it, and its officers promised to keep him informed of any changes made. There was ample consideration to support the settlement between Alexander and the receiver, and there is nothing to show that Alexander was attempting to take any undue advantage of the receiver or the interests he represented. The equities were on his side. He had spent his time and money in aiding in the promotion of the enterprise, and according to his brother's petition, which was sworn to and filed in the case (although we do not accept it as evidence), he used large amounts of money furnished by his brother. Whether that be true or not, the record shows beyond question that John S. Alexander not only asserted his claim as a bona fide one, but it was so regarded by the receiver and others connected with the trust company. When the receiver filed his petition with the court on April 15, 1904, and the court authorized the agreement to be made in accordance with its recommendation, it cannot be doubted that it was understood that the distribution to Mason, in accordance with the declaration of trust of March 14, 1902, was to be paid, and that Alexander was to get the benefit of it. The receiver said in his petition that he was advised that Mason had no property out of which the claim due by him could be collected, except his interest under the declaration of trust. It cannot be supposed that Alexander would have been willing, or the receiver expected him, to surrender his interest in the stock for an indefinite amount against a man from whom it could not be collected. The agreement between Alexander and the receiver clearly meant that Alexander should receive so much of the distribution on the $55,000 as would not have to be paid to Mason by reason of the counterclaim against him, or the extinguishment of this claim that is to say, if the distribution was, for example, $37,000 and the claim aainst Mason was adjudged to set off or extinguish that amount, the whole of that sum was to be paid to Alexander; if less be so adjudged, then that much was to be paid to Alexander and the balance to Mason, if he was still entitled to it. The claims of the trust company and the railroad company against Mason were also agreed to be assigned to Alexander.

The validity vel non of the $55,000 claim cannot affect Alexander. When the agreement of April 22, 1904, was made, the receiver unquestionably regarded it as valid, but he also believed from the reports of the experts that there were valid counterclaims against Mason; and, as he believed they could not be made out of Mason, excepting to the extent of the dividend on the $55,000 claim, he doubtless deemed it proper and "most desirable" to agree to pay that to Alexander, in order to get rid of his claim for the four-ninths interest in the stock. The learned judge who decided the case below was satisfied that the contract was a proper

one, and by his decree not only confirmed it, but undertook to enforce it in favor of Alexander to the extent of the claim against Mason, but, being of the opinion that the claim of $55,000 was "invalid, unwarranted, and fictitious," disallowed it. From what we have already said it will be seen that we are of the opinion that he was in error in reference to that. The dividend on that sum with interest, however the claim itself be now regarded, was the real compensation for Alexander's surrender of his claim to the stock, and not merely a personal decree against Mason, which is apparently worthless, and could probably be settled by a sum of money suffificient to obtain his discharge in bankruptcy.

er.

We have no doubt about the power of the receiver to enter into the agreement with Alexander. The decree appealed from expressly recognized it. As we have already indicated, we think that the petition of the receiver of April 15, 1904, shows that it was the intention of the receiver and Alexander that the latter was to have the benefit of so much of the dividend on the $55,000 claim as could be set off, or extinguished, and the court expressly authorized the execution of an agreement in accordance with that petition. The decree of the court now under review, which was passed by the same judge who passed the order of April 15, 1904, shows that he so understood the power given the receiver, as it says, "Which contract was heretofore fully authorized and approved by this court." But, if there could be any doubt about that, this decree ratified and confirmed it and the court undoubtedly had that pow23 Am. & Eng. Ency. of Law, 1064. The agreement was executed in good faith by the receiver and Alexander, and it was unquestionably for the benefit of the estate in the charge of the receiver; for, if it had not been made, it was possible that the sale of the securities of the railroad company could not have been consummated, or at least would have been so delayed as to cause the trust company, its creditors, and all interested parties great loss. It is now too late to undo what was done by virtue of that agreement, as the stock was set free and doubtless delivered several years ago. There can be no question about the right of a receiver, with the sanction of the court, to make such a contract. 23 Am. & Eng. Ency. of Law, 1066. If he could not, it would oftentimes cause great sacrifice to the interests he represented. The right of a receiver to compromise claims and suits with the sanction of the court is very generally recognized. 23 Am. & Eng. Ency. of Law, 1080; Alderson on Receivers, § 365, etc.; Beach on Receivers, § 278.

