[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 849, 862-864.] terial matters now before us, and these will ['sufficient, it is immaterial that the special verbe passed upon in disposing of the Appeal of dict is irregular. Edward Pfromm, 100 Atl. 276, who also complains of the present judgment. All assignments relevant to the points discussed in this opinion are overruled, and, to the extent indicated, the judgment is affirmed. 7. APPEAL AND ERROR 721(1)-ASSIGNMENTS OF ERROR-PRACTICE. Where there are two separate appeals from a judgment, and only one set of assignments of error is filed, and these comprehend several complaints not common to both appellants, the assignments are improper; but the error would be overlooked, as case was submitted on paper book, and counsel had no opportunity to file amended assignments at bar. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2985-2988.] Appeal from Court of Common Pleas, Allegheny County. Quo warranto by the Commonwealth, on the relation of William Gast, against Edward Pfromm.. Judgment for relator, and defendant appeals. Reversed. Argued before BROWN, C. J., and POTTER, MOSCHZISKER, STEWART, and WALLING, JJ. Edward F. Duffy and R. S. Martin, both of Pittsburgh, for appellant. Patterson, Crawford, Miller & Arensberg and Eckles & Conrad, all of Pittsburgh, for appellee. MOSCHZISKER, J. This is an appeal by Edward Pfromm, who complains of the same [Ed. Note. For other cases, see Quo War- | judgment reviewed by us in an opinion filed ranto, Cent. Dig. § 27.] simultaneously herewith on the complaint of 3. QUO WARRANTO 33-USURPATION OF Harry B. Kelly (100 Atl. 272); but different PUBLIC OFFICE-RELAtor. questions are here raised from those deter Where a public wrong alone is to be re-mined in the other appeal. dressed, and the only question to be determined is whether the person in possession of the office is holding it without authority of law, either the Attorney General or the district attorney is the proper relator. [Ed. Note. For other cases, see Quo Warranto, Cent. Dig. § 40.] 4. QUO WARRANTO 38-TITLE TO OFFICEPARTY DEFENDANT. It is improper to force upon the record as a party to a quo warranto proceeding the holder of an office at the complaint of one who lays no claim to the particular office occupied. [Ed. Note. For other cases, see Quo Warranto, Cent. Dig. § 44.] In November, 1915, Mr. Gast, the relator, was duly elected by the people of McKees Rocks to an unexpired term of a former member of its council; the place thus filled was the same vacancy to which Mr. Kelly, the original respondent, was subsequently elected by the council itself, purporting to act under and by virtue of the authority conferred upon it by chapter 8, art. 2, § 2, Act of May 14, 1915 (P. L. 312, 412), which ordains that "the borough council may fill any vacancy in their body until the municipal election next following." On December 5. QUO WARRANTO 40-TITLE TO OFFICE-7, 1916, Mr. Kelly, in conjunction with cerPARTY DEFENDANT. In a quo warranto proceeding, the relator questioned the right of one to hold the office of borough councilman, and after the proceedings had been begun, the court made an order upon another councilman, to appear as respondent, upon the ground that he had been elected by the council to fill a vacancy by the vote of the other respondent, who unlawfully held the office which the relator claimed. Held, that the making of the latter a party to the proceeding was erroneous. tain other councilmen, elected Edward Pfromm, the appellant, to a place formerly occupied by one W. B. Zinkhan, whose resignation as a member of the council had just been accepted. It appears that the vote of Mr. Kelly was essential to Mr. Pfromm's election. When the facts just recited were developed in the course of the present quo warranto proceedings, which were instituted by Mr. [Ed. Note. For other cases, see Quo War- Gast against Mr. Kelly, the court below, on ranto, Cent. Dig. § 46.] 6. TRIAL 356(1), 361-SPECIAL VERDICTFORM. It is the province of a special verdict to find and place on record all the essential facts in the case, and what is not found is presumed not to exist; but, where a general verdict is February 16, 1916, made an order upon Mr. Pfromm to appear as a respondent therein, whereupon the latter immediately took a rule to vacate this order, and, when refused, he secured an exception and filed an answer. In this answer, Mr. Pfromm averred that he had been "duly elected a member of said | of management of a water company were in council at a regular meeting thereof held at controversy, and, since the title "to all of the council chamber in said borough upon them depends on the same votes at the same the 7th day of December, 1915," and he di- election, and a decision on the validity of rected attention to the fact that Wm. Gast, that election would be equally conclusive as the relator, neither in his petition nor repli- to the rights of all," we determined the whole cation "claims or shows any title or right to matter in a single quo warranto proceeding, the seat in said