York Legal Record.

Vol. XVIII.

THURSDAY, JULY 7, 1904.

No. 6.

standing between the counsel. The rule of Court requiring all agreements between attorneys, touching the business of the Court, to be in writing, was designed to insure certainty, to prevent unseemly controversies between counsel as to the existence or the terms of an alleged oral agreement, and to avoid the necessity for a decision of such controversies that might reflect on the credibility or good faith of an attorney. Ef fect may be given to an oral agreement when it is admitted, but not when it is questioned. Here, since the counsel disagree as to its import, the alleged oral stipulation or understanding must, under the rule of Court, "be considered as of no validity," and therefore non-existent.

thereafter: 2

ery by the plaintiff to the defendant, November 25, 1898, at defendant's special instance and request, of 3,580 linear feet of Manila transmission rope, weighing 4,225 pounds, at the rate of thirteen cents a pound, amount to $589.25 payable, under the terms of sale, in sixty days By the plaintiff's servant between the time of sale and January 16, 1899, at defendant's special instance and request, and upon its agreement to pay the expense thereof, putting said rope on a drive installed by defendant, at the expense of $27 56; and it demands, as justly payable to it by the defendant, $549.25, with interest from January 24, 1899, and $27 56, with interest from January 16, 1899. These matters are expressed with due conciseness, and embrace all the statutory essentials. In brief, the declaration sets forth the sale and delivery, by the plaintiff to the defendant, at a given date, of a certain As the plaintiff's right to summary quantity of merchandise, at a specific judgment is conditioned on a declaration price, payable at a fixed time; the persufficient in law, it remains to consider formance of a certain service, upon the the defendant's objections on this point.

Under the Acts of 25 May, 1887, section 3 (P. L. 271) and 21 March, 1806, section 5 (P. L. 558 4 Sm. 328), the declaration must consist of:

I. A concise statement of the plaintiff's demand; and, in assumpsit, must partic. ularly specify;

2. The date of the promise, book ac count, note, bond, penal or single bill, or all or any of them, on which the demand is founded;

3. The whole amount that the plaintiff believes is justly due him from the defendant; and be

4. Accompanied by copies of all notes, contracts, book entries, or a particular reference to the records of any Court within the county in which the action is brought, if any, upon which the plaintiff's claim is founded; and a particular refer ence to such record, or to the record of any deed or mortgage, or other instrument of writing, recorded in such county, shall be sufficient in lieu of the copy thereof.

defendant's agreement to pay the expense thereof, with the date of the performance and the expense incurred; and the whole amount that the plaintiff believes is justly due it from the defendant. It is not necessary to state whether a contract declared on is oral or written, even though the law requires it to be in writing; and a statement of its terms is sufficient to show whether the defendant's promise is express or implied.

The contention that the omission to lay a venue is a material defect overlooks some established rules of pleading, As this objection is wholly technical, it is sufficient to meet it on technical grounds. At common law, an action was triable

But

only in the county in which it arose, and the purpose of laying a venue was to indicate the vicinage from which the jurors. were to be summoned and the county in which the issue was to be tried. when the cause of action, alleged in the declaration, was confessed by the defendant's default in not pleading, there was no issue to be tried, and a venue was unnecessary; hence an omission to lay a venue was cured by this default; Gould on Pleading, III, 155-157. The objecIn the present case, the declaration set tion may also be disposed of on substanforth the plaintiff's demand as founded tial grounds. In transitory actions the on two particulars: 1. A sale and deliv-venue has long ceased to have any rela

Potts' Appeal.

vent, under the Act of June 4, 1901, P. L. 404. Appellant, a judgment creditor of an insolissued an execution against the insolvent. The Court below set it aside. HELD, to have been error.

The Act of June 4, 1901, P. L. 404, did not become operative because of the existence of the bankruptcy law of the United States, of July I, 1898, as to the persons and subjects to which the latter act applies.

tion to the locality in which the action arose, or to serve any real purpose in the Insolvency-Act of June 4, 1901-Nacause. A transitory action, wherever it tional Bankrupt Law may have arisen, is triable in any county in which it may be brought, by a jury drawn from the body of that county, and for the declaration to indicate this county is clearly superfluous. An averment that requires no proof, is not traversable, and is wholly immaterial, is not essential to concise statement of the plaintiff's demand; and our legislation in the direction of simplicity in pleading while specifically defining the requisites of a declaration, has not included among them the fiction of averring the action to have arisen in the county in which it is brought. Even at common law, an immaterial averment, which may be separated from the principal fact without prejudice to the substantive cause of action, requires no proof; 1 P. & W. 387. Nor is there anything in the issue from which a necessity for this averment is to be implied. As eliminated from the statutory requirements, upon the maxim, "expressio unis est exclusio alterius," and

as a dead leaf on the tree of technicalities

in pleading, it may well be allowed to drop from our present system, with other superfluous phrases.

