The trustee will be ordered to file an account at this number and term, so that a decree of distribution can be made.

For petitions, Shiras & Dickey.
For trustee, J. S. Young.

Circuit Court, United States,

Western District of Pennsylvania. HANOVER FIRE INSURANCE COMPANY v. BRADFORD.

Insurance-Power of sub-agent to bind agent of company-Liability of agent for acts of sub-agent. Where a duly appointed agent of an insurance company employed a clerk who was habitually permitted by the agent to solicit insurance, collect premiums and deliver policies, such clerk in these matters was thus made by the agent so far the representative of the company that his delivery of a policy had the same effect to bind the company as if it had been delivered by the agent himself.

Such clerk without the consent or knowledge of the

agent countersigned the latter's name to a policy for a prohibited risk and delivered the same in the regular course of business. A loss having occurred the company was sued by the insured and compelled to pay the loss. In an action by the company against its said agent for reimbursement, held, that the defendant was

responsible for the act of the clerk, his own sub-agent, in issuing the policy in violation of instructions given by the company to the defendant. No. 20 May T., 1898.

FINDINGS OF FACT.

In pursuance of a stipulation in writing waiv. ing a jury this cause was tried by the court without the intervention of a jury on the 28th and 29th days of June, 1899. And now, August 12, 1899, upon due consideration, the court finds the facts to be as follows:

1. By an instrument dated April 20, 1887, the defendant was appointed and constituted the agent of the plaintiff company with authority to receive proposals for insurance against loss and damage by fire, in New Brigh ton, Pa., and vicinity, to fix rates of premium, to receive moneys, and to countersign, issue and renew policies of insurance, signed by the president and attested by the secretary of the plaintiff company, subject to the rules and regulations of said company, and such instructions as might from time to time be given by its officers. The defendant immediately accepted this appointment and thereafter acted thereunder as the plaintiff's agent.

daily reports of business to the plaintiff's general agents for the State of Pennsylvania, at Wilkes-Barre, and further in the regular course of business and with the defendant's knowledge and by his authority, solicited insurance, collected premiums and from time to time delivered policies of insurance to the persons insured.

3. The Mayer Pottery Works, situate in Beaver Falls, Pa., in the vicinity of New Brighton, had been insured by policies aggregating the sum of $15,000 issued by companies other than the plaintiff company, and these policies the insured had procured through the defendant as the representative of the companies. Shortly before July 1, 1896, Joseph Mayer, one of the proprietors of those works, addressed a letter to the defendant at New Brighton calling his attention to the fact that these policies would expire on the last mentioned date and desiring information whether he, the defendant, would continue the insurance in companies represented by him. In response to this letter the said H. N. W. Hoyt visited said Mayer and informed him that the policies would be renewed; and on July 1, 1896, said Hoyt, acting on behalf of the defendant, brought to said Mayer and delivered to him six policies of insurance, amounting together to $15,000, against loss by fire, upon the said pottery works and the contents thereof. One of the policies of insuranoe so delivered by said Hoyt to said Mayer was policy No. 307,782 of the Hanover Fire Insurance Company (the plaintiff company), dated July 1, 1896, signed by the president and attested by the secretary of the company and purporting to be countersigned by Thomas Bradford, the defendant, as agent of the company, whereby in considera|tion of the premium of $37.50 that company insured J. & E. Mayer and the Mayer Pottery Company, Limited, for the term of one year from July 1, 1896, against loss by fire to an amount not exceeding $2500 to the Mayer Pottery Works, to wit, the pottery buildings and the contents of the same.

4. On the 8th day of July, 1896, the insured mailed a check for $225, the amount of the premiums on said six policies, payable to the order of Thomas Bradford, in a letter addressed to him at New Brighton. On July 11, 1896, this check, indorsed by said Hoyt thus-"For the credit of Thomas Bradford, agent,"-was deposited by Hoyt in the defendant's bank to the credit of the defendant, as agent, in his bank account, as agent. The check was paid by the drawee to the bank.

the defendant knew of this prohibition. Long before July 1, 1896, the defendant had received instructions from the plaintiff company through its proper officers not to insure potteries.

