author: Sharswood, J. —

text:
    Allegheny City versus Blair.
    1. An act authorized a borough council, on the petition of a majority of owners on any street, &e., to require its grading, paving and curbing, and on. like petition to require ‘‘the grading, paving and curbing of the- curb-way of Bank lane and collect the costs, &c.,” by. an assessment on the lot-owners, provided that there should be made at the expense of the borough a “ protection of the same on the river side,” &c. The borough contracted for grading and curbing Bank lane ; and was afterwards annexed to a city by an act extending the laws relating to the city and its ordinances to the borough. One of these laws authorized the councils to grade, &c., any street, &c., and levy a special tax on the abutting lots according to their front, to pay the cost. The councils of the city entered into anew contract for cui'bing Bank lane next the wharf, to prevent the pavement from giving way. Held, that the lot-owners were liable for the costs, &c., of curbing.
    2. The lot-owners in the borough were not parties to the original contract, and theij' consent was not necessary to its rescission.
    3. Schenley v. Commonwealth, 12 Casey 60, followed.

      October 9th 1873.
    Before Read, C. J., Ag-new, Sharswood, Williams and Mercur, JJ.
    Error to the District Court of Allegheny county: Of October and November Term 1872, No. 163.
    This was a municipal claim for $165.58, with interest, &c., for grading and paving River avenue, filed April 19th 1871, by the Mayor, &c., of the City of Allegheny, against a lot, &c., on the north side of River avenue, belonging to Kinder Blair.
    A case stated was agreed on by the parties, and filed September 2d 1872, as follows:—
    Duquesne borough, Allegheny county, was on the 5th day of May 1864, an incorporated borough.' At that date the defendant’s property, against which the municipal claim in this case was filed, was in said borough, and abutted upon Bank lane, now River avenue, a street of said borough', running along the bank of the Allegheny river. On said date an Act of Assembly, relative to said borough, was approved. On the 12th day of March 1867, an Act of Assembly relative to the' annexation of the borough of Manchester to Allegheny City, was approved. On the 3d day of February 1868, the councils of said borough, by resolution, authorized the burgess to advertise for proposals for grading and paving said Bank lane, and on the 10th day of February following, the contract for grading and paving said Bank lane was awarded to P. F. Howley & Co., and the burgess was, by resolution, authorized to enter into an agreement therefor with said Howley & Co., which was accordingly done. On said date the said councils passed a resolution consenting to the extension of the boundary line of Allegheny City, as provided by Act of 12th March 1867. No ordinance authorizing the grading and paving of said Bank lane was ever adopted by the councils of said borough, nor was any work done thereon prior to the 11th day of June 1868. On the 18th day ■of March 1868, an Act of Assembly, entitled “An Act annexing a portion of Duquesne borough to Allegheny City,” was approved. On the 11th day of June 1868, the councils of the ■city of Allegheny adopted “An ordinance relating to certain contracts made by the late borough of Duquesne,” and on the 23d day of July proximo, adopted another ordinance authorizing wooden curbing on Bank lane. The new contract authorized by ordinance of the 11th day of June 1868, was duly entered into. Bank lane was graded and paved, and a proper curbing placed on the river side for its protection; and said curbing was necessary for the proper support and protection of the street. An assessment was made under the laws of the city of Allegheny for said work against defendant’s property. Said assessment included his proportion of the cost of said curbing, amounting to $171.57. Defendant has paid all his assessment, except said.sum of $171.57, which he refuses to pay. If the court should be of opinion that under this case stated, the defendant is liable for his proportion of the cost of said curbing, then judgment to be entered against said defendant for said sum of $171.57, with interest from 1st January 1871, and costs of suit, otherwise judgment to be entered'i'n his favor.
    By the Act of 1864, referred to in the case, it was provided:—
    “ Sect. 1. That the council of the borough of Duquesne should have power on the petition of a majority of the property-holders on any streets, to require by ordinance the grading, paving and curbing of such street, &c., and to levy and collect the cost and expenses of such grading, paving and curbing by a pro ratd assessment upon the feet front of property abutting, &c., on such street.

      “ Sect. 5. That the councils should have power on like petition to require the grading, paving and curbing of twenty feet of the curb-way of Bank lane, and collect the costs and expenses as above provided; provided that the councils shall cause to be made, at the expense of the borough, a good and permanent protection of the same on the river side of Bank lane.
    “ Sect. 7. On the payment by the owner of any lot of the amount of paving done within thirty days after it is completed, he shall be entitled to a credit of five per cent, from the amount, or he may then pay one-fifth, and the remainder in four annual payments with interest.”
    By the Act of March 12th 1867, also referred to in the case, it was provided:—
    “ Sect. 1. That the boundaries of the city of Allegheny should be extended so as to embrace the borough of Manchester, and that all pdwers conferred upon the city of Allegheny should extend over the borough ‘ together with all the ordinances now in force in said city.’
    “ Sect. 2. That all real and personal property of every nature and kind whatsoever, all taxes assessed and due, together with all moneys, debts or choses in action, or other rights whatsoever now held and possessed by said borough, or held in trust or executory contracts, or in anywise pertaining to or belonging to said borough, are hereby transferred to and vested in the city of Allegheny; and all the liabilities and indebtedness, of said borough are hereby imposed upon and declared to be assumed by the said city of Allegheny, and said indebtedness and liabilities shall be paid, discharged and performed without diminution or abatement by the same.

      “ Sect. .4. That the said city of Allegheny shall have power to extend her northern boundaries, by a direct line from the northeast corner of the said borough of Manchester, to a point of intersection with the northern boundary of the borough of Duquesne, and from the said point of intersection to the eastern terminus of the line of said borough of Duquesne, whenever the council of the said borough of Duquesne shall consent to the extension of the said boundary line, provided the said borough of Duquesne shall be annexed on the same terms and conditions as the said borough of Manchester.”
    By the Act of March 18th 1868, referred to in the case, it was provided that the boundaries of Allegheny should be extended so to embrace portions of Duquesne borough, as therein set out.
    “ Sect. 2. That from and after the passage of this act, all powers conferred upon said city by the various Acts of Assembly, he and the same are hereby extended to and over the inhabitants and territory hereby annexed, together with all the ordinances now in force in said city.
    “ Sect. 3. That the Act of Assembly incorporating the borough of Duquesne is hereby suspended over that portion of said borough that lies within the above-described boundaries, provided that said borough shall continue to exist as a corporation for a period of thirty days, to enable the officers of the borough to settle the business of said borough, and to adjust and divide the property, claims and debts of said borough, so that the part remaining as the borough of Duquesne, and the part annexed shall each receive their due proportion of property, and pay their due proportion of debts respectively based on the county valuation of said borough.”
    By “An Act relative to the city of Allegheny,” the councils were authorized “ to grade and pave any street, and shall have power to levy and collect a special tax for defraying the costs and expenses, by an equal assessment on the feet front abutting” on such street.
    The Aet of March 1852 provides for filing in the office of the prothonotary of the Court of Common Pleas the claim for the costs and expenses of the grading, &c.
    The ordinance of the 11th of June 1868, of the councils of the city, referred to in the case, reciting the contract with Howlcy & Co., by Duquesne borough, for grading and paving Bank lane at the rates set out, enacted:—
    Sect. 1. That the committee on streets should- “ enter into new contracts with the aforesaid contractors for grading and paving the street, at the same rates, with a deduction of five per cent.”
    Sect. 2. Authorized the levying of tax on the lots abutting on the same, in proportion to their feet front, to pay the costs and expenses.
    Sect. 3. Authorized the filing of the claim in accordance with the provisions of the Aet of 1852.
    By ordinance of July 23d 1868, referred to in the case, the councils of the city enacted:—
    “ That a wooden curbing be constructed on the side of Bank lane, Eighth ward, next the wharf, for the purpose of preventing the pavement giving or sliding away.”
    On the 17th of September 1872, the court (Hampton, P. J.) entered judgment on the case stated for the defendants.
    The plaintiffs took a writ of error and assigned for error, the entering judgment for the defendant.

      W. B. Rodgers, for plaintiff in error. —
    Under the laws of Allegheny, the cost of curbing would be properly assessable on the property abutting on the street: Schenley and Wife v. The Commonwealth, 12 Casey 60; Marshall v. The Commonwealth, 9 P. F. Smith 455. The Annexation Act did not find any vested right in the defendant, in relation to the payment of the cost of the construction of the curbing. The property-owner is no party to the contract for paving a street. The contract may be changed and his liability increased without his consent: Marshall v. The Commonwealth, 9 P. F. Smith 455; Dillon on Municipal Corp., p. 609.

      J. F. Slagle (with whom were J. W. F. White and A. S. D. W. Bell), for defendant in error.
   The opinion of the court was delivered, October 20th 1873, by

Sharswood, J. —

It is not disputed that the legislature has full power to extend the limits of the city of Allegheny over the borough of- Duquesne, or any part of it, and to provide that all powers conferred upon the said city by the various Acts of Assembly should be extended to and over the inhabitants and territory so annexed, together with all' the ordinances in force in said city, as was done by the Act of Assembly, approved March 18th 1868. What the effect of such an extension would be upon existing contracts of the borough of Duquesne, as to the grading and paving of streets, is not a question here, because the contract of the borough with P. F. Howley & Co. for the grading and paving of Bank lane, was rescinded by the parties, and a new contract entered into, under and by virtue of an ordinance of the city of Allegheny of June 11th 1868. The case stated finds expressly that such new contract was duly entered into. It is very plain that the grading and paving under this ordinance was subject to the Acts of Assembly in existence as to Allegheny City, and according to those acts “the city councils of the city of Allegheny shall have power by ordinance to grade and pave any street, lane or alley, or any parts thereof, within the corporate limits thereof, and shall have power to levy and collect a special tax for defraying the costs and expenses of the same by an equal assessment on the feet front bounding and abutting as aforesaid.”

