THE York Legal Record. 0. C. of Volume XXXVI Lancaster Co. judgment against him for $4287.77. The Estate of John R. Bomberger, dec'd. Set-off-Fundamental principles of When one judgment not allowed as setoff against another-Contribution. sureties were sued on the bond and judg ment was entered September 6, 1919, for $2560.00 against James H. Deaver and A. G. Hamaker, executor of the will of John R. Bomberger, deceased. Execution was issued on this judgment and the goods of James H. Deaver levied on. Whereupon Deaver paid the amount demanded and the costs and the judgments The set-off of one judgment against another is not a legal right even under the de-assigned to him. faleation act, but is within the sound discretion of the court, founded on principles of equity, and will not be allowed where it would infringe on other rights of equal grade. It seems that John R. Bomberger held notes of the Fulton Farmers' Association amounting to about sixteen hundred dollars. At the trial of the case against the The treasurer of a corporation having defaulted. judgment was obtained against his, sureties these notes were offered as a two bondsmen, one of whom paid the set-off, but the offer was refused. Subamounts due and secured an assignment of sequently judgment was obtained on the notes for $1600.00 by A. G. Hamaker, the judgment, and his co-surety, who was the father of the defaulting treasurer, having died, presented his claim for contribution against his estate. Against this claim the executor claimed the right to set-off a judg-| ment of his decedent against the corporation ¦ founded on promissory notes. Held, that the claim for contribution should be allowed and the set-off disallowed. Exceptions to adjudication. Harnish & Harnish, for accountant and exceptions. John A. Nauman, contra. Smith, P. J., March 16, 1922.-The question raised by exceptions to the decree of distribution in this estate involves the spirit of fair play. executor. At the audit Deaver claimed from the estate of his co-surety an equalizing contribution of $1495.83, and offered the judgment assigned to him by the Association. The claim was allowed, and to this exception has been taken. In the effort to defeat this claim the judgment for $1600.00 was offered as a set-off and it was not allowed. If the judgment assigned by the Association to Deaver may be cancelled by the judgment held by the executor of the will of John R. Bomberger, Deaver is trapped and forced into the anomalous position of not only being Dallas R. BomDallas R. Bomberger is the son of berger's rifled bondsman but thereby as John R. Bomberger, the testator. Dal- well becoming substantially his involunlas was chosen treasurer of the Fulton tary perpetual purveyor. To verify this Farmers' Association. Thereupon it assertion it will be necessary to go to the became necessary for him to give a bond will of John R. Bomberger. This will conditioned upon the faithful perform- was made on the fourth day of April, ance of his duties. His father and 1919, after the testator knew of the misJames H. Deaver were the sureties on conduct of his son and after suit had such bond. Dallas defaulted. By suit, been entered against Deaver and him as the Association on July 7, 1917, obtained sureties on his son's official bond. If one uninformed as to the disreputable conduct of Dallas R. Bomberger read this will he would be impressed with the idea that the testator held him in high esteem and partial affection, that he felt that he was deserving of reward, even though another son be thereby denied a patriAs evidence of this by his will mony. he says: ་་ * * * I order and direct that any note or obligation that may be owing by me and my son, Dallas, at the time of my death at the Quarryville National Bank shall be paid out of my estate. * * * join him as a surety on his son's bond, had paid the penalty because of his son's defalcation, as would have been honorable for him to have done, there would have been no two thousand dollars to give for the support of this favored son. If there were reasons why he should not have paid in his lifetime, well knowing the situation, it would have been becoming for him to have provided by his will for the payment. If instead of rewarding Dallas he had so done, he would have left to his family at least an honorable heritage. The evidence is not sufficient to find that there had been a conspiracy to "Upon the sale of my said real estate, defraud between the testator and his son as hereinbefore provided, I give and be-, Dallas, but it is not surprising that the queath to the People's Trust Company, thought arises. From what has been of Lancaster, Pa., the sum of Two thou- said it would seem that the discretion exsand ($2000.00) dollars, in trust how-ercised was done judicially. ever, to invest the same in good and safe¦ The exceptant in the name of equity securities, and pay the net income there-, insisted that the judgment which was obof annually to my son, Dallas R. Bom-tained on the notes which were rejected berger, for and during the term and as a set-off should be allowed as a set-off period of his natural life. In the event to cancel the judgment which was obthat the income from said trust fund tained by reason of the notes rejected as should be insufficient for the comfortable a set-off. In an action on an official bond care, maintenance and support of my said son, Dallas R. Bomberger, by reason of his sickness or old age, then, and in that event, I authorize said trustee to use so much of the principal of said trust fund as said trustee may deem necessary for his