Nor was it necessary, as contended by the appellee, to give the trust company notice of the proposed contract. We have stated above the prayers of the bill and the answer of the company. The court undoubtedly had the right to authorize and confirm a sale of the stock, bonds, etc., and, if every time a

question such as that presented by Alexander's claim was raised it was necessary to give the company notice and await its consent, or hear its objections, great loss to the estate would ensue. The company had by its answer consented to the sale of the securities and a distribution of the proceeds, as it expressly assented "to the granting of such other relief as is prayed in said bill of complaint," and one of the prayers of the bill was for the sale and distribution of the proceeds. Indeed, it is difficult to understand how the trust company could have any standing in a court of equity to make such an objection, under the circumstances disclosed by the record. It was not only acquainted with Alexander's claim before the receiver was appointed, and promised to keep him advised, but it permitted counsel for Alexander to appear in its name in support of this claim, which was doubtless done in pursuance of the agreement between the receiver and Alexander. Indeed, the company was represented and taking active part throughout the proceedings, and made no objection to the allowance of the principal of this claim until the intimation came from the court that it ought not to be allowed. We are therefore of the opinion that the distribution to Alexander on the $55,000 should have been allowed and confirmed. Without deeming it necessary to discuss the question, we think the report of the auditor gives sufficient reasons to justify the allowance of interest on that sum from March 1, 1898-the time fixed by the auditor.

It was in the discretion of the court below to refuse to permit Archibald A. Alexander to intervene and take testimony when he applied for leave to do so, and we will dismiss his appeal. If we had entertained it, we would have affirmed the action of the court, as a party should not be permitted to remain out of the case of which he has knowledge until after it is decided against him, and then become a party and delay the final settlement of it, unless he can show better reasons for so doing than this petition furnishes.

It is not necessary to determine whether the petition of John S. Alexander to remand the cause should be reviewed by us. Ordinarily such questions are in the discretion of the court; but if a party to a cause (either of record or appearing through another) is misled by the conduct of the other parties, and for that reason failed to take testimony, or do other acts which he would otherwise have done, the court should see that he is not prejudiced thereby. In this case the court was doubtless of the opinion that nothing could be accomplished by remanding the cause, by reason of the conclusion he had reached as to the $55,000 claim. But, as it was not necessary to take two appeals to protect his rights, we will dismiss the first one of John S. Alexander, assuming that to be the one taken from the order of August 21,

1906. We will direct the costs in this court, including the transcript and printing of the record and the briefs filed by John S. Alexander and the Maryland Trust Company, to be taxed in No. 51 (office docket), and to be paid by the appellee, the costs in Nos. 50 and 52 (office docket) to be paid by the respective appellants. We understand the costs below connected with this contest to have been disposed of by the audit, but, if not, the court below can direct how they shall be paid. We will reverse the decree of the lower court in so far as it changes the audit in reference to the claim of $55,000 and interest, and remand the cause, in order that a decree be passed ratifying and confirming the audit as filed.

Appeals in Nos. 50 and 52 (office docket) dismissed, and decree reversed in No. 51 (office docket) in so far as it changed the audit in reference to the claim of $55,000 and interest, and cause remanded, in order that the audit may be ratified and confirmed as stated by the auditor, the costs of transcribing and printing the record and of the briefs filed for John S. Alexander and the trust company to be taxed in No. 51 (office docket) and the costs in that case in this court to be paid by the appellee, those in Nos. 50 and 52 (office docket) to be paid by the respective appellants.

(217 Pa. 568)

LOCKNEY v. POLICE BENEFICIARY

ASS'N. (Supreme Court of Pennsylvania. April 22, 1907.)

1. BENEFICIAL ASSOCIATIONS-NOTICE OF ASSESSMENT EVIDENCE OF CUSTOM.

By-laws of a police benefit society provided for assessments on the second Monday of the month against members of the police force, while ex-members were to pay within 30 days after notice. Notice of assessment was read to all the policemen, and a copy posted on the bulletin board in the station house. There was no provision as to notice to an ex-member. The evidence showed that the posting of notice on the bulletin board was the usual method of informing ex-members. An ex-member was expelled for nonpayment of an assessment. Held, that the question as to whether a cus tom as to notice had been established was for the jury.

2. SAME QUESTION FOR JURY.

In an action against a benefit society, question whether notice of an assessment given was sufficient was for the jury.

3. CUSTOMS-EVIDENCE TO ESTABLISH.

To establish the validity of a custom, it must have existed so long as to have become generally known, and must be distinctly proven. [Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Customs and Usages, § 3.]

