the indorsement in blank was offered in evidence by the holder, a prima facie case was made out, which to defeat a recovery required a defense. The argument is made here that there were suspicious circumstances connected with the transaction sufficient to overcome the presumption that the plaintiff is a holder for value, and a number of cases are cited relating to this question. The answer to this position is that the defendant failed to prove the suspicious circumstances, and we are not at liberty to presume such circumstances. They must be proved like other material facts. The formal assignment on the back of the note was not offered in evidence by either party, and cannot be considered; and the same may be said of the statement of claim filed in a former suit which was discontinued. If the facts now relied on to show suspicious circumstances were material to the case, it was the duty of appellee to prove them at the trial, and failure to offer the proof leaves the record barren of any facts upon which to base the contention.

We find nothing in this record that discloses a good defense, even against the original payee of the note, and therefor none as against the indorsee even if he acquired title after maturity. If it had been shown that the note was signed by an accommodation maker, it would have been a good defense against the original payee, or the holder for value after maturity, but such a defense depends upon the facts, and none were proved.

The errors complained of in the first, sec- er for value. This is an erroneous view of ond, and third assignments relate to the en- the case. When, at the trial, the note with try of judgment n. o. v. and to the refusa] of the trial judge to give binding instructions. The other assignments complain of errors in the admission of certain testimony. The defendant died while the suit was pending, and her executor was substituted as party defendant. Thus the record stood at the time of trial. Death having sealed the lips of the maker of the note, defendant in the suit, the indorsee, the party suing, could not be called as a witness. Plaintiff offered in evidence the original note with the indorsement in blank of Samuel K. Reichner, the payee, on the back of it and rested. Defendant made a motion for compulsory nonsuit which was overruled. Defendant then proved by a witness called for the purpose that the note in suit was discounted by the Southwark National Bank on the day of its execution, and that some one paid the full amount of the note to the bank at maturity. It also proved that the proceeds of the discounted note were placed to the credit of the payee on the books of the bank. Defendant then offered testimony relating to collateral matters, not material for consideration here, and rested. In rebuttal plaintiff offered in evidence that part of the affidavit of defense in which it was admitted that the payee of the note had it discounted at the bank and at maturity paid the same in full. Who, in fact, paid the note, does not appear, except as it is admitted by the maker in the affidavit of defense that she did not pay it and the payee did. Upon this record the case was submitted to the jury. There was some confusion at the trial, and there is some here, as to the rights of a holder for value before and after maturity. No defense except pay-submitted without binding instructions, to ment is good against a bona fide holder for value before maturity; but, as to a bona fide holder for value after maturity, the maker can set up any defense which could have been made in a suit brought by the original payee. If, therefore, it appeared as a fact, or if the facts were sufficient to warrant the jury in drawing the inference, that appellant was a holder for value after maturity, it would have been a good defense to show that the note was signed by an accommodation maker. The difficulty with the case at bar is that no testimony was offered at the trial to show that the note was signed by an accommodation maker, nor was there anything on the face of the note, or in the indorsement, offered in evidence, to so indicate. The record must be taken as we find it, and, when considered as presented here, the conclusion is irresistible that no matter what the merits of such a defense may have been, it was not made out. Appellee seems to take the position that the burden was not on the defendant to show that the note sued on was accommodation paper, until appellant had [Ed. Note. For other cases, see Trusts, first established the fact that he was a hold- Cent. Dig. §§ 626-632; Dec. Dig. § 387.*]

The jury found in favor of the appellant upon the merits of the case when it was

which, as we view it, he was clearly entitled. So far as the record discloses, he is sustained both by the law and the facts. The first, second, and third assignments of error are sustained.

Judgment reversed, and is here entered for plaintiff on verdict.

(236 Pa. 549)

COMMONWEALTH, to Use of ASHMAN et
al., v. TAYLOR et al.
(Supreme Court of Pennsylvania. May 22,
1912.)
TRUSTS (§ 387*)-LIABILITIES ON BONDS-NA-
TURE OF REMEDY.

In an action on a trustee's bond to answer

for faithful discharge of duty and to properly account for the trust estate, the trustees cannot, on demurrer to the statement, assert exemption from liability on the ground that the bond presumptively covered only future losses, his seventh account in 1904, gave the bond in where the trustee was appointed in 1881, filed 1905, was surcharged as trustee in 1907, and the record does not show whether defaults occurred prior or subsequent to the giving of the bond.

Appeal from Court of Common Pleas, Hunt- | presented a supplemental report on said ac ingdon County.

