"By order of the board of managers. "FREDERICK FRALEY, President. "Attest: FRED. T. HALLOWELL, Secretary.' "The said circular was printed under date of October 25, 1887, and was in like manner circulated among the holders of the securities of the said navigation company, and published in the various newspapers of the day. "There have been deposited as of January, 1888, under the said plan, direct obligations of this defendant as follows: [Omitted as unimportant.] "And the amount of the various issues of the securities of the said Schuylkill Navigation Company received by the said depository under the said proposition of June 22, 1887, is as follows: "The said plaintiff, who has sued upon $14,400 of the boat and car loan of 1913, was the owner of an additional amount of $4,500 of the same loan, and he was also the owner of five hundred shares of the preferred stock of the said navigation company, and of $4,000 of the convertible mortgage loan of 1907. All these securities he has deposited with the said trustee under said plan. in accordance with such recommendation, under said plan. Although in point of fact the said plaintiff voted in said board against the adoption of the said plan, there was no announcement of any kind to the stock and bond holders of the Schuylkill Navigation Company thereof; but, on the contrary, the said plan and the said resolutions of the said board of managers of the said navigation company were publicly promulgated only as aforesaid. It was, indeed, only in consequence of the influence of the action of the said board of managers of the said navigation company that so large an amount of its securities was deposited as aforesaid, and it has been in consequence of this public action of the said board of managers of the said navigation company that the said plan of reorganization of this defendant became finally successful. It has been in consequence of the said action and of the deposits of the securities of said navigation company by so large a number of the stockholders and bondholders of said company that the said securities were saved from ruinous sacrifice. This defendant is now entirely solvent, and is able, and will, it is expected, be always able hereafter, to meet all its lawful obligations, including all securities of the Schuylkill Navigation Company which it may have guarantied, but which may not have been actually deposited under the said plan of reorganization. This defendant does not set up any defense to the lawful claims of holders of said securities not in such a position as this plaintiff, and who did not accept the said settlement, but it asserts that the plaintiff in this case is barred by the acts above set forth from recovering upon the claims made in this suit. He cannot recover upon claims which this defendant has become able to meet only in consequence of the concessions made by his fellow stockholders and bondholders, which concessions were brought about by his own action as one of the board of managers of the said navigation company, in the manner herein before particularly set forth. WM. A. CHURCH." Exhibit A, attached to the affidavit, was a long pamphlet, giving the details of the amended plan of reorganization of the Philadelphia & Reading Railroad Company. It provided, in case of reorganization without foreclosure, upon the subject of "Rentals and Guaranties," as follows: "It is proposed to reduce the aggregate of rentals and guar"This defendant, therefore, alleges that anties (exclusive of the Central Railroad the plaintiff in this case, by reason of his Company of New Jersey, the Schuylkill Naviposition as a manager of the Schuylkill Navigation Company, and the Susquehanna Canal gation Company, is bound by the published action of the said board of managers, and that he therefore must be taken to have recommended to all his fellow bondholders that they should accept the terms of the said settlement, and deposit their securities in accordance therewith; that he is estopped from now alleging to the contrary, and suing himself upon his own securities not deposited, Company) to an annual charge of less than $2,350,000 by direct negotiations with the companies affected by such reduction, and to deal directly with the three companies above named, upon the basis of a continuance of their respective leases at rentals involving no fixed liability beyond the earning power of the leased line, or a surrender of the said leases, and the cancellation of the traffic "REORGANIZATION OF THE PHILADELPHIA & READING R. R. Co. In cases agreement of the Schuylkill Navigation Com- and accrued interest in third-preference inpany for a consideration; the said companies, come mortgage bonds (Series D) of the Philain case of surrender, to release all arrears of delphia & Reading Railroad Company. The rent, and to convey all real estate in use by capital stock of the said company to receive the railroad company for railroad purposes, third-preference income mortgage bonds and to procure the release of the guaranties (Series D) at the rate of eleven dollars a share of the Philadelphia & Reading Railroad Com- for each share of the preferred stock, and of pany upon their several bonds or obligations." ." five dollars and a half for each share of the comIt also provided for the issue by the Phila- mon stock, this sum to include all the arrears delphia & Reading Railroad Company of due thereon. Interest