Court of Common Pleas, Philadelphia County.

Action by Annie Lockney, known as Annie Loughney, against the Police Beneficiary Association. Judgment for plaintiff, and defendant appeals. Affirmed.

The defendant presented, inter alia, the following points:

"(2) If the jury find and believe that John Lockney, on August 1, 1898, became a member of the police beneficiary association, and was a police officer connected with the police district station at Twentieth and Federal streets, and continued to be connected with that station as an officer until he severed his connection with the police department in February, 1899, and that all notices for payments of assessments for the said John Lockney, as well as for the other members of the police beneficiary association connected with that station, were sent to the said station during the whole of that period, and continued so to be sent thereafter, that being the adopted manner and custom of sending notices of assessments to the members of the police beneficiary association, and the said John Lockney and the other members receiving all of their notices in that way, and all payments of assessments that were made being paid to delegates at the said station, the notice for the payment of assessment of $4, sent on November 28, 1900, to the said station, was a notice to the said John Lockney, and, the said assessment not having been paid on or before January 10, 1901, the plaintiff cannot recover, and the verdict must be for the defendant. Answer: It is pretty hard to answer that point. If all the matters which are involved in that point are believed by you to be true, and particularly if you believe, as I have said before, that there has been an established, understood custom, or practice, that the notice to be given to the members and ex-members of that association that assessments were made was by reading them out from the desk in the station house or by posting them there, then I affirm that point.

"(3) When the said John Lockney severed his connection with the police department, if he desired notices for payment of assessments to be sent to an address other than that in the adopted and accustomed place and manner, viz., to the police district station, Twentieth and Federal streets, where he had always been notified from the commencement of his membership in August, 1888, to February, 1899, when he ceased to be a police officer, he should have requested the proper officer of the police beneficiary association to send his notices to the other or new address; and if the jury find and believe that the said John Lockney did not request his notices to be sent to an address other than the accustomed address, viz., the said station at Twentieth and Federal streets, then a notice sent to the said station was a sufficient notice to the said John Lockney, and the assessment levied for November, 1900, of $4, not having been paid on or before January 10, 1901, the plaintiff cannot recover, and the verdict must be for the defendant. Answer: I affirm that, just as I did the second point, if you believe that the testimony shows that there had been an established, understood way of giving notice at

the station house, which would be exclusive of other notices.

“(4) If the jury find and believe that the said John Lockney paid all of his assessments at the district station at Twentieth and Federal streets that were made upon his membership certificate sued upon in accordance with notices sent to the said station, and the said John Lockney neglected to pay the sum of $4, being assessment for the month of November, 1900, notice of which was sent to said station on November 28, 1900, then there can be no recovery by the plaintiff, and the verdict must be for the defendant. Answer: I decline that point."

Verdict and judgment for plaintiff for $2,059.20. Defendant appealed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Frederick A. Sobernheimer, for appellant. Joseph H. Taulane and Ernest E. Prevost, for appellee.

He

ELKIN, J. John Lockney, the husband of appellee, was a police officer in the city of Philadelphia, and became a member of the Police Beneficiary Association in 1838. was discharged from the police force in 1889, but under the by-laws of the association he then became an ex-member. The right of the appellee, his wife, the beneficiary named in his certificate of membership, to receive the amount named therein, was in no way impaired by the fact that he was discharged from the police force, provided, however, that he was in good standing in the association at the time of his death. The principal question for determination in this case is whether proper notice of an assessment had been given to the husband of appellee. It appears from the evidence that when a death occurs in the association an assessment of 50 cents is made upon each member, and the secretary of the association transmits, by telegraph, a notice to the lieutenant or superintendent in charge of the various police stations to collect from each member the amount of the assessment so levied. When this notice is received at the police station, it is read over the desk to all the policemen, and a copy of the same is posted on the bulletin board in the station house. The only notice given to the husband of appellee of the assessment of December, 1900, was by reading and posting on the bulletin board in the station house as above described, which, it is contended, was all the notice required under the circumstances of this case. It must be conceded that, if proper notice was given to appellee's husband, his failure to pay the assessment within 30 days after such notice made him liable to expulsion, and the act of the association in expelling him at their meeting on January 14, 1901, was within the power of the association under its by-laws. On the other hand, if proper notice was not given him, his expulsion was illegal, and not

withstanding the same he continued in good standing until the time of his death, and the beneficiary named in the certificate of membership would be entitled to recover from the association the amount due her under the terms thereof.

