[7] In 1 Elliott on Evidence, § 537, it is said: "Declarations which accompany or are a part of the fact or transaction in controversy and tend to illustrate or explain it, such transaction itself being admissible, are also admissible as being so connected as to be a part of the same act or transaction." In Shannon v. Castner, 21 Pa. Super. Ct. 294, 321, Rice, P. J., said: "Where declarations or acts accompany the fact in controversy and tend to illustrate or explain it, they are treated, not as hearsay, but of the res gestæ." as original evidence, in other words, as part of In Coll v. Transit Co., 180 Pa. 618, 626, 37 Atl. 89, 90, the present Chief Justice quotes from Wharton on Evidence (2d Ed.) § 259, as work if plaintiff was not discharged, the en- | the testimony, and instructed the jury to distire 28 men who signed the paper might law- regard its contents. Counsel for appellant fully combine to do the same thing. This contends that the letter was admissible as a was not a sound statement of the law. part of the res gestæ. Again, it appears that the jury were instructed that, if plaintiff "worked on the nerves" of his coemployés, if he made himself "objectionable," "obnoxious," "unpleasant," or "distasteful" to them, they had the right to unite to procure his discharge by threatening to strike. This was going too far. The jury might very well have been instructed that, if plaintiff's habits, or his character, or his conduct while at work towards his fellow workmen was such as to render him an unfit associate for ordinary workmen of good character, it would have been sufficient reason for interference by his fellow workmen with his employment. They had the right to combine to advance their own interests in any proper way, but not for the purpose merely of inflicting injury upon another. It appears from the evidence that some of the defendants had disagreements with plaintiff, and gave some reasons for disliking him. But none of them testified that these difficulties caused them to sign the paper. Eighteen of the defendants gave no tes-one concerned, whether participant or bystander. timony whatever, and there was nothing to show that plaintiff had in any way made himself obnoxious or distasteful to them, nor was there anything in the evidence to show that they signed the paper for any other reason than that alleged by plaintiff, which was that he had reported to the company a theft by the night watchman. The first, second, third, twelfth, and thirteenth assignments are sustained. [6] In the sixteenth assignment it is alleged that the trial judge erred in striking out of the testimony a paper which had been previously offered in evidence by plaintiff, and had been admitted by the court. W. B. Shugars testified that on July 18, 1910, the commitee handed him the written notification from the defendants, which was dated the previous day. That night another man was put to work by the brewery in the place of plaintiff. The plaintiff had already testified that Shugars had said to him that it would be best to let him go for the benefit of both sides, and had added: "I will give you a recommendation for the time you worked here and tell you why we had to leave you go." Shugars gave plaintiff the recommendation the same day, and when he was on the stand identified the letter of recommendation given to plaintiff, and signed by him. This letter of recommendation stated in substance that he had been discharged through no fault of his own, but at the demand of employés, because he had reported the dishonesty of one of them. The trial judge admitted the letter in evidence, and it was read to the jury; but on the following day the trial judge, having decided that the letter was in follows: "The res gestæ may therefore be defined as those circumstances which are the undesigned incidents of a particular litigated act, and which are admissible when illustrative of such the act by a lapse of time more or less appre act. These incidents may be separated from ciable. They may consist of speeches of any They may comprise things left undone as well ture is that they should be necessary incidents as things done. Their sole distinguishing fea. of the litigated act; necessary in this sense, that they are part of the immediate preparations for or emanations of such act, and are not promoted by the calculated policy of the actors." In Shadowski v. Railways Co., 226 Pa. 537, 539, 75 Atl. 730 (29 L. R. A. [N. S.] 302), our Brother Elkin said: "Under the doctrine of res gestæ, those circumstances which are the undesigned incidents of the occurrence upon which the suit is based may be proven when illustrative of the act about which complaint is made. It is true, also, that these incidents may be separated from the act by a lapse of time more or less appreciable; but they must grow out of and be in a legal sense immediately connected with the litigated act. They may consist of remarks made at the time by an