Estates of George and Elizabeth Roland.

bursement, his claim is righteous; it was not allowed because the in tentions of the testators were not then properly understood.

The exception filed to the refusal of the claim is sustained, and the decree of distribution is reformed accordingly.

Dinner to Chief Justice Brown.

On Thursday, October 21, 1920, the Allegheny County Bar Asso ciation gave a dinner to Chief Justice Brown, whose term expires this year.

Addresses were made by John C. Bane and Edwin W. Smith, Esqs., and Justice Moschisker.

The Chief Justice responded as follows:

Mr. Toastmaster, Mr. President and Members of the Allegheny County Bar Association:

I should have preferred to put off the robes of office quietly, and to retire from public view unnoticed; but with undeserved thoughtful kindness you have resolved otherwise, and for so doing, as evidence of your esteem, I am sincerely grateful. That you deem me worthy of your regard is most consoling at the close of a career of fifty years in the profession-first, as an active practitioner, and later, in the performance of judicial duties. My race as lawyer is almost run, and be assured that through the days which may be vouchsafed to me in the shades of private life, the memory of this night will be an abiding comfort to the end. No higher honor has come to me than to be honored by you, the distinguished, learned and respected Bar of the great County of Allegheny.

In making formal announcement to the highest Court in the Commonwealth that the great Gibson was dead, Mr. Stevens, preeminent as lawyer, and illustrious as statesman, declared: "All should believe that. the judiciary is the most important department of government, and that great, wise, and pure judges are the chief bulwark and protection of the lives, liberty, and rights of the people." Inspired lips could not have uttered truer words.

The power of government, its ultimate power, to maintain order, to defend property, corporate as well as individual-each entitled to the law's equal protection--to guard the lives, the liberty, and the rights of the people and to promote their welfare, is in the judiciary. This power must rest somewhere, and it cannot be elsewhere. If the judges of the country are pure and fearless, the limitations placed by the people on the other branches of government dare not be transgressed; and the perpetuity of our institutions will not be imperilled either by inflamed popular passion or by encroachments or usurpations, whether attempted by innividuals or by classes, by corporations or by officials of high or of low degree. Executives come and go, and legislatures, National and State, change, but the law abides with its enduring unwritten principles.

Dinner to Chief Justice Brown.

for the maintenance of government and the preservation of society. Its mouthpiece is the judge.

In committing to the legislature of our State the power and authority to enact written laws for them, the people have declared in their constitution that their representatives shall not enact what they have specifically forbidden. Unmindful of the restrictions placed upon them, or not correctly understanding them, legislatures have passed, and executives have approved, what the people have forbidden. To the judiciary alone can they turn for redress, and, with the keenest sense of the responsibility imposed upon them, the judges of our State have unfalteringly declared the joint action of legislature and executive to be void whenever it has been in contravention of our constitution; and from such a decree, by which both the other branches of the State government must abide, there is no appeal. So in National legislation when, under delegated powers committed to the general government, Congress attempts to do, even with the approval of the President, what the people have not permitted it to do, there is but one power to save the country from the consequences of legislative wandering beyond constitutional. limits, and that power is the federal judiciary. It has been, and must continue to be, the bulwark of our liberties, if they are not to perish. Whether judges are elective or appointive, their transcendent power ought to be the uppermost thought in the minds of the people when electing them, and in that of the executive when appointing them; and this applies to all judges, of inferior as well as of the highest courts. Indeed, of more importance to every home and every family than the election of legislatures, governors, and even presidents, is the selection of the district judge, to whom, in the first instance, is committed the law's protection of life, liberty, and property.