The property-owners were no parties to the original contract of Ilowley & Co. with Duquesne borough, and their consent was not necessary to its rescission : Marshall v. The Commonwealth, 9 P. E. Smith 455. If the laws relating to the city of Allegheny had required, as did those relating to the borough of Duquesne, the petition of a majority of the lot-holders before a street could be graded and paved, there would have been some reason for the contention that there could not be a new contract without a new petition, and that under the old petition the street could not be graded and paved, except subject to the condition that “said councils shall make or cause to be made, at the proper cost of the said borough, a good and permanent protection of the same on the south orAiver side of Bank lane.” But as to Allegheny City no such petition is required. It is agreed by the case stated that the curbing in question was necessary for the proper support and protection of the street, and was therefore a proper part of the charge for paving, for which the defendant was liable: Schenley v. The Commonwealth, 12 Casey 60.

Judgment reversed; and now, judgment for the plaintiffs against the defendant for the sum of $171.57, with interest from the 1st of January 1871.


source: Caselaw Access Project

author: Sharswoob, J.— Williams and Mercur, JJ. —

license: Public Domain

text:
    Wier’s Appeal.
    1. A business which is useful and necessary in large communities, and which is not a nuisance of itself, may become so in view of the circumstances m the neighborhood in which it is proposed to carry it on.
    2. There is a distinction between a long-established business, which has become a nuisance in a locality from the increase of population, &e., and a new erection threatened in such vicinity.
    3. Carrying on an offensive trade for any number of years in a place remote from buildings and public roads, does not authorize its continuance there when houses have been built and roads laid out and it is a nuisance to the occupants and travellers.
    4. It requires a much clearer case for a chancellor to compel the removal of an establishment in which the owner has invested his capital and carried on business for a long time, than of one to be established for the first time, against notice that there will be application to equity to prevent it.
    5. The legislature has recognised that the storing of gunpowder in large ■quantities in thickly settled places is a nuisance to be guarded against by public authority.
    6. The erection of a powder-house was in this case restrained, without the existence of actual irreparable damage, but to prevent it.
    7. Circumstances in this case sufficient to restrain the erection and maintenance of a powder-magazine.
    8. Rhodes v. Dunbar, 7 P. R. Smith 274, followed.
    October 9th 1873.
    Before Read, C, J., Agnew, Sharswood, Williams and Mercur, JJ.
    Appeal from the Court of Common Pleas of Allegheny county : In Equity: No. 159, to October and November Term 1872.

      This was a bill filed June 30th 1871, by James Gr. Wier and twelve others against Arthur Kirk, for an injunction to restrain him from erecting and maintaining a powder magazine in Indiana township, near dwellings of the complainants, in the neighborhood of the borough of Sharpsburg.
    The bill set out:—
    1. The plaintiffs were residents and property-holders as above stated.
    2. The defendant, Arthur Kirk, is owner of a piece of ground, of about nine acres, situate in said township, lying on the Sharps-burg and Kittanning turnpike road, and bounded by lands of -.said James Gr. Wier, John C. Noble, Henry Noble and Anthony Boyer.
    3. The said Arthur Kirk, the defendant, has recently commenced to excavate and prepare for the. erection of a building upon his said lot or piece of ground aforesaid; and plaintiffs are advised and verily believe, and so expressly charge, that the said defendant is about and intends to erect and establish on his said premises .aforesaid, a powder-magazine, or place to store gunpowder, and to place in said building, when completed, and to keep in store therein large quantities of gunpowder.
    4. From the place where defendant contemplates erecting said powder-house or magazine, to said_ turnpike road, the distance is only about ninety-twro feet; to the dwelling of James Gr. Wier, is five hundred and eighteen feet; and two hundred and fifty feet only from the line of said Wier’s lot. To'the dwelling of said Anthony Boyer, is about nine hundred and fifty feet, and from the line of his lot one hundred and. forty-two feet. From the line of Dr. Henderson’s lot seven hundred and three feet. From the line of John 0. Noble two-hundred and twenty-eight feet. From the line of Henry Noble’s land about six hundred feet. From the line of-Wm. Henderson’s- lot about seven hundred and eighty-eight feat; and from his dwelling ten hundred and eight feet. From the line of J. S. McPherson’s lot thirteen hundred and eight feet.
    The property of other plaintiffs is all in the immediate neighborhood.
    There are also many other dwellings of small lot-holders in the immediate neighborhood.
    The immediate neighborhood is thickly settled and fast filling up with buildings, dwellings and other improvements.
    5. -The erection and maintaining of a powder-house or magazine on the premises aforesaid, would greatly endanger the lives of your orators, and their families and servants, from explosion; a!nd also the lives and property of the public travelling on said Sharpsburg and Kittanning turnpike-road.
    The contemplated construction of said powder-house or magazine, by said defendant, bas already greatly depreciated the value of property of said plaintiffs, and of all real estate in the neighborhood. If the same is erected and maintained it will be a common nuisance.
    When your orators first heard of said defendant purchasing said premises for the purpose aforesaid, they gave him notice not to attempt to locate a powder-magazine on said premises, and believing that he might and would disregard the remonstrance of the neighborhood, they had formal written notice served upon him on the 9th of June 1871.
    The prayers were for an injunction restraining defendant from erecting and constructing, or maintaining a powder-house or powder-magazine on the premises aforesaid; and for further relief.
    A preliminary injunction was granted, according to the prayer of the bill.
    The defendant answered:—
    1. He denied that any of the plaintiffs resided or owned property so near to his building as rendered it probable that any one of them or their families would ever sustain damage to their persons or property.
    2. He admitted that he had purchased the property mentioned in the bill at a cost of pver $5500, for the purpose of erecting on it a safe, suitable and proper house for the storage of powder, which is required to be kept on hand by him as a legitimate dealer i’n that article of commerce, to enable him to carry on that business and supply the demands of the Pittsburg market. He admitted the distance of the lot from Sharpsburg as set out in the bill.
    3. He denied that it was his intention to store in it powder in
    such quantities as to justify a reasonable apprehension of danger to the plaintiffs, &c. This paragraph describes the location and construction of the magazine, and avers that it had cost him $9000. _ .
    _ 5. States the distances from the magazine to the turnpike, and to the several properties of the plaintiffs.
    6. Denied all the allegations of the 5th paragraph of the bill, and averred that he intended “to erect a small powder-house, or magazine, of the most approved style of fire-proof buildings for that purpose; its roof and sides to be covered with slate, and to combine in its construction and management everything that .science and experience in the business have 'demonstrated to be necessary in order to prevent accident or damage and to secure entire safety.”
    He denied that it would be a common nuisance, and averred that “ powder is a necessary article of daily consumption and use at Pittsburg and vicinity, and in his said business he is required to keep it constantly on hand for immediate delivery to the mining, quarrying and manufacturing establishments in this vicinity, and that it is utterly impossible for him to carry on his said business and supply the demand for the Pittsburg trade, in case he is prohibited from erecting and maintaining a suitable and proper house or magazine, within convenient reach of the city, in which he can store his stock on hand; and that there is no other location known to him within practical reach of the city, which can be used for this purpose with so groat safety to the surrounding residents, property-owners and the public as that upon which he is now erecting his said store-house.”
    0. J. Fetterman, Esq., was appointed examiner and master to take testimony and report the facts. He examined many witnesses, drafts, &c., submitted to him. He reported: — -
    “ The powder-magazine in controversy, belonging to xlrthur Kirk-, the defendant, is built on a piece of land owned by himself, situated in Indiana township, Allegheny county, Pennsylvania; the land abutting on the Sharpsburg and Kittanning turnpike, one of the principal roads leading from the borough of Sharpsburg back into the adjacent townships.
    “ The magazine stands in a ravine, the axis of which is apparently from south-east to north-west, and at a right angle with the turnpike. The descent of the' ravine and the open side thereof with respect to the magazine, being towards the north-west, fronting towards the turnpike; the natural angle or rise of the ravine from the turnpike being from twenty-five to thirty degrees. The magazine stands in an excavation made entirely across the ravine, about twelve or thirteen feet in depth vertically; the nature of the stratifications in which the excavation is made being, for four or five feel from the surface, earth and loose slate, and the remainder of the depth a very hard slate rock. The walls or sides of the excavation are vertical. The magazine is a very light frame structure, the lumber used in its construction being pine, a species of timber offering the least resistance-in case of an explosion, and being as light as would be consistent with safety and a due regard to the purpose for which the building is to be used. There is but one door or opening in the building. The floor thereof is well secured by secret nails. The sills and joists of the building rest on a bench of slate rock, about four feet higher than the bottom of the excavation proper, and the whole exterior, including'the roof, being well covered with slate; it was completed in the month of July 1871. The magazine is built on the plan now generally adopted, and highly approved for merchant magazines, as testified to by several witnesses of great knowledge and long experience in the construction of and superintending powder-magazines.
    “ Shortly after the magazine was completed, a quantity of powder in kegs was placed therein; probably four hundred or five hundred kegs; but the exact number was not known by the witnesses. Since then a large portion of it has been removed.

