a deep pond in front of the plaintiff's buildings, ment of all its property and effects for the benewhich could not be removed for a considerable fit of creditors. Those claiming to participate time, and which doubtless continually added to in the fund were classified by the auditor as the injury until removed. follows: 1st. The late treasurer of the association, who claims, as a general creditor, to be reimbursed for moneys paid on orders, drawn upon him before the assignment, and for which the assignee refused to allow him credit in the settlement of his account as treasurer, amount

The same cause did the injury on the first of August, which was increased after the next morning. Why divide the damages? If the entire injury was done by default of the city, how can the city shift liability for a part?

2d. Holders of orders on the treasurer, issued to withdrawing stockholders more than six months before the date of the assignment; and also stockholders who gave notice of their intention to withdraw several months prior to the assignment, but received no orders for the amount of their stock. 3d. All other stockholders not

The reasonable time occupied by the contrac-ing to $789.74. tor in pumping out the water and filling the pit with earth, ought not to relieve the party who necessitated that work. There is some difference between the case where the contractor's negligence causes injury, and the case where a contractor is employed to remove a nuisance which continually increases the extent of an injury until abated. An independent contrac-included in the second class. For reasons given tor is liable for his own wrongful acts which damage another, but not for the direct consequences of the negligence of his employer.

The defendant's sixth point should have been refused.

at length by the learned auditor, the items of claim embraced in the first class were rightly allowed and scheduled as preferred claims. The several payments, for which credit was claimed by the treasurer, were made on orders regularly

Judgment reversed and venire facias de novo drawn upon him as such. His relation to the awarded.

For plaintiff in error, Pierce Archer, Esq.
Contra, Messrs. A. M. Beitler, C. E. Morgan

and Wm. Nelson West.

association was therefore similar to that of a general creditor; and, in the absence of any other claimants of that class, he was entitled to be fully paid in preference to either of the other classes, whose claims were founded upon the relation which they sustained to the association as stockholders thereof. The propriety of the An insolvent building and loan association made a vol- decree, in that particular, has not been seriously untary assignment for the benefit of its creditors. Be- questioned, nor, indeed, can it be. The prinfore the auditor appointed to distribute the fund in the cipal ground of complaint is, that after satisfyhands of the assignee, three classes of claims were pre-ing the treasurer's claim, the residue of the fund

CHRISTIAN et al.'s APPEAL.

sented: 1st. General creditors; 2d. Stockholders who had withdrawn after giving the requisite notice of their intention to withdraw; and, 3d. The other stockhold ers not included in the second class. The auditor, after paying the claims of the first class in full, distributed the balance of the fund pro rata among the second class to the exclusion of the third class. The lower court sustained the auditor. Held, to be error. After the first class were paid in full, the balance of the fund

should have been distributed pro rata among the second and third classes. Both classes are equally meritorious,

and in marshalling the assets neither is entitled to priority over the other.

Held further, that although the appropriate method of administering the assets, remaining after payment of general creditors, would be through a receiver, the same result may be more directly and equally as well attained by administering the assets through an auditor.

Appeal from the decree of the Court of Common Pleas, No. 4, of Philadelphia county.

The facts of the case are sufficiently set forth

in the opinion.

was distributed pro rata among claimants of the second to the exclusion of the third class. That result was reached by holding that members of the association who had given the requisite notice of withdrawal thereby ceased to be stockholders and became creditors to the extent of the withdrawal value of their stock, as evidenced either by orders on the treasurer or by the books of the association, and consequently their claims are superior to those of their fellowstockholders who had not given the requisite notice of withdrawal. In this, we think, there was manifest error. While, in a qualified sense, withdrawing stockholders may be considered creditors of the association, their rights, as against those with whom they have been associated, are very different from those of general

creditors whose claims are based wholly on outside transactions. If the association had

Opinion by STERRETT, J. Filed March 26, 1883. been prosperous, they have a right, under cerThe fund for distribution represents the assets tain limitations and restrictions, to demand and of a confessedly insolvent building and Loan receive their proportionate share of the accumuassociation, which executed a voluntary assign- |lated fund, but if bad investments have been

Decree reversed, as to that part of the fund distributed to the second class of claimants, and record remitted with instructions to distribute the same in accordance with this opinion. Costs to be paid out of the fund.

