Quarter Sessions of Lancaster County

Commonwealth v. Newhouser.

Costs on prosecutor-When will not be stricken off.

The imposition of costs on a prosecutor by the jury will not be stricken off where the charge was not of a grave character and grew out of a transaction involved in another complaint.

Assault and battery.

January Sessions, 1919, No. 23.

John A. Coyle and B. F. Davis, for rule.

John E. Malone and Chas. W. Eaby, contra.

October 18, 1919. Opinion by HASSLER, J.

What we have said in the case of Com. v. Isaac Richmond, January Term, 1919, Indictment No. 21, in the opinion filed this day, applies with equal force to this case. As we do not think the testimony at the trial showed that this complaint was justified, nor that it was a case of much importance, we discharge the rule to show cause why so much of the finding of the jury as imposes the costs on the prosecutor should not be stricken off.

Rule discharged.

Common Pleas of Lancaster County

Agricultural Trust Co. and Abram H. Eby v. Abraham R. Eby. Equity jurisdiction - Tenants in common-Partnership-Bill for accounting-Demurrer Amendment-Equity Rules 14 and 49-Act of June 24, 1895.

While tenants in common are not partners by reason of their owning land as such tenants, they may by agreement assume that relation in forming it, and if they do so one of them may file a bill in equity against the other for an accounting.

In such case the allegations in the bill that the parties were tenants in common in the ownership of the land, but partners in farming it, are not contradictory, nor is it necessary to allege how the partnership was formed.

Where, after a partnership between tenants in common has been dissolved, one tenant remains in possession of the real estate, the other may sue under the Act of June 24, 1895, P. L. 237, for his share of the income or rental value of the property, or if there be proceedings in partition, to have his share deducted from that of the tenant in possession in distributing the proceeds of such sale and partition. He therefore has an adequate remedy at law to recover such share and he cannot recover the same in equity.

Under Equity Rule 49 a plaintiff may amend his bill, even after demurrer, upon order of the Court, and under Rule 14 if such amendment contain less than one hundred words it need not be printed.

Demurrer to bill of complaint.

Equity Docket No. 6, page 160.

Chas. W. Eaby and John E. Malone, for demurrer.

John A. Coyle and B. F. Davis, contra.

Agricultural Trust Co. and Abram H. Eby v. Abraham R. Eby..

Under Rule 49 of the Equity Rules a plaintiff may amend his bill, even after demurrer, upon order of a judge of the Court. Rule 14 provides that if such amendment contain less than one hundred words, it need not be printed. The plaintiff's application to amend its bill by the addition of the words, "This case is of such a nature that no adequate remedy can be obtained at law, and that if an adequate remedy exists it would be attended with great additional trouble, inconvenience and delay," is allowed, and the rule to show cause why the bill should not be so amended is made absolute.

The bill is filed in this case by the Agricultural Trust Company, as trustee of Isaac R. Eby, against Abraham R. Eby. It is alleged in it, among other things, that Isaac R. Eby and Abraham R. Eby own a farm in this county as tenants in common; that they farmed it as partners from April 1, 1889, to May 1, 1916; that on the latter date the partnership was dissolved; that the effects and property of the partnership, consisting of livestock, farm products, crops, farm utensils and implements, household furniture, goods and chattels on the premises of various description used in said farming business, were left in possession of the defendant, who has failed to deliver the same or account for the same to the plaintiff. It is further alleged in the bill that from May 1, 1916, when the partnership was dissolved, until July 28, 1917, when under proceedings in partition the real estate was awarded to the defendant, he, the defendant, farmed the land, and never accounted to the plaintiff for any portion of the profits belonging to Isaac R. Eby. The plaintiff prays (1) for the appointment of a receiver to take charge of all unconverted assets of the partnership, &c., and (2) an account of all money due and owing to said partnership by the defendant.

To this bill the defendant has filed a demurrer, in which six reasons are given why it is not sufficient to entitle the plaintiff to the relief prayed for.

