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after (wards) they marry, the husband and with her husband's title as well as her own. wife bave moieties between them.” Coke The act of 1889 is an act to facilitate the Litt. 187b. And see 2 Cruise's Dig. 494, and settlement of disputed or disputable claims to 2 Plowden, 483, cited in Stuckey v. Keefe's land. But it was not intended to overturn Ex’rs, 26 Pa. 397. No stronger illustration the settled principles of law. As the petition could be given. If subsequent unity of per showed that the rule asked for, even if grant. son cannot change a tenancy in common to ed, would have to be discharged, the rule one by entireties, e converso a subsequent seve should not have been granted. Ordinarily erance of the unity of person ought not to questions of title await the return of the change a tenancy by entireties to one in com rule for disposition. Titus V. Bindley, 210 mon. In entire accordance is our latest Pa. 121, 59 Atl. 694; Fearl v. Johnstown, 216 case (Hetzel y. Lincoln, 216 Pa. 60, 64 Atl. Pa. 205, 65 Atl. 549. But in the present case 866), where a conveyance to husband and wife that was unnecessary, and the default pro"jointly" was held to create an estate by cn vided for in the statute, the failure to appear tireties which continued with its incident on and answer, was immaterial, because the face survivorship, although the husband had con of the record already answered the requireveyed his interest to the wife as "the und ment of the rule by showing “cause why the vided one-half” and they had subsequently ejectment cannot be so brought.” executed a mortgage in which the conveyance Judgment reversed, and judgment directed by the husband was referred to. A creditor to be entered for defendant. had obtained a judgment against the husband, and after his death sought to revive it against his administrator, with notice to the wife as
(216 Pa. 630) terre-tenant, on the ground that they had be
In re THIEL COLLEGE'S APPEALcome tenants in common, but it was held that (Supreme Court of Pennsylvania. Jan. 7, 1907.) he could take nothing. "Whatever may have
COLLEGES AND UNIVERSITIES CHARTERS been the intention of the husband" said our
Under Act April 29, 1874, $ 42 (P. L. 106), Brother Brown, “the right of the wife was
giving courts the right to grant amendments to fixed by the deed from Reed. By it each charters of colleges and universities, the court held an entirety and upon the death of either
of common pleas has no jurisdiction to change the estate would vest absolutely in the other
the corporate location of a college from one
county to another, particularly where it appears as the survivor. The husband conveyed noth that the college was located permanently in the ing to the wife that she would not have enjoy first county under contract, and the parties ed if she survived him, which she did.” The
to the contract objected to the change of loca
tion, decisions and the statutes referred to supra, go to show that in regard to the nature and
Appeal from Court of Common Pleas, Merqualities of an estate by entireties the general
cer County. rule of law applies that they are determined
In the matter of the petition of Thiel Colat the inception of the estate.
lege to amend its charter. From a decree In the present case, therefore, the parties dismissing the petition, the college appeals.
Affirmed. took an estate by entireties at the time of the grant. By it the husband took a vested estate Petition to amend charter. On June 5, to which was incident a right of survivorship. 1905, Thiel College of the Evangelical LuthThat estate could not be divested, or stripped eran Church, a corporation, created by speof any of its incidents except by express stat cial act of assembly, approved April 14, 1870 utory provision existing at the time of its in (P. L. 1167), filed its petition, together with ception. The divorce severed the unity of a copy of the charter act, in the court of person for the future, but it could not avail common pleas of Mercer county, asking for retrospectively to sever the vested unity of an amendment to its charter which would title and possession. The learned court be permit the board of trustees to change the low gave much weight to the judgment of location of the said Thiel College from Greenrule absolute to bring ejectment. But the ville, Mercer county, Pa., to or near Greensrule was a nullity. By the terms of the stat burg, Westmoreland county, Pa. The petiute it was a rule to bring ejectment or "show tion contained the necessary corporate action cause why the same cannot be so brought.” taken by the board of trustees May 25, 1905, The petition for the rule disclosed that the reciting the provisions of the charter as to the parties held by entireties, and that the peti location of the college at Greenville in 1871; tioner had no other or better title than the the sense of the board that by reason of its husband upon whom the rule was asked. location said college has not been successful; Without regard to actual occupation the bus the action taken by the Pittsburg Synod of band was in legal possession and could not the Evangelical Lutheran Church, the visitabring ejectment against his co-tenant, Martin torial body having power to elect the trustees v. Jackson, 27 Pa. 504, 67 Am. Dec. 489; and of the said college, which favored the rethe court could not make a vain order re moval of the college from Greenville under quiring him to do what the law determined proper conditions; the offer made by the citi. he could not do. The petitioner's occupation zens of Greensburg and Westmoreland county could not be adverse, because no matter how of $100,000 in cash, and certain valuable real long continued it was in entire accordance estate amounting to $40,000 more, to secure
