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this rule that the judgment was opened by that Court on December 8, 1913, a copy of the opinion and order of the Court having been produced before us. The defendant, John J. Pennell, has obtained this rule to show cause why his judgment against Samuel Hoffman and his wife should not be set off against the judgment which Samuel Hoffman has against him.

The Superior Court, in Bowles v. Wright, 28 Sup., 160, have decided that a judgment which has been opened cannot be set off against another judgment. In its opinion the Court says: "Where a judgment entered upon a warrant of attorney is opened generally and without terms, the plaintiff is put to proof of his cause of action precisely as if no judgment had been entered: Sossong v. Rosar, 112 Pa., 197; Harris v. Harris, 154 Pa., 501; Shannon v. Castner, 21 Pa. Superior Ct., 294. It is thus seen that the two judgments in question do not stand on an equality. One is presently enforceable; the other is not, and may never be. Whether anything whatever is due upon the latter is undetermined. Except for the lien, which is preserved pending the trial of the issue, it stands in the same situation as an action brought to which a prima facie defense has been set up; at least it stands on no higher plane for purpose of set-off against a judgment ripe for execution. For this reason alone, without regard to the others suggested in the appellee's brief of argument, the Court was right in discharging the rule."

The defendant's judgment in this case having been opened without terms, cannot therefore be used as a set-off to the plaintiff's judgment against the defendant in this case.

It was also argued on the part of the plaintiff that the judgment of Pennell could not be used as a set-off to plaintiff's judgment because it is against the plaintiff and his wife, and the wife has no interest in the present judgment. We do not agree with this. Bentz v. Bentz, 95 Pa., 216, cited in support of this position, does not so decide. It decides that where a husband and wife sue another, a claim against the husband can

not be used as a set-off against their claim, as this might defeat her right to recover; but the same reason does not apply where, as here, the husband and wife each owe the whole amount of the judgment, for she will lose nothing by having it used to satisfy a claim of his.

We discharge the rule to show cause why the judgment held by the defendant against Samuel Hoffman and wife should not be set-off against this judg ment of Samuel Hoffman against John J. Pennell.

Rule discharged.

Quarter Sessions.

In re Road in Colerain Township.

Road law-Bond for pay of viewers not required-Acts of April 4, 1907, P. L. 44, and June 23, 1911, P. L. 1123.

The requirement of the Act of April 4 1907, P. L. 44, that the petitioners for roadviewers shall file a bond to secure the county for the per diem and mileage of the viewers, is repealed by the Act of June 23, 1911, P. L. 1123, which imposes these costs on the county, and the giving of a bond is unnecessary.

In the Q. S. of Lancaster County. September Sessions, 1913, Minutes 34. Exceptions to report of re-viewers. H. Frank Eshleman, for exceptions. H. R. Fulton and J. R. Kinzer, for report.

July 11, 1914. Opinion by HASSLER, J.

The only exception to the report of the re-viewers is that the petitioners failed to file a bond for costs as required by the Act of April 4, 1907, P. Č. 44The Act of 1907 requires the County to pay the per-diem compensation of viewers and their mileage, and that the petitioners shall pay the same into the County Treasury, and that the Court shall require the petitioners to file a bond to secure the County in such payments. The Act of June 23, 1911, P. L.

law.

1123, creating a board of viewers, pro- | fined, is one of the subdivisions of canon vides that they shall be paid by the County, but no liability for such payment or repayment to the County of the same is imposed upon the petitioners. The Act of 1911, therefore, makes the giving of a bond unnecessary, and therefore in effect repeals the Act of 1907. This question is passed upon by Judge Umbel in Franklin Township Road, 22 D. R., 431, who arrives at the same conclusion. The exception is, therefore, 'dismissed, and the report of the re-viewers is confirmed absolutely.

Legal Miscellany.

Canon Law in the Courts.

66

The terms ecclesiastical law" and "canon law should not be confounded. The former relates to ecclesiastical matters, but owes its enactment and sanction to the civil authority. Canon law is a compilation of rules and laws relating to faith, morals, and discipline, laid down or propounded by the Church or its ecclesiastical authorities, and binding on its members.

