text:
      Court of Common Pleas, Dauphin County,

      April 4th, 1859.
    In the matter of the Distribution of George W. and Mary P. Fritchey’s Estate.
    Where a man is in debt he cannot convey property to his wife, except for adequate consideration paid from her own separate property. A judgment against a married woman is primó facie void; and when payment of it is demanded before an auditor, he should take testimony to establish its validity.
   By the Court.

We are not prepared to say that the auditor’s report is erroneous in this case, but from its brief and meagre statement of facts it is unsatisfactory. We are inclined to believe, from a single expression used by the auditor, that he took an erroneous view of the alleged title of Mrs. Fritchey. He presumes it to be valid in the absence of sufficient evidence to the contrary.” The date of the deed is not given; but we infer that it was some time after the judgment was entered in favor of Mr. Haldeman.

It must be borne in mind, that long before that period Mr. Fritchey was indebted to Gimmel & Smith, as appears by the annexed account, and if he acquired property, he could not lawfully convey it to his wife, or to a trustee for her use, without not only clear and satisfactory evidence that a full and adequate consideration was paid, but also that the money was her own separate property, acquired by her before marriage, or by gift, devise, or descent during coverture. It must appear, beyond all peradventure, that it did not come in any way from her husband, or through his instrumentality (Gamber v. Gamber, 6 H. 363; Keeney v. Good, 9 H. 349; Bradford’s Appeal, 5 C. 513). The fact that the property was paid for out of her own earnings and savings gives her no title, as her husband is entitled to them (Raybold v. Raybold, 8 H. 308). Therefore, the evidence in the present contest should have come from those claiming to be creditors of the wife, that the estate sold was bond fide hers; and the bare production of a deed from her husband to her trustee was insufficient. Every presumption is against such a deed, where it is shown that the husband was indebted at the time. The validity of the instrument may have been established on the hearing, but we must infer the contrary from the auditor’s report. Several judgments to which money is awarded in this report appear to have been entered against Mrs. Fritchey alone, and others against herself and husband. The auditor in his report does not show any reason for treating these judgments as valid. The question may have been inquired into, and their validity established by proof; but primd facie they are void, and should have been treated as such by thu auditor until their consideration was proved.

The note, bond, recognizance, or judgment of a feme covert is absolutely void at common law, and that principle is not altered by the act of 1848, except in the cases expressly provided for (Caldwell v. Walters, 6 H. 79). It is not merely voidable and subject to be set aside or reversed, but it is absolutely void, and requires no action of the court to avoid it. In an action on her note it must be shown affirmatively that it was given for necessaries, the improvement of her real estate, or to pay for her trespasses or torts, else there can be no recovery; and no affidavit of defence is necessary against such a note (Mahon v. Gormley, 12 H. 82). And a note given for money lent to repair her real estate is void, unless the lender can show that the money was actually so applied (Hugh v. Jones, Leg. Int., March 25th, 1859). It is true that a bond with a warrant of attorney to enter judgment was held good, when given in part payment of the purchase-money of property bought by her; but that is sustained on the ground of necessity to prevent fraud, else it was thought she could keep the land and refuse to pay for it (Patterson v. Robertson, 1 C. 81). In the last case decided, and reported in the Legal Intelligencer, Judge Woodward raises some question as to the validity of the note given for repairs done to her real estate, probably supposing it might often be anything but beneficial to make them. But until otherwise decided, we shall hold such a debt to be valid.

Herr, for plaintiff.

Mumma and Kunhel, for defendant.

Ordinarily, an auditor cannot pass on the validity of judgments; but where they are against a married woman, they are primd facie void, and he can hear evidence to sustain them and establish their validity, as having been given for some of the debts recognized by the act of 1848.' Every presumption must be made in favor of the auditor’s decision; but we are so extremely apprehensive that the principles on which this matter should be determined have been overlooked, probably both by the counsel and the auditor, that we think justice will be more probably reached by referring it back to him for further examination, and the principles suggested will indicate the course to be pursued.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
      Court of Quarter Sessions, Dauphin County,

      September 10th, 1859.
    In the matter of the Road from Willson’s Farm to Kunkel’s and Ulrich’s Farms.
    In a petition to appoint viewers to lay out a public road, the township in which it is to be opened must be stated. A public road cannot be laid out on top of another public road, even though the latter be such only by prescription.
   By the Court.

The foundation of all road proceedings is the petition. If that is radically wrong, it is difficult to have any of the subsequent parts correct. The petition asks for a road “ from the farm of the Willsons on the Middletown turnpike to Michael Ulrich’s and Benjamin Kunkel’s.” It does not mention the township or any further locality; that is attempted to be cured, and perhaps is so, by the order naming the township, which is gathered by the clerk from the indorsement. From aught that appears in the petition, the farms of Ulrich and Kunkel are private points, and, therefore, not proper terminations for a public x >ad. The report, however, shows that the view terminated at a public road at the line between those farms. It may admit of question whether a defect of that kind in the petition can be cured by the report. We will assume for the present that it can. The viewers commenced at a farm belonging to Willson, Rutherford & Co. Whether this is the place intended by the petitioner, we are at a loss to determine; but it might be shown by the depositions that the point thus described was generally known as the fai m of the Willsons, and, therefore, was the point intended. That has not been proved. The greatest, and what is probably the incurable defect is that the petition asks for the laying oxit of a road on one used and occupied by the travelling public for neaidy fifty years. If'such is the road to be traversed by the viewers, we have no authority to lay out one on top of it. It is to all legal intents as much a public road as it ever can be. If the road thus used is established by prescription, it is as good as if laid out by an order; if a private road, that fact should have been stated. Neither the petition, order, report, or any testimony shows that this was a private, but the petition describes it as a public road long in use. The proceedings are consequently irregular, and must be set aside. Had our attention been called to the form of petition, we would have refused to appoint viewers.


text:
      Court of Common Pleas, Dauphin County,

      December 19th, 1859.
    Fackler v. Bale.
    A person cannot claim the benefit of the three hundred dollar exemption law after his property has been sold at sheriff's sale, even when the Hen upon which it was sold had been filed against a former owner of the property prior to the act of April 9th, 1849. The act of April 8th, 1859, made no change in this particular. If a judgment has been entered against a man after his property has been sold at sheriff’s sale, it is no lien, and the debtor is entitled to take the surplus out of court after discharging existing incumbrances.
   By the Court.

