 1871, P. L. 269, prohibiting its payment to the primary legatee without security or entitling the executor to demand security before payment because of remainder to another. The language is in no sense expressive of a trust, but makes the wife the recipient of the remainder of his property, personal and real, to have, hold and use the same or so much thereof as may be necessary for her comfortable maintenance during her natural life. Clearly she may use it all if she deem it necessary, and in that event and with the direction given by testator that she may use the same, or so much thereof as may be necessary for her comfortable maintenance, the necessity for security to protect the executor from claims from remaindermen or for the benefit of residuaries does not exist and the widow takes it without security. The authorities are numerous in support of the above proposition. In Hambright's Appeal, 2 Grant's Cases 320, and a case in point with the one now for decision, in an opinion by the Supreme Court delivered by Justice BLACK, it is held that a devise by a husband to his wife of $3,000 of his estate Willison, deceased, is hereby ordered and directed to pay to Eliza Willison, widow of said decedent, without security, the balance to wit, $2,264.95, shown by his account to be in his hands for distribution. For citation, McCracken & Baker. Contra, Donnans & Brownson. [From Harry Russell Myers, Esq., Washington, Pa.] The Lottery Case. With the exception of the Insular cases no decision of the Supreme Court in recent years has elicited so much comment as that lately handed down in the case of Champion v. Ames, 23 Sup. Ct. 321. The case, which came up on habeas corpus proceedings, decides that section one of the Act of 1895, prohibiting the transmission of lottery tickets between states, is not unconstitutional as applied to one who, for the purpose of disposing of them, causes gambling tickets having a commercial value to be carried from Texas. into California by means of a common carrier engaged in interstate commerce. In considering the case three points are to be borne in mind; first, that unlike the vast majority of cases, the question of the power of a state to control commerce is only indirectly raised; second, that Congress has acted by an express declaration, and not by silence; and third, that the decision of the case necessarily includes a definition of the term "commerce." With respect to the first point it has geen objected that, as this decision gives Congress power to legislate upon the subject, all state legislation will be invalidated, and consequently Congress can force lottery tickets upon a state against its will. This is probably true, but it does not seem much more calamitous than that by mere silence Congress can force liquor down a stat's unwilling throat. Leisy v. Hardin, 135 U. S. 100. With regard to the extent of the direct power of Congress over interstate commerce the minority objected that the power to regulate does not include the power to destroy, and further that Congress has no police power. The first objection seems to be answered by a century's acquiescence in the embargo cases; the second by the argument that the power to regulate should not be cut down merely because a certain act, besides regulating, happens also to protect the morals or health of the community. others, as an independent business, is commerce, irrespective of the purpose to sell or retain the goods which the owner may entertain. . . Hanleg v. Kansas, etc., Ry. Co., 23 Sup. Ct. Rep. 214. In this connection, however, it is imperative to note that a party who merely ships goods subject to interstate commerce does not thereby necessarily become engaged in interstate commerce. Kidd v. Pearson, 128 U. S. 1. In fact, this distinction is really decisive of the principal case. Lottery companies are not engaged in interstate commerce, and are therefore subject to control by the state; lottery tickets when sent beyond the state are subjects of interstate commerce and therefore within the control of Congress. Technically the decision stands for this, and nothing more. Broadly it is another sign of the times. Taken with the rejuvenation of the Sherman Act by the Addyston Pipe Co. case, the recent beef-trust decision, the energy of the government as exemplified by its prosecution of the Northern Securities Company, and the establishment of the Department of Commerce, it marks the tendency towards an obliteration of state lines. and a centralization of power in the federal government.-Harvard Law Review. When Are Attorney's Fees Necessaries? The Toledo Legal News says: The cardinal objection, however, which is made to the principal case, is that the transaction was not "cominerce.' In defining this term Chief Justice MARSHALL had said that it is more than traffic, it is intercourse; and the cases have decided that it includes navigation, and the transportation of persons. Gibbons v. Ogden, 9 Wheat. (U. S. Sup. Ct.); Head Money Cases, 112 U. S. 580. But both text-writers and courts have united in declaring that only when there is a prospective sale, barter, or exchange does the term include the transportation of property. See 2 Story, Const. § 1061, note; Hooper v. Cal., 155 U. S. 648. It may well be doubted whether a broader definition will not eventually prevail. For, if to carry a person for hire is commerce-as it unquestionably is-the same should logically be true of the carriage of property for hire. The mere payment of compensation, irrespective of "A few days Judge Pugsley decided at any sale or exchange, or