for the reason given in the Davis Case, supra. Whether two or more plaintiffs having separate and distinct contracts with a single defendant may jointly issue a summons, and after bringing the defendant into court be permitted to separately set up their particular causes of action, if there be no statute which directly or inferentially allows it, is to say the least doubtful, but the disposition of the present motion does not require consideration of this question, for in my opinion the proposed amendments by Weinberger and Kelsey, even if severance be allowed, present the same situation as was condemned in disposing of the demurrer above mentioned. The separate declaration which the plaintiff Kelsey proposes to file avers that Kupfersmith was insured as owner by the defendant by a written policy, a copy of which is annexed to and made a part of the declaration, and that the defendant also agreed to pay to one Charles Schlageter, as first mortgagee, and Clarence Kelsey, one of the plaintiffs as second mortgagee, the sum of $750 as their interests may appear. Bearing in mind that this is the same contract of insurance upon which the joint plaintiffs originally declared, and which, when spread upon the record, on the argument of the demurrer above referred to, this court adjudged did not show any contract with Kelsey, the logical result of the amendment would be a second demand of oyer and a demurrer, thus presenting the precise case we have already disposed of during the orderly proceedings in this cause. We have now before us the contract upon which Kelsey proposes to declare, and we have said it is not a sufficient contract to maintain his action against the defendant. Therefore the question which it is expected to present by the amendment is res judicata. It would be an abuse of our discretion to permit one plaintiff who we have solemnly said had not shown a right of action on facts declared jointly with others to separately set them up in an amended declaration as a support to a right of action already adjudged not to exist under them.

The motion to allow the plaintiff Kelsey to amend by filing a separate declaration of the character proposed should be denied, and I will next consider the motion made in be half of Weinberger.

In disposing of the demurrer, this court decided that Schlageter had no insurable interest in the property when the buildings were burned, having previously assigned his mortgage, which by subsequent transfers came to Weinberger, one of the plaintiffs,

the demurrer was sustained. He now moves to amend by charging that the defendant, with other insurance companies, employed counsel to procure from Schlageter an assignment of his mortgage and of all interest in certain policies of insurance issued by other companies than the defendant, naming them, to be made to the American Mortgage Company; that at that time the said counsel took from Schlageter an assignment of his interest in said policies; that the property was destroyed by fire; that the American Mortgage Company, acting under the instructions of defendant, assigned the mortgage to one Condict with all interest in sald policies "by an assignment not in writing," and as evidence thereof transferred to Condict a receipt for a policy issued by one of said insurance companies; that Condict, acting under the directions of defendant, assigned the mortgage to Clarence Kelsey, together with all his interest in any policies of insurance on the premises, and that the counsel employed by defendant represented to said Kelsey that the assignment "carried with it any and all the right and interest originally held by the said Charles Schlageter in said policies of insurance," and that subsequently Kelsey assigned all the interest he had in the policies to Weinberger. Giving this statement all the legal effect it is entitled to, it does not charge that the contract made with Schlageter by the defendant was ever assigned by Schlageter, or that the defendant company consented to any assignment. Certain policies of other companies are said to have been assigned, but not that of defendant, which was a contract to pay loss to Schlageter as mortgagee and did not extend to his assignees. It was a personal contract which Schlageter could not assign, at least not without such consent. Hence this amended declaration sets out no cause of action, and, as the plaintiff should not be allowed to amend without showing a right of action, the filing of this amended declaration is denied.

With regard to the amendment proposed by Kupfersmith, I think it should be allowed. The sustaining of the demurrer and the refusal to amend as to the two mortgagees leaves Kupfersmith as the only party to the record able to proceed, and the defendant cannot be embarrassed in pleading to his declaration. The argument advanced against this amendment, that the question likely to arise in this case has been disposed of in another action, is not sound, for it cannot be assumed that the proof will be the same in both cases. There was also a motion to allow the

the buildings on the mortgaged premises passed nothing to him, and, as that was the only evidence of his right to any interest in the policy, the facts set up did not show

ing under standard mortgagee clause, but manifestly this cannot be allowed. Martin v. Franklin Fire Insurance Co., 38 N. J. Law, 140, 20 Am. Rep. 372.

the receivers had allowed. This offer was submitted to the court by the receivers, and its acceptance was authorized by an order made upon notice to all the creditors. A

1. CORPORATIONS (§ 568*)-INSOLVENT CORPORATIONS-RECEIVERSHIP-PERSONAL LIA

BILITY OF RECEIVER.