upon the bonds deposfour new kinds of bonds, secured by mort-ited will be calculated up to July 1, 1887, and gage, namely: $100,000,000, general mort- the exchanges will be made as of that date; gage, 4 per cent.; $24,410,822, first prefer- and the holders of certificates entitling them ence income, 5 per cent.; $26,140,518, sec- to the new four per cent. general mortgage ond preference income, 5 per cent.; $14,956,- bonds will receive interest from July 1, 1887, 016, third preference income, 5 per cent. at the rate of four per cent. up to the time of Exhibit B, the circular to the stockholders the delivery of the new bonds. and bondholders of the Schuylkill Naviga- where the depositor of a certificate of loan is tion Company, of the reconstruction trustees not entitled to all the arrears of interest of June 22, 1887, and of the board of man- thereon, a separate settlement will be made agers of the Schuylkill Navigation Company with the prior owner of such certificate for of June 23, 1887, and of the Girard Life In- so much of the arrears as may be found due surance, Annuity & Trust Company, was as to him, and the terms of such separate settlefollows: ment for arrears will be the same as those above specified for the respective classes of loans. The certificates of stock and loans must be deposited by or before July 25, 1887, "To the Stockholders and Bondholders of for exchange under the above plan, with a the Schuylkill Navigation Company: The depository to be selected by the board of manareconstruction trustees of the Philadelphia & gers of the Schuylkill Navigation Company. Reading Railroad Company hereby offer to Negotiable certificates of deposit will theretake the stock and bonds of the Schuylkill fore be given, and by the acceptance of the cerNavigation Company into the plan of re-tificates of deposit the holders will become parorganization, as amended December 14, 1883, and to issue new securities of the reorganized company in exchange therefor, upon the following terms: The mortgage bonds of the Schuylkill Navigation Company of the loans of 1872-97, to receive for principal and accrued interest new general mortgage bonds of the Philadelphia & Reading Railroad Company at par, (Series A.) The mortgage bonds of the Schuylkill Navigation Company of the loan of 1882-1907, to receive eighty per cent. of the principal and accrued interest, as follows: Thirty per cent. in new general mortgage four per cent. bonds, (Series A,) and fifty per cent. in third-preference income mortgage bonds (Series D) of the Philadelphia & Reading Railroad Company. The mortgage bonds of the Schuylkill Navigation Company's loan of 1895 to receive eighty per cent. of the principal and accrued "At a meeting of the board of managers of interest, as follows: Thirty per cent. in new the Schuylkill Navigation Company held at four per cent. general mortgage bonds, its general office on Thursday, the twenty(Series A,) and fifty per cent. in third-pref- third day of June, 1887, the offer of settleerence income mortgage bonds, (Series D,) ment proposed to be made by the board of reof the Philadelphia & Reading Railroad Com- construction trustees of the Philadelphia & pany. The bonds of the Schuylkill Naviga- Reading Railroad Company to the stockholdtion Company's improvement loan of 1880, ers and loanholders of the Schulkill Navigato receive sixty per cent. of principal and ac- tion Company having been considered, it was, crued interest, as follows: Thirty per cent. upon motion-Resolved, that the terms of the new general mortgage four per cent. bonds, said settlement proposed under date of June (Series A,) and thirty per cent. in third-pref-22d, 1887, be, and they are hereby, recommenderence income bonds (Series D) of the Phila-ed to the stockholders and ioanholders of this delphla & Reading Railroad Company. The company for acceptance. Resolved, that the bonds of the Schuylkill Navigation Com- Girard Life Insurance, Annuity & Trust Company's boat and car loans due 1913 and 1915, pany of Philadelphia be, and it hereby is, apto receive sixty-five per cent. of the principal pointed the depository to receive and hold ties to the agreement of reorganization as if they had severally signed the same. If, in the judgment of the reconstruction trustees, sufficient deposits of stock and securities shall not have been received, and satisfactory settlements made with the creditors of the Philadelphia & Reading Railroad Company, the reconstruction trustees shall be at liberty, in their discretion, to direct the return of the stock and bonds deposited, but without charge or expense to the holders of the certificates. By order of the board of reconstruction trustees. JOHN B. GARRETT, Chairman." "June 22, 1887. "OFFICE OF THE SCHUYLKILL NAVIGATION COMPANY, 417 WALNUT STREET, PHILADELPHIA, PA. "JUNE 23d, 1887. the securities for exchange under the said | It would be detrimental frequently to the plan of settlement; that company having ar- success of such a plan as this, if not imranged that the deposits shall be made and practicable, that a dissenting member of the certificates of receipt issued at the office of board should, in order to establish his inthe Schuylkill Navigation Company. Re- dividual rights as a non-assenting holder, be solved, that the stockholders and bondhold-expected to publish the fact of his dissent, to ers of this company be, and they are