The by-laws of the association, relating to the question of notice, provide: "Any member of the department failing to pay his annual dues or assessments on the second Monday of the month, shall be expelled, and his beneficiary certificate shall be null and void: provided, that this does not apply to ex-members of the department who shall have 30 days from date of notice to make payments." It will be observed that the by-law does not specify the kind of notice, nor the manner in which it is to be given an ex-member; but it does expressly provide that ex-members shall have 30 days after notice to pay the assessment, and it is therefore incumbent on the association to give ex-members notice of the assessments levied upon them, in order that they may be informed thereof, and have an opportunity to pay the same within the 30-day limit. The by-law clearly contemplates a different method of dealing with members and ex-members. Members pay on the second Monday of the month, while exmembers pay within 30 days after notice. It is perfectly clear that an ex-member is not liable to pay an assessment until he has notice of the same, either actual or according to the by-laws and regulations of the association. In the case at bar the husband of appellee did not receive actual notice, the bylaws of the association are silent on the subject of the kind of notice to be given to an ex-member, and the only attempt to prove notice consisted in showing that the call for an assessment had been read to acting policemen and posted on the bulletin board in the station house. It cannot be said, however, that the notice given by reading aloud the call for an assessment in the station house was a sufficient notice to ex-members; for it could not be expected that ex-members, no longer members of the police force would be present when the notice was read, and they could not, therefore, be charged with notice in this respect. Nor can it be said as a matter of law that the posting on the bulletin board of the fact that an assessment had been called charged an ex-member with notice to pay the assessment. It is true that evidence was introduced on behalf of the appellant tending to show that for a number of years the posting of the notice on the bulletin board was the customary and usual method of informing ex-members that an assessment had been levied.

It is argued by the learned counsel for the appellant that Lockney had knowledge of this custom while he was a member of the police force, and must he held to be bound by it, and the fact of the notice having been posted being undisputed, it is contended the court should have withdrawn the case from

the jury and directed a verdict for the defendant. This position loses sight of the fact that the posting of the notice upon the bulletin board in the station house was primarily intended to give notice to members, and the evidence does not so conclusively establish the fact as to warrant the court in holding as a matter of law that this was a proper and sufficient notice to the husband of the appellee. Whether or not, under the evidence in this case, a custom was sufficiently and clearly established, so as to charge the appellee's husband with notice of the assessment, was left by the learned court below for determination by the jury; and in this we see no error. McMasters v. Pennsylvania Railroad Company, 69 Pa. 374, 8 Am. Rep. 264. In order to establish the validity of a custom or usage, it must have existed so long as to have become generally known, and it must be clearly and distinctly proved. Adams v. Pittsburg Insurance Company, 95 Pa. 348, 40 Am. Rep. 662. In the absence of a stipulation in the charter or by-laws of the association providing the method of giving notice to ex-members, it was for the jury, and not for the court, to determine, under all the facts of this case, whether or not the notice given was sufficient. The instructions of the learned trial judge fairly and properly left this question to the jury where it belonged.

The argument of the learned counsel for appellant relating to the question whether Lockney had been properly expelled from the association may be conceded to be sound. It is clear that, if Lockney had proper notice of the assessment and failed to pay the same within 30 days, the association had a right to expel him, and if he had been regularly expelled he would lose all his rights as a member, and his beneficiary would have no claim against the association upon his death. This question however, need not be given any further consideration, because we have already held that the whole case depends upon the question whether proper notice of the assessment had been given, and, if he did not receive proper notice of the assessment, his attempted expulsion was illegal. Judgment affirmed.

(217 Pa. 618)

TILBURG v. NORTHERN CENT. RY. CO. (Supreme Court of Pennsylvania. April 22, 1907.)

1. CARRIERS - EXPULSION OF DAMAGES.

PASSENGER

A carrier is liable for expulsion of a passenger at a dangerous time or place, not only for the injuries directly suffered, but also for subsequent injuries proximately due thereto. [Ed. Note.-For cases in point, see Cent. Dig. vol. 9. Carriers, § 1483.]

2. SAME QUESTIONS FOR JURY.

In an action to recover for the death of a passenger expelled from a train at a flag station and on a stormy night for failure to produce his ticket, where he was afterwards found

dead, apparently having been killed by a locomotive, whether the servants of the carrier were guilty of negligence and whether deceased exercised due care were questions for the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, 1495.]

