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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. 0. v. and to the refusa} the indorsement in blank was offered in evi. of the trial judge to give binding instruc-dence by the holder, a prima facie case was tions. The other assignments complain of made out, which to defeat a recovery reerrors in the admission of certain testimony. quired a defense. The argument is made The defendant died while the suit was pend- here that there were suspicious circumstancing, and her executor was substituted as par- es connected with the transaction sufficient ty defendant. Thus the record stood at the to overcome the presumption that the plaintime of trial. Death having sealed the lips tiff is a holder for value, and a number of of the maker of the note, defendant in the cases are cited relating to this question. The suit, the indorsee, the party suing, could not answer to this position is that the defendant be called as a witness. Plaintiff offered in failed to prove the suspicious circumstances, evidence the original note with the indorse- and we are not at liberty to presume such ment in blank of Samuel K. Reichner, the circumstances. They must be proved like payee, on the back of it and rested. De other material facts. The formal assignment fendant made a motion for compulsory non- on the back of the note was not offered in suit which was overruled. Defendant then evidence by either party, and cannot be conproved by a witness called for the purpose sidered; and the same may be said of the that the note in suit was discounted by the statement of claim filed in a former suit Southwark National Bank on the day of its which was discontinued. If the facts now execution, and that some one paid the full relied on to show suspicious circumstances amount of the note to the bank at maturity. were material to the case, it was the duty It also proved that the proceeds of the dis- of appellee to prove them at the trial, and counted note were placed to the credit of failure to offer the proof leaves the record the payee on the books of the bank. Defend. barren of any facts upon which to base the ant then offered testimony relating to collat- contention. eral matters, not material for consideration We find nothing in this record that dishere, and rested. In rebuttal plaintiff offered closes a good defense, even against the origin evidence that part of the affidavit of de- inal payee of the note, and therefor none fense in which it was admitted that the as against the indorsee even if he acquired payee of the note had it discounted at the title after maturity. If it had been shown bank and at maturity paid the same in full. that the note was signed by an accommodaWho, in fact, paid the note, does not appear, tion maker, it would have been a good de except as it is admitted by the maker in the fense against the original payee, or the holdaffidavit of defense that she did not pay it er for value after maturity, but such a deand the payee did. Upon this record the case fense depends upon the facts, and none were was submitted to the jury. There was some proved. confusion at the trial, and there is some here, The jury found in favor of the appellant as to the rights of a bolder for value before upon the merits of the case when it was and after maturity. No defense except pay- submitted without binding instructions, to ment is good against a bona fide holder for which, as we view it, he was clearly entivalue before maturity; but, as to a bona fide tled. So far as the record discloses, he is holder for value after maturity, the maker can sustained both by the law and the facts. set up any defense which could have been The first, second, and third assignments of made in a suit brought by the original payee. error are sustained. If, therefore, it appeared as a fact, or if the Judgment reversed, and is here entered for facts were sufficient to warrant the jury in plaintiff on verdict. drawing the inference, that appellant was a holder for value after maturity, it would

(236 Pa. 519) have been a good defense to show that the COMMONWEALTH, to Use of ASHMAN et note was signed by an accommodation maker,

al., v. TAYLOR et al. The difficulty with the case at bar is that no

(Supreme Court of Pennsylvania. May 22, testimony was offered at the trial to show

1912.) that the note was signed by an accommoda- TRUSTS (8 387*)-LIABILITIES ON Bonds--NAtion maker, nor was there anything on the TURE OF REMEDY. face of the note, or in the indorsement, of

In an action on a trustee's bond to answer fered in evidence, to so indicate. The record for faithful discharge of duty and to properly

account for the trust estate, the trustees canmust be taken as we find it, and, when con- not, on demurrer to the statement, assert exsidered as presented here, the conclusion is emption from liability on the ground that the irresistible that no matter what the merits bond presumptively covered only future losses, of such a defense may have been, it was his seventh account in 1904, gave the bond in

where the trustee was appointed in 1881, filed not made out. Appellee seems to take the 1905, was surcharged as trustee in 1907, and position that the burden was not on the de- the record does not show whether defaults ocfendant to show that the note sued on was

curred prior or subsequent to the giving of the

bond. accommodation paper, until appellant had

[Ed. Note.-For other cases, see Trusts, first established the fact that he was a hold. 'Cent. Dig. 88 626-632; Dec. Dig. § 387.*]