For appellants, Edward H. Weil, Esq.
Contra, Messrs. J. Quincy Hunsicker and R.
P. Dechert.

REID v. WOOD.

The record in a case of summary conviction must contain a finding that a special act has been done by the defendant, and describe and define it in such a way as to individuate it, and show that it falls within an unlawful class of acts: Commonwealth v. Nesbit, 10 Cas., 398.

A borough ordinance authorized the chief burgess, where a party projected his building beyond the building line of the street, to impose a fine, either "upon view or hearing had before him." The record showed testimony taken before the chief burgess that "the building had not been removed," and, also, that the sentence was imposed after inspection of the premises by the chief burgess. Held, not sufficient to support a summary conviction.

made or losses have been sustained before actual what has already been said it is unnecessary withdrawal they must bear their just proportion to consider several minor questions which arise thereof. That right, as was held in United upon the assignments of error. We are of opinStates Building and Loan Association v. Silver-ion that the residue of the fund, remaining after man, 4 Norris, 394, may be enforced by appro- paying the claim of the treasurer, should be dispriate proceedings at law. But the right of tributed pro rata among the claimants of the withdrawal and the extent to which it may be second and third classes. exercised presupposes that at least a relative proportion of the assets will remain for the benefit of those who continue to be active members of the association. When a building association has failed to fulfill the object of its creation and has become hopelessly insolvent, it cannot be justly or equitably wound up on any other principle than that above suggested. After expenses incident to the administration of its assets are deducted, the general creditors, if any, should be first paid in full, and the residue of the fund should be distributed pro rata among those whose claims are based upon stock of the association, whether they have withdrawn and hold orders for the withdrawal value thereof or not. Both classes are equally meritorious, and in marshalling the assets neither is entitled to priority over the other. The claims of each are alike based upon their relation to the association as members thereof. Orders issued to withdrawing stockholders are merely evidence of their interest in the assets remaining after paying general creditors. As was well said by the learned president of the Common Pleas in the assigned estate of National Savings, Loan and Building Association, 9 W. N. C., 79, such an organization is in fact and in law a partnership with corporate rights, in which every stockholder is a member; and while it may be true that a stock holder may recover judgment against the corporation, and thus become, in a certain sense, a creditor thereof, he is nevertheless not a creditor within the meaning of our assignment laws. There is also great force in his suggestion that the appropriate method of administering the assets, remaining after payment of Specht v. Commonwealth, 12 Harris, 103, distinguished. general creditors, would be through a receiver. While such a course would be strictly regular, the same result may be more directly and equally as well attained by the course pursued in this case. It may be observed that claimants of the second class should not be required to share losses resulting from bad investments made after they withdrew from the association as active members thereof, but it does not appear that any such investments were made after they gave notice of their intention to withdraw. On the contrary, it appears that the injudicious investments, which afterwards developed and in the end resulted in heavy losses and consequent bankruptcy, were made before. In view of

PAXSON, J.-The record should have stated that, upon view or upon evidence, he found that the said building was within the line of the street, in violation of the borough ordinance.

The record of a summary conviction before a chief bur gess of a borough, instituted in the name of the Commonwealth, was returned on a certiorari issued in the name of the defendants against the chief and assistant burgesses. Held, that the writ could be amended so as to make it conform to the record of the burgess.

PAXSON, J.-The variance between the certiorari and the proceedings before the justice might, perhaps, have justified the chief burgess in declining to send up the record.

Certiorari to the Court of Common Pleas of Chester county.

The plaintiffs in error, Wm. B. Reid and Frederick D. Reid, being about to improve a property in a business portion of the borough of West Chester, asked permission of council to make certain projections beyond the house line. The chief burgess notified them that their request was refused. The improvements of the building were proceeded with, whereupon the chief burgess sent written notice to the plaintiff's "requiring them to take down and remove that portion of the building *** which projects beyond the street line within five days from this date, under the penalty of the ordinance in such

ment of the defendants below to the county jail for their refusal to pay the fine, the burgess adds to his record: "The foregoing sentence was also imposed after my own observation of the premises in controversy."

