It comes with an exceeding bad grace for a member of the company insured on the note plan to object to the payment of a loss upon a cash policy. By a mutual arrangement, to which the assent of every member must be presumed, the holder of the cash policy has made his con

pany to one who may be an entire stranger to the the company as a fair equivalent for future ascorporation, who acquires no right of member-sessments, and it is his proper proportion of the ship by reason of his policy; no right to partici- common fund. This is a matter of equitable arpate in its profits, and who subjects himself to no rangement between the members of a mutual liability by reason of its losses. In such cases it company. It is not prohibited by any law, and can make no difference whether the premium is is a matter with which the outside public have no paid in cash or by note; that is a private matter be- concern. tween the insurer and the insured, which concerns no one but the parties to the contract. Mutual companies, on the other hand, are somewhat of the nature of a partnership; the insured becomes a member of the corporation by virtue of his policy; is entitled to a share of the profits, and is responsible for the losses to the extent of his pre-tribution to the common fund created for the mium paid or agreed to be paid. In the language of the 11th section of the Act of April 2, 1856, "All persons insuring with (mutual companies) and continuing to be insured therein, shall thereby become members during the period they shall remain so insured and no longer, and shall pay such rates as shall be determined by the board of directors, and be liable for all losses and expenses of said company to the amount of the premiums paid or agreed to be paid hy the members respectively.' The true principle of mutual insurance is the payment by each of the insured of a certain sum of money towards a common fund, which fund is to be held for the protection of each person so contributing.

Is there any substantial reason why the cash premium may not represent the insured in the common fund as well as a premium note?

benefit of all. He has contributed the precise sum which the rules of the company have designated as the quota which he in justice ought to pay. The insured by note have contributed nothing, or at most but little to the common fund, and cannot now be permitted to escape the payment of what they agreed to pay, because other parties made their contributions in cash at the time they were insured. We are of opinion that the position of the plaintiffs in error is untenable. It is unjust to their fellow members.

The

insured by premium notes would enjoy the protection afforded by the common fund, and at the same time escape the payment of their contribution thereto.

Upon a careful consideration of the case, we find no error in the record, and the judgment is affirmed.

Equally untenable is the position that the directors had no power to make the assessment after the assignment. That instrument passed only the assets of the corporation, not its franchises. The assignees can do no corporate act. corporation exists for many purposes, and may make an assessment upon the premium notes There are numerous and respectable authori- where it is necessary to pay debts. Were this ties which hold that there is not; among which not so, it is difficult to see how the rights of those may be mentioned Angell on Fire and Life In-members who have sustained losses upon their surance, 422; Insurance Co. v. Hoge (21 How-policies could be enforced, while those who have ard, 64); May on Insurance, § 548; Mygatt v. N. Y. Protection Insurance Company (21 N. Y. 52); and White v. Havens (20 N. Y. 177). It was held in Susquehanna Ins. Co. v. Perrine (7 W. & S. 351), that the insured shall ipso facto be a member of the company, and on no other plan could a mutual company be constituted. The 11th section of the Act of 1856, supra, evidently refers to two classes of premiums, viz.: those which shall be paid in cash, and those which shall be paid by note or other evidence of indebtedness. In either case the insured is liable for Jan. '78, 201. losses to the extent of his premium "paid or agreed to be paid." Where his premium is paid in cash, that fixes the extent of his liability. If paid by note, such note is liable to future assessments. The one is the equivalent for the other. The practical effect is that the premium note policy holder gets his insurance at a comparatively trifling cost, provided there be no losses. In such event he is not called upon for assessments. But he takes that risk, and in case of losses he must respond. The insured for a cash premium pays in a sum which is considered by

Opinion by PAXSON, J.

March 4, 1878

Blank, Executor, v. Eichelberger.
Blank's Appeal.

Subrogation-When inadmissible between lien
creditors-Right of a mortgagee to subrogation
as against judgment creditors-Sheriff's sale
-Distribution of proceeds.

funds of a common debtor, and another creditor has a The rule that where one creditor has a lien upon two lien only upon one, the first creditor may be compelled in equity to levy his debt out of the fund to which the

other cannot resort, does not govern in cases where the | tion has been lost sight of by the commissioner. The funds in court are not the funds of the

