March 23, 1865 (P. L. 744), makes it unlawful of which the defendant was chairman. His testimony for any person to manufacture any pyrotechnics, was corroborated by another witness, and by his book fireworks, cartridges, or ammunition, in the built- entries. The defendant denied all recollection of the promise: up part of the city of Philadelphia. Therefore the Act of 1721 is so far repealed that the license of the Governor will not authorize the manufacture of squibs, rockets, or other fireworks, in the built-up parts of the city. Only so far as the later statutes are positively repugnant to the prior do they operate as a repeal.

The defendant did not deny that he was chairman of the committee at the time stated, but claimed that he had no recollection of ordering Statute of Frauds-Promise to pay the debt of the printing sought to be charged to him in this another-Original undertaking-Evidence-case, and that it was not his intention to assume Sufficiency of.

account previous to the printing charged to him as chairman of the committee. An indorsement on the back of the receipt signed with the defendant's initials corroborated the plaintiff in this particular. The other receipts were entirely connected with defendant's private printing ac

count.

The referee reported as matter of fact::First. That the plaintiff was authorized by the defendant to do this printing for the committee. Second. That at the special instance and request of the defendant the printing was charged to him on the plaintiff's books as chairman of the committee, and that he agreed to pay the amount of whatever the bill would be.

Third. That there was due the plaintiff from the defendant for said printing the sum of $145.50, with interest from October 8, 1866, amounting in all to $238.62.

As a conclusion of law, the referee found that the plaintiff was entitled to judgment against the defendant for the sum of $238.62.

Exceptions were filed to this report by the defendant, and sustained by the Court (STANTON, P. J.). The referee's finding of fact was set aside because not sustained by the evidence, and his conclusion of law because the contract was a promise to answer for the debt or default of another within the Statute of Frauds. The case being recommitted to the referee, he held a further hearing, at which no testimony was offered, and filed a supplemental report in which he adhered to his former findings of fact with the additional finding that credit for the amount of the plaintiff's bill was given to and charged against the defendant at his request, and not to the Democratic County Committee, and he also adhered to his former conclusion of law.

is to pay his own debt, though a third person's
debt is thereby guaranteed.

Malone v. Keener, 8 Wright, 107.
Townsend v. Long, 27 Smith, 143.
Taylor v. Preston, 29 Id. 436.
Prime v. Koehler, 77 N. Y. 91.
Nor where it is the debt of a partnership of
which the defendant is a member.

Oliphant v. Patterson, 6 Smith, 368.

Nor where the promise is an original undertaking.

Ahlrich v. McConnell, 32 Smith, 171. S. P. Booth v. Heist, 13 Norris, 177. Henry W. Palmer, for the defendant in error. • When the findings of fact by the referee are revised by the Court and become the basis of a judgment, they have still greater weight than when found by the referee, and will not be reversed by the Supreme Court unless the most flagrant mistake can be pointed out.

The committee were liable for the debt jointly. They must be sued together.

Markley v. Quay, 8 WEEKLY NOTES, 145.

May 19, 1884. THE COURT. The findings of a referee are to be taken as prima facie correct, and are not to be overturned except for some obvious mistake or unwarranted conclusion. In the case before us, we discover in the report of the referee neither of these defects, and think, therefore, it ought to have been approved by the Court below. The evidence of the plaintiff as to the assumption of the defendant bears nothing upon its face calculated to render it doubtful, and as it was corroborated not only by his book entries made at the time the work was done, but also by the testimony of George N. Reichard, it ought to be taken for verity. This last-named witness avers, that when the plaintiff was conThe defendant again filed exceptions to the sulted as to the required printing, he refused to report, which were again sustained by the Court, do it unless some one would agree to become reRICE, P. J., delivering the opinion in which the sponsible for its payment. He says further: referee's findings of law and fact were reversed" My impression is that some one authorized us and set aside for the reasons given, supra, and judgment entered for the defendant, whereupon the plaintiff took this writ, assigning for error the action of the Court in entering judgment for defendant.