the location of the college there; the action not be granted. The power to amend is not of the board of trustees accepting the said unlimited. The court is to be satisfied that offer and the approval of the same by the "such alterations are or will be lawful and Pittsburg Synod and the resolution of the beneficial, and do not conflict with the reboard that under these facts the best interest quirements of this statute or of the Constiand welfare of the college demand its re tution." One of the statutory requirements moval from Greenville, Mercer county, Pa., is that the petition shall be presented to the at or near Greensburg, Westmoreland county, court of common pleas “of the proper county Pa.; and praying for the necessary amend. in which said corporation is situated," which ment. To this petition John R. Packard and is Mercer county. But whether the court of L. L. Keck on July 3, 1905, filed an answer Mercer county can authorize a change by or exceptions on behalf of themselves and which the college shall thereafter be situated such other citizens of Greenville, Pa., stand and have its corporate domicile in Westmoreing in the same relation to Thiel College, land is, to say the least, doubtful. alleging that the trustees of said college in But a still more potent objection, not at consideration of about $15,000 agreed to per all doubtful, is that the college was located manently locate the said college at Green. permanent in Mercer county, in pursuance ville, Pa., and that said Packard and Keck of a contract to which the present objectors were contributors to the said fund; that the were parties. Their standing to object was said permanent location was made and the affirmed when the case was here last. Pack. money paid; that the said trustees had at ard v. Thiel College, 209 Pa. 349, 58 Atl. 670. tempted to remove the said college and ex Decree affirmed. ceptants had filed a bill in equity and obtained a perpetual injunction restraining the same, which was affirmed by the Supreme
(216 Pa. 598) Court of Pennsylvania, and denying the ne
In re MUSGRAVE'S CASE. cessity or the right under the law of the re (Supreme Court of Pennsylvania. Jan. 7. 1907.) moval of the said college. The court dis
ATTORNEY-ADMISSION TO BAR-NECESSITY OF missed the petition.
EXAMINATION. Argued before MITCHELL, C. J., and
Under rule 36 of the court of common FELL, BROWN, MESTREZAT, POTTER,
pleas of Allegheny county, requiring a registered
applicant for admission to the bar to undergo ELKIN, and STEWART, JJ.
an examination first or present the certificate
of the state board of law examiners that he has J. Boyd Duff and W. A. Griffith, for appel- 7 passed the examination required by the rules lant. Q. A. Gordon, Templeton, Orr & of the Supreme Court, a certificate from the Whiteman, W. C. Pettit, H. L. Keck, and J.
state board of examiners that the person named
is a member in good standing of the appellate J. Donaldson, for appellee.
court of another state, and has practiced in a
court of record of that state for at least five PER CURIAM. We do not go so far as to
years, and is of good moral character, without
stating that he has passed the examination, hold with the learned judge below that the will not entitle him to admission. court was without power to grant amendments to a college charter. There may have
Appeal from Court of Common Pleas, been reasons why the Legislature was willing
Allegheny County. to authorize courts to grant amendments, al
Petition of John H. Musgrave for admisthough they could not have granted the char
sion to the bar. From an order refusing ters themselves, and the language of the stat
a rule to show cause, he appeals. Affirmed. ute is too explicit on this subject to be light The petition was as follows: "The petition ly disregarded. “As often as the corporations of John H. Musgrave of the city of Pittsburg, named in the first class specified in the sec in said county, respectfully represents: That ond section of this act, including all such he was born in the city of Pittsburg aforesaid corporations now in existence, and colleges in 1871, and resided in said city until 1894, and universities shall be desirous of improv and after an absence of 10 years returned in ing, amending or altering the articles and 1904. That he is a freeholder in his own conditions of their charter, it shall and may right, and a large holder of real estate in be lawful for such corporations respectively, the right of his wife, in said county and in like manner, to specify the improvements, state. That he attended the common schools amendments or alterations which are or shall of the said city of Pittsburg, the preparatory be desired, and exhibit the same to the court department of the Western University of of common pleas of the proper county in Pennsylvania, and studied under a private which said corporation is situated,” etc. Act tutor. After such preparation he entered the April 29, 1874, 8 42 (P. L. 106). Colleges and law department of Yale University, where he universities would not have been included by graduated in 1893, after which he returned the general words referring to the second to Pittsburg, and in 1894 moved to the city section, and their express mention in enumer of Chicago to reside. That he resided in ating the charters which may be amended by the said city of Chicago, Ill., from 1894 to the courts is a plain legislative grant.
