acts. He was not its agent; presumably sentations, the policy must be taken, in therefore the company had made no in accordance with its terms, to have been quiries as to his character or competency, issued upon a manufacturing plant in and had had no opportunity to decide operation. Upon the facts stated in the whether or not it would put any part of reserved point, this policy is not binding its business into his hands. Obviously upon the company, either because the a company may be willing to accept one risk was not truly represented, so that person, and unwilling to accept another, the company was deceived into issuing a as its agent. It may have confidence in policy upon a subject of insurance mathe discretion and prudence of the one, terially different from the true subject; and none in the discretion and prudence or, if the insured is to be taken as bound of the other. But if it is to be bound by by the description of the policy, and if the representations and conduct of every therefore he is estopped to deny that the person through whose hands a policy distillery was in operation when the of insurance may pass, it is certain that policy was issued, then the contract is its responsibility will be vastly increased not binding, because the manufactory by the conduct of persons of whom it has "ceased to be operated for more than ten no knowledge and with whom it has no consecutive days." relation. If such a rule prevailed nothing Upon the reserved point I am of opinion would be easier for the assured than to that the defendant is entitled to judgment evade the most stringent and proper re notwithstanding the verdict, and direct quirements of the policy. The broker judgment to be entered in its favor upon would feel no responsibility to a principal payment of the jury fee. whom he had not yet selected, and the desire to obtain commissions would lead in many cases to reckless and misleading statements. For such statements the company is often responsible, and properly responsible, when it has clothed the agent with apparent authority to speak; but this is the reason for its liability, an if the reason has never existed neither does the liability come into being. No application was offered in evidence and I do not know whether an application in writing was made. Probably none was made, as this was a renewal of a policy about to expire. The policy itself does not show that the distillery was not in operation. It describes the property insured as "occupied" as a distillery, and as a bonded warehouse; and I understand the ordinary meaning of that word to be that the distillery was in operation. The plaintiff has argued with some earnest ness that it does not bear this construction, but I am unable to take his view. Therefore when the company issued the policy it knew nothing about the facts of the situation. Mr. Deininger's know ledge was not the knowledge of the company, and its recognized agents in York, Messrs. White & Jessop, knew nothing whatever about the nonoperation of the distillery. If therefore (as I think is clear) the company was not bound either by Mr. Deininger's knowledge or by his conduct and repre (Exception to the plaintiff.) C. P. of Ripple v. Keast. Lawrence Co. Justice of the Peace-Jurisdiction-Appeal The record of a justice showed "plaintiff claims in trespass $40 for a colt, which colt was killed by negligence of defendant." HELD, that the record showed a claim for consequential damages and not trespass vi et armis, and therefore the justice had no jurisdiction. On an appeal to the Common Pleas from the Motion to strike off appeal. August 12, 1895. WALLACE, P. JThis case comes before Court in a peculiar manner. A transcript or appeal by defendant from a judgment on the docket of J. P. Leslie, an alderman in the city of New castle, having been filed in this Court, plaintiff moves the Court to strike off said appeal, etc. Defendant then asks the Court to dismiss these proceeding for the want of jurisdictions. While a writ of certiorari would be the best and proper way to reach this question, yet both applications bring the same ques tion before the Court, to wit, the question of jurisdiction of the Court. This case us in the case, as that is all that is before the Court. It is a well-known rule of law that when an appeal comes into Court all proceedings are de novo as to the declaration pleadings, and evidence, yet the cause of action must continue the same. That is, a person cannot start a proceeding before a justice and after judgment and appeal come into the Common Pleas Court and file a declaration alleging a different ground for action; as the case was originally started so it must follow in the same channel. These principles of law have been laid down by our Supreme Court in Walden v. Berry, 48 Pa., 456; Wright v. Guy, 10 S. & R., 229; Hoffman v. Dawson, II Pa., 280. must be disposed of by the records before $100." Undoubtedly this act would give the justice jurisdiction in the sum of $100 in all actions for trespass for injuries committed on real or personal estate, such as our former action of trespass quare clausum fregit or trespass vi et armis. But does it confer jurisdiction in the case before us? The transcript alleges damages by reason of negligence of defendant. Had the magistrate ommitted the word "negligence" from the transcript, the presumption then would have been that the damage was of trespass vi et armis. That is, if the transcript had alleged that defendant struck or killed plaintiff's colt, the record would then show the justice had jurisdiction; but when it