The objections relative to the assignment of the claim to the use plaintiff are without foundation. It is unnecessary to show, in the declaration, the title of an equitable plaintiff, or to indicate his interest otherwise than by marking the suit to his use. The right to recover is founded on the claim of the legal plaintiff, and whether the right remains in him or has passed to an assignee is immaterial. The cause is to be tried without relation to an equitable plaintiff, unless an issue is raised between such plaintiff and the defendant; as when a defense is set up which, while good against the legal plain tiff, cannot be made against the equitable plaintiff, or the defendant alleges a de fense or a counter claim against the latter which would not avail against the former; Berks v. Levan, 86 Pa. 560; Crawford v. Stewart, 38 Pa. 34.

The power of the general government to pass a bankruptcy law is not exclusive, and where Congress has not legislated on the subject the State insolvent law is operative.

When Congress has legislated on the subject by the enactment of a bankrupt law the power of the State is controlled and suspended. And this is so although no proceedings were instituted under the National law.

Appeal by plaintiff from the decree of the Court of Common Pleas of Franklin County.

May 10, 1904. HENDERSON, J.-The appeal in this case raises the question whether the Act of June 4, 1901, P. L. 404, relative to insolvency, etc., is suspended by reason of the existence of the Act of Congress of July 1, 1898, establishing a general law in relation to bankruptcies.

The Constitution of the United States gives to Congress the power to establish uniform laws on the subject of bankruptcies throughout the United States and the Act of Congress of July 1, 1898, was in force at the time of the enactment of the Pennsylvania statute of June 4, 1901. The latter Act is substantially a bankrupt act and resembles in many of its features the United States statute relating to the same subject.

It is not contended that the power vested in Congress by the Constitution of the United States is exclusive of that of the states and that there remains no power in the latter to legislate upon the subject. It is an established doctrine that the powers granted to Congress are only exclusive of the powers upon the same subject existing in the states, when an exclusive power is expressly delegated Nothing in the assignment of error re- to Congress or there is such incompatiquires further discussion.

The order making absolute the rule to strike off the judgment is reversed, and the rule is discharged.

bility in the exercise of it by the states as to produce the necessary conclusion that it is exclusive in congress. Where there is no such exclusive grant to Con

gress or such incompatibility concurrent bankrupt act. The opinion of the Court power remains with the states. Where, in The Farmers and Mechanics' Bank v. however, in the case of concurrent pow Smith, 3 S. & R 67, is in substantial acers Congress has exercised its powers on cord with the cases above cited. In the a given subject, the control of the state latter case it was contended that the auover that subject is bv such action of thority of Congress to establish uniform Congress prohibited; 1 Kent's Com. 390. laws on the subject of bankruptcy is exThe Federal Courts have applied this clusive and that no state, therefore, has rule to the subject of bankruptcies and power to pass a law on that subject. have held that when Congress has legis Chief Justice Tilghman, in delivering lated upon the subject by the enactment the opinion of the Court said "There of a bankrupt law the power of the state would be a great strength in this arguis controlled and suspended. This doc ment if Congress had exercised their trine was clearly set forth by Chief Jus- power by passing a bankrupt law because tice Marshall in Sturges v. Crowinshield, then the uniformity which they were au4 Wheat. 120, and has been declared or thorized to establish would be broken in assumed in numerous subsequent cases. upon by the act of an individual state " The existence of the power in Congress It was decided, however, that the power does not exclude the authority of the of the general government was not exclustates over the same subject but when sive and that as Congress had not legisthis power is exercised by Congress such lated upon the subject the state insolvent exercise is held to be incompatible with the law was operative. The same Judge, in exercise of the same power by the states discussing the subject of the concurrent In the language of the distinguished powers of the United States and the sevJudge above named, "it is not the right eral states, in Moore v. Houston, 3 S. & to establish these uniform laws, but their R. 178, said "the subject of a state bankactual establishment which is inconsistent rupt law came very lately before this with the partial rights of the states." Court in the case of The Farmers and decided that the law of Pennsylvania Mechanics' Bank v. Smith; and it was was valid because the United States had

