The confirmation of the widow's ap: praisement is revoked annulled and set aside and the costs of this proceeding directed to be paid out of the estate.

estates without employing legal counsel. Fetter ($1,700 for Yoder and $300 for Had this executrix obtained the advice of Fetter.) In the note it is stated that the a lawyer at the beginning instead of wait- maker had deposited with the note said. ing until her own laches had forfeited her bill of sale, and that the holder was auright to claim the exemption, both her thorized, upon non-performance of the rights and those of the creditors would promise to pay, to sell the goods and aphave been protected. ply the proceeds in payment of the debt. remains in possession of the same, passes A pledge of goods, where the pledgor no title to the pledgee as against creditors of the pledgor. An exception is where the subject is intangible, incapable of manual possession or of actual delivery. In Collins' Appeal, 107 Pa. 590, (decidLehigh Co. ed in 1883,) and Wallace's Appeal, 104 Pa. 559, decided in 1883, it was held that within said exception to the rule requiring possession by the pledgee the pledge by a was the case of the partner of his interest in the partnership to secure a loan of the money which was put in the firm as part of such partner's capital. In this case the property, that is, beds, tables, chairs, etc.,

O. C. of

Krout's Estate.

Personal property-Pledge.

A pledge of goods, when the pledgor remains in the possession, passes no title to the pledgee

as against creditors.

Exception to auditor's report.

M. C. L. Kline for exceptants.

C. R. James and C. A. Groman for was capable of manual possession and of

creditors.

October 14, 1895. ALBRIGHT, P. J.The balance for distribution, $346.96, is the proceeds of the furniture, etc., belonging to and in a hotel occupied by decedent at the time of his decease (October 30, 1894,) which was sold by the administrator. That sum is claimed by D. A. Yoder on the ground that the furniture, etc., belonged to him as a pledge for an unpaid debt exceeding said sum. It is a fact that at the said sale by the administrator, Yoder stated to the latter that he might sell the furniture, etc., but he (Yoder) would claim the proceeds. The fund was distributed by the learned auditor on the preferred claims for servants' wages and for funeral expenses. Said claims were not paid in full.

actual delivery; no sort of property could be more so.

But exceptant's counsel argues that Collins' Appeal decides that where by agreement of the parties, the pledgor is to retain possession, said rule does not apply. It could be found that the understanding was that Krout was to have possession of the goods pledged until the note had matured, which was one year after the pledging.

this case, is answered by what was said This contention, in view of the facts in lor, 156 Pa. 579: "As a general rule in by Chief Justice Sterrett in Girard v. Melhis creditors, assign personal property thts state a debtor cannot, as against as security, etc., and at the same time retain possession thereof as theretofore. Possession must accompany the transfer On March 27, 1894, Krout, the dece- as an essential part thereof. If the propdent, took possession of said hotel com- erty is permitted to remain in the exclupletely furnished, and he continued in sive possession and control of the assignor such possession of the house and goods to the transaction, while good as against the time of his decease. He bought the himself, is a constructive or legal fraud said furniture, etc., from Yoder, who upon his creditors, and may be so treated had po session of it until his sale to Krout. by them. To hold that exclusive posThe transfer was evidenced by a bill of session may be retained by the debtor, sale of March 27, 1894; the consideration provided he agrees to hold as trustee was $4,100; at the same time and in part until the same is demanded by his credipayment Krout made and delivered his tors, or until de fault is made, would be to promissory note for $2,000, payable one permit that to be done secretly and by year after date to said Yoder and M. C. indirection which the law condemns when

Having decided against exceptant's claim on another ground it is unnecessary to dwell upon said view of the auditor.

done directly and openly. This princi- Wylie's Appeal, 92 Pa. 106; Jeffrie's Apple is so firmly grounded in our jurispru- peal, 33 Pa. 39. dence that no court of equity should lend its aid in the enforcement of a transac tion that is not in harmony with the settled law on that subject * * There are, it is true, some exceptions. to the general rule but they are grounded upon the special facts and circumstances of each case; such as Collins' Appeal, 107 Pa. 590 and Wallace's Appeal, 104 Pa. 559

If that were being considered; if the inquiry was whether the remedy of the pledgee was not an action of replevin for the goods, or of trover (now trespass) or assumpsit for the value thereof, it would have to be born in mind, that when the pledgor died he had title to the goods subject to the lien of the pledgee.

