trary, the law would have presumed such Owing to "divers disputes and unhappy reconciliation to have been upon the terms differences having arisen between" John A. of their previous written agreements. Singer and his wife, Adelaide V. Singer, "The case of Burkholder's App., 105 Pa. they entered into the agreement of January 31, decides: 'A postnuptial contract, the 6, 1902, by which they "agreed to live separmain object of which was the settlement of ate and apart from each other during their differences between husband and wife which natural lives," and "agreed upon the adhad caused a temporary separation is found-justment of their respective claims, rights, ed upon sufficient consideration; and after it has been fully executed by husband and wife during their lives, a provision therein in favor of the wife's issue by a former marriage, contingent upon the husband surviving his wife, and dying, will, after the happening of said contingency, be enforced in the settlement of the husband's estate in the orphan's court.' "The auditor decided against the claim of the exceptant upon the authority of the last-cited case and Fennell's Est., 207 Pa. 309, 56 Atl. 875, with other cases, which in our opinion on the facts admitted and the evidence, and found by the auditor, is clearly right and his decision must be sustained. "We have had no case cited to us like this, where the husband has created an estate in his wife, and executed separation papers in which he absolutely releases all property rights in his wife's estate during her life or after her death, where a like reconciliation took place under an agreement providing that the original separation agreement should remain stable in its provisions, as to property rights defined therein, where after the death of the wife the husband claimed against her will and was allowed to recover any share out of her estate, where the powers and liabilities of the parties to the contract are defined, as existing by law as in this commonwealth. "We are of the opinion that the auditor's finding of both law and fact are correct for the reasons stated in his report, and that his report should be confirmed. equities, trusts and reversions in and to all The ap "We need not consider the exception filed tional reconciliation. The terms of the by Margaret S. H. Porter. "The exceptions are dismissed at the cost of the exceptant, John A. Singer, and the report is confirmed." Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. W. F. Bay Stewart, W. R. Beach, Edward Chapin, and Frederick B. Gerber, for appellant. Richard E. Cochran and Smyser Williams, for appellee. MESTREZAT, J. In an elaborate report, the auditor found the facts and stated his conclusions of law. The learned court approved the findings of, fact and sustained the conclusions of law in an opinion which correctly disposes of the questions raised on this appeal. The appellant has failed to convince us of error in the findings of fact or of law, and hence the decree must be original agreement of separation as it was reaffirmed by the parties in their agreement of March 24, 1902, therefore, continued at the death of the decedent, Adelaide V. Singer." Regarding this as an established fact, the contract of March 24, 1902, must be sustained and enforced. [1] Deeds and postnuptial agreements for the actual and immediate separation of husband and wife, based upon a good consideration and reasonable in terms, are valid and effectual both at law and in equity in this state. They may be legally entered into by the parties without the intervention of a trustee. Com. v. Richards, 131 Pa. 209, 18 Atl. 1007. It must be conceded that the separation agreement of January, 1902, was valid, and that its several covenants were binding on the parties. Had Mr. and Mrs. Singer continued to live separate and apart in conformity with its stipulations, neither Pa.) LAND TITLE & TRUST CO. v. CONNOLLY 903 ance of the court to annul or set it aside | 309, 56 Atl. 875, and, the court having exafter the death of the other party. haustively reviewed the facts and law in its opinion, we regard any further discussion of the case as unnecessary. Decree affirmed. [2] It is equally true and is the settled law of the state that a subsequent reconciliation and resumption of marital duties by the parties, not affected by any agreement, would abrogate or invalidate the contract of separation made in January, 1902. Hitner's App., 54 Pa. 110. So much was conceded by the auditor and the court below. But the reconciliation of March 24, 1902, was in pursuance of the agreement of that date which set forth the terms on which the parties were to resume their relations as husband and wife and, as we have seen, republished, ratified, and confirmed all the stipulations in the contract of January 6, 1902, except the stipulation that the parties should live apart. Save in this one particular, the separation agreement of January, 1902, was the reconciliation agreement of March, 1902. The earlier agreement drops out of the case as effectively as if the stipulations therein had been inserted in terms in the later