reach and hold them upon attachment execu- | knowledge or consent of M. J. Decker, except tion. "One partner cannot use the property of the firm to pay individual debts, even if the act is honest and in good faith, if his copartners had no knowledge of the transaction, if such transfer prevents the creditors of the firm from collecting their debts. A different rule prevails if both parties consent bona fide to the transfer. You will recollect that Hartley swears Decker did consent to it. "Fraud is not presumed, the burden is on the party alleging fraud to establish it by satisfactory evidence." The Court directs the jury to find a special verdict, and stated to them all the facts their finding should cover, calling their attention to evidence bearing upon each proposition they were to determine and find in their verdict. as to the Gifford note, and that at this time "We find for the plaintiff such sum as the Court may be of opinion he has a right to recover under these facts, verdict to be moulded by the Court and judgment entered thereon in such manner and amount as the Court may deem legal and proper. If the Court be of opinion he cannot recover under the facts found by us, then our verdict is for the defendant." A rule was afterwards granted to show cause why judgment should not be entered for $1250, which the Court made absolute, in the following entry of record :— "And now, April 27, 1878, rule absolute, judgment in favor of plaintiff and against the said garnishee, for $1250.20 and costs. Under the Act of Assembly and the cases (vide Bonaffon v. Thompson, 4 WEEKLY NOTES, 210), execution is restricted first as to the goods and effects in the garnishee's hands, or so much thereof as may satisfy the plaintiff's demands, and secondly against him as of his proper debt if he refuses to produce such goods and effects. By THE COURT." The jury found the following special verdict: "We find that the money for which the note entered in No. 715, Aug. T., 1872, was borrowed by Decker & Halstead, copartners, and used in their partnership business, of $1250.20 remain unpaid. Attachment execution served July 24, 1875. That Silas Hartley, garnishee, obtained from Andrew Halstead about the 2d day of December, 1872, notes and judgments amounting to about $2000, face value; that the notes and judgments belonged and were the property of Decker & Halstead when so assigned and transferred. That he has collected on these notes $700, and has given up other notes to the makers, and included in notes taken in his own name to the amount of $723. That the interest on the $700 is $210, and on the $723 is $216.90, computed by us for five years. We find that the notes and judgments not collected, surrendered, were of the value of $125 when they transferred to Hartley interest on same for five years $37.50. We further find that the value of the notes sur- Little & Blakeslee, for plaintiff in error. rendered by Hartley to the makers, and new The priority of firm over individual creditors notes taken by him, and now uncollected, were is admitted where both have acquired liens on of the value of $578.40, interest thereon for five the partnership assets before a sale. It is the years, $173.50. For all the notes and judg-specific lien before a sale which enables a firm ments which Hartley received from Halstead he paid Halstead $493-53, by delivering to him his notes and accounts he held against Halstead individually, also paid a note of about $225 which one Stewart held against Halstead. He also applied payment of a debt he had against Decker & Halstead of $35.21, making a total of $753-74 "We further find that the transfer of these notes adjudged was fraudulent, and intended by Halstead and Hartley to be in payment of Halstead's private debts, and to prevent the same from being used and applied in the payment of the firm debts of Decker & Halstead, and the transfer was in the absence and without the The garnishee took this writ, assigning for error, inter alia, the charge of the Court, the form of the special verdict, and the entry of judgment thereon. creditor, through the equity of the other partner, to enforce his priority. But a general creditor of the firm has no such lien, and cannot restrain an individual partner from selling his interest. Young v. Frier, I Stockton, 468. Mittnight v. Smith, 2 C. E. Green, 259. The right of a firm creditor is subordinate to the power of a partner to make a bona fide disposition of his interest before the creditor has acquired a lien. Field v. Hunt, 24 Howard's Pr. 463. The lien of a partnership creditor is in time if acquired before a sale. Coover's Appeal, 5 Casey, 15. After the sale and delivery of a chose in action to a third party a firm creditor cannot follow | Court to base its judgment upon. There is no it. Teal v. Bogue, 8 Harris, 234. The insolvency in this case was subsequent to the sale of the notes. By the agreement of July 20, 1872, Decker was to pay Halstead's half of the firm indebtedness. He thus became the principal and Halstead the surety. Decker having no equity the firm creditor is without remedy. Colgrove v. Tallman, 67 N. Y. 95. The equity is in the partners and not in the creditors. If the partners waive or extinguish it, it cannot be set up by firm creditors. Taggart v. Keys, 3 Phila. 