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McVey v Dallmeyer et al.

and all of its corporate property are in this county and all of its business is conducted here. All of the parties are in the jurisdiction, and counsel for the plaintiff ask leave to amend the bill by adding the averment that the meeting was held in this county and the contract made here. Assuming, as we must, that the statements in the bill are true, the defendants Brown and Carpenter are "dummy directors” and McVey and Dallmeyer own all of the stock, and the actions complained of were Dallmeyer's, who, by the use of stock to which McVey is equitably entitled, obtains control of a corporation. “If visitorial power is not requisite to the relief, the rule as to non-interference should be restricted and not carried further than is absolutely required by universally fixed rules of law; for where possible we should prevent its use as a cloak to cover apparent fraudulent conduct on the part of officers of foreign corporations to the prejudice of Pennsylvania stockholders:” Kelly v Thomas, 231 Pa., 419. The Court of Delaware has no jurisdiction of any of the defendants and the relief through it would be attended with such delay and inconvenience as would practically be a denial of it in an efficient form: Machen v Electrical Mfg. Co., 237 Pa., 212. The Courts of this state have appointed receivers of foreign corporations where the offices, property and funds were in this state: Schmitz v Metalic Co., 11 Dist. R., 444; Flory Mfg. Co. v Bangor Slate Co., 18 Ib., 564, and Arnold v Russell Co., 31 Pa. C. C., 38. The definition of internal management given in Madden v Electric Light Co., 181 Pa., 617, confines the action affecting the complainant in his capacity as stockholder, director, president, or other officer to the act of the corporation, whether acting in stockholders meeting or through the Board of Directors. In these cases, examples of internal management are the enforcement of stock subscriptions and want of fidelity to duty on the part of the directors.

In Madden v Electric Light Co., 181 Pa., 617, the charge was a fraudulent increase of capital and dishonest contracts granting exclusive rights in conduits, i. e., conduct which depreciates the value of plaintiff's stock. Kelly v Thomas, 234 Pa., 419, was a bill to compel an accounting for money alleged to have beegi fraudulently taken from the company. Hogue v American Steel Foundries, 247 Pa., 12, was an action for dividends. These involved internal management.

The ownership of the stock is not dependent on any action of the corporation. The decision of the matters so far discussed in wo way involved the law of Delaware or the by-laws of the corporation. The contest is between individuals who have been conducting a business under a foreign charter. To require an investigation in Delaware of the method by which an individual obtained control of the corporate action would be to use the rule of law as a cloak to cover conduct charged to be in fraud of the plaintiff's rights.

The corporation is a proper party and if the plaintiff obtains a decree for the transfer of the stock, the rest of the case could be conveniently adjudicated. All of the matters involved have a common origin and the bill is not multifarious.

Whether the plaintiff would be entitled to the relief of ouster of the present directors and the reinstatement of the former board is properly for disposition at the trial. Even if we were of opinion that this would be an exercise of visatorial power, it would not require dismissal of the bill. We, therefore, do not attempt to decide that question.

ORDER. March, 8, 1920: Demurrer overruled, plaintiff to have fifteen days to present amendment to his bill, and defendants to have like time to file answer after notice of filing amendment.

In re Concealed Weapons.

Criminal Law Possession-Malicious Purpose-Jury-Act of March 18,

1875, P. L. 33.

Under the rule established in Pennsylvania, while the law of Pennsylvania forbids any person to carry a concealed deadly weapon with malicious intent, and the intent can be inferred by the jury by the possession of the weapon, if the defendant can show that he had a lawful purpose in carrying the weapon and did not intend to use it for any malicious purpose, he would be entitled to be acquitted of the offense.

There is no authority in Pennsylvania that can authorize or permit any one to carry a concealed deadly weapon, Every person carrying one must, under the Act of March 18, 1875, P. L. 33, assume the burden of proving that he carries the same for a proper purpose.

OFFICE OF THE ATTORNEY GENERAL,

Harrisburg, Pa.

March 30, 1920.

Hon. James I. Blakslee,
Fourth Assistant Postmaster General,
Post Office Department,

Washington, D. C.

Sir:

Your letter of the 26th inst. requesting that this Department advise you whether or not under the laws of the State of Pennsylvania, any objection will be made to the carrying of concealed deadly weapons by drivers in the rural motor truck service while actually in charge of the United States mails in this State, has been referred to me.

