ment: "From the credible evidence in the case I find that the judgment debtor, Jacob Schermer, was not insolvent on the date when the judgment in question was entered, to wit, November 14, 1907." Upon the facts as found, the referee held that the plaintiffs were entitled to judgment de terris for the full amount of the original judgment, with interest. Exceptions which were filed by the defendant Schermer, and terre tenant Miller, to the report of the referee were overruled by the court below, and judgment was entered in accordance with the recommendation of the referee.

The exceptants have appealed.

the case was sent to a referee. From his was afterwards discharged for reasons not finding of facts it appears that the judgment appearing on the record. The referee consought to be revived was entered November | cludes his findings with the following state14, 1907, on a note of that date, for the sum of $1,560.59, with interest, made by Jacob Schermer, and payable one day after date to the Keystone Brewing Company or R. C. Wills. The note represented indebtedness of Schermer to the Brewing Company. At the date of the entry of the judgment Schermer was the owner of the real estate described in the writ of scire facias, which was situated in Lackawanna county, and the præcipe and writ limited the proceedings to that real estate, no personal judgment against Schermer being sought. On January 9, 1908, the property in question was conveyed by Schermer and wife to Nagelberg, and the deed was duly recorded. A contemporaneous agreement was executed by Nagelberg and Schermer, which recited Schermer's financial difficulties, and that Nagelberg was willing to advance money to the creditors of Schermer, and extend a credit to him, provided the real estate of the latter should be transferred to Nagelberg. An accurate account of the moneys expended in the payment of liens was to be kept by Nagelberg, and upon repayment to him of all moneys thus expended, with interest thereon, Schermer was to be entitled to a reconveyance of the property at the end of a year from the date of the deed and agreement. On the same day the deed from Schermer to Nagelberg was executed and recorded, an involuntary petition in bankruptcy was filed against Schermer, and on March 2d, he was adjudicated a bankrupt, and on October 15, 1908, he was discharged from bankruptcy. Among the list of debts scheduled by the bankrupt was the judgment note on which the judgment now sought to be revived was entered. He did not list the property in question in his schedule of assets, but did include the option to purchase the same, which option was afterwards sold by the trustee in bankruptcy for the sum of $25. The trustee in bankruptcy made no attempt to set aside the conveyance to Nagelberg, but demanded from him payment of the balance of the purchase price remaining in his hands which had not been applied to the payment of liens; and Nagelberg thereupon paid over to the trustee the sum of $1,578.09 as such balance. The plaintiffs in this case filed no claim on their judgment against the bankrupt's estate. On March 11, 1909, the real estate in question was conveyed by Nagelberg and wife to Samuel Miller, Jr., named in the writ as terre tenant, and the deed was recorded. When the latter transfer was made, an agreement similar to that between Nagelberg and Schermer was entered into between Miller and Schermer, the latter being given an option to purchase at any time within five years. On January 10, 1908, a rule was granted to show cause why the judgment should not be opened as to all

[1] The first question raised is the effect of the bankruptcy proceedings upon a judgment entered within four months. In section 67, clause "f," U. S. Bankr. Act July 1, 1898, c. 541, 30 Stat. 565 (U. S. Comp. St. 1901, p. 3450), it. is provided "that all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien shall be deemed wholly discharged and released from the same." It will be noticed that under this section, two things are required in order to render a lien void: First. It must have been entered within four months prior to the filing of the petition in bankruptcy. In the present case the judgment was entered within this period. Second. The judgment must have been entered against a person who was insolvent at the date of its entry. In Simpson v. Van Etten (U. S. C. Ct., E. D. Pa.) 108 Fed. 199, 201, Dallas, Circuit Judge, said: "This limitation is one which cannot be disregarded. As was said by Mr. Collier in his work on Bankruptcy (3d Ed. p. 434): 'Not all liens obtained against one afterwards and within four months adjudged bankrupt are deemed null and void. It must appear that the person whose property is subject to the lien was insolvent at the time of the creation of the lien. It is evident a lien might be obtained against one who is adjudged bankrupt within four months thereafter, but who was not insolvent at the time the lien was obtained. The act of bankruptcy and the insolvency might have occurred at some period subsequent to the creation of the lien. If so, the adjudication of bankruptcy would in no way determine whether or not the party was insolvent at the time the lien was created.' The correctness of this view of the effect of clause 'f' is, I think, unquestionable."