6. Said policy No. 307,782 was not countersigned by the defendant personally but said Hoyt counterstgned the policy for and in the name of the defendant by writing the defendant's name at the proper place. This he did without authority from the defendant and without defendant's knowledge. Hoyt delivered said policy to Mayer without the defendant's consent or knowledge. The defendant had no knowledge that this policy had been issued until after the fire and loss hereinafter to be mentioned.

has not, however, succeeded in doing this. The evidence establishes that Hoyt was much more than a mere clerk. In fact he was the defendant's sub-agent in the prosecution of the business of the Hanover Fire Insurance Company, the defendant's principal. Hoyt was authorized by the defendant to solicit insurance, to collect premiums, and to deliver policies, and these things he habitually did in the regular course of his employment. Thus the defendant made Hoyt the representative of the insurance company in the transaction of July 1, 1896. In delivering the Hanover policy of insurance on the Mayer Pottery Works Hoyt was apparently acting within the scope of his authority. Under the circumstances the delivery of the policy

8. On October 21, 1896, the said insured property of J. & E. Mayer and the Mayer Pottery Company, Limited, was destroyed by fire.

9. Afterwards suit was brought in the Court of Common Pleas of Beaver county, Pa., at No. 224 of March Term, 1897, by J. & E. Mayer and the Mayer Pottery Company, Limited, against The Hanover Fire Insurance Company (the plaintiff here) upon the said policy of insurance 307,782. On January 28, 1898, upon trial by jury, a verdict therein was rendered in favor of the plaintiffs in the sum of $2529.20, and on February 8, 1898, judgment was entered on the verdict against the defendant therein in the sum of $2529.20 and costs, $43.16. On February 10, 1898, the defendant therein paid to the plaintiffs therein the amount of the judgment and costs, namely $2572.36.

10. Thomas Bradford, the defendant here, was not notified by the Hanover Fire Insurance Company to defend the said suit against the company upon the policy No. 307,782, but at the trial of that action he was called as a witness for the defense and testified.

Upon these facts the court determines the law of the case to be as expressed in the following opinion:

ACHESON, Cir. J. Filed August 12, 1899. As this defendant was not notified to defend the action brought in the Court of Common Pleas against the Hanover Fire Insurance Company on the policy of insurance, he was not concluded by the judgment there, and it was open to him here to show that the insurance company was not liable upon the policy. He

himself. These views are well supported by the authorities: Insurance Company v. Eshelman, 30 Ohio, 647, 657; Bodine v. Exchange Fire Insurance Co., 51 N. Y. 117; Swan v. Watertown Fire Insurance Co., 96 Pa. 37, 41, 42; McGonigle v. Susquehanna Fire Insurance Co., 168 Pa. 1.

This risk was a prohibited one within the defendant's knowledge. It was taken in violation of the instructions he had received from his principal. In consequence his principal has sustained injury. Who shall bear the loss? Now even if the defendant be blameless personally his employee is at fault. I cannot see then how the defendant can escape responsibility for the hurtful act of his own agent done within the apparent limits of his employment. I feel constrained to hold that the defendant's case falls within the general rule that the principal is responsible, civiliter, to third persons, for the acts, even the tortious acts, of his agent, if done in the course of the agent's employment, although the principal did not authorize the acts. or indeed may have forbidden them: Philadelphia & Reading Railroad Co. v. Derby, 14 How. 468, 480. The application of this rule to the case in hand may be placed upon the ground that where one of two innocent persons must suffer from the wrongful act of a third person the loss should be borne by him who put the wrongdoer in a position of trust and confidence and thus enabled him to perpetrate the wrong.

Accordingly, upon the facts and law of the case, as above stated, the court finds in favor of the plaintiff and assesses its damages at twentyeight hundred and three dollars and eightyseven cents ($2803.87).

For plaintiff, A. S. & W. S. Moore and Hice & Hice.

For defendant, John M. Buchanan, J. M. Swearingen and William A. McConnel.

Pittsburgh Legal Journal

ESTABLISHED 1853,

EDWARD B. VAILL, Editors. THOMAS EWING, Jr.,

N.S., Vol. XXX.

