Judges： Handley, Pee
Filed Date： 12/26/1879
Status： Precedential
Modified Date： 10/18/2024
Opinion of the Court below by
The plaintiffs in these proceedings complain and say, of the defendant, that the defendant is a corporation, and that she has her chief place of business in the City o'f Scranton, County of Lackawanna; that the business of said defendant corporation was to receive money on deposit from all persons who should offer the same; that for the security of the depositors, the said corporation was required to raise and form a capital of $100,000, the same to be divided into shares of one hundred dollars each, and one-tenth thereof to be paid in before the said corporation should commence business; that by law the said corporation could only hold such real estate as should be requisite for the accommodation and convenient transaction of her business, and such other real estate as she might find ne
That at a meeting of the stockholders, held at their banking house, in the City of Scranton, on the 21st of January, 1879, it was resolved to go into immediate liquidation, and the officers of said corporation were instructed to take immediate steps to that end; whereupon II. S. Pierce, President, and H. B. Phelps, Secretary, published an address to the depositors of said corporation, setting forth that over two-thirds of the stock being represented and three-fourths of the stockholders being present, it was recommended that such action he taken as shall put the company in liquidation at the earliest possible moment, and thereupon a resolution was passed putting the company in liquidation. The resources, it was alleged, amounted to $777,573.31, and its liabilities, was alleged, amounted to $699,541.61. Thus showing an excess over liabilities amounting to $77,771.69.
That the said H. S. Pierce and II. B. Phelps, having full knowledge' of the resources and liabilities of said corporation, and well knowing her hopeless insolvency and inability to pay her depositors and creditors upon demand, unlawfully, fraudulently, and wickedly continued, for the space of two years previous to the 21st day of January, 1879, to receive deposits from the plaintiffs and her creditors, and that thereafter, they did, wrongfully and with intent to keep ignorant, mislead and deceive, utter and publish, as true, an address to the plaintiffs as aforesaid, at a time when they well knew that said Trust Company’s liabilities were more than $275,000.00 'in excess of her re
The complaint further avers, that the said Trust Com
That the said H. S. Pierce, the person selected and chosen as assignee of said Trust Company, should be removed. First, because he is a stockholder in said Company, and as such, is liable as a debtor to the depositors and creditors thereof for fifty per centum of the amount of stock he holds therein. Second, because he is a director in said Trust Company, and as such director is jointly and severally ancl personally liable with the other directors thereof to the depositors, after their remedies against, the said Trust Company shall have become-exhausted. Third, because he is President of said Trust Company, and as such is subject to criminal prosecution and liable to be deprived of his liberty. Fourth, because the said II. S. Pierce has not within thirty days from the date of the assignment, filed, in the office of the Prothonotary of the Court of Common Pleas of Lackawanna County, an inventory or schedule of the estate and effects assigned, with his affidavit as required bylaw; and fifth, because the said II. S.
That the effects and property of the said Trust Company, consisting of real estate, stocks, bonds, mortgages, judgments, notes, bills of exchange, drafts, stamps, checks, safes, furniture, books and other matters, are worth, as valued by the appraisers appointed for that purpose, only the sum of $348,200.62. That said Trust Company, by reason of mismanagement and improper investments, has become hopelessly insolvent and unable to pay her debts, aud had, at the time of her assignment, an indebtedness amounting to $699,541.62. And the plaintiffs further aver, that the said company is indebted to them personally for moneys deposited with her as follows, namely: Maurice Clark, $2,250.00; Edward Craig, $1,150.00; Patrick Kearney, $890,00; Owen Cafferty, $1,000.00; Catherine Atkinson, $290.00; Daniel Atkinson, $1,465.00; John Lar-kin, $205.'61; William Kogan, $360.00; and Mary L. Jones, $460.00. That the nature and character of the effects and property of the said Trust Company are such as require the immediate attention and care of a receiver; that delay, such as will inevitably follow the appointment of an as-signee in the interest and sympathy of the officers and stockholders of the defendant, cannot result otherwise than in disaster and loss and irreparable injury to the depositors and creditors; and that the nature and character of the assets are such, that if they be not disposed of at once, the loss will be far greater than if their sale were deferred for a better price. That unless the deed of assignment made by the defendants to the said II. S. Pierce should be decreed by the Court to be null and void and revoked, and the said Trust Company, her officer’s, attorneys, agents, servants, and assignees be restrained from proceeding under the said assignment, and a receiver appointed to take full charge and management of the effects and property of the said company, the remaining assets will be squandered and wasted and irreparable mischief and wrong done to the plaintiffs. The plaintiffs therefore pray:
First — That a decree may be made by the said Court
Second — That an injunction may be granted enjoining and restraining the President, directors, cashier, assignee and othei officers and agents of said Trust Company from exercising any of her corporate rights, and from collecting or receiving any debts or demands, and from paying out or in any manner transferring or delivering to any person or persons, than to such receiver as may be appointed, any moneys, property or effects of said Trust Company.