Assumpsit by the Commonwealth, to use of Cornelia I. Ashman and others, against Isaac Taylor and others. From a judgment for plaintiffs on demurrer to the statement, defendants appeal. Affirmed.

count to said court, under and by which sup. plemental report the said auditor awarded the sum of $11,156.08%1⁄2 to said G. H. Ashman, which said supplemental report of the aud1tor was duly confirmed by decree of said court, dated June 30, 1906, and upon appeal to the Supreme Court from said decree the Supreme Court on June 3, 1907, affirmed said decree; and finally adjudicated said sum found due the said G. H. Ashman. After said orphans' court, by decree of June 30, 1906, confirmed said supplemental report of the auditor, the said G. H. Ashman on July 19, 1906, procured a certificate from the clerk of the orphans' court of said county of the said amount of $11,156.082, and filed the same as a lien in the court of common pleas of Huntingdon county to No. 128, May term, 1906, against the real estate of said Isaac Taylor, and, after voluntary credits had been entered thereon by the plaintiff, the said plaintiff issued a scire facias on said lien to No. 11, February term, 1908, against the said Isaac Taylor and Isaac Taylor, trustee, and on which scire facias judgment was entered thereon on January 22, 1909, in favor of the plaintiff therein, and against the said Isaac Taylor, and Isaac Taylor, trustee, for the sum of $1,508.61, with interest from date, and costs, which judgment was unappealed from a final adjudication of the amount due the plaintiff. After the entry of which judgment as aforesaid a credit of $1,025.40, out of the proceeds of sheriff's sale of real estate of said Isaac Taylor, was entered thereon.

The plaintiffs filed separate statements of claim. The statement of G. H. Ashman was as follows: For that, whereas, the defendants by their certain writing obligatory, seal. ed with their seals, duly executed and filed, the court here shown (see copy of bond hereto attached and filed in this case, marked "Exhibit A"), the date whereof is the 15th day of July, A. D. 1905, according to the Act of Assembly in such case made and provided, did, on the day and year aforesaid, acknowledge themselves held and firmly bound unto the said commonwealth of Pennsylvania in the sum of $6,000, for the uses, intents, and purposes appointed by law, which writing obligatory was and is subject to certain conditions thereunder written, whereby, after reciting to the effect following: That "the condition of this obligation is such that, if the above bounden, Isaac Taylor, trustee, as above stated, shall and do faithfully execute the powers committed to him by the orphans' court of Huntingdon county, as said trustee, and shall make faithful appropriation of the estate and effects committed to him, and in all things comply with the Acts of Assembly in such case made and provided, then this obligation to be null and void and, of noneffect, otherwise to be and remain in full force and virtue"-which writing obligatory, with the conditions aforesaid therein stated, was duly received by the commonwealth of Pennsylvania as other and further security of the said Isaac Taylor, who on June 14, A. D. 1881, had been appointed by the orphans' court of said county trustee of the estate of Mary Jane Ashman, late of Clay township of said county, deceased, and said bond was duly approved on the 19th day of July, A. D. 1905, with the said W. T. Bell and John C. Taylor as his sureties in the premises; and after the said Isaac Taylor had been appointed trustee as aforesaid, and the said estate and trust committed to him, he (the said trustee) took upon himself the discharge of the duties of said trustee, and was then and thereafter trustee of the estate and effects of the said Mary Jane Ashman, deceased, and so continued as such trustee on and after the date of the execution and delivery of said additional bond; and thereafter the said Isaac Taylor, as aforesaid, to wit, on January 2, 1904, filed the seventh account of his said trust in the register's office of said county, and on which said seventh account an auditor was appointed by the orphans' court of said county, and that said auditor on the 5th day of February, A. D. 1906, made his report to the said orphans' court; and commonwealth of Pennsylvania to demand on May 14, 1906, said auditor's report having

Yet the said plaintiff in fact says that the said Isaac Taylor did not faithfully discharge all the duties required of him as trus. tee, as aforesaid, but on the contrary thereof has broken the conditions of said writing obligatory in this: That the said Isaac Taylor, trustee as aforesaid, did not make faithful appropriation of the estate and effects committed to him and in his hands and custody, as said trustee, before, at the time, and after the execution and delivery of said writing obligatory; and that said trustee did not pay over or cause to be paid over to the plaintiff the moneys due and owing to him on said judgment No. 11, February term, 1908, entered in said court in favor of the plaintiff and against the said Isaac Taylor and Isaac Taylor, trustee, for the sum of $1,508.61, with interest and costs thereon (less said credit of $1,025.40) upon and after the entry of said judgment on January 22, 1909, as aforesaid, for said sum. And he (the said plaintiff) has been injured by the neglect and refusal of said Isaac Taylor, trustee, to pay over to the plaintiff the money due and ow ing on said judgment and the nonperformance by him (said trustee) in that behalf.