By tbe case as stated, it appears that Mr. Bale, tbe defendant, now claims to retain three hundred dollars under the acts of 1849 and 1859. The property was sold, and deed acknowledged therefor by the sheriff in April, 1859; and no claim was presented under the act of Assembly for any portion of the money until the September following. It has been repeatedly decided by our Supreme Court that, unless the sheriff is notified by the defendant before advertising the property for sale, that he claims to have the benefit of three hundred dollars out of the real estate, it cannot be allowed. The appraisement must precede the advertisement, and might be simultaneous with or before the inquisition. There is no right in the defendant to take money, except where land cannot be set apart without prejudice to the portion retained for sale (Miller’s Appeal, 4 H. 300; Weaver’s Appeal, 6 H. 307; Dodson’s Appeal, 1 C. 232). Many other cases might be cited to the same effect. It is perhaps thought that, as the execution in this case issued on a judgment entered against a former owner of the estate, prior to 1849, that no appraisement could be demanded. We are of the opinion that the owner is not without remedy in such cases. He must either pay off the earlier judgment, as was held in regard to personal'property in Harleman v. Buck (6 C. 267), or can pursue the course pointed out on writs of levari facias founded on mechanics’ liens, give notice to have it appraised and set apart, after satisfying the liens. In no case can the party demand money, where he might have obtained land, or take the money out of court, where he has neither made a demand nor given notice of his claim until after the sheriff’s sale. It is contended, however, that a material change on this subject is effected by the act of April 8th, 1859. We do not consider that the act referred to has any application to the present case. It mainly relates to the election of widows and heirs to retain the three hundred dollars out of money, judgments, or other indebtedness belonging to the estate of decedents; it also covers the case of every person entitled to the exemption provided for in the former act. But how are they to obtain the money ? We answer, in the mode pointed out in the act, by retaining it. Prior to the passage of the act of 1839, if a debtor held banknotes, money, stocks, judgments, or other indebtedness,” he could not lawfully retain any portion thereof from his creditors, but all were subject to seizure by execution, attachment, or other process; or he could be obliged to surrender them. The only objects of lawful retention were real and personal property. The latter he was obliged in all cases to retain in kind; could in no event obtain the money into which the articles were converted. The former must also be retained in like manner, except where it could not be set apart without prejudice to the whole. The courts had always held that the widow and children were confined in their selection to the personal effects, and could not claim money or choses in action in any event. Eeal estate was to be taken by them as by the debtor in execution. It was decided that in no event could a debtor’ claim any portion of the money arising from the sale of his personal property (7 H. 255). Demand of an appraisement must be made before the property was set up for sale (1 C. 182). The law has undergone no change as to the right to obtain money from the officers effecting sales of real or personal property. The act of 1859 has no application to such cases, but to those of another class; it permits the debtor to retain, not to obtain the money from the officer. If a sale is effected, the proceeds must be distributed as before the act of 1859. Therefore, we are of the opinion that the defendant cannot recover any portion of the proceeds of this sale under the three hundred dollar law. What his rights might have been under the particular circumstances of this case, had he given notice of his claim before the sale of the property, we are not called upon-to decide. Very probably he might have been entitled to the money, as he could not lawfully have demanded an appraisement under the execution in the hands of the sheriff. It might be assimilated to a sale on a mortgage (Hill v. Johnson, 5 C. 362). But we are clearly of the opinion that he is too late after the sale is effected, although the money remains in the hands of the sheriff. The lien existing in the present case being prior to the sale by the sheriff, the plaintiff in the case stated is entitled to judgment for his debt, interest, and costs, which is directed to be entered accordingly.

The judgment in favor of John Muench, No. 126, January Term, 1859, stands on a different footing. It was entered two days after the sheriff’s sale, and consequently is no lien, if the sale alone, without the acknowledgment of the deed, divested the title. The case as stated is defective in this, — it does not state where the deed was executed. It was decided that a judgment entered after the sale, but before the acknowledgment of the deed, was no lien, and could claim no portion of the purchase-money. Hahn v. Smith (1 Penna. 484). It is true in that case, the surplus money had been previously assigned; but that, we conceive, can make no difference at law. In Small’s Appeal (12 H. 398) the money was awarded to a judgment entered on the same day with the sale, whilst no portion was given to those who filed a few days afterward. The case of Hahn v. Smith is there fully recognized. In Morrison v. Wurtz (7 W. 437) it is decided that a purchaser at sheriff’s sale has such an inceptive right before the deed is acknowledged, as is bound by a judgment entered against him. And in Stoever v. Rice (3 Wh. 21) that a purchase under a mortgage, although the deed was never acknowledged, so entirely divests the title, that a subsequent sale is a nullity. The same principle is recognized in Bellas v. McCarty (10 W. 21).

The date of the sheriff’s sale, and not the acknowledgment of the deed, is the time at which interest ceases on the judgment, and to which all calculations relate.

We do not notice any alleged defect in the judgment, as the case, if properly stated, must admit them to be regular. It is a defective mode of stating cases to refer to the judgment merely by number and term, without making it expressly a portion of the case, and admitting its correctness, or in terms, raising a question on its form. The debtor, who is the owner of the property at the time of sale, is entitled to take the surplus out of court after paying off the first-named judgment, as already stated.


text:
      Court of Common Pleas, Dauphin County,

      January 16th, 1860.
    Ressler, Administrator of Lessman, v. Witmer.
    A court of equity lias the undoubted right to determine all disputed facts in a case within its jurisdiction, and need not direct an issue. When a person gave to another certain property to hold as trustee for his children, and after the death of the former, it was needed for the payment of his debts, this is such a case of fraud and trust as comes within equity jurisdiction; and it is not ousted because there might he some remedy at law. When property is given away in order to deprive the widow of her distributive share, that is a fraud cognizable in chancery. When the court is satisfied of the truth of a matter asserted in the bill and denied in the answer, it need not be proved by two witnesses.
   By the Court.