Third — That the said Trust Company may be enjoined to deliver to the receiver, to be appointed, all effects, property, title deeds, books, evidence of debts, mortgages, judgments, hills, notes, checks, stamps, money and securities of every description and nature whatever in her or their custody, or in the custody and keeping of any other corporation, person or persons for her or them.
Fourth — That a preliminary injunction may be granted enjoining and restraining the said Trust Company, her president, directors, officers, cashier, clerks, agents, assig-nee or other officer from exercising any of the powers given her, them, or any of them by law.
Fifth — That upon final hearing the said preliminary injunction may be made perpetual.
' Sixth — That a suitable person may be appointed a receiver to take charge of the effects, sue for and recover debts and demands that may be due her; to dispose of the realty, effects, property, bonds, stocks, obligations, and other securities of every character whatever for the best price or prices that can be obtained for the same; and with the moneys and effects collected and made, to pay and satisfy pro rata the several depositors and creditors of the said Trust Company, and that the said receiver may have the same power, authority, obligations and duties incident to receivers appointed in cases of dissolution of partnership.
Seventh — That the plaintiffs may have such further and other relief in the matters aforesaid as the nature and circumstances of this case may require, &c.
On the 24th of May, 1879, when this motion was argued, H. S. Pierce, the President of the Trust Company; by-way of answer filed his affidavit, setting forth that he was formerly President of the said Trust Company; that he was present at a meeting of the stockholders, held at the hank-ing room of said bank, on the 12th day of April, 1879, when it was decided to be for the best interest of depositors and other creditors that an assignment of all the real and personal property be made, and the directors were authorized to make such assignment; that they did make the same, which said assignment was duly recorded within thirty days thereafter in the office for recording deeds in Lackawanna County; that said assignment was made to him in accordance with a resolution of the Board of Directors, authorized, by a vote of a majority in number and interest of the stockholders. That appraisers were appointed by the Court, and that he caused to be made a true and correct inventory of the real and personal property of said Trust Company, which was filed in the Proth-onotary’s office; that he expected to append to said inventory his affidavit of its correctness, but that the appraisers filed the same without giving him notice thereof; that when he learned the inventory was filed he ordered a bond to be drawn by his counsel, and the same was drawn, but on account ot the absence of two of his sureties he was unable to procure the signature of all the sureties thereto; that the signatures of said parties will be obtained as soon as possible and the same will be offered for approval; that he has caused another schedule to be made from the books of the bank, attached his affidavit to the correctness of the same, and filed it with the Prothonotary of said county.
That he firmly believes that the assets of said bank are largely in excess of the liabilities thereof; that he did not receive any deposits, nor knowingly allow any clerk or agent to receive deposits, knowing the insolvency of said bank; nor did he publish or make any statement wrong-
The affidavit of Mr. George L. Dickson shows that he is a stockholder of said bank to the extent of fifty shares;
The affidavit of Hon. Lewis Pughe shows that he is of the firm of Monies & Pughe, and that they are creditors of the Trust Company to the amount of $1,420.64; that he is informed that Ii. S. Pierce has been made assignee of said bank for the benefit of creditors, and believes he is the proper person for said trustee; that the suspension of said bank was not caused by mismanagement, nor by any wrongful acts of her officers, but said suspension and present insolvency has been caused by the financial troubles, failures, and depreciation of property during the last six years.
