McCully's Estate.

be continued, had absolutely ceased, the contention of the exceptants might have some force and the cases they cite might apply. But where, as here, this work did not cease, but was enlarged, then the gift for that work vested on her death in those who are, continuing the same work in that neighborhood, and the different name under which it is done, under the circumstances, is immaterial.

Here, as in 67 New Jersey Equity, page 652, a grant "to the Scotch Presbyterian Church," succeeded afterwards by the Presbytery of Jersey City, was sustained because the religious work was for the benefit of the people according to the Presbyterian faith and polity.

We cannot sustain the contention that the Act of July 7, 1885, applies, as contended for by exceptants, on the assertion that the gift to the Grace Presbyterian Church is void because it, said church, has ceased to exist; as shown heretofore, the religious work has not ceased to exist, but is carried on in the same community, for the same purposes, and by the same people as under the original name. While the foregoing Act of 1885 is still in effect, Toner's Est., 260 Pa., 49, it is manifest from the reason therein set forth, relating to the Ac! of 1889 and the Act of 1895, that this gift is sustainable, not only because the vesting was legal in the new merged church at testatrix's death, but that it should be sustained under the cy pres doctrine emphasized as being in effect in Pennsylvania under the last-named two Acts. To the same effect is Judge McCarrell's opinion in Harmon v Romberger, 18 District Reports, 486, where, as here, it appeared that the proper name used by testatrix did not destroy the trust, even though the former congregation had disbanded and was no longer in existence. While the gift here is to the church by name, it is well known that its administration will be by the trustees, and the title vests in them for the purpose of religious use. When these trustees of the Grace Church became part of the body of the merged (Waverly) church, and are charged with the duty of administering this fund, it cannot be said that all the rights, duties, and obligations of the Grace Presbyterian Church ceased absolutely upon the date of the surrender of its charter.

For the foregoing reasons the exceptions are dismissed.

Nemeth State Bank v Kaufmann et al.

Pleading and Practice-Affidavit of Defense-Bill of Exchange-Averments -Negotiable Instrument Act of 1901.

An affidavit of defense in an action on a bill of exchange was insufficient to prevent judgment under the Negotiable Instrument Act of 1901 in simply averring that "plaintiff knew" and had "full knowledge of all the facts, etc.," in that plaintiff, being a corporation, it was incumbent upon defendant to name the person acting for plaintiff and stating precisely the circumstances under which the knowledge by plaintiff was acquired.

In re Rule (ex parte Plaintiff) for Judgment Against Defendants for Want of a Sufficient Affidavit of Defense. No. 79 July Term, 1920. C. P. Allegheny County.

A. H. Rosenberg, for defendant.

Calvert, Thompson & Wilson, for plaintiff.

Before MACFArlane, CarnaHAN and BROWN, JJ.

BROWN, J., September 24, 1920.-Plaintiff is a corporation organized under the laws of the State of New York, having its banking house in the City of New York.

Defendants are partners trading as Kaufmann & Gordon Company in the City of Pittsburgh.

Plantiff's action against defendants is to recover $740.12, with interest and protest fees.

Plaintiff's statement of claim in substance alleges:

(1) That on January 8th, 1920, Charles B. Blum executed a bill of exchange:

No..........

"TRADE ACCEPTANCE

New York, January 8, 1920.

To Kaufmann & Gordon Co., Pittsburgh, Pa.

On March 8th, 1920, Pay to the Order of Chas. B. Blum

Seven Hundred Forty 12/100 Dollars

-($740.12/100)

The obligation of the acceptor hereof arises out of the purchase of goods from the drawer. The drawee may accept this bill payable at any bank, banker or trust company in the United States which he may Accepted at Pittsburgh, Pa., on January 8, 1920.

Payable at Pittsburgh State Bank,

Location, Pittsburgh, Pa.

Kaufman & Gordon Co.,

N. Kaufman.

Endorsed.-Chas. B. Blum."

designate.

CHAS. B. BLUM.

(2) That on said 8th of January, 1920, Nathan Kaufmann, of said Kaufmann & Gordon Company, accepted said bill of exchange for said company.

