Commonwealth v. Altland.

In this case the defendant, who had an account at the Farmers National Bank of Quarryville, Pa., was credited by mistake with the sum of Four Hundred and Forty-four Dollars and Fifty-two Cents ($444.52), the same having been deposited by the defendant's brother, to whose account it should have been credited. The defendant shortly afterwards closed out his account and opened a new one at another bank. When the mistake was discovered the cashier notified the defendant of it and requested him to return the amount. He subsequently wrote to him that he had been improperly credited with the amount mentioned, and asked him to return it. After waiting several months for the defendant to return the money, which he thus fraudulently continued to withhold, and which he had converted and appropriated to his own use, this prosecution was commenced.

The fraudulent withholding of the money and converting it to his own use commenced when he refused or failed to return it upon discovery of the mistake or upon request: Com. v. Dissinger, 31 L. L. R. 281. The defendant not only refused to return it when requested, but must have known at the time he discovered the credit in his bank book that it did not belong to him. The balance usually carried in his account, the amount of his deposits, and the volume of business done by him, all clearly showed that he must have discovered a mistake of this kind. In fact, he testified at the trial that if he were improperly credited with it he would have known it. His explanation, in which he attempted to show that he thought the money belonged to him, was not convincing. We think, therefore, that there was no injustice in the verdict of the jury, and as no error in trial has been pointed out we must discharge the rule for a new trial.

At the argument of this rule defendant's attorney did not press the reasons for a new trial, but urged as a reason why one should be granted, the fact that there was no proof that the Farmers National Bank of Quarryville, Pa., was a corporation as alleged in the indictment. The Act of Assembly provides that the offense is committed where one fraudulently withholds and converts the money or property of "any other person, firm or corporation." It is alleged in the indictment that the Quarryville National Bank is a corporation organized under the laws of the United States. It was proved that it was a bank doing a banking business in the Borough of Quarryville, this county. The proof, therefore, showed that it was either a firm or corporation, and so far as the merits of the contention are concerned it does not matter which it was. This requirement of the Act is for the purpose of showing that the money or property was that of one lawfully entitled to own or have such money or property. The allegation that it was a corporation as laid in the indictment could be amended, and the word "firm" inserted even after conviction. No question of the right of the bank to own or have the money in question was raised at the trial, nor even in filing the reasons for a new trial.

The rule for a new trial is discharged.

Court of Common Pleas of Lancaster County

In re Receivership of John Quinn,

Landlord and tenant-Execution-Receivership-Farming on sharesPreference for rent Preference of execution creditor

Act of June 4, 1901, P. L. 404.

Insolvent

A landlord is not entitled to a preference for rent on distribution of the proceeds of the sale of the tenant's property by a receiver appointed under the Insolvent Act of June 4, 1901, P. L. 404.

Where notes on which execution was issued and the same stayed and a receiver appointed under the Insolvent Act of 1901 were given about the time of the appointment and the claimant fails to sustain his burden of showing that the transaction was not an attempt to get a preference over other creditors, he will not be allowed a preference on distribution for his judgment or the costs of execution.

Exceptions to report of auditor. Trust Book No. 24, page 153. Chas. W. Eaby and John M. Groff, for exceptions.

H. Edgar Sherts, contra.

M. G. Schaeffer, for receiver.

The report of Christian E. Charles, Auditor, contains, inter alia, the following:

* * There are two important questions raised which the auditor must pass upon in making distribution: (1) Is Martin Doutrich entitled to a preference by reason of his executions? and (2) is the claim of John H. Ranck for rent a preferred claim? Each of these questions will be taken up in turn and disposed of.

It is established by the testimony, and is not denied, that John Quinn is a farmer, and therefore he belongs to the class of persons covered by the Insolvency Act of June 4, 1901. Citizens National Bank v. Gaas, 29 Superior Court 125; Hoover v. Ober, 42 Superior Court 308.