In such inquiry the cases of Marshall v. Hoff, 1 W. 440; Miller's Appeal, 84 Pa. 391; Highs Estate, 136 Pa. 22; Qualter's Estate, 147 Pa. 124; Osman's Estate, 161 Pa. 543. would also be in point. In the last two cases it was held or by mistake or in ignorance of his rights that where an administrator inprovidently or by mistake or in ignorance of his rights charged himself with a fund not belong

Here creditors challenge the right of the pledgee to have the goods, or what amounts to the same thing, the proceeds of the sale thereof. It is true the claim ants who furnished the goods and services for the burial of the pledgor are not strictly creditors of the pledgor, but our law recognizes the necessity of decent burial, and provides for the pay ment of the expenses thereof out of the decedent's estate where such demand does not conflict with the rights of the credi-ing to the estate, the court might permit him to withdraw it from the account. As tors who have liens on land. The Act of: 1834 provides that funeral expenses, under the facts that I would impose on to other matters raised by the exceptions:

medicine and attendance in the last ill

ness and servant's wages not exceeding one year, shall be first paid out of decedent's estate. As affected by a secret lien on the goods those who provide the means of burial are entitled to stand on the same ground as those who give credit in the lifetime of the dead person. In this case it is shown that the undertaker Iwould have buried the deceased more cheaply if he had not thought that the dece dent had owned the property in the hotel-the probabilities are that he would have furnished nothing without actual payment.

back and reduce the amount of his claim, Mr. Larany the costs of the reference but said costs and the contemplated reduction are less than the deficiency of the other creditors to whom there was distribution proportionately They do not complain. The change alluded to would not benefit the exceptant.

In the absence of evidence showing the time necessarily devoted by the auditor to the case, the court cannot declare that

the charge of the auditor is excessive. It does not seem to be too high.

The exceptions are dismissed, and the report confirmed.

QUARTER SESSIONS.

But the decision against the pledgee is not based on the motives of the creditors, but upon the rule that retention of possession by the pledgor was a legal fraud. S. of

Com. v. Bilski.

Lackawanna Co.

upon the creditors, including those who Relief of bail-Forfeiture-Deduction of without knowledge of the secret lien provided for the burial of the pledgor.

expenses.

Where the surety on a bail bond takes out a bail piece and goes to some expense to produce will not be remitted; but the expense of the the man, but does not succeed, the forfeiture effort to produce the defendant will be deducted in settlement of the recognizance.

The learned auditor rested his decision adverse to the exceptant mainly on the ground that the claim must be rejected because it is not a claim of a creditor, le gatee or next of kin, the demand being for the fund because the claimant was en titled to the goods, the sale of which produced the fund, citing McBride's Appeal, 72 Pa. 480; Braman's Appeal, 89 Pa. 78; contra.

Rule to remit forfeiture of recogniz

ance.

Frank 1. Okell for rule.

John R. Jones (District Attorney),

we

relieved upon making the expense of the default
good to the county.

Application to remit forfeiture.
F. S. Stark for petitioner.

H. A. Knapp (County Solicitor), contra.

October 14, 1895. ARCHBALD, P. J.On July 6, 1894, the defendant gave bail, with Michael Scharak as surety, in the sum of five hundred dollars to answer the charge of felonious wounding. On Sep. tember 10 a true bill was found against him, but when the case was called October 18, he did not appear and a capias in the October 14, 1895. ARCHBALD, P. J.— hands of the sheriff has failed to find him. This was a case of aggravated assault and Upon what grounds on this showing it is battery, or at least it was that in name. expected that shall relieve the bail The parties settled the case and so inhardly see. It is true he has taken out a formed the bail, and the prosecutor did bail piece, and been under some expense not appear in court to prosecute. But to produce the man, which we are will- the District Attorney knowing nothing ing should be credited to him, but this of this, as we may assume, had the redoes not satisfy the recognizance. His cognizance forfeited, and hence the proundertaking was that the defendant ceedings which have been instituted to should appear and answer the charge and enforce it. We will relieve the bail upon he bound himself in the sum of five hun this showing, upon his making good to dred dollars that he should do so. As the county what it is out by reason of the the one alternative has failed, there is default, and we suggest that the case be nothing to do but enforce the other. The then brought to an end by a nol. pros. entry of bail would be meaningless if this result did not follow. It is fixed in each case at an amount supposed to be commensurate with the gravity of the charge, and such as will be likely to produce the defendant when needed. If no penalty is to attach to the failure to do so, the law might as well be abrogated, for that is the whole life of it. We might just as well exact no bail at all as to enforce none after it has been exacted. It is no doubt a hardship on the bail to be left in the lurch by the man he has befriended, but preme Court cases.) this is true in every case where the principal defaults and leaves his surety to settle for him. In the present instance an effort has been made, as we have seen, to secure the return of the defendant. We are willing that the expense of this should be deducted from the amount of the recognizance, but this is as far as we can go. The balance of it must be paid.

