operation of the general rule in Pennsylvania

1948Bilger v. Great A. & P. Tea Co., 316 Pa. 540 , 175 A. 496 ; Larson et ux. v. N. Snellenburg & Co., 154 Pa. Superior Ct. 63 , 35 A. 2d 540 .

1948Bilger v. Great A. & P. Tea Co., 316 Pa. 540 , 175 A. 496 ; Larson et ux. v. N. Snellenburg & Co., 154 Pa. Superior Ct. 63 , 35 A. 2d 540 .

1948Bilger v. Great A. & P. Tea Co., 316 Pa. 540 , 175 A. 496 ; Larson et ux. v. N. Snellenburg & Co., 154 Pa. Superior Ct. 63 , 35 A. 2d 540 .

1948Bilger v. Great A. & P. Tea Co., 316 Pa. 540 , 175 A. 496 ; Larson et ux. v. N. Snellenburg & Co., 154 Pa. Superior Ct. 63 , 35 A. 2d 540 .

1935Trust Co., 290 Pa. 283, 288 , 138 A. 834 .

1935Trust Co., 290 Pa. 283, 288 , 138 A. 834 .

1934Aside, therefore, from the operation of the general rule that in order to support the plea of former conviction the record pleaded should show that judgment has been pronounced upon the former verdict or plea *208 of guilty, we think the court below was correct in holding that the indictments at the June Sessions, which were then before the court for trial, charged offenses which were so entirely separate and distinct from those charged in the indictments at the May Sessions that, even if sentences had been imposed under the latter, the record thereof would not have furnished a sufficient supp

1934Aside, therefore, from the operation of the general rule that in order to support the plea of former conviction the record pleaded should show that judgment has been pronounced upon the former verdict or plea *208 of guilty, we think the court below was correct in holding that the indictments at the June Sessions, which were then before the court for trial, charged offenses which were so entirely separate and distinct from those charged in the indictments at the May Sessions that, even if sentences had been imposed under the latter, the record thereof would not have furnished a sufficient supp

1932In Bosler’s Est., 161 Pa. 457 , so much relied on by appellants, it is said (page 462) that “In the case of a continuous trust, [compensation for]......the labor, care and responsibility pertaining to the conservation of the capital itself...... are to be deducted from it when the trust expires, or the particular trustee’s relation to it ends.” In Thouron’s Est., 182 Pa. 126, 131 , it is said that “The authorities, particularly Bosler’s Est., 161 Pa. 457 , and Mintzer’s Est., 18 Phila. 98 , recognize the exception of extraordinary circumstances to the operation of the general rule, and when to

1932In Bosler’s Est., 161 Pa. 457 , so much relied on by appellants, it is said (page 462) that “In the case of a continuous trust, [compensation for]......the labor, care and responsibility pertaining to the conservation of the capital itself...... are to be deducted from it when the trust expires, or the particular trustee’s relation to it ends.” In Thouron’s Est., 182 Pa. 126, 131 , it is said that “The authorities, particularly Bosler’s Est., 161 Pa. 457 , and Mintzer’s Est., 18 Phila. 98 , recognize the exception of extraordinary circumstances to the operation of the general rule, and when to

1932In Bosler’s Est., 161 Pa. 457 , so much relied on by appellants, it is said (page 462) that “In the case of a continuous trust, [compensation for]......the labor, care and responsibility pertaining to the conservation of the capital itself...... are to be deducted from it when the trust expires, or the particular trustee’s relation to it ends.” In Thouron’s Est., 182 Pa. 126, 131 , it is said that “The authorities, particularly Bosler’s Est., 161 Pa. 457 , and Mintzer’s Est., 18 Phila. 98 , recognize the exception of extraordinary circumstances to the operation of the general rule, and when to

1932After all, while what appellants rely on is the general rule, back of it and superseding it, wherever applicable, is the principle that “the rule regarding commissions to trustees is, in all cases, compensation” (Harrison’s Est., 217 Pa. 207 ; Riter’s Est., 260 Pa. 168, 173 ), and this is necessarily to be determined by the facts and circumstances of each case.

1932After all, while what appellants rely on is the general rule, back of it and superseding it, wherever applicable, is the principle that “the rule regarding commissions to trustees is, in all cases, compensation” (Harrison’s Est., 217 Pa. 207 ; Riter’s Est., 260 Pa. 168, 173 ), and this is necessarily to be determined by the facts and circumstances of each case.

1930As he is in a sense trustee for all the stockholders and creditors, equity forbids that he should act solely for himself, regardless of the interests of those for whom he is trustee; and in case he prefers his own debt, the burden is on him to show circumstances which raise an equity in his favor, and which take the particular case out of the operation of the general rule.” The same judge speaking for the court in Cowan v. Plate Glass Co., 184 Pa. 1 , said: “If the preferred creditor was an officer, the burden was on him to show that the preference was in all respects fair and conscionable, an

1927It shifted the burden of proof as to this one issue so that the burden rested thereafter upon......defendant......The only question we have to consider is whether the evidence introduced by the defendant was of such conclusive and unimpeachable nature as would have justified binding instructions in its favor......The evidence......is not so exceptional *26 in character as to take the case out of the operation of the general rule as here applied.” In Shaughnessy v. Director Gen., 274 Pa. 413, 416 , where the presumption was of liability on part of a railroad company for injuries to a passenger,