The bill in this case charges in substance that the decedent, Lessman, when on his deathbed, gave to the defendant a number of bonds, notes, etc., amounting to $1100, to hold in trust for himself and wife, and the other children and legal representatives of the decedent. That at the time and now the estate is largely indebted, much beyond the assets of the deceased, and the choses in action so intrusted to the defendant are required for the payment of his debts; that the defendant fraudulently denies the trust, and is about to collect the money due on the obligations, and convert the same to his own use. A decree for an injunction against collecting or disposing of the obligations is prayed for, and that they may be delivered over to the plaintiff, as administrator of the deceased, and brought into a regular course of distribution. To this bill the defendant put in a plea to the jurisdiction of the court, partly in the form of an answer denying the facts charged, and then contending that because the charges in the bill are so denied, an issue of fact is raised, which must be determined by a jury. It is probably the first time in the history of our jurisprudence that the power- of a court of chancery to determine disputed facts has been denied. From the first organization of those courts, the practice has been uniform, to establish the allegations and denials contained in the bill and answer by the testimony of witnesses, taken either before the chancellor in person, master in chancery, or examiners appointed for the purpose; and it is only when great doubts arise in the mind of the chancellor, that an issue is directed. Not because either party asks, or has a right to ask it, but because the judge chooses to shift the responsibility of guessing from himself to a jury. The counsel for the defendant has referred us to the Constitution of the United States, as securing the right of trial by jury. It unquestionably does in “criminal cases” and in “suits at common law” in the courts of the United States; but the same Constitution fully recognizes the equity power of the courts; and from the passage of the first judiciary act under the Constitution, to the present day, the common law and equity practices have been kept distinct, and the line of demarkation, as established in England between the tribunals, has been most strictly observed. During all of that time those courts, as well as nearly all of the State tribunals, have determined disputed facts when arising in equity, without the aid of a jury. The chancellor, who has probably spent the most of a lifetime in unravelling intricate questions, and weighing the evidence in judicial controversies, is considered quite as competent to reach the truth in a disputed question of fact, as an inexperienced jury selected at random from the mass of the people.

The plea presented and subsequent exception, so far as they are both founded on the same general principle, are entitled to no weight whatever. Does the bill set forth a case cognizable in equity in Pennsylvania? We must look to that alone to determine the question of jurisdiction. But two grounds are properly disclosed or averred in the bill, that the obligations demanded are held in trust, and that the defendant has been guilty of & fraud in refusing to account for them, and in claiming them as his own. We have the powers of a court of chancery in “ the case of trust money and property,” and in all cases where chancery entertains jurisdiction under either of the heads of fraud, accident, mistake, and account, whether such fraud, accident, mistake, or account be actual or constructive. There is another ground on which, from the facts disclosed, we might have well been asked to make a decree: “ The affording specific relief, when the recovery of damages would be an inadequate remedy; ” but that is not averred in the bill, nor any decree asked by reason thereof. The action of trover to recover promissory notes, with the chance of obtaining damages to their value and collecting the amount by an execution, we look upon as a very inadequate remedy for their unlawful detention. There can be but little doubt of a trust, such as is disclosed and averred in this bill, coming within the jurisdiction of an English chancellor. Our statute is remedial in its character, and should be liberally construed, so as to cover every case coming within the mischief intended to be remedied. The general case of trust money and property ” is given by the act; and Gibson, C. J., says, “ that he will not say that this obscure clause might not be so construed, were it necessary to resort to it, as to shake off the imperfect remedy we were compelled to employ .as a substitute for a bill in equity” (Lewis v. Lewis, 1 H. 82). The possibility of a remedy at law against a trustee will not prevent a court of chancery from taking jurisdiction, and a continuing trust can only be satisfactorily treated in equity (1 Jones, 393).

The bill also discloses a case of fraud; and courts of equity in this State have concurrent jurisdiction with courts of law in all cases of fraud, actual or constructive. It matters not whether the fraud be practiced in obtaining the property, or making the contract, or in attempting to pervert it to fraudulent purposes afterwards; whether it be practiced on the party from whom the articles were obtained upon his creditors, or those for whose use and benefit they were given or deposited. The courts will be equally astute in preventing one man from defrauding another by perverting a contract to a different purpose from that intended, as in overreaching him in obtaining it. It is averred that a man who was indebted at the time, gave his goods to his son-in-law in trust for his children, when they are required for the payment of his- debts, and the administrator is proceeding for the use of creditors. No man who is largely indebted can give his goods away without value, or for a wholly inadequate consideration, when the effect is to deprive his creditors of their just debts. The trust in the present case is clearly asserted in the bill, and denied by the alleged trustee, who claims the articles as his own. If the allegations in the bill are true, and we must take them to be so in a question of jurisdiction, there is an attempt to defraud the cestui qui trustent, and the administrator sues as Avell on behalf of creditors, as to bring the avails into a course of distribution amongst the same parties for whom the defendant is trustee, after the debts are paid. Therefore, we cannot doubt the jurisdiction of a court of equity to investigate and prevent this alleged fraud and breach of trust.

It is contended that there is no evil complained of in this bill except such as could be remedied by a court of law, and therefore equity has no jurisdiction. Although every bill in chancery avers the want of adequate relief in a court of law, yet such averment is for the most part matter of mere form, as in very many cases both courts have concurrent jurisdiction. The extension of the remedy by actions at laAV to cases originally within the jurisdiction of equity, under our practice in this State, is no bar to equitable relief for the same cause (10 Barr, 273). The equitable jurisdiction given by the statute is valuable, and ought to be extended by every interpretation of which the words are susceptible (10 Barr, 274). And the acts should be liberally construed to extend the jurisdiction in furtherance of justice (1 H. 282). And to oust the jurisdiction of a court of equity, the party must not only have a remedy at law, but it must b efull, complete, and adequate (Brightly, 203). The remedy at law must be as practical and efficient to the ends of justice and its prompt administration as that of equity (Parsons, 220). It is not sufficient that the suitor may have-some remedy at law; it must be as complete and perfect as that reached by the more flexible machinery of a court of equity (1 Parsons, 541). It is sufficient that the equitable remedy is more convenient (1 Jones, 393). “ It is perfectly clear,” says Mr. Justice Washington, “that where a case is otherwise proper for the jurisdiction of a court of equity, it is no objection to its exercise that the party may have a remedy at law, although the act of Congress declares that suits in equity shall not be sustained, where a plain, adequate, and complete remedy may be had at law ” (4 Wash. C. C. B. 205). It is sufficient that the remedy in equity is more complete and efficacious (Story’s Eq. Pl. 473).