1900, and in the city of Minneapolis from But the court was clearly right in holding 1900 to 1904. That he was in actual practice that the amendment desired in this case could of the profession of law in said cities and
to the bar of the Supreme Court of Pennsy! vania.”
Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.
Joseph A. Langfitt and H. W. McIntosh, for appellant. E. C. Ohalfant and Chas. P. Orr, for appellees.
states for and during the said period of nine years, being admitted to practice law by and in the courts of last resort of said states, and is still in good standing therein. That in March, 1904, he returned to the said city of Pittsburg on account of business interests and was duly admitted to practice law before the Supreme Court of Pennsylvania, the Superior Court of Pennsylvania, and the Dis trict and Circuit Courts of the United States for the Western District of Pennsylvania, by reason of a certificate issued by the state board of law examiners, according to rule 10 of the rules governing admission to practice law in the Supreme Court of Pennsylvanla. That in December, 1904, he appeared before the examining board of Allegheny county for a certificate to practice law in the courts of Allegheny county, but was denied the right of examination on the ground that your petitioner did not intend to reside permanently in said county, though then a legal resident. That on June 3, 1906, he appeared before the board of law examiners of Alle gbeny county, composed of Messrs. E. a Chalfant, George P. Herriott, E. L Mattern, John S. Wendt, Charles P. Orr, John P. Hun. ter, William M. Hall, and R. A. Balph, and presented to said board a certified copy of the certificate of the state board of law examiners before referred to, and requested that said board of law examiners of Allegheny county grant him a certificate recommending his admission to practice law in the several courts of record of Allegheny county, according to rule 36 hereinbefore referred to; but he was denied said certificate on the ground that for the last year and one-hall he was not in the active practice of the law, being a resident of Pennsylvania. That said board of law examiners of Allegheny county refused to recognize the certificate issued by the said state board of law examiners in law, claiming that such certificate does not comply with the rules of court in regard to the admission of attorneys Your petitioner has also attached hereto several letters of residents of Pittsburg and vicinity, showing that he is a person of good moral character, and of good repute in this community. Wherefore, by reason of the premises, your petitioner prays that this honorable court grant a rule upon the said board of law examiners to show cause why the said board should not recommend or move the admission of the said John H. Musgrave to practice law in the several courts of Allegheny county.” The certificate of the state board was as follows: "The state board of law examiners hereby certifies that John H. Musgrave, Esq., of Allegheny county, has furnished satisfactory evidence that he is a member in good standing of the bar of the Appellate Court of last resort of the state of Illinois, that he has practiced in a court of record of that state for at least five years, and that be is of good moral character. The board, therefore, recommends that he be admitted
MITCHELL, C. J. The rules of court for admission to the bar of Allegheny county, in the regular and usual course, require, inter alia (1) registration as a student, after an examination as to proficiency in preliminary studies, or an attendance at some reputable college which will be accepted as an equivalent for such examination (rule 35); (2) have ing been so registered the applicant must bave served a regular clerkship in the office of an attorney or judge of the county for three years, or its prescribed equivalent; and (3) that he shall have undergone “an examination in the principles and practice of law and equity, or, in lieu thereof, shall present to the board the certificate of the state board of law examiners that he has passed the examination required by the rules of the Supreme Court, relating to admission to the bar of that court, and has been recommended by them for admission to the bar of the Supreme Court, and shall file with the prothonotary
a certificate signed by all the examiners present at his ex. amination or in case of the presentation of a certificate of the state board, by all those present at the meeting of the board which passes thereon, that he is qualified for admission to the bar, and that they have re ceived satisfactory evidence of his good moral character. Each examination shall consist partly of written questions to be answered in writing by the student, which questions and answers shall be reported to the court if required. The specific subjects and studies upon which the examination shall be held shall be the same as those designated from time to time by the Supreme Court for the examination of candidates for admission to the bar of that court" (rule 36).
This is the regular and ordinary course, and admission it will be seen is based on the ultimate requirement of an examination in the principles and practice of law and equity. Until quite recently the courts insisted on such examination by their own board, and the recent amendment of rule 36, by which the certificate of the state board of examiners is accepted as an equivalent, is a concession in relief of students from the burden of a double examination, by the state and by the local board, on the same subjects and for the same purpose. But from the provi. sion for written questions and answers, and for the specific subjects and studies, as well as from the general intent, it is manifest that the rule both in its original and its amended form requires an examination, in
have had to be discharged. But no error was committed of which appellant has any cause to complain.