In some definitions, as, for instance, that given in the Encyclopedia Britannica, canon law is limited so as not to include matters of faith or dogma; but the Council of Trent called its decrees "canons," whether they referred to matters of faith or morals.-See Addis and Arnold's Catholic Dictionary.

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The influence of canon law upon the growth of our civil or common law has been very important. We need but reflect, for a single instance, on the fact that it has virtually determined the rule of the descent of real property. In another way it figures as a vital fact in our modern courts; it is appealed to as determining the relations between ecclesiastical persons and the tenure of church. property; and the actual decisions of ecclesiastical courts have a well-established status before our civil tribunals.

In Stack v. O'Hara, 98 Pa., 213, the court is obliged to recur, in determining the terms of the compact between priest and bishop, to the canon law of the Church. The court, in its opinion, quotes from the enactments of the Second Plenary Council of Baltimore, and cites such approved works on canon law as Smith's Elements of Ecclesiastical Law."

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In Leahey v. Williams, 141 Mass., 345, 6 N. E., 78, the court said: The authority which the bishops delegate to the priests must be authority vested in them. under ecclesiastical law, and prima facie is ecclesiastical authority." Here the decrees of the Second Plenary Council of Baltimore were put in evidence and virtually determined the case.

"It is no innovation upon the law of evidence, in determining questions like the one at the bar, to call, in aid of the civil tribunal, upon the law of the particular church involved, for the purpose of determining the title to church propThe sources of canon law are the erty. It surely is not unreasonable, in Bible, tradition, the decrees of councils, a case like the present, to hold one of Papal constitutions and rescripts, and the great prelates of the Church to Rome the writings of the Fathers of the the to the terms upon which, by the very law Church. The civil or Roman law is also to which he has vowed his fealty, he has an important source of the canon law, consented to accept legal title to the especially as determining the external property which is appointed to the uses. polity of the church. The decisions of of the Church, to whose service he has the Roman congregation are included in with most solemn unction dedicated his canon law and the various concordats or life. Mannix v. Purcell, 46 Ohio St., treaties, made by the Holy See with dif- 136, 2 L. R. A., 753, 15 Am. St. Rep., ferent countries for the regulation of ec- 562, 19 N. E., 572. clesiastical affairs, are also within the scope of canon law. We may say, therefore, that ecclesiastical law, as above de

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The decision of ecclesiastical courts, or officers having, by the rules or laws of the bodies to which they belong, juris

diction of such questions or the right to decide them, will be held conclusive in all courts of the civil administration; and no question involved in such decisions will be revised or reviewed in the civil courts, except those pertaining to the jurisdiction of such courts or officers to determine such questions according to the laws or usage of the bodies which they represent." Justice Redfield, in 15 Am. Law Reg., 277, quoted with approval in 98 Pa., 213.

Civil courts will not review the action of ecclesiastical tribunals, except where rights of property are involved. Bird v. St. Mark's Church, 62 Iowa, 567, 17 N. W., 747; Ferraria v. Vasconcelles, 23 Ill., 456.

Justice Strong, in his lecture on the "Relations of Civil Law to Church Policy" (p. 41), speaks of the Church" as "as an interior organization within a religious society," and adds (p. 42):

I think it may be safely asserted, as a general proposition, that whenever questions of discipline, of faith, of Church rule, of membership, or of office have been decided by the Church in its own modes of decisions, civil law tribunals accept the decisions as final and apply them as made."

Our American courts have not been steadied to these views without some earlier divergencies, such as appear in O'Hear v. De Goesbriand, 33 Vt., 602, 80 Am. Dec., 653, and Penn., 477, referred to in later chapters of this book. -Humphrey J. Desmond, in Case and Comment.

A Great Lawyer.