The authority of this case was recognized in Ogden v. Saunders, 12 Wheat. 213. One of the questions considered in Butler v. Goreley, 146 U. S. 303, was no existing law on the subject." whether, after the repeal of the United It was held by the Supreme Court of States Bankrupt Act of 1867, the insol- Massachusetts in Griswold v. Pratt, 9 vency statute of Massachusetts should Met. 16, that the United States Bankrupt have been re-enacted in order to become Act of 1841 suspended the operation of operative. Upon this point the Court the insolvent laws of that State as to perheld that "The repeal of the Bankruptcy sons and property subject to that law. Act of the United States removed an ob- although no proceedings were instituted stacle to the operation of the insolvency under the Bankrupt Act, and that the laws of the State and this rendered un- effect of the Bankrupt Law was necessanecessary their re-enactment." In Tua rily to suspend the operation of any conv. Carrier, 117 U. S. 210, the Court held flicting state law. The same doctrine is that the enactment of an insolvent law declared in Parmeter Manufacturing Co. by the State of Louisiana during the life v. Hamilton et al., 172 Mass. 178, in of the national bankrupt act would which it was held that the language of have been merely tantamount to a provi- the national bankrupt act indicates that sion that the former should take effect it was the purpose of Congress that the upon the repeal of the latter." It was new system of bankruptcy should superfurther held that by the repeal of the sede all state laws in regard to insolbankrupt act the insolvent law of the vency. The same conclusion was reached State became valid and operative. To by the Supreme Court of Connecticut the came effect is the opinion of Judge in Ketchum v. McNamara, 50 L R. A. Story in ex parte Lucius Eames, 2 Storey 641. In Harbaugh v. Costello, 184 Ill. Rep. 322, in which it was decided that 110, the Court held, "it is manifest that the insolvent laws of Massachusetts were Congress intended that all laws clothing completely suspended as to persons and the state courts with a special jurisdiccases within the purview of the national tion in insolvency matters should be

superseded by the Bankruptcy Law" (July 1, 1898). To the same effect are Orr et al. v. Lisso et al, 33 La. An. 476; Rowe v. Page, 54 N. H 190; Palmer v. Hickson, 74 Me. 447; Martin v Berry, 37 Cal. 208; Van Nostrand v. Carr, 80 Md. 128.

the Act of June 4, 1901, relating to insolvency did not become operative because of the existence of the bankruptcy law of the United States of July 1, 1898, as to the persons and subjects to which the latter act applies. The order of the Court of June 23, 1903, vacating and setting aside the execution of the plaintiff, is, therefore, reversed.

The only cases decided by Courts of last resort holding a different view, which have come under our observation, are In Re Ziegenfuss, 2 Ired, 463 and Reed v. Taylor, 32 Ia. 209. These cases recog nize the paramount authority of the Act C. P. of of Congress, but hold that the state stat

COMMON PLEAS.

1897-Statement of purpose.

tion, under the Act of July 15, 1897, cl. 14, P. In an application for a charter for a corporaL. 283, to receive and hold property in trust for unincorporated religious, beneficial, charitable, educational and missionary societies and assotions for which the proposed corporation is inciations, the several unincorporated associatending to hold property in trust should be described with the same particularity as though the application was being made for a charter

for such association.

Application for charter.

William A. Skinner for application.

Susquehanna Co. Susquehanna Title and Trust Company. ute is operative up to the time when pro- Charter-Corporation-Act of July 15th, ceedings are instituted under the national bankrupt act The efficiency of the state statute is made to depend upon action or non action under the bankrupt law. This seems a foundation entirely too unsubstantial upon which to base the right to proceed under the state law, as to persons and subjects affected by the national bankrupt act The law would be vain which would invite legal process liable to be avoided and defeated at any state of the proceedings by the assertion. of another and paramount authority; it should be effective for the purpose of carrying to conclusion proceedings instituted thereunder. It is conceded on all sides, however, that any proceedings under the insolvent law of the state might be rendered abortive by an insolvent debtor or his qualified creditors by filing a petition in bankruptcy where the ebtor was subject to the operation of the national bankrupt act. The national and In applications for charters for these state laws are intended, in a large degree, several associations it would be necessary to operate upon the same persons and to set forth in the charter, somewhat in property and while there is a close resem- detail, a description of the purposes of the blance in the methods of administration proposed corporation and the manner in the mode of procedure and remedies are which the same was proposed to be carnot the same. There might and doubt- ried on, so that the law judge could deless would be conflict in the operation of termine from the application whether the the national and state statutes. The lat proposed charter fell within the classifiter must, therefore, yield to the former. cation named. The statement that a The uniformity contemplated by the proposed corporation is that of a religious, Constitution can only be secured through or a beneficial, or a charitable or an eduthe Act of Congress, the prosecution of cational character is not sufficient, as has insolvent proceedings under the laws of been held by all the courts. the various states necessarily tending to confusion and lack of opportunity.