0. S., Vol. XLVII.

PITTSBURGH, PA., SEPTEMBER 20, 1899.

Orphans' Court,

ALLEGHENY COUNTY.

Estate of PHOEBE A. PHILLIPS, Deceased.

This practice seems to be in accord with these authorities and should be followed, unless the lien of judgments against decedents and their

1895, P. L. 197, a supplement to the Act of 24th

defendant and his heirs or devisees is unlimited.

In the distribution of proceeds of sale of decedent's real estate among heirs or devisees, certificates as to judg ments against the decedent are necessary for a period of twenty years prior to conversion, unless the decedent acquired title within a shorter period, then for that period. And as to the heirs or devisees from the date of decedent's death, unless that occurred more than twenty years prior to the conversion, and if so, then for that period.

Where an heir of the decedent died so long prior to conversion, that the lien of general creditors on his real

estate expired, unless suit was brought as required by statute, upon certificate of the prothonotary being filed that no such suits have been entered, distribution will be made direct to his heirs, otherwise to his administrator.

The only change the Act of June 18, 1895, P. L. 197, made in the Act of 24th February, 1834, to which it is a supplement, is to extend the limitation of the lien of a judgment against a decedent to a purchaser, mortgagee or judgment creditor of his heirs or devisees, and it is perhaps only declaratory of the law as it existed prior to the passage of the act. It does not limit the lien of the judgment as to the decedent or his heirs and devisees.

ments against decedents, which provides as follows:

"2. All judgments, which at the time of the death of the decedent, shall be a lien on his real estate, shall continue to bind such real estate during the term of five years from his death, although such judgments he not revived by scire facias or otherwise after his death; and such judgments shall, during such term, rank according to their priority at the time of such death, and after the expiration of such term such judgments shall not continue a lien on the real estate of such decedent as against a bona fide purchaser, mortgagee or other judgment creditor of such decedent, or of his heirs or devisees, unless revived by scire facias or otherwise according to the laws regulating the revival of judgments."

Opinion by OVER, J. Filed September 12, 1899. The practice of this court in its requirements as to certificates of liens, when distribution is to be made of proceeds of sales of a decedent's real estate among the heirs or devisees, has been questioned in this case.

This practice has been to require certificates as to judgments against the decedent for a period of twenty years prior to the date of conversion, unless he acquired title to the real estate within a shorter period, then only for that period; and as to the heirs and devisees, from the date of decedent's death, unless that occurred more than twenty years prior to the conversion, and if so, then for twenty years.

purchaser, mortgagee or other judgment creditor of his heirs or devisees, for a longer period than five years after his death, unless revived by scire facias. That this was the purpose of the act is shown by the brief of A. E. Weger, Esq., printed in the Legislative Record, Vol. I, 1895, pages 242 and 243*; and the act is perhaps only declaratory of the law as it existed prior to its passage.

It does not appear in any way to limit the lien of the judgment as to the decedent or his heirs and devisees, nor to limit the lien of a judgment recovered against the heir or devisee personally, after they acquire title to the decedent's real estate.

The present practice as to certificates of liens

must therefore be followed, except, perhaps, in cases where distribution is to be made five years after decedent's death to a purchaser, mortgagee or judgment creditor of the heir or devisee.

The costs of such certificates are frequently burdensome, but until an act is passed limiting the lien of judgments as against the defendant himself, there can be no relief.

Charles L. Phillips, one of the heirs of the decedent, died in February, 1892, long prior to the sale of the decedent's real estate. If there be any general creditors of his estate who have liens upon his share of this fund, it should be distributed to his administrator for distribution to them. But, as there cannot be any unless they have brought suits within the statutory period, upon a certificate of the prothonotary being filed showing that no such suits have been entered, distribution will be made direct to his heirs.

For accountant, J. M. Shields.

The act as orginally presented by Mr. Cotton, then a member of the Legislature, contained after the word "lien," the following words, "owned by him at the time of his death," which were subsequently stricken out.

The brief of A. E. Weger, Esq., referred to in the above opinion, was spread upon the record on motion of Mr. Cotton, the proceedings being as follows:

* Mr. COTTON. Mr. Speaker, For the information of gentlemen of the bar who are members of this House, I would like to have spread upon the record a brief, setting forth the reasons for this legislation, and I offer it as a part of my remarks, which I would like the clerk to read.