There was no finding by the burgess, either upon his own view, or upon testimony, that defendants below had violated any ordinance of the borough, or that their building projected over the building line of the street. It is true, he says he entered judgment after an observation of the premises, but he neglects to tell us what he observed. For anything that appears, he may have ascertained that the house was within the proper building line. He does not say in his record, as he should have done, if the

the borough of West Chester. An examination of the record shows that the suit below was commenced in the name of the Commonwealth, and for this reason the chief burgess might, perhaps, have been justified in declining to send up the record. But he has sent it, and it requires but an amendment of the writ to make it conform to the burgess' record. This, we think, may be done, as it is the merest technicality. Sprecht v. Commonwealth, 12 Harris, 103, was an entirely different case. There the certiorari was against the Commonwealth, as in a criminal proceeding, while the record sent up was an action of debt in the name of Henry Krib, who sued as well for the Commonwealth as for himself, against Valentine Sprecht. This court held that "a certiorari against the Com-fact were so, upon view or upon evidence, he monwealth does not give us jurisdiction to reverse a judgment of Henry Krib against Valentine Sprecht." That was a criminal proceeding below, although improperly brought as a qui tam action, while in the present case the action was for a penalty for a violation of a borough ordinance. We are of opinion that the mistake in this case is amendable; and, as we are unable to see how any one can be injured thereby, we will treat the writ as amended.

The plaintiff in error was fined by the chief burgess for projecting his building in the borough of West Chester beyond the building line of the street. It appears from the borough ordinance, under which this summary conviction was had, that the chief burgess may impose the penalty prescribed by said ordinance either "upon view or hearing had before him."

While many of the technical formalities of summary convictions have long since been dispensed with, there are some essentials which still exist and must appear upon the record. It is still necessary that a summary conviction shall contain a finding that a special act has been performed by the defendant; and that it shall describe or define it in such a way as to individuate it, and show that it falls within an unlawful class of acts: Commonwealth v. Nesbit, 10 Casey, 398.

The record here does not show that the defendants below have done anything prohibited by law or ordinance. It does show that a complaint was made before the chief burgess, setting forth that they had refused to remove a portion of their building. The only evidence before the burgess was that of officer Jones, who testified to the services of the notices and "that the building had not been removed." 'Whereupon," the record proceeds to state, "the said chief burgess inflicts the penalty of twenty dollars and costs," etc. After making out a commit

found that the said building was within the line of the street, in violation of the borough ordinance.

The merits of the case are not before us upon a certiorari. For the reasons given, however, the judgment must be reversed.

Judgment reversed.

SUTTON v. ANDERSON.

In an action for malicious prosecution, where the testimony of the plaintiff discloses probable cause for his arrest, it is the duty of the court to so instruct the jury, and direct a verdict for the defendant,

Deitz v. Langfilt, 13 P. F. Smith, 234, and Bernar v. Dunlap, 13 Norris, 331, followed.

In an action for malicious prosecution the burden of proving want of probable cause is upon the plaintiff. When the material facts of a case are undisputed, it is error for the court to instruct the jury: "Now it is for you to find in this conflicting testimony just what the truth is; and then you must decide this case in the light of the facts which surrounded the parties at the time."

Error to the Court of Common Pleas, No. 2, of Philadelphia county.

This was an action on the case for malicious prosecution.

The plaintiff below was a porter in a warehouse on Front street, in Philadelphia, who took samples of goods from the store of his employers, without their consent or knowledge, and exhibited the said goods to the prejudice of the firm who had discharged him. He was arrested for the theft of these samples, by the defendant, after their possession was demanded and recovered from the said plaintiff. The parties came to an understanding, and the criminal prosecution was not pressed. After his discharge from arrest the plaintiff brought this action.

The verdict and judgment were for the plaintiff.

The defendant took this writ and assigned cheating their customers. He admits that he the following errors: had taken the samples from Sutton & Co.'s store, from a lot of coffee that had just come in, that Sutton did not tell him to take the samples, and that no person saw him take them.

Contra, Messrs. J. Channing Nevin and E. Sutton then said, yes you have, Richardson was Cooper Shapley.