ceiver of all its assets wherever situated in the | the duties of his office as might be practicastate.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEW-al averments in it being ipsissimis verbis ART, and MOSCHZISKER, JJ.

the sum of $5,614.33. An auditor was ap-terest to the date of payment, and enjoining pointed to determine who were the parties them from paying said moneys to any perentitled to this fund, and he awarded it to son or persons except under and by direction William R. Richards, the ancillary receiver. of the court. From this order we have these Exceptions to his report were sustained by appeals. the lower court, but, upon appeal to this court, the decree of the lower court was reversed and the report of the auditor absolutely confirmed. Tenth National Bank of Philadelphia v. Smith Construction Co., 218 Pa. 581, 67 Atl. 872. The fund was thereupon, less the costs of audit, paid to William R. Richards, receiver, who deposited the same to his credit in the Security Title & Trust Company, of York, Pa., where it now remains. Subsequently, on August 19, 1907, the city of York presented a petition to the court of common pleas of York county, asking leave to pay into court the balance alleged by it to be due upon the contract with the Smith Construction Company for the building of the sanitary sewer, to wit, the sum of $14,911.76. Upon the presentation of this petition the court ordered the said city of York to "pay said sum of money to William R. Richards, receiver of the above defendant, to be accounted for by said receiver according to law, this fund to be deposited by said receiver in the Farmers' National Bank of York, Pennsylvania, to be paid out only in accordance with the order of this court."

The Fourth Street National Bank of Philadelphia is the holder of receiver's certificates issued by the said William R. Richards under and by virtue of an order of the court below, and on July 16, 1909, it presented its .petition to said court, averring the foregoing state of facts, and, in addition, that the receiver had requested payment to him by the Farmers' National Bank of York of the sum on deposit with it to his credit, and that payment was refused, and, further, that he had made a similar demand upon the Security Title & Trust Company of York for payment of the amount deposited with it to his credit, but that payment thereof had also been refused. Upon the presentation of this petition, the court below granted a rule upon William R. Richards, receiver, the Security Title & Trust Company of York, and the Farmers' National Bank of York, Pa., to show cause why the moneys on deposit to the credit of the said receiver, or to which he might be entitled, should not forthwith be paid to him and why the said Security Title & Trust Company and the Farmers' National Bank of York should not be enjoined and restrained from paying said moneys to any person or persons except under and by direction of the court. Service of this rule was made in York county upon the Security Title & Trust Company and the Farmers' National Bank of York, but no answer was made by either of them, and on October 20, 1909, the court below made an order that they forthwith pay to William R. Richards, receiver, the sums on deposit with them to his credit, with in

When court of common pleas No. 5 of the county of Philadelphia appointed Richards receiver, he became the receiver of every asset of the Smith Construction Company, wherever situated within the state. From the moment he was appointed, and before he may have taken actual possession of all of the assets of the company within the state, the court acquired plenary jurisdiction and dominion over those assets, and the receiver appointed by it was its officer to administer them in whatever counties of the state they might happen to be. If there be an adjudicated case which authorized the court of common pleas of York county to interfere with the jurisdiction and dominion of the court below over the assets of the construction company which were in York county on January 27, 1905, by appointing an ancillary receiver four days later, it has never fallen under our notice. On the contrary, under all the authorities, the York county court was wholly without jurisdiction to make the appointment. "As between courts of the same state, when a receiver has been appointed by one court and has obtained possession of the property or fund over which he was appointed, he cannot be in any manner interfered with by a receiver subsequently appointed, or by any proceeding whatever in any other action brought in any other court. The court which first appoints a receiver has the sole disposition of the fund or property received by him as such, and is bound in the exercise of its judicial powers to make administration of it." Beach on Receivers, § 15. In Peale v. Phipps, 14 How. 368, 14 L. Ed. 459, an attempt was made in one of the federal circuit courts to exercise jurisdiction over a trustee who had been duly appointed by one of the courts of the state of Mississippi, and in setting aside the circuit court's interference it was said by the Supreme Court of the United States, through Taney, C. J.: "The property in legal contemplation was in the custody of the court of which he was the officer, and had been placed there by the laws of Mississippi. And while it thus remained in the custody and possession of that court, awaiting its order and decision, no other court had a right to interfere with it or to wrest it from the hands of its agent, and thereby put it out of his power to perform his duty." In the comparatively recent case of Sullivan v. Algrem, 160 Fed. 366, 87 C. C. A. 318, there were three suits in three courts against Sullivan, owning and operating the Home Co-operative Company, to appoint receivers of the same property, to sell it, and to distribute the proceeds among the same creditors and holders of contracts. The first two suits were commenced in the state courts and the third in the federal court. The first court-the cir