*

Section 16 of the Act of 1901 provides as follows: * * It is manifestly the purpose of this Act to place in the hands of the assignee or receiver the entire personal property of the insolvent for the purpose of having the same administered by him; and from the reading of the above quoted section of the Act, it is clear that no right of the execution plaintiff is impaired. If he is entitled to a preference by reason of the entry of judgment and issuing execution thereon, he does not lose the benefit of that preference; and such plaintiff in the execution is entitled to have the proceeds from the sale of the personal property levied upon applied in satisfaction of his writ, first before subsequent execution creditors or general creditors, unless preference is taken from him through the operation of Sections 1 and 2 of the Act of June 4, 1901, P. L. 404, which provide as follows: * * * * * * As stated in the opinion of the Court in Clark's assigned Estate, 38 Penna. County Court Reports, page 227, "these sections do not take away the preference of the creditor unless the insolvent or creditor do something forbidden therein." When the insolvent procures, suffers or permits any of the things stated therein with a view to giving a pref

In re Receivership of John Quina.

erence to any creditor, or when he does something from which it can be inferred that he intended to give a preference to a creditor, or when there is collusion on the part of the creditor or such collusion can be inferred, the preference arising by operation of law will be defeated and taken away by Sections 1 and 2 of the Act of 1901 above quoted.

The evidence before the Auditor on this matter is principally the testimony of Martin Doutrich, the execution plaintiff, which testimony is very much confused and contradictory in character. From a careful reading of it, along with all the evidence offered, it appears that Martin Doutrich was the father-in-law of John Quinn, the insolvent; that the judgments, on which the executions were issued, were not given at the time of the creation of the debt for which they were given but were to replace other notes and were dated back; that before and at the time when the judgments were entered and executions issued, John Quinn was defendant in criminal and civil actions brought against him by his landlord, John H. Ranck, which was known to the execution plaintiff ; that said John Quinn has disappeared and is beyond the jurisdiction of the Court.

It is true that the burden of showing that there was an intent on the part of the insolvent to give a preference rests upon him who attacks and desires to set aside such alleged preference, unless the note upon which the judgment was entered was given at or about the time of the assignment or appointment of a receiver.

Clark's Assigned Estate, 28 Pa. Co. Ct. 227.

Wild's Estate, 39 Pa. Co. Ct. 577.

However, the evidence produced shows such inference of intent to prefer a creditor over other creditors and of collusion on the part of the execution plaintiff as to place upon the execution plaintiff the burden of showing the absence thereof.

Therefore, from the foregoing facts and conclusions of law, we disallow the amount due Martin Doutrich on judgments, on which executions were issued, as preferred claims.

From the testimony submitted, it further appears that a written lease, dated December 1, 1915, was entered into between John H. Ranck and John Quinn, whereby John Quinn was to farm for the term of one year from April 1, 1916, the farm of John H. Ranck containing 110 acres and situated in Sadsbury Township, Lancaster County, Pa., for the half of all crops raised on the farm and was to pay $50 grass rent for the meadow; each of said parties finding half of the seeds for all crops, &c. This lease was continued during the year 1917-1918 with some minor changes.

In holding that this agreement between John H. Ranck and John Quinn constitutes a lease of a farm upon the shares, the Auditor follows the decision of the Supreme Court in Brown v. Jaquette, 94 Pa. 113, where the agreement and facts are practically the same as in this case. Although lacking some of the formality of a lease, it contains all the essential requisites of such an instrument. The reservation of one-half the products of the farm is sufficiently certain because it may be reduced to a certainty.

In re Receivership of John Quinn.

The rent reserved may be, instead of money, a share of the produce of the land expressed in some ratio.

Long v. Fitzimmons, 1 W. & S., page 530.

Rank v. Rank, 5 Pa. 211.

When the rent reserved in a lease is a share of the grain or other products of the farm, such grain and products, while growing, belong wholly to the tenant. Until it is severed and delivered to the landlord, he has no interest in the thing itself. Until a division of the crop is made and the landlord's share designated and set apart for him, he owns no part of the crop.

See Trickett on Landlord and Tenant, page 116.

The landlord, however, has the same right to distrain for the nondelivery of his share of the crop as for the non-payment of money rent. Rinehart v. Olwine, 5 W. & S. 157.

Brown v. Jaquette, 94 Pa. 113.