When once a court of equity can properly take cognizance of litigation, it will dispose of every subject embraced within the circle of the contest; for equity abhors a multiplicity of suits (2 Jones, 56, 63; 1 Story’s Eq. Jur. s. 71, and note). Probably the only exception to that rule is, where a bill is filed for a discovery alone, and no facts are called forth or discovered by the answer. Even there it seems to be a mooted point. Where a discovery is obtained, the court will carry the proceedings through to prevent a multiplicity of actions (1 Story’s Eq. Jur. ss. 65, 66, 67, 68, 71, 72,73). When nothing is disclosed, it will probably be treated as a mere pretence (Ibid. s. 74, and note). Plaving established jurisdiction over the subject-matter of the bill, we must next examine into the facts and merits of the case. The evidence shows that Lessman and Wit-mer came together from Northumberland county into an adjoining township in this, with a view of establishing a flour store, and carrying on butchering, The former business was not started, and but little done at the latter. Witrner, the defendant, labored for some time in making additions to and repairing a house, in which both parties resided; the title of which appears to have been in a daughter of Lessman. During the time of their connection in business, which lasted about four months, Lessman expressed an anxiety that Witrner should be paid for his labor; and, as we understand the evidence, induced his single daughter, who held the title to the property, to transfer one undivided half of it to her sister, the wife of Witrner. In addition to this, Lessman, on August 31st, assigned to Witrner bonds and notes to an amount exceeding $1100, ostensibly to pay Mm for his labor (already reasonably well compensated by an assignment of one-half of the property on which it was bestowed), but in reality, as we are well satisfied from the evidence, to keep the wife of Lessman from participating in any share of the property so transferred. This is of itself a fraud, which would furnish sufficient grounds for cancelling the contract, if it had been complained of in the bill. But it is not one of the grievances aver* -d; therefore, we cannot notice it. The administrator could have properly complained of the act, as he recovers as a trustee for the widow, as well as the heirs at law and creditors. If property is transferred without consideration, for the purpose of defrauding the wife of her dower, such transfer is void as to her. She can even impeach a judgment confessed and sale of land thereon, when done for the purpose of depriving her of dower. It is stated in the bill, and not denied in the answer, that the estate of Lessman is considerably indebted, and that there are no personal assets to pay the debts. If this is true, and it is not denied in the answer, it furnishes good ground for cancelling the gift: for although there is some pretence that the notes were assigned in payment of a debt, yet the- device is too shallow to bear the scrutiny of a court of equity for a moment. The labor given by the defendant, as well for himself as for Lessman, was worth something probably beyond what he received, but not to the amount of $1100. "We are well satisfied that one hundred would have been ample remuneration. A man who is indebted at the time is neither permitted to give away his goods to the injury of his creditors, nor to pay a near relative in goods or money ten times the value of his labor, when such payment has that effect. The only difficulty in the way of a decree on that account alone is that it is nowhere averred that Lessman was seized of no sufficient real estate for the payment of his debts. It is true that had ■such been the case, when the indebtedness is stated in the bill, together with the want of personal assets, the defendant could very properly have replied that there was sufficient real estate for the purpose, and thus have taken the sting out of an important part of the charge. There being no suggestion in the bill, answer, or evidence, that Lessman died seized of any real estate, we are justified in taking it for granted that he possessed none at the time of Ms death, which occurred but a few days after the assignment of the notes in controversy. Notwithstanding the positive denial of the trust by the defendant in his answer, and the averment that he always claimed the choses in action as his own, we are well satisfied from the evidence that he originally received them under a promise and arrangement to collect the money when due, and divide it m equal portions among all the children of Lessman, and the effort to hold them as his own and deny the trust is a fraud on the heirs of the plaintiff’s intestate. The sole difficulty in the case arises from the rules of evidence in chancery, which require the oaths of two witnesses, or at least one and corroborating circumstances, to overcome the denial of the defendant in his answer. If this cause, were trying in the form of an action of trover before a jury, there could be but little doubt of the result. If the testimony of Borel and Dockey can be added to that of Wm. Michael, the case is completely made out. Even leaving the evidence of these witnesses out of view, I am satisfied of the truth of the facts averred in the bill and of the falsehood of the answer from the corroborating circumstances. The doubt as to the competency of those witnesses (who were originally interested in right of their wives) arises from the limited wording of the releases, which, only transfer the right, title, and claim of each of the parties and their respective wives, in, to, or out of the personal estate of John Lessman, deceased.” We have no evidence that Lessman died seized of any real estate, but the releases, from their wording, carry an implication to that effect; and although the present contest is concerning the personal effects, yet, if recovered, the amount goes in discharge of the debts,, and in ease of the land, which would be otherwise liable. The interest of the witnesses being' shown from then.’ marriage relation, they must appear to have divested themselves- entirely of that interest before their testimony can be received or weighed. As already stated, we think that there is sufficient evidence in this case without those two witnesses. Therefore, we are not required to pass upon their competency. The whole difficulty in' the present case arises from the imperfection of the bill in not stating the interest of the widow of John Lessman and the intent to defraud her, the imperfect manner of wording those releases, and the want of an averment that Lessman had not sufficient real as well as personal estate to pay his debts. Yet, with all these imperfections, we have sufficient evidence to justify us in making a decree that the defendant be perpetually enjoined from collecting any part of the notes assigned to him, and that they be given over to the plaintiff, as administrator of Lessman, to be brought into a regular course of administration, and the avails thereof distributed according to law. In coming to this conclusion we have taken into consideration the distinction which exists between executed and executory contracts, that the court will often refuse to rescind the former, where it might decline to compel an execution of the latter; but there is no contract, however solemnly executed, but what will be rescinded by a court of equity for fraud, actual or constructive; and the one under which the defendant claims the property in the present case is rescinded because executed for a fraudulent object, and also because it has been endeavored to be perverted by the defendant to a fraudulent purpose.

Casey and Brown, for plaintiff.

Shunlc and Alriclcs, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      September 15th, 1858.
    Brown et ux. v. Ettla.
    A board of arbitrators have the same power over costs as a jury; and, in an action for words spoken, if they award a sum less than 40 shillings and costs, the plaintiff shall recover no more costs than damages.
   By the Court.