cuit court of St. Louis county, Mo.-appoint- | its officer, of the estate of the construction ed a receiver, who took possession of a part company, so might the courts of the counties or all of the property of the company. The of Chester and Mifflin and of as many other Circuit Court of Appeals of the United States counties as might happen to have assets of for the Eighth Circuit held that, even with- the company within their borders. Instead of out actual possession by the receiver, the one account by a receiver, to be passed upon circuit court of St. Louis county had ac- by one court, there would be an account in quired complete jurisdiction over all of the each county by the receiver appointed by its property of the company by the commence- court, and on every question raised on the ment of the suit, the appearance of the de- accounts of receivers so appointed there fendant and the appointment of the receiver. might be as many minds as there were judges In so holding it was said by Sanborn, Cir- who made the appointments. To avoid such cuit Judge: "The legal custody of specific confusion, if for no other reason, when an property by one court of competent jurisdic- appointment is once made by a court of comtion withdraws it, so far as necessary to ac-petent jurisdiction, that appointment ought complish the purpose of that custody, until not to be interfered with by any other court that purpose is completely accomplished from within the same state. The controlling reathe jurisdiction of every other court. The son of the rule that the court which first apcourt which first acquires jurisdiction of spe- points a receiver has exclusive jurisdiction cific property by the lawful seizure thereof, over him and the assets to be sequestered and or by the due commencement of a suit in that administered is that by his appointment those court, from which it appears that it is, or assets pass at once in gremio legis, and are will become, necessary to a complete deter- not therefore to be interfered with by the mination of the controversy involved, or to process of any other court. the enforcement of the judgment or decree It is contended by counsel for appellants therein, to seize, charge with a lien, sell, or that, even if the appointment of the ancillary exercise other like dominion over it, thereby receiver by the court of common pleas of withdraws that property from the jurisdic- York county is void, it is not to be attacked tion of every other court, and entitles the in this collateral proceeding. This overlooks former to retain the control of it requisite to the fact that the court of common pleas of effectuate its judgment or decree in the suit York county never had jurisdiction of the free from the interference of every other tri- subject-matter-the assets of the Smith Conbunal. When a court has by lawful proceed-struction Company. Exclusive jurisdiction ings taken possession of specific property, it has during that possession and as incident thereto jurisdiction to hear and determine all questions respecting the title, possession, and control thereof, and courts of co-ordinate jurisdiction are powerless to render any judgment or decree that will invade or disturb the possession of the property while it is in the custody of the court which has thus first acquired it. Lang v. Choctaw, Oklahoma & Gulf R. R. Co., 160 Fed. 355 [87 C. C. A. 307] (filed by this court March 2, 1908); Farmers' Loan & Trust Co. v. Lake Street El. Railroad Co., 177 U. S. 51, 20 Sup. Ct. 564, 44 L. Ed. 667; Peck v. Jenness, 7 How. 612, 12 L. Ed. 841; Freeman v. Howe, 24 How. 450, 16 L. Ed. 749; Moran v. Sturges, 154 U. S. 256, 14 Sup. Ct. 1019, 38 L. Ed. 981; Central Nat. Bank v. Stevens, 169 U. S. 432, 18 Sup. Ct. 403, 42 L. Ed. 807; Williams v. Neely, 134 Fed. 1, 67 C. C. A. 171, 69 L. R. A. 232; Barber Asphalt Paving Co. v. Morris, 132 Fed. 945, 66 C. C. A. 55, 67 L. R. A. 761; Gates v. Bucki, 53 Fed. 961, 4 C. C. A. 116." Authorities need not be multiplied in support of the rule that a court has no power to appoint a receiver where one has already been appointed by another court of equal jurisdiction. The rule is essential to the orderly administration of justice, for without it there would be unseemly conflicts between courts undertaking to exercise jurisdiction over the same subjects and persons. If the York county court could interfere with the

over those had attached on January 27, 1905, in the court of common pleas No. 5 of the county of Philadelphia, as affirmatively appeared in the bill presented to the York county court. As that court was without jurisdiction, its appointment of the ancillary receiver was void and is to be so regarded in this proceeding. The appellee is not required to formally move for its vacation by the court that undertook to make it.

The deposits with the two appellants are assets belonging to the receiver appointed by the court below and are free from any interference or control by the York county court, whose connection with the moneys due by the city of York for the sewer ended when it ordered the same to be paid to the receiver. What he should do with the funds after payments were made to him was solely for the court below. But, while this is true, no authority exists for the action of the court below in ordering the appellants to pay the receiver. This order followed a rule upon them issued in a proceeding to which they were not legally made parties. They had never been within the court's jurisdiction, and the rule taken upon them was ineffectual to bring them in. The order made upon them was void for want of jurisdiction. Allegheny Bank's App., 48 Pa. 328. They are not, however, to be permitted to retain the moneys due the receiver, and, if they do not pay him upon demand, will be compelled to pay in a proper proceeding. On the petition presented

The decree below is reversed, the costs to be paid out of funds belonging to the receiver, and leave is granted to the appellee to apply to the court below for the order which we have suggested ought to have been made.