council held by your petition-adjudging the titles to all the places iner, or any interest to be affected thereby, volved; and perhaps this would be proper but, on the contrary, he therein makes claim practice wherever the relator occupies a posito the seat * * held by the respond- tion, or has an interest, which entitles him ent, Harry B. Kelly"; finally he contended to question the right of office of each and that, "since no other person is claiming [the every of the parties named or brought in as office occupied by him (Pfromm)], or has respondents, particularly if the same facts any right to it, a proceeding on a writ of are so far applicable and common to all that quo warranto instituted by the district at- a decision on the validity of the election of torney in the name of the commonwealth is any one of them would, ex necessitate, rule the only action which [properly] could be the cases of the others. In the present inbrought to try the title to the said office." stance, however, we have a different comWhen the case came to trial, this contention bination of circumstances. Here the rights was overruled, and the judgment entered in of three persons to two separate offices, filled favor of the relator was made sufficiently at different elections, held at different times, comprehensive to oust Mr. Pfromm from of- by different electors, are involved; two of the fice; hence the present appeal. litigants laying claim to one and the same office, but neither of the latter having any individual interest in, or grievance to be redressed in connection with, the remaining place occupied by the third party. To restate the case more definitely: Mr. Gast claimed the place occupied by Mr. Kelly; but he laid no claim to Mr. Pfromm's office, and had no individual interest in the adjudication sought to be had as to the latter's right to continue therein. That was purely a matter of public [1-5] As already indicated, the relator, Wm. Gast, did not in any sense lay claim to the office occupied by the appellant, Edward Pfromm; and the only way in which the latter was brought into the case at all was under section 8 of the Quo Warranto Act of June 14, 1836 (P. L. 621), which provides: "If it shall appear to the court that the several rights of different persons may be properly determined by one writ, it shall be lawful * to make such order or orders, for the introduction or addition of such persons into the writ, or for notice to such persons to appear and take defense, as shall be reasonable and just." concern. In all cases where it is to be applied, the eighth section of the act of 1836, supra, presupposes the existence upon the record of a In making the present appellant a party re- relator with a proper interest, either public spondent to the quo warranto issued at the or private, entitling him to question the right suggestion of Mr. Gast against Mr. Kelly, the of each and every respondent named or learned court below apparently acted upon brought into the proceedings; and no instance the theory that, since the vote cast by Mr. has been called to our attention where the Kelly was necessary to the election of Mr. provision in question has been said to apply Pfromm, and Mr. Gast claimed the place fill-under circumstances in any manner approached by the former, it was proper to determine, ing those at bar. It is true, in Com. v. Jones, in these proceedings, the right of the latter 12 Pa. 365, we indicated that, under certain (Pfromm) to occupy the office to which he had restrictions, a quo warranto directed to one thus been elected. On this theory, however, holding the office of mayor might be prosecutin a single quo warranto proceeding, institut-ed by a private relator without an individual ed at the suggestion of any private individual grievance to be redressed; but there the writ possessed of a personal interest sufficient to was quashed. Then in Com. ex rel. Yard v. entitle him to the writ, all such official acts Meeser, 44 Pa. 341, 342, this court allowed a of either Mr. Kelly or Mr. Pfromm, or in fact quo warranto on the petition of a private of any other person placed in councils citizen, to test the right of a member of counthrough their votes, might be inquired into, cils of the city of Philadelphia; but we did and in effect set aside, and so on without this because, inter alia, of a special provision limit; but such is not the law, and, if it in the charter of the municipality, and "with were, it would inevitably lead to great con- some hesitation." Later, however, in Com. fusion in the public service. ex rel. McLaughlin v. Cluley, 56 Pa. 270, 272, 94 Am. Dec. 75, we expressly ruled that the provision at the end of section 2 of the act of 1836, supra, relied upon by the appellee in the present case, to the effect that a writ of quo warranto "may be issued upon the suggestion of any person or persons desiring to prosecute the same," meant any Under the act of 1836, supra, in a proper case, the titles to several distinct offices may be determined at one and the same time. Com. ex rel. Morris et al. v. Stevens et