and its holders sufficiently those of stockholders to keep alive the corporation for the purposes of suit, whilst at the same time the stock becomes a debt and the stockholder a creditor, sufficiently to bring the suit. It is not possible for either the stockholder or the stock to have the dual character ascribed.

There is nothing in the acts applicable to this association, prescribing the division of assets among the stockholders, nor anything changing the status of the stockholders. Of course the act of 1859 limits the duration of the associations to twenty years. A dissolution and division must take place then, and may take place before. Nothing is said or to be inferred as to the method of winding up when the stock is fully paid. The practical difficulties that are met when the stock is fully paid, were not, perhaps, anticipated in the beginning of these enterprises; they were certainly not provided against. It is evident that the acts contemplated that all stockholders would become borrowers. If such was the case, the winding up a series would require nothing but a cancellation of the stock and loans, since one would pay the other, unless some of the borrowers had become in default, and the association had purchased the property of the defaulting borrowers on foreclosure, and still held it. It was unforeseen that some of the stockholders would refuse to borrow, and that such refusal would necessitate the loaning of money otherwise than to the shareholders in the series to which the money belonged.

It was in evidence that the association held some sixteen parcels of real estate, of the aggregate value of more than sixteen thousand dollars. As more than half the funds of the association came from the series in question, it is fair to infer that more than half of this real estate belonged to that series. This fact shows the absolute impossibility of this association dividing among its non-borrowing members two hundred dollars a share, immediately upon the stock reaching that value. Much remained for the corporation to do before the series could be wound up. If any of the money was loaned otherwise than upon the stock of the series there would be another obstacle to the winding up. An immediate conversion of assets would probably result in loss, a result which the association should avoid. The stockholders have the right to share equally in the assets, which would hardly be possible if the association was liable to suit and execution by every shareholder of a fully paid up series. The assets would be so eaten up by costs of litigation and the forced sales of property, that little would be left for those who came last.

We cannot see that building associations are exceptions to the general law governing corporations, that a shareholder cannot sue at law qua shareholder. It follows that if he wishes to participate in all of the profits of the association, he must wait until the corporation winds up the series to which he belongs. If he is not content to await their action, his only remedy is to withdraw, and to bring a suit at law as a withdrawing stockholder. Of course there may be cases where he may invoke the aid of a court of equity.

The plaintiff cited the case of Gormley vs. The Association, 3 W. N. C. 11, where the demurrer was sustained. As no opinion was filed, it is difficult to say what was the exact point decided, but an examination of the bill shows that the plaintiff averred that he was a creditor of the association, both on account of cash paid as dues on stock and for money advanced. No equity is revealed in the bill, if the plaintiff is considered simply as a creditor. As such he had an ample remedy at law. Had he based his claim on account of the payment of dues simply upon his rights as a stockholder, and not called himself a creditor, the decision would probably have been different. Upon this ground, it seems the court was right in holding that the bill was defective.

Rule to take off non-suit discharged.

J. S. Murphy, Esq., for plaintiff.

J. Duross O'Bryan, Esq., for defendant.

[Leg. Int., Vol. 37, p. 38.]

ASHTON VS. MOYER.

A variance that can be cured by amendment, when there is no allegation that the defendant has been misled in his preparation, should not be treated as a fatal defect after verdict.

per

Sur rule for new trial. Opinion delivered January 17, 1880, by YERKES, J.-The plaintiff brought suit to recover six hundred dollars paid by him to the defendant for certain services to be formed, which he alleged were not performed. The defendant alleged that the money was paid to him upon a different consideration. The jury found for the plaintiff, and upon the merits of the case we see no reason to disturb the verdict.