S. conveyed certain realty to E., incumbered by judg- same debtor, but the funds of two different ments against him. E. reserved part of the purchase- debtors. The one being distributed in these money to satisfy these judgments, and at the same time proceedings, is the proceeds of the sale of Eichelmortgaged the property. Subsequently E. reconveyed a small lot of the property to S., discharged of the lien of berger's real estate, and the other fund is the the mortgage. S., after building upon the lot, made an proceeds of the sale of the real estate of Sax. assignment for the benefit of creditors. Upon a sheriff's In the Delaware and Hudson Canal Company's sale of the property of E., under the mortgage, the mort Appeal (2 Wright, 516) it is distinctly ruled that gagee claimed subrogation to the rights of the judgment this equity prevails where a creditor has a lien Held (affirming the judgment of the Court below) that upon two funds belonging to one debtor, and after there was no ground in equity to compel the judgment a somewhat diligent, though by no means excreditors to resort to a particular fund, and that the mort-haustive examination of our reported cases, I gagee had no case to require the interposition of equity.

This was an appeal from a decree of the Court reversing the report of a commissioner appointed to distribute the proceeds of a sheriff's sale of real estate. The evidence before the commis- Eichelberger and Sax, there was retained by sioner disclosed the following facts:

and his estate are primarily liable for them. As July, '77, 71.
the conveyance to Eichelberger was not made
expressly subject to the judgments, Sax is per-
sonally bound. Where one of several tracts of
land incumbered by a common lien are aliened
by the debtor, the tracts still remaining in him
are in equity first liable to discharge the incum-
brances.

Lloyd v. Galbraith, 8 Casey, 103.

A party who can resort to two funds shall not by his option disappoint another who has only a claim on one.

McDevitt & Hays's Appeal, 20 Sm. 373.
Hasting's Case, 10 Watts, 303.
Ramsey's Appeal, 2 Id. 228.

It would be inequitable to permit the judgment creditors to pass by a fund ample to satisfy them, and squeeze out the mortgage from that alone upon which it is a lien.

Edwin Albright (with whom were Butz and Schwarz), contra.

The rule that when a creditor has a lien upon two funds in the hands of the same debtor, and another creditor has a lien only upon one of them, the first may be compelled in equity to levy his debt out of the fund to which the other cannot resort, governs only when both funds are in the hands of the common debtor of both creditors.

Gearhart v. Jordan, 1 Jones, 325.

Decedents' estates— Claim by brother for services rendered to deceased sister-Statute of limitations-Acknowledgment, sufficient to bar the running of Orphans' Court-Conclusiveness of findings of fact by auditing Judge.

If an appellant fails to bring up the whole evidence which was before the Orphans' Court, and relies upon that part found in the opinion of the auditing judge, he must the Orphans' Court of errors of fact in the absence of the abide by the latter, as the Supreme Court will not convict entire evidence which was before that Court.

The testatrix, a widow, died in 1875, leaving all her residuary estate to a charity, after a legacy to a sister. Her brother, Dr. P., claimed $5000 from the estate as compensation for services rendered by him more than ten years before her death. The auditing judge found that in 1864 Dr. P. had interrupted a paying medical practice there attended to the business affairs of his sister for the in Washington, in order to visit Nashville, Tenn., and space of three months. That the decedent had appreciated these services, and frequently spoken of her intention to remunerate him. That in 1871 she had written to him concerning the proposed sale of a house, saying, "Then, James, you shall have your $5000:"

Held, That, according to the findings of the Court below, a promise to pay $5000 for her brother's services in 1864 was established, which was acknowledged and repeated in 1871, so as to take the case out of the Statute of Limitations."

Appeal from the Orphans' Court of Phila

In this case the funds are not the proceeds of the estate of the same debtor, and hence the rule is inapplicable. The three judgments were liens on land sold to Eichelberger. As between Eichelberger and Sax, they became the debts of Eichelberger-the evidence showing that he re-delphia County. tained a part of the purchase money to satisfy them. The proposition that the mortgagee has an equity to compel Sax to pay the judgments is incorrect. The equity of the second creditor is that of the debtor, and is worked out through the equity of the debtor.

Lloyd v. Galbraith, 8 Casey, 103. Hasting's Case (10 Watts, 303) and McDevitt and Hays's Appeal (20 Sm. 373), cited on the other side, are inapplicable, for in both cases the funds were those of the same debtor.

March 11, 1878. THE COURT. This case on its facts does not present a ground in equity for compelling the judgment creditors to resort to a partition fund. The mortgagee in this instance can find no equity in his mortgagor to require the interposition of equity.

Decree affirmed with costs to be paid by the appellant, and appeal dismissed. PER CURIAM.

This was an appeal from a decree dismissing the exceptions filed by the appellant, the Presbyterian Board of Publication, to the award of the auditing Judge distributing the estate of Parthenia P. Mayfield, deceased.