Appeal from Court of Common Pleas, Lycoming County.

Action by Mary Tilburg against the Northern Central Railway Company. From an order refusing to take off a nonsuit, plaintiff appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, and STEWART, JJ.

Otto G. Kaupp and M. C. Rhone, for appellant. Seth T. McCormick, for appellee.

MESTREZAT, J. This is an action of trespass to recover damages for the death of Robert D. Tilburg, the plaintiff's husband. In the afternoon of January 3, 1905, he and his son Edward purchased tickets at Williamsport, Lycoming county, over the defendant's road for Cogan Valley station. At the same time one Charles Stamets purchased a ticket for Haleeka, a flag station about one mile beyond Cogan Valley, and the three parties entered and took seats together in a coach of the same train. Soon after the train left Williamsport the conductor asked Tilburg for his ticket, who, after searching his pockets, informed the conductor that he had a ticket for Cogan Valley, but was unable to find it. The conductor then told Tilburg to look for his ticket and he would return, which he shortly did, after taking up the tickets of the other passengers. He again asked Tilburg for his ticket, and was again informed by Tilburg that he had a ticket, but could not find it. The conductor then made inquiry of Stamets, who was present when Tilburg purchased his ticket, and was informed by Stamets that Tilburg had purchased a ticket from Williamsport to Cogan Valley. The son, Edward Tilburg, also gave the conductor the same information. About that time the brakeman announced Cogan Valley station. Edward Tilburg arose from his seat to leave the train and went to the door of the coach and on the platform. At the same time his father got up from his seat, but the conductor stood at the entrance to the seat with his hand on Tilburg's shoulder, demanding the ticket or the fare, and would not permit Tilburg to leave the coach, telling him that he, the conductor, must have the ticket or the fare before they came to the next stop, "or he would take care of him." The train stopped only a minute at Cogan Valley. Edward Tilburg alighted, but his father was still on the train. The conductor continued to demand the ticket or payment of his fare until the train arrived at Haleeda, where it stopped. Here the conductor put Tilburg off the train. Stamets, who was present and also alighted from the

train, says that the conductor shoved Tilburg "down off the step." This was at 5 o'clock in the evening, and it was dark. Edward Tilburg testified that "it was storming when the train left Williamsport, and that in the evening it was snowing and blowing terrible cold, very cold, the coldest day we had last winter"; that it had been storming since the day before; and that there were four inches of newly fallen snow on the ground. Stamets testified: "Q. Standing at the Haleeka flag station, at the point where Robert Tilburg was ejected, at the time that you say that he was ejected, what could you see of the surrounding country? A. Couldn't see anything. Q. Why? A. It was dark and stormy, and the wind was blowing very hard, and you couldn't see anything." Stamets says there was no house or place of shelter at the station. Tilburg was a stranger in that community, and had never been at the station before. The conductor gave him no information as to where he could find shelter or how he could return to Cogan Valley. After he had been ejected from the coach, Tilburg asked Stamets if he knew how he could get back to Cogan Valley station, and Stamets told him "the only way I knew was to go back down the railroad, because I didn't know any more about it than he did." The evidence does not disclose that there was any station house or other buildings at Haleeka in which Tilburg could secure shelter or protection from the storm, or in which he could remain during the night. Nor did it appear whether there were any roads in that vicinity, or that there was any other practicable or safe way than the railroad by which Tilburg could have returned to Cogan Valley. After Tilburg had been ejected from the train, he started to return to Cogan Valley by way of the railroad. He was not again seen until his body was found along the railroad track the next morning about a quarter of a mile from Haleeka station. The ticket he had purchased at Williamsport for Cogan Valley was in his pocket. Fifteen or twenty minutes after Tilburg's ejection from the train a freight train passed towards Williamsport, the direction in which Tilburg was walking. The evidence tended to show that he was killed by being struck by a locomotive. Upon these facts, the learned trial judge granted a nonsuit, which he subsequently refused to take off.

The nonsuit was granted solely on the ground that the plaintiff had failed to show affirmatively that the deceased could not have returned to Cogan Valley except by walking on the railroad track. The learned court, in its opinion refusing to take off the nonsuit, held "that it was the duty of the plaintiff to affirmatively show the necessity of the deceased to follow the railroad track towards his place of destination, and, having totally failed so to do, we granted the compulsory nonsuit now under consideration." We cannot agree with the learned trial judge