agreement. The rights of the parties depend entirely upon the last agreement which they unquestionably had authority to make. Fennell's Est., 207 Pa. 309, 56 Atl. 875. It was not a deed of separation but of reconciliation, defining the rights of each in the property of the other. The The "divers disputes and unhappy differences" which had existed between the husband and wife and which had caused their separation three months prior thereto were satisfactorily adjusted, and thereafter the marital relations of the parties were resumed under the March agreement. Under the findings of fact, there was no subsequent separation and reconciliation between the parties. The March contract was fully executed on the part of Mrs. Singer. She gave and did all she agreed to give and do. Her covenants were sacredly kept, and after her death it is too late for her husband to demand that he be relieved from the performance of his part of the contract. Equity will not permit him to retain the "claims, rights, equities, trusts and reversions in and to all her property" which she gave him, and, after the contract had been fully executed by her and she is dead, allow him to rescind the agreement and, in violation of its stipulations, participate in the distribution of her estate. Equity neither sanctions nor enforces a fraud. The parties having the power to enter into the contract of March, 1902, and no fraud, overreaching, or unfairness being alleged, and the wife having fully complied with her covenants, equity will compel the husband to observe his part of the agree ment. (233 Pa. 1) LAND TITLE & TRUST CO. et al. v. CONNOLLY et al. (Supreme Court of Pennsylvania. July 6, 1911.) CORPORATIONS (§ 331*)-BONDING INSURANCE -ACTION BY CREDITORS-LIABILITY OF DIRECTORS. A creditor of a bonding insurance company cannot maintain a bill for himself and others to enforce a liability against the officers of the business without having 10 per cent. of its stock company because they permitted it to begin paid in cash when the certificate was sworn to, and without having $125,000 of the capital paid in when it started business, as required by law that the acts caused loss to the corporation or of such companies, when there is no averment brought about its insolvency, and the claim is for moneys due by defendants to plaintiffs directly, and not through the corporation. Cent. Dig. §§ 1448, 1449; Dec. Dig. § 331.*] [Ed. Note. For other cases, see Corporations, Appeal from Court of Common Pleas, Philadelphia County. Bill by the Land Title & Trust Company for itself and others against Paul V. Connolly and others. From a decree dismissing the bill, plaintiffs appeal. Affirmed. The sixteenth and seventeenth paragraphs of plaintiff's bill were as follows: "That said Keystone Bonding Company never had a legal and valid existence as a corporation, but the pretended incorporation thereof was a fraud upon the law of the commonwealth of Pennsylvania in that 10 per cent. of the capital stock was not paid in cash to the treasurer at the time application was made for its charter, or at any time subsequent thereto. "That defendants unlawfully engaged in the bonding business under the title of Keystone Bonding Company for the reason that $125,000, the minimum amount of capital stock required by law to be paid up before such company could become authorized to engage in business, was never so paid. The total amount of cash received for the stock of the said Keystone Bonding Company during the entire period it was in existence was only $21,500, which said sum included the sum of $7,500 paid by the purchasers of 150 shares of stock on account of surplus at the rate of $50 per share." On demurrer to the bill, Audenried, J., filed the following opinion: "Our reasons for sustaining the demurrers to the bill in this case may be put quite briefly. The bill avers that the plaintiff is a creditor of a corporation, whose officers and directors, the defendants herein, embarked it in business without first complying with We agree with the auditor and orphans' court that the case is ruled by Burkholder's App., 105 Pa. 31, and Fennell's Est., 207 Pa. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes certain prerequisites therefor established by law, and upon false representations to the officials of the commonwealth that such prerequisites had in fact been complied with. It avers also that the corporation's business has been discontinued, that steps looking to the settlement of its affairs have been taken, and that certain of its assets have been so disposed of as to work a preference in favor of another of its creditors. Upon these averments the plaintiff, on behalf of itself and all other creditors of the corporation, prays the court to decree that the defendants are liable as partners for all losses caused to it and others through the business transactions carried on by the corporation in violation of law, and to appoint a referee before whom its claims and the claims of all others damnified by such unlawful transactions may be proved. The bill contains no averment that the acts of the defendants caused loss to