to the belief that it was wilful and malicious in its inception. The complainant by his own oath makes out a technical demand and refusal, with two years absence, sending funds to his wife in the meanwhile, and then in a jurisdiction foreign to their only joint domicil, which he has left, applies for a divorce from his wife. In questions of divorce a case technically made out is not one which recommends itself to our favorable consideration. Husbands who are too willing to have their iniquities made manifest, and wives who acquiesce with such cheerfulness in their misfortune as to supply all the necessary evidence to establish them, generally fail to convince us that, in the words of the act of 1815, "the application is not made out of levity or collusion, or from the mere purpose of being separated from each other." If the husband was wilfully and maliciously deserted here, he certainly has borne it with wonderful philosophy and patience. We think, therefore, that even if we had jurisdiction over the person of the wife, the evidence here presented would fail to satisfy us of her wilful malicious desertion, without adequate cause, for the space of two years from her husband. But as the wife has never resided within our jurisdiction, we think, in conformity to the cases we have cited, the motion should be discharged. J. L. Ferriere, Esq., for the rule.

Court of Common Pleas, Philadelphia.

No. 2.

[Leg. Int., Vol. 36, p. 16.]

TAYLOR US. WITTKAMP.

In a mechanics' claim, it is not necessary that the exact words of the act of assembly should be used. Any equivalent words are sufficient.

Rule to strike off mechanics' lien.

The claim filed set forth that the plaintiff had furnished certain materials to the value of $41 "to" the defendant's building, instead of following the exact words of the act of assembly," for and about the construction," etc.

For the rule, it was contended that strict compliance with every form of law is necessary on the part of those who seek to enforce their demands by means of filing liens: Singerly vs. Cawley, 2 Casey, 248; Russell vs. Bell, 8 Wright, 47. This indebtedness may have been for repairs, for which there is no lien when the amount is under fifty dollars, and the defendant is, therefore, entitled to require that the claim set forth that the materials were furnished for construction, if that be the case.

Against the rule, it was argued that this lien complied with every requirement of the act of 1836. The case of Kelly vs. Brown, 8 Harris, 446, decides that the words "for and about the erection and construction of the building" are not necessary. Any equivalent words are sufficient. Under the authority of that case, if the sum were five

hundred dollars, the lien would undoubtedly be good, and therefore it is certainly good for the smaller sum. It is often impossible to say whether certain work amounts to a new erection or is only a repairthat being a question for the jury.

Rule discharged.

John A. Bickel, Esq., for the rule.
Charles C. Lister, Esq., contra.

[Leg. Int., Vol. 36, p. 16.]

WHITESIDES vs. VICKERS.

Application for approval of husband as surety.

Mrs. Vickers was defendant in an execution, and claimed the goods levied on as administratrix of her first husband. After the entry of the judgment, but before the levying of the fi. fa., she again married. She offered her second husband as surety on the interpleader bond.

Plaintiff's counsel objected, on the ground that the husband would be liable without a bond for any tort that the wife might commit, such as an eloignment of the goods, and asked that additional security be required.

The court approved the surety.

Messrs. Read and Pettit, for plaintiff.
Joseph M. Pile, Esq., for defendant.

[Leg. Int, Vol. 36, p. 16.]

HOWARD vs. HERBERT.

In an action of replevin, security for costs will be required from a plaintiff residing in another State, in addition to the bond ordinarily filed in such suits.

Rule on non-resident plaintiff to give security for costs.

This was an action of replevin.

Counsel for the plaintiff claimed that the rule of court (Rule XIV., section 41) did not include replevin among the actions in which a plaintiff may be ruled to give security for costs. Even if it did, the defendant could not demand further security, because the bond which has been filed is made to cover costs.

Counsel for the defendant replied that the rule of court covers every kind of action which may be brought at common law. Although a bond has been given, that is no more than would be done in the case of a plaintiff who remained in the State; and, as this one has removed therefrom, the defendant is entitled to security to compensate for her absence.

Rule absolute.

Harold Goodwin, Esq., for the rule.