On the 17th of August last an award was made, under the compulsory arbitration law, finding for “the plaintiff the sum of one dollar damages and costs.” Under this award the plaintiffs have had their costs taxed in full, and the defendant has moved to have the taxation corrected by striking off all the costs as taxed except one dollar, and that judgment be entered that the plaintiff recover no more costs than damages. By the 4th section of the act of 17th March, 1713, it is provided in substance, that in actions for words, if the jury trying the cause or assessing the damages, shall assess the same under forty shillings, the plaintiff shall have and recover only so much costs as the damages so given or assessed do amount to, without further increase of the same. This is a translation of the British statute Jac. 1, c. 16, s. 6, under which it had been held, long previous to the passage of our act of Assemby, that although the court was bound by the statute, the jury was not, but might give ¿610 costs, where they gave but lOd. damages (see 1 Salk. 206, citing a case decided 5 Car. 1). So that we may fairly infer that the legislature of Pennsylvania intended that the jury should exercise the same power under our act. Numerous decisions in this State have fully recognized the authority in juries to control the question of costs, although the courts have occasionally lamented that it was ever yielded to them. It perhaps would have better effected the intention of the-legislature to have decided in the outset that juries as well as courts were bound by the words of the act, and where the law had declared that there should be “no further increase” of the costs, they could not be given by any tribunal whatever. The policy of the legislature was to put an end to small litigation by imposing costs on the winner, where it appeared he had harassed his neighbors with an action to recover trifling damages. The only question we are at liberty to investigate is, what did the referees intend by their award ? It has always been held by the court that tire intention to give costs must clearly appear where they are denied on account of the paucity of the damages; and although we might suppose the arbitrators in this case intended to give full costs, yet they have not clearly declared that intention, and the presumption is they knew how the law had been settled in Pennsylvania, and desired to conform to it by their award. We find the same words used by arbitrators in Stewart v. Harkness (3 Binn. 321). They awarded to the plaintiff one dollar damages and costs, and the Supreme Court unanimously decided that it meant one dollar costs. The chief justice there says: “ Where the verdict finds costs, without mentioning how much, it should be intended such costs as the law allows in this case, to wit: costs to the amount of the damages, and no more.” This decision is binding on us, unless it has been shaken or overturned by the tribunal that made it. So far from being repudiated, it is strongly confirmed in Gower v. Clayton (6 S. & R. 85), and is not questioned by Judge Burnside in Moon v. Long (2 Jones, 207). It is supposed by the authors of Pennsylvania Practice, p. 643, vol. i, that this last-mentioned case shakes the principle declared in Stuart v. Harkins; but as we understand Moon v. Long, it fully recognizes it, and reiterates what was personally stated by Chief Justice Tilghman, and also by Judge Gibson in Gower v. Clayton. All three of these eases arose on awards, and lay down this general rule for our guidance, that arbitrators had the same power over costs as juries, and no greater. Where they give less than forty shillings damages and merely add “ and costs,” the award must be construed to mean such costs as the law allows, to wit, no more costs than damages. Where the words used are “full costs” or “costs of suit,” or “and the defendant pay the costs,” expressions are unambiguous, and clearly show that the arbitrators intended to award full costs, and that intention can lawfully be carried into effect by taxing the costs de incremento. In this case judgment must be entered on the award for one dollar damages and one dollar costs, and the taxation of full costs corrected to correspond with such judgment by striking out all but the sum of one dollar costs. The execution must also be corrected to conform with this order.

PTerr, for plaintiff.

Bishop, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      May 16th, 1859.
    The Commonwealth ex rel. the Attorney-General and Kelker et al. v. Kepner et al.
    When the person who laid out a town nradeadeed of the streets to the trustees for the use of the public, the town council have no authority to erect a building for a fire-engine house upon any portion of the streets; the fact that it was in a place not used for travel makes no difference. Such a building, if erected, would be a nuisance which could be abated, and those authorizing its construction would be liable to indictment, and probably would be personally liable for the money so wasted. Before the commencement of the house a bill of equity for an injunction is the proper remedy. The attorney-general on behalf of the commonwealth and tax-payers whose lots front on the street opposite the site of the proposed building are the proper complainants, and the mayor, contractor-, and members of the town council who voted for the erection of the building are the proper respondents. The fact that one of the latter has been omitted will not vitiate the bill. The borough is not a proper party. A perpetual injunction will be granted against such borough officers, although they only hold their offices for a limited period.
   By the Court.

The complainants have filed their bill on the equity side of the court, setting forth that they are resident citizens on Front Street in the borough of Harrisburg, and own property and pay taxes in said borough. That Front Street is a public highway, dedicated to the public for that purpose forever, and the defendants, Kepner, Muench, Linn, and Black, members of the town council, and Slentz, a contractor, are about to erect a brick engine-house for the purpose of accommodating a fire and hook and ladder company on said street, whereby the public highway will be greatly obstructed and impeded, and ■the rights and privileges of the residents on Front Street greatly injured and impaired. Also that the house, when built, will be a public nuisance, subject to abatement by law, and will be built by the expenditure of a large sum of money out of the funds of'the •borough to be raised by taxation on the citizens, the orators among others, and the money so expended will.be .wasted and lost'to the public. The attorney-general, on behalf of the, State, joins in the complaint that a public nuisance is about to be erected on the highway. To this complaint the members of the town council have answered in substance, that the act proposed to be done'by them was in their corporate capacity as officers of the borough, that as such they have the general charge and control of the streets and alleys; tire building proposed to be erected was not for any private, but for a public beneficial purpose — to hold the fire apparatus belonging to the borough, and they have the right to so build it if they see proper. That the contract for building the house was entered into pursuant to a resolution of the board, which they had a lawful right to pass; such resolution having the force and effect of a public ordinance, and coming within their legitimate power as members of the corporation. They also set forth the names of other persons, members of the council, who they aver should be joined with them as defendants in this proceeding. Although the respondents admit that they were about to erect the brick engine-house for the purpose stated, yet they emphatically deny that they were about to erect the same on Front Street, as charged in the bill.