the corporation, or brought about its insolvency. "If the corporation had sustained a loss at the defendants' hands, its claims against them might have been enforced by the corporation itself. So long as it was solvent, no right on the part of its creditors to move in the matter would be recognized. If the corporation has become insolvent, its creditors may ask for the appointment of a receiver to collect for distribution among those entitled to participate therein all the assets that it owns, including whatever claims it may have against its directors, and this is the usual and more orderly method of procedure, although, under certain circumstances, proceedings may be instituted directly against the directors by a corporate creditor acting on behalf of all concerned to compel the payment of debts or damages demandable from the former by the corporation. The present cause, however, is not one in which the plaintiff is endeavoring to enforce the payment of anything due by the defendants to the corporation. The claim advanced in the bill is for moneys due by the defendants to the plaintiff directly, and not through the corporation. "If it be conceded that because, under the guise of a corporation, the defendants engaged jointly in a business which the corporation had no legal right to carry on, they have become personally responsible as partners for the debts incurred in the name of the corporation, there is no reason why the plaintiff should not proceed against them at law. The legal remedy for the collection of a debt is ample, even when the debt is owed by several partners. "The allegation that the plaintiff's debt was fraudulently contracted in the name of the corporation through false representations that the corporation had a lawful right to engage in business does not serve to justify the intervention of a court of equity, since the redress afforded by law in such a case is as efficacious as any relief that equity can grant. "The fact that the plaintiff's bill is filed on behalf of all other creditors of the corporation, as well as its own, far from strengthening the case in equity, may open it to objection on the ground of multifariousness. The claim of each party who gave credit to the corporation stands on its own bottom. Whether any particular creditor of the corporation may enforce a claim for damages against all or any of these defendants depends not only on the making of false statements touching the finances of the corporation, but also on whether the creditor was actually deceived thereby and on other conditions, not all of which were necessarily present in the case of every debt contracted by the corporation. "Prior to the enactment of the national bankrupt law and the insolvency act of Pennsylvania, the preference of one of its creditors by an insolvent corporation, if there was no fraud in the contracting of the debt or in the transfer of the corporation's assets in payment of it, was entirely lawful, and neither at law nor in equity gave rise to a liability on the part of the corporation's directors in favor of the remaining creditors. While the legislation referred to has declared that all preferences given by an insolvent corporation shall, under certain circumstances, inure to the benefit of its creditors generally, it imposes no new liability to the corporate creditors upon the directors or officers concerned in a preferential disposition of the corporate assets. The bill, therefore, cannot be sustained upon the theory that the reinsurance of its risk on its surety bond held by the United States government was a breach of trust by those of the defendants concerned therein for which equity will hold them to account." Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and MOSCHZISKER, JJ. John G. Johnson, Guy H. Davies, and J. Claude Bedford, for appellants. Ira Jewell Williams, for appellee Charles G. Rapp. J. B. Colahan, 3d, for appellee Charles H. Wolf. Frank R. Savidge, for appellee William G. Halkett. Edwin O. Michener, for appellee W. L. D'Olier. Roy M. Livingstone, for appellee Wm. H. McCormick. Ormond Rambo and William B. S. Ferguson, for appellees Joseph M. Smith, Alfred V. D. Watterson, John L. Burns, Thomas E. Brehony, and John V. McCann. PER CURIAM. The decree is affirmed, at the cost of the appellants, on the opinion of Judge Audenried. Pa.) (233 Pa. 5) KINTER V. CONNOLLY KINTER v. CONNOLLY et al. (Supreme Court of Pennsylvania. July 6, 1911.) 1. CORPORATIONS (§ 563*) - RECEIVERS - ENFORCING LIABILITY OF OFFICERS. The personal liability of officers and directors of a bonding company resulting from false representations by them and permission by them to begin business without having 10 per cent. of the corporate stock paid in cash when the certificate was sworn to, and without having $125,000 of the capital paid in as required by law in case of title insurance companies, cannot be enforced by bill in equity by a receiver of the company. 