In reply, would say that the Act of March 18, 1875, P. L. 33, Section 1, provides as follows:

“That any person within this Commonwealth who shall carry any firearms, slung-shot, handy-billy, dirk-knife, razor or any other deadly weapon, concealed upon his person, with the intent therewith unlawfully and maliciously to do injury to any other person, shall be deemed guilty of a misdemeanor, and upon the conviction thereof, shall be sentenced to pay a fine not exceeding five hundred dollars and undergo an imprisonment by separate or solitary confinement not exceeding one year, or either or both, at the discretion of the court, and the jury trying the case may infer such intent as aforesaid, from the fact of the said defendant carrying such weapons in the manner as aforesaid."

Under this Act, the Superior Court has held that a prosecution cannot be sustained unless it is shown that the person carrying the weapon had a malicious intent to do injury. Commonwealth vs. Gallagher, 9 Pa. Superior Ct., 100.

Judge Endlich, in the following case, says:

“The constitution, in art. I, Sec. 22, declares the right of citizens (sce Com, v Papsone, 44 Pa. Superior Ct., 128, affirmed 231 Pa., 46) to bear armis in defence of themselves. With this declaration the Act of 1875 is not in conflict, under the ruling in Wright v Com., 77 Pa., 470. But its consistency with the same is to predicated according to that decision, not only upon the concealment of the weapon, but also the intent, by the use of it unlawfully and maliciously to do injury to another; and whilst the statute authorizes a presumption of such intent from the mere fact of defendant's carrying the weapon concealed upon his person, that presumption is liable to be rebutted

In re Concealed Weapons.

by proof: Com. v McNulty, 6 Phila., 610. Such proof, of course, may be direct by evidence of the party himself as to his reasons for carrying the weapon; and it may also be circumstantial, by evidence of facts negativing the existence of any wrongful purpose on his part, or raising a presumption to the contrary." Commonwealth v Sweitzer, 21 Dist. Rep., 807. But it has been held in the following case that a policeman may be convicted of carrying concealed weapons:

“The defendan't herein, who had recently been acquitted of the charge of murder, was tried for assault and battery with intent to kill, and carrying a concealed deadly weapon. In support of the latter charge, it was shown that the defendant, a police officer, having been relieved from duty, went to the house of the prosecutors, and in the course of a personal altercation, drew from beneath his coat a pistol, with which he beat them. His counsel contended that there could be no conviction on this indictment, because the defendant was armed by the public, as a conservator of the peace, and was required by his office to carry the weapon.

The court held that the offence of carrying a concealed deadly weapon could be committed by a police officer, as well as by a private citizen; the difference being, that a private person was presumed to carry it for an unlawful purpose, while an officer was presumed to have it for a lawful purpose, either presumption being liable to be rebutted by proof.” Commonwealth v McNulty, 8 Phila., 610.

The rule established by the above cited authorities is that, while the law of Pennsylvania forbids any person to carry a concealed deadly weapon with malicious intent, and the intent can be inferred by the jury by the possession of the weapon, if the defendant can show that he had a lawful purpose in carrying the weapon and did not intend to use it for any malicious purpose, he would be entitled to be acquitted of the offense.

There is no authority in Pennsylvania that can authorize or permit any one to carry a concealed deadly weapon. Every person carrying one must, under the above law, assume the burden of proving that he carries the same for a proper purpose. We might suggest, however, that your Department could direct that the rural mail carriers carry a weapon, and that such direction could, in case the mail carrier was arrested, under this law be shown by him to rebut the statutory presumption of his unlawful intent.

Very truly yours,

WILLIAM I. SWOOPE,

Deputy Attorney General.

Quartz v Oakmont Motor Boat Co.

Certiorari-Judgment -Improper Service-Time for Issuing Writ-Act of

March 30, 1810.

If judgment be recovered before a magistrate without service of the summons or notice of any kind that suit had been entered, the Act of March 30. 1810, does not deprive the defendant of the right to a writ of certiorari after twenty days from the date of judgment. But to obtain relief the writ must issue within twenty days after notice of the judgment, otherwise defendant cannot get relief because of his own laches.

Certiorari. No. 2008 October Term, 1919. C. P. Allegheny County.

William H. Leahy, Jr., and Thomas M. Marshall, Jr., for plaintiff,
Patterson, Crawford & Miller, for defendant.