They further aver that, if built, it would not have interfered with or interrupted the plaintiffs, other property-holders, or the people at large from travelling on the streets as they had been accustomed to do. And they also set forth that other public buildings, such as the market-houses, water-house, etc., stand on the public streets without objection. By the evidence introduced on the hearing, it appears that the ground on which the part of Harrisburg, now in controversy, was situated, originally belonged to John Harris, who laid out the town in the year 1785. And for the purpose of securing the streets and alleys to the lot-holders, and certain lots for the use of the public, executed a deed on the 6 th day of July, 1785, to Jacob Awl, Joshua Elder, Andrew Stuart, James Cowden, and 'William Brown, as trustees, “to hold the streets, lanes, and alleys in trust for the public use forever.” The streets are generally described by courses and distances, and the one under consideration is mentioned as “ the large street along the river-side, called Front Street,” begins at “ a post marked for a corner, adjoining William McClay’s land, at the upper end of town, and of lot No. 80; thence extending along the front line of the aforesaid town, south 53° east, 157 perches, to the ferry lot and lane; thence, south 37° west, to the river Susquehanna, and all the ground and soil thereof from within and between the said line into the aforesaid river.” In a bond previously given, referred to in a former part of the same deed, which bond was also in evidence, Mr. Harris speaks of laying out “ a large street along the river for public landing-places;” and the deed also refers to a recorded plat or draft of the town; but on examining the record referred to, no such draft appears. This deed shows clearly and beyond all cavil that Front Street extends from the front of the lots bordering on it to low-water mark on the Susquehanna river; and therefore that part of the answer, which denies that the site selected for the erection of the brick engine-house was on Front Street, is incorrect. The spot selected is conceded, and is in front of the house of Mr. Kelker, one of the plaintiffs, and on the level bank of the street. Yet, in coming to this conclusion, we do not believe that there was an intentional misstatement on the part of the reputable gentlemen who swore to the answer; as they seem to have drawn some imaginary distinction between what they call “ Front Street,” and what they designate as “ the river bank;” whilst the deed, which is the foundation upon which the street is based, shows that it extends to low-water mark. Some color, though slight, for the distinction taken by the defendants on the argument is deducible from dotted lines on what purports to be a copy of a plat of the town made out and signed by the heirs of John Harris. But, in the first place, such a draft, made out at an after-time, when many of the lots had been disposed of, could not control the original survey and the deed founded thereon. The lines are of themselves unintelligible, and the map in that particular is not truly copied from the original, which contains no such dots, but shows an open street to the river, as appears by inspection thereof.

We being fully satisfied from the evidence that the site of the building about to be erected is on a part of Front Street, the next question presented is, whether the town council have authority in law to erect the house for the purpose and object set forth in the answer. The only power conferred by the act of Assembly on the town council on this subject is, improving, repairing, and keéping in order the streets, lanes, alleys, and highways” of the borough. They have no authority to open new ways, widen, contract, or alter old ones, or vacate, abolish, or close up any street, lane, or alley; their duty is confined to improving, repairing, and keeping in order those already laid out, or such as shall be established in the mode prescribed by law. They have, as general conservators of the borough highways, power to regulate pavements, gutters, curbstones, sewers, awning-posts, cellar-doors, shade trees, and such other matters as conduce to the public safety and convenience, to fix the grade of streets, lay down gas or water-pipes, or other improvements of that character. That they have no power to erect any kind of buildings for any purposes whatever on a public highway or street, we think, is very clear both on principle and authority. The erection of market-houses on the streets and public squares of our cities and towns in Pennsylvania is better sanctioned by general usage than that of any other kind of building, and they are probably more conducive to the benefit of the people at large. Yet the Supreme Court of this State in the case of the Philadelphia market-houses declares that, as they were built on a public street, they Avere a public nuisance, until sanctioned by an act of Assembly; that those Avho erected and kept them up could have been indicted, and any person might have abated them. The city councils have much more extended powers than any conferred on our borough officers, yet the chief justice of the Supreme Court says that “ they Avere mistaken when they voted that they had full authority to build them in the middle of the street, provided they left a sufficient carriage-way on each side. They could no more obstruct it partially, than close it altogether; and a nuisance erected and maintained by a public corporation in a highway dedicated to the use of the whole people, is as liable to legal punishment, as the same acts done by private parties.” The same principle was decided by the Supreme Court of Alabama, on great consideration, as reported in 5 Porter, 279, and spoken of with approbation by our own Supreme Court in the case last referred to. The councils of the city of Mobile, possessed by the charter with more extensive powers than those conferred on our borough officers, were restricted by injunction from erecting a market-house on a street in that city, on the ground that, when built, it would be a public nuisance.

We find strongly analogous principles established in other cases. The commissioners of Bedford county at an early day built their court-house on the public square in the borough of Bedford. A few years since a new one was erected, the old one leased out by the county commissioners to Mr. Bowman for a printing-office, and the county treasurer was permitted to keep his office in a portion of it. The occupants Avere indicted for keeping up a public nuisance; and the Supreme Court declared that “the county commissioners have no greater right than an individual to disturb the citizen in the enjoyment of a municipal franchise, at least not beyond the bounds of absolute necessity; and the right of even the corporate authorities to erect buildings, from what was said in Rung v. Shoneberger (2 W. 24), seems to stand on the same foundation ; the public square is as much a highway, as if it were a street; and neither the county nor the public can block it up to the prejudice of the public or an individual; nor can either assert a right to it, by inclosing it beyond the limits of a reasonable curtilage. It is dedicated to the use of the citizens as a highway, and all have a right to pass over it without unreasonable let or hindrance.” Although a portion of this building Avas used as a public office, yet it was declared to be a nuisance, the defendants Avere convicted and fined for keeping it üp, and ordered to abate it. On the erection of the new court-house, it is decided to be the duty of the county commissioners to have the old one removed from the public square. The mayor and council of the city of Allegheny, for the purpose of liquidating a debt contracted in the erection of their water-works, undertook to lay off a portion of a public square in that city into lots, and sold them to individuals, Avho commenced the erection of a building on one of them. On a bill filed on the equity side of the District Court, it was decided that the city authorities possessed no such poAver, that the house, if built, would be a public nuisance, and the mayor, council, and builder Arore restrained by injunction. A learned and elaborate opinion was delivered on the subject by Judge Hepburn, and unanimously confirmed by the Supreme Court (2 H. 186). It is said, arguendo, by defendants’ counsel in answer to this case, that the building proposed to be erected Avas not for public, but for the private use of the purchaser. This, in our opinion, makes no material difference. If the city authorities could occupy the ground themselves, they could authorize it to be done by their vendee, when the sale was made for a public purpose. The maxim would apply there that does in other cases of trust, “ a conversion is not a diversion.” Although the land is converted into money, yet it is not diverted from its original object, the use of the public. The case is decided on the ground that the square must remain open for the benefit of the people at large, and that it is a franchise belonging to every individual in the community, particularly to the lot-owners, who purchased on the faith of its remaining an open square. We find a similar principle decided in 3 ’Vermont Rep. 279. Where a square in a town was dedicated to the use of the public as a highway, there is an easement in their favor, and the selectmen of the town cannot authorize buildings upon it, or give an exclusive possession for any purpose. The same principle is repeated with increased force in Abbott v. Mills (3 Vert. 521), where it is said that, when an open square is dedicated to the public, and persons have bought and built on the faith of it, the selectmen of the town, even when authorized by an act of Assembly, cannot lease it out for private purposes to the injury or inconvenience of the property-owners around it. It can be appropriated to no use inconsistent with the original dedication. See also 4 Paige’s Ch. 510. In all of those cases it is conceded that the streets of a town are more favorably situated for the public than the squares; the former being for the exclusive purpose of travel, it is admitted, must be kept open and unobstructed; whilst the latter, being merely for ornament, and to secure health by more open air, it is contended, can be used by the authorities for useful public buildings; but the distinction is not approved in any of the cases referred to, and is rejmdiated in Rung v. Shoneberger (2 W. 23), The Commonwealth v. Alburger et al. (1 Wh. 469), and many other cases. The power of the city authorities over their streets occasioned very considerable discussion in the case of the railroads laid down in the city of New York, where it was ultimately decided by the Court of Appeals, that the establishment of a railroad is not within the jurisdiction conferred upon the common council over the roads and streets of that city, because it is not an object of the same public nature with those which roads and streets are designed to serve.” The right of making such a grant, and of authorizing the construction of a railroad in any of the public streets of the city rests, according to those decisions, with the legislature; and if the railroads had been constructed under the authority of the city ordinance, it is declared that they would have been a public nuisance (Angel on Highways, 22, note).

