Annie Katherine Oster v. The Brotherhood of Locomotive Firemen and Engineers. by the Grand Lodge. All the Lodges are one. The subordinate Lodges have no by-laws. They are all under the constitution and by-laws of the Grand Lodge. As neither the constitution nor the by-laws are before the Court, it is impossible to more definitely state their contents and effect.

I do not think the service is good. It has been suggested that the Act of June 20, 1919, P. L. 510, covers a case like this. Even if it can be so construed, unfortunately for the plaintiff, that Act was not in force when the writ issued and the service was made and returned. Mr. Bittner has no official connection with the Grand Lodge of Firemen and Enginemen. He is, at best, only a member of the Order. So far as I can find, service on him as financial secretary and treasurer of the subordinate Lodge was not sufficient. The Act of June 25, 1895, P. L. 280, provides that any fraternal, beneficial or relief society, as defined by section 1 of the Act of April 6, 1893, P. L. 7, then doing business or thereafter admitted to do business within the state, and not having its principal office within the state, and not organized under its laws, "shall appoint in writing the Commissioner of Insurance to be its true and lawful attorney, upon whom all lawful process in any action or proceeding against it may be served." In Rago v. Federation of Sick Benefit Societies, 32 LANC. LAW REVIEW 412, it was decided by Judge Ford that, even though no appointment was made, a service of the Insurance Commissioner was valid. Admitting this conclusion to be correct, the service as here made does not fall within it.

In Jones v. Thistle Lodge, 10 Kulp 52, it was held by Judge Halsey that "the members of an unincorporated beneficial society are not partners, but the society partakes of the nature of a club rather than a trading society," and that a service on the secretary by producing the original, making known its contents, and leaving with him a copy, is not a proper service. And in Ash v. Guie, 10 W. N. C. 198, it was said: " 'Hence, voluntary associations or clubs for social and charitable purposes and the like are not proper partnerships, nor have their members the powers and responsibilities of partners. . . . A benevolent and social society has rarely, if ever, been considered a partnership." It was, therefore, held that, "where a judgment has been obtained against an unincorporated society, and no execution issued, and subsequently the members of such society are sued for the same claims, a plea of former recovery' on their part is a nullity." In addition, it has been decided that, where the service does not show that defendant was a non-resident, the judgment will be set aside on certiorari on the ground that service of the summons on a local agent was not a proper one. Robb v. Huston, 6 Dist. Rep. 452.

Where service of process is illegal and void, it may be set aside on rule. National Foundry Co. v. Wilkoff Co., 27 Dist. Rep. 329.

I am of the opinion that the writ of summons was not in this case properly served, and the service is, for this reason, set aside.

Rule to this extent made absolute.

Court af Common Pleas of Lancaster County

Geib v. Geib.

Note-Accommodation maker-Liability of.

Where the maker of a promissory note receives no value from the payee and the payee continues to be the holder and suffers no injury, the accommodation maker cannot be held liable upon the said note.

In an action on a promissory note alleged to have been given in consideration of the payment by the plaintiff of a note of the defendant's father on which he was an accommodation endorser, an affidavit of defense is sufficient which denies this allegation and avers that the defendant signed the note merely as an accommodation for the plaintiff, who received the proceeds.

Rule for judgment for want of a sufficient affidavit of defense.
September Term, 1919, No. 27.

H. Frank Eshleman, for rule.

F. S. Groff, contra.

December 27, 1919. Opinion by LANDIS, P. J.