of the status of the question of some interest, on a motion to transporter as a common carrier, results in a discharge an attachment appealed from a commercial transaction. In the principal justice court. The facts were these: The case, however, it was urged that as these defendant was sued before a justice, and his tickets were not legally vendible in either personal earnings, which were necessary to California or Texas they were not subjects the support of himself and family, were atof commerce, and that they could not be tached. He employed the plaintiff, an made such merely through transportation attorney-at-law, to procure a discharge of the by a carrier. To these arguments there are attachment. Through the services of the two valid replies; first, that traffic in forbid- plaintiff, the attachment was discharged and den articles does exist in fact, and therefore, the defendant received his wages. For these as commerce is a question not of law but of services the plaintiff made a charge of $5, fact, does constitute commerce; and second, which the defendant refused to pay. Therethat the existence of commerce is often de- upon the plaintiff brought this action to termined not so much by the intrinsic nature recover his fee, and obtained an attachment of the thing carried as by the nature of the of the defendant's personal earnings on the instrumentality of carriage. In accord with ground that the claim was for necessaries. this view is a recent statement by the Judge Pugsley sustained the attachment, Supreme Court that "transportation for holding that the services having been rendered in securing for the defendant his personal earnings, which were necessary for the support of himself and family, the claim was for necessaries, within the meaning of the attachment law. It was not decided that attorneys' services are in all cases necessaries. Whether or not they are necessaries depends upon the facts and circumstances of the particular case." LEGITIMATION of a bastard, by the laws of his parents' domicil, through their marriage during his minority, is held, in Fowler v. Fowler (N. C.) 59 L. R. A. 317, to fix his status so that he is legitimate everywhere. WHERE, after full payment of the claims of all unpreferred creditors there remains a surplus, the creditors who have innocently received preferences and whose claims for that reason have been expunged are entitled to such surplus as against the bankrupt; In re Morton, 9 Am. B. R. 508. A JUDGMENT of divorce rendered in a State in which the wife has acquired a separate domicil, and valid there, is declared, in Succession of Benton (La.) 59 L. R. A. 135, to be valid in other jurisdictions. With this case is an extensive note reviewing the authorities on conflict of laws on the subject of divorce. THE bankrupt fails to surrender to his trustee in bankruptcy his life income in a trust estate, created by the will of his mother, but payable to him subject only to its being free from the interference of creditors, will be denied a discharge, even though the life income may have been scheduled; In re Fleishman, 9 Am. B. R. 557. UPON a countermand by the purchaser in a written contract for the sale of goods, and notice before shipment that he will not accept the goods, it is held, in Oklahoma Vinegar Co. v. Carter (Ga.) 59 L. R. A. 122, that the only remedy of the vendor is an aetion to recover damages for the breach of the contract; and he is held to have no right to complete the contract and sue upon open account to recover the price of the goods. FORBIDDING the employment of females in certain establishments more than ten hours. a day is held, in State v. Buchanan (Wash.) 59 L. R. A. 342, not to deprive them uncon. stitutionally of life, liberty, or property. CONFINING the right to act as agent for foregin insurance companies to residents of the state is held, in Cook v. Howland (Vt.) 59 L. R. A. 338, not to be an unconstitutional impairment of the privileges and immunities of citizens of other states. A CONTRACT by the publisher of a newspaper to use it in influencing the choice of delegates and the action of a convention in favor of a certain condidate for public office is held, in Livingston v. Page (Vt.) 59 L. R. A. 336, to be void as contrary to public policy. THE marriage of parties to a parol contract to convey property in consideration of marriage is held, in Hunt v. Hunt (N. Y.) 59 L. R. A. 306, not to take the contract out of the provisions of a statute making void every agreement made upon consideration of marriage, except mutual promises to marry, unless they are in writing, so that the conveyance can be enforced in equity. IT being uncertain whether the trustee in bankruptcy of an insolvent foreign corporation may enforce the contractual liability of a stockholder of the bankrupt for unpaid subscriptions to its stock, until the creditors have established their claims against the corporation by reducing them to judgment, the prosecution of such claims may not be restrained by the bankruptcy court, although the actions to enforce the same were commenced after the proceedings in bankruptcy but before adjudication, but all proceedings upon such judgments will be enjoined, and if a creditor's action to recover the unpaid subscriptions is found necessary, only one will be permitted, for the benefit of all creditors, and the trustee must be made party thereto, and in such case the adjudication in bankruptcy and appointment of a trustee will be a substitute for an execution returned unsatisfied; In re Remington Automobile & Motor Co., 9 Am. B. R. 533. |