      “ The turnpike opposite the magazine is about forty feet wide, and from the centre thereof to the magazine the distance is one hundred and fifteen feet, or ninety-five feet from the inner edge of the pike to the magazine. The distance from the nearest point on the line of the borough of Sharpsburg to the magazine is about thirty-four hundred and fifty feet. Following the line of the turnpike, and by an air-line, the distance would be somewhat over one-half of a mile. The magazine is not visible from Sharpsburg, as there are several high hills between Sharpsburg and the magazine.
    “ From the magazine to the dwelling of James G. Wier, one of the plaintiffs, the distance is about five hundred and ten feet, and from the line of his lot to the magazine the distance is about two hundred and fifty feet. On an air-line these distances would not be so great, as there is a hill about eighty feet high intervening, and the dwelling also standing somewhat upon the side of a second hill, considerably above the level of the magazine. Wier’s house is not visible from any point of the excavation in which the magazine stands, the view being entirely obstructed by the intervening hill; hut sighting on a line with the south end of the comb of the roof of the magazine, two or three of the upper courses of brick, in the extreme left chimney of the house, may be seen ; and from a point immediately in the rear of the magazine, on the side of the hill, three or four feet above the comb of the roof of the magazine, an ordinary-sized man, by standing erect, can see the upper story of Mr. Wier’s house.
    “ The distance from the dwelling-house of Andrew Boyer, also one of the plaintiffs, to the magazine, is about nine hundred and ninety feet, his land abutting on the turnpike about one hundred and thirty-five feet from a point on the turnpike opposite the magazine. The house stands on the top of the hill on the opposite side of the ravine, along which the turnpike leads from the magazine, and somewhat to the left of the magazine. On an air-line the distance would not be so great. There is considerable timber standing on the side of the hill, which in a great measure obstructs the view of the house from any point immediately around the magazine. The house is not visible from the inside of the excavation, because of a portion of the hill in its natural state forming the wall of the excavation next to the turnpike. The house may bo indistinctly seen through the timber from different points on the side of the hill above the level of the roof of the magazine, and possibly from a point outside of the excavation below the magazine, towards the turnpike; but the outside wall of the excavation, next to the turnpike, completely shuts out the view of the house from the magazine itself.

      “ The distance from the tenant-house of W. G. M. Henderson, one of the plaintiffs, to the magazine is about eleven hundred feet, and to his own dwelling about twelve hundred feet, and about seven hundred feet to the line of his land. The dwelling-house stands on the opposite side of the ravine from the magazine, and somewhat to the right of it, with considerable timber standing on the hillside between it and the magazine. The dwelling is not visible from any part of the excavation in which the magazine stands, by reason of the point of the hill on the north-east side of the magazine projecting beyond the magazine almost to the edge of the turnpike; but from about the same point on the hillside above the magazine, where Wier’s house can be seen, the' dwelling of Mr. Henderson may be seen somewhat indistinctly through the timber. Mr. Henderson’s tenant-house stands over the brow of the hill beyond his dwelling, and is not visible from any point about or above the magazine. The dwellings of Mr. Henderson and of James G. Wier and Andrew Boyer are the only houses in any way visible from the magazine, or from any point about it.
    “ Besides the four dwellings just mentioned, there are twenty to twenty-five other houses and buildings within a radius of one-half a mile of the magazine; but all, with the exception of those already mentioned, are entirely out of sight of the magazine, and separated from it by high hills and deep ravines; a greater part of the houses and buildings being on the extreme half-mile line, on a small stream called the West Branch, on the left of the turnpike, on which there are a number of houses. * * *

      “ Land in the neighborhood of the magazine is worth from five hundred to one thousand dollars per acre. The opinions of the witnesses as to the probable effect the magazine in its present location will have upon the value of the land, are very conflicting. A number of the witnesses testify that it will depreciate the land to fully one-half its value; others allege that it will be depreciated almost its full value; while others again assert that it will have very little if any effect. The witnesses evidently based their opinions upon their knowledge of the nature of powder and their experience in its use. Those having the least familiarity with its nature and use, alleging the greatest depreciation; while those having an intimate knowledge of, and long experience in the use of powder, say that the present location of the magazine will cause scarcely any appreciable diminution in the value of property in the vicinity. The. witnesses could not testify to any actual depreciation in the value of property; their opinions were predicated of what they supposed or imagined would be the probable effect; their estimates of the damages being altogether speculative and contingent. In the neighborhood -of the magazine the land is owned generally in lots of ten acres, up to large farms of from one hundred to two hundred acres: a considerable portion of which is timber land, the cleared land being used for ordinary agricultural purposes. At the present time this section of the country is about as thickly settled as ordinary agricultural districts generally are. In a few years, as the population ■ of the cities and suburbs increase, and their limits are extended, these lands around and m the vicinity of the magazine, may be much sought after for building sites, for country residences, and homes for the laboring classes; but there is now too much more desirable and convenient land nearer the business centre to meet the present demands of the people, to give any reasonable ground for believing that this section of the country in the immediate neighborhood of the magazine, will soon be much more thickly populated than it now is.
    “ Mr. Wier, Mr. Noble, and one or two other persons that were called as witnesses in the case, testified that they were more or less apprehensive of danger to their families and property from the present location of the magazine, and asserted that they were constantly uneasy as to their safety, and annoyed by the complaint^ and fears of their wives and children, as well as their own personal annoyance, and fear of the possibility of an explosion of the magazine and the probable consequences thereof.
    “ Powder is a necessary and staple article of consumption in Pittsburg and vicinity, being used for mining, quarrying and other purposes. The yearly consumption being, on an average, ten thousand to fifteen thousand kegs; and, to conduct the powder trade properly and safely, it is absolutely necessary to have suitable and well-built magazines, in safe and convenient locations near the city, so that the principal stock of powder necessary to be kept on hand to meet the demands of the trade, may be stored therein. (The average stock of powder necessary to make an assortment to meet the demands of the trade of Pittsburg, being from one thousand to three thousand kegs.) The magazines should be in such convenient places, having a due regard to the safety of the surroundings, as to permit teams to go from the city to them and back during the day, and allow reasonable time for the shipment of the powder to fill orders, &c.
    “From the peculiar and well-selected location of Mr. Kirk’s magazine, the comb of the roof extending scarcely above the upper edge of the excavation, with considerable timber standing on the hills and in the ravines surrounding it, it is comparatively secure from lightning or fire, or from any other cause, unless managed with the grossest carelessness and negligence, or fired by the hand of an incendiary; who, in all probability, would be the only victim of his own rashness and villany. * * *
    “ In case of the explosion of any quantity of powder, the direct danger from the explosion is increased according to the smoothness of the surface, and of course diminished according to its rough, broken and hilly character. Were the magazine in controversy to explode, while four hundred to six hundred kegs of powder were stored in it, the direct effect of the éxplosive force would be to strike the walls of the excavation, blowing off all the surface and loose rock down to the solid slate rock. This dirt, rock, &c., would be thrown in all directions, and if any of it was large enough, would be converted into projectiles, and thrown a considerable distance from the place of explosion, and might do considerable harm; but the main force of the explosion would be directed towards the open side of the excavation on the north-west side of the magazine, converting the excavation and ravine, as itv'ere, into a-large mortar, blowing all before it, and destroying everything that might be standing on the turnpike, or on the opposite hillside, within the focus of the mouth of the .ravine. But there would be no direct danger to any building in the neighborhood from such an explosion. Any damage that'would be occasioned, would be incidental, caused by flying projectiles, or the reactionary force of the atmosphere in filling up the vacuum caused by the displacement of the air, such as breaking glass, bursting in the doors, &c., and if a house chance to stand with its side to the magazine, it might possibly be thrown off its foundation. Mr. Wier’s house is the only one that would be in any possible danger of being thrown over by the force of the concussion, and that danger would be comparatively slight, as the force of the explosion on the side next to his house would be in a great measure spent by the time it reached the top of the intervening hill, and then being able to exert itself in all directions, its force would still further be decreased by the time it reached his house, if indeed it might not possibly pass entirely over his house from the upward course it would receive on coining in contact with and glancing up the side of the hill next to the magazine, at an angle of about forty-five degrees. '
    “ The allegations in the first four paragraphs of the complainants’ bill, with the exception of the last three clauses in the fourth paragraph, and some slight discrepancies in the distances mentioned, are substantially true.
    “ I cannot discover from all the testimony in the case, that the land of any of the plaintiffs, except Messrs. Wier, Boyer, Henderson and Noble, lies in the immediate neighborhood of the magazine, nor ‘ that there are many other dwellings, and small lot-holders,’ or- ‘ that the immediate neighborhood is thickly settled and fast filling up with buildings, dwellings and other improvements,’ as alleged irx the last three clauses of the fourth paragraph of the bill.
    •“ Th'e master cannot ado,pt the allegations contained in the first clause of paragraph five of the bill, as being a strictly true and correct statement of the facts as they actually exist, but refers to the-preceding pages of this report for the facts as they really exist, which are fairly and fully warranted by the testimony in the case.