(217 Pa. 17) SAWYER et al. V. CITY OF PITTSBURG
et al. (Supreme Court of Pennsylvania. Jan. 7, 1907.) 1. MUNICIPAL CORPORATIONS - CONTRACTS INJUNCTION.
A municipal contract will not be enjoined because the highest of the three bidders was a subsidiary company of the successful bidder, where no fraud is shown, and the only evidence to establish such alleged fact was testimony based on brearsay. 2. SAME-FRAUD.
Where two companies are bidders for a municipal contract, the mere fact that one company is called subsidiary to another company, and is controlled by the same interest, does not of itself show fraud.
the ordinary meaning of that word, to test proficiency in the principles and practice of law and equity, not a mere inspection by the state or the county board of certificates from other courts. Such inspection in exceptional cases of practitioners from other courts is provided for in the next rule, 37, as follows: "Any person admitted to practice in other courts of this or other states who shall have been in actual practice for five years within the six years immediately preceding his application, and who shall have satisfied the board of examiners of this fact and of his good moral character and professional standing, may without previous registration appear for final examination for admission to the bar; provided, however, that when, in the unanimous opinion of the board, the moral character, professional standing and qualifications of the applicant are such as to render an examination unnecessary, he may on filing in the prothonotary's office a certificate to this effect, signed by all the members of the board, present himself for admission on motion." These rules prescribe the conditions and methods by which admission can be had to the bar of Allegheny county. The appellant has not brought himself within any of them. There is no averment in his petition that he has passed an examination by either the state or the county board in the principles of law and equity, nor, indeed, is there any averment of such an examination by anybody at any time, and the statement of graduation at the law department of Yale University is lacking in precision of dates to show how much time he passed there. He has not therefore complied with the require. ments of rule 36 with regard to students applying for admission from the county of Allegheny.
Appellant claims to come under rule 36 by virtue of his certificate from the state board. Turning to the certificate, it appears to be only that he "has furnished satisfactory evidence that he is a member in good standing of the bar of the Appellate Court of last resort of the state of Illinois, that he has practieed in a court of record of that state for at least five years, and that he is. of good moral character.” This is not the certificate contemplated by rule 36, which as already said is intended only to accept the result of an examination to test qualifications as to legal knowledge by the state board as an equivalent for examination for the same purpose by the local board as previously required. The rule and the certificate provided for in it have no reference to the admission of attorneys from other courts of this or other states. That subject is governed by rule 37 aiready quoted. Appellant makes no claim that he comes within that ule.
It would have been better practice to grant the rule. Any question of fact possibly arising could then have been reached by depositions and the record would have been put in more regular shape, though the rule would
Appeal from Court of Common Pleas, Allegheny County.
Bill by Harry C. Sawyer and E. H. Stoner against the city of Pittsburg and others. Decree for plaintiffs, and defendant the Welsbach Street Lighting Company of America appeals. Reversed.
Argued before MITCHELL, C. J., and FELL BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.
Chas. E. Morgan, Alex. A. Patterson, McKee & Mitchell, Joseph M. Swearingen, and Wm. Findlay Brown, for appellant. George R. Wallace and Thomas Watson, for appellees.
MITCHELL, C. J. This was a taxpayer's bill to enjoin the municipal authorities of the city of Pittsburg from carrying out a contract for lighting the streets of that city. The basis of the bill was fraud, charged in every detail that the ingenuity of suspicion could suggest, including, inter alia, that the ordinance under which the contract was made was illegal and void, that the specifications advertised for the work to be done were made so vague, indefinite, uncertain, and illegal that it was impossible for a prospective bidder to form an accurate idea of what would or might be required of him, and therefore free and open competitive bid. ding was rendered impossible. The particulars of these defects in the specifications were set forth in detail in separate paragraphs of the bill. As, however, the learned court below found that none of these allegations were true, it is unnecessary to do more than to refer to them in this general way to show the nature of the controversy.
The bill then set out that, when the bids were opened, there was one by the Welsbach Company at $27.50 per light, one by the Cleveland Vapor Light Company for $25.50 per light, and one by the Sun Light Company at $28.50 per light, and the contract was awarded to the Welsbach Company. It then a ver
ica? A. I have heard it was a subsidiary company." But, assuming that the witness had knowledge and that what he testified to was true, the fact that there were only three companies who could be considered as active competitive bidders for that work is not unprecedented, as there are many kinds of large business undertakings in which the field of competition is necessarily limited. Nor do calling a company “subsidiary” and the fact that it is controlled by the same interests show fraud. Potts v. Philadelphia, 195 Pa. 619, 632, 633, 46 Atl. 195.