The defendant contends that there was a variance between the evidence and the pleadings. Under the common count for money had and received the evidence was admissible. Chitty says (Pleadings, vol. 354,) "This action (money had and received) is frequently brought to recover back a deposit or money paid upon an agreement which the defendant omits or refuses to perform." It is doubtful whether it would have been admissible under the count for money paid, for that count seems to be for money paid for the defendant by the plaintiff, not for money paid by the plaintiff to the defendant. The bill stated the time and amount of payment, and that it was by plaintiff to defendant for defendant's use. The office of a bill of particulars is to individualize a transaction. If this bill did not sufficiently inform the defendant, he should have asked for a more specific bill. But as his side of the case was well presented upon the trial, it is evident that the bill of particulars sufficiently defined the transaction.

Admitting, however, that there was a variance between the pleadings and the evidence, the pleadings were amendable upon the trial, and in this case the defendant could not have alleged surprise and the trial would have gone on. We do not think that a variance that can be thus cured by amendment, and when there is no allegation that the defendant has been misled in his preparation,

The error can be cured by

should be treated as a fatal defect. amendment even now, if it exists.

Rule refused.

G. Remak, Esq., for plaintiff.

W. Horace Hepburn, Esq., for defendant.

[Leg. Int., Vol. 37, p. 124.]

JACOB LEWIS and SARAH LEWIS, his wife, vs. EDDY.

In order that a woman may be entitled to the privileges of a feme sole trader it is not necessary (although it is doubtless proper) to obtain a decree under the 4th section of the act of 1855.

When a woman has established in any controversy, in the ordinary ways of proofs, the circumstances mentioned in act of February 22, 1718, the privileges of feme sole result to her.

Black vs. Tricker, 9 P. F. S. 13, followed.

Sur exceptions to a master's report, upon bill to compel conveyance of a legal title by a trustee clear of trusts, answer and proofs.

The master found as facts: That the title to the real estate in question was vested in Sarah Tingle, mother of Sarah Lewis. That prior to 1855 the said Sarah Tingle was married to Solomon Tingle, and that the plaintiff, Sarah E. Lewis, was her daughter by this marriage. That after birth of plaintiff, Solomon deserted his wife in 1855. In 1860 he returned to her, and they lived as man and wife for a short time, when he again deserted her, and never returned. That in 1857 Sarah Tingle conveyed the property in question to defendant in trust for plaintiff. This was during the first period of desertion.

At that time plaintiff was unmarried, and did not contemplate marriage.

That by deed defendant was to hold the premises in trust for the sole, separate and exclusive use, benefit and behoof of the plaintiff and her heirs forever. Her dominion in fact was absolute to receive the rent, to sell in fee simple, to will, and, in the event of her decease intestate, that it should descend to her heirs. That subsequently said Sarah Tingle died.

As matter of law, the master found: That "the act of 1855 requires that a feme sole trader must present a petition to the Court of Common Pleas, upon which a decree may be made by which her property, real and personal, shall be subject to her full and absolute disposal."

That as no petition to be decreed a feme sole trader was ever presented, and no decree was ever made, the deed of March 13, 1857, is a nullity.

That the bill be dismissed, with costs.

The plaintiff excepts to the finding of the master in this case, and assigns the following as the reasons therefor:

1. The master erred in deciding that the 4th section of the act of May 4, 1855, requires that a married woman shall present a petition to the court and obtain a decree before she is entitled to the privileges of a feme sole trader.

2. In deciding that, because no petition was ever presented by Mrs. Tingle to the Court of Common Pleas under the said section of the act of May 4, 1855, and no decree as is therein provided for was ever made, therefore the deed of trust of March 13, 1857, set out as an exhibit to the bill in this case, is a nullity.

3. In reporting a form of a decree that the plaintiff's bill be dismissed.

4. In not finding that the said deed of March 13, 1857, is a valid deed, and sufficient to vest the legal title to the property therein mentioned in the said Joshua P. B. Eddy,

5. In not reporting to the court a form of a decree that the said Joshua P. B. Eddy do convey to the plaintiff the legal title to the real estate mentioned in the said deed of trust.

Opinion delivered March 6, 1880, by

LUDLOW, P. J.-We are of opinion that the exceptions filed in this cause must be sustained.