905 to in the bill, or involved in loss through being induced to deal with a corporation which may have failed to comply with the requirements of the corporation laws, sustained an injury entirely distinct from that suffered by every one else in other transactions. Those deceived by the false statements referred to in the bill have no joint action against even such of the defendants as may have been involved in the frauds perpetrated upon them, and they cannot combine their claims against the defendants in the hands of a trustee, and enforce them in the same proceeding, either in law or in equlin this case, was not appointed by the court ty. The receiver, who figures as the plaintiff to act as the representative of a syndicate composed of all those who, by reason of false representations made or authorized or negligently permitted by the company's directors, or some of them, sustained losses, and he has no standing in equity to maintain a bill against the latter as partners to enforce, as a collective liability, all claims for damages Appeal from Court of Common Pleas, Phil-in respect of the separate and distinct wrongs adelphia County. [Ed. Note. For other cases, see Corporations, Dec. Dig. § 563.*] 2. CORPORATIONS (§ 333*)-RECEIVERS-EN FORCING LIABILITY OF OFFICERS. Though the national bankrupt law and the state insolvency act make any preference by an insolvent corporation under certain conditions. inure to the benefit of all its creditors, generally no personal liability is imposed on the directors or officers of the company concerned in the preferential disposition of its assets. [Ed. Note. For other cases, see Corporations, Dec. Dig. 333.*] which the several parties, who have had dealBill in equity by William L. Kinter, re-ings with the corporation, have sustained. ceiver of the Keystone Bonding Company, against Paul V. Connolly and others to impose personal liability on defendants as officers and directors of a corporation. From a decree dismissing the bill, plaintiff appeals. Affirmed. See Land Title & Trust Co. v. Connolly, 81 Atl. 903. [2] "The averment that the reinsurance by the Keystone Bonding Company of its risk on its surety bonds to the United States government was a breach of trust for which the defendants are answerable to that corporation establishes no right to relief against them on the part of its receiver. on the part of its receiver. Prior to the enactment of the national bankrupt law and in On demurrer to the bill, Audenried, J., solvency act of Pennsylvania, the preference filed the following opinion: "There are several reasons why the bill filed in this case cannot be sustained; but these are all embodied in the objection that the plaintiff has shown no right to invoke the equitable relief for which he prays. of one of its creditors by an insolvent corporation, provided there was no fraud in the contracting of the debt, or in the transfer of the company's assets in payment of it, was entirely lawful, and did not create a liability on the part of the corporation's di trust. While the legislation referred to has declared that under certain conditions any preference given by an insolvent corporation shall inure to the benefit of all its creditors generally, it imposes no new liability upon the directors or officers concerned in the preferential disposition of the corporate assets." Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and MOSCHZISKER, JJ. [1] "The plaintiff is the receiver of the Key-rectors to answer to it as for a breach of stone Bonding Company. As such it is his sole duty to hold and administer for the benefit of its stockholders and creditors any property or rights of action that belong to that corporation. He has authority to assert in appropriate proceedings whatever rights of action the corporation had or has against its directors or officers, who are the defendants herein. In the bill before us, however, there is no averment that any act or omission of those of the defendants who demur caused loss or injury to the Keystone Bonding Company. No claim is asserted against them on behalf of the corporation. If the defendants published statements which they knew, or ought to have known, to be false, with the result that their company gained a fictitious credit at the expense of those thus encouraged to do business with it, the wrong was suffered by the latter, and not by the corporation, and gave rise to no liability on the part of the defendants that the corporation or its receiver can enforce. Each person deceived by the statements referred Judge Audenried. John G. Johnson, Guy H. Davies, and J. Claude Bedford, for appellant. Ira Jewell Williams, for appellee Charles G. Rapp. J. B. Colahan, 3d, for appellee Charles H. Wolf. Frank R. Savidge, for appellee William G Halkett. Edwin O. Michener, for appellee W. L. D'Olier. Roy M. Livingston, for appellee Wm. H. McCormick. Ormond Rambo, for appellees Joseph M. Smith and Alfred V. D. Watterson. PER CURIAM. The decree is affirmed at the cost of the appellant on the opinion of *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes (233 Pa. 10) COMMONWEALTH v. COMPORTO. (Supreme Court of Pennsylvania. July 6, 1911.) 