In view of the manifest purpose of the constitutional provision on the subject of bankruptcy and the great weight of au thority in support of the conclusion reached we feel constrained to hold that

August, 1903. SEARLE, P. J.-The only description of the purpose of the proposed corporation is "receiving and holding property, real and personal, of and for unincorporated religious, beneficial, charitable, educational and missionary societies and associations, and executing trusts therefor "

An application for a charter to hold property in trust for these several unincorporated societies or associations, simply describing them by the name of the classification as described in the Act of Assembly authorizing the courts to grant charters for such purposes, is not suffi

cient. The several unincorporated associations for which the proposed corporation is intending to hold property in trust should be described with the same particularity as though the application was being made for a charter for such association. For this reason the charter in this case is refused.

Doniphan v. S. Morgan Smith Co. Judgment-Affirmance-Opening of.

Judgment was taken by default for want of a plea. The Court ordered the judgment stricken off, but the Superior Court reversed the order and the judgment was re-instated. A motion was then made in the Court below to open the judgment. HELD, that the motion will be allowed.

The judgment having been taken on Rule 5, which provides that judgments taken by de fault are "subject to any order of the Court for opening, setting aside or taking off the same,' such judgment is necessarily, according to the very terms of the rule, a conditional judgment, and the condition is that for cause shown sufficient to move the Court, it may be opened, set aside or taken off.

The affidavit of defence showing a defence sufficient to entitle the defendant to a jury trial, the judgment will be opened.

The action of the Superior Court in re-instating the judgment adds nothing to its character which it did not have before. A judgment affirmed by the Superior Court may be opened by

the Court below.

Motion for rule to open judgment.

For the previons proceedings in this case, see American Manufacturing Co.'s Appeal, supra 19.

J. St. Clair McCall and R. E. Cochran for motion.

Black & Hawkins, contra.

which is now submitted to the Court in support of this motion. The defence set up in this affidavit is such that if this were a motion on the part of the plaintiff for a judgment for want of a sufficient affidavit of defence, it would have to be refused.

We have, therefore, this state of

facts: A suit to recover for merchandise sold and delivered and services rendered; an affidavit of defence sufficient to carry the case to a jury; a judgment by default for want of a plea; the judgment stricken off by the Court below and re-instated by the Superior Court.

The Court is now appealed to to open the judgment and let the defendant into a defence on the merits.

The basis of the present judgment is Rule 5 of our Rules of Court under the title of pleadings, and is as follows: ' Rules to file statements, pleas and other pleadings after fifteen days notice may be entered in the Prothonotary's office. On failure to comply with these rules, after fifteen days notice, judgment shall be entered by the Prothonotary,of course, on written motion of the attorney taking the rule and affidavit of service thereof, subject to any order of the Court for opening, setting aside or taking off the same. Such judgment is necessarily according to the very terms of this rule a conditional judgment, and the condition is, that for cause shown sufficient to move the Court, it may be opened, set aside or taken off. This is the view taken when the judgment entered in this case for want of a plea was set aside, and the Court then believed such action was clearly within its province, and on this subject it has not changed its mind. It has always been held that the Court is the best interpreter of its own rules and this doctrine is likely to continue.

But the application now is to open the July 11th, 1904. STEWART. J.-The judgment, and this is resisted because the judgment was taken in this case in de- case has been finally disposed of by the fault for want of a plea and the damages decision of the Superior Court re-instatassessed by the Prothonotary. The de ing the judgment by default. The only fendant then filed a petition and obtained question before the Superior Court was a rule to show cause why the judgment the regularity of the order of the Court. so taken should not be stricken off. This below in striking off the judgment, and rule was made absolute and the judgment the only effect of the reversal is to re-inset aside. A Writ of Error was taken state that judgment and re establish the and the Superior Court on appeal re-instated the judgement. Prior to the entry of the judgment for want of a plea, the defendant had filed an affidavit of defence,

status quo. No other question was properly before that Court, and hence we feel safe in assuming that none other was decided.