While what I have just said is most true, it is always to be remembered that in the administration of justice the Bar is the helpmeet of the Bench. Judges come from the ranks of the profession, and the measure of their usefulness in the intelligent and proper discharge of the grave duties and responsibilities imposed upon them depends largely upon the support given them by he profession. The judge is no more learned than his fellows at the bar, who bring to his assistance the results of learning and research equal to that of his own. Back of what a judge is not displeased to hear called his learned opinion, there is, as a rule, the learning of counsel in helpful briefs. This I say from experience, and not merely from observation; and from it there will be no dissent from any of my colleagues here present. And how can always needed help come to the Bench from any other source than from members of the Bar, sworn officers of the Court, who are loyal to their high profession; who know that it stands for the administration of justice upon the earth; who feel that above all other considerations must be sincerity and zeal in the work to which they have committed themselves; who plead for no man's cause that is not just, and defy the world for him whose is, and who, with clear and intelligent comprehension of the fundamental principles of truth and right, help to make

Dinner to Chief Justice Brown.

more enduring the foundations upon which society and good government rest?

This day, just 21 years ago, I took the oath of office, and left the charms of fellowship with colleagues in the active practice of the profession for association with judicial brethren. Those who then welcomed me to judicial life are all gone, and of the very many pleasant memories of them, none are more so than that of their estimate of the Bar of this County. Then, as now, its helpfulness to the Bench was recognized in its learning, high sense of professional propriety, and devotion to law, and to this helpfulness may fairly be attributed the exceptionally well done work of your own judges. The time for my speaking words of flattery is past, and I am pleased to say to you as of a truth, that you are maintaining the traditions of your Bar, lustrous with great names; and keep on doing so; keep on extending your helping hands to my cherished colleagues, to whom I shall soon, reluctantly, bid official adieu. And may I advert to another relation of the Bench and Bar: It is the medium through which goes out to the people confidence in the uprightness, wisdom, and courage of their judges. The highest confidence of man in man is to be found in our profession. The client believes in his lawyer, with confidence to be envied by priest or physician, and it is therefore to the Bar that the faithful judge may ever turn for a just judgment on the performance of his high duties, to be reflected in the minds of the people. With the intimate, continually existing relation between the Bench and Bar, their constant cooperation is needed in the administration of justice.

Well-nigh a half-century ago one of my predecessors, who had achieved honor and renown in his profession, and the highest eminence in his Court, thus spoke to the Bar of Philadelphia:

"The Bar-its associations and fellowships; its knightly and courteous contests; its brilliant displays of wit and eloquence, of mental acumen and forensic learning; its love of right and manly independence; its kindly and ingenuous friendships-these are the true love of the lawyer, the guiding star of his hope and the gratification of his early ambition." May I, as if for a moment I had answered the "call of the wild" and were once again among my fellows at the Bar, where I love to be, add to these words: The career of a lawyer means participation in those knightly contests for the right, and in those displays of wit and wisdom, of mental acumen and forensic learning; a share in that love of right and manly independence; enjoyment of those kind and ingenuous friendships, and it means what crowns them all-peace in the evening, with those who were with us in the arena through the day; for out of our contests and rivalries come neither wounds that last nor broken bonds of brotherhood. At twilight we cover the fires of each day's strife with the ashes of forgetfulness and charity, to be, perhaps, rekindled in the morning-but to burn only through the day, until the last night shall come.

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And now, brethren of the Bar, Hail, and Farewell!

Court of Common Pleas of Lancaster County (In Equity)

Hazlitt A. Cuppy v. Artemas Ward, Ideal Cocoa & Chocolate Co. et al. Corporations-Agreement between owners of stock-Incorporated partnership-Equity-Jurisdiction-Uniform Partnership Act of March 26, 1915, P. L. 18.

Where two stockholders acquire and hold under mutual agreement all the stock of a corporation, they occupy as to each other the relation of partners, and where no rights of other parties or creditors are concerned, equity will restrain one such partner from violating the rights of the other under such agreement. Whether the agreement relates to the formation of a new corporation or the acquisition and control of an existing corporation is immaterial, and the organization of the corporation cannot be used by one party to deprive the other of his rights.

Whether or not the corporation adopted the agreement is immaterial, as it is merely the instrument through which the business of the partners is carried on.

In such case, where one partner has deprived the other of his rights in the management and control of the corporation under their agreement and a valuable business is being injured, there is no adequate legal remedy, and equity has jurisdiction.

335.

Bill for injunction, etc. Demurrer. Equity Docket No. 6, page

S. R. Zimmerman and Frank E. Savidge, for plaintiff.

John A. Coyle and Henry P. Brown, for defendants.