The same principle, I think, has been universally recognized in our State, as no one has attempted to lay down the track of a railroad on the public street by virtue of an ordinance without the authority of an act of Assembly. And yet it must be conceded that the construction of a railroad on a public street would more nearly assimilate to the original purpose of the thoroughfare than the building of a house of any kind, or for any purpose. The one is merely changing the mode of travel, in part, leaving the highway open to all other methods; the other is obstructing it altogether by .a permanent erection. The distinction has been taken in several of our books. ■

In one reported case in Pennsylvania (Barter v. The Commonwealth, 3 Penna. 259), it is said “that the title of the corporation to the soil of the street for uses that conduce to the public enjoyment and convenience is paramou/nt and exclusive;” an expression which would apparently give the borough or city authorities great power over the streets and squares for any and almost every public purpose. But that doctrine was soon after expressly repudiated and overruled by the judge who uttered it in the case of the Trenton and Philadelphia Railroad Company (6 Wh. 45), where it is shown that their duty is merely to keep the streets in proper order for public travel and convenience, and the paramount authority over them resides in the commonwealth. It is now settled in our State, that in all ordinary cases the right of soil in the streets, lanes, and alleys in cities and towns, as well as in the highways in the country, exists in the adjoining proprietors, each owning the soil to the centre of the street, and that it requires express words in the deed to confine them to the margin (Paul v. Carver, 2 Casey, 223). Should that doctrine prevail in the present case, the owners of lots fronting on the river would be entitled to the soil to low water-mark, as has been long -since settled in the case of lands fronting on our great navigable waters (1 Wh. 131; 2 Wh. 508; 5 W. 459; 4 Casey, 207). If the adjoining lot-owners are entitled to the soil of the street by virtue of their purchases, with a mere right of passage to the public, as in other cases of highways, we are at a loss to understand on what pretence the town council can take possession of any portion of it to build houses for the benefit of the borough. The grant of the streets of Harrisburg to trustees for the use of the lot-owners may, however, distinguish this from ordinary cases; but even that could give no additional power to the town council, as the grantees are valid trustees without one particle of interest, and hold the legal title in the soil for the use of every person who bought a lot. The franchises of the lot-holders and of the public in the highways are the same as if no such deed had been executed. The ordinary method of dedicating streets to public use is for the owner of the soil to lay off his town, and exhibit on file a plot of it; and when sales are made of lots with front or rear bounding on a street so laid out, the purchaser has a right to have it thrown open forever (11 Wend. 487; 8 Wend. 85; 1 Hill, 189, 192). No grantee is necessary in such case, but the transfer operates by way of estoppel in pais (1 Conn. 106; 6 Peters, 431). And when the dedication is so made, it cannot be resumed either by the person so dedicating or the public (2 Stra. 1004). And the city authorities can apply it to no other purpose than that for which it was dedicated; should they attempt to do so, chancery will enforce the trust (6 Peters, 498; 10 Peters, 662). The defendants further aver in their answer, that even if the house had been built, as proposed, on the public street, it would not interfere with or interrupt the plaintiffs or others from travelling and using the street, as they had been accustomed to do. The reason given for this is that the street is of great width, and there is ample room to pass notwithstanding the house, which was about to be constructed in an unused and out-of-the-way spot. We are clearly of the opinion that none of those reasons are of any avail. If it is conceded that the house is on a public highway, it is a nuisance per se.

The owner of property has no more right to obtrude his house one foot on the street, than he has ten feet; and unless on the maxim de minimis, he would be as readily convicted of a nuisance. On an indictment for erecting or maintaining a public nuisance, the defendant would not be permitted to show that there was ample room left for the passage. Such evidence would be inadmissible. We are of opinion: 1. That Front Street is a public highway, and extends from the front of the lots, as laid down by John Harris, to low-water mark on the Susquehanna river. 2. That the town council have no authority over it, except for the purposes mentioned in the act of incorporation, or arising out of or deducible from it. 3. They have no power to construct any land of building on the street for any purpose, public or private. 4. The resolution adopted by the board on that subject was a nullity, was beyond the legitimate authority of the town council, and had no tendency to legalize the act. 5. Had the house been built pursuant to the resolution, it would have been a public nuisance, which could have been lawfully abated by any one; and the town council, which authorized it, and the contractor, who constructed it, would have been subject to indictment.

These are the only points affecting the merits of the case; but there are some questions of form to be considered.

First. Have we proper parties plaintiff’to the bill ? The commonwealth, through the attorney-general, is a party demanding that a nuisance shall not be erected on a public highway. That is fully sustained by English precedents and those in the courts of the United States; also in our own State in The Commonwealth v. Rush (2 H. 186). The three private complainants áre residents on Front Street, and two hold property in the immediate vicinity of the proposed building. It is decided in 4 Page’s Chancery, 510, “That a person holding property fronting on a square has such an interest as will enable him to join in a bill for an injunction, whether the proposed erection is in front of his property or not. All the people in a town have an interest in the streets and squares.”