Q. A. Gates, for the plaintiff in error. The Statute of Frauds has no application this case. This very point was ruled in

to have the printing done, and that it was to be paid for out of the fund of the Democratic County Committee; there is no question about it; I am certain; and if Mr. Woodward was the chairman that year, 1865, he must certainly have authorized us to have the printing done." Now, as it in is not disputed but that Mr. Woodward was the chairman of that committee for that year, we must agree with the referee that this is a substantial corroboration of the plaintiff's evidence. If the plaintiff refused to do the printing, except on the responsibility of some individual person, and in view of that fact the work was ordered by the defendant, he would be primarily liable, and he, not the plaintiff, must look to the committee for reimbursement. Nor does the testimony of the defendant seriously contradict that of the plaintiff. He did not attempt positively

Eichbaum v. Irons, 6 W. & S. 67. Braithwaite v. Skofield, 9 B. & C. 401 (17 E. C. L.). Glenester v. Hunter, 5 C. & P. 62 (24 E. C. L.). This was at most but the debt or default of a partnership. The defendant might possibly have pleaded in abatement that other parties ought to be joined. That was the full extent of his legal

answer.

The Statute of Frauds does not require the promise of a defendant to be in writing, when it

quently entered of record against him, and also his said seven shares of stock as collateral security. At a meeting of the stockholders of the association, at which the plaintiff was present, held February 6, 1877, a resolution was passed "That all stockholders pay in the sum of $20.20 on each share, and those in the first series who pay $20.20 on each share between this date and the May meeting shall be entitled to the amount of their stock at $116 per share.”

to negative what the defendant had sworn to, but | which loans he gave three judgment notes, only alleged that he did not have any recollection amounting in all to $1000, which were subseof such a contract. We cannot, however, agree to give his want of memory a weight equal to that of his adversary's positive allegation, and this the rather when the latter is approved by the referee. The receipts purporting to be in full of all demands cannot be made effective to defeat the plaintiff's claim, for two reasons: (1) They are appended to special bills, which form no part of the claim now in suit; (2) Adams, who signed them, had no power to receipt for any but such .bills as were put into his hands for collection. Finally, we are of opinion that the defendant's agreement to pay for the printing charged to him by the plaintiff amounted to an original undertaking, and was not merely an assumption to pay the debt of another party.

Prior to the said May meeting a charge of $141.40 was entered on defendant's books against the plaintiff, it being a charge of $20.20 on each share held by him, the judgments against the plaintiff were satisfied of record, his seven shares of stock cancelled, and the maturThe judgment of the Court below is reversed, ing value of his two free shares, $232, applied in and it is ordered that judgment be entered on payment of the above assessment, leaving a balthe award of the referee with interest and costs.ance due plaintiff on defendant's books of Opinion by GORDON, J.

Jan. '84, 28.

C. K. Z.

April 14, 1884.

Laurel Run Building Association v.

Error to the Common Pleas of Luzerne County.

Appeal of The Laurel Run Building Association from the judgment of a magistrate in an action brought by James B. Sperring against the association, to recover the value of two shares of stock in the defendant corporation.

The case was referred to George K. Powell as referee, who reported as follows: The defendant is a building association organized in the year 1871 under the provisions of the Act of April 12, 1859, and its supplements. The plaintiff being the owner by purchase of seven shares of the first series of stock of said association borrowed upon five of these shares the full amount of their par value, $200 per share, for

$90.60.

Subsequently to the said May meeting in 1877 certain expenses were incurred by the association, which were apportioned among the stockholders, and the plaintiff's share duly charged up against him on defendant's books. On July 6, 1881, plaintiff gave defendant notice of his withdrawal

from said association, and demanded "to have returned to him the moneys paid in by him and returnable to him as a withdrawing stockholder under the provisions of the constitution and bylaws of said association," which were under Article II. of the said by-laws, "the amount of dues actually paid in by him, and interest thereon, at the rate of six per centum per annum, less all fines and his or her proportion of expenses and losses incurred.”

From the above facts the referee found the following conclusions of law: "The plaintiff having availed himself of the resolution of February 6, 1877, at or before the following May meeting, he ceased to be a stockholder of the defendant association, except so far as his claim for the balance of $90.60 gave him an interest. No assessment to cover expenses incurred subsequent to said May meeting could be legally laid upon him, and he was entitled at or before the said May meeting to demand and receive from said association the said balance of $90.60, and his notice of withdrawal was sufficient to enable him to bring suit for the same. The plaintiff, therefore, is entitled to judgment against the defendant for $90.60, with interest from May 22, 1877, making in all $121.55."

