(166 Pa. St. 33) COMMONWEALTH ex rel. HENSEL, Atty. Gen., v. ORDER OF SOLON. (Supreme Court of Pennsylvania. Nov. 3, 1894.)

BENEFIT ASSOCIATION-QUO WARRANTO PROCEEDINGS-DISSOLUTION-JURISDICTION OF

COMMON PLEAS.

1. A judgment, in an action between members of a benefit association to determine which are its representatives, ordering the funds of the association to be preserved in statu quo, until the election of officers by the supreme lodge of the association, does not prevent the attorney general from bringing quo warranto proceedings to oust the association from its franchise.

2. In an action between members of a benefit association, certain officers were decreed its true representatives. In quo warranto proceedings to oust the association from its franchise, there was service on such officers, and the supreme lodge of the association accepted the decree dissolving the association as final, and ordered the officers to take no appeal, and adjourned sine die without electing any officers. Held, that the association ceased to exist, and a meeting of a minority party after the adjournment was without authority, and all its acts were void.

3. Under Act 1836, giving all courts of common pleas jurisdiction by quo warranto over the subject-matter of forfeiture by a corporation of its franchise for nonuser or misuser of corporate rights, the court of one county has jurisdiction in such proceeding against a corporation organized and doing business in another county, provided the corporation appears in court.

Appeal from court of common pleas, Dauphin county.

Quo warranto proceeding by the state, on the relation of the attorney general, against the Order of Solon, to oust defendant from its corporate franchise. From a judgment dissolving the association, defendant appeals. Affirmed.

James Fitzsimmons, for appellant. W. U. Hensel, Atty. Gen., for appellee.

MITCHELL, J. In Order of Solon v. Folsom, 161 Pa. St. 225, 28 Atl. 1078, it had been decided by the court below that the respondents therein were the proper officers of the corporation, and this decision, notwithstanding some doubts arising from the confusion and irregularity of the corporate proceedings, was affirmed by this court. In view, however, of the approaching session of the Supreme Lodge, admitted by all parties to be the governing head of the organization, the decree followed the suggestion of the learned court below, and directed that, so far as concerned the funds of the order, matters should remain in statu quo until the session of the Supreme Lodge. Before the time of the session, however, the commonwealth intervened, and, upon proceedings by quo warranto, obtained judgment of ouster against the corporation. In this action by the commonwealth there was nothing irregular or violative of the decree of this court. What had been before the court

was a dispute between two parties as to which was the proper representative of the corporation, and it was to save the funds intact until the tribunal admittedly competent to settle that dispute finally, for the new year as well as for the past, should have an opportunity to do so, that the modification of the decree of the court below was made here. It was there and here a decree inter partes only. The quo warranto of the commonwealth was a new proceeding by a new party, and had nothing to do with that dispute. It raised the question, against both parties alike, whether the corporation itself had any further right to exist. This was a matter which the Supreme Lodge could not determine, and there was no reason why its session should be awaited by the commonwealth.

There being no objection to the action as contravening any order of this court, we have only to consider whether the proceedings were regular. The decree was entered on the suggestion of the attorney general and the answer of the order. The parties making that answer had been adjudged to be the true representatives of the order. The interveners had no standing whatever at that time. The right of members to intervene where their official representatives are acting fraudulently or in excess of their authority is not denied, but any such question is concluded here by the action of the Supreme Lodge in accepting as final the decree of the court of Dauphin county, founded on the answer, and directing the officers of the order to take no appeal. When, following that action, the Supreme Lodge omitted to elect any new officers, and adjourned sine die, the whole ground of contention came to an end. The corporation had ceased to exist; the meeting of a minority party the next day was without authority; and all its acts were void.

It is not necessary to consider the question, so strenuously argued by appellant, that the court of Dauphin county cannot compel a corporation chartered and doing business in another county, to appear before it on quo warranto, and that the act of April 7, 1870 (P. L. 57), is to that extent unconstitutional. All courts of common pleas, under the act of 1836, have general jurisdiction by quo warranto over the subject-matter of forfeiture by nonuser or misuser of corporate rights. Jurisdiction over any individual corporation depends, therefore, not on the purpose sought by the writ, but on getting the particular defendant in court. It is a matter of service or appearance. In the present case service was accepted, and appearance entered by the parties, as already said, who had been adjudged the proper representatives for the time being of the corporation, and their action had been ratified by the governing head of the order. Judgment affirmed.