1. CRIMINAL LAW (§ 517*)-EVIDENCE-CON FESSION. In a trial for murder, a confession of a defendant, which fairly justifies an inference that he and another were jointly concerned in the commission of or attempt to commit a robbery, and that, though the killing was done by the other man inside the building while defendant was outside, the defendant had knowledge of the plan beforehand, is admissible. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1146, 1156; Dec. Dig. § 517.*] 2. CRIMINAL LAW (§ 1137*) - APPEAL - REVIEW-INVITED ERROR. Where, at the request of defendant, the court strikes out a portion of his confession relating to his criminal record, he cannot after wards demand that the entire confession be stricken out on the ground that it must go in as a whole, since he cannot complain on appeal of the action of the court at his own request in excluding a portion of the confession. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. § 1137.*] 3. HOMICIDE CIENCY. Massi in the p rpetration or attempt to perpetrate a robbery, and also that Comporto was a party to said robbery before it can ask for a verdict of guilty of murder in the first degree.' "(5) The learned court erred in refusing to charge the jury in the sixth point as pre sented by counsel for the defendant as follows: If the jury is not convinced beyond a reasonable doubt that De Massi killed deceased in the perpetration or attempt to perpetrate a robbery, then they cannot find this defendant guilty as indicted.' "(6) The learned court erred in refusing to charge the jury, as requested in the tenth point presented by counsel for defendant, as follows: 'Under all the evidence in this case the jury cannot find a verdict of guilty of murder in the first degree." Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and MOSCHZISKER, JJ. Charles J. Roney, Jr., and C. Stuart Patterson, Jr., for appellant. Wm. A. Gray, (§ 253*) - EVIDENCE-SUFFI- Asst. Dist. Atty., and Samuel P. Rotan, Dist. In a trial for murder, evidence that the de fendant and a confederate went to a house in the nighttime for the purpose of robbery, and that, according to the defendant's confession, the confederate went inside and did the killing while defendant remained outside, was sufficient to sustain a conviction of murder in the first degree, though the proof of the commonwealth apart from the confession did not indicate which of the two did the killing. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 523-532; Dec. Dig. § 253.*] Appeal from Court of Oyer and Terminer, Philadelphia County. Michael Comporto was convicted of murder in the first degree, and appeals. Affirmed. Atty., for the Commonwealth. POTTER, J. [1] The appellant, Michael Comporto, was charged with the murder of James F. Quinn during the perpetration of a robbery. He was convicted of murder of the first degree and sentenced therefor. In this appeal his counsel allege, in the first erred in admitting in evidence against their assignment of error, that the court below objection a confession made by defendant. They contend that the confession does not show such knowledge of the criminal design as to make it inculpatory. But with this suggestion we cannot agree. Our examination of the confession shows that defendant Errors assigned were in the following stated that, early on the day of the murder, form: "(1) That the learned court erred in overruling the objection of counsel for the defendant in the admission of the confession in evidence. "(2) The learned court erred in overruling the motion of counsel for defendant to strike out the portion of the confession that has been admitted in evidence. "(3) The learned court erred in charging the jury as follows: 'Now, therefore, we pass to the next questions of fact. There are two involved, whether the defendant did the shooting, or whether he was there, aiding and abetting; either one thing or the other. Either he did the shooting, if you find that fact, or he was there, aiding and abetting.' "(4) The learned court erred in refusing to charge the jury, as requested in the second point presented by counsel for the defendant, as follows: 'It is incumbent upon the commonwealth to prove beyond a reasonable doubt that the deceased was killed by De he met the man Frank, otherwise known as De Massi, who said he was going out to do something and get some money; that they were drifting around and drinking together all day; that together they entered Quinn's saloon in the afternoon and saw a man there counting money; that in the evening they went together to the vicinity of Quinn's saloon, and hid under cover of a stone wall until about 10:30; that then defendant's companion went into the saloon; that shots were heard almost immediately, and his companion came out with a pistol in his hand and told defendant that he had killed one man, and probably two; that he had shot one with a revolver in each hand, and had stolen $30; and that they went away together in a Germantown car, the murderer saying, “I have money to ride on the car now; come on." It is plain that the defendant sought to put the blame upon his companion, but the statement was properly admitted as evidence for the consideration of the jury. It fairly justified |