      “ As to the second clause of the same paragraph, had the plaintiffs alleged that the damages to their property were merely speculative, contingent and eventual, they would have approximated more nearly the real state of facts, fairly deducible from the testimony.
    “ The allegations set forth in the sixth paragraph of the bill are substantially correct.
    “ The allegations contained in the answer of the defendant are substantially correct.
    “ The plaintiffs allege in the third clause of the fifth paragraph of their bill, that the erection and the continuing of the powder-magazine in controversy in its present location for the storage of gunpowder, ! is a common nuisance,’ and invoke the extraordinary power of a court of equity to restrain and enjoin the defendant from further using the building for the purposes for which it is intended. * * *
    “A powder-mill, magazine, chemical laboratory, soap factory, tin shop, &c., are not nuisances per se; no trade, employment or business, which the law recognises as lawful and proper for man to engage in,,can be such; and from a careful examination of all the authorities within my reach, I have not been able to find a case wherein any lawful trade or calling has been held to be a nuisance per se, but become nuisances only by reason of the peculiar circumstances surrounding them. * * *
    “ The only Acts of Assembly in this state relating to powder are confined in their operations to the city of Philadelphia, regulating the transportation and storage of powder in the city, (Purd. Dig. 518, and the 31st section of the Act relating to Boroughs, Purd. Dig. 117), authorizing the borough authorities to limit and prescribe the quantity of powder, fireworks and turpentine, and other inflammable articles, and to prescribe such other safeguards as may be necessary, but omits making any of the acts therein specified nuisances ; nor are any of the above enumerated acts or articles mentioned in any statute relating to nuisances.
    “ Testing the present case in the absence of any statutory provision, by the principles enunciated in the cases already referred to, and by the facts as they exist in this case, there can be no question that the magazine in controversy is not a common nuisance, being constructed of the best and most suitable material; on the plan generally adopted for such buildings, at a reasonable and safe distance from any dwellings or highway, and protected in the best possible manner in its location, from fire or the effects of lightning, and owned and managed by a gentleman, to whom has been accorded every qualification and fitness for the management of such a building, the danger of an explosion is too remote to justify the fears and apprehensions which several of the witnesses seemed to entertain. But it is not contended that keeping powder in a magazine properly constructed, may not, in cases of gross negligence, become dangerous and a nuisance; but that the storing of it in this way is lawful in itself, and not in every instance a nuisance, on account of the building being in the neighborhood of dwelling-houses or contiguous to public highways.
    • “ But conceding, for the present, that the magazine in controversy is a public or common nuisance, what is the position of the complainants? * * * The plaintiffs must charge the defendant with doing acts which constitute a private nuisance to them, and which must be established, not by the fears and apprehensions of the complainants, but by clear and satisfactory proof of actually existing danger. -The fears of mankind, however reasonable, are not sufficient to create a nuisance.
    “ It is not alleged, on the part of the complainants, that there is any present actual danger to them or their property from the present location of the magazine, but that they are annoyed by the thought and apprehension that an explosion may possibly occur, and if they should chance to be in the vicinity, might possibly be killed or injured, or that their families might be injured and their property destroyed. Their estimates of the damages to their real estate are not based upon any facts, but merely speculative and conjectural, as to the probable contingent effect the use of tho magazine for the storage of powder may have upon their property. There is no evidence of any actual depreciation in the value of their land, or that any of them have been prevented from selling their real estate by reason of the magazine in its present location, or that any persons have been deterred from purchasing land in the vicinity on account 'of the alleged danger, resulting from the proximity of the magazine; on the contrary, it was shown that during all the time the magazine was being built, lots were .sold almost daily about one-half mile therefrom; and 'also that Dr. Henderson, one of the complainants, has, since the erection of the magazine, or rather since its commencement, with a full knowledge of its destined use, staked off ground within sight of and but a few hundred feet from the magazine, upon which he proposes to build himself a large residence. And further, there is no evidence in the case showing that any of the plaintiffs or their families have been or are suffering any annoyance or inconvenience other than their frequent dwelling upon the thought, of a possible explosion and the probable and contingent result thereof. * * *
    “We may here repeat that it is shown by the most reliable testimony that this magazine is constructed upon the most approved plan -and of the best and most suitable material, in the most secure and safe manner; that it is fully sufficient, in all respects, for the purpose for which it is intended, and may be used with safety to all parties, and that nothing but gross carelessness and negligence will render it liable to explosion. And even should an explosion occur, it could scarcely endanger the complainants, for, as already stated, the building being located in an excavation in the ravine, the force of the explosion would be directed up the sides of the ravine, where there are no houses, and out of the mouth of the ravine, striking the opposite hillside, where there are likewise no houses within the focus of the mouth of the ravine; and there is but the slightest possibility that any person would chance to be on the pike opposite the ravine, just at the precise moment of explosion. The testimony shows nothing more than the apprehension of the complainants that, by the negligent and improper use of the magazine for the storage of powder, they or their families and property may be endangered. * * *
    ' “ Believing, therefore, that the aspects in which we have considered this case are fully sustained by the several authorities cited, the master respectfully submits the following as his conclusions, arrived at after a careful examination of the testimony in the case:—
    “ 1. That the magazine in controversy is not a common nuisance, as alleged and charged in the third clause of the fifth paragraph of complainants’ bill.
    “ 2. That the complainants have failed to show, by any means whatever, any grounds upon which to base any reasonable apprehension of danger to themselves, their families and property from the present location of the magazine in controversy, or that they have sustained any real, actual damage to or depreciation in their property, or that there is any reasonable apprehension of an explosion of the magazine while being used with reasonable care, for the purposes for which it is intended.”
    The master recommended a decree dissolving the injunction.
    The defendant filed exceptions to the master’s report. After argument, the court overruled the exceptions and confirmed the report, dismissed the bill and ordered that each party pay half the costs.
    The plaintiffs appealed to the Supreme Court, and in a number of specifications assigned the overruling the exceptions and dismissing the bill for error.

      A. M. Brown and J. Barton (with whom was S. Svhoyer, Jr.), for appellants,
    cited Rhodes v. Dunbar, 7 P. F. Smith 274.

      Gf. Shiras (with whom were J. W. Kirher and T. W. Marshall), for appellees. —
    A powder-magazine is not a nuisance per se: People v. Sands, 1 Johns. 78; Carpenter v. Cummings, 2 Phila. R. 74; Rhodes v. Dunbar, 7 P. F. Smith 274; Richards’s Appeal, Id. 105; Huckenstine’s Appeal, 20 Id. 102.
   The opinion of the court was delivered, October 20th 1873, by

Sharswoob, J.—

The great difficulty in all cases of this character is not in the ascertainment of the true rule of equity, but in the application of that rule to the facts. While it may be easy to draw the line between what is and what-is not a nuisance, which equity ought to enjoin, it is by no means so easy to determine' whether the circumstances of any particular case ought to place it on one side or the other of that line. It is rare that any number of men will he found to agree in their judgment upon such a question. One remark, however, may be hazarded, as preliminary to a brief consideration of the circumstances of this case, in which I think all will agree. There are many kinds of business, useful, and even necessary, in every large community, especially where manufacturing' is carried on on a large scale, which certainly are not nuisances in themselves, but which nevertheless become .so in view of the circumstances of the neighborhood in which it is proposed to establish them. The present Chief Justice, in his opinion at Nisi Prius, in Rhodes v. Dunbar, 7 P. F. Smith 275, enumerates twenty-nine kinds of such useful establishments which have been declared public nuisances. There is a very marked distinction to be observed in reason and equity between the case of a business long established in a particular locality, which has become a nuisance from the growth of population and the erection of dwellings in proximity to it, and that of a new -erection threatened in such a vicinity. Carrying on an offensive trade for any number of years in a place remote from buildings and public roads, does not entitle the owner to, continue it in the same place after houses have been built and roads laid out in the neighborhood, to the occupants of which and travellers upon which it is a nuisance. As the city extends, such nuisances should be removed to the vacant grounds beyond the immediate neighborhood of the residences of the citizens. This, public policy, as well as the health and comfort of the population of the city, demand: 7 P. F. Smith 275. It certainly ought to be a much clearer case, however, to justify a court of equity in stretching forth the strong arm of injunction to compel a man to remove an establishment in which he has invested his capital and been carrying on business for a long period, of time, from that of one who comes into a neighborhood proposing to establish such a business for the first time, and who is met at the threshold of his enterprise by a remonstrance-and notice that if he persists in his purpose, application will be 'made to a court of equity to prevent him. In the case* before us the defendant occupies this position.

It is not contended that a powder-magazine — a building for-storing large quantities of gunpowder — in the midst of a thickly-settled neighborhood, is not a nuisance. By the Act of Assembly-of March 20th 1856, Pamph. L. 137, it is made unlawful for any person or persons to have or keep any quantity of gunpowder or-gun-cotton in any house, store, shop, building, cellar or other place •within the city of Philadelphia (except in the public magazines, or in a quantity not exceeding two pounds for private use), unless in the manner provided in the act, which provisions in the main are, ■»that no person shall deal in the article without a license, and if licensed, shall not keep on hand more than twenty-five pounds, and shall have a painted sign distinctly legible to all passers-by, with the words “ Licensed to sell gunpowder,” and that every carriage for conveying the article shall have painted on each side, in letters distinctly legible to all passers-by, the word “ Gunpowder.” A public magazine has been erected, by the authority of the Commonwealth, near the mouth of the Schuylkill, and a state superintendent appointed, whose fees are regulated by law: Act of May 5th 1864, Pamph. L. 841. One of the general powers conferred upon boroughs by the Act of April 3d 1851, Pamph. L. 320, is “ to prohibit within the borough the carrying on of any manufacture, art, trade or business, which may be noxious or offensive to the inhabitants; the manufacture, sale or exposure of fireworks or other inflammable or dangerous articles, and to limit and prescribe the quantities that may be kept in one place of gunpowder, fireworks, turpentine or other inflammable articles, and to prescribe such safeguards as may be necessary.” Thus the legislature has recognised that the storing of gunpowder in large quantities in thickly-settled places, is a nuisance to be guarded against by public authority. But it is not confined to cities and boroughs. This court has acknowledged and declared it as a case clearly within the general rule of equity upon this subject, in the opinion of the majority as pronounced by Mr. Chief Justice Thompson, in Rhodes v. Dunbar, 7 P. F. Smith 274. After remarking upon the particular character and danger of the •establishment, the subject-matter of the complaint in that case, which was a steam planing-mill, which had long been established in the neighborhood, had been burned down, and the injunction asked for was against its re-erection, and which the majority of the court thought was not within the rule — he proceeds: “ These observations give no just grounds to draw the inference ■•that a powder-magazine or depot of nitro-glycerine, or other like explosive materials, might not possibly be enjoined even if not prohibited, as they usually are, by ordinance or law. It is not on the ground alone of their liability to fire, primarily, or even secondarily, that they may possibly be dealt with as nuisances, but on account of their liability to explosion by contact with the smallest spark of fire, and the utter impossibility to guard against the consequences, or set bounds to the injury, which, being instantaneous, extends alike to property and persons within its reach. The destructiveness of these agents results from the irrepressible gases once set ,i,n motion, infinitely more than from fires which might ensue as a consequence. Persons and property in the neighborhood of a burhing building, let it burn ever so fiercely, in most cases have a chance of escaping injury. Not so when explosive forces instantly prostrate everything near them, as in the instances of powder, nitro-glycerine and other chemicals of an explosive or instantly' inflammable nature.” This reason is so cogent that nothing could be added which would increase its force.