The statement as filed in this case sets forth that, on or before March 30, 1917, Frank W. Geib, the father of George W. Geib, the defendant, was indebted to divers creditors in a sum upwards of $2,000.00, and that he was not at that time able to raise money to pay all of them, and suit and execution were threatened; that there was at that time a promissory note held by the Keystone National Bank of Manheim for $365.00, of which Frank W. Geib was the maker and John W. Geib, the plaintiff, the accommodation endorser, and, to avoid suit upon the same, the defendant agreed with the plaintiff that, if the plaintiff would pay to the bank the amount of this note and defer bringing suit against Frank W. Geib, he, the defendant, would give the plaintiff his note for the amount of it and also for $30.00 which Frank W. Geib owed to the plaintiff; that this arrangement was carried out, and that the plaintiff thereby lost the opportunity of collecting his money from Frank W. Geib; that the note thus signed by the defendant was made payable sixty days after date, and, upon its maturity on May 29, 1917, it was renewed for a further period of ninety days, but that the defendant at its maturity refused to pay the same, and continues to refuse to do so.

The defendant, in his affidavit of defense, in paragraphs 3 and 4, denies, without more, the averments of paragraphs 3 and 4 of plaintiff's statement. These paragraphs are the ones containing the alleged arrangement between the plaintiff and the defendant for the making of the note to the plaintiff for the purpose of securing to him the amount of the note due to the Keystone National Bank, with the additional indebtedness. Paragraph 5 in the affidavit of defense alleges that the plaintiff did not pay the note to the Keystone National Bank by reason of any agreement with the defendant, but paid it because he was legally bound to do so. In paragraph 7, the defendant admits that he signed the original note, but alleges that it was executed and delivered by him

Geib v. Geib.

to the plaintiff solely for the plaintiff's accommodation, and without any consideration, and that the proceeds were received by the plaintiff for his own use; and paragraph 8 admits that the defendant executed and delivered the note in suit as a renewal of the note described in paragraph 7, but denies that he ever received any consideration from the plaintiff for the said note, or that he was indebted to the plaintiff at the time of the delivery of the note in the sum of $395.00 or any other sum. This is practically the dispute between the parties.

66

Under the Negotiable Instruments Act of May 16, 1901, P. L. 194, Section 29, an accommodation party is one who has signed the instrument as maker, drawer, acceptor or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party." He is, however, not liable to the principal to whom he is loaning his name simply as an accommodation. If he receives no value from the payee for the making of the note, and the payee, as in this case, continues to be the holder of the instrument, and he suffers no loss or injury thereby, the accommodation maker cannot be held liable upon the said note. It seems to me that this is the issue raised in the present controversy. The plaintiff asserts that the defendant signed the note for a proper consideration, and if the facts so alleged are found to be true, he undoubtedly is entitled to a verdict. The defendant, however, denies that this is the situation. He first denies that there was any such arrangement, and then asserts that, while he signed the note, he did so merely as an accommodation endorser for the plaintiff, and that the plaintiff received the proceeds of the note. If his story is found to be correct, there can be no recovery. An issue of fact is thus made up, which only a jury can determine.

We are, therefore, of the opinion that no judgment can be entered against the defendant at this time, but that the case must be tried by a jury. The rule for judgment for want of a sufficient affidavit of defense is, therefore, discharged.

Rule discharged.

Court of Quarter Sessions of Laucaster County

Commonwealth v. Steiner.

Costs on officer.

Costs imposed on a prosecutor should be stricken off where he brought the prosecution in his official capacity as a special officer of the United States government and without malice.

Rule to strike off costs imposed on prosecutor.

November Sessions, 1919, No. 25.

Chas. L. Miller, for rule.

Commonwealth v. Steiner.

December 27, 1919. Opinion by HASSLER, J.

The jury in this case rendered a verdict of not guilty, and imposed the costs upon the prosecutor, James M. Hepbron. This rule was granted upon his petition to strike off so much of the finding of the jury as imposed the costs upon him. In his petition he alleges that he is a special officer of the United States Government; that he brought the above prosecution in his official capacity as such agent in the performance of his duty, and that he acted without malice. These allegations are not denied. Under these circumstances we are of the opinion that he should not be required to pay the costs, and we therefore make absolute the rule, and strike off so much of the finding of the jury as imposed costs upon him.