97. The firm's title to the notes passed to Hartley because (1) a partner may sell a chose in action, and (2) a partner may, without his copartner's assent, pay a firm debt. Mere preference of individual debts over firm debts is not such fraud upon partnership creditors as will be set aside by a court of equity. National Bank v. Sprague, 5 C. E. Green, 30. A special verdict must contain all the facts upon which the judgment of the Court is to rest. P. R. R. v. Evans, 53 Pa. 250. Nothing can be supplied by the charge nor from the evidence. Craven v. Gearhart, 1 WEEKLY NOTES, 257. The special verdict is fatally defective, because it does not state the amount of the Gifford note, and does not find the dissolution of the firm. Bentley and E. Robinson, for defendant in error. A partner cannot make a valid transfer of firm property in payment of his individual debts without the assent of his copartner. Todd v. Lorah, 25 Sm. 155. Such a transaction with a partner, with full knowledge of the circumstances, is mala fides and a nullity. Leonard's Ex'rs v. Winslow, 2 Grant, 139. A partner cannot divest the title of the firm to partnership property by fraudulent delivery to a third party, as security for his separate debt, nor for his own benefit in any way. Porter v. Miller, I WEEKLY NOTES, 240. An attaching creditor takes the property in the hands of the garnishee, with all its legal incidents, and is entitled to the fund produced by such property. Fessler v. Ellis, 2 Grant, 472. The equity of Decker could in no way be defeated by Halstead's fraud. The argument on the other side, showing the right of a partner to sell bona fide his interest in the firm property before a lien was attached, is wholly inapplicable to this case. The special verdict, though admittedly defective, yet contains all the facts necessary for the more reason why the amount of the Gifford note should be mentioned than that that of any other note should be. May 3, 1880. THE COURT. This judgment was entered on a special verdict. It does not present the facts in a clear and methodical manner. It is not a model to be followed. It may, however, be sufficient to sustain a judgment. The plaintiff in error was served as garnishee of Decker and Halstead, copartners. The jury found that in fraud of the creditors of the firm, and without the knowledge or consent of Decker, except as to one note (shown by evidence to be judgments and notes, the property of the firm about $40), Halstead assigned and transferred amounting to about $2000 to the garnishee; that the transfer of this property was fraudulent and intended by Halstead and the garnishee to be in payment of Halstead's private debts, and to prevent the same from being used and applied in the payment of the firm debts of Decker and Halstead; that the firm was at the time largely in debt, and soon after became insolvent. They further found that out of the claims thus assigned to the garnishee, he had collected a specific sum in cash, and that he had surrendered to the makers notes, and taken new ones therefor for a sum certain and of sufficient value added to the cash received, to exceed by several hundred dollars the sum due to the attaching creditor, or for which judgment was entered against the garnishee. It is well settled that one partner cannot make a valid transfer of firm property in payment of his individual debt, without the consent of his copartner (Todd v. Lorah, 25 P. F. Smith, 155). Such act is a fraud on his copartner, and the right of property in the firm does not pass to the individual creditor. The present case goes still further. Not only was the attempted sale a fraud on the copartner, but it was intended and operated as a fraud on the creditors of the firm. It is then clear, under these facts, the purchaser cannot hold the property against the creditors intended to be defrauded. He has no reason to complain of the amount for which judgment was entered against him. It is for a sum less than he has realized out of the property. It is further objected that the form of the judg ment is wrong. It must be conceded that the reference to the Act of Assembly, and to the case of Bonaffon v. Thompson, might more appropriately have been made in an opinion of the Court than be interwoven in the judgment. This, however, is not a fatal error. The form of the judgment can be amended. It is now done by striking out those references so that it shall stand-judgment in favor of plaintiff below, and against said garnishee for twelve hundred and | ble witnesses, may order and direct. But if she should fifty dollars and twenty cents and costs, to be die without making such disposition, then in trust for my levied on the goods and effects of Decker and their heirs and assigns forever; and it is my will and retwo daughters, Mary McKeen and Emeline Bent, and Halstead in his hands, or, in case he fails or re-quest, that the said Edward pay off the ground-rent and fuses to produce such goods and effects, sufficient to satisfy the execution, then to be levied against him as his own proper debt. Thus amended the Judgment is affirmed. Opinion by MERCUR, J. Jan. '80, 141. mortgage on the before-mentioned premises, that the same may be free from encumbrance at the time my said daughter may be entitled to receive the rents thereof, as aforesaid, or as soon afterwards as he may be able to discharge the same." The