(3) That prior to March 8th, 1920, Charles B. Blum endorsed and delivered said bill of exchange-for value and in the ordinary course of businessto plaintiff.

(4) That on March 8th, 1920, said bill of exchange was presented for payment at the Pittsburgh State Bank, in the City of Pittsburgh, Pa., and payment thereof demanded and refused; whereupon the same was duly protested and notice of presentment, demand, refusal and protest given the drawer and

Nemeth State Bank v Kaufmann et al.

endorser, Charles B. Blum, and the defendant, acceptor, Kaufmann & Gordon Company.

Defendants' affidavit of defense alleges:

(a) "That at the time Charles B. Blum endorsed the bill of exchange to the plaintiff he was in serious financial difficulties and that the plaintiff had refused to give him any more credit and the plaintiff knew of the financial condition of the said Charles B. Blum.

(b) That the trade acceptance on which this suit was entered was given by the defendant to Charles B. Blum in payment of merchandise which the said Charles B. Blum agreed to deliver, but the said Charles B. Blum never delivered said merchandise or any part thereof to the defendants, and there was therefore a failure of consideration for said trade acceptance.

(c) That at the time of the endorsement of said trade acceptance to the plaintiff, the plaintiff knew that it was given by the defendants to the said Charles B. Blum, as aforesaid, and further knew that the said Charles B. Blum never delivered said merchandise, and that he was not in any position to deliver said merchandise to the defendants.

(d) Wherefore defendants deny that the said bill of exchange was delivered to the plaintiff without notice of any defense that the defendants had; but, on the contrary, aver that it was delivered with full knowledge on the part of the plaintiff of all of the facts and circumstances surrounding the giving of said trade acceptance by the defendants to the said Charles B. Blum."

Under Section 56 of the Negotiable Instruments Act of 1901,

"To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith."

The affidavit of defense is insufficient in that it simply avers "plaintiff knew" and had "full knowledge * of all the facts and circumstances surrounding the giving of said trade acceptance by the defendants to the said Charles B. Blum."

Plaintiff being a corporation, it was incumbent upon defendants to name the person acting for plaintiff (W. B. & C. Prod. Co. v Bernard, 48 Superior, p. 547; Building & Loan Ass'n v Sheehan, 29 Superior, 382) stating precisely the circumstances under which the knowledge by plaintiff was acquired (Morrison v Whitfield, 46 Superior, 103).

In Mutual Trust Company v Stern, 235 Pa., 202, the court said:

"The averment (in the affidavit of defense) that the plaintiff agreed to extend the time of payment and renew the discounted notes is insufficient in not stating with whom the agreement was made, or that the party who made the alleged agreement was invested with the authority by the bank to make it." Rule absolute.

Centanni's Estate.

Descent and Distribution-Judgment Note-Directions in Will-Probate.

A claim against decedent's estate was refused where the claim was founded on a judgment note which testatrix directed to be delivered to the payee after the death of the maker. probated even if it could be legally probated, would not entitle the holder to This paper while testamentary in character, but not distribution.

Audit. No. 302 January Term, 1920. O. C. Allegheny County.

Jno. B. Fortunato, and F. A. Ammon, for claimant.

Harry J. Nesbit, for accountant.

MILLER, P. J., November 9, 1920.-This is a claim by the administrator of Alfonso Centanni, a son of testatrix, founded upon a judgment note of which the following is a true and exact copy:

66

And further,..

..after date I promise to pay to the order of Alfonso Centanni, one hundred fifty received, with interest. 00/100 Dollars. Without defalcation, value Attorney of any Court of Record within the United States or elsewhere, to ..do hereby empower any appear for......... and after one or more declarations filed confess judgment against as of any term for the above sum with costs of suit and Attorney's commission of of all errors and without stay of execution and inquisition, and extension upon ..per cent for collection and release any levy on real estate, is hereby waived, and condemnation agreed to and the exemption of personal property from levy and sale on any execution hereon, is also hereby exprssly waived, and no benefit of exemption be claimed under and by virtue of any exemption law, now in force or which may be hereafter passed.