1927It stands as a fact, except as overcome by testimony produced by defendant......[The latter] claims to have established its defense by testimony so conclusive as to justify binding instructions in its favor; but...... the question of the credibility of the witnesses...... still remained for the determination of the jury, under such circumstances.” The opinion continues, “Ordinarily......capricious verdicts are to be cured by the grant of a new trial, and it is only where no dispute appears in the evidence, or in the inferences which may possibly be drawn therefrom, that binding instructions ca

1927It stands as a fact, except as overcome by testimony produced by defendant......[The latter] claims to have established its defense by testimony so conclusive as to justify binding instructions in its favor; but...... the question of the credibility of the witnesses...... still remained for the determination of the jury, under such circumstances.” The opinion continues, “Ordinarily......capricious verdicts are to be cured by the grant of a new trial, and it is only where no dispute appears in the evidence, or in the inferences which may possibly be drawn therefrom, that binding instructions ca

1895In Cox v. Freedley, 33 Pa. 124 , the question again eame before us; the court below thought, as the descrip tion called for stakes on the line of the abutting street, which was afterwards vacated, this demonstrated an intention to limit the grant to the edge of the street, but this court said, applying the rule in Paul v. Carver, supra, the grantee took to the middle of the street: “ That the law, with respect to public highways and unnavigable streams, is the same in respect to the presumptions that arise from grants bounded thereon ; and the general principle is, that there must be a reserva

1895In Cox v. Freedley, 33 Pa. 124 , the question again eame before us; the court below thought, as the descrip tion called for stakes on the line of the abutting street, which was afterwards vacated, this demonstrated an intention to limit the grant to the edge of the street, but this court said, applying the rule in Paul v. Carver, supra, the grantee took to the middle of the street: “ That the law, with respect to public highways and unnavigable streams, is the same in respect to the presumptions that arise from grants bounded thereon ; and the general principle is, that there must be a reserva

1895In Cox v. Freedley, 33 Pa. 124 , the question again eame before us; the court below thought, as the descrip tion called for stakes on the line of the abutting street, which was afterwards vacated, this demonstrated an intention to limit the grant to the edge of the street, but this court said, applying the rule in Paul v. Carver, supra, the grantee took to the middle of the street: “ That the law, with respect to public highways and unnavigable streams, is the same in respect to the presumptions that arise from grants bounded thereon ; and the general principle is, that there must be a reserva

1895In Cox v. Freedley, 33 Pa. 124 , the question again eame before us; the court below thought, as the descrip tion called for stakes on the line of the abutting street, which was afterwards vacated, this demonstrated an intention to limit the grant to the edge of the street, but this court said, applying the rule in Paul v. Carver, supra, the grantee took to the middle of the street: “ That the law, with respect to public highways and unnavigable streams, is the same in respect to the presumptions that arise from grants bounded thereon ; and the general principle is, that there must be a reserva

1895In Cox v. Freedley, 33 Pa. 124 , the question again eame before us; the court below thought, as the descrip tion called for stakes on the line of the abutting street, which was afterwards vacated, this demonstrated an intention to limit the grant to the edge of the street, but this court said, applying the rule in Paul v. Carver, supra, the grantee took to the middle of the street: “ That the law, with respect to public highways and unnavigable streams, is the same in respect to the presumptions that arise from grants bounded thereon ; and the general principle is, that there must be a reserva

1859In the elaborately considered case of Child v. Starr, 4 Hill 369 , overruling Starr v. Child, 20 Wend. 149 , it was held by the court for correction of errors in New York, that lines running to a monument standing on the bank, and from thence running by the river or along the river do not restrict the grant to the bank of the stream: see also the note to Ex parte Jennings, 6 Cowen 536.

1847It is no consequence that a contract was made with and on the credit of one partner alone; for if the acting partner intended it at the time, for the use and benefit of the partnership, the law implies an obligation upon the part of all who are entitled to a share in, the profits. .The rule is thus established for the benefit and protection of those dealing with partners; but it also operates for the protection of those thus associated, for if a less number than all be'sued, it may be pleaded in abatement; Clark v. Holmes, 3 Johns. 146 ; Murray v. Somerville, 2 Campb. 99; Sehermerhorn v. Loine

1847It is no consequence that a contract was made with and on the credit of one partner alone; for if the acting partner intended it at the time, for the use and benefit of the partnership, the law implies an obligation upon the part of all who are entitled to a share in, the profits. .The rule is thus established for the benefit and protection of those dealing with partners; but it also operates for the protection of those thus associated, for if a less number than all be'sued, it may be pleaded in abatement; Clark v. Holmes, 3 Johns. 146 ; Murray v. Somerville, 2 Campb. 99; Sehermerhorn v. Loine

1847It is no consequence that a contract was made with and on the credit of one partner alone; for if the acting partner intended it at the time, for the use and benefit of the partnership, the law implies an obligation upon the part of all who are entitled to a share in, the profits. .The rule is thus established for the benefit and protection of those dealing with partners; but it also operates for the protection of those thus associated, for if a less number than all be'sued, it may be pleaded in abatement; Clark v. Holmes, 3 Johns. 146 ; Murray v. Somerville, 2 Campb. 99; Sehermerhorn v. Loine

1847It is no consequence that a contract was made with and on the credit of one partner alone; for if the acting partner intended it at the time, for the use and benefit of the partnership, the law implies an obligation upon the part of all who are entitled to a share in, the profits. .The rule is thus established for the benefit and protection of those dealing with partners; but it also operates for the protection of those thus associated, for if a less number than all be'sued, it may be pleaded in abatement; Clark v. Holmes, 3 Johns. 146 ; Murray v. Somerville, 2 Campb. 99; Sehermerhorn v. Loine