Wherefore an action has accrued to the

and have of and from the defendants to the

the said defendants, or either of them, though in fact occurred. The trustee was appointed often requested thereto, have not paid said in 1881, and filed in 1904 his seventh account. sum (except said credit), to the damage of The bond in suit was given in 1905. The the plaintiff of the sum of $1,508.61, with in- litigation which resulted in surcharging the terest from January 22, 1909, and costs, sub-trustee did not terminate until 1907. There ject to the following credit September 17, was no adjudication of the rights of the par1909, $1,025.40. ties up to that time, and no one could say The court entered judgment for plaintiffs whether there had been a prior default. In on demurrer to statements.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

1904. In October, 1909, his executrices | ters on which an action for tort would lie, brought this action. The statement avers, it is clear that the present suit in assumpsit was brought, as the statement declares, to recover the balance of the purchase money due on the land sold. The statement clearly and distinctly avers that McElwee tendered and delivered a deed to McCreight conveying the land, that the consideration was paid partly by check, partly by the delivery of B. & S. Railroad Company bonds, and partly by the four Continental Leather Company bonds which McElwee "did accept in part payment for said land." These averments were supported by the evidence and were not contested by the defendant. It is therefore manifest that the entire transaction as to the sale of the land was completed and closed, the consideration was paid, and the deed was delivered. The plaintiffs, therefore, are not now in a position to deny, what they aver in their statement and support by their evidence, that the Continental Leather Company bonds were accepted in part payment of the land sold, which made the consideration in full agreed to be paid by the defendant to the deceased. It needs no further consideration or argument to show that, under the facts averred in the statement and supported by the uncontradicted evidence, this action, brought to recover a balance of the purchase money, cannot be sustained.

inter alia, that the consideration for the land sold was to be paid in cash; that, at the time the bonds were offered as part payment, McElwee objected to receiving them because he was ignorant, unacquainted with business, and had no knowledge of the value of the bonds; that defendant represented and stated that the bonds were as good as gold, and were better to him than the money; that, in order to induce McElwee to take the bonds, the defendant "guaranteed the bonds of the Continental Leather Company Nos. 314, 316, 317, and 319 for $500 each, dated July 1, 1903, to be as good as gold"; that, relying upon the truth of these representations, McElwee accepted the four bonds in part payment for the land, and that the bonds were at that time and are now utterly worthless. It is further averred in the statement that, as soon as the plaintiffs learned the facts attending the delivery of the bonds to McElwee, they offered to return them to the defendant and demanded payment of the $2,000, being the balance of the consideration for the land sold by McElwee to the defendant. Finally it is averred in the statement that the sum of $2,000, with interest thereon from the date of the delivery of the deed, remains due and unpaid, and "that the plaintiffs bring this action against the defendant, M. I. McCreight, to recover the sum of $2,000, being balance of purchase money due on said land, together with interest thereon from the date of the delivery of the deed, which sum the plaintiffs claim still remains due and un

If the allegations in the statement as to misrepresentations and warranty of the value of the bonds by McCreight are true, it is apparent that the plaintiffs misconceived their action. The present action, as suggestpaid." On the trial of the cause the plain-ed by the court below, was not brought for a tiffs sustained the averments in the state- breach of contract of guaranty or warranty, ment as to the land sold, the price to be nor for a tort for fraudulent misrepresentapaid, the delivery of the deed, and the pay- tiffs' claim on which they relied to recover tions. If such were the basis of the plainment of the consideration, partly in money and partly by the bonds. There was also the $2,000, their action should have been in The difference between evidence offered by the plaintiffs which the proper form. would have warranted the jury in finding such an action and that to recover a balthat McCreight made the representations ance due for purchase money is well underand guaranty of the bonds as alleged in the stood by every lawyer. The learned court statement. While there was proof that the below seems to think that there was no Continental Leather Company bonds were proof of fraudulent misrepresentations. Be worthless, the evidence failed to show that this as it may, or whatever cause of action McCreight had knowledge of their worth- the plaintiffs may have arising out of the lessness at the time they were negotiated to sale of the land in question, it is clear that, McElwee in 1903. At the close of the plain- under the pleadings and evidence, they have tiffs' case the defendant moved for a compul- shown no right to recover for any balance sory nonsuit, alleging as one of the reasons of the purchase money of the land sold by that, the plaintiffs having declared for a bal- their decedent to the defendant. If, as the ance of purchase money due on a contract learned counsel for the plaintiffs allege, for the sale of land, and having proven that Thomas McElwee, by reason of his advanced the purchase money was paid and settled age and ignorance of business matters, was for, either in money or bonds accepted by defrauded by McCreight in the manner comthe grantor in the deed and retained by him, plained of, there was an appropriate action there could be no recovery in this case by by which the plaintiffs could have been fully his personal representatives. A nonsuit was compensated for the alleged injury. We granted which the court subsequently re- must deal with this action upon the pleadfused to take off. The plaintiffs have ap-ings and proofs as presented. The nonsuit pealed. was properly granted.