hereby, the general public." Such a course would requested to deposit their certificates of stock doubtless have been prejudicial to the sucand loan with the said Girard Life Insurance, Annuity & Trust Company, for the purposes of the exchange, in accordance with the terms of said offer of settlement. By order of the board of managers. "FREDERICK FRALEY, President. "Attest: FRED. F. HALLOWELL, Secretary." "Office of the Girard Life INSURANCE, ANNUITY & TRUST COMPANY OF PHIL ADELPHIA. "PHILADELPHIA, June 23d, 1887. "Under the plan of settlement proposed to the holders of stock and loans of the Schuylkill Navigation Company by the reconstruction trustees of the Philadelphia & Reading Railroad Company under date of June 22, 1887, the Girard Life Insurance, Annuity & Trust Company of Philadelphia will, on and after Monday June 27, 1887, receive deposits of the certificates of stock and loans at the office of the Schuylkill Navigation Company, (second floor,) No. 417 Walnut street, Philadelphia, and will issue therefor negotiable -certificates of deposit. "EFFINGHAM B. MORRIS, President. "Under the above plan of settlement the holders of Schuylkill Navigation securities will receive the following amounts in the new issues of the securities of the Philadelphia & Reading Railroad Company: "For each $1,000 of the cess of plaintiff in error's scheme, and distasteful to its promoters. The proposition submitted by the reconstruction trustees of plaintiff in error was addressed to the stockholders and bondholders of the Schuylkill Navigation Company individually, and not to the corporation itself. The acceptance or rejection of the proposition depended on the perSonal action of each share or bond holder. The board of managers had no power in the premises. The proposition was binding on the shareholders and bondholders only so far as it was accepted by them in their individual capacity, and their respective holdings deposited for exchange on the terms proposed; and not even then, unless in the judgment of the reconstruction trustees sufficient stock and securities were received to justify them in carrying out the scheme. Plaintiff below neither did nor omitted to do anything that can by any possibility have the effect of estopping him from asserting his claim under either of the securities which he neither deposited nor agreed to deposit for exchange and settlement according to the terms of the proposition abové referred to. The court below was clearly right in entering judgment for want of a sufficient affidavit of defense. Judgment affirmed. (125 Pa. St. 526) Appeal of WISTAR et al. (No. 192.) $530 OC 754 00 771 34 11.00 550 "This calculation includes all arrears of interest on the bonds and dividends on the stock." taxes and expenses of street improvement thereon, cannot, after the right of others as their cotenants has been established in ejectment, claim repayment from the proceeds of a sale of the land made to effect a partition, as the payment will be presumed to have been in their own right, and for their own benefit. 2. Persons in exclusive possession of land, claimThe court made absolute a rule for judging to be owners of the entire estate, who pay the ment for want of a sufficient affidavit of defense, and defendant brings error. The damages, as finally assessed, included interest on each of the coupons before specified from the date of its maturity, but did not include interest on the interest on the registered loans. Thomas Hart, Jr., for plaintiff in error.county; PENROSE, Judge. Page, Allison & Penrose, for defendant in error. Appeal from orphans' court, Philadelphia Richard Wistar, (the elder,) by his will, proven June 25, 1821, devised unto his two daughters, Catharine and Sarah, his lot of STERRETT, J. As was well said by the land called "Prospect Hill," containing about learned judge of the common pleas in dispos- six acres and a half, "to hold to them for and ing of the plausible, but unsound, defense during all the term of their natural lives and that was interposed in this case: "The plain- the life of the survivor of them, and from tiff cannot be deprived of his rights by the and immediately after the decease of the suraction of a board of which he is a member.vivor of them, I give the same unto the male issue then living of my said son, Rich- | Ordinarily, the only claims that of right can ard, their or his heirs and assigns, in fee; be made upon a fund raised by the sale of but, if no such issue shall then be living, in land under proceedings in partition are the such case, I give the same unto all the chil- expenses, including costs, and liens on the dren of my said daughters, Catharine and land at the time it is sold. The latter, by Sarah, and my said son, Richard, their heirs reason of the conversion of the land into and assigns, in equal parts, according to the money, retain their grasp on the fund, and number of them." Catharine Wistar died in must of course be paid out of it. The forthe year 1822; Sarah Wistar died September mer are charges on the fund in the nature of 21, 1866. The devisees for life held posses- a lien for cost of producing it, and are alsion until September 21, 1866. Richard and ways deducted before distribution. But William Lewis Wistar, after the deaths of claims for contribution, such as were presentthe life-tenants, took possession of the prop-ed in this case, if allowable at all, must