May 15, 1920. Opinion by HASSLER, J.

The plaintiff is a resident of Lititz, Lancaster County, Pennsylvania. The Ideal Cocoa & Chocolate Company, one of the defendants, is a corporation, incorporated under the laws of the State of Pennsylvania, with its principal office at Lititz, Pennsylvania. William H. Muth, another of the defendants, is a resident of Lititz, Pennsylvania. Artemas Ward, another of the defendants, is a resident of the State of New York. The residences of the other three defendants have not been shown.

The Ideal Cocoa & Chocolate Company and William H. Muth, the two defendants upon whom the subpoena has been served, have filed demurrers to the bill. We will consider the demurrer of the Ideal Cocoa & Chocolate Company first.

The first reason contained in the demurrer is, that the bill of complaint does not state facts sufficient to constitute a cause of action against this defendant, and the second is, that it does not appear that the plaintiff is entitled to any relief against this defendant. These reasons may be considered together.

The facts appearing in the bill, which we must accept as true in disposing of the demurrer, are as follows:

The plaintiff is an experienced manufacturer of cocoa and chocolate. In January, 1911, he obtained an option from certain shareholders of the Ideal Cocoa & Chocolate Company to purchase their stock at $115.00 a share. The capital stock of the company consisted of 3,000 shares, of which 2,843 shares had been issued and 157 were unissued. VOL. XXXVII, No. 55

Hazlitt A. Cuppy v. Artemas Ward, Ideal Cocoa & Chocolate Co. et al. The par value of each of the shares of stock was $100.00. At the price of $115.00 per share, it would have required $345,000.00 to purchase the entire capital stock of the company. In order to obtain the necessary money to purchase the stock, the plaintiff and Artemas Ward, one of the defendants, on March 8, 1911, entered into a written agreement, by the terms of which Artemas Ward agreed to furnish $325,000.00 and the plaintiff $25,000.00 for "the purpose of purchasing the entire capital stock of the Ideal Company aforesaid in accordance with the terms of the option " held by the plaintiff.

By the terms of the agreement, the said Cuppy and Ward were to conduct and carry on the business of the Ideal Cocoa & Chocolate Company, and out of the dividends earned and declared by the company, the amount so advanced by them was to be repaid. Fifty-one per cent of the stock was to be placed in the name of Ward and to remain in his name for a period of five years. After the expiration of that time, and when the amount advanced by Ward was repaid to him out of the dividends, he was to transfer two per cent of the capital stock of the company to Cuppy. This would give Cuppy the control of the corporation, if they succeeded in the purpose of their agreement, which was to purchase the entire capital stock of the company.

It is further stipulated in the agreement that the plaintiff was to devote himself exclusively to the business of the company, and was to receive $10,000.00 per annum as compensation, until the transfer of the two per cent of the authorized capital stock of the Ideal Company by Ward to him. He, the plaintiff, was to have the management of the factory, and was to fix the amount to be used for advertising, which amount was to be expended by the said Ward, who was engaged in the advertising business in the City of New York.

In furtherance of the agreement, the said Cuppy and Ward purchased 2,843 shares of the capital stock of the Ideal Company, being all that had been issued, 1,530 shares of which, being fifty-one per cent of the entire capital stock of the company, were placed in Ward's name, and 1,313 shares in the name of Cuppy.

Ward and the Ideal Company "have refused and neglected to, or to consent to, have transferred or issued to the plaintiff " the said 157 shares of stock, which have not thus far been issued.

The plaintiff, Cuppy, undertook the management of the Ideal Company, as provided in the agreement, and has continued in such management up until April, 1918, with the full knowledge and consent of Ward. This management was quite successful; the business has been greatly enlarged, and the company has acquired a surplus of over $300,000.00. By agreement of Ward and Cuppy, no dividends have been declared. The earnings have been used to increase the working capital and acquire additional assets. The company is now in a position to pay dividends.

Notwithstanding the successful operation of the company, and in violation of their agreement, Ward, in April, 1918, excluded the plaintiff from the management of the enterprise, and has taken possession and control of the Ideal Cocoa & Chocolate Company, by electing