It is impossible to distinguish this case from Black vs. Tricker, 9 P. F. S. 13. It is true that in Wilson vs. Coursen, 22 P. F. S. 306, there had been a decree of the court declaring the woman a feme sole trader, and all that the case decides is, that after such a decree, no doubt existed as to the power of the woman; but Black vs. Tricker is not referred to, and the principles therein contained, and upon which the decision is based, have never been questioned. We cannot see how we can depart from the conclusions stated by the court.

As the trust in this case is a dry one, we must not only sustain the exceptions filed to the report of the master, but direct a decree to be submitted according to the principles stated in this opinion. R. M. Schick and B. H. Brewster, Esqs., for complainant. John A. Burton, Esq., for respondent.

[Leg. Int., Vol. 37, p. 124.]

Assigned Estate of THE NATIONAL FIRE INSURANCE COMPANY. A debtor who has assigned a fund to his creditor cannot fraudulently obtain, or fraudulently hold that fund against that creditor. No legal claim can arise from a fraud. And upon the insolvency of such debtor, neither his assignee nor his general creditors can claim such fund as against the special assignee of the fund. An earmark is not indispensable to enable a real owner to assert his right to property, or to its product or substitute.

In regard to money, substantial identity is not oneness of pieces of coin or bank bills.

Exceptions to auditor's report.

Opinion delivered March 13, 1880, by

FINLETTER, J.-The fund in dispute, $4,939.38, was awarded to the general creditors of the company. The exceptions filed contest this award, and claim it for the special creditors. They base their claim upon checks given by the company upon the Bank of Northumberland, and sent by the holders to that bank for collection.

It is an established fact that whilst the bank held the checks it had funds of the company sufficient to pay them. This renders it unnecessary to discuss many questions of law and fact which arose

་

before the master in reference to the state of the accounts between the bank and the company, at the several times the checks were received by the bank. They may become important in determining the relative rights of the special creditors; but as between the general and special creditors they are unimportant.

On the 10th of March, 1875, there was to the credit of the company in the Bank of Northumberland the sum of $10,235, all of which, except about $1,500, had been drawn upon by the company in checks given to various creditors, the exceptants included.

The master finds as a fact that H. L. Cake, president of the company, and Joseph W. Cake, president of the bank, conspired to obtain this balance. For this purpose they induced the treasurer of the company to give H. L. Cake a check upon the bank without date and without amount. This check was subsequently antedated and filled in for the whole sum due by the bank to the company, viz., $10,235, and paid by Joseph W. Cake to H. L. Cake.

This whole transaction the master finds to have been a conspiracy and fraud. Therefore, no rights which were then attached to the funds could be affected, and no antagonistic rights could arise from the fraud. Wherever these funds went they were earmarked by the fraud as the property of those to whom they belonged at the time of the fraudulent transfer. Whoever held them subsequently, with a knowledge of the manner in which they had been obtained, held them subject to all the rights of the owners at the time of the transfer by the bank.

As might be expected, shortly after the money had been secured, both institutions were declared insolvent and went into liquidation. The assignee of the company brought suit against the bank for the amount received by H. L. Cake, and this suit was settled by H. L. Cake paying the assignee the sum of $4,939.38.

Whilst the controversy is apparently between the general and the special creditors, it must be evident that the general creditors should only be regarded as succeeding to the rights of the company. The real contest is between the company and the special creditors, and must be determined upon their relative rights.

It will be observed that it was the act of the company which prevented the payment of the checks of the special creditors. By giving the blank check to the brothers Cake, Henry L. Cake was enabled to appropriate the funds. If, therefore, the company was wholly free from the imputation of fraud, is it not concluded from claiming the fruits of a fraud which could not have been successful but for the act of the company itself?

It is, however, beyond question, that the company came into possession of the fund by means of a conspiracy between its president and its agent, the president of the bank. And if it be conceded that it is not tainted by the fraud of its officer and agent, if it retains the fruits thereof, the funds, with a full knowledge of all the facts by which they were diverted from its creditors, to whom it had assigned them, the retention becomes a fraud, and makes the company a party to all the acts by which the fraud was consummated. That the company had full knowledge is well estab