rest erty in question. Their right was never dis-on equitable basis. In this case the appelputed until about 1883, when it was agreed lants had no equity which, under the cirbetween the parties that a case should be cumstances disclosed by the record, the court stated for the opinion of the court. This was was bound to recognize. For many years done, and the court held that the parties they were in exclusive possession and enjoynow to the record were entitled, with Rich- ment of the land, all the while ignoring the ard and William Lewis Wistar, to an inter- title of their co-owners, and excluding them est in the land. An appeal was taken, and from any participation in its management or the judgment of the lower court aflirmed. control. During that time they paid in their Proceedings were subsequently begun by own right, and for their own benefit, as they the co-tenants for partition, a trustee, Sam- supposed, the sums of money for which they uel W. Reeves, was appointed to conduct now claim contribution from the appellees, the sale, the purchase money to be paid by who represent two-thirds of the fund realized the purchaser into court, as provided by act from the sale in partition. It also appears Pa. March 27, 1865. The sale was held, that the owners of an undivided moiety of and realized $205,200, which sum was paid the land, in May, 1886, sold their interest to into court, except $1,750, which was paid Messrs. Elkins and Widener. They, as vento the auctioneer. Before the auditing judge dees of that interest, now rightly claim onethe question as to the proper distribution half the net proceeds of sale, less costs. Upon of the fund was for adjudication, when evi- what principle, legal or equitable, can they dence was offered of taxes and expenses for be called upon to contribute to claims, none of street improvement paid by Richard and which was a lien on the land when they purWilliam L. Wistar, but the claim was disal- chased, and of which it does not even appear lowed. To this ruling, and to the allowance that they had any notice? The remaining of commission to the trustee, as well as to specifications are also without merit. There other rulings, said Wistar excepted, and, the is nothing in either of them that calls for a court in banc having overruled their excep- reversal or modification of the decree, Detions, they appeal. cree affirmed, and appeal dismissed at the costs of appellants. William Gorman and F. Carroll Brewster, for appellant. John M. Scott, J. Howard Gendell, and J. B. Townsend, for certain of of the appellees. Appeal of WISTAR et al, (No. 193.) (Supreme Court of Pennsylvania. April 15, 1889.) peal of Wistar, ante, 460, (No. 192 of this term,) STERRETT, J. This case was argued with Apand involves precisely the same questions. For reasons briefly given in opinion just filed in that case, the decree should be affirmed. Decree affirmed, and appeal dismissed at the costs of appellants. (125 Pa. St. 506) SOUTHERN MD. R. Co. v. MOYER. (Supreme Court of Pennsylvania. April 15, 1889.) REFERENCE-PRACTICE-GARNISHMENT. STERRETT, J. Little, if anything, can be profitably added to what has been so well said by the learned judge of the orphans' court in support of its decree. In view of all the circumstances, the allowance to the trustee for his services, in conducting the sale, etc., measured as it was by 1 per centum of the amount realized, cannot be regarded as unreasonable. It is conceded on all hands that the services were efficient and valuable. If the trustee had been required to furnish security, the ordinary allowance would have 1. Where a case is referred to a referee under been at least twice as much, and thus the ex- the provisions of act Pa. May 14, 1874, on writ of penses of sale would have been increased. error to the judgment entered on his report, the The fact that the parties interested in the supreme court can consider only questions of law arising on bills of exceptions to the referee's rulfund to the extent of two-thirds are not dis-ings relating to evidence or to the law of the case, satisfied with the allowance is strongly persuasive of its reasonableness. The offer to 2. The referee has exclusive jurisdiction to hear interject claims for contribution, for taxes and pass on exceptions to his report, just as a paid by two of six tenants in common, dur-judge has in cases submitted to his decision. If a ing a period extending back to 1866, and for party is dissatisfied with the rulings thereon, he other claims against the land, alleged to have should note an exception, and, if he neglects to do so, he will be considered to have acquiesced in the been paid by them, was properly rejected. decision. the same as on a judgment of the court itself in a case submitted to it without a jury. 3. Where a writ of foreign attachment was served | referee he has exclusive jurisdiction to hear on the garnishee August 4, 1879, and the garnishee and pass upon exceptions to his report, just alleges that the property owing to defendant had been assigned to a third person by defendant, July as the judge has in cases submitted to the de24, 1879, but the testimony of defendant himself cision of the court. If either party is dissat shows that such assignment was not made till two isfied with the rulings thereon, he should reweeks after the service of the writ, the garnishee quest that an exception be noted. If he neg