Exceptions were filed to this report by the defendant, which were overruled by the Court below (RICE, P. J.), and the report was confirmed, and judgment entered for the plaintiff for $121.55. Thereupon the defendant took

this writ, assigning for error, inter alia, the referee's finding in favor of the plaintiff and the judgment of the Court.

Michael Cannon, for the plaintiff in error. A stockholder whose stock is held in pledge is not entitled to withdraw.

Act of April 12, 1859, P. L. 544, P. D. 183. If the plaintiff in error could withdraw, he could only recover the withdrawal value of his stock, and not its par value.

O'Rourke v. W. P. Building Asso., 12 Norris, 308. W. P. Ryman, for the defendant in error. The action of the stockholders at the meeting of February 6, 1877, was in effect a settlement and compromise of a disputed account. Such a compromise is binding, and payment of a balance found due either of the parties can be enforced by suit.

Paxson v. Hewson, 8 WEEKLY NOTES, 197.

Cumber v. Wane, I Sm. Lead. Cases, 442, etc.

April 28, 1884. THE COURT. The rights of the plaintiff below as a withdrawing stockholder are fixed by the Act of 12 April, 1859 (P. L. 544), and the constitution and by-laws of the defendant company. These limit his right of recovery to the amount of dues which he had actually paid in, with interest thereon at the rate of six per cent. per annum, less all fines and his proportion of expenses or losses incurred. In point of fact he was allowed to recover, not the withdrawal value of his stock, but its par value as reduced. That this was error is too obvious to need an extended discussion.

on the faith and credit of his remaining two shares of stock. As a result of this somewhat questionable proceeding, he held two shares of stock of the fixed value of $116 each, $232, upon which he owed the company $141.40, leaving an apparent balance due him of $90.60, which he would be entitled to receive upon the final winding up of the first series. That he was not entitled to sue for it at law was settled in O'Rourke v. West Penn Loan and Building Association (12 Norris, 308). To meet this difficulty on July 6, 1881, he gave notice of withdrawal, and subsequently commenced this suit, in which he was permitted to recover the above sum of $90.60, with interest. The result is to let hinr out as a withdrawal stockholder with a full share of the profits on the seven shares, and to avoid all losses in the winding up, resulting from expenses, depreciation of property, etc. On the five shares he got his profit for the reason that his judgments were satisfied without payment, and on the two shares he gets the matured value of the stock. This result could not be reached without error somewhere.

Upon the trial below, assuming that he was a withdrawal stockholder, he should have been confined to his notice, and permitted only to recover what he claimed therein, viz., "to have returned to him the moneys paid in by him and returnable to him as a withdrawing stockholder, under the provisions of the constitution and bylaws of the association." The par value of the stock had nothing to do with the case and should not have been considered.

The plaintiff owned seven shares of stock in Just what amount of fines, losses, and exthe first series. Upon five of the shares he had penses the company were entitled to charge borrowed the full amount, $200 per share, and against him, we are not called upon to say, for had given one or more judgments therefor, the reason that the plaintiff was not a withdrawamounting to $1000, with the seven shares of ing stockholder, and could not have been under stock as collateral. Two of his shares were what the Act of 1859, so long as his stock was held is called free stock, that is, it had not been bor- in pledge. (Watkins v. Building and Loan Asrowed upon, although pledged with the others. sociation, 1 Outerbridge, 514.) It appears from In 1877 the association, owing, it is stated, to the the plaintiff's own testimony that the two shares general depression of business, passed a resolution for which this suit was brought were applied by reducing the par value of the stock from $200 to his direction to his indebtedness or arrearages on $116 per share; that the stockholders pay in the other five shares, as well as on the two shares $20.20 per share, and that all of the stockhold- in question. This, as before stated, was $140, ers in the first series who should comply with no part of which has been paid. It was only the resolution prior to the ensuing May meeting charged. It would be further liable for all proshould be entitled to the amount of their per arrearages and charges, and for his proporstock at $116 per share." The amount of plain- tion of losses which may have been incurred tiff's assessment on his seven shares under this prior to his notice of withdrawal, conceding such arrangement was $141.40, which was charged withdrawal to be valid. For it is idle to say that against his two free shares. He then procured when stock or a particular series of stock matures, satisfaction to be entered upon the judgments a holder is entitled absolutely to its par value. which the association held against him. No From such value must necessarily be deducted money was paid by the plaintiff, and the effect any expenses or losses incurred in winding up of the transaction was the satisfaction of the the association, or the particular series. Such judgments which were only paid in part, and an losses may be trifling or they may be serious. advance to him by the association of $141.40 | What the stockholders are entitled to under such

circumstances is an equal division of the assets, | Mill Road, of a width of thirty-three feet. The less expenses and losses.