A receiver of an insolvent corporation, who allows the claim of a creditor of the corporation and neglects to pay it hefore he transfers the property to a purchaser, is personally liable to the creditor for the claim as allowed, with interest to date of payment.

[Ed. Note. For other cases, see Corporations, Dec. Dig. § 568.*]

2. CORPORATIONS (§ 565*)-INSOLVENCY-PETITION OF CREDITORS.

A foreign creditor of an insolvent corporation, whose claim has been allowed by the receiver, who with the consent of the court accepted the bid of a reorganization committee for the purchase of the assets of the corporation, and for the payment of the expenses of the receivership in courts in sister states, may not, on his claim remaining unpaid, seek payment of the claim as part of the expenses incurred by the receivership in a sister state.

[Ed. Note. For other cases, see Corporations, Dec. Dig. § 565.*]

Suit by the Lockport Felt Company against the United Boxboard & Paper Company, an insolvent corporation, for which receivers were appointed. On petition by the Ousatonic Water Power Company against the receivers. Granted in part.

Edward Q. Keasbey and Edward A. Harriman, for petitioner. Sherrerd Depue, opposed.

HOWELL, V. C. The United Boxboard & Paper Company, a New Jersey corporation, became insolvent, and receivers were appointed for it in this jurisdiction. The petitioner is a Connecticut corporation, to which the Boxboard Company was indebted for water power under a power lease. The Water Power Company presented its claim to the receivers, and the same was allowed at $2,237.50. This was for rents that had accrued, and no other claim of any kind was ever presented to the receivers by the Water Power Company. Subsequently the reorganization committee was formed for the purpose of reorganizing the affairs of the Boxboard Company. That committee made an offer to the receivers for the purchase of the prop

committee to the Water Power Company for the amount at which the claim had been fixed and allowed by the receivers, but attached to or written on the check was the statement that it was paid and was to be received in full of all claims against the Boxboard Company. The Water Power Company refused to accept this check because it had another claim against the Boxboard Company which it did not present to the said receivers, fearing that such acceptance would cancel the claim, and the check was returned to the committee. In due course the property of the Boxboard Company which came to the hands of the receivers was transferred to the reorganization committee, and by them to a new corporation, called the United Boxboard Company, which was organized for the purpose of taking over the same. Meantime the claim of the Water Power Company remained unpaid, and has remained unpaid ever since. The object of the present application is to compel its payment, either by the receivers or the new company.

The debt is still unpaid, and the Water Power Company is entitled to its money. Primarily it is a claim on the receivers thereof, for the reason that they were appointed to administer the affairs of the company, and

in the course of the administration took into their possession all the company's property. [1] It was the duty of the receivers to see to it that the total indebtedness of the company was paid or satisfied in some way before they transferred the property to the purchasers, and, having neglected to do so, they have made themselves liable personally to the creditor for the amount of the claim as allowed, with interest to the date of payment.

[2] In the bid that was made by the reorganization committee for the purchase of the assets and property of the Boxboard Company, the committee assumed to pay or procure the new company to pay the expenses of the receivership in other courts in other states, so far as there shall not be sufficient assets in those states to pay those expenses. The petition of the Water Power Company alleges that there are large expenses incurred by the receivership in Con

in cash, and such further sum as should equal and amount to the entire sum due and payable upon the outstanding debts and liabilities of the Boxboard Company as they had been or might be ascertained and determined in the administration suit. This of fer, therefore, included the payment of the

pany. Whether these claims and expenses have been ascertained in the manner agreed upon I will not attempt to decide.