actor, participant, and perhaps under exceptional circumstances by a bystander, if the party making the remark has to do with or is concerned about the occurrence. It is imperatively required, however, that they should be the necessary incidents of the litigated act in order to make such remarks admissible as testimony." Under the rule as stated and illustrated in these cases, we think the letter of recommendation was admissible in evidence, at least for the purpose of showing the fact of plaintiff's discharge, and showing that the only reason for it, as stated by his employer, was the demand and the threat made by defendants. The letter was given to plaintiff upon the same day of his discharge, and was a part of the transaction tending to illustrate and explain it. The discharge and the giving of the letter were practically parts of the same event. In so far as the plaintiff was concerned, the letter was an undesigned incident, showing the cause of his discharge, ers for the city of Reading, empowers the coun- of an unjustified action which was forced | 455), establishing a board of water commission-: upon the employer. We think, therefore, that the trial judge erred in striking out the letter, and in instructing the jury to disregard it. If the letter contained certain statements which were deemed to be irrelevant, the trial judge could have refused to admit such parts of the letter, or could have instructed the jury to disregard them; but, instead of doing this, he struck out the entire letter. If it had appeared from the testimony that Shugars had said to plaintiff: "We are obliged to discharge you because these 28 men have threatened to strike if we continue to employ you, and we have no other reason than this for discharging you" -it would hardly be contended that evidence of such a statement was not properly admissible as part of the res gesta. What difference does it make that Shugars made substantially this statement in writing, and handed it to plaintiff? The sixteenth assignment is sustained. We do not deem it necessary to consider in detail the remaining assignments of error. For the reasons which we have indicated, the judgment is reversed, with a venire faci as de novo. SO MOSCHZISKER, J., dissents from much of the above opinion as deals with the subject of res gestæ, under the sixteenth assignment of error. (244 Pa. 535) COMMONWEALTH ex rel. STRATTON, Mayor, et al. v. ELBERT et al. (Supreme Court of Pennsylvania. 1914.) Appeal from Court of Common Pleas, Berks County. Quo warranto by the Commonwealth, on the relation of Ira W. Stratton, Mayor, and others, against Edward Elbert and others, to determine title to office. From a judgment ousting defendants from the office of Commissioners of Water for the City of Reading, they appeal. Affirmed. in the common pleas: A careful study of all the questions raised in this important litigation, and of the various authorities bearing upon them, in the light of the very helpful arguments, both oral and printed, submitted by counsel, has led to the conclusion that Commonwealth v. Heller, 219 Pa. 65, 67 Atl. 925, furnishes a complete guide to the decision here to be made, and that that decision cannot, consistently with the doctrine of the case cited, be other than adverse to the defendants. The city of Reading has the title to its waterworks by conveyance to it in its corporate name. The relators here compose the council of the city under Act June 27, 1913 (P. L. 568). The defendants are the water commissioners elected, and holding office under Local Act March 21, 1865 (P. L. 455), a supplement to the city charter (Act April 26, 1864 [P. L. 5831), March 23, and under the city ordinance of March 28, 1865 (City Dig. p. 389), passed in pursuance of the act of 1865, creating and prescribing the functions, etc., of the "Department of Water" in charge of the water commissioners. In 1874 the city accepted Act May 23, 1874 (P. L. 230), and became a city of the third class. It is now, therefore, subject to the act of 1913. On December 6, 1913, the city council passed an ordinance, effective (see article 20, § 1, p. 627) December 17, 1913, assigning the waterworks system of the city to the department of parks and public property, prescribing the payment of bills contracted in the operation and maintenance of the same, providing for the appointment of a chief engineer of waterworks and an assistant engineer, and fixing their salaries, in which ordinance that of March 28, 1865, is expressly repealed. 1. STATUTES (8 93*) - SPECIAL AND LOCAL Act June 27, 1913 (P. L. 568), providing for the incorporation, regulation, and government of cities of the third class and election of officers therein, but excepting any city wherein the title to the waterworks is in the name of the commissioners of waterworks, empowers the council of any third-class city, where the title to the waterworks is not in the name of such commissioners, by ordinance to supersede the commissioners and take into its own hands the administration of affairs previously comImitted to the commissioners. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 557-561; Dec. Dig. § 205.*] 3. MUNICIPAL CORPORATIONS (§ 176*)—WATERWORKS-OPERATION OF STATUTE. Act June 27, 1913 (P. L. 568), if not directly repealing Act March 21, 1865 (P. L. It is contended on the part of the commonwealth that the existence of the board of water commissioners under the act and ordinance of 1865 is thus terminated; on the part of the defendants, that it remains unaffected. [1] The pertinent provisions of the act of 1913 are the following: Article 4, § 1 (p. 575): "The legislative power of every city of the third class shall be vested in a council, composed of the mayor and four councilmen. Said council shall have and possess in the select or common councils, or both thereall powers heretofore conferred upon or vested of, as heretofore constituted, unless otherwise provided." Article 5, § 3, cl. 13 (p. 584): "Every city of the third class * is authorized and empowered, * in addition to other powers granted by this and other acts, to create •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes * * * * * any office, public board or department which * Article 21, § 4 (p. 631): "All acts or parts of acts relative to cities of the third class, not inconsistent with the provisions of this act, shall be and remain in full force; and all acts and parts of acts, general, special or local, appertaining to the subject-matter covered by this act, so far as they are inconsistent with the provisions thereof, be, and the same are hereby repealed" (excepting Act April 22, 1905 [P. L. 260] for the preservation of the purity of water of the state). * " of the third class holding title, etc., and forbidden as to those not so holding. That is to say, special enactments obtaining in the latter are preserved from repeal by the act of 1913, just as by the act of 1889. Under either, their continuance in force is not a ground for declaring the enactment void. [2, 3] The decision in Commonwealth v. Heller, 219 Pa. 65, 67 Atl. 925, also disposes of the contention that Act June 4, 1901, (P. L. 364), can be invoked as repealing that of 1865. It further settles that a direction such as found in the act of 1913 (article 21, § 3, p. 631), making it the duty of the council forthwith to enact ordinances needful to effectuate the provisions of the statute, does not itself make mandatory provisions couched in permissive phrase. But the decision settles still more. It settles that, whilst the act of 1889 did not repeal ipso facto the local act of 1865, and at once put an end to the office and authority under it of the Reading water commissioners, yet it clothed the council with power to establish a new water department, and that, if and when they did so, the office and authority of the water commissioners under the act of 1865 would be superseded and terminated. Obviously this ruling has an important bearing upon the effect of the act of 1913. If it were indispensable to a disposition of the present case to declare whether or not the latter act repeals the act of 1865, and without any action on the part of the city council extinguishes the board of water commissioners, and wipes out the water department organized under the enactment and the ordinance of 1865, it might perhaps be possible to differentiate the act of 1913 from that of 1889 with respect to an apparent legislative intent upon this question, and to indicate a variety of features peculiar to the act of 1913 looking towards such repeal. Thus it might be in point to refer to the repealing clause as expressive of a distinct design to do away with local and special enactments inconsistent with the act of 1913, and to instance as one of the patent inconsistencies between it and the act of 1865 the right given by the act of 1913 to the city council to fix the water rates, a right under the act of 1865 resting with the water commissioners; the city councils having the power only to approve or disapprove what the commissioners proposed. Act 1865, § 5. Concerning article 5, § 3, cls. 13 and 43, it is urged on the part of the defendants that the provisos, alleged and admitted, and indeed well understood, to import an exception of the city of Erie from the operation of these clauses, render them unconstitutional and void, as local and special legislation. Under the decision in Commonwealth v. Heller, supra, however, this result cannot be conceded. Act May 23, 1889 (P. L. 277), in article 12, § 2 (page 309), gave certain powers relative to waterworks, etc., to "any city which * has the title to any water * * * works, by conveyance to the same in its corporate name." It was insisted that by this restriction, which excluded the city It might be further noted that the act of 1913, of Erie, the enactment was rendered special in article 8, § 1, p. 594, establishes five deand local, and therefore