testator left surviving him a widow, since deceased, and four children. His son Edward, the trustee, having died, The Philadelphia Trust, February 18, 1880. Safe Deposit, and Insurance Company was appointed trustee in his stead by the Orphans' Court. The testator's daughter, Henrietta, the complainant, was neither married nor in contemplation of marriage at the death of testator, and has remained single. Armstrong's Estate. Philadelphia Trust Company's Appeal. Trusts and trustees-Dry trust-Statute of Uses -Sole and separate use-Estate tail. When there is a dry trust for the sole and separate use of a woman neither married nor in contemplation of marriage, the mere fact that on a certain contingency, which might never happen, the trustee was directed to execute a conveyance after the death of the cestui que trust will not change the dry character of the trust and make it active. By virtue of a decree of the Orphans' Court, the said real estate was lately sold at private sale, under the Act of April 18, 1853, all interested parties consenting thereto. A deed was also executed by the complainant, duly recorded, etc., which was intended to bar and dock the entail. The purchase-money was received by the Philadelphia Trust Company, and is held upon the same trusts as heretofore. The words "heirs of the body lawfully begotten," are the proper and technical words to create an estate tail, and where nothing in the will qualifies or changes their The bill averred that the trust is not now, and import, they must have their legal effect whatever the tes-never was an active one, and that the complaintator may have intended. Appeal from the Common Pleas No. 2. of Philadelphia County. Bill in equity, filed by Henrietta Armstrong against The Philadelphia Trust, Safe Deposit, and Insurance Co., trustees under the will of Thomas Armstrong, et al. The bill set out the following facts: Thomas Armstrong, late of the city of Philadelphia, died in 1842, having first made his last will and testament in writing, duly proved and registered, wherein he devised, after the death or marriage of his widow, unto his son Edward, certain real estate, upon the following trusts: "I give and devise to my son Edward all that house and lot of ground, with the appurtenances, adjoining the south side of my said dwelling-house, to hold to him, his heirs, and assigns, to and for the uses, intents, and purposes hereinafter expressed and declared of and concerning the same, that is to say, in trust, that he shall and will permit my daughter Henrietta to receive the rents thereof for her sole use during her lifetime, to the intent that the same shall not be liable to the contracts, or control of any husband with whom she may intermarry, and from and immediately after her decease, then to the heirs of the body of the said Henrietta lawfully to be begotten. But in case the said Henrietta should not marry, or marry and have no such issue, then upon trust that he, the said Edward, and his heirs, executors, or administrators shall and will grant and convey the fee simple inheritance of the before-described premises unto such person or persons, in such manner as the said Henrietta, whether she be married or sole, by her last will and testament, in writing, ant took a legal estate in fee tail, and that said entail is now barred; and that the oratrix is therefore absolutely entitled to the securities in the hands of the present trustee, and prays accordingly. The answer admitted the facts averred in the bill, and submitted to the judgment of the Court in respect to the questions of law involved, etc. Upon hearing, on bill and answer, the Court (HARE, P. J.), entered a decree in accordance with the prayer of the bill, directing the Trust Company to transfer absolutely the property in its hands to Henrietta Armstrong. The Trust Company took this appeal, assigning for error the entering of the decree as above. L. L. Eyre (R. L. Ashhurst with him), for the appellant. The devise created an active trust in favor of the daughter for life, with alienative limitations over in fee. The operation of the rule in Shelly's case must be in abeyance until the intention of the testator is discovered. An estate tail cannot be implied from the context, because (1) the particular estate is given as a sole and separate use, and (2) the words determining the estate must, of necessity, mean a definite failure of issue. This case is decided by— Ingersoll's Appeal, 6 WEEKLY NOTES, 125. Rowland Evans, for the appellee. The trust is a dry trust, and there is nothing to signed, sealed, and attested in the presence of two credi-prevent the operation of the Statute of Uses. It VOL. IX.