All that remains, then, is to inquire whether the circumstances of the neighborhood in which it was proposed to establish the magazine in question, are such as to bring it within the rule. Let us remember that it is a new erection which is asked to be enjoined, not the continuance of an old one.' Actual irreparable damage, actual depreciation of property, of course, does not exist. It is the prevention of these consequences which is the object of the process. Perhaps the immediate neighborhood is not so densely filled up— in connection with the evidence in the case of the careful construction and location of the building to guard against the worst probable consequences of an explosion — as would justify the court in ordering its removal. But, as we have shown, this is not the case. The neighborhood is not thickly settled, but it is fast filling up. Land is in demand for small buildings, villas and country residences, and its market value before this structure was contemplated was at a high figure. It is evident that it must sensibly affect that value and the growth of the district. This might not, however, be sufficient of itself. The borough of Sharpsburg is a thriving suburban village of this great western metropolis, where already many persons engaged in professional, mercantile or manufacturing business, have purchased sites, erected houses, and permanently reside, in order to escape from the smoke, soot and noise of the city. The distance of the structure complained of from the line of the borough is about half a mile. An explosion might do serious injury, at least, by breaking glass, even at that distance, and it is not beyond the reach of a projectile. It is all futile to sit down and calculate, as if by a mathematical formula, the force, size and direction of such a projectile. The natural laws which govern the direction of such forces are as yet undiscovered. It must, in the nature of things, be the merest conjecture. The evidence in the cause in regard to the explosion which occurred near Maysville, Kentucky, showed this very clearly. The house of the witness, Isaac Swartzwelder, was situated seven-eighths of a mile from the magazine. He said: “ The explosion bursted every window and door of my house right open; it took the windows right out. There was a rock weighed eighty pounds; some one weighed it next morning. It fell right back of where I was sleeping, within eighteen inches of where I was lying.” Another witness testified: “At the time the powder-house in Brooklyn, containing eight hundred or one thousand kegs of powder — eighteen to twenty tons — exploded, it broke glass at Fly-market, New York city, clear across the sound, about three-fburths of a mile.” One of the complainants, Mr. Weir, has his residence within five hundred and ten feet of the magazine, and there are several other residences further off, but still within the reach of the consequences of an explosion, if reliance is to be placed upon such facts as these. Even the witnesses for the defendant — some of them military men of great experience and sound judgment— admit there would be some danger from an explosion if it should occur, but they consider the danger as very slight, and that the location and construction of the building are well calculated to guard against' the worst consequences. But besides all this, a public turnpike-road runs very near the building. As the master reports, “ from the centre thereof to the magazine the distance is one hundred and fifteen feet, or ninety-five feet from the inner edge.” It is peculiarly exposed to danger, for the magazine is constructed in a ravine, funnel-shaped, opening out towards the road. It presents, with its rocky bed and sides, a huge mortar aimed directly at the turnpike. We may take what the master reports upon this subject. “Were the magazine in controversy to explode while four hundred to six hundred kegs of powder were stored in it, the direct effect of the explosive force would be to strike the walls of the excavation, blowing off all the surface and loose rock down to the solid slate rock. This dirt, rock, &c., would be thrown in all directions, and, if any of it was large enough, would be converted into projectiles and thrown a considerable distance from the place of explosion, and might do considerable harm; but the main force of the explosion would be directed towards the open side of the excavation on the north-west side of the magazine, converting the excavation and ravine, as it were, into a large mortar, blowing all before it, and destroying everything that might be standing on the turnpike, or on the opposite hillside, within the focus of the mouth of the ravine.”

We have come to the conclusion, then, that the complainants in the bill in the court below were entitled to the relief for which they prayed.

Decree reversed, and now it is ordered and decreed that this cause be remitted to the court below, with direction to issue an injunction conformably to the prayer of the bill restraining the defendant, Arthur Kirk, from maintaining a powder-house or powder-magazine on the premises described in the bill, and from erecting and constructing such a powder-house or magazine in that vicinity.

Costs of the appeal to be paid by the appellee.

Williams and Mercur, JJ. —

Upon the finding of the master, we think the bill in this case was properly dismissed, and would affirm the decree of the court below.


author: Agnew, J. —

text:
    McGinnis versus Commonwealth ex rel. McGinnis.
    1. Issues of fact, -whether by way of traverse or feigned issue, when tried before a jury according to the course of the common law are subjects of writs of error.
    2. The trial is conducted and bills of exception to evidence or the charge are as in other jury trials.
    3. A writ of error lies to the rulings and charge of the court, on the trial of a traverse of the finding in proceedings in lunacy, &c.
    4. The effect of the finding of the inquisition is prim& facie and on the trial of a traverse throws the burthen of disproof on the respondent.
    5. The finding, although a traverse be put in, places the custody of the person and estate of the respondent in the hands of the court.
    6. After a respondent has given evidence in answer to the inquisition, the relator may give evidence in rebuttal to establish the finding.
    7. In proceedings to establish habitual drunkenness, it is sufficient to find that fact; the law establishes incapacity and the jury on a traverse need not determine the respondent’s ability to transact business.
    •_ 8. Leckey v. Cunningham, 6 P. F. Smith 373 ; Ludwick v. Commonwealth, 6 Harris 172; Rogers v. Walker, 6 Barr 371, followed.
    October lOtb 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    . Error to the Court of Common Pleas of Allegheny county: No. 9, to October and November Term 1873.
    This was a proceeding to inquire into the habitual drunkenness-of John McGrinniss, commenced July 30th 1872, upon the petition of Eleanor McGrinniss his wife. An inquest was awarded, which found the respondent an habitual drunkard. The inquisition was returned September 2d 1872, and September 3d the respondent traversed the finding. The traverse was tried November 18th 1872, before Stowe, J.
    The relator, under objection and exception, gave in evidence the record of the inquisition with the finding, and rested.
    The respondent then called and examined a number of witnesses, for the purpose of answering the finding of the inquest and showing that the respondent was capable of transacting business discreetly, and rested.
    The relator, in rebuttal, called Frederick Flack, and in answer to an inquiry by respondent, said that it was proposed to prove by this and other witnesses that the respondent was an habitual drunkard at and before the inquisition found, and also facts rebutting defendant’s evidence.
    The offer was objected to by the respondent, admitted by the court and a bill of exception sealed.
    The relator, by a number of witnesses, gave evidence tending to show that the respondent was an habitual drunkard.
    Both parties having closed, the defendant, amongst other points, submitted the following, which were refused:—
    1. Unless the jury find that the traverser, John McGrinniss, was, at the time of the finding of the inquisition, non compos mentis, their verdict must be in his favor.
    3. Before the jury can find the traverser, John McGinniss, an habitual drunkard, they must find that he was so under the control of an appetite for intoxicating liquors that it subjected him to its power frequently, regularly and irresistibly, so that he was more generally drunk than sober.
    4. Before the jury can find the traverser, John McGinniss, a habitual drunkard, it must be shown to their satisfaction, not only that he was an habitual drunkard with occasional fits of drunkenness, but that his habitual drinking left him permanently and constantly under the influence of intoxicating liquors.
    5. The court is asked to charge the jury that unless John McGinniss is first found to be of unsound mind and rendered incapable of attending to his own business, the Constitution, sect. 6th, Art. 5th, prohibits the finding him an habitual drunkard.
    6. The court is asked to charge the jury that under the 1st section of the 9th Article of the Constitution of Pennsylvania, the jury are prohibited from finding McGinniss an habitual drunkard under the law, unless they first find him of unsound mind.
    7. The court is asked to charge the jury that the court and jury have no power or authority over any person, under the Constitution, unless he is first found to be of unsound mind.
    The court said further:—
    * * * “ In short, the main object of the law, so far as a man's property is concerned, is upon the legal assumption of unfitness to attend to his estate from the fact of habitual drunkenness to interpose a committee and the Court of Common Pleas between him and his property, and to substitute their authority and discretion for his own in the management of his estate. It does not always follow that because a man is an habitual drunkard, he is therefore unfit to manage his property; but experience proves that such is the ordinary effect .of such a condition, and that generally drunkenness does destroy the intellectual faculties, and, if sufficiently continued, generally destroys life itself. And therefore the law says that if a man is found, in a case like this," to be an habitual drunkard, he shall not manage his estate, even though he, in the particular case, might appear to be perfectly competent to do so.”
    The verdict was for the Commonwealth.
    The respondent sued out a writ of error, and assigned for error:—
    4. Admitting in rebuttal the evidence of Flack and other witnesses.
    5-10. The answers to his points.
    11. The portion of the charge as above.
    15. Admitting the inquisition.
    When the case came on for hearing in the Supreme Court, the defendant in error moved to quash the writ of error.