shows that by reason of the negligence of defendant the damage was caused, then it passes from an action of trespass vi et armis to an action on the case, because of the damages being consequential. By this we understand that damages that are caused by some person through an intervening element are consequential, as distinguished from direct damages or trespass vi et armis. It is also well settled that if the lower Court has no jurisdiction, the higher Court has none, except to pass upon the question ot jurisdiction; hence any other proceeding would be irregular and void. And on this doctrine the question of jurisdiction can be raised at any stage of the proceedings. With the foregoing principles of law before us, let us look at this case as it comes before the Court. Plaintiff brought suit before J. P. Leslie, an alderman in the city of New Castle against de fendant, and, as shown by the transcript filed in this case, the suit was based on the following claim: "Plaintiff claims in trespass the sum of $40 for the value of a yearling colt belonging to plaintiff, which colt was killed by negligence of defendant on June 26, 1893.' On the statement of claim had the As actions on the case, or actions for consequential damages, can only be origi. nated in the Common Pleas Court, and this record clearly showing by the use of the word "negligence" the action to be an action on the case, the justice therefore did not have jurisdiction, and we dismiss the proceedings at the cost of the plaintiff. Association v. Swartz. Building Association-Insolvency- Liability of borrower. justice jurisdiction? Justices have juris- Mechanics and Workingmen's Building and Loan diction only by reason of certain statutes. The Act of March 1, 1799, extended the powers of justices to suits brought for the recovery of damages for any trespass, wrong or injury done or committed against the real or personal estate when damages do not exceed $20. In 1807 the jurisdiction was extended to $50. The Act of March 22, 1814, which is the operating act, bestowing jurisdiction upon justices, reads as follows: "The justices of the peace of the several counties of this Commonwealth, etc., *** shall have juris diction of actions of trover and conver-sidered as payments on and in liquidation of sion, and of actions trespass brought for the recovery of damages for injury done or committed on real or personal estate, in all cases where damages do not exceed Petitioner was the holder of eighteen shares of stock in the plaintiff Association. Subsequently he borrowed the full amount of his ment was entered. One of the conditions of stock, and gave bond therefore, on which judgthe bond was "And further, I, the above named Jacob Swartz, do hereby expressly agree that all money heretofore paid or hereafter to be now hold in the same shall be taken and conpaid by me into said association on the stock I this bond." Petitioner paid his dues and weekly interest on his stock so borrowed until Decemyet claimed to be due on the stock loaned, and ber 31, 1895, when he paid plaintiff the amount received a receipt "in full for repayment of 18 shares in 29th series." The Attorney of the November 24th, 1893. The material Association neglected to satisfy the judgment, parts of the conditions of this bond are as and after the appointment of a Receiver for the Association defendant filed his petition to have follows: the same satisfied. On the argument it was admitted that on December 31, 1895, the Association was insolvent. HELD, that the petition must be refused. "Now the condition of this obligation is such that if the above bounden Jacob Swartz, his heirs, executors or administrators or any of them shall and do well The insolvency of the Association is a matter and truly pay or cause to be paid unto not contemplated nor provided for by the law governing building associations, and when in- the above named Mechanics and Worksolvency is once shown it is said the contracts ingmen's Building and Loan Association, must be treated as cancelled, and by the ap- its certain attorney, successor or assigns pointment of a receiver the business of the as- the just sum of six dollars and thirty sociation is thrown into a court of equity to be administered on equitable principles. cents on Tuesday of each and every week hereafter until all the members of the twenty-ninth series of said Association shall have received the full amount of all their stock from said Association (the sum of six dollars and thirty cents, being the amount of weekly dues and interest loaned by the same to the said Jacob on eighteen shares of the capital stock Swartz, in accordance with the constitution and by-laws thereof) without any fraud, etc," and providing in case of default in such payments for six months, the whole should become payable, and with the following additional stipulations: Equality among the shareholders is equity, and to allow one borrowing stock holder to repay his loan, getting credit for the full amount paid in on his stock while other stockholders in the same series would lose what they had paid in on their stock, or any portion of it, would not be equality and therefore not equity. Rule to show cause why judgment should not be satisfied. same shall be taken and considered as payments on and in liquidation of this bond." The Court's opinion states the facts. Latimer, Chapin & Schmidt for rule. Cochran & Williams, contra. April 6th, 1896. STEWART, J.