Before SHAFER, P. J., and CARPENTER, J.

99

CARPENTER, J., March 24, 1920.–The constable's return is:

"Served the within writ March 20, 1919, upon the within named derendant, William Quartz, by handing a true and attested copy thereof to the clerk in charge of his office, making known the contents thereof, he not having any known residence.”

The summons was in assumpsit and was returnable March 25, 1919. At the hour appointed the cause was heard and judgment entered against the defendant for $60 and costs.

And execution was issued May 5, returnable May 26, and returned May 14, 1919, “money made."

The certiorari was issued September 23, 1919.
The exceptions are as follows:

“The record shows that no proper service was made upon the plaintiff is error."

"The record does not show that the constable making (serving) the summons served any one authorized to accept service for the plaintiff in error, and that the service made was not upon such a person as is contemplated by the service of process act.”

“The record does not show that the coustable who served the summons had sufficient information to support the return, to wit, that he could not serve the plaintiff in error because he had no fixed residence."

Conceding the defects apparent on the face of the record, and the consequent absence of jurisdiction, counsel for defendant in error call attention to the fact that judgment was entered March 25, 1919, and the writ of certiorari not sued out until September 23, 1919; and to the Act of March 20, 1810, providing that "no judgment shall be set aside in pursuance of a writ of certiorari unless the same is issued within twenty days after judgment was rendered."

It was long since decided that the twenty day limitation does not apply to cases in which the Justice has no jurisdiction. In the case at bar the justice had jurisdiction of the subject matter, but the defendant was not legally summoned. To be of any avail the writ of certiorari must be taken within a reasonable time. It follows that the burden of showing when he first ascertained that judgment had beeni entered against him rests upon the plaintiff in error. Testimony was taken showing that he left the city March 19, 1919, on which date he started to Florida, and did not return until April 25. He was asked when he first learned or received notice that a judgment had been entered and replied that he never received notice. He said the first information he had was that a man had purchased his boat

Quartz v Oakmont Motor Boat Co.

and wanted to buy some fixtures for it and fixed the date of the conversation "the latter part of June.”

This conversation was by 'phone.' Being further interrogated, he replied

"I found out who the mag was and where he had—and tried to find out where he had the boat and how he got it."

He said he continued to inquire about the boat for four or five weeks and was then called up by another man who said he had bought the boat and wanted the fixtures, and that he immediately placed the matter in the hands of his attorneys. He further testified his attorneys were absent on their vacation during July and August and that he made an effort to reach them.

Beginning with the entry of judgment the important dates are as follows:
March 25, 1919, judgment entered.
April 25, 1919, defendant returned to city.
May 5, 1919, execution issued.
May 14, 1919, execution returned “money made."

June (latter part) learned the boat had been sold. Made inquiries about the boat for four or five weeks and was then called by another party who said he had bought the boat.

September 23, 1919, writ of certiorari issued.

On re-direct examination he testified that when he left for Florida his boat was in the storage house of the Oakmont Motor and Boat Company and that he assumed it was still there when he returned. On cross-examination he was asked if he called the boat company after receiving the telephone message that another party owned the boat and replied, “No, sir.” Inquiry of the Boat company would have discovered the facts.

A party may not purposely or negligently remain ignorant when it is his duty to act promptly, or within a fixed statutory period, and escape the consequences of non-action.

Mr. Quartz knew before he left the city the Boat Company was insistent in its demands for paymezit of storage charges; he knew in the latter part of June that his boat had been sold. It is not made clear by the testimony when he first learned that a judgment had been entered against him. In answer to the question by his counsel, “Did you receive any notice whatever of any judgment or intended suit until June of 1919?" he replied, “No, sir," On cross-examination he was asked, “You say the first time you received notice of a judgment against you was when the man called you up who purchased the boat-is that correct?” and replied, “Well, I didn't have any then of a judgment against me. I knew somebody had bought my boat."

If judgment be recovered without service of the summons or notice of any kind that suit had been entered, the Act of 1910 does not deprive the defendant of his right to a writ of certiorari after twenty days from the date of judgment. But it is well settled that to obtain relief the writ must issue within twenty days after notice of the judgment. And it is held that the burden of proving by parol the time of notice rests upon the party who seeks to escape the statutory limitation.

Defendant has not furnished satisfactory proof that he was not guilty of laches.

The judgment is affirmed.

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