The first two reasons are general and without merit.

The third reason is that the plaintiff cannot maintain the bill against the defendant as tenant in common. There is no merit in this reason because the plaintiff does not ask an accounting as tenant in common. A partnership is alleged to have existed between them, and it is only for what Isaac R. Eby is entitled to, growing out of that relationship that the defendant is asked to account. It is not alleged in the bill that the defendant has any of the profits arising out of the business in his possession, or that he has failed to account for any such received during the continuance of the partnership. What he is asked to account for is contained in Paragraph 6 of the bill, and is only such property as was used in the business for which the partnership was formed, and of which he took possession.

While tenants in common are not partners by reason of their owning land as such tenants, they may by agreement assume that relation in farming it, or in forming or promoting any other enterprise with and upon it: Schaeffer v. Fowler, 111 Pa. 451; Dunham v. Loverock, 158 Pa. 197; Bank v. Osborne, 159 Pa. 10; Taylor v. Fried, 161 Pa.

Agricultural Trust Co. and Abram H. Eby v. Abraham R. Eby.

53. As it is alleged in the bill that they did assume the relation of partners in farming the land, and we must accept that to be true in disposing of this demurrer, we cannot sustain the demurrer because of anything alleged in this reason.

The fourth reason alleges that the bill is not good because the allegations in it are contradictory. We do not agree with it. The allegations that they were tenants in common in the ownership of the land, but partners in farming it, do not contradict each other, nor is it necessary to allege how the partnership was formed. The fifth reason is therefore without merit.

The sixth reason is that if the plaintiffs have a cause of action against the defendant they must recover in law in accordance with the Act of June 24, 1895, Section 1, P. L. 237. This Act of Assembly provides that where one tenant in common is in possession of the real estate, the other may sue for his share of the income or rental value of the property, or if there be proceedings in partition, the share to which the tenant not in possession is entitled should be deducted from that of the tenant in possession in distributing the proceeds of such sale and partition.

The question raised in this reason, therefore, only applies to such profits as were made on the farm after the dissolution of the partnership, May 1, 1916, to the date when the defendant acquired title to the real estate in the partition proceedings, viz.: July 28, 1917.

The seventh paragraph of the bill alleges that the defendant, after the dissolution of the partnership on May 1, 1916, continued to live upon the farm until it was awarded to him in the partition proceedings on July 28, 1917, during which time he received the crops and retained the other personal property, and has used and converted the same to his own use, but has failed to deliver or account to the plaintiff for the share of Isaac R. Eby. The demurrer raises the question whether the plaintiff should not recover what is due to its cestui que trust under the Act of June 24, 1895, Section 1, P. L. 237, and not in this proceeding.

The Act of June 24, 1895, P. L. 237, Section 1, provides that where one tenant in common has not received his share of the rents, issues or profits of real estate he shall sue for recovery of the same, or in case of partition of the real estate the party in possession shall have deducted from his distributive share the rental value to which as cotenant he is entitled.

The allegation in the bill is that no co-partnership existed between the plaintiff cestui que trust and the defendant during this period. Whatever it is entitled to during that time, therefore, should have been deducted from the distributive share of the purchase money due the defendant in the partition proceedings, or recover the same in an action at law. Whether the partition proceedings bars its right to recover is a question with which we are not concerned here, as it is certain that the plaintiff, for all profits arising after the dissolution of the partnership has, or did have, an adequate legal remedy, which must be pursued, and that it cannot recover in this proceeding. The demurrer is, therefore, sustained as to so much of the seventh paragraph of the plaintiffs' bill

Agricultural Trust Co. and Abram H. Eby v. Abraham R. Eby.

as asks for an accounting of anything due to Isaac R. Eby arising from defendant's operation of the farm and the use of the personal property of the partnership, between May 1, 1916, and July 28, 1917. All the rest of the demurrer is overruled, and the defendant is directed to answer all of the bill with the exception of what we sustain the demurrer to, within fifteen days from the date of filing of this opinion.