Lord Haldane's visit to these shores last summer was short, but apparently not wholly unpleasant. At least, since his return he has paid more than one compliment to Americans. In the recent case of Sinclair v. Brougham and Another, he is reported as having acknowledged his admiration for the man to whom the case-book system of teaching law in this country is largely due, the late James Barr Ames, Dean of the Harvard Law School. The history of the Action of Assumpsit," he said, "has been

described by a writer to whom lawyers and historians alike owe a great deal, the late Professor Ames of Harvard University." Sir Frederick Pollock has also paid Professor Ames a tribute in calling him "the greatest authority on the Common Law since Coke." It will be remembered that the posthumous volume by Professor Ames, his "Lectures on Legal History, and Miscellaneous Essays," appeared from the press of his university last spring, and was a notable “best seller among legal books.

The Virginia Law Register has the following editorial on a subject which has been urged by Bench and Bar as a needed reform in nearly every State in the Union:

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The absurdity, also, of refusing to allow the failure of the accused to testify in his own behalf to be used against him, and positively forbidding any allusion in argument to such failure, should be corrected. The aim of a criminal trial is to acquit the innocent and convict the guilty. An innocent man need never fear the ordeal of the witness-box. A guilty man always does. If a man by keeping off the stand leads a jury to believe him guilty, should they not be allowed to draw an inference from his failure to testify? What good, sensible reason can be urged for the present state of the law? Is it not against all reason? And the fact is that most juries do draw an inference from the silence of the accused, for they know of his right to testify. The fact is, that in our administration of the criminal law we are a century behind the times. In tenderness toward the criminal we have hardened our hearts as to the just enforcement of the law. We have retained practically all the bars which were erected to aid him when he stood accused and upon trial was not allowed counsel. Why should we not now give the law a chance and at least put it upon an equality with the criminal? It is about time we brought some good, hard, logical common sense to the reformation of our criminal procedure."

LANCASTER LAW Review.
REVIEW.

the bank by Rose in person, but was sent to the cashier, who received and discounted it, and his action in this re

VOL. XXXI.] FRIDAY, AUG. 21, 1914. [No. 42 Spect was subsequently ratified by the

Common Pleas--Law.

board of directors. After offering the note and proving these facts, the plaintiff rested its case.

The defendant then offered himself as a witness in his own behalf. He testified that, on or about October 15, 1912,

The First National Bank of Mansfield, Pa., he delivered the note to one, A. E. v. Elmer K. Denlinger.

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Where, in an action on a promissory note by a bank against the maker, it appears by the testimony of the cashier that the bank received the note for value and in good faith, it is no defense that the payee failed to keep a promise to return the note to the maker if he in the future became dissatisfied.

Fraud consists in false representations of things as facts which are not such, or in deceitful concealment of existing facts. A promise is not, in itself, a false and deceiful rep

resentation.

Howell. He stated that Mr. Howell had

been to see him five different times, and that the fifth time he gave him the note; that Howell wanted to sell him some stock of the United Stores Association, and that he (Denlinger) did not want to buy, and, after considerable conversation, Howell said: "Now, if you give me a note, Denlinger, I positively won't use the note"; that he would hold it

until the note came due, and would give Denlinger that time, ninety days, to look up and see the financial standing of the United Stores Association; that, before the note came due, he would come to see Denlinger, and if he was dissatisfied from anything he had looked up and found, or was even dissatisfied by giving March Term, 1913, No. 61. Common It was also shown that no certificate of the note, he (Howell) would return it. Pleas of Lancaster County.

An unfulfilled promise by the payee to the maker of a note is not sufficient to impose on the holder the affirmative burden of proving that it is a holder in due course.

Rule for new trial.

Chas. W. Eaby, for defendant and rule.

stock had ever been given to Denlinger. Upon these facts he rested his defense. His counsel attempted to show, in addition, that a receiver was appointed for the United Stores Association on December 6, 1912. The record of this

W. U. Hensel and Jas. M. Walker, for plaintiff, contra. July 11, 1914. Opinion by LANDIS, proceeding was disallowed, because it

P. J.

The action in this case is based upon a promissory note for $500.00, dated October 15, 1912, payable three months after date to the order of the United Stores Association. The note was endorsed by the United Stores Association to W. D. Rose, and was, on October 19, 1912, transferred by him to the plaintiff. It was proven on the trial that the proceeds of the note were placed to the credit of Rose, who was a director and vice-president of the bank, and the deposit-slip and Mr. Rose's bank-book were produced upon the trial to substantiate that fact. The note was not brought to

was not coupled with an offer to show that a condition of insolvency existed when the note was given. Binding instructions were directed in favor of the plaintiff for the amount of the note and interest, and it is the action of the Court in this regard that is now complained of.