The rule to show cause why the forfeiture should not be remitted is discharged, with leave within ten days to make proof of the amount expended by the bail to bring in the defendant, which shall be thereupon deducted and remitted from the amount of the recognizance.

It is ordered that upon payment, within twenty days, of the costs of this prosecution, and of the costs incurred in the Common Pleas on the scire facias to enforce the forfeiture, together with a counsel fee of $15.00, the forfeiture be remitted, or otherwise that the same remain in force.

Abstracts of Recent Decisions.

(Cases not otherwise designated are Su

Act of 1881 unconstitutional-The Act of June 10, 1881, P. L. 106, is an attempt to extend two several Acts by their titles, and as such is unconstitutional and void, as being in conflict with Art. III, Section 6, of the Constitution of Pennsylvania. There is no other law authorizing an interpleader to try the title to property seized under a writ of foreign attachment.-Reynolds Lumber Company ". Reynolds, (McKean C. P.,) 6 Delaware County Reports 255.

Criminal Law-Indictment - Conduct of prosecutor-An indictment charging defendant with assaulting a police officer will be quashed if the said indictment does. not contain an averment that the offence therein charged was committed with knowledge on the part of the defendant of the official character of the officer. A motion to quash' an indictment will be sustained if it appear that the prosecutor

is found with a grand juror at a hotel, be good between the parties. Priority in treating said grand juror to drink, the the distribution of the proceeds of a treating having been done on the even- Sheriff's sale may be determined by a ing prior to the finding of a true bill by feigned issue.-Grater et al. v. Sunderthe grand jury. A policeman, by virtue land, (Montgomery C. P.,) 11 Montof his office as a conservator of the peace, gomery County Law Reporter 195. has the right to arrest all persons who are guilty of a breach of peace or other violation of the laws or of the borough ordinances, in his presence, without a warrant, but the arrest must be made at the time of the offence or immediately after its commission, or in fresh pursuit of the criminal —Com. v. Cosler, (Monroe S.) 8 Kulp 97.

Evidence-Weight of.-Where there is an allegation of forgery, the opinion of a witness given from inspection of the sig nature cannot have the same weight, all other things being equal, that is given to the positive declaration of a witness who claims to have been present when the signature was made. Hunsberger's Estate, (Montgomery O C.,) 11 Montgomery County Law Reporter 165.

themselves.

Road Law-Road viewers cannot swear Road viewers should not permit themselves to be entertained by anybody interested for or against the road. Road viewers should not permit themselves to be affected by clamor or by taking of votes for or against the road from persons assembled at the view. Viewers should not allow themselves to be privately approached concerning the view. It is ordinarily an impropriety and sometimes a misdemeanor, for anybody interested for or against a road, to offer hospitality to a viewer. - South Beaver Township Road, (Beaver Q. C.) 8 Kulp 75.

Rule of law as to fraudulent contract.A party to a fraud will not obtain relief in the courts from the consequences of hs unlawful act. Where a defendant is reExecutor's account-Contingent interest. lieved from the consequences of his un-Funds received by the widow from bene- lawful act upon the facts found by a jury, ficial orders, to which the decedent be- such relief must come by the interposilonged, for funeral expenses, can not be tion of equity. The rule of law is to diverted from that use. She can not put leave the parties where it finds them, them in her pocket and call upon the ex- giving no relief and no countenance to ecutors to repay her for outlys in that contracts made in violation of statutes. direction. The executors have nothing | A deed made to defeat and defraud credito do with such funds. Where a testator tors is void as against creditors; but not devises property to his wife, coupled with so against the grantor himse'f or his heirs. a condition that she remain unmarried, McCarty v. Scanlon, Adm., (Lackasuch provision is not in terrorem and wanna С. P.) 1 Lackawanna Legal void, as in general restraint of marriage, News 231. but is a valid exercise of his right to attach conditions to his gift, and those having interests in the remainder are entitled to be secured. Where a deposit in a savings bank had been changed by order of decedent so that it stood in the joint names of himself and wife it was a fully executed gift. From that time on the account was as much under her control as his, therefore such fund could not pass to the executors. -Griffith's Estate, (Lackawanna O. C.) 1 Lackawanna Legal News 311

Trust-Conflicting.-Where all persons interested in a trust for a public purpose accept another trust having reference to the same general purpose, upon the faith of which money is expended and improvements made, neither party should be allowed to dispose of the property to the disadvantage of the other.-Robert's Petition, (Montgomery C. P.) 11 Montgomery County Law Reporter 184.