care, maintenance and support as aforesaid, the said trustee to be the sole judge of the amount of the principal, that may be necessary from time to time for the care, maintenance and support of my said son, Dallas R. Bomberger. The said trust fund and all interest that may accrue thereon not to be subject to any debts, engagements or liabilities which my said son, Dallas R. Bomberger, may have contracted, or may hereafter contract or incur." to recover an amount misappropriated by a treasurer of a corporation a debt owing on an independent transaction by the obligee to the surety on the bond cannot be used as a set-off. Marshall v. Brainerd, 253 Pa. 35. The demands are not of equal dignity. In the exercise of a judicial discretion, supported by an established principle of equity, the set-off was disallowed. In Leitz v. Hohman, 207 Pa. 289, Mr. Chief Justice Mitchell said: * * * "It is settled and unquestionable law that the set-off of one judgment against another is not a legal right even under our defalcation act, but is allowed by the courts under their inherent powers in the administration of justice and is governed It is believed that the residue of the by the principles of equity. estate will be insignificant, but it, if any, In Ramsey's Appeal, 2 Watts 228, Chief is given in equal portions to the testator's Justice Gibson says: There is a fallacy wife, Dallas R. Bomberger and another in supposing defalcation in a case like the son, Harvey Bomberger. (There are le- present to be a legal right. Judgments gacies to the wife also of household are set against each other not by force of goods and three thousand dollars.) Thus the statute, but by the inherent powers it will be seen that the two thousand dol- of the courts immemorially exercised. lars cunningly tied up for the use of Dal-* An equitable right of setting off las is Deaver's money, for if the testator, judgments, therefore, is permitted only who no doubt had importuned his neigh- where it will infringe on no other right. bor Deaver on the score of friendship to of equal grade.' And in Burns v. Thorn * * burgh, 3 Watts 78, it is again said, per curiam, the power to set one judgment against another 'is not a legal power, nor its exercise demandable of right. * Hughes & Hughes, for plaintiff. Cummins, J., April 10, 1922.-The plaintiff, on the 18th day of July, 1920, "Some few rules, or at least presump- while driving his automobile eastwardly tions, may be gathered from the inci- on Main street in the Borough of Bentdental discussions and applications in the leyville, turned to the left to drive out cases. Thus if the judgments are both the Pittsburgh road, an intersecting founded on contract, prima facie the set- street leading into Main street; and just off should be allowed, and probably the as he was beginning to make the turn same presumption should prevail where from Main street into the Pittsburgh one or both judgments may be in tort road, his automobile collided with the but of a kind, such as damage from neg- motorcycle of the defendant, being ligence, which does not involve the ele- driven by defendant on Main street, ment of wilful injury. But if one judg-coming westwardly and keeping close to ment is in contract and the other in tort which implies intent to injure, though there is no fixed rule which prevents a set-off, yet the presumption is against it, and the party asking for it, especially if the tort feasor, should show some equity in its favor. In such cases, as also where both judgments are in tort, the element of priority in time is generally of importance. And all of these rules and presumptions are subservient to the fundamental principle that each case is to be determined on its own circumstances and merits viewed with the eyes of a chancellor in equity." his own right hand side of the street. Upon trial the jury rendered a verdict in favor of the plaintiff and against the defendant in the sum of $55.67. The case now comes before the court upon motion for judgment n. o. v. The evidence upon trial clearly established negligence on the part of the defendant, and the only substantial question remaining for the. court to dispose of is whether the plaintiff was himself, at the time of the collision, guilty of contributory negligence. Where two vehicles approach each other at an intersection of streets where their paths must necessarily cross, the vehicle first at the crossing had, at common law, the right of way: McClung v. Pennsylvania Taximeter Cab ComWashington Co. pany, 252 Pa. 478; Simon v. Lit Bros., The exceptions are dismissed, and the adjudication is confirmed absolutely. C. P. of Harry A. Preston v. George Pilch Inc., 264 Pa. 121. This rule of the road Sec resulted in many collisions and was sonable time to clear the crossing and 4 virtually a head-on collision. They ar- * * A recognizance does not bear interest until after judgment thereon. Where an action is erroneously brought to the use of another, the record may be amended at or after the trial by striking out the name of the use plaintiff. Rule to strike off compulsory non-suit. Rule absolute. Howard V. Fisher, for plaintiff. Wm. H. Schneller, for defendant. January 9, 1922, McKeen, J.