The affidavits of P. W. Luce and W. P. Storrs are to the same effect. The affidavit of H. B. Phelps, Secretary and Treasurer of said Trust Company, and the affidavit of L S. McHulty, book-keeper, sustain the affidavit of II. S. Pierce.
There are several very important questions involved in these proceedings. But under our present view of this case, there are only two questions that we are called upon to decide at present, namely:
1. "Whether the assignment made by the Trust Company is valid in law?
2. Whether an insolvent bank can make an assignment of the property of the bank to the President and director thereof?
The last question we will take up first: That Mr. Pierce can not be the assignee of the Trust Company there can bo no doubt. The plaintiffs’ bill of complaint, if true, shows that Mr. Pierce may be liable criminally for acts while acting as director and president, of omission and commission.
Then again, under the charter of the Trust Company as
In the case of Gunkle’s Appeal, 12 Wright 13, where the Lancaster Bank made an assignment, and the creditors attempted to charge the assignee, who, by the way, was an officer of the bank, fpr not enforcing the individual liability of the stockholders, the Supreme Court held that by the general assignment these liabilities became vested in the assignee, who was bound to collect them, as well as any other assets of the institution. In this case the validity or the efficacy of the assignment or of this appropriation of the property of the bank was not contested by either the stochholders of the bank or creditors of the institution, but in behalf of certain creditors repeated efforts were made to use the agency of the trustee for the enforcement of the liabilities imposed upon stockholders. But the assignee always' obtained leave of Court to discontinue such cases as were brought in his name.
How, in the eyes of the law, how can “A” bring action against “A?” and if that cannot be done, how are the depositors of this bank going to be protected ? 1 he present assignee certainly will not doit; because it was under» his administration the bank became insolvent and the depositors met their misfortune.
This institution was incorporated by Act of Assembly approved the 15th of April, 1869; P. L. 1869, p. 961. The second section empowers her to receive on deposit from all persons any sum of money. Such deposits to be paid to such depositors with interest in lawful money when / equired during business hours. It may be conceded that the Trust Company for some period of time prior to the closing of business and the making of the assignment, was not able or in a condition to comply with this part of her charter. She therefore went into liquidation. This of course, she had no authority to do, unless the depositors were paid in full. Discovering that she was acting outside of her charter, the assignment in question was made. Corporations may make assignments for the benefit of creditors,
The banking laws of our State are so intermixed by new acts and the supplements thereto, that it requires great research to be able to point out the several kinds of banks and banking institutions intended and allowed to be created and do business in Pennsylvania.
In the case of the First National Bank of Clarion vs. Gruber, 9 Pittsb. Leg. J., 97, Agnew C. J., after the Court alid agreed upon the opinion to be delivered in that case, gave his reasons in extenso why he concurred. He said: “If we examine the legislation of this State on the subject of banks, it will be found that only those known as “banks” or “bank institutions,” in the language of the laws, are banks of issue. * * * When we read the act of 1850 we find it to be almost a repetition of the acts of 1814 and 1824. Many of the sections are nearly exact transcripts. All the banks since chartered by special acts are subject to the provisions of this act. The very language of the section (5), as well as the subsequent provision to which it refers, make it evident that it was intended to apply only to banks or banking institutions having the power to issue circulating notes as money. These provisions, and many others, in the fundamental articles are wholly inapplicable to savings and deposit banks. He then adds: “I am, therefore, clearly of opinion that the general bank act of 1850 does not embrace savings and deposit banks.” Now it is well understood that the most learned judge may concur in ,an opinion of a full bench without giving his reasons, and be right; and he may concur and give reasons,and his concurrence will be correct, whilst his reasons may be faulty in many particulars.
What banks did the chief justice mean when he referred to “savings and deposit banks” and “savings deposit institutions?”
There are in the eyes of the banking world throe kinds of banks, namely: Banks of deposit, banks of discount, and banks of circulation. The purpose an.l agency of a
But it is well known that in Pennsylvania there are only two kinds of banks. One is known and treated under the general head or term of “Banks.” The other under the general head or term “ Savings Institutions.”
