all of which were paid by defendant at maturity, by checks or renewals, in favor of the said J. Gampp & Sons; and that all such paper transactions on the part of the defendant were carried on with the said J. Gampp & Sons, alone, and not with the said plaintiff.

"That the total of payments made by said defendant to the said J. Gampp & Sons in checks or their equivalent, to be applied on said notes and acceptances, has more than equaled the total sum of all notes made by or drafts accepted by said defendant, in favor of said J. Gampp & Sons; and that said defendant has already paid said J. Gampp & Sons the note and acceptance in this suit.

"That defendant has been specifically informed by the said J. Gampp & Sons, and be

defendant had a course of business dealings with A, making notes and accepting drafts for A, and that their total payments was more than the paper sued on, and that plaintiff was not a holder for value.

Held to be insufficient.

The affidavit should state when, where and how it was paid.

An affidavit of denfense should state the facts and not merely the inferences from facts. The court can then judge whether the inferences drawn are correct. No. 788 Oct. T., 1899. Rule for judgment for want of a sufficient affidavit of defense.

Plaintiff sued to recover on a promissory note and two sight drafts made by the defendant to J. Gampp & Sons and indorsed to plaintiff.

The affidavit of defense was as follows: "Defendant admits making the note and acceptances set forth in the plaintiff's statement of claim.

"Defendant avers that said note and acceptances were among a large number of notes and acceptances, covering a period of over two years, and arising out of a joint account with J. Gampp & Sons, of East Randolph, New York, parties to the paper in this suit, by which large amounts of goods were carried in storage in this city (Pittsburgh) and in Buffalo, the said joint account beginning about May, 1897.

"That, in order to carry said goods in storage. an arrangement was suggested by the said J. Gampp & Sons, and agreed to by said plaintiff, whereby said plaintiff was to discount the paper of said defendant; that said plaintiff was fully cognizant of the nature of said transaction, and furnished in part the various sums required for that purpose.

said plaintiff the note of April 26, 1899, at sixty days, for two hundred dollars, and that defendant believes and expects to prove on the trial of this case, that the entire amount of acceptances and note, to wit: $950, set forth in plaintiff's statement, has been paid to said plaintiff by said J. Gampp & Sons.

"That defendant believes and expects to prove on the trial of this case that said plaintiff is not the bona fide holder for value, of the said note and acceptances, set forth in plaintiff's statement, and that the true plaintiff in this case is the said J. Gampp & Sons.

"All of which defendant believes and expects to prove on the trial of this case."

For plaintiff, George A. Sturgeon.
For defendant, McIlvain & Wurzel.

Opinion by SHAFER, J. Filed December 2, 1899.

The plaintiff declares as indorser upon certain notes made and drafts accepted by the defendant of which J. Gampp & Sons were payees and indorsers. The affidavit of defense is to the effect that defendant had certain business relations with Gampp & Sous and made a large number of notes and accepted a number of drafts for them and paid them, and that the total payments made by him to Gampp & Sons in checks or their equivalent was more than the total of these notes and drafts, and that he has paid to Gampp & Sons the notes and drafts in suit; that all these notes and drafts have beeu paid by Gampp & Sous to the plaintiff, and that the plaintiff is not the bona fide holder for value, but that the true plaintiff is Gampp & Sous.

Gampp & Sons. The single allegation is that he paid these notes and drafts. When, where or how he does not say. Whether certain facts constitute a payment of a debt is an inference of law, and therefore an allegation of payment is a mixed allegation of matters of fact and matters of law. An affidavit of defense should show the facts-the court can judge whether the inferences which the defendant would have drawn from them are correct. In this case it is evident that the allegation of payment is not intended to mean that it was paid in cash speci- | ally to be applied to this note, but only that by reason of their course of dealing he no longer owes it. Such an inference a defendant cannot be allowed to draw without setting out the facts from which he draws it. Rule absolute.

and in that way realizing their respective claims against Wilt; and the plaintiff's shares were issued to him in payment for a lien which he had against the opera house.

3. After the opera house came into possession of the company it was leased for part of a season, and for another full season, to one W. N. Adams. At the close of the season of 1896 there were negotiations between the directors of the company and Adams for a lease for the next season, and various offers were made by Adams of security for the rent. His offers were not accepted, and the directors leased the opera house to one Frederick McCloy for the same rent as that offered by Adams, but without security, the rent to be payable weekly, and with the privilege in the directors of naming the treasurer to be employed by McCloy. This proceed

No. 167 Oct. T., 1899. In Equity.