      J. R. Large, for plaintiff in error.

      A. M. Brown and T. M. Marshall, for defendant in error. —
    The proceeding being statutory, and there being no provision in the statute allowing a writ of error, we deny the right of the plaintiff in error to the writ in this case: Warden v. Eichbaum, 2 Harris 21; Baker v. Williamson, 2 Barr 116; John Gest’s Case, 9 S. & R. 317; Lewis v. Wallick, 3 Id. 410; Ruhlman v. The Commonwealth, 5 Binn. 24; Aurentz v. Porter, 12 Wright 335; Haggerty’s Case, 4 Watts 305; Commonwealth v. Beaumont, 4 Rawle 366. The effect of the inquest' is to shift the burden of proof to the party asserting capacity, instead of where it would otherwise lie, on the party alleging incapacity : Leckey v. Cunningham, 6 P. F. Smith 370; Hutchinson v. Sandt, 4 Rawle 234; Gangwere’s Estate, 2 Harris 417; Rogers v. Walker, 6 Barr 371; Willis v. Willis, 2 Jones 159; Commonwealth v. Desilver, 2 Ash. 163. If a person be found by an inquest to be an habitual drunkard, it is not necessary for them to find that he is incapable of managing his estate; such incapacity is a conclusion of law : Ludwick v. Commonwealth, 6 Harris 172. The Act of 13th June 1836 (Pamph. L. 592, 2 Bright. Purd. 979), relating to lunatics and habitual drunkards, is precautionary in its design. The management or mismanagement of the drunkard’s estate is not made a subject of inquiry; and the proceeding could be maintained against an individual who had no estate. The fixed habit of drunkenness being established, the law regards the drunkard as being unfit to manage his estate: Sill v. McKnight, 7 W. & S. 244; Ludwick v. The Commonwealth, supra.

   The opinion of the court was delivered, January 5th 1874, by

Agnew, J. —

Issues of fact, whether by way of traverse or a feigned issue, when tried before a jury, according to the course of the common law, have always been deemed the subjects of a writ of error. The trial is conducted and bills of exception taken to the evidence or the charge as in other trials before a jury. Hence, when the legislature provided a writ of error in the case of feigned issues from the Orphans’ Court, it declared that the writ should lie in the same manner as in cases where feigned issues are directed by a Court of Common Pleas: Act 10th April 1848, 1 Bright. Dig. 603, pi. 5. Issues of fact in cases of distribution were also made subject to a writ of error: 1 Bright. Dig. 656, pi. 107. To put an end to all doubt on the subject of feigned issues, the Act of 12th February 1869 (Pamph. L. 3) extended the writ of error to all cases of feigned issue where exceptions have been or shall be taken to the rulings or charge of the court: 1 Bright. Dig. 604, pi. 9. The traverse of the inquisition of lunacy or habitual drunkenness is, by the Act of 13th June 1836, § 12, assimilated to cases of traverse upon untrue inquisitions of office found : 2 Bright. Dig. 982, pi. 15. Such traverses are common-law proceedings, and among them is enumerated the inquisition of idiocy a nativitate : 3 Black. Com. 258. The traverse of the lunatic or habitual drunkard, under .the Act of 1836, being of like nature, the writ of error lies to the rulings or charge of the court; and the motion 'to quash is therefore denied.

The fourth and fifteenth assignments of error raise the question as to the mode of proceeding upon the trial of the traverse. The Commonwealth gave in evidence the inquisition and finding of the jury, that John McGinniss, the traverser, was an habitual drunkard, which were objected to and received under exception, and then rested. The traverser gave evidence to disprove the finding of habitual drunkenness. The Commonwealth then offered to rebut by evidence in support of the finding, to which it was objected that such evidence was in chief, and ought to have been given before the traverser began his evidence. But the mode of proceeding was clearly right. The finding of the inquisition stands until it is set aside or disproved, and it may be unnecessary for the Commonwealth to give any evidence. This effect of the finding is primá facie, according to many decisions, throwing the burden of disproof on the lunatic or habitual drunkard: Hutchinson v. Sandt, 4 Rawle 234; Willis v. Willis, 2 Jones 159; Gangwere’s Estate, 2 Harris 417; Klohs v. Klohs, 11 P. F. Smith 245. In Ludwick v. Commonwealth, 6 Harris 175, Justice Rogers said of the finding by the inquest: “ His incapacity in that event is a conclusion of law; it is not necessary to say it is presumvptio juris de jure, but at least it throws the burden of'capacity on the traverser.” The case of Rogers v. Walker, 6 Barr 371, really decides the point before us, for there it was contended that after the defendant’s proofs were given in rebuttal, the finding was to be laid out of the case; but Gibson, C. J., denied this, saying that, “ like legal presumption, an inquisition continues to operate till overpowered; and, standing as full proof till then, it necessarily remains before the jury till the question of sanity has been decided by them. It consequently stands as a particular in the proofs.” See also the remarks of Thompson, C. J., in Leckey v. Cunningham, 6 P. F. Smith 373. The effect of the finding, even when a traverse is put in, is to place the care and custody of the estate of the lunatic or habitual drunkard into the hands of the court: Sect. 13, Act 13th June 1836, 2 Bright. Dig. 982, pi. 16. Indeed, even before the return of the inquisition, but after a finding of lunacy, it has been held that a receiver may be appointed: Kenton’s Case, 5 Binn. 613. It follows, therefore, that the Commonwealth might, in the first instance, rely on the finding, and afterwards, in answer to the evidence of the traverser, had the right to go into full proof of his habitual drunkenness. According to Sir William Blackstone, the traverser in the case of an inquisition of office found, must be considered the plaintiff, and must therefore make out his own title, as well as impeach that of the crown: 3 Com. 260.

It is unnecessary to say anything as to other assignments of error, except that under the Act of 13th June 1836, it is sufficient to find the person an habitual drunkard. The legal consequences flow from that fact, and not from any supposed or actual capacity of the habitual drunkard to manage his business well. When the habit of drunkenness is found, the law itself establishes the incapacity. It is, therefore, not the province of the jury, upon a traverse of the inquisition, to determine the extent of the traverser’s ability to transact his business. They decide only the habit of drunkenness: Ludwick v. The Commonwealth, 6 Harris 173; Sill v. McKnight, 7 W. & S. 244.

Judgment affirmed.


author: Agnew J. —

text:
    Oil City versus McAboy to the use of Bollman.
    1. A borough in Venango county was authorized to contract a debt and issue bonds for its payment; they issued bonds with warrants of attorney; judgment was entered on one in the District Court of Allegheny county. Held, the defendant being a municipal corporation, that court had no jurisdiction and the judgment was invalid.
    2. Actions against municipal corporations are local, and must be brought where they are located.
    3. The warrant was to “ any attorney of any court of record,” &e. Held, that this did not authorize the entry, it being a question of the jurisdiction of the court: and consent could not give jurisdiction.
    4. Lehigh Co. v. Kleekner, 5 W. & S. 181; Wilson v. Huntingdon Co., 7 W. & S. 197, applied.
    October 10th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the District Court of Allegheny county: Of October and November Term 1872, No. 170.
    On the 27th of February 1865, the borough of Oil City was authorized to erect a bridge over Oil creek. By a supplement of March 10th 1865, for the purpose of carrying out the provisions of the act, it was authorized to borrow any sum of money not exceeding $50,000, and “issue bonds for the same ” at six per cent, interest.
    On the 5th of January 1872, James L. McAboy to the use of H. L. Bollman, entered judgment in the District Court of Allegheny county against the borough of Oil City for $1000, on the following bond and warrant of attorney:—

      “ Oil City, Pa., January 9th 1867.
    “It is hereby certified that the borough of Oil City is indebted unto J. L. McAboy, or bearer, in the sum of one thousand dollars, redeemable at the treasurer’s office on the 9th day of January 1868, with interest from the 9th day of January 1867, at six per cent, per annum, payable semi-annually, to wit, on the 9th day of July and on the 9th day of January in each year, on the presentation of the proper coupon hereto attached.
    “ And further, upon failure to pay the amount due at maturity, we do hereby empower any attorney of any court of record of this Commonwealth to confess judgment for the sum due at maturity, with costs of suit, release of errors, &c.”
    The District Court afterwards directed a writ to issue to the authorities of Oil City, commanding them to pay the amount of the judgment, &c.
    On the 22d of July 1872, the court granted a rule to show cause why this judgment should not be stricken from the record, as having been entered without authority of law.
    The rule was afterwards discharged. The defendant removed the rec’ord to the Supreme Court, and there assigned for error:—
    1. The warrant of attorney on Avhich judgment was confessed not being authorized by law, is void, and the judgment entered in pursuance thereof is invalid.
    2. The District Court had not jurisdiction; the borough of Oil City being a municipal corporation within the county of Yenango.

      J. Bredin, for plaintiff in error,
    cited Lehigh County v. Kleckner, 5 W. & S. 181; Knox v. Flack, 10 Harris 331; Banning v. Taylor, 12 Id. 294.