is liable. Error to court of common pleas, Philadelphia county. Action by J. M. Moyer against S. S. Smoot, defendant, and the Southern Maryland Railroad Company, garnishee. Plaintiff obtained a judgment against the garnishee by default, and it was agreed to refer the matter to a referee, under the act of May 14, 1874, to hear testimony, and ascertain what amount was due plaintiff. The referee filed his report, and judgment was thereupon entered against the garnishee, who brings error. Samuel Gustine Thompson, for plaintiff in error. Amos Briggs, for defendant in error. lects to do so, he should be considered as having acquiesced in the decision. In Bradlee v. Whitney, supra, our Brother CLARK, referring to the act of May 14, 1874, says: "It has been frequently held in this court that a writ of error, in such case, brings up only questions of law. The court cannot go behind the findings of fact by the referee, except where the assignment of error is such as could be heard and determined if the trial had been, according to the course of the common law, before a jury. If the evidence is relevant and proper, and the findings of fact are reasonably inferred therefrom, we must, in the absence of fraud, accept the report as correct and true. We cannot consider the weight or the conflict of the evidence, or the veracity of the witnesses; this is the proper office of the referee, who performs the double function of court and jury. Such of the assignments of error as are directed solely to the facts must therefore be dismissed." STERRETT, J. In its legal effect, and for all purposes of review here, the judgment entered on the report of the learned referee, under the provisions of the act of May 14, 1874, is substantially the same as a judgment of the court itself in a case submitted to it without jury trial under the act of April 22, 1874. The writ of foreign attachment in this The practice under these acts has been fully case was duly executed and served on the considered in several cases, among which are garnishee, plaintiff in error, August 4, 1879; Jamison v. Collins, 83 Pa. St. 359; Lee v. and, as to Mr. Smoot, the defendant therein, Keys, 88 Pa. St. 175; Brown v. Dempsey, 95 the sheriff's return was "nihil habet." The Pa. St. 243; Bradlee v. Whitney, 108 Pa. St. cause was so proceeded in that in June, 362. In view of these and other deliverances 1880, judgment was taken against the deof this court on the subject the practice should fendant, Smoot, for want of appearance, and have been long since considered settled. afterwards liquidated at $234,000. In May, The case first above cited was a submission 1886, interrogatories were filed, and the railto the court under the act of April 22d, su- road company, garnishee, was ruled to anpra. Referring to the third section of the swer. In August following, judgment was act, it was there said that on a writ of error entered against the garnishee in default of to the judgment, “we can hear and deter- an answer, for $234,179. Afterwards, on mine only questions of law arising upon bills October 27, 1886, the following agreement of exception to the rulings of the judge re- of reference was executed and filed, viz.: lating to the evidence or to the law of the "Judgment having been heretofore entered case. We cannot go behind his findings of in the above case against the garnishee for fact, except where in a common-law trial be- the sum of $234,179, in favor of plaintiff, fore a jury the assignment of error is such now it is hereby agreed that the said court as can be heard and determined by us. The shall appoint John H. Seltzer, Esq., referee, writ of error brings up no question as upon under the act of May 14, 1874, to hear all the a motion for a new trial. The law provides evidence of the respective parties, and to asfor exceptions to the findings of fact," etc. certain what amount, if any, was due from The other act directs that the referee shall in said garnishee to the said defendant, at the all things pertaining to the trial and decision date of the service of the writ in the above of the case have the powers and perform the case upon them, whether it should be reduties that would belong to the court under duced in amount or set aside for want of a like submission. "The decision, with what consideration, and to enter judgment as propertains to it, shall be filed of record in the vided by said act. Pursuant to his appointcase, and shall in like manner, and to the ment, and notice to the parties, the referee same extent, be subject to exceptions and proceeded to discharge his duties, and, havwrit of error or appeal, as in cases submitted ing fully heard the parties, etc., reported in in like manner to the court." It was accord- favor of plaintiff below, and against the garingly held in Lee v. Keys, supra, that the nishee. Exceptions to the report, 39 in numpractice is substantially the same under both ber, were filed by the garnishee. These exacts, especially in writs of error. In both, ceptions were overruled by the referee, and on the filing of exceptions to the decision is con- May 26, 1887, a modified judgment, in proper templated, and, after hearing, a decision by form, was entered against the garnishee. the court or referee, as the case may be, on In his report on the exceptions above referred those exceptions. In cases submitted to a to, the learned referee says the garnishee ap |