Orphans' Court of Denango County

Estate of Edwin M. Zell, dec'd.

Decedents' estates-Labor claim-Presumption of payment.

The presumption is that a day-laborer is paid promptly for work done by him, and a claim for such work for a period of a year should be disallowed where the claimant's alleged accounts are offset by the decedent's books showing payment.

Exception to adjudication.

September Term, 1918, No. 14.

B. F. Davis, for exception.

I. C. Arnold, for accountant.

December 31, 1919. Opinion by SMITH, P. J.

The refusal of the claim of Lewis Montgomery is the subject of exceptions by him. The claimant was a day-laborer and did odd jobs. for the testator, the last of which was husking corn for a few days in the early spring of 1918. The testimony in support of the claim is vague and indefinite. The chief complaint of the exceptant is to the rejection of his "book of original entries," or, may be, to sustaining the objection to his competency as a witness. He can neither read nor write. As a book of original entries he produced a small piece of paper on which were some lead pencil strokes, nothing more. If the rules of evidence had been leniently applied in his favor as was urged, no less consideration could have been shown to the legatees who offered a book of the testator's wherein it appeared that the claimant had not only been paid in full, but that he had been overpaid. The presumption is that a day-laborer is paid promptly for the work done by him, and such a payment is not the sort for which a receipt is taken. The claim is for work alleged to have been done during a period of at least a year. It is highly improbable that this claimant, who undoubtedly needed his earnings, neglected for so long a time to collect what was

Estate of Edwin M. Zell, dec'd.

owing him. The improbability is too preponderating to suppress the presumption that he had been paid.

The exceptions are dismissed and the adjudication is confirmed absolutely.

C. P. AND Q. S. OPINIONS.

Saturday, January 17, 1920.

By JUDGE LANDIS:

A. J. Zercher, administrator of Andrew Eidemiller, deceased, v. John C. Eidemiller. Rule to satisfy judgment made absolute.

L. C. Reisner v. The Teachers' Protective Union. Rule for new trial discharged.

John W. Smith v. the County of Lancaster. Rule for judgment for defendant n. o. v. made absolute.

William C. Pritchard v. D. M. Wenger. Rule to strike off judgment of non-suit discharged.

Millard G. Miller v. Peter F. Sheaffer et al. Rule for judgment for plaintiff n. o. v. discharged.

Susan Calvin v. C. F. Bowman & Company. Rule to strike off judgment of non-suit made absolute.

Adamstown Borough v. Nathan F. Hartman. Rule for judgment for defendant n. o. v. discharged.

Annie Katherine Oster v. The Brotherhood of Locomotive Firemen and Enginemen, etc. Rule to set aside service of summons made absolute.

By JUDGE HASSLER:

A. G. Hamaker, executor of J. R. Bomberger, deceased, v. The Fulton Farmers' Association. Rule for judgment on question of law. Rule made absolute unless amended statement is filed by plaintiff within fifteen days.

The Agricultural Trust Company of Lancaster and Abram H. Eby, trustees, v. Abraham R. Eby. Rule as to costs discharged.

Donegal and Conoy Mutual Fire Insurance Co. v. J. Edward Shaub. Rule for judgment n. o. v. discharged. Rule for a new trial made absolute.

Elizabeth and Harry C. Gardner v. Lancaster Sanitary Milk Company. Rule for judgment for defendant n. o. v. discharged.

Anna Hess v. John F. McAleer, administrator. Rules for judgment n. o. v. and for a new trial discharged.

Michael J. Phelan and Elizabeth Phelan v. Armstrong Cork Company. Rule to amend plaintiff's statement made absolute.

Ephraim S. Herr v. Geo. Al. Lollar. Rule for a new trial discharged.

Alwilda and A. G. Frankhouser v. Peter W. Kreider. Case stated. Judgment for plaintiff for $3,000.

Commonwealth of Pennsylvania v. Guy D. Bitts, embezzlement by employee. Rule for new trial discharged.