      M. W. Woodward and B. Woods, for defendant in error.
   The opinion of the "court was delivered, October 20th 1873, by

Agnew J. —

Counties and toAvnships are the legally-recognised municipal divisions of the state. The second section of the Act of 15th April 1834, relating to counties and townships and county and toAvnship officers, provides that every city shall be deemed and taken to form part of the county in which it is or may be situated. Much more, then, is a borough to be deemed a part of the county. Indeed, formerly boroughs were treated as parts of the respective toAvnships to which they belonged, though since the passage of the Act of 3d April 1851, every borough incorporated from within a toAvnship is now to be considered a distinct district. These municipal divisions are in their nature local, being within a fixed territory ; and the people residing there, no matter hoAV fluctuating in regard to individuals, being the true corporation. Hence it has been held, that actions against counties are not transitory but local, and must be brought in the courts .of the proper county: Lehigh County v. Kleckner, 5 W. & S. 181. The reasons are founded in the convenience and policy of the state, and the limited remedy for the payment of debts. The same rule, therefore, applies with equal force to cities and boroughs.

It is thought the case before us differs, inasmuch as the writing, upon which judgment was confessed against the borough of Oil City contains a warrant of attorney, empowering “ any attorney of any court of record of this Commonwealth to confess judgment for the sum due at maturity, with costs of suit, release of errors, &c.” But this is a question of jurisdiction in the court, and not an irregularity or error in the confession; and we think the judgment can be confessed only in the courts.of the proper county, no other having power to enforce payment. The commissioners to revise the civil code, reporting upon the Act of 15th April 1834, 2 Park & Johnston’s Dig. 724, remark that the only remedy to obtain payment of the debt of a county or township, was the tedious and expensive course of an application to the Supreme Court for a mandamus. They therefore reported the remedy by writ of command and attachment, contained in the sixth and seventh sections of the Act of 1834. In Wilson v. The Commissioners of Huntingdon County, 7 W. & S. 197, Justice Kennedy said, there can be no seizure, extension or sale of the property of the county, and payment can only be enforced after judgment by issuing a writ commanding the commissioners to pay, &c., and not otherwise. The 72d section of the Act of 16th of June 1836, relating to executions, expressly excepts out of the provisions for executions against corporations, counties, townships and other public municipal bodies. Hence it was held in Lehigh County v. Kleckner, supra, that the courts of one county could not issue process to compel payment against the commissioners of -another county. Had there been no such expression of this court, the reasons for confining the remedy by writ of command and attachment to the courts of the proper county in which the municipality is situate are so strong we could do no otherwise than hold the’law to be so. It would be a gross hardship to subject the people of a prescribed territory, who can act only through certain officers, to the multiplied jurisdiction of as many courts as there 'are counties in the state, to suit the mere convenience of a single person who' may be a creditor. Different bonds in the hands of different persons might, in this instance, subject the borough of Oil City to as many different jurisdictions at the same time all over the state. Of necessity the records and papers of a municipality should be kept within its own territory for the use of the people who are governed within it. So the public officers of the municipality should be permitted to remain at home in the performance of duties local in their nature, and not dragged away from their offices and duties to run-over the state at the call of individual creditors. In view of these reasons, and of the provisions in the 6th and 7th sections of the Act of 1884, and 72d section of the Act of 1836, we are of opinion that the District Court of Allegheny county has no jurisdiction to compel payment of debts by a municipality existing in Venango county. The reference to the bond suits against counties and cities in the federal courts furnishes no argument in favor of the jurisdiction of the District Court of Allegheny county in this case. In all such actions the counties sued in the federal courts' were within their territorial jurisdiction; while the right to entertain jurisdiction was founded on the non-residence of the plaintiff within the state, under the Constitution and laws of the United States. The reference to these bond suits is useful, however, in reminding us of the infinite inconveniences those suits caused to' the officers of distant counties. We are therefore of opinion that the warrant of attorney did not legally authorize a confession of judgment against the borough of Oil City in the District Court of this county. Consent cannot confer jurisdiction against the laws of the state. The judgment in this case is reversed, and all proceedings under it are set aside.


author: Mercur, J. —

text:
    St. Clair School Board’s Appeal.
    1. Equity may enjoin, against the collection of a tax levied without authority.
    2. Even when there is-legislative authority to tax for a certain purpose, if the tax levied is clearly in excess of the sum required, its collection may be enjoined.
    3. Money had been collected by taxes and otherwise to pay debts contracted by a school district for bounties to recruits. The officials of the district for foui1 years preceding had not accounted for the funds received by them, and there was no money in the treasury to pay the amount at that time due to the holders of bonds, &c., for money advanced for recruits. Held, that the school board were authorized to levy a tax to pay the indebtedness.
    October 10th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Appeal from the Court of Common Pleas of Allegheny county: No. 179, to October and November Term 1872.
    The proceedings in this case were commenced by a bill to June Term 1869 of the court below, by David Hunter and William Hughey against The Board of School Directors and Andrew Stein, collector of taxes for the township of Lower St. Clair. The bill set out:—
    1. During the years of 1864, 1865, 1866 and 1867 the township became indebted for bounties to recruits to fill the quotas of the township for 1864 and 1865.
    2. A tax was levied and paid for the bounties and expenses.

      3. The school directors had made an assessment of a special bounty tax for the year 1868, to pay an alleged indebtedness of the township, incurred in paying bounties, &c., to recruits, as aforesaid, a part of which special tax had been collected by Stein.
    4, 5. On petition of tax-payers of the township, the Court of Quarter Sessions appointed auditors, under the Act of April 4th 1866, to audit the bounty accounts of the township; and by the report of the auditors it appeared that the amount paid for bounties and expenses was $98,223.01, and that the amount realized by taxation and voluntary subscriptions was $98,386, leaving a balance of $162.99 in the hands of the directors and collectors.
    6, 7. The amount of the special tax assessed for 1868 is $il,535.18, of which $5,595.85 had been collected; and the board of school directors and tax-collectors intended to proceed to collect the special tax.
    The'prayers were for an injunction to restrain the directors and collector from collecting the tax; for an order that they refund to the tax-payers the amount already collected, and for further relief.
    On the 10th of May 1870, a preliminary injunction was ■ awarded.
    The school board filed answers. They averred that the township was indebted above $9911.50, on account of bonds; &c., issued for of bounties for recruits to fill the requisitions of the United States government; that a large amount of the money contributed by the citizens for the same purpose was repaid to them by bonds, and the tax assessed would be required to pay the bonds, expenses, &c.; that the bounty accounts were regularly and after due notice audited by the township auditors; if they neglected their duty, it was no reason why the -liabilities of the township should not be paid, and it was the duty of the plaintiffs as well as of the defendants and others, to have ascertained the action of the auditors ; that the auditors appointed by the Court of Quarter Sessions unjustly and without proper examination rejected a credit of above $18,000, ■which had been allowed to Stein, the collector and treasurer' of the board, by the township auditors; that if that credit had been allowed, the auditors appointed by the Court of Quarter Sessions would necessarily have reported a balance exceeding $18,000 to be due by the township.
    Stein, the collector and treasurer, answered, denying that there was in his hands or the hands of the school directors any sum .whatever over the amount required to pay the indebtedness of the township on account of bounties, &c. He averred that all his accounts as treasurer of the school board and collector had been audited by the township auditors correctly; that he furnished vouchers for all his credits, except commissions, errors and lost taxes; that the vouchers had been destroyed by the auditors, as being no longer of any value; that a large amount — how much he was unable to state — of the money raised by the citizens was repaid to them by credits on their taxes and by bonds, &c., and the vouchers for the $18,000, disallowed by the auditors appointed by the court, were produced before them. His answer contained averments and denials substantially the same as those of the directors.
    A replication was filed, and Thomas Ewing, Esq., appointed examiner.
    The examiner heard a large amount of testimony, and in conclusion found the following facts :—
    1. By virtue of a resolution of the board of school directors, June 11th 1864, bonds were issued to pay subscriptions and payments formerly made by citizens for bounty purposes, and the contributions so made amounted to $16,805; and for this bonds were issued, the first date being June 13th 1864.
    2. On a call for volunteers, filled in September 1864, the school board paid for bounties $19,709.40, exclusive of any incidental expenses, &c., and bonds and notes, amounting in all to about $22,300, were issued by the board about this time.
    3. Under a third call for volunteers, the school board issued bonds to the amount of $1900 to volunteers, and paid in money to the citizens’ committee, for payment of bounties, $6473, in all the sum of $8373, contributed by the board for bounties on the third call for volunteers; and the $6473, contributed in money as aforesaid, were raised from taxes levied by the board.
    4. The incidental expenses incurred by the board of school directors, in regard to the bounty business, were probably $1200.
    5. The payments by the board of school directors for recruits did not amount to the sum of $300 to any one volunteer.
    6. The citizens of the district contributed voluntarily to the bounty funds $58,537; no part of which was refunded by the school board; and in addition, on the second and third calls, the citizens had contributed, in bonds issued to refund contributions on first call, the sum of $1115, which amount of bonds was handed over, May 22d 1865, to A. Stein, treasurer, without payment of any money thereon.
    7. The whole amount of money contributed by the board of school directors for bounty payments in the district, including the funding of contributions made on the first call, is the sum of $44,887.40; and deducting the $1115 of bonds returned by the citizens’ contributions, as stated in the last paragraph, the net amount paid was $43,772.40, and this sum is exclusive of incidental expenses and interest.
    8. To repay these bounty loans and contributions, the board of school directors, prior to June 5th 1868, had levied taxes amounting to the sum of $72,568.55; and of this amount levied there had been collected, including the amount received from James Ritchie, collector in the borough of Mount Washington, $51,844.09, over and above lost taxes and commissions of collectors and treasurer.
    9. This amount so collected, at the times at which it was collected, if properly applied, would have fully liquidated both principal and interest of all the bounty indebtedness of the township, in'addition to paying all necessary or probable incidental or contingent expenses connected with the business; and there should have been a balance in -the treasury, on June 5th 1868, of from $1000 to $2000.
    10. The board of school directors (and Andrew Stein, treasurer) were guilty of culpable negligence in not keeping books and accounts of their receipts and expenditures in relation to the bounty business.
    11. Notwithstanding the amount collected, as above stated, there were outstanding at the 5th day of June 1868, bonds duly issued by the school board to the amount of $7349, exclusive of interest accrued, and exclusive of the bond issued October 16th 1868 to William Hageman, for $480; and it would require the proceeds of the two per cent, tax assessed June 5th 1868, to pay the bounty indebtedness of the township, as shown by these outstanding bonds and the statement of the township auditors.
    12. Andrew Stein, prior to the issuing of the injunction in this case, had collected of this special tax, levied June 5th 1868, the sum of $5595.85 or upwards, and had lifted therewith twenty-seven bonds that were outstanding at the date of the levy, amounting without interest to the sum of $3620, and in addition thereto the intere.st-bond issued October 1868, to William Hage-w man, for $480 — in all $4100.80; which bonds, so lifted, the township auditors required Andrew Stein, collector, on the 11th day of December 1869, to deliver to F. Hampe, then treasurer.
    13. Neither Andrew Stein, treasurer, nor the school board of the district, or any member thereof, has ever settled any account of the money received by them for bonds and notes issued in 1864 and in 1865; but, in the opinion of the examiner, Andrew Stein, in his settlements with the township auditors, has received large credits, as against taxes collected, for receipts given to him for money, the proceeds of such notes and bonds.
    Exceptions were filed to the report of the examiner. They were overruled, and the court decreed:—
    “ That the defendants, the Board of School Directors and Andrew Stein,, collector of taxes of the township of Lower St. Clair, their agents and servants, and every of them, be perpetually enjoined and restrained from further proceeding to levy and collect the special bounty tax, or any part thereof, heretofore assessed for the year 1868, upon the inhabitants of said Lower St. Clair township, by said Board of School Directors; and that the defendants pay all costs of this suit.”
    The defendants appealed to the Supreme Court, and assigned the decree for error.