To which of these two moneyed corporations was it intended the concurring remarks should apply
If they were intended for “ savings institutions” then the reasons given are correct. Savings institutions must have been intended, because the learned judge adds in his concur ling reasons: “I venture to say no one familiar with the legislation of the State has ever thought the act of 1850 applied to these minor institutions until pecuniary astuteness developed the idea.
How it must be borne in mind, the question before the Court in the Gruber case was the right of a State bank to charge and receive more than six per cent, interest. Under the act of 1839 it is declared that “ it shall not be lawful for * * * saving institutions within this Commonwealth to charge or receive as interest more than the rate of six per cent, per annum on the sum loaned or discounted. 1 Purd, Dig. 154, § 151; Savings and Loan Co. vs. Conover, 5 Ph., Rep. 21. These were the minor banks intended to be guarded against, so that no astuteness might be able to evade or overcome this prohibitory clause concerning interest.
We find, however, in the statute creating the Trust Company much stronger reasons for holding that this bank falls under the institutions intended to ho governed by the
The second section of the act incorporating the Trust Company, after stating the purpose of the act, adds these words: “and to transact any other business transacted by banks in this Commonwealth.” This is certainly broad enough to authorize and warrant us in locating this bank in the family of banks intended, in certain cases, to be closed up under the acts of 1822 and 1850; aud not to locate her in the family of savings or deposit institutions intended to be controlled by the act of 1839.
The Trust Company not alone received savings deposits, but also business deposits. In other words, she did a general banking business, such as transacted by banks in this ¡State.
A bank is defined to mean a place of deposit for money. 2 Potter’s Corp. 529, § 445; Morse on Banking, XXXVII.
A savings bank is defined to be any institution in the nature of a bank formed for the purpose of receiving deposits of money. Grant on Banking, 614.
If it is once established that there is no law in Pennsylvania under which proceedings may be commenced against insolvent banks by the depositors, and that there is no way to enforce the personal liability of the officers for their ac:ts of omission or commission, then the quicker that fact is called to the attention of the Legislature the better it is for every citizen of this Commonwealth.
If the banking laws of this State do not apply to the tfiato banks now doing business, then all that a dishonest man may do is to dress well, put on a pleasant smile, be kind to the people, attend all of the different churches,and gather in, by so d> lug, a million or more of the people’s mono}', and when lie finds that the tide of prosperity is receding, and the depositors have commenced to withdraw their deposits, simply announce “liquidation” aud close in on about one-lialf million dollars, and when asked for the payment thereof, respond in the most haughty m inner, “Get your money the best you can. Law me if you want
How it was not the intention of the law-making power of this State to allow a man of this make-up to obtain the people’s money and then refuse to pay it back. How else can depositors enforce their rights except only as the 38th, 39th, 40th, 41st, 42d, 43d, 44th, and 45th sections of the act of 1850, and the 1st and 2d sections of the act of 1867, allow them ?
Is not the act of 1867 (1 Purd., Dig., 149, § 123-4) clear beyond doubt applicable to the -banks now doing business in this State ? That act declares that “wheneverany bank now or that may hereafter be incorporated under any law of this Commonwealth, shall be declared fraudulently insolvent, either by the report of the auditors or the verdict of the jury, upon an issue framed by direction of the Court.”
How who are these auditors ? and where do they come from ? Why, they are the very auditors provided for by the 43d section of the banking laws of 1850. 1 Purd., Dig. 140, § 120. And where does the verdict of the jury come from ? Why, in the manner pointed out by the 45th section of the same banking laws. 1 Purd., Dig. 149, § 122. Who can truthfully say that when the act of 1867 was passed there was a State bank in all Pennsylvania issuing or circulating her own notes, or any other State bank notes ? And the presumption is, that t-his fact was fully known to each member of the Legislature. Why then pass the act of 1867, unless it was intended to apply to all banks then and noio doing business in this State ?