-19 being given as a sole and separate use, and the cestui que trust not being in contemplation of marriage, or married at the time of its creation, the trust falls. McBride v. Smith, 4 Sm. 250. An estate tail is expressly created here, the words "heirs of her body," being apt, technical ones of limitation, not to be construed otherwise except upon the direct express intention to the contrary on the part of the testator. Bender v. Fleurie, 2 Gr. 345. said county. The purchase-money was received by the appellant. The appellee filed this bill, praying for a decree that, under the will, she took an absolute legal estate in fee, in the real estate; and that the appellant be required to assign and pay over to her the proceeds of the sale thereof. The Court decreed in accordance with her prayer. We will first consider the character of the trust created by the will. Its language, substantially, is in trust, that the trustee shall permit Henrietta to receive the rents thereof for her sole Inger-declared to be, that the property shall not be use during her life, and the intent of the trust is liable to the contracts or control of any husband she may thereafter have. No care or duty was imposed on the trustee in regard to the management or protection of the property, nor as to the collection or payment of the rents. He had no active duties to perform. It was a dry trust. The This case is clearly distinguishable from soll's appeal; there the trust given was an active one, and the gift was in fee simple. May 3, 1880. THE COURT. This contention arises under the will of Thomas Armstrong. It declares "I give and devise to my son Edward all that house and lot of ground with the appur-purpose was to create a separate use in Henrietta. tenances adjoining the south side of my said dwelling house, to hold to him, his heirs and assigns, to and for the uses, intents, and purposes hereinafter expressed and declared of and concerning the same, that is to say, in trust, that he shall and will permit my daughter Henrietta to receive the rents thereof for her sole use during her lifetime, to the intent that the same shall not be liable to the contracts or control of any husband with whom she may intermarry, and from and immediately after her decease, then to the heirs of the body of the said Henrietta lawfully to be begotten; but in case the said Henrietta should not marry, or marry and have no such issue, then upon trust, that he, the said Edward, and his heirs, executors, and administrators, shall and will grant and convey the fee simple inheritance of the before-described premises unto such person or persons, in such manner as the said Henrietta, whether she be married or sole, by her last will and testament in writing, signed, sealed, and attested in the presence of two credible witnesses, may order and direct. But if she should die without making such disposition, then in trust for my two daughters, Mary McKeen and Emeline Bent, and their heirs and assigns forever." Edward, the trustee named, having died, the appellant was appointed in his place by the Orphans' Court. The real estate, by virtue of a decree of said Court, was sold at private sale under the Act of Assembly. The record of the proceedings declared that the purchaser should take an estate in fee simple, discharged of all trusts, contingent remainder, and executory devise limited thereon. Henrietta, the appellant, also executed to the purchaser a deed intended to bar the entail. On motion in open Court, it was duly entered of record in the Common Pleas of She was sui juris. She took the whole beneficial interest devised to her. Her estate, as well as that given in remainder, were both legal, for the trust was executed under the statute. (Physick's Appeal, 14 Wright, 128; Nice's Appeal, Id. 143; Ogden's Appeal, 20 P. F. Smith, 501; Megargee v. Naglee, 14 Id. 216; Kinsel v. Ramey, 6 Norris, 248.) The mere fact that on a certain contingency, which might never happen, the trustee was directed to execute a conveyance after her death, to her devisees, did not change the dry character of the trust and make it active. (Bradley's Appeal, 36 Leg. Int. 38.) Still further, Henrietta was neither married nor contemplating marriage at the death of the testator. She never married. The expressed purpose of the trust being solely to protect against any husband she might have, it cannot be sustained. A separate use for a woman cannot be created unless she is covert or is in immediate contemplation of marriage. (McBride v. Smythe, 4 P. F. Smith, 245.) The trust therefore failed to take effect. What estate then did Henrietta take? It was given to her for life, and the remainder expressly limited to the heirs of her body lawfully begotten. These are the proper and technical words to create an estate tail. They must have their legal effect, whatever the testator may have intended. (Bender et al. v. Fleurie, 2 Grant, 345; Linn v. Alexander, 9 P. F. Smith, 43; Taylor v. Taylor, 13 Id. 481.) No words in the will changed or qualified the legal import of this language. An estate tail was thereby created. It was duly barred by the conveyance, and the learned Judge correctly decreed in favor of the appellee. Decree affirmed, and appeal dismissed at the costs of the appellant. Opinion by MERCUR, J. Quarter Sessions. provide for the redemption of the whole, or any parts or coupons of any ticket or tickets, as they may have sold, as the purchaser, for any reason, has not used, and does not desire to use, at a rate which shall be equal to the difference between the price paid for the whole ticket, and the December 4, 1880. cost of a ticket between the points, for which the proportion of said ticket was actually used; and the sale by any person, of the unused portion of any ticket, otherwise than by the presentation of the same for redemption, as provided for in this section, shall be deemed to be a violation of the provisions of this Act, and shall be punished as herein before provided. Provided, That this