-This is an application to the Court made under "And further, I, the above named the act of March 14th, 1876, to direct the satisfaction of judgment No. 258, Octo- Jacob Swartz, do hereby expressly agree ber Term, 1893, in the Court of Common that all money heretofore paid or herePleas entitled as above. The facts are after to be paid by me into the said assoeither all admitted or agreed to by counsel ciation on the stock I now hold in the and the question is whether or not upon the facts, the defendant is entitled to have the judgment satisfied. On the third of October, 1893, Jacob Swartz, the defendThe defendant continued to pay his ant, became a stockholder in the Mechan- weekly dues and interest on his stock so ics and Workingmen's Building and Loan borrowed until December 31st, 1895. Association, a corporation organized un- Prior to that date he requested a stateder the act of April, 1874, and subscrib- ment from the association of the amount ed for eighteen shares of its capital stock due and owing by him on his loan, which in the twenty-ninth series in accordance was furnished to him on that date, amountwith the constitution and by-laws of the Association. By these by-laws the par value of such share of the capital stock was fixed at $85. On the 15th of October he borrowed from the Association the full amount of his eighteen shares, amounting to $1530, paying a premium of five per cent. for the same and actually received in cash on that date $1453.50. To secure the repayment of this sum of money he executed and delivered to the association a judgment bond with warrant of attorney to confess judgment thereon and on which judgment was confessed and entered to the above number and term for $1530, on ing to $960.75, after allowing him credit for all payments of dues and interest and three sixths of the premium paid by him for his loan. This sum he paid in cash to the clerk of the association at its regular place of meeting and at a meeting of its board of directors held on the 31st of December, 1895, and he received a receipt entered by the clerk in his Building Association book as follows: YORK, Pa., Jan. 2nd, 1895-6. Received of Jacob Swartz nine hundred and sixty dollars and seventy-five cents; being in full for repayment of 18 shares in 29th series. (Signed) "HENRY BOLL, Clerk." The minutes of the association for the ciation to use v. Carroll, 15 C. C. Rep. evening of December 31st, 1895, in refer- 522; Strohen v. Franklin Savings and ence to this matter are as follows: Jacob Loan Association, 115 Pa. 273; Callahan's Swartz offered to repay his loan of 18 Appeal, 124 Pa. 138. shares in 29th series amounting to$960.75. when the same was accepted. The receipts for the evening. ....$249 05 Repayment of Jacob Swartz's loan 960 75 $1209 80 ap The defendant contends that by the terms of his bond, whatever money he paid into the association, "shall be taken and considered as payments on and in liquidation" of it, and that therefore, he cannot be compelled to pay what he has Upon the repayment of said loan already paid. In the case of Strohen v. George Fisher, Esq., the attorney of the Franklin Savings and Loan Association, association, was directed to satisfy the supra, it was alleged that the judgment, but neglected to do so, and on propriation of payments made on the 29th of January, 1896, The York the stock had been applied to the Trust, Real Estate & Deposit Company liquidation of the mortgage, and although was appointed receiver of the association. the Supreme Court seemed to take a It is admitted that the association was different view of this fact, nevertheless, insolvent on the 31st of December, 1895, but there is no proof or admission that either the association's officers or the defendant, Jacob Swartz, knew this fact; and also that all the members of the 29th series have not received the full amount of their stock. The Association received the defendant's money, and no question is raised as to Henry Boll's right as clerk to receive and receipt for it. they doubted whether an insolvent corporation had the right to make such appropriation. It does not appear when this appropriation of payment was made, or to be made, since the bond is silent on the subject. It cannot be said that such appropriation was made as the money was paid in, and hence we are driven to the conclusion that it was made at the time when the defendant repaid his loan, namely, December 31, 1895, and it is admitted that at this time the association was insolvent. If the amount was accepted from the defendant, under the misapprehension that the 29th series was then fully paid, (and this was the only condition that would satisfy the bond), and it was afterwards discovered that this was not the fact the defendant could not insist upon the satisfaction of the judgment and if it had been satisfied such satisfaction would be stricken off; Callahan's Appeal, 124 Pa. 138. Upon this state of facts is the defenddant entitled to have the judgment satisfied? The Association contends that he is not;that the condition of the bond, namely that he will pay into the Association until all the members of the 29th series have received the full amount of their stock has not been and cannot be complied with. This proposition is true, but the defendant contends that he had a right to repay his loa n at any time. That he has paid all the proportion which he was obliged to pay toward the The insolvency of the Association is 29th series, and that, notwithstanding a matter not contemplated nor provided the Assoriation's insolvency, he has paid for by the law governing building assoall he can or could be obliged to pay. ciations, and when insolvency is once The Association being insolvent, the