al., 168 Pa. 582, 601, 32 Atl. 111, 112, is an instance where, at the suggestion of a stockholder, the offices occupied by an entire board * * and error was committed in attempting, under the act of 1836, supra, to force Mr. Pfromm upon the record at the complaint of one who laid no claim to the office occupied by him. [6] Another matter called to our attention by the appellant must be considered; i. e., the form of the so-called special verdict rendered in this case. In Standard Sewing Machine Co. v. Royal Ins. Co. of Liverpool, 201 Pa. 645, 51 Atl. 354, we said: "It is the province of a special verdict to find and place on record all the essential facts in What is not found is presumed not to exist." the case. person having an individual interest to be affected, and that the act did "not give a private relator the writ in a case of public right, involving no individual grievance"; further, that this rule applied in cases involving the alleged usurpation of "county," "township" or "municipal" offices. In the case last cited, the effort was by a defeated candidate to oust an opponent who had been elected to the office of sheriff, and we denied the writ specifically upon the ground that the relator had "no such interest as entitles him to be heard," because "the question which he seeks to raise is a public one exclusively, and it can be raised only at the instance of the attorney In the present instance, instead of placing general." Again, in Com. ex rel. Butterfield upon the record only the essential facts, the v. McCarter, 98 Pa. 607, where the right of a findings of the jury contain many conclusions mayor to hold his office was attacked on quo of law; but really this verdict merely warranto at the suggestion of a private citi- amounts to a summing up by the trial judge zen, the writ was refused upon a like ground, of the facts established, by admissions and and we affirmed. Our last case upon the sub-practically uncontested evidence, with a diject is Com. ex rel. Riley v. Durkin, 245 Pa. 507, 91 Atl. 918, where, in a quo warranto proceeding at the suggestion of a burgess, we sustained, per curiam, a judgment for the commonwealth ousting several councilmen from office, holding that, because of a defect in the ballot, common to all, their election was void; but there no question whatever was raised as to the right of the relator. rection that the jury find accordingly. In other words, no harm was done and no established rule of practice materially breached by the form in which the verdict was couched, for the trial judge would have been justified in simply directing a general one on the evidence. Material error was committed, however, in instructing the jury to find against the respondent Pfromm. He ought not to have been brought into the case in the first instance, and subsequently he was entitled to binding instructions in his favor: failing in this, his motion for judgment n. o. v. should have been granted. We shall not discuss any of the questions argued in the paper books concerning the alleged irregularity of the election of Mr. Pfromm, for, according to the views here expressed, they are not properly before us. We may summarize the controlling rules of law and our conclusions in the case at bar thus: When it is suggested that one is usurping a public office, the quo warranto act of 1836, supra, makes provision for two distinct proceedings, the first in the interest of the public, and the second to protect any private individual who may have a special grievance. If one, without authority of law, holds a public office, and thereby keeps out of it another who is entitled thereto, he not only [7] While there are two separate appeals commits a public, but also a private, wrong, from the judgment entered by the court beand the individual aggrieved may have a low, yet only one set of assignments of erwrit in the name of the commonwealth to se- ror appears to have been filed, and these cure his rights; but where a public wrong comprehend several complaints not common alone is to be redressed-that is to say, to both appellants. This is contrary to our where the only question to determine is rules, but we overlook the defect, for, since whether the person in possession of the of the case was submitted on paper books, counfice is holding it without authority of law-sel did not have the usual opportunity to either the Attorney General or the district file amended assignments at bar. attorney is the proper relator. Here there was no private grievance to be redressed against the appellant; hence the public prosecutor alone was the proper relator (Gilroy et al. v. Com. ex rel. Dist. Atty., 105 Pa. 484), All assignments of error which complain of rulings in conflict with the views here expressed are sustained, and the judgment of the court below, so far as it affects the rights of Edward Pfromm, is reversed. (255 Pa. 473) CARNEGIE NAT. BANK v. SEIBEL. (Supreme Court of Pennsylvania. Jan. 8, 1917.) 1011(1)-FINDING OF APPEAL AND ERROR case to make the rule granted on the petition of Daniel Bowman absolute. Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, and FRAZER, JJ. George C. Bradshaw, of Pittsburgh, for ap On petition of one of two joint makers of judgment note who had paid it, alleging that he was only an accommodation maker, for sub-pellant. Elder W. Marshall, of Pittsburgh, rogation to the rights of the holder against the for appellee. other maker, where the evidence was conflicting, a finding and decree for petitioner based on a verdict would not be reversed on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988.] PER CURIAM. Whether Daniel Bowman signed the note involved in this controversy for the accommodation of Louis Seibel, the joint maker, was a pure question of fact, Appeal from Court of Common Pleas, Al- which was referred to a jury. Their finding legheny County. Action by the Carnegie National Bank for the use of Peter Seibel, now for use of Daniel Bowman, against Louis Seibel. Order de creeing that petition be subrogated to rights of holder of note against maker, and defendant appeals. Affirmed. Evans, J., filed the following opinion in the court of common pleas: The undisputed facts in this case are as follows: On April 20, 1912, Daniel Bowman and Louis Seibel executed a joint judgment note in favor of the Carnegie National Bank, of Carnegie, Pa. Judgment was entered on the note on May 6, 1912, and on November 12, 1913, the note was assigned to Peter Seibel, a brother of Louis Seibel. Peter Seibel issued a writ of fi. fa. at No. 527, January term, 1914, and directed the sheriff to sell certain property of Daniel Bowman. A levy was made and the property advertised for sale. On January 3, 1914, Daniel Bowman paid to the sheriff the unpaid balance of said judgment, namely, $4,250, with interest and costs. After making payment to the sheriff, Bowman presented his petition to this court at the number and term at which the judgment had been entered, alleging that he was only an accommodation maker of said note, and requesting that a lien of said judgment be preserved on the real estate of Louis Seibel, and that he be subrogated to all the rights of Peter Seibel, the assignee of the judgment. On the return of the rule depositions were taken and an argument had, and the case was finally sent to a jury to determine the question as to whether or not Daniel Bowman did sign the note in question as accommodation maker for Louis Seibel. On the trial of the question of fact before the jury, the answer to that question by the jury was "Yes." The question now comes before the court for final determination of the rule to show cause granted on the petition of Daniel Bowman. was that he was but an accommodation maker, and, having paid the judgment entered upon the note, he is entitled to be subrogated to the rights of the holder against the man he accommodated with his signature. The facts are concisely stated in the opinion of the learned court below granting relief to the appellee, and on it this appeal is dis missed at appellant's costs. 2. EQUITY FARIOUSNESS. 147-PLEADING-BILL-MULTI A bill by the executrix of an heir of testator and others against his executor, in both his representative and individual capacity, attacking dispositions of the testator's property, and also praying for relief against other heirs and the purchasers and questioning the right of the executors to certain property, as well as alleging fraud in disposition, is multifarious. [Ed. Note. For other cases, see Equity, Cent. Dig. § 340.] 3. EQUITY 141(1) - PLEADING-ANTICIPATION OF LACHES. Where it appeared that the fraud and conversion of property complained of occurred more than 20 years before the beginning of suit, complainants' bill is, the facts alleged not disclosing any excuse for the delay, open to objection on the ground that it did not allege an excuse for the laches shown. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 323-330, 333.] The verdict of the jury is not binding on the court, and is not considered as having the same force as the verdict at common law. It is for the guidance of the court, however, and the assistance of the court in determining a very difficult disputed question of fact. It was because the determination of that fact was so difficult under the depositions taken that the assistance of the jury was asked by the court. A jury has passed upon that question, and the trial judge has refused the motion for a new 4. EQUITY 71(2)-DEFENSES-LACHES. Conscience, good faith, and reasonable dilitrial. An examination of the testimony and the ex-gence are always required in a court of equity haustive argument of counsel on the facts has to justify its interposition, and an unexcused not convinced me that the jury made a mistake. delay of more than 20 years in beginning suit There are inconsistencies in the position of both warrants a denial of relief on the ground of these parties to the transaction, which preced- laches. ed the execution of this judgment note, and I am inclined after a careful examination of this [Ed. Note.