Act shall not prohibit any person who has purchased a ticket from any agent authorized by this Act, with the bona fide intention of travelling upon the same the whole distance between the points named in the said ticket, from selling the unused part of the same to the company that sold the same: and it shall be the duty of the said company to pay for such unused portion of ticket, the difference between the actual fare to point used, and the amount paid for such ticket. Commonwealth v. Wilson. Criminal law-" Ticket scalping"-Acts of May 6, 1863, and April 10, 1872, forbidding the unauthorized selling of railroad tickets-Constitutionality of-Practice-Demurrer to evidence in criminal trial-Effect of. Sur demurrer to evidence. The defendant first demurred to the indict The defendant, Albert Wilson, a railroad ticket broker doing business in the city of Philadel hia, was indicted under the Act of May 6, 1863 (Purd. Dig. 220), and the supplement thereto of April 10, 1872 (P. L. 51), for that on July 28, 1880, he sold to one George G. Bishop ment, and this demurrer having been overruled an unused portion of an unlimited contract or ticket entitling the holder to one first-class pas-upon the close of the Commonwealth's case, the pro forma by the Court, the trial proceeded and sage from Altoona to Pittsburgh by way of the defendant demurred to the evidence. Pennsylvania Railroad, contrary to the provisions of the said Acts, etc. The ticket, with coupons attached, was originally sold by the company's agent in Boston, and was so stamped on its back. The Act of May 6, 1863, as amended by the Act of April 10, 1872, provides as follows— be Sect. I. It shall be the duty of the owner or owners of any railroad, steamboat, or other conveyance for the transportation of passengers, to provide each agent who may authorized to sell tickets, or other certificates entitling the holder to travel upon any railroad, steamboat or other public conveyance, with a certificate, setting forth the authority of such agent to make such sales; which certificate shall be duly attested by the corporate seal, if such there be, of the owner of such railroad, steamboat, or other public conveyance, and also by the signatures of the owner, or officer whose name is signed upon the tickets or coupons, which such agent may sell. Sect. 2. It shall not be lawful for any person, not possessed of such authority, so evidenced, to sell, barter, or transfer, for any consideration whatever, the whole, or any part of any ticket or tickets, passes, or other evidences of the holder's title to travel on any railroad, steamboat or other public conveyance, whether the same be situated, operated, or owned within or without the limits of this Commonwealth. Sect. 3. Any person or persons violating the provisions of the second section of this Act shall be deemed guilty of misdemeanor, and shall be liable to be punished, by a fine not exceeding five hundred dollars, and by imprisonment not exceeding one year, or either or both, in the discretion of the Court in which such person or persons shall be con victed. W. Horace Hepburn, for the demurrer. The Act under which the defendant is indicted is unconstitutional and void, in that it violates the several provisions of the Constitution of the United States, which declare that no citizen shall be deprived of his privileges or immunities, life, liberty, or property, without due process of law; that no law shall be passed impairing the obligation of contracts; and that Congress shall have power to regulate commerce among the several States. Constitution of U. S., Art. I., ?? 8, 10, Art. V. Amendments thereto, Art. XIV., sect., I. Further it is void because it creates a monopoly in a lawful business, and it assumes power not legislative in its nature. The ticket in question was originally sold, and the contract of which it is the evidence was made by the railroad company in Massachusetts, where no such law exists. On its face the ticket and coupons entitled "the holder" to passage from Boston to Pittsburgh. It contained no restrictions on transferability. The railroad company contracted with the purchaser to pass the holder of the ticket; the purchaser therefore bought the right either to travel himself, or to give away, or to sell the ticket. This he might do in Boston, or en route until he reaches Pennsylvania, where he finds this law, which impairs the obligation of his contract by limiting its sale to the company that sold it, for a specified price, under penalty of forfeiting his property (for the vendor's benefit) and fine and imprisonment; this without "due process of law." Sect. 4. It shall be the duty of every agent who shall be authorized to sell tickets, or parts of tickets, or other evidences of the holder's title to travel, to exhibit to any person desiring to purchase a ticket, or to any officer of the law who may request him, the certificate of his authority thus to sell and to keep said certificate posted in a This phrase due process of law has a wellconspicuous place in his office for the information of defined legal meaning. It is derived from MagSect. 5. It shall be the duty of the owner or owners of na Charta, and was originally styled law of the railroad, steamboat, and other public conveyances, to land. "By the law of the land is most clearly travellers. |