Again, the banking laws of 1822 and 1850, and 1867 must apply to all banks in this State, because, in the case of Burkholder vs. Beetems, Adm. 15 P. F. Smith, 496, it was held, where a cashier of the deposit bank, not a bank of issue, had sold certain stock there could be no recovery, the sale having been made by such cashier in violation of the banking laws of 1850. In the case of Young vs. Robertson, 6 Ph.. Rep., 184, Judge Sharswood again applied the hanking act of 1850.
The first section of the banking laws of Pennsylvania, 1 543, 1 P. D. 146 § 204, provides that “ The board of directors of any banking company incorporated by any law or laws of this Commonwealth, or twenty stockholders thereof, being together proprietors of one-tenth part of the capital stock actually paid in, may at any time call a general meeting of the stockholders of such company, for the purpose of inquiring into the expediency of selecting fi ve trustees to close the business of said institution, giving such notice of the same as is required for' general meetings of their stockholders under their act or acts of incorporation, and specifying in such notice the object or objects of such meeting ; and if pursuant to such notice a majority of the stockholders, being together proprietors of one-half or more of the capital stock actually paid in,' shall assemble at the time and place required by said notice, and shall determine to close the concerns of said institution, they shall proceed to elect five trustees, which election shall be conducted in all respects in the same manner as the elections of directors are required to be conducted by the corporate provisions of such institutions, and the law to regulate, proxies passed the 28th day of March in the year of our Lord 1820.” This section of the Banking law was once attacked, upon the ground that it was unconstitutional. But it was held to be constitutional; Bleakney vs. Farmers’ and Mechanics’ Bank, 17 S. & R. 64.
The deed of assignment made by the Trust. Company to Mr. Pierce show's, that “ whereas, at a meeting of the
The first section of the Banking law of Pennsylvania provides, that “Kvery banking corporation hereafter created by any special act of the General Assembly, and every bank hereafter rochartered, or the charter of which shall be hereafter extended or renewed by any such act of Assembly, shall be subject o the provisions of this ad.” Purd. Dig. 128, § 5. It will be borne in mind that the Trust Company was created by special act of the General Assembly, and hence is subject to the Banking laws of 1850. When a bank like the Trust Company has been so mismanaged that she is unabte to pay her debts, it is the auty of all parties concerned, to follow the laws providing for cases of that nature. What are the laws ? The 24th section of the Bank laws provides that, “ If any such Bank shall at any
1. For the purpose of suing and being sued, and for continuing all suits and proceedings at law or in equity, pending for or against the bank.
3. For the purpose of citing the said trustees to account .and compelling them to execute the said trusts.
4... For the choosing of directors for the purpose of receiving and distributing among the stockholders of the said bank such surplus as shall remain after discharging all the. debts, of the bank.”
The 28th section of the act of 1850, 1 Purd., Dig. 145, § 102, provides that “it shall be the duty of the said court, or any Judge thereof,'on application and proof as aforesaid, if-it-shall be deemed necessary for the protection of the parties-interested,-to issue an attachment commanding the Sheriff * '-‘x' forthwith to seize and take possession of the -banking-house books, moneys, deposits, papers and effects thereof, and -to deliver the same to the trustees when 'legally-authorized to receive them;aud if the-directors -shall-not within ten days thereafter make an assignment ás-hereinbefore provided, the trustees appointed by the court shall by-operation of law be vested with the same rights and powers as if such assignment had been made. Provided, ' That no. person shall be appointed a trustee under this act who is a director or other officer of the bank, or who lias been so one year preuious thereto.”