(227 Pa. 339)

ed the receiver to demand payment, and, upon | ble for one-fourth of the said mortgages. At the failure of the appellants to pay him, the time the contract of April 12, 1904, which to forthwith institute suits to recover the is attached to the bill of complaint, was made, amounts of the deposits. Mr. Baton was in arrears $3,985.64 upon his share of said mortgages, which sum had theretofore been paid by J. W. Dawson, and Mr. Baton was also apparently liable on a note for $4,000. It was first stipulated that these plaintiffs should pay to said Dawson the sum of $4,000 at once, and also $1,000 on May 8, 1904, with which to pay one-fourth of said note, 'which shall be in full payment of the balance due by said George S. Baton upon the mortgages heretofore paid by said J. W. Dawson, trustee.' The plaintiffs also undertook to pay Mr. Baton's share in said mortgages, 'as said mortgages shall fall due.' This can only mean the installments of said mortgages which fell due after the date of the contract. It is then agreed that, if said payments shall continue until Mr. Baton's interest (meaning his share) in all of said mortgages shall have been paid, and if, upon Au

GUTHRIE et al. v. BATON. (Supreme Court of Pennsylvania. March 7, 1910.)

1. VENDOR AND PURCHASER (§ 70*)-ConTRACT -CONSTRUCTION-INTEREST.

Where the determination of the cost of a coal field is necessary to fix the price under a contract of sale, and the contract does not state whether interest on moneys expended in its purchase is to be allowed in determining the

cost, such interest cannot be allowed.

[Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 70.*]

2. APPEAL AND ERROR (§ 1010*)-REVIEW-gust 26, 1905, the exceptants shall have paid FINDINGS-SUFFICIENCY OF EVIDENCE.

Where a vendee agrees to pay the vendor a certain sum on the execution of an agreement, and to pay a portion of a mortgage charged on the land, and on final settlement a difference between the cost of the land and the mortgage debt assumed, a finding from sufficient evidence that the sum paid at the execution of the contract was a part of the purchase money will not be set aside.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. 8 1010.*]

the share of Mr. Baton in said mortgages, then they should have the right to pay Mr. Baton the difference between one-eighth of the entire cost of said coal field and the amount of his interest in said mortgages, and thereupon he was to convey to the except ants the undivided one-eighth of said coal

field.

"The exceptants contend that, under the foregoing agreement, they were to pay the entire share of said mortgages for which Mr.

Appeal from Court of Common Pleas, Al- Baton was liable, and that the $5,000, which legheny County.

Action by W. A. Guthrie and others against George S. Baton. From a decree sustaining exceptions to an account, defendant appeals. Affirmed.

The proceeding in the court below was the statement of an account incidental to a decree for specific performance regarding the sale of coal and requiring an accounting. The facts appear in the opinion of the Supreme Court and in the previous report of this case in 223 Pa. 401, 72 Atl. 788. The court below filed the following opinion:

"The plaintiffs have filed exceptions to the account stated by George S. Baton, the defendant. These came on to be heard and were argued by counsel. The first exception is that the accountant has not given plaintiffs credit for $5,000, which was paid upon the execution of the agreement of April 12, 1904. At and prior to the making of said contract, George S. Baton was the owner of the one-fourth interest in a coal field, the legal title to which was in J. W. Dawson. This field had been purchased in a number of separate pieces, not all at the same time. Part of these purchase moneys had been paid in cash, and the balance had been secured by mortgages. Mr. Baton had paid his onefourth of the cash payments, and he was lia

they paid at the execution of the agreement, was on account of said undertaking. The accountant's position, as we understand it, is that the $5,000 had nothing whatever to do with the payment of his share of said mortgages, and that exceptants are obliged to pay the entire share of said mortgages, for which Mr. Baton was liable, as if the said payment of $5.000 had never been made. We cannot agree with the accountant. The subject about which the parties undertook to contract was Mr. Baton's share of these mortgages, both what had become due and what was thereafter to fall due. What had already fallen due had been paid by one of his associates; but Mr. Baton was still liable therefor, not to the mortgagees, but to Mr. Dawson, and upon the note. There is nothing in the agreement from which it could be inferred that the exceptants were paying a bonus of $5,000 in order to obtain the contract. The first exception is sustained.