Witness.

hand and seal.

Her

ANND X CENTANNI
Mark

MICHELE LUONGO, Witness
VINCENCO CARNEVALE.

This note, with two others of like tenor and amount made to two other children, but the latter of which are not produced and no claim presented thereon, was received by one M. Luongo with instructions to hold the same and deliver after testatrix's death to the payee, Alfonso Centanni, who died in 1907.

In February, 1918, testatrix made her will which has been duly probated wherein she bequeathed to Rose Centanni, a daughter of her son, Alfonso, a legacy, and also legacies to the holders of the other two alleged notes.

The note on its face seems to be a debt of the decedent; under seal, is not barred by the Statute of Limitations, the date being alleged, but not proven. as about 1904; if this were all payment should be awarded thereon.

But under the evidence, largely offered by the claimant, it must be found to be a paper not delivered to the payee, and intended to be delivered only after the death of the maker; under the proofs it is testementary in character, Frew vs. Clark, 60 Pa., 170; Turner vs. Scott, 51 Pa., 126.

This paper, thus testamentary in character, not probated, and, even if it could be legally probated, dated long prior to the will, is revoked by the later probated will-therefore the claim must be dismissed.

Pleading and Practice

Frost v Patterson, et al.

-Affidavit

Sufficiency—Practice Act of 1915.

On a rule for judgment for want of a sufficient affidavit of defense, a statement or affidavit on information is defective in not setting forth the sources, unless there is the additional averment of expectation to prove the averments "are true and correct as he verily believes" is insufficient.

Prior to the Practice Act of 1915, the failure to deny was not an admission, except in districts where a rule of court so provided. The rule requiring a full statement in the affidavit of claim (or statement), of the averments referred to prevents injustice to the defendant on a rule for judgment, but the reason does not apply to an admission.

Petition for Appeal From the County Court. No. 2288 July Term, 1920. C. P. Allegheny County.

William A. Jordan, for plaintiff.
Griffith & Kennedy, for defendant.

Before BROWN, MACFARLANE and CARNAHAN, JJ.

MacFarlane, J., September 27, 1920.-The first assignments are to rulings that some of the averments in the statement were not denied by the affidavit of defense.

One averment was that the contract was executed by the defendant. He admitted that he was a party to some written contract but was unable to say whether the copy is correct and demands production of the original and proof. This is not sufficient.

The third paragraph was: "Plaintiff is informed and believes and therefore avers that more than $1,000 worth of the capital stock of the said proposed corporation has been sold," etc. This is not denied. The affidavit to the statement is that the averments "are true and correct as he verily believes," without stating an expectation to prove. The only objection to the offer was that the affidavit of defense is a denial. This was properly overruled. One of the reasons assigned for the appeal is that the contract provides that the plaintiff shall be paid out of a particular fund, i. e., "out of the first sale subscriptions of stock," that the defendant denied the existence of any such fund, and the plaintiff in his statement does not disclose the source of his information.

On a rule for judgment for want of a sufficient affidavit of defense, a statement or affidavit on information is defective in not setting forth the sources, unless there is the additional averment of expectation to prove: Eliel v Chamberlain, 48 Pa. Sup., 610. We doubt if this applies to admissions on the trial, under Section 6, of the Practice Act of 1915, P. L. 483, to the effect that every allegation of fact in the statement, if not denied specifically or by necessary implication in the affidavit of defense, shall be taken to be admitted. Before the act, the failure to deny was not an admission, except in districts where a rule of court so provided. The rule requiring a full statement in the affidavit of claim (or statement), of the averments above referred to prevents injustice to the defendant on a rule for judgment, but the reason does not apply to an admission. However that may be, this objection was not made to the offer and it is now too late.

The paragraph of the affidavit of defense was competent as an admission. Admissions in pleading are conclusive and cannot be denied by evidence. The attempt to show the non-existence of a fund was properly excluded, and for the same reason the plaintiff could not be asked where he received the information that more than $1,000 worth of stock was sold.