unconstitutional. But partments, with an option to the city council to the Supreme Court declined so to hold. create a board of health, governed by existing There seems to be no room for safe distinction laws as to such, and possibly having a status between the question as there arising under the outside of the enumerated departments (article act of 1889 and the question as here arising un- 11, p. 605); that the act of 1913 very closely der the act of 1913. In the former the exclu- follows that of 1889 in respect to the topics sion of the city of Erie resulted from the de- covered, their arrangement, and the detailed proscription of the cities to which the statute was visions concerning them; but that, whilst the declared in terms to apply, upon the principle act of 1889 contained a separate article on the "Expressio unius est exclusio alterius." In the "water and lighting department" which cities act of 1913 the description of the cities sub- were authorized to establish, and lengthy and jected to the enactment is general, and the ex- minute provisions as to its organization, reguclusion of cities wherein the title to the water-lations, and operation, the act of 1913 omits all works is in the commissioners and not in the of this, and among the departments named does city is added by way of proviso. If that ex- not mention a department of water. The conclusion were violative of any constitutional pro- clusion would appear to lie on the surface that hibition, it might be that, analogously to the the Legislature did not intend to continue such rule applied in Sewickley Borough v. Sholes, a department, as a department, but to bring the 118 Pa. 165, 12 Atl. 302, the proviso would management of the waterworks under the conhave to fall, leaving the enactment to stand as trol of the city council, to be assigned by it to applicable to all the cities its language, with- one of the five specified departments. If so, out the proviso, would comprehend. its continuance as a separate department under the act of 1865 and the preservation of that statute would necessarily have to be regarded as inconsistent with the provisions of the act of 1913. If, however, that be not the correct view, then the effect of the act of 1889 and that of the act of 1913 to create the exclusion must be accepted as practically the same. Whether the exclusion of one city of the third class is found in a restricted description of the cities to be comprehended, or in a superadded exception to a general description, cannot be material. By the one method as by the other, the present Again, it might be suggested that the manifest intent of the latter enactment is to furnish for the creation and government of cities of the third class generally a complete system by way of substitute for the one previously existing, at Where corporate business is conducted, without the certificate of incorporation having been recorded, as required by Act April 29, 1874 (P. L. 73), the subscribers conducting the business are not estopped, until such certificate is filed, from denying existence of the corporation in a suit on the subscription. [Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 77-79, 2504; Dec. Dig. § 29.*] 4. ESTOPPEL (§ 52*)-IN PAIS-REQUISITES. The doctrine of estoppel by matter in pais precludes a party, whose conduct has induced action by another, from afterwards asserting to the prejudice of that other the contrary of that in which his conduct has induced belief. same, and incidentally thereto to concentrate | 3. CORPORATIONS (§ 29*)-ACTION ON STOCK in the hands of the city council the direct and SUBSCRIPTION-ESTOPPEL. responsible control of all the agencies of the municipal government. Such an agency, and nothing more, has been the water department of the city of Reading as constituted under the act of 1865. Commonwealth v. Sewickley Boro., 159 Pa. 194, 198, 28 Atl. 169; Frame v. Felix, 167 Pa. 47, 52, 31 Atl. 375, 27 L. R. A. 802. Its further existence and operation under that statute would therefore appear incongruous with the very scheme and purpose of the act of 1913. But whilst all these and possibly still other considerations might tend to the conclusion that the act of 1865 was repealed by that of 1913, it is needless for the requirements of this case to give to the latter statute any effect greater or more peremptory than that given by the Supreme Court to the act of 1889 in Commonwealth v. Heller, supra, the most conservative and restricted that can possibly be given to the act of 1913, viz., treating its directions as facultative rather than imperative, the effect not of directly and immediately repealing the act of 1865, but of empowering the city council by ordinance to supersede the board of water commissioners and take into its own hands the functions and the administration of the affairs previously committed to that body. That power having been exercised by the council, there seems to be no ground for doubting that the existence of the board of water commissioners under the act and ordinance of 1865, and with it the office of the defendants, have come to an end, and that therefore the decision must be, as above indicated, in favor of the commonwealth in this case and against the defendants. The court entered judgment of ouster. Defendants appealed. Error assigned was the Judgment of the court. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and ELKIN, JJ. William J. Rourke, of Reading, for appellants. Henry P. Keiser, of Reading, for appellees. TONGE et al. v. ITEM PUB. CO. et al. (Supreme Court of Pennsylvania. March 16, 1914.) 1 CORPORATIONS (548*)-STOCK SUBSCRIPTIONS BILL TO ENFORCE-DISMISSAL. A bill in equity by judgment creditors of a corporation to enforce payment of stock subscriptions will be dismissed, where it appears that the organization of the corporation has not been perfected, that all the subscriptions have been canceled, and that the charter has never been recorded, pursuant to Act April 29, 1874 (P. L. 73), in the county where the business was to have been carried on. [Ed. Note. For other cases, see Corporations, Cent. Dig. 8 2182-2186; Dec. Dig. § 548.*] 2. CORPORATIONS (8 22*)-CORPORATE EXISTENCE- CONDITION PRECEDENT RECORDING OF CERTIFICATE. Act April 29, 1874 (P. L. 76) § 3, makes the recording of a certificate of incorporation "in the office for the recording of deeds in and for the county wherein the chief operations are to be carried on" a condition precedent to corporate existence. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 61-64; Dec. Dig. § 22.*] [Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 121-125, 127; Dec. Dig. § 52.*] 5. ESTOPPEL (§ 52*)—IN PAIS-REQUISITESFRAUD. To the existence of estoppel by matter in pais, the element of fraud is essential, either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up; there being no estoppel where the truth is known to both parties, or where they have equal means of knowledge. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 121-125, 127; Dec. Dig. § 52.*] 6. JUDGMENT (§ 700*)-PERSONS CONCLUDEDPARTNERS. While a suit against a partnership in the firm name only, without naming the individual partners, will support a judgment and execution against the partnership property, the judgment in such case will not bind individually a partner not served with process, or authorize the issuance of an execution against him. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1225; Dec. Dig. 700.*] 7. LIMITATION OF ACTIONS (8 127*)-PLEAD ING AMENDMENTS ALLOWABLE. Amendments introducing a new cause of action bringing in a new party, or changing the capacity in which a party is sued, cannot be allowed after the statute of limitations has run. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*] 8. LIMITATION OF ACTIONS (8 127*)-PLEADING- - AMENDMENTS ALLOWABLE- - CREDITOR'S BILL. The plaintiffs, in a suit by judgment creditors against subscribers to the stock of a corporation, cannot, after the statute of limitations has run, amend to convert their creditor's bill into a bill to subject individual property to execution under a judgment against the corporation. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. 88 543-547; Dec. Dig. 127.*] Appeal from Court of Common Pleas, Philadelphia County. Bill in equity by Henry Tonge and another, suing as well for themselves as for all other creditors of the Item Publishing Company, against the Item Publishing Company and others. From decree requiring de fendants to pay stock subscriptions, they appeal. Reversed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ. •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes John G. Johnson and F. F. Brightly, both of Philadelphia, for appellant Harrington Fitzgerald. G. W. Pepper and A. S. Weill, both of Philadelphia, for appellant Frances L. Fitzgerald. Joseph R. Embery, of Philadelphia, for appellees. POTTER, J. From the history of this case it appears that in October, 1906, Henry Tonge and Rae Tonge, his wife, brought suit against the "Item Publishing Company" for damages previously sustained, by reason of injuries to the wife through the negligence of the driver of a wagon, who was engaged in delivering the newspaper known as the "Philadelphia Item." The suit resulted in verdicts for plaintiffs. Judgments were entered thereon, and no appeal was taken therefrom. Execution issued against the corporate property of the Item Publishing Company was returned "nulla bona." [1, 2] The present bill in equity was filed by the judgment creditors against certain subscribers and against the legal representatives of certain subscribers to the capital stock of a corporation which it was proposed to organize in the year 1903 to be known as the "Item Publishing Company," and payment of the stock subscriptions then made was sought to be enforced. It appeared, however, that no organization of the proposed corporation was ever actually effected under