"The second exception relates to the meaning of the term 'entire cost of said coal field.' As we understand the statement of account, there has been added to the original purchase money and the other outlays interest thereon to August 26, 1905, and likewise interest has been credited on the payment of the exceptants. We do not think that the term 'entire

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

cost of said coal field' will bear the construc- |ing parties fail to definitely state what they tion which the accountant has put upon it. have agreed upon, courts can be of little asInterest is not recoverable, except by way sistance in determining what they meant. of contract, or by way of damages for breach The court below very properly held that of contract. There is nothing in this contract whether appellant was entitled to interest which indicates what interest was to be upon moneys expended by him in the purcharged upon the purchase money and other chase of the coal field prior to the execution outlays, in order to ascertain the cost of the of the contract in question depends upon the field, or what interest was to be credited up- terms of the agreement entered into by the on payments. There was no breach of the parties, and that interest is not recoverable contract which would entitle any party to unless the contract so provides, or by way interest by way of damages. The second ex- of damages for breach of the same. The ception is also sustained." contract is silent upon the question of inter

cost of the coal lands, and the courts are not
at liberty to order that appellant be credited
with interest when his contract did not so
provide, and especially when the other con-
tracting parties deny his right to demand it.
The courts must leave the parties where they
placed themselves, and cannot undertake to
make a new contract for them.
Decree affirmed, at the cost of appellant.

Errors assigned were in sustaining excep-est to be allowed appellant in determining the tions to the account as follows: (1) The accountant does not give credit to the plaintiffs I in his statement for the sum of $5,000 paid in cash at the time the agreement of April 12, 1904, was entered into. (2) The accountant charges interest on the entire consideration mentioned in the respective deeds for the property, which interest is not a part of the cost of the field under the agreement between the parties, nor included in the decree of the court.

FEARON v. LITTLE.

Argued before FELL, BROWN, MESTRE-
ZAT, POTTER, ELKIN, and STEWART, JJ.
John S. Ferguson, Geo. M. Hosack, and M.
J. Hosack, for appellant. Patterson, Sterrett (Supreme Court of Pennsylvania.
& Acheson, for appellees.

ELKIN, J. When this case was here before, the decree for specific performance entered by the court below was affirmed. Guthrie v. Baton, 223 Pa. 401, 72 Atl. 788. The record was then remitted for an accounting by defendant in order to ascertain the cost of the coal lands in question, the amount already paid thereon by plaintiffs, the balances remaining unpaid on the mortgages, the proportions to be paid by plaintiffs on account of the mortgages, and the balance, if any, due defendant under the terms of the contract, the specific performance of which had been decreed. This has all been done, and the case is before us again on an appeal touching questions raised in the accounting. The first question brought to our consideration is whether the appellees are entitled to a credit of the $5,000 paid at the time of the . execution of the agreement in the settlement of the account between the contracting parties. Under the finding of fact stated in the opinion of the court below, to which an exception has not been taken, this question must be answered in the affirmative; but, aside from the finding of fact, the written contract between the parties admits of no other reasonable interpretation. The conclusion of the learned court was clearly right in the disposition made of this item of credit claimed.

The other question raised relates to the allowance of interest in determining the cost of the coal field, and it is not free from doubt; but it is a doubt arising from the uncertainty of the contract. When the contract

1910.)

(227 Pa. 348)

March 7,

1. TRIAL ( 260*)-REFUSAL OF REQUESTSCHARGES EMBRACED IN GENERAL CHARGE. Where points submitted by defendant so far as relevant were substantially answered in the general charge, which was as favorable to defendant as he could ask, failure to read the points to the jury and specifically rule upon them was not error.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 2. GAMING (8 15*)-PURCHASE OF STOCK ON

MARGIN.

If it is the intent of parties to a purchase of stock on margin that a real purchase shall be made by a transfer of the stock, though the delivery may be postponed or made to depend upon future conditions, the transaction is legal; but if it is the intent that there shall not be a delivery to complete the purchase, but that the account shall be settled on the basis of a rise or fall in prices, it is a mere wager and the contract cannot be enforced by either party.

[Ed. Note. For other cases, see Gaming, Cent. Dig. § 27; Dec. Dig. § 15.*]

3. GAMING (§ 11*)-WAGER CONTRACT-PURCHASE OF STOCK.

Where a stockbroker purchasing stock for a customer on margin purchased such stock outright, and received delivery of the certificates therefor, and, when such stock was ordered by the customer to be sold, actually sold it, the transaction was not a wagering contract.

[Ed. Note.-For other cases, see Gaming, Cent. Dig. §§ 19-21, 23; Dec. Dig. § 11.*] 4. GAMING (§ 11*)—WAGER CONTRACT-PURCHASE OF STOCK.

A purchase of stock on margin is not a wagering contract simply because one of the parties lost through operating beyond the point of prudence as measured by his financial ability. [Ed. Note. For other cases, see Gaming, Cent. Dig. §§ 19-21, 23; Dec. Dig. § 11.*]