It will thus be seen that the plaintiffs in this case have not proceeded as the law directs, no more than did the defendants. Whenever a bank such as the Trust Company desires' to make a voluntary "assignment for the purpose of winding up the affairs of the bank, they may do so under the 29th section of the act bf 1850, 1 Purd., Dig. 145, § 103. This section provides that “it shall be lawful for the directors of every bank, whenever it may be deemed expedient .by a majority of the stockholders ill number and interest ’to wind up the affairs of such bank, to make a general as -s-ignment of all the estate-, real and personal, of the bank, subject to the conditions and provisions relating to assign-
Now the 27th section, 1 Purd., Dig. 145, § 101, provides that such, “assignment shall be recorded in the office of the Recorder of Deeds, of the proper county within thirty days from the execution thereof; the said assignee or assignees before entering on the duties of their office, shall take, and subscribe an oath or affirmation to execute the trusts con. tided to. them with.fidelity,, which oath-or affirmation shall he filed-in the office of the Prothouotary of the proper county, and shall give such security as the said court may deem' amply sufficient to secure the faithful execution of said -trust; they shall proceed to sell at public sale all ■ the real and personal- estate of the said bank, and shall collect all the outstanding debts, .and for this purpose may use the corporate-name of the bank. 1 rovided, however, That the said assignees-shall once.in-every six .months file an account of their receipts and disbursements in the office of the Prothouotary of said court verified by. their oath or affirmation; -they shall, at least- .once, in every six months make a pro rata dividend oí the balance in their hands among the creditors of the bank, who shall in pursuance of ¡public notice.given in such manner and form as shall be directed by the court, have made claim and delivered up the evidences of their claims, if such evidence be in writing, to the said -assignees, and receive from the said assignees a certificate .stating particularly the nature of the claim and the amount thereof.”
We have, .therefore, under the banking laws of this Commonwealth, two modes pointed out for closing out the affairs of insolvent banking . institutions. One under the act of -1822 gives the board of directors absolute control of the affairs of s-uch bank by the selection of five trustees as directed by this statute. The other, under the. act of 1850, gives- the depositor the right to proceed against the bank, and then if the directors fail to make an assignment within ten days thereafter, the trustees appointed by the court shall by operation of law be vested with the same rights •■•and powers1- as if sue-hassignment had been .made. .
The law is, that in all cases where a i-emedy is provided, or a duty enjoined, or anything directed to be done, by an act or acts of assembly of this Commonwealth, the directions of the said acts shall be strictly pursued. 1 Purd., Dig. 58, § 5.
If it was the intention of the officers of this Trust Company to allow the depositors the right to obtain their money in the near future, or so much thereof as the assets will allow, then, when liquidation was agreed upon as the only remedy left, and insolvency discovered, it was the duty of such officers to follow the statutory mode pointed out in cases of this nature. And on the other hand, if is is the intention of the depositors to obtain their money in the manner pointed out to them by the law, then it is their duty to follow up with vigor the statutory remedies provided for depositors of a bank in the position of the Trust Company’s depositors. The injunction now out will protect their money and prevent any further loss, but that injunction will not restore the money thus lost or tied up.
In Pennsylvania, as the law now stands; except under the act of 1861, 1 Purd., Dig. 120, § 22, and the act of 1876, P. L.; 1876, 179, § 27, we have no power or' authority in cases growing out of the insolvency of banks by mismanagement' or otherwise, to appoint, a receiver. That power we may and often do exercise in cases growing out, of the insolvency of corporations or persons. But while banks created and doing business under special or general statutes, are no doubt corporations for certain purposes, they are not, in the eyes of tbe law, corporations for all purposes.
We are not called upon now to say anything of or concerning the administration of the affairs of this bank, nor need we now say anything of or concerning the crimes charged under oath in the plaintiff’s bill of complaint, against the officers of this institution. The questions growing out of the charges thus made, will no doubt come
It is sufficient to say however, that a great wrong has been wrought upon many a poor man, upon many a poor widow, and upon many an orphan, who confided their little all to the integrity and honesty of the Trust Company’s administration. The quicker that wrong can be righted, either by the officers of this institution, or by the Judges of this Court, will man’s confidence in man be restored.
The injunction we heretofore allowed in this case will have to be continued, so as to prevent any further waste of the money of the depositors, until such time .as legal trustees are selected and appointed, as the banking laws require.
We, therefore, order and direct, the injunction hereto-iore granted, continued until the further order of the Court, subject to the modifications heretofore made to allow the President or assignee of said institution to protect the interests of said institution.