-This is a rule to show cause why the compulsory two intersecting streets, turned to the non-suit entered in the above case should left, so that he was, at the time of the not be taken off. It appears that the use collision, close to the left curb line of¦ plaintiff made a criminal information the Pittsburgh road. Had plaintiff conagainst Frank E. Heid before an aldertinued on Main street, until he had man of the City of Bethlehem, and passed the intersection of the center lines Charles Lowry, the defendant, became of these two streets before turning to the left, which the defendant had a right to bail was forfeited by reason of the nonhis bail for appearance at a hearing. The assume that he would do (Bell v. Jacobs, appearance of the defendant in the crim261 Pa. 205; Brown v. Lynn, 31 Pa. 510|inal charge before the alderman at the Reeves v. The D. L. & W. R. R. Co., 30 time fixed for the hearing. The prosel'a. 454), it is clear that defendant would cutor commenced suit in the name of the have first reached the point where their Commonwealth to his own use before the paths of travel, under the statutory law alderman to recover upon the forfeited of the road, would have crossed each recognizance. The use plaintiff claimed other. Hence, the defendant, driving his to have an interest in the recognizance motorcycle on the right, had the right by virtue of damages sustained through of way, and plaintiff approaching from the left, in attempting to cross in front of defendant's motorcycle, was guilty of contributory negligence, and therefore not entitled to recover. the alleged criminal act of the defendant in the criminal proceeding. The reason entertained by the court in granting the non-suit was based upon improper designation of the plaintiff in the suit, no apAnd now, April 10, 1922, the above stated case came on to be heard upon ment. plication having been made for amendThe plaintiff, however, should be motion for judgment . o. v., and was given an opportunity to amend. Under argued; whereupon, upon consideration the decision in Commonwealth v. Balthereof and for the reasons set forth in samo, 72 Superior Court, 184, where it the foregoing opinion, it is ordered, ad- was held in a similar action: "The objudged and decreed that judgment be en-jection to the designation of the plaintiff tered against the plaintiff and in favor is not material, as the court below, as of the defendant, notwithstanding the verdict. C. P. of n. Northampton Co. Commonwealth v. Lowdy Alderman-Jurisdiction-Suit on for feited recognizance-Interest-Amend ment. well as this court, may allow an amendment to meet the facts of the case in the furtherance of justice, so that the case will be heard and decided on its just merits." The defendant contends, however, that the alderman had no jurisdiction, the amount involved being over three hundred ($300.00) dollars, and that, therefore, this court had no jurisdiction. The recognizance upon which the defendant was surety was given in the sum of three hundred ($300.00) dollars and the de An alderman has jurisdiction in a suit on a fendant has urged the court that interest forfeited recognizance bond in the sum three hundred dollars. of was due upon this amount from the date Allen S. Olmsted, 2nd, for plaintiff. McMichael, P. J., March 31, 1922.This case was tried Feb. 15, 1922, before McMichael, P. J. The trial judge entered a non-suit. The plaintiff has moved to take off the non-suit. of forfeiture, which would oust the jurisdiction of the alderman. The liability of the recognizors is for a certain specified sum which they agreed should be levied on their lands and tenements, goods and chattels in the event the defendant should not appear to answer such charges as may be preferred against him. The amount of the judgment in a suit The non-suit was entered because the against them would be limited to the full trial judge was of opinion that the plainamount mentioned in the recognizance tiff, having failed to bring suit within and interest thereon can only be claimed two years and one day or a reasonable from date of judgment. In Common-time thereafter, cannot proceed with her wealth v. Lutz, 15 Lanc. Rev. 113, where the amount of the recognizance was the same as in the case at bar, it was held "A magistrate has jurisdiction in a suit on a forfeited recognizance of bail for appearance before a magistrate." And now, January 9, 1922, rule to strike off compulsory non-suit made absolute and leave is granted plaintiff to amend. action. The plaintiff shipped a carload of household goods at Huntingdon, Massachusetts, consigned to herself at Philadelphia. The Boston and Albany railroad issued a bill of lading for the shipment, which was offered in evidence by the plaintiff, and which contained the following condition on the back thereof: "Suit for loss, damage or delay shall be instituted only within two years and one day after the delivery of the property, or in the case of failure to make delivery, then within two years and one day after a reasonable time for delivery has Hilbert v. Pennsylvania Railroad elapsed." Plaintiff shipped household goods at Hunt ingdon, Mass., consigned to herself at Philadelphia, on or about Nov. 21, 1917. They were not delivered, and to her inquiries defendant replied that they had not arrived in The goods were shipped on or about was brought three weeks later. ** * * and could not be found. In 1919 the goods were found, but defendant's agent demanded storage charges. Later, defendant offered to deliver the goods upon payment of hauling as conditions precedent to charges. This the plaintiff refused. On May recovery, claims must be made in writing 7, 1920, she made a formal demand, which to the originating or delivering carrier defendant refused on May 8, 1920. On May 29, 1920, she brought suit: Held, that the suit was unreasonably delayed, and under the above clause could not be maintained. Motion to take off non-suit. Overruled. within six months after the delivery of |