SHAFER, J. Filed November 18, 1899. The bill is by a stockholder of the East End Opera House Company, of Pittsburgh, against the company, its directors and treasurer, alleg ing that the directors of the company were about illegally to create a debt of $4,000 by pay ing certain indorsements alleged to have been illegally made by them in the name of the company, and that the company is insolvent and unable to carry out the object for which it was formed, and praying an injunction to restrain

the creation of the said debt, and for a receiver. FINDINGS OF FACT.

1. The defendant company is a corporation under the laws of Pennsylvania, the purpose of which is the establishment of an opera house in the Nineteenth ward of the city of Pittsburgh, county of Allegheny and State of Pennsylvania, and the operation or leasing of the same. The capital stock is $130,000, divided into 2,600 shares of the par value of $50 each.

2. The corporation was formed by creditors of one E. D. Wilt, who was engaged in the construction of an opera house in the Nineteenth ward of Pittsburgh and became insolvent, for the purpose of taking charge of the opera house,

in the bill, but it is not averred that the action of the directors in this matter was fraudulent, nor does it appear to have been so, but we find that Adams was rejected in good faith by the directors.

4. In about three weeks after the opening of the season, in September, 1896, it became apparent that the receipts of the house were not sufficient to pay the expenses, which fact was communicated to the directors by McCloy, and it became necessary for the directors to decide whether they should close up the theatre, take it into their own hands and manage it, or continue McCloy in the possession of the theatre, and assist him to keep it open. It was decided by the directors, after consultation among themselves, and with the principal stockholders, that it was for the benefit of the property that the theatre should be kept open, and that the best way to do so was to render assistance to McCloy, in the hope that the receipts of the theatre would increase so as to pay the ex$5,000 if necessary; and the president was aupenses, and to assist McCloy to the extent of thorized to do so by indorsing notes of McCloy to that amount. The president, thereupon, from time to time, indorsed notes, amounting in the aggregate to $4,000, during a period of eight or ten weeks, and, finding that the receipts were not increasing as expected, and that the remaining $1,000 which he was authorized to indorse for would not be sufficient to keep the theatre open, he made no more indorsements, and shortly afterwards the theatre was closed, sometime in December, 1898. The proceeds of the notes so indorsed were placed to the credit of the company, and were disbursed in the payment of salaries and other expenses, necessary to keep the theatre open, in addition

through the estate of the fraudulent pledgor. They trusted to his financial responsibility, whilst plaintiff did not. In any view of the matter the estate's equities cannot be said to be higher than those of plaintiff.

The rule for a new trial is refused. For plaintiff, J. A. Langfitt.

For defendant, Davis & Galbraith and Thomas Patterson.

Court of Quarter Sessions,

MONROE COUNTY.

COMMONWEALTH v. WETHERILL et al. Fishing laws-Construction of the Act of May 22, 1889.

The Act of May 22 1889, which prohibits the use of seines, drift-nets, etc., should not be interpreted to include in the phrase "nets of any other description," landing nets used in fishing for game fish.

Nos. 1 and 2 Sept. Sess.

Opinion by CRAIG, P. J. Filed November 15, 1899.

This is a proceeding under section 1 of the Act of Assembly of May 22, 1889, P. L. 267. It was conceded at the argument that the decision of the case rests with us, without the intervention of a jury: Com'th v. Waldman, 140 Pa. 89.

It is charged that the defendant violated the law in using a net, an appliance other than rod, hook and line, whilst catching trout. The uncontradicted evidence is, and we so find from

It is admitted that the bonds which form the subject of this controversy are the property of the plaintiff company. They were entrusted to Charles E. Cornelius in his lifetime for safekeeping. He fraudulently pledged them to the Peoples Savings Bank to secure his own debt. After his death his executrix, with full knowl. edge of the facts of the case, paid the debt for which the bonds were pledged.

Cornel

The estate of Cornelius is insolvent. ius never had any title to the bonds nor claim upon them. The Savings Bank could hold them until its claim was paid, because it was without notice of his fraud and misappropriation. When the debt was paid the lien was released in law, and plaintiff was entitled to its bonds. We are unable to see where the equity is which would keep alive the lien as against the owner for the benefit of the estate of him who fraudu lently pledged the bonds. It is true that the keeping alive of the lien would inure to the benefit of Cornelius' creditors, who are personally innocent of any fraud. But they claim

15, 1899, fish for trout in McMichael's creek, Monroe county, Pennsylvania, using rod, hook and line, with fly and reel, and, after hooking a trout, further employed a landing net for the purpose of lifting it from its natural element, and bringing it to shore, and putting it into his physical possession. Is this the catching of a fish by making use of a net, or any other appliance except rod, hook and line, within the meaning of the Act of Assembly?

The language of the Act of Assembly is this: "That, hereafter, no person or persons shall cast, draw, fasten, or otherwise make use of any seine, drift-net, fyke-net, or net or nets of any other description, or use any other appliance for the catching of fish, except rod, hook and line, in any rivers, streams or waters of this Commonwealth," etc.