[2] Whether or not the bankrupt was insolvent at the time of the entry of the judgment is a question of fact, which has been

that the judgment debtor, Jacob Schermer, was not insolvent when the judgment was entered. It was not therefore void for this reason. If the lien of the judgment on the bankrupt's real estate was valid, and was not avoided by the adjudication in bank- MESTREZAT, POTTER, and MOSCHZISruptcy, then his grantee took the land subject | KER, JJ. to the lien of the judgment, and no action by the trustee in bankruptcy to which the lien creditors were not parties could affect his rights. Whether the trustee elected to take

HALL V. WEST JERSEY & SEASHORE R. covered, as stated by counsel, "those sections

of the two volumes which have beeen identified as the law of New Jersey." The sections which had been identified were section 8 of the Compiled Statutes of the State of New Jersey of 1908, which provides that "every such action shall be brought by and in the names of the personal representatives of such deceased person." The other section identified refers to the duty of the railroad as to bridge crossings, signals, etc.; but no Appeal from Court of Common Pleas, section defining "such action," or pointing Philadelphia County. out what it meant, was offered in evidence,

WORDS QUESTION FOR JURY. complained of are not in themselves libelous Where, in a civil action for libel, the words but are alleged to be so by innuendo, the court should instruct as to whether they are libelous, assuming the innuendo to be true; but where is inferred by innuendo, it is for the jury, not they are of dubious import, and their meaning the court, to say whether they are used in the sense alleged.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 356-364; Dec. Dig. § 123.*]

3. LIBEL AND SLANDer (§ 6*)-Words Libel

OUS PER SE-NEWSPAPER ARTICLE.

and no such section is printed in the record | 2. LIBEL AND SLANDER (§ 123*)—ACTIONABLE of this appeal. It does appear from the testimony of a member of the bar of New Jersey that there is a "statute in the state of New Jersey which stipulates in whom the right of action shall be in case of death, in case of negligence." But we are unable to find in the record any evidence as to what the New Jersey death statute really is. In Pumeroy v. Bruce, 13 Serg. & R. 186, 188, a general rule was stated by Mr. Justice Duncan, as follows: "In order to support any action, the cause of it must be alleged, the plaintiff does not recover according to the probata, but secundum allegata et probata." And in 8 Am. & Eng. Ency. L. (2d Ed.) 880, it is said: "There being no right of action at common law for an injury causing death, the plaintiff in such an action must specifically aver and prove that the laws of the state where the injury occurred permit such an action, unless the action is brought in the state where the injury occurred." A statement to the same effect appears in 5 Ency. Pl. & Pr. 866, where it is said: "But where the action is based on a foreign statute, the existence of such statute must be alleged and proved."

In the present case these requirements have not been met; the statute of New Jersey upon which the right to recover rests was not averred or set forth in the statement, and any evidence as to the statute was therefore inadmissible, in the absence of an amendment to the statement. But even if it be considered that the evidence was properly admitted, it did not sustain the contention of plaintiff, in that it did not tend to prove the existence of a statute of New Jersey giving a substantive remedy in case of death. In making the offer it was apparently assumed that there was such a right of action, but the proof merely went to show that "every such action," without showing what "such action" was, is to be brought in the name of the personal representative of

the deceased.

Because the record fails to show the existence of a substantive right to recover, under the law of New Jersey, and because the statement contains no averment which would admit of evidence to that effect, we sustain the assignments of error, and the judgment is reversed, with a venire facias de novo.