-For other cases, see Equity, Cent. Dig. § 204.] Appeal from Circuit Court, Cecil County, I purchases, George P. Whitaker, Sr., became in Equity; Albert Constable, Philemon B. the owner in his own right of one-fifth of the Hopper, and W. H. Adkins, Judges. stock of the company. George P. Whitaker died on September 30, 1890, and by his last will and testament, admitted to probate in the orphans' court of Bill by Martha E. Whitaker, individually and as executrix of the last will and testament of Carrie C. Updegraff, deceased, and others, against Joseph Coudon, individually | Cecil county, January 5, 1891, he, after makand as sole surviving executor-trustee of the estate and last will and testament of George P. Whitaker, deceased, and others. From order sustaining a demurrer to the bill, complainants appeal. Affirmed. Argued before BOYD, C. J., and BURKE, PATTISON, URNER, and STOCKBRIDGE, JJ. John S. Strahorn, of Annapolis, and H. A. Brann, Jr., of New York City, for appellants. Thomas H. Robinson, of Bel Air (Chas. B. Finley, Jr., of Elkton, and John A. Howard and George R. E. Gilchrist, both of Wheeling, W. Va., on the brief), for appellees. ing provision for his widow, directed that all one C. Whitaker, a deceased son of the testator; and one part or share to Nelson Price Whitaker, son of Cecil Whitaker, another of his deceased sons. By his said will George P. Whitaker named as his executors Joseph R. Whitaker, Nelson E. Whitaker, PATTISON, J. The appeal in this case is and entered upon the discharge of the duand Joseph Coudon, who thereafter qualified from an order of the circuit court for Cecilties of their office; but Joseph R. Whitaker county sustaining the demurrer to the appellants' bill. The bill is a very long one and resigned his trust some time prior to Octo contains much argumentative matter. The facts alleged in it are substantially as fol lows: ber, 1891. In 1909, Nelson E. Whitaker died testate in West Virginia, and letters testamentary on his estate were granted to Sarah F. Whitaker, Albert C. Whitaker, and Alexander Glass, in that state; but no letters have been granted them, or to any one else, on his estate, in Maryland. Joseph Coudon is still alive and is the sole surviving executor of George P. Whitaker. In 1878, George P. Whitaker, of Cecil county, Md., formed a corporation under the laws of this state, known as the George P. Whitaker Company. Its capital stock consisted of 520 shares, of the par value of $500 per share, all of which was taken by him; but of it he sold one share to each of seven persons, among whom were Joseph E. Whitaker, The personal estate of George P. Whitaker Nelson E. Whitaker, and Joseph Coudon, at the time of his death consisted principally who subsequently became executors of his of the 513 shares of stock in the George P. last will and testament. To the corporation Whitaker Company assessed at $500 per so formed he conveyed certain lands owned share, or $256,000, and the 250 shares in the by him individually, located in Cecil and Whitaker Iron Company assessed at $100 Baltimore counties and in the state of Dela- per share, or $25,000, and the advancements ware, the value of which, as stated in the to his beneficiaries, which he directed should bill, was $260,000. George P. Whitaker had be charged against them, which amounted to previously, in the year 1875, formed the $340,729.73. So far as the record discloses, Whitaker Iron Company, incorporated under he died seised and possessed of no real esthe laws of West Virginia. It was capitaliz-tate unless, as claimed by the plaintiffs, he ed at $500,000, consisting of 5,000 shares, at was at such time the owner of the lands held the par value of $100 per share, but only by the George P. Whitaker Company. $125,000 of its stock was issued. Of the The contention of the plaintiff is made 1,250 shares issued, 250 shares were dispos-upon the allegation that the seven shares ed of by him to each of his children, Nelson, Edmund, Cecil, and Caroline, and the remaining 250 shares he held for his two grandchildren, George P. Whitaker, Jr., and Carrie Coudon Whitaker (later Updegraff), minor heirs of his deceased son Henry C. Whitaker, until they should come of age. Thereafter George P. Whitaker, Jr., sold his entire stock-125 shares-to persons not named in the proceedings; and George P. On the 14th day of October, 1891, the orWhitaker, Sr., became the purchaser of one-phans' court of Cecil county, upon the peti half of Edmund's stock therein, being one-tion of the executors of George P. Whitaker, tenth of its entire stock, and also the pur-deceased, passed the following order: chaser of the stock of Carrie Whitaker, amounting also to one-tenth of the entire disposed of by George P. Whitaker were only nominally held by those to whom they were assigned, including Nelson E. Whitaker and Joseph Coudon, were only nominally held by such parties, "who paid nothing therefor and immediately assigned said stock back to the company as collateral security for the payment of the par value thereof," and was thereafter so held by the company. "Ordered that Joseph Whitaker, Nelson E. Whitaker, and Joseph Coudon, executors of |