Manifestly, if we interpret the words, "rod, hook and line," within the limitation of their literal import, then it would be obnoxious to this act to use a reel, or fly, or bait, or bob, or sinker, or squid in connection with rod, hook and line, when fishing for game fish; for these

are appliances for catching fish, in the general sense of the terms. Such interpretation would be contrary to the legislative intent, for it | would practically defeat all catching of game fish, sui hæret in litera, hæret in cortice. Such a construction would lead to absurdity; and it is not to be presumed that the Legislature intended their own stultification. Hence it is held that, when the language of an act is susceptible of two senses, the sense will be adopted which will not lead to absurd consequences: 23 Amer. & Eng. Ency. of Law, 362; Endlich on Iterp. of Statutes, ? 225.

At the argument it seemed to be conceded by the Commonwealth that the appliances we have named could be used in connection with the rod, hook and line in catching game fish without violating the statute. But the stress of the contention was made to rest upon the use of the landing net by the defendant, in getting physical possession of the trout after it was hooked, or, as the Commonwealth put it, in catching a fish by using a landing net in connection with rod, hook and line. Much argument was expended on the question, was the fish caught when hooked, or was it not caught until is was put into the physical possession of the defendant by means of a landing net? At first blush this seems a question worthy of the best days of the school men. Happily, we are relieved from the niceties of words and abstract ideas by the testimony of experts in fishing. These were judges and lawyers and doctors and fish commissioners, and public officials, and men of large and small affairs, who had had long practical experience. The preponderating weight of evidence is, that a game fish is caught when hooked, and that the landing net is used, either conveniently or necessarily, for bringing the fish into the physicial possession of the fisherman. Accordingly, we find the fact to be as thus testified to.

The argument is largely concerned with the definition of the word "catch." In construing it we are to take the ordinary and popular meaning: 23 Amer. & Eng. Ency. of Law, 826; Endlich on Interp. of Statutes, 76. But there we are not without perplexity. There are few words in the English language which have such a variety of meanings as the word catch. Webster's Internat. Dictionary gives fifteen shades of meaning, one of which is, "to take captive, as in a snare or net or on a hook, as to catch a bird or fish." The Century Dictionary gives twenty-two meanings of the word, one of which is, “to take captive, as in a snare or trap; to take with a lure or bait, as to catch a fish." The Standard Dictionary fur

nishes thirteen meanings, one of which is, "to take by trapping or snaring; to take with a bait or by stratagem, as to catch fish, games," etc. So, if we appeal to popular usage, as reflected in lexicons, we are left uncertainly as to what the exact meaning of the word "catch" is in the act. A bear, or a skunk, or a rat captured alive in a trap, under these definitions, may be said to be caught in the ordinary and popular meaning, although not in the physical possession of the trapper. So, a trout may be said to be caught when held by the hook, as well as when in the landing net or creel.

In construing this act we must not forget that it is penal in its character, and therefore subject to general rule of strict construction; that "where an act contains such an ambiguity as to leave reasonable doubt to its meaning, it is the duty of the court not to inflict the penalty; that where it admits of two constructions, that which operates in favor of life or liberty is to be preferred:" Eudlich on Interp. of Statutes, ? 330. This rule would compel us to construe the doubtful phraseology of the act against the infliction of the penalty, and in favor of the liberty of the citizen. As we have already shown, that to catch a trout may mean either when it is hooked or when it is landed with a landing net, it follows that under the rule ap plicable to penal statutes, we must adopt the construction most favorable to the defendant.

But, according to our view, it is not necessary to employ this rule of construction in the decision of this case. The phrase "rod, hook and line" is a very old one. In A Treatyse of Fvshynge Wyth an Angle, by Dame Julian A. Berners, edition 1496, we read as follows: "The beste to my symple dysercion wyche is fishynge, called anyglvnge with rodde and a lyne and an hooke." And we find our Legislature using this same phrase, in what appears a technical sense, in the Acts May 16, 1878, P. L. 57; June 3, 1878, P. L. 160; June 10, 1884, P. L. 92, and Acts of May 22, 1889, P. L. 261, 264, 267 and 270, and Act of May 20, 1891, P. L. 92. This phrase, "rod, hook and line," is applied to the catching of all kinds of game fish in these various acts, and to all the waters and streams of the Com. mon wealth, including the waters of Lake Erie, bays, ponds and bayous adjacent thereto. We cannot believe that the Legislature in using the phrase "rod, hook and line" intended so narrow and unreasonable a construction as is urged by the Commonwealth. So common and universal is the use of reels, fly-hooks, bait, bobs, sinkers and squids, in fishing with rod, hook and line, that we may take them to be included in the phrase "rod, hook and line,"