1. A corporation which operates one incline railroad and three passenger railroads, and whose charter expressly grants it all the powers and privileges in contracting, locating, and "operating" any of the "said planes or railways" contained in the railroad act of 1849, may lease such incline railroad to a passenger railroad company.

2. Where an incline railroad and a passenger railroad extend from the same point in different directions, the mere fact that the cars of neither road can run over the other road, and that passengers desiring to ride over both roads must change cars, does not prevent them from being "connected," within the meaning of Act April 23, 1861 (P. L. 410), which requires the railroads of lessors and lessees to be "con

nected."

Appeal from court of common pleas, Allegheny county.

Action by Frederick Hampe and others against the Mt. Oliver Inclined Railway Company and others, to declare null and void, if made, a lease by such company, of which plaintiffs are stockholders, to defendant Pittsburgh & Birmingham Traction Company, for 999 years, to enjoin the execution of such lease, if not made, and to compel the latter company to withdraw from the possession of the former company's property. From a judgment overruling exceptions to and entering a decree on a master's report in favor of plaintiffs, the Pittsburgh & Birmingham Traction Company appeals. Reversed.

James C. Doty and James R. Sterrett, for appellant. Miller & McBride and J. S. & E. G. Ferguson, for appellees.

MITCHELL, J. The master found the facts as to good faith, advantage to the lessor, etc., in favor of the lease, but both he and the learned court below held it void for want of authority. In reaching this conclusion, they failed to give sufficient weight to the special and extraordinary charter powers of the Mt. Oliver Inclined Railway Company, and fell into error by separating its franchises, and having regard to the several parts singly, and not to the whole. The master rests his finding on the classification of railroads, and the absence of authority to lease between the different classes. The court puts its decision rather on the proviso of the act of 1870, by which the right of leasing is limited to railroads forming a continuous route. The master's view rests on the finding that the Mt. Oliver Company is an inclined-plane railroad, and as such has no power to lease to a passenger railroad. But under its charter the Mt. Oliver Company is not only an inclined-plane company, but also a passenger railroad. In law, it is as much the latter as

the former; and in fact, it is more so, for it owned and operated one incline and three passenger roads at the time of the lease. As a passenger railway its power to lease to another passenger road, under the acts of 1861 and 1870, cannot be doubted, and such power was not taken away by the possession of the additional franchise of an inclined railroad. To hold that it was, would be to hold that a gift meant to be additional and cumulative in effect took away powers expressly granted in the first instance. If there were any doubt on this point, moreover, it would be conclusively settled by the express grant in the charter of "all the powers and privileges

* in constructing, locating, and operating any of the said planes or railways" contained in the general railroad act of 1849.

Turning, now, to the other point, was the lease void because of the proviso of the act of 1870, requiring the lessor and lessee roads to form a "continuous route"? The act of April 23, 1861 (P. L. 410), requires only that the roads leasing and leased shall be "connected"; and in Philadelphia & E. R. Co. v. Catawissa R. Co., 53 Pa. St. 20, it was held that this does not mean, necessarily, that the same cars shall pass from one road to the other without interruption, but it is sufficient if the roads intersect in such manner as to admit of the convenient interchange of passengers and freight at the point of intersection. The wisdom of the broad view taken in that case, in furtherance of the real object of the statute, has been signally illustrated by the subsequent progress of mechanical inventions; for while it was there declared that, the roads in question being of different gauges, there was a physical impossibility that the cars of one line should run on the tracks of the other, or that there should be "any mechanical connection between the two roads," that difficulty, then argued to be insuperable, has long since been overcome by the transfer of the car bodies to trucks of the other gauge. Under that decision, therefore, the mere fact of the necessity of changing cars at the inclined plane would not prevent the roads from being connected, within the requirement of the act of 1861. It has never been held by this court that that act was repealed by the act of February 17, 1870 (P. L. 31). The reasoning of the court in Pittsburgh & C. R. Co. v. Bedford & B. R. Co., *81 Pa. St. 104, is not reconcilable with that view. The opinion of the court is an argument to show that the roads in question in that case were not connected, within the meaning of the act of 1861, and a fortiori not within the act of 1870. It would have been much easier to have rested the decision on the latter act alone, and, as there was a dissent, it is not to be supposed that Justice Sharswood voluntarily assumed the heavier burden, if the opinion of the court had been that the act of 1861 was out of the way by repeal. But we are not prepared to say that, even under the act of 1870, an absolute passage of the same car from one