(241 Pa. 367)

MENGEL et al. v. READING EAGLE CO. (Supreme Court of Pennsylvania. June 27,

1913.)

A newspaper article stating that certain loan and investment agents had induced an investor to invest $3,000 in a mortgage coverpersuaded him to pledge the mortgage for a ing property assessed at only $1,750 and had loan of $1,625, and that the investor could secure no satisfaction when he sought to arrange for the payment of the balance of the loan desired by him, and that the mortgage was sold by the pledgee for $1,700 and no benefit derived by the investor therefrom, and that an action of deceit had been brought, was not libelit to the jury to determine whether plaintiff's ous per se, but as to an innuendo properly left honesty was impeached.

[Ed. Note. For other cases, see Libel and Slander, Cent. Dig. §§ 3-16; Dec. Dig. § 6.*] 4. LIBEL AND SLANDER (§ 42*)-PRIVILEGED MATTER-COURT RECOrds.

Proceedings taken from the public records without subjecting the publisher to liability. of courts may be published, though libelous,

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 127-129; Dec. Dig. § 42.*]

5. LIBEL AND SLANDER ( 124*)-LIBEL BY INNUENDO QUESTION FOR JURY-INSTRUC

TIONS.

cation of a newspaper article, it appeared that Where, in an action for the libelous publithe article was not libelous as a matter of law and could be so only by innuendo, the court properly instructed the jury to consider the entire article, including the headlines, and to read it as ordinarily intelligent men and determine therefrom whether it impeached the integrity or honesty of plaintiffs in the business in which they were engaged.

Slander, Cent. Dig. §§ 365-370, 372, 373; Dec. [Ed. Note.-For other cases, see Libel and Dig. § 124.*]

6. LIBEL AND SLANDER (§ 111*)-DocumenTARY EVIDENCE-ADMISSIBILITY.

Where, in an action for the libelous publication of a newspaper article based on matter contained in a præcipe which was part of a court record, it appeared that defendant's reporter had secured a copy of a declaration not filed in the case out of which the præcipe was issued until nearly two weeks after the publication of such article, such declaration was properly admitted in evidence to show how the publication happened to be made and in mitigation of damages.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 315-324; Dec. Dig. §

1. LIBEL AND SLANDER (§ 9*)-ACTIONABLE | 111.*] WORDS-QUESTION OF LAW.

Written or printed words injurious to a person in his calling, profession, or business are libelous as a matter of law where, if standing alone, the common understanding of mankind would apply a libelous meaning to them. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 80-90; Dec. Dig. § 9.*]

Appeal from Court of Common Pleas, Berks County.

Action by J. Hain Mengel and another, etc., against the Reading Eagle Company. From judgment for defendant, plaintiffs appeal. Affirmed.

From the record it appeared that one Kor- Cyrus G. Derr and Ralph H. Mengel, both nacki brought a suit in trespass against of Reading, for appellant. Isaac Hiester, Mengel & Mengel, real estate, loan, and in- of Reading, for appellee. surance agents. After the suit was begun, but before the statement of claim was filed, defendant's reporter went to the office of Kornacki's attorney and secured a copy of the statement of claim which was to be filed and sent it to the editors of the "Reading Eagle," who made certain changes in the statement and then published it.

BROWN, J. The main complaint of the appellants is that the learned trial judge failed to instruct the jury that the publication which led to this action was libelous. If he had so instructed them, he would have erred.