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

count to said court, under and by which sup. Assumpsit by the Commonwealth, to use plemental report the said auditor awarded of Cornelia 1. Ashman and others, against the sum of $11,156.081, to said G. H. Ashman, Isaac Taylor and others. From a judgment which said supplemental report of the audl. for plaintiffs on demurrer to the statement, tor was duly confirmed by decree of said defendauts appeal. Affirmed.

court, dated June 30, 1906, and upon appeal The plaintiff's filed separate statements of to the Supreme Court from said decree the claim. The statement of G. H. Ashman was Supreme Court on June 3, 1907, affirmed said as follows: For that, whereas, the defend- decree; and finally adjudicated said sum ants by their certain writing obligatory, seal. found due the said G. H. Ashman. After ed with their seals, duly executed and filed, said orphans' court, by decree of June 30, the court here shown (see copy of bond here- 1906, confirmed said supplemental report of to attached and filed in this case, marked the auditor, the said G. H. Ashman on July "Exhibit A"), the date whereof is the 15th 19, 1906, procured a certificate from the clerk day of July, A. D. 1905, according to the Act of the orphans' court of said county of the of Assembly in such case made and provided, said amount of $11,156.0842, and filed the did, on the day and year aforesaid, acknowl- same as a lien in the court of common pleas edge themselves held and firmly bound unto of Huntingdon county to No. 128, May term, the said commonwealth of Pennsylvania in 1906, against the real estate of said Isaac the sum of $6,000, for the uses, intents, and Taylor, and, after voluntary credits had been purposes appointed by law, which writing entered thereon by the plaintiff, the said obligatory was and is subject to certain con- plaintiff issued a scire facias on said lien to ditions thereunder written, whereby, after No. 11, February term, 1908, against the said reciting to the effect following: That “the Isaac Taylor and Isaac Taylor, trustee, and condition of this obligation is such that, if on which scire facias judgment was entered the above bounden, Isaac Taylor, trustee, as thereon on January 22, 1909, in favor of the above stated, shall and do faithfully execute plaintiff therein, and against the said Isaac the powers committed to him by the orphans' Taylor, and Isaac Taylor, trustee, for the court of Huntingdon county, as said trustee, sum of $1,508.61, with interest from date, and shall make faithful appropriation of the and costs, which judgment was unappealed estate and effects committed to him, and in all from a final adjudication of the amount due things comply with the Acts of Assembly in the plaintiff. After the entry of which judg. such case made and provided, then this obli- ment as aforesaid a credit of $1,025.40, out gation to be null and void and, of noneffect, of the proceeds of sheriff's sale of real esotherwise to be and remain in full force and tate of said Isaac Taylor, was entered therevirtue"--which writing obligatory, with the on. conditions aforesaid therein stated, was duly