road to the other, without break or interruption, is necessary to constitute a "continuous route." The reasoning of the court in Philadelphia & E. R. Co. v. Catawissa R. Co., 53 Pa. St. 20, supra, is against such a construction, and, as already noted, time and experience have amply vindicated the wisdom of a broad interpretation of the statute, in furtherance of its real object,-the facilitation and convenience of travel and transportation. But the question does not arise in the present case, because there is no doubt of the continuity of the route at the point of intersection of the leased and leasing roads. The break, whatever its effect, is not at the junction, but in the center of the lessor, and is neither greater nor less after the lease than it was before. As already said, the Mt. Oliver Company is both an inclined-plane and an ordinary passenger railroad. In its latter capacity it is strictly continuous with its present lessee, and the fact that it has, at another point of its line, an inclined plane, and that the whole system is leased as an entirety, does not make it any less so. The passenger who before the lease came down the plane, and there changed cars to be carried on the lessor's railway by Twelfth street to Carson, now does exactly the same thing, with the addition that he may continue in the same car beyond Carson street, over the line of the lessee company. This is clearly a continuous route. How far the franchise of the Mt. Oliver Company to purchase and improve real estate may be ultra vires as to the lessee is a question not raised, and we do not pass upon it in any way. Decree reversed, and bill dismissed, with costs.

1. The title to land purchased by the husband was taken by the wife, at his request, for business reasons; and they agreed that she should immediately make a will, "to protect" him in case of her death. It was afterwards sold, and he bought other land in his own name, and dealt with it as his own for several years, with her knowledge. Held, that the facts rebutted the presumption of a gift to the wife.

2. Where the partner of a purchaser of land is in difficulties in the business in which they were previously engaged, and such purchaser is uncertain as to how far he may be involved in future liabilities, the fact that he has the deed made to his wife does not show an intent to defraud creditors.

3. In an action by a wife against her husband to establish a trust in land purchased with the proceeds of land to which she had title, the fact, if established, that such title was put in her name by her husband to defraud his creditors, could not aid plaintiff.

4. Where, in an action by a wife against her husband to establish a trust in land, it appears that she paid part of the purchase money, she is entitled to be repaid, and to interest after

they ceased to live on the land, and the husband sold it, and began to treat the proceeds as his own.

Appeal from court of common pleas, Allegheny county.

Action by Mary E. Moore against Leet S. Moore to establish a trust in certain real estate. From a judgment for plaintiff, defendant appeals. Reversed and rendered. Thomas M. Marshall and Knox & Reed, for appellant. Wise & Minor, for appellee.

MITCHELL, J. The foundation of complainant's case is her title to the land in the Fourteenth ward which came to her from her husband, though by an intermediate conveyance. The question raised is not one of a trust, resulting or other, but of a gift, presumed from the conveyance, but depending on intention, and therefore subject to be rebutted by evidence. The facts are not in serious dispute. The appellant, in September, 1883, being then unmarried, but in contemplation of marriage to the complainant, purchased, by articles of agreement, the land in question. For prudential business reasons, stated by him at the time to his counsel, he desired the title to be put in some one else; and he spoke to his friend, Mawhinney, about using his name, and Mawhinney consented. Before the conveyance was executed, however, the marriage had taken place, and at the suggestion of counsel the deed was made by the vendor to the wife. At this point a most significant fact appears, in the testimony of Mr. Emery, the counsel, that at the time the whole transaction was talked about the conversation was to the effect that the title was "in Mrs. Moore now," and if she died the whole thing would go to her relatives, and Mr. Moore would not have anything, but that a will by her "would protect him." A will was accordingly drawn by counsel, and executed by her, devising the land to her husband. The parties lived together on the property till it was sold. The appellant invested the proceeds of the sale in other real estate, in his own name, and generally dealt with it as his own, for several years, until unfortunate domestic differences produced the present litigation. The evidence shows that the complainant knew all these matters from time to time, as they occurred, and, in our opinion, is ample to rebut the presumption of a gift to the wife. In fact, the stipulation-for it really amounted to that-that the wife should immediately make a will to "protect" the husband is scarcely reconcilable with an intended gift outright to a wife of only a week's standing.