(236 Pa. 588)
In re CORYDON TOWNSHIP ELECTION.
Appeal of TOME.

(Supreme Court of Pennsylvania. May 22,
1912.)

1. ELECTIONS (§ 83*)-PAYMENT OF POLL TAX. Payment of an occupation or poll tax with money of a taxable by another person without his written order, as required by Act July 15, 1897 (P. L. 276), will prevent the taxable from voting on the tax receipt so acquired.

[Ed. Note.-For other cases, see Elections, Cent. Dig. 88 77-81; Dec. Dig. § 83.*] 2. ELECTIONS (§ 298*)-ELECTION CONTESTELIGIBILITY OF CANDIDATE.

The eligibility of a candidate for public office cannot be adjudicated in an election contest.

[Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 303-305; Dec. Dig. § 298.*]

Appeal from Court of Common Pleas, Warren County.

In the matter of the election contest in Corydon township. From the judgment, O. J. Tome appeals. Affirmed.

Argued before BROWN, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

Edward Lindsey and C. E. Bordwell, both of Warren, for appellant. D. I. Ball and A. G. Eldred, both of Warren, for appellee.

MOSCHZISKER, J. This was an election contest under the Act of May 19, 1874 (P. L. 208), over the office of supervisor of roads of Corydon township, Warren county. On the face of the returns Frank Kennedy received 53 and O. J. Tome 54 votes. The court below found that one of the votes cast for the former and seven of those for the latter were illegal. This made the count, Kennedy 52, Tome 47, and the certificate of election was given accordingly. Tome has appealed.

the payment of their occupation tax, upon which their right to vote depended, was not in accordance with the provisions of the act of July 15, 1897 (P. L 276).”

[1] This raises the question stated by the appellant, "Will the payment of an occupation tax with the money of the taxable at his request by another without a written and signed order as required by the act of July 15, 1897 (P. L 276), disfranchise the taxable so paying?" In disposing of this question the court below says: "The act provides that from and after its passage 'it shall be unlawful for any person or persons to pay or cause to be paid any occupation or poll tax assessed against any elector, except on the written and signed order of such elector authorizing such payment to be made, which written and signed order must be presented at least thirty days prior to the date of holding the election at which such elector desires to vote.' The second section makes it 'unlawful for any officer, clerk or other person authorized to collect taxes and receipt therefor, to receive payment of, or receipt for any occupation or poll tax assessed for state or county purposes from any person other than the elector against whom such tax shall have been assessed except upon his written and signed order authorizing such payment to be made.' The third section declares that, 'it shall be unlawful for any person to vote or attempt to vote at any election upon a tax receipt obtained in violation of this act.' And the fourth section makes any violation of the act a misdemeanor punishable by fine or imprisonment. There can be no doubt that a tax paid in disregard of the provisions of this act will not qualify the voter, being prohibited, under a penalty, and made a misdemeanor. However it may discharge the party from the tax so far as the state or county entitled to collect it is concerned, it is not a legal payment of which the party can avail himself to qualify his vote.

* Not only is the payment of the tax of another without a written order prohibited and made a misdemeanor, but so also is the attempt by the voter to vote on the strength of it, which is the material thing. The law having put its most solemn condemnation on every step of the transaction, the ballot which the voter cast in violation of it is clearly illegal and ought not to be counted.

One of Tome's votes was rejected because the voter "had not paid any state or county tax within two years prior to the state election," and four of those rejected fell within the following findings of fact and conclusions of law made by the court below: "Prior to that date (November 7, 1911) each of those persons had been duly assessed with a valuation based on occupation only, and a county tax levied upon same in each instance was paid by some other person than the respective elector, and none of the persons paying the said tax presented to the collector, at least 30 days prior to the date of holding the said election, in either inWe do not think the Act stance, any written and signed order of the of 1897 offends against the constitutional elector authorizing such payment to be made. provisions as to the requirements necessary No other taxes were paid by any one of the to qualify a lawful voter. It does not in said electors within two years prior to itself deprive any elector of his franchise. November 11, 1911 (November 7, 1911?). It is but a regulation of the manner in which The tax in each instance was paid the occupation tax shall be paid and to prowith the elector's own funds. The vide an absolutely certain and unimpeachvotes of Earl Hook, Walter Mason, Fred able method of determining the essential Slater, Grant Wilcox should be fact that the voter has paid his occupation because tax with his own money. In Cusick's Elec

excluded from the count,

*

*