Yet the said plaintiff in fact says that the received by the commonwealth of Pennsyl- said Isaac Taylor did not faithfully dis. vania as other and further security of the charge all the duties required of him as trus. said Isaac Taylor, who on June 14, A. D. tee, as aforesaid, but on the contrary thereof 1881, had been appointed by the orphans' has broken the conditions of said writing court of said county trustee of the estate of obligatory in this: That the said Isaac Tay. Mary Jane Ashman, late of Clay township of lor, trustee as aforesaid, did not make faithsaid county, deceased, and said bond was ful appropriation of the estate and effects duly approved on the 19th day of July, A. committed to him and in his hands and cusD. 1903, with the said W. T. Bell and John tody, as said trustee, before, at the time, C. Taylor as his sureties in the premises; and after the execution and delivery of said and after the said Isaac Taylor had been ap- writing obligatory; and that said trustee did pointed trustee as aforesa id, and the said not pay over or cause to be paid over to the esta te ond trust committed to him, he (the plaintiff the moneys due and owing to him on said trustee) took upon himself the discharge said judgment No. 11, February term, 1909, of the duties of said trustee, and was then entered in said court in favor of the plaintiff and thereafter trustee of the estate and ef- and against the said Isaac Taylor and Isaac fects of the said Mary Jane Ashman, deceas- Taylor, trustee, for the sum of $1,508.61, ed, and so continued as such trustee on and with interest and costs thereon (less said after the date of the execution and delivery credit of $1,025.40) upon and after the entry of said additional bond; and thereafter the of said judgment on January 22, 1909, as said Isaac Taylor, as aforesaid, to wit, on aforesaid, for said sum. And he (the said January 2, 1904, filed the seventh account of plaintiff) has been injured by the neglect and his said trust in the register's office of said refusal of said Isaac Taylor, trustee, to pay county, and on which said seventh account over to the plaintiff the money due and ow. an auditor was appointed by the orphans' ing on said judgment and the nonperformance court of said county, and that said auditor by him (sa id trustee) in that behalf. on the 5th day of February, A. D. 1906, made Wherefore an action has accrued to the his report to the said orphans' court; and commonwealth of Pennsylvania to demand on May 14, 1906, said auditor's report having 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.

this state of the record, the sureties are not Argued before FELL, C. J., and MESTRE- in position to deny their liability upon a ZAT, ELKIN, STEWART, and MOSCHZIS. bond given to answer for the trustee's faithKER, JJ.

ful discharge of duty and to properly acThomas F. Bailey and R. W. Williamson, count for the trust estate. This view makes both of Huntingdon, for appellants. L. H. it unnecessary to discuss the general liabil. Beers and H. H. Waite, both of Huntingdon, ity of sureties on bonds of this character. for appellees.

Judgment affirmed.

swers:

ELKIN, J. This suit was brought against

(236 Pa. 545) the principal and sureties on the bond of a trustee. The record does not satisfactorily

McELWEE et al. v. McCREIGHT. explain the conditions under which the bond

(Supreme Court of Pennsylvania. May 22,

1912.) was given, but, in view of the pleadings, this does not become a vital question in the case. ASSUMPSIT, ACTION OF ($ 8*) — REMEDIES OF

VENDOR-ASSUMPSIT FOR PRICE_TORT. The sureties demurred to the statement with.

Where the purchase money for land was out filing an answer. They stand upon the paid and settled for either in money or bonds legal position that the averments in the state accepted by the vendor and retained by him, ment of claim do not disclose a cause of ac- assumpsit cannot be maintained for the ball

ance of purchase money due on the ground that tion against the sureties. This position is certain of the bonds were worthless and had asserted upon the ground that the facts aver- been accepted by the vendor under false reprered do not show a default by the principal sentations; the vendor's remedy in such case after the execution and approval of the bond, being in tort for the fraud.

[Ed. Note.-For other cases, see Assumpsit, and that the sureties are not liable for de Action of, Cent. Dig. $8 42-54; Dec. Dig. 8 8.*) faults which may have occurred prior to that time. To this contention there are two an

Appeal from Court of Common Pleas, First, it is a verred that the trustee

Clearfield County. "did not make faithful appropriation of the

Assumpsit by Elizabeth Ann McElwee and estate and effects committed to him and in another, executrices of Thomas McElwee, his hands and custody, as said trustee, be- against M. I. McCreight to recover Lalance fore, at the time, and after the execution of purchase money under a contract for the and delivery of said writing obligatory"; sale of land. From an order refusing to take and, second, such a defense, if good at all, off nonsuit, plaintiffs appeal. Affirmed. depends upon the facts which should be set