Assignments of error. (S. B. Price). The court below erred,
First, In holding that H. S. Pierce could not be assignee of the Scranton Trust Company and Savings Bank : Green’s Brice’s Ultra Vires, 124, 401 and 402 ; A. & A. on corporations, 163 and 209 ; Dana vs. Bank U. S., 6 W. & S. 246; Bank of S. vs. Bank of K., 1 Parsons 235 ; 1st Perry on Trusts 27 and 28; 1 Daniel’s Chan. Pl. and Pr. 578; Com. vs. W. T. P. R.Co., 11 Casey 152.
Second, In deciding that said bank was not a savings institution : P. L. 1839 p. 515; P. L. 1834 p. 181; P. L. 1869 p. 961; First National Bank of Clarion vs. Gruber, 9 Pitts. L. J. 97; Potter’s Dwarris on statutes 110-182; P. L. 1854, p. 468.
Third, In deciding that the said bank was subject to the provisions of the act regulating banks, &c., approved April 15, 1850: Read vs. Robinson, 6 W. & S. 329; Seal vs. Duffy, 4 Pa. S. R. 277; 1st Perry on Trusts 2, 300 and 311;
Fourth, Fifth and Sixth, In issuing and continuing the injunction: Dull vs. Hall, 1 Phila. 258; Machette vs. Hodges et. al., 1 Brewster 313; Noble vs. Becker et. al., 3 Brewster 550; Carpenter vs. Burden, 2 Parsons 24; High on Injunctions 24 and 25; Stine vs. Atkins, 1 Leg. Chron. 41; Reeves vs. Cooper, 1 Beasley N. J. C. R. R. 223; Kennedy vs. Burgin, 1 Phila. 441; Lowry vs. McIlvain 8 Phila. 278; Pfund vs. Berlinger, 9 Phila. 548.
Appellees cite the following authorities in their counter argument (J. H. Campbell.):
First, Beans vs. Bullett, 7 P. F. Smith 229; Balance et al vs. Miners Life Insurance Co., 6 Wright 444.
Second, 1st Bouvier 156; 2 Potter Corp. 529 Sec. 445; Morse on Banking, Chap. 38; P. L. 1869, p. 961. Sec. 2.
Third and Fourth, 3 Brevard 306; 7 Smith 541; Jacques vs. Weeks, 7 Watts 261; Reigart’s Appeal 4 Barr 479.
Fifth and Sixth, Evans vs. Coventry, 5 D. G. M. & G. 911; Redmund vs. Enfield M’f'g. Co., 13 Abb. Pr. R. (N.S.) 332; Kerr on Receivers 80, note 1; Warren vs. Fake 49 How. Pr. R. 430; Jones vs. Holliday 37 Georgia 573; Reid vs. Reid 38 Id. 29; Crawford vs. Ross 39 Id. 44; Ware vs. Ware 42 Id. 408; Jenkins vs. Jenkins, 1 Page C. R. 243; Exparte Walker 25 Alabama 81; Lenox vs. Notrebe, 1 Hemstead 225; Hamberlain vs. Marble, 24 Miss. 586; Society of Shakers vs. Underwood, 9 Bush Ky. R. 614; 1st National Bank Republic vs. David Gregg, 10 Pitts. L. J. (N. S.) 26; Kerr on Receivers 21; Howe vs. Denel, 43 Barb. 507; Robinson vs. Smith, 3 Page 222; Munt vs. L. & C. R. R. Co., 3 Eng. Law & Eq. 144; Murray vs. Vanderbilt., 39 Barber 140; Lawrence vs. Greenwich Fire Ins. Co.,1 Paige 587; Bloom vs. Union Banking Co., 4 W. N. C. 138.
In affirming this decree without giving
an opinion on the merits as has been the practice of this Court for several years, we desire to say that if the want of an injunction affidavit had been objected in the Court below we would have reversed it. It is time that the proper practice in these cases should be understood and followed. It is easy to get any number of plaintiffs to swear to the best of their knowledge and belief to a formal instrument like a bill in equity. It is a very different matter to make an affidavit of the facts on deponent’s knowledge, and if on information and belief when such information and belief is required.
Decree affirmed. Injunction continued and appeal dismissed at the cost uf appellants.