The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-07-18


Drainage company against the Bor-
ough of Olyphant, and Gunster, as
signee, against Jessup and others, COM
monty known as the City bank case.
In the first named opinion, which is
by Justice McCollum, a nice compli-
ment is paid the trial judge, Hon. r.
w. Archibald, on his review Of the long
drawn-out case, contained in an opin-
ion on the rule for a new trial. The
Supreme courts confirmation of Judge
Archbald's finding is couched in these
words:
This was an action Of cjcctmont brought to
recover possession of land which the plaintiff
claimed he had valid title to. That the land
was conveyed to him many years ago was shown
by the deeds and papers in his possession and
admitted in evidence on the trial. 1t required
no oral testimony TO establish his case in chief.
The documentary evidence alone was quite suih-
cent for that purpose. The reply of the defend-
ant to the claim Of the plaintiff was based on
an alleged equity arising from an alleged parol
trust. 1t needs argument to prove that
defense of this nature cannot prevail in the alb
scnce of clear and satisfactory proof to sustain
it. 'The legal title to lands ought not to be
exposed to the peril of a successful attack eX-
cepting where the right in equity is clearly
established" Clark J. IN Earncsts Appeal, 100
Pa 3ls
A NICE COMPLIMENT.
The testimony introduced on the trial was re-
markably voluminous and part Of it related to
matters relevant to the issue and occurring more
than fifty years ago. This testimony we have
examined and considered with care and the con-
clusion we have drawn from it Is that il pre-
sented an issue for the determination Of a jury
under proper instructions from the court.
specification herein of any part Of the testimony
is needless. Every part Of it which is material
to a proper understanding Of the issue
ferred to in the charge, which occupies eighty
pages of the appellants paper book More ex-
haustive and pains.taking instructions seldom il
ever appear in a charge Whether there an
error in the instructions is a question to be con-
sidered in connection with the assignments
lating to the subject.
There are thrty.seycn assignments filed in the
case and ten of them are based on excerpts from
the charge. We have carefully examined and
fully considered the excerpts on which the ten
assignments above referred to rest, and are un.
able to discover in either of them any
for reversal Of the judgment retrial Of the
case. In this connection we may state that, in
our opinion, the learned court below did not err
in declining to grant permission to the defend
ants counsel to open and close the case to the
jury. This refusal is the basis OF the second
assignments which now dismiss with the
signmcnts based on the excerpts from the
charge. The assignments relating to the affirm.
ance or denial Of the points submitted and to
the admission rejection Of offers of evidence
need not be specifically referred to ncrein. IIav.
ing examined all the assignments and duly
sidcred the arguments of counsel in support of
and against them, we conclude that there is no
reasonable ground for reversing the judgment
entered in the court below. The case was care
fully and fairly tried and the result reached is
in conformity with the testimony which the
verdict was based All the assignments are
therefore dismissed.
Judgment affirmed.
PROCEEDINGS IRREGULAR.
The opinion in the Olyphant sewer
case is by Justice Fell. There was only
one question at issue, the validity Of
the plaintiffs charter, and Justice Fell
dsposes of it in modest space, as fol-
lows:
Tested by the settled rule of our cases the con-
cusion reached by the learned judge of the COM
mon pleas is right for the reasons stated by
him. We have uniformly held that the validity
of charter for public purpose cannot be de.
etermined in a collateral proceeding by a pi
yate suitor. 1t can be done only in a direct pro-
ceedng to which the commonwealth is a party.
Among the more recent cases on the subject are
Hnchman vs.. Philadelphia and West Chester
Turnpike Road company, 100 Pa, $50, and the
Gas and Water company VS.. Borough of Down
iugton, la3 Ia. 255. Whether a right or fran.
"hse claimed by a corporation is conferred by
it, charter may be inquired into in a proceeding
at law or in equity by party injured as pro-
vided by the act of June 10th, 1871, p. l.. 1881;
hut whether for any reason the charter of cor
poration was originally invalid or has been Tor.
feitcd is a question which the commonw aa5h
only can raise.
The decree is affirmed at the cost OF the ap.
| pellants.
Judge Edwards tried the Olyphant
| case, and as has been the invariable
rule with his findings in municipal law,
the Supreme justices concur with him
| in every one of his conclusions.
The CITY bank case was tried by
| Judge Archibald. The witness referred
| to is Edward Merrifeld. His transfer
| of his interest in the bank was made
| just a few days before the second trial
was decided by Judge Archibald to be
| a colorado transaction and therefore
| could not be allowed to make the wit
| ness competent. AS the whole case de-
| pended on Mr.. Merritield's testimony,
| the trial was abruptly terminated and
an appeal taken to the Supreme court.
| The Supreme court, through Justice
| Fell, had this to say Of the matter:
ACTION WAS CoLORABLE.
This action was brought by thu assignee for
| the benefit Of creditors OF the Scranton City
| bank on bond conditioned for the faithful per-
| formance Of the duties of its vice.president The
principal and two of the sureties died before the
| trial, and the representatives of their estates
| have been substituted the record defend
| ants. The witness whose competency was chal-
| lenged as to matters which had occurred during
| the lives of the deceased parties was stock.
| holder in the bank at the time the assignment
was made, and such liable to the credi-
| tors In double the amount Of the stock held by
| him. lie was also a director, and with the other
directors had entered into an agreement with
| the depostors TO pay them In full and to take
| an assignment of their claims against the bank,
| and claims amounting to SlS3, 900 had been as
| signed TO them. For the purpose OF carrying out
| this agreement, the witness had Joined with the
| other directors IN borrowing a large amount Of
money on their joint notes, one which for so, GOO
| was still unpaid. Notwithstanding the apparent
| incompeteney of the witness because Of his in
terest in the result Of the trial, II was contend
| cd that he qualified to testify because the
| statute Of limitation was a bar to any proceed.
ings to enforce the liability Of the stockholders
under the special provisions Of the banks char
| ter, and because he had assigned his interest in
| the fund in the hands Of the assignee for the
benefits Of creditors which he had acquired by
the agreement mentioned for the purchase Of the
depositors' claims against the bank 1t was held
| that the statute Of limitations relieved the wit
| ness from liability a stockholder, and that
| the assignment of his interest was not colorado
| but that it did not carry the whole interest, as
he will still be liable his agreement to pay the
stockholders in full, and on the note given for
the money borrowed for the purchase OF claims
| In view OF the recent decision in Darragh vs.
Steyenson Is3 Pa 8o7 which WAS NOT hron0ht