It is, however, quite certain that the present petitioner is not in a position to seek that relief, and I must decline to make any order whatever on that portion of the petition.

Charter of Passaic City, § 19, provides that the city council shall have power to expel members for disorderly conduct or a violation of its rules; but no expulsion shall take place, except by a vote of two-thirds of all the members elected, nor until the delinquent member shall have had five days' notice of the proceedings and an opportunity to be heard in his defense. As a result of oral charges made upon the floor of the city council chamber during a session of that body, the council passed a resolution "that a special committee be appointed by the president to investigate the transfer of certain licenses and the truth of certain charges against certain members of this council." The committee, without formulating written charges or directing a charge against any particular member of the council, cited certain members to appear before it to give their testimony, and on hearing such testimony reported to the council that one of the members cited was guilty of disorderly conduct in his official capacity, and recommended his removal, whereupon the council, without any further hearing or notice to the person so charged, passed a resolution declaring his seat vacant. Held, that the proceedings did not constitute due process of law, and that the attempted removal was invalid.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 949; Dec. Dig. $ 318.*] 2. CONSTITUTIONAL LAW (§ 251*) - "DUE PROCESS OF LAW."

Due process is "a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial."

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 726, 727; Dec. Dig. § 251.*

For other definitions, see Words and Phrases, vol. 3, pp. 2227-2256; vol. 8, p. 7644.]

3. MUNICIPAL CORPORATIONS (§ 159*)-CITY COUNCIL-EXPULSION OF MEMBERS-WAIVEB OF DEFECT.

The charter of Passaic City, § 19, empowers the city council to expel a member for disorderly conduct, but provides that no expulsion shall take place, except by a vote of two-thirds of all the members elected, nor until a delinquent member shall have had five days' notice of the proceedings and an opportunity to be heard in his defense. The city council passed a resolution that a special committee be appointed to investigate "certain charges" made upon the floor of the council chamber "against certain members of this council." The committee, without formulating written charges, cited certain members of the council to appear before it to give their testimony, and reported to the city council that one of the witnesses so testifying had been found guilty of disorderly conduct in his official capacity, and recommendęd his removal. The council thereupon, without any further hearing or proceedings, passed

4. MUNICIPAL CORPORATIONS (§ 154*)-CITY COUNCIL-EXPULSION OF MEMBER - DELEGATION OF POWER.

The council of Passaic City cannot delegate to a committee the power to try one of its members for alleged disorderly conduct in his official capacity under section 19 of the charter of such city, empowering the council to expel members for disorderly conduct, and providing that no expulsion shall take place, except by a vote of two-thirds of all the members elected, nor until a delinquent member shall have had five days' notice of the proceedings and an opportunity to be heard in his defense, since the power of the council is derived solely from such charter provision.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 350; Dec. Dig. 154.*]

5. MUNICIPAL CORPORATIONS (§ 156*)-CITY
COUNCIL
EXPULSION OF MEMBERS
GROUNDS-GRAFTING - "DISORDERLY CON-

DUCT."

A member of a city council who is guilty of "grafting" is liable to expulsion for disorderly conduct within the meaning of Passaic City Charter, § 19, empowering the city council to punish or expel its members for disorderly conduct.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 346; Dec. Dig. § 156.*

For other definitions, see Words and Phrases, vol. 3, pp. 2107, 2108.]

6. MUNICIPAL CORPORATIONS (§ 159*)-CITY COUNCIL REMOVAL OF MEMBER-PROCEEDINGS.

Since the power of the city council of Passaic City to expel members is derived solely from section 19 of the city charter, the proceedings are statutory, and the requirements of the statute must be strictly pursued.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 350; Dec. Dig. § 159.*]

Certiorari by the People, on the relation of Norman D. Darmstatter, to review a resolution of the city council of Passaic City vacating his office. Resolution set aside.

Argued by consent before MINTURN, J.

Edward F. Merrey, for prosecutor. John Scott Davison, for defendant.