Mrs. Mayfield, a widow residing in Philadelphia, died early in 1875, leaving a will dated in October, 1872, wherein, after bequeathing a legacy of $5000 to a sister (which lapsed), she directed that all the rest and residue of her estate should be divided into five equal parts, two of which she gave to the appellant, and the others to certain other Boards of the Presbyterian Church.

Before the auditing judge (HANNA, J.) appeared Dr. James J. Porter, a brother of the decedent, and presented a claim against the estate for $5000 for services rendered the deceased.

The evidence in regard to this claim, as stated by the Judge, was, that Dr. Porter was a brother of testatrix, and in the summer of 1864 was a practising physician in Washington, D. C. That in July, 1864, the husband of testatrix died at Nashville, Tennessee, and Dr. Porter was summoned by telegram to that city. A few hours.

after receiving the message, he left his home for Nashville, expecting to be absent a week or ten days, but after reaching his destination remained there three months and upwards. Dr. Porter had, at the time he started for Nashville, "a good paying" practice in Washington. On his return he accompanied testatrix with the remains of her deceased husband to Philadelphia, where she continued to reside until her death. She corresponded with Dr. Porter, and on one occasion visited his house, remaining there about six months.

The testatrix was the owner of a dwelling in the city of Nashville, which she endeavored to sell during her life, but without success, and it remains unsold. After her removal to Philadelphia in the fall of 1864, she was constantly in the habit of conversing with one of her nieces, a daughter of Dr. Porter, upon the subject of what he had done for her in Nashville, of the great pecuniary benefit he had been to her there, that she could not trust the people about her there, and she did not know what loss she might have undergone if not for his presence. The testatrix always spoke of compensating him for his loss and services. That she inquired what loss he sustained, what patients went to other physicians, and exhibited much uneasiness at the loss she occasioned.

(2) That she had full knowledge that the benefit she received was to the great injury of his professional practice as a physician.

(3) That she promised to compensate him.

(4) That in the year 1871 she promised to pay Dr. Porter the sum of $5000, and acknowledged her pecuniary indebtedness to him. And(5) In the summer of 1874 she again admitted her indebtedness to him.

He therefore awarded the sum of $5000, with interest, to Dr. Porter.

To this adjudication the Presbyterian Board of Publication filed exceptions, which were dismissed by the Orphans' Court, and the adjudication was confirmed (reported 4 WEEKLY NOTES, 154).

The appellant took this appeal, assigning for error the action of the Court in dismissing the exceptions and the conclusions reached by the auditing judge.

The testimony in the case was not taken up with the appeal, the appellant relying upon the statement of facts (ut supra) as given by the Judge in his adjudication.

R. L. Ashhurst and Samuel C. Perkins (George Junkin with them) for the appellant.

In this case the nature of the claim is unusual, the services for which compensation is demanded being usually rendered to near relations gratuitously. The amount claimed is extraordinarily large; and the evidence relied upon to toll the statute of limitations is flimsy, consisting only of the sentence, "Then, James, you shall have your $5000."

In December, 1869, Dr. Porter, being desirous of purchasing a residence in Washington, wrote to testatrix, requesting her to let him have the money to enable him to make the purchase. She answered the letter, stating it was inconvenient As to the first point, the services rendered were to do so then. In the spring or summer of 1871, general acts of friendliness, such as would be she wrote a letter to Dr. Porter, in which she natural from a brother acting to protect the said she had received an offer for her house, that interests of a widowed sister. No promise to the price suited her better than any previously compensate can be implied; it must be estabmade, the purchaser was reliable, and she con-lished by clear and satisfactory proof. The imgratulated Dr. Porter on the prospect of being plied promise is rebutted by the relation of the paid his money, and said, "then, James, you parties. shall have your five thousand dollars."

In the summer of 1874 she again spoke of her indebtedness to Dr. Porter, complained of her restricted means, and hoped soon to liquidate it. This last conversation was about six months be

fore her death.

Neel v. Neel, 9 Sm. 347.

Swires v. Parsons, 5 W. & S. 358. Lynn v. Lynn, 5 Casey, 369. All the elements held to be requisite to enable a Culp's Appeal, 28 Leg. Int. 60. daughter to recover for services against her father's estate, in Watson v. Stem (26 Sm. 126), are wanting here.

There was no testimony offered to rebut the claim, but it was contended by the counsel of accountants that there was no evidence of any contract, either express or implied, on the part of the testatrix, to compensate her brother for his attentions to her, and that the claim was barred pay, is entirely insufficient to toll the statute.