There is no sufficient evidence of any intent to defraud creditors. Appellant had been in business in the West, in which his partner had got into difficulties, and appellant was uncertain how far he might be involved in future liabilities. Whether such liabilities were just or not is nowhere indicated. This is all that appears, and it falls short of show

ing any fraud. But, if it did so, it would not help complainant's case. The appellant is not here asking to set aside a deed made by him, or by his direction, to the complainant. The gift, if it had been one, had come back to the donor, and rested with him for several years, with the acquiescence of the donee. It is the latter who comes into equity, and she does so with the burden of rebutting the inference from the mutual acts of both parties.

The learned master was right in reporting that complainant had failed to sustain her bill.

It

She was not a competent witness, and, had she been objected to in limine, the bill must have been dismissed. But a considerable part of her testimony was admitted without objection, and we are therefore entitled to look into it for the equity of the case. appears therefrom that she contributed $1,125 of her own to the purchase money of the property. There is nothing to show that this was a gift to her husband. It was a contribution to an investment for joint benefit,-no doubt, with the expectation that it would continue to be enjoyed together; but as the evidence shows it was nevertheless a business transaction, and not a gift on the husband's part, a fortiori, it was the same on hers. She is therefore entitled to be repaid. The learned court below refused to allow interest on either side of the account, and this, as a general result, was correct. So long, certainly, as the parties continued to live on the property as their joint home, no interest should be allowed; but when the husband, by the sale, severed the ownership, and began to treat the proceeds as his own, and the parties moved away from the property, he became fairly chargeable, in equity, with interest on his wife's money. Decree reversed, and decree directed to be entered for complainant for $1,125, with interest from May 1, 1890. Costs of the whole proceeding to be paid equally by the parties.

(165 Pa. St. 571)

WHITESELL et al. v. PECK et al. Appeal of STEVENSON. (Supreme Court of Pennsylvania. Jan. 7, 1895.)

JUDGMENT SATISFACTION BY ATTORNEY-CONCLUSIVENESS.

Where a client is informed that his attorney has satisfied on the record a judgment in his favor, and accepted securities for a part thereof, and does not then disavow the attorney's act, and such attorney afterwards sues on such securities in the name and with the assent of such client, the latter cannot then repudiate the satisfaction of the judgment, and have it stricken off.

Appeal from court of common pleas, Allegheny county.

Action by Whitesell & Sons, for the use of Frederick Maul, against H. R. Peck and others, in which there was a judgment for plaintiffs, which was afterwards satisfied of record by Maul's attorneys. Maul filed a

petition to strike off such satisfaction, with notice to M. H. Stevenson, purchaser of defendants' real and personal property. From

a judgment for petitioner, Stevenson appeals. Reversed.

M. H. Stevenson, in pro. per. James Bredin, for appellee.

WILLIAMS, J. This judgment was marked "Satisfied" on the record on the 26th day of November, 1892, by Whitesell & Sons, who were the legal plaintiffs therein, and the attorney of their assignor, Maul. More than 18 months afterwards, this entry of satisfaction was struck off by the court below, at the instance of Maul, who testified on the hearing that he made the application at the suggestion of Whitesell. The learned judge by whom the order was made failed to put his reasons therefor on the record, but it is probable that he was controlled by the principle that the authority of an attorney at law to satisfy his client's judgments does not extend to any cases where the money is not actually paid to him. This is the general rule.

Where an attorney, in the exercise of his professional judgment, goes beyond this, and accepts securities instead of money in satisfaction of a judgment, his client may, when the fact comes to his notice, make his election to ratify or repudiate the unauthorized act. He cannot do both. If he acquiesces in the satisfaction of his judgment, and proceeds to enforce collection upon the securities received in lieu of money, this is a ratification of the arrangement If he declines to recognize the arrangement and the entry of satisfaction, refuses the securities taken by his attorney, and insists on taking nothing but cash in satisfaction of his judgment, this is a repudiation of the act of his attorney, and leaves him unaffected by it. In this case we learn from the testimony of both the attorney and the client that the fact that the client's judgment had been satisfied on the record, and that securities had been accepted for part of the amount due upon it, upon which it might be necessary to bring suit, was fully communicated to the client soon after the arrangement had been made. Maul did not then disavow the act of his attorney, but appeared to acquiesce therein. Suits were brought by the same attorney upon these securities. This was done in the name of Maul, and with his knowledge and assent. After this had been done; after the insolvency of the Junior Order of United American Workmen, the maker of one of the securities so taken and sued on, had become known; and after the lapse of several months, consumed in these proceedings,then, but not until then, the client seeks to repudiate the act of his attorney. This is the sole ground of relief set up in his petition,-"that petitioner never authorized or ratified such satisfaction," but, upon becoming aware of what had been done, made his election not to recognize it. Upon the testi