MINTURN, J. The writ of certiorari in this case removes for review a resolution of the city council of Passaic City, declaring vacant the seat held by the prosecutor in that body. [1] The legality of this action is challenged upon the ground that the prosecutor had neither notice of a trial nor a hearing before the city council, as required by the nineteenth section of the city charter which empowers the city council to "punish or expel a member for disorderly conduct or a violation of its rules, but no expulsion shall take place except by a vote of two-thirds of

to a trial before the council.

heard in his defense."

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 350-356; Dec. Dig.

$159.*]

The procedure which resulted in his expulsion consisted of a resolution passed by the council as the sequence to certain charges

er, 68 N. J. Law, 97, 52 Atl. 289.

In the consideration of this case I have not found it necessary to peruse the testimony taken, and I find it unnecessary to consider the merits of the question involved therein. My attention has been directed solely to the legal question of procedure presented by the record, and upon that, for the reasons I have advanced, my conclusion is that the resolution in question, declaring vacant the seat of this prosecutor, must be set aside.

either verbal or in writing, actual or constructive, until a long time after said note was due, and that the first and only notice received by her in regard to the nonpayment of said note was by a letter received from plaintiff's attorneys some time in March, 1910, or the latter part of February, 1910. She avers that she has and had at the time said note was due a well-known place of residence at 1406 Pennsylvania avenue, Allegheny, Pa., now a part of the city of Pittsburg, and that she did not receive any notice there or at any other place, nor did any one on her behalf receive any notice there or at any other place. She calls upon plaintiff to produce the original note, to declare when no. tice was given, how it was given, and, if by mail, to what address the same was sent."

The court made absolute rule for judgment for want of a sufficient affidavit of defense. Argued before BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1533, 1562; Dec. Dig. § 482.*1

Appeal from Court of Common Pleas, Allegheny County.

Action by the First National Bank against Katherine A. McBride. Judgment for plaintiff, and defendant appeals. Reversed.

Defendant filed the following affidavit of defense: "It is true and deponent admits the execution on December 11, 1909, by the Pittsburg Tubular Steel Whiffletree Company of the note, a copy of which is attached to plaintiff's statement of claim. She avers, however, that she indorsed said note for accommodation only; that she received no value and had no interest whatever in said note other than that of an accommodation indorser. She avers that she has no knowledge of presentment of said note at maturity, but, if same was presented for payment and payment was refused, she had no notice of the nonpayment, and, in the absence of notice to her of the nonpayment, she is advised and believes that there is no liability for her indorsement. The deponent has no knowledge that said note was protested, and she therefore denies and demands proof of the same. She avers, however, that, if said note was protested, the notice of the same was not sent her in accordance with the law concerning notice of nonpayment."

Defendant filed a supplemental affidavit of defense as follows: "She has no knowledge that the note sued upon was not paid, and she therefore denies and demands proof of

STEWART, J. This was an action against an accommodation indorser. Judgment was rendered against the defendant for want of a sufficient affidavit of defense. Whether

the affidavit was sufficiently responsive to

the statement of the cause of action is the

question. Except as the defendant was duly notified, in accordance with the requirements of the law, of presentment, demand, and failure to pay, she was discharged from liability on the note. The affidavit distinctly denies personal service of notice, orally or otherwise. If it stopped here, its insufficiency would be apparent, for the reason that personal service is not required. Notice of dishonor duly addressed that is to say, addressed to the party to be served, and to the post office nearest his place of residence, or to the post office where he is accustomed to receive his letters, and deposited in the post office is sufficient in law, notwithstanding any miscarriage in the mails. The plaintiff's statement simply avers that "the note was not paid at maturity, due presentment and demand having been made, and that the defendant had due and timely notice of said nonpayment." The certificate of the notary is made part of the statement. It certifies that the notary exhibited the note where payable, at the proper time, and demanded payment which was refused, the answer being: "No funds, whereof I duly notified the indorser." If it be allowed that such certificate of notice falls within the act of December 14, 1854 (P. L. [1855] 724), which makes the certificate of a notary prima facie evidence of the facts therein stated-a mat