The published article, alleged to be libel- one in his business, calling, trade, or profesous, was as follows:

"Suit for Damages; Alleges Deceit. "Andrew J. Kornacki, through W. B. Bechtel, instituted an action for deceit against Ralph H. Mengel, J. Hain Mengel and the Commercial Trust Company, to recover damages. It is alleged that Mr. Kornacki had $3,000 on deposit in the Reading Trust Company drawing 3 per cent. interest and that the Messrs. Mengel called upon him prior to Oct. 21, last, at least several times, representing the advisability of withdrawing this money and engaging them to invest it in the purchase of a mortgage against property owned by Samuel Davies, 229-231 South Ninth street. He drew his check on the Trust Company for $3,000 to their order and invested it in the mortgage. It is claimed that at that time the property was assessed for city taxation at $1,750. On Dec. 23, 1907, Mr. Kornacki, desiring to borrow $25, obtained the amount from them, when it is alleged they induced him to sign a reassignment of the bond and mortgage to the Commercial Trust Company.

"The total amount loaned and disbursed for Mr. Kornacki by the Messrs. Mengel was $1,625. One hundred and fifty dollars, it is alleged, being still retained by them.

"On May 14, 1908, one day before the maturity of the $3,000, Mr. Kornacki called for the purpose of having them arrange for the payment of the balance then desired by him, but he says he could not secure satisfaction.

"On June 13, 1908, Mengel & Mengel, acting for the Commercial Trust Company, caused the bond and mortgage to be sold at the Reading Real Estate Exchange to Ralph H. Mengel, its attorney, for $1,700. Mr. Kornacki, it is claimed, at no time derived any benefit from the investment, and he says he was charged 6 per cent. interest for the loan."

[1] Written or printed words injurious to sion are libelous; and if, standing alone, "the common understanding of mankind takes hold of the published words and at once, without difficulty or doubt, applies a libelous meaning to them," they are to be so construed as a matter of law. Hayes v. Press Company, 127 Pa. 642, 18 Atl. 331, 5 L. R. A. 643, 14 Am. St. Rep. 874.

[2] If words are not in themselves libelous but are averred to be so by innuendo, it is for the court in civil cases to instruct the jury as to whether they are libelous, assuming the innuendo to be true (Pittock v. O'Niell, 63 Pa. 253, 3 Am. Rep. 544; Collins v. Dispatch Publishing Company, 152 Pa. 187, 25 Atl. 546, 34 Am. St. Rep. 636), but where the words are of dubious import, and their meaning is averred by innuendo, the truth of the innuendo is for a jury; that is, if the words are susceptible of the meaning ascribed to them, it is for a jury, and not for the court, to say whether they were used in that sense (Pittsburgh, Allegheny & Manchester Passenger Railway Co. v. McCurdy, 114 Pa. 554, 8 Atl. 230, 60 Am. Rep. 363; Price v. Conway, 134 Pa. 340, 19 Atl. 687, 8 L. R. A. 193, 19 Am. St. Rep. 704; Collins v. Dispatch Publishing Company, supra; Wallace v. Jameson et al., 179 Pa. 98, 36 Atl. 142). Under the foregoing and many other authorities to the same effect, it was for a jury to say whether the words of which the appellants complain were libelous.

[3] What is there on the face of the publication involved in the present case which makes it libelous per se? Nothing stated in connection with the advice alleged to have been given by the appellants to Kornacki to withdraw his money from the trust company and invest it in a mortgage reflects upon their personal integrity. The property upon which the mortgage was given may have been assessed at only $1,750, but non constat that it was not worth much more and that if did not amply secure the loan. There is no charge that deception of any kind was practiced by the appellants upon Kornacki in inducing him to take the mortgage. Nothing imputing dishonesty or unfair dealing to them is to be found in that part of the publication relating to their negotiation of a loan from the trust company to Kornacki, secured by an assignment of the mortgage. The statement Argued before FELL, C. J., and BROWN, that he called for a settlement but "could not MESTREZAT, STEWART, and MOSCH-secure satisfaction" is, to say the least, very

The court, against the plaintiffs' objection, admitted in evidence the statement of claim in the Kornacki Case, filed eleven days after the publication, which is the basis of the fourth assignment of error. Other facts appear by the opinion of the Supreme Court. Verdict for defendant, and judgment there

on.