Argued before FELL, C. J., and MESTREout in an affidavit of defense. The facts ZAT, ELKIN, STEWART, and MOSCHZISK. averred in the statement made out a prima ER, JJ. facie cause of action, which required a de- H. C. Campbell and J. C. Long, both of fense to be set up. This was not done. The Punxsutawney, for appellants. A. L. Cole demurrer admitted the facts and gave suffi- and L. E. Boyer, both of Du Bois, for appelcient warrant for the entry of judgment by lee. the court below. The learned counsel for appellants invoke the rule that bonds of the MESTREZAT, J. Thomas McElwee, a man character involved in this case should be of 72 years of age, gave a six months opconstrued as intended presumptively to cover tion on his 127-acre farm to J. S. Ross and future losses, and not past defaults, unless J. A. McCreight, who subsequently assigned there is something in the bond itself, or in the option to M. I. McCreight, the defendant. the surrounding circumstances, to indicate a The option was accepted, and on October 24, different intention. The bond was condition- 1903, a deed was delivered to M. I. MCed for the faithful discharge by the trustee Creight conveying the land optioned by the of his duties, and the sureties undertook to decedent. Twenty dollars were paid at the answer for failure of the trustee to "make time of the option, and on delivery of the faithful appropriation of the estate and ef- deed the balance of the purchase money was fects committed to him." As hereinbefore paid as follows: $4,980 by a check, and the stated, it was averred that the trustee, be- remaining $5,000 by the delivery to the dece. fore and after the execution of the bond, dent of $3,000 of the B. & S. Railroad Comhad failed to make faithful appropriation of pany bonds, and $2,000 of the Continental the estate committed to him. There is noth- Leather Company bonds. ing in this record to show when the default Thomas McElwee died on November 4,

•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 inter alia, that the consideration for the was brought, as the statement declares, to land sold was to be paid in cash; that, at recover the balance of the purchase money the time the bonds were offered as part pay- due on the land sold. The statement clearly ment, McElwee objected to receiving them and distinctly avers that McElwee tendered because he was ignorant, unacquainted with and delivered a deed to McCreight conveybusiness, and had no knowledge of the value ing the land, that the consideration was of the bonds; that defendant represented paid partly by check, partly by the delivery and stated that the bonds were as good as of B. & S. Railroad Company bonds, and gold, and were better to him than the mon. partly by the four Continental Leather Comey; that, in order to induce McElwee to pany bonds which McElwee "did accept in take the bonds, the defendant “guaranteed part payment for said land." These averthe bonds of the Continental Leather Comments were supported by the evidence and pany Nos. 314, 316, 317, and 319 for $500 were not contested by the defendant. It is each, dated July 1, 1903, to be as good as therefore manifest that the entire transacgold"; that, relying upon the truth of these tion as to the sale of the land was completed representations, McElwee accepted the four and closed, the consideration was paid, and bonds in part payment for the land, and that the deed was delivered. The plaintiffs, the bonds were at that time and are now therefore, are not now in a position to deny, utterly worthless. It is further averred in what they aver in their statement and supthe statement that, as soon as the plaintiffs port by their evidence, that the Continental learned the facts attending the delivery of Leather Company bonds were accepted in the bonds to McElwee, they offered to re-part payment of the land sold, which made turn them to the defendant and demanded the consideration in full agreed to be paid by payment of the $2,000, being the balance of the defendant to the deceased. It needs no the consideration for the land sold by Me-further consideration or argument to show Elwee to the defendant. Finally it is aver- that, under the facts averred in the statered in the statement that the sum of $2,000, ment and supported by the uncontradicted with interest thereon from the date of the

evidence, this action, brought to recover a delivery of the deed, remains due and un

balance of the purchase money, cannot be paid, and “that the plaintiffs bring this ac

sustained. tion against the defendant, M. I. McCreight,

If the allegations in the statement as to to recover the sum of $2,000, being balance of purchase money due on said land, to- misrepresentations and warranty of the val. gether with interest thereon from the date ue of the bonds by McCreight are true, it is of the delivery of the deed, which sum the apparent that the plaintiffs misconceived

their action. The present action, as suggestplaintiffs claim still remains due and unpaid.” On the trial of the cause the plained by the court below, was not brought for a tiff's 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 evidence offered by the plaintiffs which

the proper form. The difference between 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 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 plaintiff's have ap- ings and proofs as presented. The nonsuit pealed.

was properly granted.

no

(236 Pa, 588)

the payment of their occupation tax, upon In re CORYDON TOWNSHIP ELECTION. which their right to vote depended, was not Appeal of TOME.

in accordance with the provisions of the (Supreme Court of Pennsylvania. May 22, act of July 15, 1897 (P. L 276)." 1912.)