      O. B. M. Smith (with whom were S. M. Raymond, J. H. Baldwin and Aughinglaugh Buff), for appellants. —
    The rule as to re,straining the collection of taxes is non-interference when the right is doubtful or there is a remedy at -law: Miller v. Gorman, 2 Wright 309; Dodds v. Hartford, 25 Conn. 232; Hughes v. Kline, 6 Casey 227; Wharton v. School Directors, 6 Wright 358; Clinton School District’s Appeal, 6 P. F. Smith 318; Truesdell’s Appeal, 8 Id. 148; Moore v. School Directors of Clearfield, 9 Id. 232; Bounty Accounts Eleventh Ward Pittsburg, 20 Id. 92.

      0. S. Fetterman, for appellees,
    cited Cooley on Constitutional Limitations 519, 521; Joyner v. School District in Egremont, 3 Cush. 567; Kemper v. McClelland, 19 Ohio 324; School District v. Merrills, 12 Conn. 437; Elwell v. Shaw, 1 Greenl. 335; Wells v. Burbank, 17 N. H. 393; Kinsworthy v. Mitchell, 21 Ark. 145; Hillard on Injunctions 383-388; Culbertson v. Cincinnati, 16 Ohio 574; Vanover v. Davis, 27 Georgia 354; Kerr on Injunctions 135.
   The opinion of the court was delivered, November 10 th 1873, by

Mercur, J. —

Upon the 5th day of June 1868, the school directors of St. Clair township levied a special bounty tax of two per cent,, amounting in the aggregate to $11,535.18. After $5598.85 thereof had been collected, the appellees, on the 10th of'May 1869, filed' this bill. Therein they charged that the appellants were endeavoring to collect said special bounty tax, although they well knew that said township was not indebted in any amount whatever, for or by reason of any recruits put into the service of the United States. They prayed, inter alia:—

1. That the appellees be perpetually enjoined from proceeding further to collect said tax;

2. That they account for moneys received and paid by them as bounties to volunteers ; and

3. That they be restrained in the meantime from its collection.

The court awarded a preliminary injunction.

After answer, the court appointed an examiner “to take testimony and report the facts.” Upon hearing on the master’s report and exceptions thereto, the exceptions were overruled, and the decree was made perpetual.

That a court of equity may enjoin against the collection of a tax levied without authority of law, is undoubted. Even when legislative authority is given to tax for a certain purpose, yet if the tax levied is clearly in excess of the sum required for that purpose, its collection may also be enjoined.

Is this tax liable to either of those objections ?

The master found, and it is not denied upon the argument, that the amount of bonds duly issued by the school board for bounty purposes, and unpaid upon the 5th of June 1868, as shown by those outstanding bonds, and the statement of the township auditors, was such that it would require the proceeds of the two per cent, tax that day levied, to pay the same.- It is true the master found those bonds were issued for indebtedness incurred in 1864 and 1865. He also found that, prior to June 5th 1868, an amount of money more than sufficient to have paid and discharged all that indebtedness, had been assessed and collected. It had not been so applied, and the obligations remained unpaid. He further found that the board of school directors and treasurer were guilty of culpable negligence in not keeping books and accounts of their receipts and expenditures in relation to the bounty business. The master was therefore unable to ascertain what disposition had been made of the money. The irregular settlements made with the township auditors were so unsatisfactory that they failed to enlighten him. Many of the papers had been destroyed. In some unaccountable manner much of the money had disappeared, leaving no marks by which its last resting-place could he found. In June 1868, none of it was in the school treasury, nor, so far as could he shown, in the hands of either of the appellants.

Briefly, then, the ease presents this state of facts. The school district was in debt. The officials for the four preceding years had been derelict in their duties. The holders of the obligations desired their payment. There was no money in the treasury to pay them. Thereupon the school directors of 1868 levied this tax for that purpose. It was not in excess of the sum required. They were proceeding to collect it when enjoined. The tax was not only authorized by law, but we know no other manner in which the school district could raise the money, or by which the creditors could procure satisfaction of their claims.

"We therefore think the learned judge erjed in enjoining the collection of the tax, and the decree must be reversed.

Decree reversed. And now it is ordered and decreed that the bill be dismissed at the costs of the complainants and appellees.


author: Williams, J. —

text:
    West versus Irwin.
    1. A judgment was entered by warrant of attorney against a defendant; it was opened without conditions, and defendant let into a defence ; the defendant pleaded “ non est factum, and payment with leave.” This pleading threw the burden on the plaintiff, and the record of the judgment was not primá facie evidence for him.
    2. The entry of judgment by the prothonotary did not tend to show that the defendant executed the note.
    3. The opening of the judgment left the burden and mode of proof just as if the judgment had not been entered.
    4. Oannell v. Crawford County, 9 P. P. Smith 198 ; Dennison v. Leech, 9 Barr 164, remarked on.
    October 11th 1873.
    Before Read, 0. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the District Court of AEegheny county: No. 11, to October and November Term 1873.
    On July 9th 1869, in the District Court of Allegheny county, judgment was entered in favor of Joseph Irwin against Joseph West, for $1920, on a single bill, with warrant of attorney dated February 1st 1869.
    On the 8th of April 1871, a rule was granted to show cause why the judgment should not be opened and the defendant let into a defence.
    On the 3d of February 1872, the judgment was opened, and the defendant let into a defence — “ the plaintiff to file a declaration on the note, and the defendant to plead thereto.” The defendant pleaded unon est factum and payment with leave, &c.”
    The issue ivas tried December 5th 1872, before Kirkpatrick, J.
    The plaintiff offered in evidence the record of the opened judgment, “for the purpose of showing a primá facie case and the right of the plaintiff on the record to recover on this issue.”
    The defendant objected to the offer. It was admitted by the ■eourt, and a bill of exceptions sealed.
    The plaintiff, having given the record in evidence, rested, and ¡the defendant moved for a nonsuit, which was refused. The •defendant asked the court to instruct the jury that the plaintiff ■could not recover on the pleading and'evidence in the case. This ■request was refused, and a verdict was rendered for the plaintiff ■for $1694.90.
    The defendant took a writ of error, and assigned for error : the admission of the plaintiff’s evidence and the instruction of the court.

      H. A. Collier and A. M. Brown, for plaintiff in error.

      W. .& Miller, for defendant in error.
   The opinion of the court was delivered, March 2d 1874, by'

Williams, J. —

The single question in this case is whether the record of the judgment was admissible as primd facie evidence of the defendant’s execution of the note, and of the plaintiff’s right to recover thereon. If payment with leave to give the special matter in evidence had been the only plea, as in Cannell v. Crawford County, 9 P. F. Smith 168, there- would have been no error in the admission of the record, for the plea would have confessed the cause of action on which the judgment was entered. But there was also the plea of non est factum, and under the issue formed thereon, the burden of proof was on the plaintiff. If the record tended to establish the issue, or aid the jury in its determination, it was properly admitted; but if it shed no light on the subject whatever, it was error to allow it to go -to the jury as primd facie evidence of the fact alleged on the one side and denied on the other. What, then, did the record-show, and what possible inference could be drawn from it touching the matter in issue ? It showed that the prothonotary had entered judgment against the defendant on the note, and that the court had opened the judgment and let the defendant into a defence. The entry of the judgment on the note did not tend to show its execution by the defendant any more than the opening of the judgment tended to show that the note was not made by him. The entry and the opening of the judgment left the burthen and mode of proof, just as they would have been if the judgment had not been entered. It was opened without condition, and under such an order as said by Rogers, J., in Dennison v. Leech, 9 Barr 164, the judgment remains as a security for whatever may be found due; but in all other respects, the trial must be had as if no judgment had been entered.

Judgment reversed, and a venire facias de novo awarded.