main street of the borough was a continuation of this road, but was laid out to the old borough line forty feet wide or thereabout. In 1874-5 the borough limits were extended under the general borough Act of 1851, so as to include Gilmore's property, which had theretofore been without its limits.

From time to time nearly all the property owners along the old Lobengier's Mill Road within the borough limits conformed the line of their properties to the line of the main street, by

Aside from this, assuming that the resolution of February 6, 1877, matured the stock of the first series, I am unable to see how a stockholder of that series can withdraw after such maturity. The plain object of the Act of 1859 was to permit a stockholder to withdraw during the active life of the association or the series. It makes no provision for a withdrawal after the stock has reached par, and the association exists only for the purpose of liquidation. Nor can any object be perceived for such withdrawal ex-setting back their fences. This Gilmore refused cept to gain the right to sue immediately for the value of the stock. This would be giving an unfair advantage which the law does not favor. The plaintiff has no right to recover in this action, and the Court below should have so instructed the jury.

to do, when in July, 1882, the borough council passed a resolution instructing the street committee to have fences, walls, and all obstructions of any kind moved when encroaching on the streets, after having first served proper notices to the property holders, so to do, also to have the gutters put in and the pavements laid in accordance with the borough ordinances regulating the same. Pursuant to this resolution the burgess notified Gilmore to commence the removal of his fence in ten days and to have the same completed in reasonable time, or the same would be done at his proper cost and expense, and the amount with penalty and interest would be collected as prescribed by law.

Gilmore refused to set back his fence. In consequence of which neglect or refusal, the burgess and council sent a force of men about the latter part of July, 1882, who by force removed the fence and cut away Gilmore's property to the line of Main Street, damaging his trees and shrubbery, and laying waste his front yard, whereupon Gilmore commenced proceedings in the Court of Quarter Sessions by petition and

A town council cannot by a mere resolution take land to widen a street. If they do so they are liable in tres-rule on J. Emmett Stellwagon, burgess, and

pass.

A town council passed a resolution directing notices to be served upon the property owners abutting on a certain street to set back their fences and remove all other obstructions upon the street, and further empowering the borough officers upon failure of any property owner to comply with the notice, to do the work themselves. A property owner having failed to comply with this notice the borough officers removed his fences and cut away his property to the line of the street:

Held, that the proceedings were not instituted under the provisions of the Borough Act of April 3, 1851 (P. L. 326), but that the act of the borough officers amounted to a mere tresspass, and that hence the property owner was not entitled under the provision of said Act to an issue in the Quarter Sessions to assess the damages he had sustained, but must be remitted to his common law remedy.

Appeal of Isaac T. Gilmore from and certiorari to the Quarter Sessions of Fayette County. The facts of the case were substantially as follows: Isaac T. Gilmore was a resident of the borough of Connellsville, Pa. Prior to 1874-5, his property was without the borough limits fronting on a road known as the Lobengier's

council of Connellsville, to show cause why they James H. Purdy et al., composing the town should not restore possession of the premises described in the petition, and why an issue should not be framed to assess the damages as prayed for therein.

On September 29, 1883, the petition was refused, and the rule discharged at the petitioner's cost. Thereupon Gilmore took this appeal and certiorari, assigning for error the action of the Court in entering a decree dismissing the appellant's petition.

Edward Campbell, for the appellant.

The appellant considered that the law afforded him either of two remedies.

First an action of trespass quare clausum fregit, against the parties committing the destruction and their principals; and second, a complaint to the Court of Quarter Sessions, under the 27th section of the general borough law, Act of April 3, 1851, which providcs—

(1) Private property shall not be taken for the