shown it is said the contracts must be stockholders must lose a part or all the treated as cancelled, and by the appointmoney paid in on the 29th series, and ment of a receiver the business of the astherefore, they contend, that the defend- sociation is thrown into a court of equity ant is to be charged with the amount of to be administered on equitable principles. his loan and interest thereon from the Equality among the share holders is time it was made, and credited with the equity, and to allow one borrowing stock amount of interest paid, and the balance holder to repay his loan, getting credit he must still pay, and that he must for the full amount paid in on his stock, resort to his stock and claim on it for while other stock holders in the same whatever amount of money he may have series would lose what they had paid in paid in as dues on his stock, and for this on their stock, or any portion of it, would position they rely on the cases of Asso-not be equality and therefore not equity. The principle is peculiarly applicable in Workingmen's Building and Loan Asso view of the mutual nature of the transactions and business of a building association. I am of the opinion, therefore, that the defendant is not entitled to have the judgment satisfied, except upon payment of the full amount of his loan with interest, against which he will be entitled to credit for so much interest as he may have paid in on his borrowed stock, and I therefore discharge the rule granted February 6th, to show cause why the judgment should not be satisfied. Anchor Building and Loan Association v. Blouse. Building Association Insolvency-Assignment of stock. ciation against Swartz, just decided. While the allegations here do not disclose the real status of the case, the testimony taken under a rule in support of the petition does. Mrs. A. M. Blouse, a married woman, the defendant, was the owner often shares of stock in the above named Association and borrowed out two shares, giving as security her other eight shares and a judgment bond with warrant of attorney to confess judgment for $210. She paid in on her stock in dues. $232.50, and in addition thirty cents per week interest on the two shares borrowed. In December, 1895, she desired to borrow another share, and for this purpose Petitioner was a married woman, and the called on Henry Boll, the clerk of the holder of ten shares in the plaintiff Asso Association, who said he would lay the ciation. She borrowed two shares and gave matter before the Board of Directors and as security her other eight shares and a bond requested her to call in a week, which for $210. She paid in on her stock $232.50, and the weekly payments of interest. Sub- she did, and when she did Mr Boll handsequently she wanted to borrow another share ed her his individual check for $32.50, and applied to the Clerk, who a week after- and told her that was what was coming ward handed her his check for $32.50 and told to her, and that now she did not owe her she was square. She again asked for the loan of another share, but it was refused, on the them anything and that they owed her ground that the Association was short. She nothing. She asked if she was not to get left her book with the Clerk, who testified that the amount of the loan on another share the stock was assigned to him, or at least that of stock and was told they were short of he intended to have her assign it to him, and that he assumed the stock as his. The Association passed into the hands of a Receiver who found petitioner's bond and entered judgment thereon, whereupon a petition was presented to have the judgment satisfied. HELD, that this petition must be granted. The Clerk was an officer and stockholder of the association, who had a right to purchase the stock of another stockholder without any action of the board of directors. He bought the stock and was obliged to take it cumonere to pay the dues and interests on that borrowed as well as any further liability which it might carry with it and he being the debtor to the association, the bond would not protect him against any such liability. money and that the check for $32.50 was what the Association owed her. Mrs. Blouse was repeatedly asked if she did not demand a settlement and while she affirmed the leading question it is evident she did not demand settlement but wanted to borrow another share and only took the check for $32.50 when she was informed that the Association was short of money and that the check was for all that was due her. Mrs. Blouse at this time turned. over her Association book to Henry Boll, who testified that the stock was assigned to The Association either formally or in fact by him and if he didn't have her assign it to the acceptance of dues from the Clerk recog-him he neglected it but intended to have nized him as the owner of the stock; they thereby released petitioner from liability on her bond. Rule to have judgment marked satisfied. The Court's opinion states the facts. Ross & Brenneman, contra. April 6th, 1896. STEWART, J.-The questions arising in this case are different from those in that of the Mechanics and her assign it to him and keep the stock. He further testified that he had said he assumed these ten shares; that his recollection was it was eight shares and that after that he was carrying them and that Mrs Blouse's debt to the building association was paid. It was not the purpose of the defendant to assign her stock, but what she did was what Mr. Boll directed. She seemed to have no very clear conception of what was done in any of the transactions. She |