[1] This raises the question stated by the 1. ELECTIONS (8 83*)-PAYMENT OF POLL Tax. appellant, “Will the payment of an occupa

Payment of an occupation or poll tax with tion tax with the money of the taxable at money of a taxable by another person without his request by another without a written his written order, as required by Act July 15, 1897 (P. L. 276), will prevent the taxable from and signed order as required by the act of voting on the tax receipt so acquired.

July 15, 1897 (P. L. 276), disfranchise the (Ed. Note.-For other cases, see Elections, taxable so paying?” In disposing of this Cent. Dig. $$ 77-81; Dec. Dig. $ 83.*]

question the court below says: "The act 2. ELECTIONS ($ 298*)-ELECTION CONTEST- provides that from and after its passage ELIGIBILITY OF CANDIDATE.

‘it shall be unlawful for any person or perThe eligibility of a candidate for public of fice cannot be adjudicated in an election con- sons to pay or cause to be paid any occupatest.

tion or poll tax assessed against any elector, [Ed. Note.-For other cases, see Elections, except on the written and signed order of Cent. Dig. $$ 303-305; Dec. Dig. & 298.*

such elector authorizing such payment to be Appeal from Court of Common Pleas, War- made, which written and signed order must ren County.

be presented at least thirty days prior to In the matter of the election contest in the date of holding the election at which Corydon township. From the judgment, 0. such elector desires to vote.' The second J. Tome appeals. Affirmed.

section makes it 'unlawful for any officer, Argued before BROWN, POTTER, ELKIN, clerk or other person authorized to collect STEWART, and MOSCHZISKER, JJ. taxes and receipt therefor, to receive pay

Edward Lindsey and C. E. Bordwell, both ment of, or receipt for any occupation or of Warren, for appellant. D. I. Ball and A. poll tax assessed for state or county pur. G. Eldred, both of Warren, for appellee. poses from any person other than the elector

against whom such tax shall have been as. MOSCHZISKER, J. This was an election sessed except upon his written and signed contest under the Act of May 19, 1874 (P. order authorizing such payment to be made.' L. 208), over the office of supervisor of roads The third section declares that, “it shall be of Corydon township, Warren county. On unlawful for any person to vote or attempt the face of the returns Frank Kennedy re- to vote at any election upon a tax receipt ceived 53 and 0. J. Tome 54 votes. The obtained in violation of this act.' And the court below found that one of the votes cast fourth section makes any violation of the for the former and seven of those for the act a misdemeanor punishable by fine or latter were illegal. This made the count, imprisonment. There can be no doubt that Kennedy 52, Tome 47, and the certificate of a tax paid in disregard of the provisions election was given accordingly. Tome has of this act will not qualify the voter, being appealed.

prohibited, under a penalty, and made a One of Tome's votes was rejected because misdemeanor. However it may discharge the voter "had not paid any state or county the party from the tax so far as the state tax within two years prior to the state elec- or county entitled to collect it is concerned, tion," and four of those rejected fell within it is not a legal payment of which the party the following findings of fact and conclu- can avail himself to qualify his vote. sions of law made by the court below: “Pri- ' *

Not only is the payment of the tax or to that date (November 7, 1911) each of of another without a written order prohibitthose persons had been duly assessed with ed and made a misdemeanor, but so also a valuation based on occupation only, and is the attempt by the voter to vote on the a county tax levied upon same in each in- strength of it, which is the material thing. stance was paid by some other person than The law having put its most solemn condemthe respective elector, and none of the per- nation on every step of the transaction, the sons paying the said tax presented to the ballot which the voter cast in violation of collector, at least 30 days prior to the date it is clearly illegal and ought not to be of holding the said election, in either in-counted.

We 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 excluded from the count,

because tax with his own money. In Cusick's Elec

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