the charter, and that all the subscriptions were canceled, and that the charter was never recorded in the recorder's office of the county of Philadelphia, where the business was to have been carried on. In Guckert v. Hacke, 159 Pa. 303, 28 Atl. 249, this court said: "It is plain, even from a cursory reading of the act of April 29, 1874 (P. L. 76), that recording of the certificate in the office for the recording of deeds, in and for the county where the chief operations are to be carried on,' was intended to be made one of the conditions precedent to corporate existence. That was the last of successive steps required to be taken, and the right to begin the transaction of corporate business was made to depend upon the taking of that step. 'From thenceforth,' the act expressly declares, the subscribers and their associates and successors 'shall be a corporation for the purposes and upon the terms named in the said charter.' One of the purposes of the act being exemption from personal liability in the transaction of business, it is obviously material that the public should have notice, and notice by record was accordingly prescribed. Failure to record was failure to comply with one of the express conditions of incorporation, and consequently of exemption from liability." In N. Y. Nat. Exch. Bank v. Crowell, 177 Pa. 313, 323, 35 Atl. 613, Guckert v. Hacke was expressly reaffirmed and followed. It is apparent, therefore, that the business of the Item Publishing Company was not carried on as a corporation, but as a partnership. Appellees would, without doubt, have had a right of action against appellants as partners; but they chose rather to sue the Item Publishing Company as a corporation. The sidered as establishing it as a corporation de facto; but that is not sufficient to sustain a bill in equity against the subscribers to the capital stock of the proposed corporation, to compel payment of the subscriptions. In Hahn's Appeal, 3 Sadler, 10, 12, 7 Atl. 482, 484, which was a bill in equity by creditors of a corporation to enforce stock subscriptions, Mr. Justice Trunkey said: "There is no reason for holding that the creditors have any better rights in equity against the subscribers of the new shares than belonged to the company itself." [3] Until the statutory requirements for the formation of a new corporation have been complied with, a subscriber to the stock is not estopped from denying the existence of the corporation. In Cook on Corporations (7th Ed. 1913) § 186, it is said: "There is one class of cases in which a subscriber for stock is always allowed to make the defense (to an action to collect the subscription for the benefit of corporate creditors) that the corporation has not been regularly and legally incorporated. Where the subscriber made his contract of subscription previous to and in anticipation of the incorporation, and does not by his subsequent acts acquiesce in the mode of incorporation, he may set up that the corporation has not been incorporated, and that he is not liable. The rule that a person contracting with a corporation recognizes thereby its capacity to contract, and cannot afterwards deny it in that transaction, does not apply to one who subscribes before incorporation. He may insist upon the organization of a regular and legal corporation." In 1 Morawetz on Private Corporations (2d Ed. 1886) § 67, it is said: "Every subscription by implication refers to and incorporates the terms of the charter or general law under which the corporation is to be formed, and every subscriber agrees to become associated with the others only upon condition that the formalities prescribed by the charter shall be observed in making the mutual contract. Thus, if certain preliminaries, such as the filing of a certificate, are required to be performed after the articles of association have been subscribed, but before the corporation shall be in existence, the contract of membership does not go into effect until these formalities are complied with; and a subscriber to the articles cannot until then be made to contribute the amount of his subscription." In 4 Thompson on Private Corporations (2d Ed. 1909) § 3854, it is said: "The rule is that a subscription to preliminary articles of association, not purporting to be a contract with an existing corporation, does not estop the subscriber from afterwards denying the legal existence of the corporation in a suit upon the subscription." The trial judge, however, reached the conclusion that "the defendants are estopped from denying the corporate existence of the Item Publishing Company." He evidently based this conclusion on two findings of fact: First, that from 1903 until 1908 the Item newspaper contained a notice that all communications should be addressed to the Item Publishing Company; secondly, that upon the various trials of the suit at law for damages, the company appeared, was represented by counsel, and made defense to the claims of |