As to the statute of limitations, a bare acknowledgment of indebtedness, without expressing nature or amount, and without a promise to

by the statute of limitations,-no promise by testatrix having been proved sufficient to take it out of the operation of the statute.

The Judge reached the following conclusions:

(1) That the testatrix accepted the labor and services of her brother, Dr. Porter, in her behalf for the period of at least three months.

McClelland's Ex'rs v. West, 9 Sm. 488.
Boss v. Long, 2 WEEKLY NOTES, 694.
Senseman v. Hershman, I Norris, 83.
Miller v. Baschore, 3 WEEKLY NOTES, 402.
Nathan H. Sharpless, contra.

The facts found by the Court below, uncontradicted by the appellant, clearly establish that extraordinary services were rendered by Dr. Porter

to his sister, and that she promised to compensate him for them.

Relationship alone does not overcome the presumption of a promise except in the case of parent and child; but here was an express promise. Smith v. Milligan, 7 Wr. 107.

Gordner's Adm'r v. Heffley, 13 Wr. 163.
Thompson v. Stevens, 21 Sm. 162.

Promises insignificant compared with the one here shown have been held sufficient to toll the statute of limitations.

Forney v. Benedict, 5 Barr, 225.
Shreiner v. Cummins, 13 Sm. 374.
Titman v. Titman, 14 Sm. 480.

February 11, 1878. THE COURT. According 1875. The money realized from the sale was to the findings of the Court below, the promise paid into court, and an auditor appointed to was established to pay Dr. Porter the sum of make distribution. The auditor allowed the $5000, for his time and services at Nashville, claim of Flenniken in full, the money to remain Tennessee, in 1864, and that it was acknowledged at the disposal of the Court until the appeal was and repeated in 1871, so as to take the case out withdrawn or the case finally disposed of. On of the statute of limitations. The appellant has January 2, 1877, Tinstman received his discharge failed to bring up the whole evidence before the in bankruptcy. Orphans' Court, and relies on that part found in the opinion of the auditing Judge. We cannot consider partial statements or depositions constituting only a part of the evidence. To deal fairly with the Court below, and convict that Court of errors of fact, the appellant must bring up all the evidence before the Court, duly certified by the Judge. If he rests his case on the facts found by the Judge, and the evidence given therefor, in his opinion, he must abide by this much. Now, though there may be a shade of doubt as to the findings of the facts by the Judge, we cannot say there clearly is error. We do not know how far the entire evidence, if before us, would have not sustained the findings.

Bankruptcy-Award of arbitrators-Act of June 16, 1836-Lien of the award not affected by the discharge in bankruptcy.

A discharge in bankruptcy will not operate to divest a lien acquired by virtue of an award of arbitrators filed before the commencement of the bankruptcy proceedings.

Error to the Common Pleas of Fayette County. Assumpsit, by B. F. Flenniken & Co. against A. O. Tinstman on a promissory note, dated July 13, 1874, for $3314.45; pleas, "non assumpsit," "payment with leave," etc.

On Sept. 15, 1877, the case came to be tried, before A. E. WILSON, P. J. Defendant, by leave of Court, filed a special plea of discharge in bankruptcy. The Court charged the jury, inter alia, as follows: "No evidence has been offered on the part of the defendant showing that he had paid the note, or any part of it, and, so far as the evidence produced before you goes, it is still unpaid. [The only matter that was offered on the part of the defendant was a discharge in bankruptcy, by which it appears that on the 2d day of January, 1877, the defendant did receive a proper certificate of discharge in bankruptcy, the effect of which would be to relieve him personally from any liability upon this note. And it is claimed by his counsel that the effect of it is to prevent a recovery on the part of the plaintiffs in the suit altogether. But we instruct you that such is not the effect of the discharge in bankruptcy. But that, while it may relieve the defendant from a judgment against him personally, it does not prevent the plaintiffs from recovering a verdict at your hands, to be paid out of the money now in court realized from the sale of the real estate of the defendant, upon which the plaintiffs had a lien by virtue of an award of arbitrators filed May 8th, 1875, and that they are entitled to recover the amount of the note, with interest from the time it became due up to the time the real estate was sold.]"

Verdict and judgment accordingly for plaintiffs. Defendant took this writ, assigning for error, inter alia, the portion of the charge in brackets.

W. H. Playford (with him C. E. Boyle), for plaintiff in error.

The 24th section of the Arbitration Act (Purd.