There was no question in the case as to the weight of a responsive answer, or whether it was overcome by testimony of the witness Newbold brought out by appellant itself. The case never got that far. If there had been no answer at all, the complainant's case would have failed for want of evidence. Fraud is never presumed, and suspicion is not proof nor is opportunity guilt. The case depended on collusion in fact, and of thať there was no proof at all, nothing but an unwarranted inference from insufficient evi. dence,
The decree is reversed, the injunction dissolved, and the bill dismissed, with costs.
red that there was collusion with reference to said specifications and bids and the award to the Welsbach Company; that the collusion was evidenced, not only by the specifications themselves, which were so drawn as to discourage bidders, but also by the fact that the bid of the Sun Light Company of $28.50 was a collusive bid, the said company being in fact a subsidiary company of the Welsbach Company and controlled by it; that the said bid was evidently made for the purpose of producing the impression that there was competition and that the contract was not let to the highest bidder. A further evidence of collusion was a verred in the matter of the bid of the American Street Lighting Company of Baltimore, which did not arrive in time to be considered. But the court found against this charge, and also found that the contract was let to the Welsbach Company as the lowest responsible bidder, and “there was no sufficient evidence that it was not such."
The court did find, however, that the contract was void, and the bid of the Welsbach Company was collusive because the higher bid was by the Sun Light Company, a "subsidiary” company, and under the control of the Welsbach. The whole case turns on this tinding, and the most searching examination fails to show that it has any substantial basis to rest upon. It is said by the court below: “The only testimony upon the subject was that of Mr. Newbold." His t'estimony thus referred to was as follows: "Q. Isn't it a fact, Mr. Newbold, that practically competition for street lighting and contracts such as is let by the city of Pittsburg is limited to the Welsbach Company, the Cleveland Company and your company? A. Yes; I think that is so. Q. So that, when those three bidders bid, you could not look for much competition outside? A. No, sir; I do not think you can. Q. Either heretofore or the present time? A. I will say at the present time." By Mr. Wallace: “Q. What do you mean by saying that there are only three competitors, when you mentioned the Pennsylvania Globe and Sun Lighť Company as other companies in this business? A. We understand that the Pennsylvania Globe, the Sun Company, and the New York & New Jersey Gas Light Company are really companies that are subsidiary to the Welsbach Company, controlled by the same interests."
The whole case rests upon that testimony. The witness was the secretary of the American Street Lighting Company, the rival company whose bid failed to get in soon enough, and he was not only not shown to have any competent knowledge of the facts as to the Sun Light Company, but it affirmatively appeared that he had not. In another part of his testimony he was asked: “Q. Do you know anything about the Sun Light Com. pany? A. Only from hearsay. Q. Do you know anything about its relation to the Welsbach Street Lighting Company of Amer
(216 Pa. 577) STRASSER V. STECK. (Supreme Court of Pennsylvania. Jan, 7, 1907.) VENDOR AND PURCHASER-SALE OF OPTIONLIABILITY OF PURCHASER.
One owning an option on coal land agreed "to grant, bargain and sell all the coal and land owned and optioned by him," and that, in consideration thereof, the second party to the contract should pay the sum of $1 for the option, and on his election and notice thereof should pay the sundry sums between the prices mentioned in the option to individual farmers, and the sum of $40 per acre for every acre which may be taken up; when deeds were delivered from the present owners, the payment to the farmers to be as stipulated in the option. The purchaser thereafter accepted the option and notified the seller thereof, but failed to exercise his right to purchase from the farmers after he became the owner of the option. Held, that the seller of the option was entitled to recover the difference between the option price and $40 per acre.
Appeal from Court of Common Pleas, Allegheny County.
Action by L. S. Strasser against Amos Steck. Judgment for plaintiff, and defendant appeals. Affirmed.
The contract between the two parties was as follows: "This optional agreement, made February 21, 1901, between L. S. Strasser, of New Kensington, Westmoreland county, Pennsylvania, party of the first part, and Amos Steck, of Pittsburg, Pennsylvania, party of the second part, witnesseth: That said party of the first part, for the consideration hereinafter mentioned, covenants and agrees to grant, bargain and sell to the said second party, all the coal and land owned and optioned by him, said party of the first part, situate in Jefferson and adjoining townships,