It was read by the clerk as follows:

The only changes made in this section are in the addition of the words underscored, which are not in the original section. By the first words underscored, "and owned by him at the time of his death," it is intended to change the law as declared in Nicholas v. Phelps, 15 Pa. St. 36; where it was held, that this section though it speaks of the lien of judgments on the land of defendant at the time of his death, it is to be interpreted as relating to land of which he was seized at the rendition of the judgment; though the land was aliened in the lifetime of the defendant, so that the lien of such judgment was continued by the death of the defendant for five years after such death in the hands of his alienee, without any revival. In Stevenson v. Black, 1 Central Reporter, 353, the Supreme Court followed Nicholas v. Phelps, because this construction had been acquiesced in for thirty-five years, and titles had been acquired on the faith of its correctness, saying, however, that if the statute was now before them for the first time, its proper construction would be a fair question for argument. These cases are not overruled by Long v. Miller, 33 W. N. 495; where MCCOLLUM, J., delivering the opinion of the court says, that this section does not regulate the lien of a judgment against a decedent on land aliened by him; the only question decided or involved, was that the death of the alienee did not continue the lien, and the above remarks of the judge are a mere dictum, di

rectly contrary to Nicholas v. Phelps and Stevenson v. Black.

The only other change is the addition of the underscored words, "or if his heirs or devisees," in the latter part of the section. It has been the general opinion among lawyers, and the law is so laid down in Troubat and Haly's Practice.

And in 1 Trickett on Liens, 245, that a judgment against a decedent ceases to be a lien against his land

as against a purchaser, mortgagee or judgment creditor of his heirs or devisees, after five years, under the authority of Jack v. Jones, 5 Wharton, 321. This case, however, was decided under the Act of one thousand seven hundred and ninety-eight, and SARGEANT, J., in delivering the opinion in this case, says: "I speak moreover of the state of the law prior to the late Act of

February twenty-fourth, one thousand eight hundred and thirty-four, which has made some alterations on the subject. The judgments in the present case were all prior to that act." This question has not come before the Supreme Court since, but in Wiest v. Koons, 2 County Court R. 317, it was held by Court of Common Pleas of Schuylkill county, that the limitation of the lien of judgment against a decedent's real estate, while limited to five years after the death of the decedent as against purchasers, mortgagees or judgment creditors of the decedent, is indefinite as against the heir or his judgment creditors under the Act of February twenty-fourth, one thousand eight hundred and thirty-four, section twentyfive, and it was also said to be an indefinite lien as

against purchasers or mortgagees of the heirs, and that purchasers, mortgagees and judgment creditors have always been classed together in the exception to the general rule as to the continuance of liens. This construction is the correct grammatical construction of the section, and seems to be the correct construction beyond doubt, and in 3 Trickett on Liens, 295, the law is laid down in accordance with the decision in Wiest v. Koons, and contrary to the rule laid down in 2 Trickett on Liens, 245. That the Act of February twenty-fourth, one thousand eight hundred and thirty-four, has made material changes in the law, is also admitted by FURST, J., in Silverthorn's Estate, 2 County Court R. 393; though the question was not decided, it not being necessary to the decision. The proposed amendment places the law as it was declared in Jack v. Jones, and limits the lien of judgments against a decedent's real estate, not only as against purchasers, mortgagees or judgment creditors of the decedent, but also as against purchasers, mortgagees or judgment creditors of his heirs or devisees, to five years from the death of the decedent. As against the heirs or devisees themselves, the proposed act makes no change in the law. A. E. WEGER.

Court of Common Pleas No. 2,

ALLEGHENY COUNTY.

KEATING LAND CO. v. WETTENGELL.

Formation of corporations-Libaliity for stock subscribed-Failure to carry out the object of forma

tion.

A. subscribed for stock in a corporation to be formed. The subscription paper recited the objects of the corporation. In a suit by the corporation for the unpaid subscription, A. defended on the ground that he was fraudulently induced to sign the paper upon the belief that the objects stated would be carried out, that these