There was no evidence presented in the case to show a lack of good faith on the part of the plaintiff bank in discounting the note. The proof showed that the bank parted with its money, and that, without knowledge that any misrepresentations had been made to secure the note, and without knowledge on the part of either it or Denlinger that the United Stores Association was insolvent

at the time the note was secured, if this | company to cut and market timber would was really the situation. I think, there- be transferred to the West Florida comfore, that the case falls within the prin- pany, of which Hagerman was presiciple of First National Bank of Lock dent; and that he would do all in his Haven v. Keath, just decided by us. power to make it financially successful. The authorities therein set forth indicate It was held by the Court that the alleged that a verdict for the defendant would misrepresentations were merely statenot have the support of the facts pre-ments of intention or promises by the sented at the trial. If this conclusion is maker, and not misrepresentations as to a correct one, then the verdict ought not any existing facts. In Grove v. Hodges, to be disturbed. 55 Pa., 504. Mr. Justice Strong said: It would be going very far to hold that a man may be relieved from his deed by proof that, when it was made, promises were held out to him that were not performed, and that is the utmost that was exhibited in this case. Fraud, it is true, avoids all contracts, but fraud consists in false representations of things as facts which are not such, or in deceitful concealment of existing facts. . . . A promise is not, in itself, a false and deceitful representation."

An even better reason, however, arises, I think, out of the defendant's testimony. He gave the note to Howell, resting upon the promise that Howell would keep it and return it to him if he was dissatisfied. That arrangement may have been a good one between Denlinger and Howell, but it cannot be invoked as a defense against one who has received the note for value and in good faith. It must be remembered that this is a case of fraud, which consists of the failure on the part of the person to whom the note was given to keep the promises which he at that time made. In Lowry National Bank 2. Hazard, 223 Pa., 520, the single question for determination was, whether the averments of the affidavits of defense were sufficient to put the endorsee to proof that he was a holder for value before maturity and without notice. The defendant sought to impose this burden upon the plaintiff by the allegation of fraud and undue means in the procurement of the note. The defense set up was, that the note in suit, with others, was delivered to one, Hagerman, under an agreement with him by which the company was to receive one-fourth of the capital stock of a company to be incorporated under the name of the West Florida Hardwood Company, and that the notes were executed upon the reliance of represen-lation. tations of Hagerman that he controlled the capital stock of the corporation known as the Southern Hardwood Manufacturing Company, which owned valuable timber land in Florida; that he was skilled in the cutting of timber and manufacturing the same for market; that he had expended large sums of money in acquiring an interest in the same; that the rights of the Southern

The distinction in the cases, even before the passage of the Act of 1901, is clear. In Sloan v. Union Banking Company, 67 Pa., 470, Sharswood, J., set it out in plain terms. He says: "It may certainly be considered as well established in this State that, before the holder of negotiable paper can be required to prove his bona fides, it must appear, either by direct evidence or by circumstances, that the instrument was obtained originally, or was put in circulation subsequently, by fraud or undue means. It is certain, also, that want or failure of consideration, or even that an agent or broker to whom it was intrusted for negotiation had fraudulently misappropriated the proceeds of its discount, will not be sufficient for that purpose. The maker, by its negotiable form, authorizes the payee to put it in circu

If he has issued the note imprudently, that ought not to impose upon the holder what may often be a very difficult, because an unexpected, burden. On the other hand, a man who has lost or been robbed or defrauded is to be considered in the light of an unfortunate, rather than an imprudent man; and, therefore, has a claim to protection against mala fide holders. These are the grounds upon which the rule is

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