Paragraph 31 of the Act of June 4, 1901, P. L. 404, under which Act this proceeding is had, provides as follows: * * * * * * * the evident intention of this section of the Act of 1901 being to provide for certain preferential claims in insolvency proceedings under said Act.

Under the Act of June 16, 1836, Section 83, P. L. 777, the following preference is allowed to a landlord for rent due in the case of an execution: * * * * * *

Under the facts in this case and the above conclusions of law, we are satisfied that John H. Ranck is entitled to a preference for rent due, not exceeding one year's rent, and it only remains to be determined what, if any, rent is thus due him.

In order to sustain a recovery for rent due in the case of rent payable in share of the crops, it is necessary for the landlord to submit evidence of the value of his share of the crop.

Conable . Van Housen, 11 Pa. Super. Ct., 497.

The evidence submitted before the auditor shows that the grass rent amounting to $50 was not paid; it also shows that the landlord received none of his share of the potatoes and corn. The testimony as to the value of his share of the potatoes and corn is indefinite and from it we are unable to make a definite calculation of the amount of his share thereof; however, from a careful reading of all the testimony relating

thereto, we are satisfied that the value of the landlord's share of the potato and corn crops, which he should have received during the year 1917-1918, together with the grass rent of $50, amounts to more than the balance remaining in the hands of the Receiver, after deducting costs of audit and other proper expenses, and therefore we award to John H. Ranck on account of his claim for rent, which is allowed as a preferred claim, the entire balance thus remaining in the hands of the receiver. * *

VOL. XXXVII, No. 4

On January 30, 1918, Martin Doutrich issued execution against John Quinn on two judgments, one for $500.00 and one for $375.00, to April Term, 1918, Nos. 5 and 6. Under these executions, all the personal property of the defendant, which was at that time in this county, was levied upon by the sheriff. But before a sale was made of this personal property, John H. Ranck presented a petition to this court, under the Act of June 4, 1901, P. L. 404, and thereupon the court stayed the executions, without prejudice to the rights of the execution creditor, and appointed a receiver to take possession of said property. The receiver, having sold the same, filed an account, showing a balance in his hands of $740.39, and an auditor was then appointed to make distribution of this balance. At the audit, this fund was claimed, on the one hand, by Martin Doutrich, the execution creditor, and, on the other hand, by John H. Ranck, who asserted that Quinn was, at the time of his insolvency, a tenant upon his farm, and that there was rent due at that time to the said Ranck to the amount of $1,284.89. In addition, Charles W. Eaby presented certain claims, one of which he asserted should be paid him in full out of the proceeds, and that a dividend should be awarded to him upon the other. The auditor disallowed the claims of Doutrich and Eaby, and awarded the whole fund to Ranck as a preferred claim for rent. After the confirmation nisi of this auditor's report, exceptions were filed thereto by Eaby and Doutrich. We are now called upon to determine whether or not the auditor made a correct distribution of these moneys.

The chief facts involved in the case are these: Ranck was the owner of a farm of 110 acres, located in Sadsbury Township, this county. In the fall of 1915 he, in writing, leased the property to Quinn, from April 1, 1916, to April 1, 1917. Quinn was to have half of all the crops raised, but no straw or corn fodder was to be sold off the place. Quinn was to pay $50.00 per year grass rent, and there were certain other conditions attached, which are not now material. Quinn moved upon the place, and remained not only during the term stipulated in the lease, but also under the same conditions, with a few minor additions, during the year 1917 and a part of the year 1918. A controversy arose during the latter year between Ranck and Quinn, and Quinn was prosecuted by Ranck for larceny by bailee in the Court of Quarter Sessions of this county. At the trial, Ranck claimed that certain of the crops were his property, and that he had been prevented from obtaining the same by Quinn; and Quinn, on the other hand, asserted that Ranck's share of the crops was upon the place and he could get it whenever he liked. The jury rendered a verdict of not guilty, and thereupon Ranck issued a writ of replevin for the property in dispute, and when the sheriff failed to find it upon the farm, Ranck made a complaint against Quinn for perjury. During the month of January, 1918, before Quinn was taken into custody, he left the jurisdiction of this court, and has not been heard of since. Ranck admitted that he got his share of the tobacco, and also the one-half of 171 bushels