Will--Probate--Interest-Lien and attaching creditors of one who under the intestate laws would have an interest in

Mortgage-Payment-Lien-Payment his ancestor's estate, are not "persons in

of a mortgage by the mortgagor or with his money satisfies the debt as of the time payment is made. An agreement to keep the security alive for a new loan is of no legal force as to creditors; but may

terested" entitled to appeal from the probate of a will, even when the will is alleged by such creditor to be a forgery.Shepard's Estate, (Montgomery O. C.) 11 Montgomery County Law Reporter 178.

York Legal Record. admitted to the York Bar, February 14,

C. B. Wallace, Esq., a member of the Bar, died suddenly on Wednesday, November 13, 1895, while driving in his buggy. He left the stable about 3:50 p. m., and before 4:00 o'clock was discovered to be dead. His death was due to heart failure.

Charles B. Wallace was born in Chester county, Pa., October 14. 1819, and was the son of Thomas and Mary (Jackson) Wallace, natives of Chester county, Pa., and Maryland, respectively. Mr. Wallace was reared a farmer, but received a good education, and for some years was engaged in teaching school both in York and Lancaster counties. In 1846 he commenced reading law with Thaddeus Stevens, of Lancaster. In 1847 he came to York, taught school in the county and read law under Judge Durkee.

1849, and has been in active and continuous practice ever since. He was noted for his courtesy and integrity, and was one of the most influential members of the bar. R. E. Cochran, Esq., on Wednesday afternoon announced in court the sudden and lamented death of Mr. Wallace, and after a few feeling remarks by Judge Bittenger, the court was immediately adjourned as a mark of respect to the memory of the deceased.

The York County Bar Association pursuant to the call of Hon. John W. Bittenger, assembled in the court room on Friday morning, November 15, 1895, at 10 o'clock, to take action on the death of Charles B Wallace, Esq., one of the oldest members of the bar.

Thirty nine members responded to the call and a few minutes after 10 o'clock Richard E. Cochran, Esq., vice president of the Association, called the meeting to order and stated the object of the call.

On motion of Mr. Cochran, Hon. John W. Bittenger presided over the meeting. On motion of Edward Chapin, Esq., J. E. Vandersloot, Esq., acted as secretary.

After the meeting was fully organized, Judge Bittenger made the following address:

In February, 1849, he was admitted to the York county bar and has ever since been in active and successful practice. February 6th, 1848, he married Miss Francis A. Levergood, daughter of the Gentlemen of the Bar:-Agreeably to a late Jacob and Fanny Levergood, of time honored custom of the bar, to meet Wrightsville. To this union there were to take suitable action upon the death of born three children, viz: Mary F., wife a member, we meet this morning to pay of Edward M. Vandersloot, Clayton J. an humble tribute to the memory of our Wallace, member of the firm of Wallace deceased friend and professional brother, & Vandersloot, wholesale dealers in boots Charles B. Wallace, Esq., who died sudand shoes, and Mrs. Louisa L. Taggart, denly last Wednesday afternoon. The of Salt Lake City, Utah.deceased was one well known to us all as one of the oldest members of the bar, having been admitted in 1849 and practiced continuously here since.

During his residence in York, which covered a period of forty-eight years, he was identified with all progressive measures and a number of the leading business interests of the City. He was one of the originators and the president of the City Bank, which position he was obliged to resign about a year ago on account of failing health. For six years he served most acceptably as a member of the York Board of School Control. At the time of his death he was a director in the Farmers National Bank, president of six of our most flourishing building and loan associations, and a director of and counsel for the York and Peachbottom Slate Manu- While he was retiring in his disposifacturing Company. Mr. Wallace was tion, he was firm in his conviction and

He had attained an advanced age and was at the time of his death in his seventyseventh year. I have had the pleasure of intimate association with Mr. Wallace from 1860. To me he has always sustained the relation of an agreeable associate and constant friend, ready to confer a favor and give substantial proof of his attachment on all proper occasions. His professional course has been one to be appreciated and admired by his friends and associates of the bar.