Richard P. White, Esq., contra.

[Leg. Int., Vol. 36, p. 26.]

MILNE vs. BUCKNOR.

A creditor who has obtained judgment in a State court after the defendant has filed a petition in bankruptcy, is not entitled to judgment against a garnishee while the bankruptcy proceedings are pending.

Rule for judgment against garnishee.

In this case a judgment had been obtained against A. J. Bucknor, Jr., of the firm of Bucknor, McCammon & Co., and his interest in his father's estate, in the hands of the administrator, was attached. The answers of the garnishees averred that in 1870, Bucknor, McCammon & Co. filed a petition in bankruptcy, and were adjudicated bankrupts; that their estates were conveyed to an assignee, who had filed an account and made a dividend to the creditors, the plaintiff in this judgment receiving his distributive share, and that this suit was brought during the pendency of the bankruptcy proceedings, without leave of the District Court.

Counsel for the garnishees read from the bankrupt act, to the effect that while the question of a bankrupt's discharge is pending, no suit in a State court can be prosecuted to final judgment. By submitting themselves to the proceedings in the District Court plaintiffs are precluded from proceeding in any other forum: Dingee vs. Becker, 9 Philadelphia, 196; Beckler vs. Hambrecht, 2 W. N. C. 353.

Counsel for the plaintiff argued that this defence is not one that a garnishee is allowed to make. He cannot deny the debt of the defendant to the plaintiff. When this suit was begun the defendant came into court and presented this defence in his affidavit, which was then passed upon and decided to be insufficient. The bankrupt act requires that in order to stay proceedings, there shall be no "unreasonable delay" on the part of the bankrupt in applying for a discharge. Here no such application has been made, and none can be, the defendant being dead. These attachments were levied before his death, and the plaintiff's rights are fixed.

Counsel for the garnishee replied that a garnishee is obliged to make every possible defence. The bankrupt himself cannot take care of his interests here, because he is not allowed to come into this court. While the affi lavit of defence, suggesting the proceedings in bankruptcy, was not sufficient to prevent judgment for the purpose of ascertaining the amount, the plaintiff having obtained judgment, cannot go on with an execution while those proceedings are still pending.

Rule discharged.

M. Arnold, Esq., for plaintiff.

Samuel Gustine Thompson, Esq., for the garnishee.

[Leg. Int., Vol. 36, p. 47.]

JAS. C. WILLIS vs. S. GROSS FRY, THE PHILADELPHIA AND DARBY RAILROAD COMPANY, and THE PHILADELPHIA CITY PASSENGER RAILWAY COMPANY.

The president of a railway company fraudulently issued certificates of stock, properly signed and sealed, in excess of the amount authorized by law. Held, that persons who bought this stock or took it as collateral security, were entitled to relief as

bona fide purchasers on the faith of certificates issued by the company, and which it cannot gainsay.

The lawful amount of the stock having been issued, a pecuniary equivalent was awarded. Impossibility of specific performance held not to be a reason for dismissing the bills. A party should not be precluded from enforcing an equitable demand because the circumstances are such that he cannot have a full measure of relief, and must accept a pecuniary equivalent.

A certificate of stock, although not the title, is an authoritative declaration that such a title exists, which may operate as an equitable estoppel in favor of third persons who part with value in the belief that it is true.

Sur exceptions to master's report.

In 1875 eight or nine bills were filed against this company, S. Gross Fry, and the lessees of the road. The complainants averred that they were the holders of stock of the company, which they had taken as collateral security for notes of S. Gross Fry; that, as had then been recently alleged by the said corporation defendant, there had been an over-issue of stock, and suggested that the complainants' certificates were for part of this over-issue. The bills prayed discovery whether this was so or not, and that in case the stock proved to be fraudulent, the company be decreed to refund the amounts which the holders had advanced. The company pleaded that a fraud had been committed by Fry, its president, he having over-issued stock to a large amount, that the company had no knowledge of the fact at the time, and had received no consideration for the stock so issued. After argument, this plea was decided to be insufficient, and an answer was filed, setting forth substantially the same defence. The case was then referred to a master to ascertain the standing of the various complainants with reference to the company, and to report upon the validity of their claims. Having taken testimony, he reported that the stock held by the complainants was divisible into the following classes:

I. Certificates held in names other than those of their owners, and accompanied with powers of attorney to transfer, in cases in which no transfer has been demanded of the company.