mony of the petitioner, and upon that of his attorney, it is clear that this comes too late. It comes after a line of conduct, extending over several months, that amounts to ratification and adoption of the act which it is now sought to repudiate; and the rule to show cause why the entry of satisfaction should not be struck off ought to have been discharged, upon the testimony of the petitioner himself. But it is said that Stevenson promised to be liable for the ultimate payment of the securities received in part payment of the judgment. If so, the natural

remedy would seem to be upon that promise. It cannot affect the question of previous authority, or subsequent ratification by Maul of the act of his attorney.

It is also urged that the defendants in the judgment have not appealed from the order made by the court below, and that Stevenson is not in a position to do so. The answer to this position is found in the caption to the petition on which this rule was obtained, in which Stevenson is named as the owner of the property bound, the terre-tenant holding by title derived from the defendants. The record really presents but one question, and that is whether the repudiation of the act of the attorney, alleged in the petition, is sustained by the testimony. We are clear that it is not, and on that ground our judgment rests. We feel that we are often put at a disadvantage in the determination of an appeal by the failure of the court below to state for our benefit the ground on which the decision was made. Parties may sometimes suffer for the same reason. But, when a case comes to us in this way, we cannot extend our conjectures beyond the grounds of relief stated on the record, and these raise only the question which we have considered. The order is reversed, and the rule to show cause why the entry of satisfaction shall not be struck off is discharged.

1. Where a natural gás company pays judg ments obtained against it for damages caused by an explosion resulting from leakage of its gas main, it may recover the amount thereof from a traction company which excavated about the main, and filled the excavation in such a negligent manner as to allow the main to settle and cause the leakage.

2. Where defendant compromises a judg ment for damages against it for a reasonable sum, pending appeals therefrom, such defendant is not a mere volunteer, so as to defeat recovery by it against a party who is liable over for such damages.

3. It was agreed between a natural gas company, which had gas mains in a city, and a traction company, that the former "should pro

vide the skilled labor that would be necessary to provide for any changes in its lines made necessary by the excavation and construction work of the traction company." Held, that such contract did not require the gas company to provide skilled labor for filling an excavation made by the traction company in and about a main, which was simply uncovered during the progress of the work, and continued in the same place, and in its ordinary use, all the time.

Appeal from court of common pleas, Allegheny county.

Action by the Philadelphia Company against the Central Traction Company and another to recover money paid by plaintiff in satisfaction of certain judgments, recovered against it for damages caused by an explosion of natural gas which escaped from plaintiff's gas mains, as the result of defendant company's negligence in excavating about such mains. From a judgment for plaintiff, defendant company appeals. Affirmed.

In the month of November, 1889, the Central Traction Company was constructing a cable road in the city of Pittsburgh. The cables were to be carried along the streets in conduits or subways, and then, by proper appliances in a large vault, into the power house, which was on the south side of Wylie avenue, where the power is applied. The firm of Booth & Flinn had the contract for the construction of the conduits; C. A. Balph, one of the defendants, for the power house and vault. The construction required a great deal of excavation in the streets, especially for the vault, which was about 15 feet deep and 75 feet long. At the vault there were two four-inch mains of the Philadelphia Company for the conveyance of natural gas, and mains of two artificial gas companies, and the water mains of the city. Before commencing its work, the traction company made a contract with the Philadelphia Company, not in writing, the substance of which was that the Philadelphia Company was to supply the skilled labor whenever any change in its pipes was made necessary by the construction. To take up the water mains and artificial gas mains from the middle of the street; it was necessary to put them under the Philadelphia Company main. To make place for them, it became necessary to dig beneath this main, exposing it for a distance of about 75 feet. This was done, and the main was supported on wooden props while the work went on. It was also necessary, while this work was proceeding, to remove the 'escape pipes, which are pipes to carry away any leaking gas above the surface, thus preventing its percolating through the ground into, the adjoining cellars. The superintendent and division superintendent of the Philadelphia Company were frequently at the vault during the progress of this work. After the vault was completed, the blocks supporting this main were removed, and the laborers in Mr. Balph's employ filled in the excavation with earth. instructions were given by the representatives of the Philadelphia Company as to how

No