Orphans' Court of Lancaster County

Estate of Amos F. Bruce, dec'd.

Widow's appraisement-Amount of.

On exceptions to a widow's appraisement it appeared that the witnesses for the exceptants had more experience in the horse and cattle market than those for the widow and they put a higher valuation on horses and cattle appraised.

Held, that the estimates should be averaged and the appraisement raised accordingly.

Exceptions to widow's exemption.

February Term, 1919, No. 99.

John M. Groff, for exception.

J. E. Senft, contra.

October 9, 1919. Opinion by SMITH, P. J.

Exception is taken to the widow's appraisement in this estate. There is nothing to show that the duly appointed appraisers were not competent or failed to appreciate the responsibilities of their position. To the best of their judgment they placed a fair and just valuation on the goods and chattels to be set aside for the widow. As far as the testimony shows, if there was any factor which might have influenced them, it was not favorable to the widow, and while it is contended by the exceptants that the total valuation is too low, it is admitted that some of the articles have been valued too high. The whole question resolves itself into that of the exercise of good judgment, which is always an indeterminate quantity. No invidious distinction can be made between the witnesses, yet it appears as if those called by the exceptants may have had a wider experience in the horse and cattle market than some of those called by the widow, which would give them an advantage in estimating the probable value of horses and cattle. Therefore, as they put a higher valuation on these animals than did the appraisers, whose valuations are approved by witnesses, the estimates will be averaged, thereby increasing the appraised valuations as follows: Jersey cow, $14.50; black cow, $17.50; brindle cow, $20.00; black heifer, $15.00; red heifer, $15.00; bay horse, $15.00; making the total increase in the appraised valuation $97.00. It seems that a bay mare which had been appraised at $9.00 is dead. The contention of the exceptants, therefore, is sustained to the extent of $97.00. Costs to be paid out of the estate.

Court af Quarter Sessions of Lancaster County

Commonwealth v. Altland.

Banking—Improper credit-Fraudulent conversion of property-Act of May 18, 1917, P. L. 24.

A defendant who had an account in a bank, and was there credited by mistake with a sum of money deposited by another person, and who subsequently closed his account, withdrew his balance and refused to return the amount when notified, although he must have known the credit was wrong by the accustomed volume of his bank business, was properly convicted under the Act of May 18, 1917, P. L. 241. In such case the offense was committed, not when the defendant obtained possession of the money, but when he fraudulently withheld it on discovery of the mistake.

In such case it is sufficient to prove that the prosecuting bank was engaged in the banking business without proof that it was a corporation, as alleged in the indictment.

Indictment for conversion of property under the Act of 1917.

Rule for a new trial.

April Sessions, 1919, No. 96.

B. F. Davis, for rule.

H. Edgar Sherts and S. V. Hosterman, contra.

October 18, 1919. Opinion by HASSLER, J.

The defendant was convicted on an indictment which charged that he "did receive and take into his possession money, to wit: the sum of Four Hundred and Forty-four Dollars and Fifty-two Cents ($444.52) belonging to the Farmers National Bank of Quarryville, Pa., a corporation organized under the laws of the United States which he, the said Charles F. Altland, did then and there unlawfully and fraudulently withhold, convert and apply to his own use and benefit, contrary to the form of the Act of Assembly, &c."

The indictment is drawn under and is in the exact language of the Act of May 18, 1917, P. L. 241.

Nine reasons for a new trial have been filed. They largely question the reasonableness of the Act of Assembly rather than the correctness of the defendant's trial and conviction. With that we have nothing to do, and therefore do not deem it necessary to consider these reasons further than to call attention to the fact that the act does not make the obtaining possession by a person of the money, &c., of any person, firm or corporation, an offense, but only the fraudulent withholding, converting and application of the same to his own use or that of another.

VOL. XXXVII, No. 3