IL Certificates held in names other than those of their owners, and accompanied with powers of attorney to transfer, in cases in which a transfer has been demanded of the company and refused.

III. Certificates illegally issued to the owners, upon the surrender of certificates issued originally without warrant.

IV. Certificates illegally made originally to their present owners, founded on no actual transfer, and, in fact, not brought to the notice of the company for transfer.

V. Valid certificates, representing actual stock of the company, but not transferred to present owners.

The master reported that the bills founded on papers described in Classes I., II., and IV., ought to be dismissed; that, as to Class V., the holders were entitled to a complete transfer on the company's books; provided, their assignor was not indebted to it; and that, as to Class III., the company should make satisfaction to the plaintiffs "to the amount of the money advanced, with interest, or the amount of the market value of the stock at the date of the loan, with interest; the amount allowed, however, not to exceed the amount of the money loaned, with interest, if the value of the stock should be greater than the loan, with interest."

Other bills were filed in addition to those first mentioned, making the total number twenty-one, in which the same proceedings were had.

This case was argued by Messrs. Richard L. Ashhurst, Samuel Dickson, Charles S. Pancoast, and E. Spencer Miller, on behalf of the complainants who excepted to the report; by Messrs. James H. Shakespeare, Isane Gerhart, and F. Carroll Brewster, on behalf of the complainants who were in favor of the report; and by Messrs. George Biddle and George W. Biddle, on behalf of the defendants.

Against the report, counsel for the plaintiffs argued that as the company had placed it in the power of their president to commit this fraud, they ought to make good the loss thereby occasioned to those who acted with due prudence. The ordinary way in which these transactions are conducted is to take a certificate and an irrevocable power of attorney. The signature of the company's officers and its seal are representations that the stock is genuine, and there is no negligence on the part of a holder who refrains from going to the office to make further inquiries. When one of two innocent persons is to suffer from the tortious act of a third, he who gave the aggressor the means of doing the wrong must alone bear the consequences of the act: Bank of Kentucky vs. Schuylkill Bank, 1 Pars. 248; R. R. Co. vs. Schuyler, 31 N. Y. 69; Hern vs. Nichols, 1 Salk. 289.

Corporations are liable for the frauds and torts of their servants done in the course of their employment: Merchants' Bank vs. State Bank, 10 Wall. 650; R. R. Co. vs. Schuyler, 34 N. Y. 49, 50.

The act of 1849, section 7, providing that the "president and directors first chosen" shall issue certificates for the stock of the company, does not restrict that duty to them. The act is directory, and the successors of the original officers are charged with the same duty. It is merely meant that there shall be no delay in giving the subscribers the evidence of their interest. Therefore, it cannot be said that Fry was acting ultra vires in issuing certificates. If he went beyond the authorized number, that is not the fault of the plaintiffs; the certificates were the company's declaration, made through its agents, the president and treasurer, of the truth of the facts stated on their face. negligence was on the part of the defendants; they allowed Fry ample opportunity to commit these frauds at pleasure, and they ought to be decreed to make good the damage suffered by the victims of that negligence.

The

In defence of the report it was contended that it was the duty of those who received certificates to take them to the office of the company for transfer. There is always a possibility of the person who tenders the certificate being indebted to the company or otherwise disabled from making the transfer, and it is negligence not to inquire into these facts by demanding a transfer at once. It is, however, going too far to claim that there is any specific kind of book required on which the change of ownership shall be recorded. The act of 1849 provides for a "suitable book or books," and this is fully complied with by the use of the certificate book with its stubs, which, if properly kept, is the most suitable book that can be employed. These complainants, in availing themselves of the means of transfer provided by the company, did all that could be demanded of them.