The complainants also aver that they are property-holders and tax-payers in the borough. As such we have no doubt that they are interested in the proper and legal expenditure of the public money, and that it shall not be wasted in the erection of a house, which must be removed as a nuisance. In that capacity they are proper parties to the bill. The only objection to that view of the case is that, as the defendants are about to do an unlawful act, not within their authority as borough officers, they might be obliged to pay the expenditure out of their own pockets, and not out of the public treasury. Of the correctness of this position we think there is little doubt; but as there is no tribunal invested with authority to audit, settle, and control their accounts, the present plaintiffs or any other taxable citizen has a right to ask for the intervention of this court, both to prevent an illegal expenditure and unnecessary future litigation. “ Quia timet,” provided it be reasonable, has always been held to be ground for an equitable interposition. The defendants say that, as they were acting in their corporate capacity as borough officers, the borough of Harrisburg, by its corporate name, should have been made a party; or if the proceeding could be lawfully commenced against the town council, all of the members of the board should have been included; and they furnish the names of the other members in their answer. There is no doubt that the want of proper parties may be suggested and insisted upon in an answer in chancery, and need not be pleaded in abatement, as at law. But in that case the court will bring in the additional parties, provided any of those named are proper. If these gentlemen had confined themselves to the duties confided to them by law/and the act had been one by which they could have bound the borough, we have no doubt but that it should have been made a party by its corporate name. But as they have assumed to themselves a power which the law does, not give them, and were about to erect a public nuisance, an indictable misdemeanor, the. court no longer considers them as acting under the authority of their commission, but treats them, whether they be officers of a corporation or private individuals, merely as persons acting without lawful authority, as tortfeasors, and their act is not binding on the borough; and it would have been improper to have made it a party to the bill. We fully agree to all that is said and to the distinctions taken by the court in Philadelphia, in Hill v. The Commissioners (1 Parsons, 501). We consider that it would have been equally improper to have joined any member of the town council, who was not present when the unlawful resolutions were adopted, or acts were agreed to be done, or if present, were opposed to the action of the board. They were not participants in the unlawful act, and cannot properly be answerable for any of the consequences. The only member of council present who concurred in the action of the defendants was John Cunkle, as appears by the answer. It would have been lawful to have included him, but was it necessary ? No one sued at law for committing a trespass, or creating a nuisance, can object that others who have acted with him were not joined. And we are of the opinion that a bill filed in chancery to prevent the waste, or stop the erection of a nuisance, public or private, may include all or any portion of the participants, and there being others not joined is no good ground of objection on the hearing. Were it a case of contract or trust, all the persons interested must be made parties to the bill. In the present case, if the house had been built, and an indictment preferred for a nuisance, it could only with propriety have embraced those who constructed the building, or such as advised, aided, or encouraged the erection. We are of the opinion that the bill embraces proper parties, and to have added any others as defendants, except Mr. Cunkle, would, from aught that appears in the case, have been error.

This is clearly what is considered “irreparable damage” in courts of equity, according to adjudicated cases (3 Wh. 512; 2 IT. 196), and therefore properly calls for the interposition of the court by injunction. Nor is it one of those cases of doubtful or disputed facts, which justifies a suspension of proceedings by a court of chancery, until the rights are determined by an action at law. There is but one fact disputed in the answer, and that is clearly established by the ancient deed of John Harris and the almost equally ancient draft of the town. It is highly important that the powers and duties of the town council in regard to the streets, lanes, and alleys of the borough should be speedily settled, and the present proceeding is the cheapest and most expeditious that can be adopted. If the defendants had been permitted to proceed and erect the proposed building, it would have been done either at a great loss to themselves or the taxpayers of the borough. We have no doubt that it would have led to indictments for nuisance and the abatement of the structure; and probably to a contest in some form to determine whether the loss should fall on those causing the erection or on the public. No proceeding, either civil or criminal, can be sustained at law until the nuisance is completed. The remedy in chancery is either preventive or corrective. The erection of engine-houses for the preservation of the machinery and the comfort of the firemen is highly beneficial; but they, like all other buildings, must be constructed on lots purchased for the purpose at the public expense, and cannot lawfully be permitted to incumber the streets of the borough. The existence of other structures on our thoroughfares has been urged in the answer as an excuse for the action of the town council in this case; but whether it was lawful or otherwise to build them, we are not called on to decide. We are only bound to declare the law, as we find it settled in relation to the case before us. That part of the answer is entirely irrelevant.

Briggs and Kunhel, for plaintiff.

Fisher, for defendant.

It is urged that we cannot perpetually enjoin these parties, as they are but temporary officers; and, therefore, the proceeding should be against the corporation itself. We do not pretend to enjoin the borough of Harrisburg in this case, but merely the persons who, without proper authority, threaten to do the wrong. Our mandate will perpetually prevent them from doing the injury, and none others threaten it. Should such hereafter be the case, those who consider themselves aggrieved can take legal measures to prevent its recurrence.

We have already said that the act proposed to be done by the defendants is not within their corporate powers; and in attempting to erect a nuisance on the public streets they must bé treated as mere wrong-doers, and restrained like all others who threaten an injury to public or private rights. A perpetual injunction must be decreed.


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      Court of Common Pleas, Dauphin County,

      February 1st, 1860.
    In the matter of Taylor’s Application for the Benefit of the Insolvent Laws.
    The failure of an applicant for the benefit of the insolvent laws to appear on the day fixed for hearing works a forfeiture of the bond, and the court has no power to relieve the petitioner or his surety.
   By the Court.

At the May Term of the Court of Common Pleas of this county, S. E. Taylor presented his petition for the benefit of the insolvent laws, and the court fixed the first day of August Term as the time of hearing between him and his creditors, of which notice was duly given as ordered. The first day of August Term was Monday, the 22d. On that day no mention was made of the subject by the' petitioner or his counsel, nor was it called on for^ a hearing until Saturday, the 27th, when the counsel of the petitioner asked the court to postpone the hearing until Monday, the 29th. On that clay the attention of the court was again directed to the case, when the counsel of the creditors asserted that they had been ready with witnesses on the day fixed for the hearing, that the witnesses had been detained throughout the day, but on the petitioner failing to appear, they considered the case at an end, and the bond forfeited; and further, that they were not in court when the matter was postponed on Saturday. The court then held the case under advisement. On the 31st of August, an affidavit of one of the creditors was filed, stating that he was present with his witnesses and counsel ready to contest the right of the petitioner to a discharge on the 22d, and detained his witnesses all day in court for that purpose. This we believe to be a correct statement of the facts, and the question presented is, do they amount to a forfeiture of the bond given by the petitioner and his security, or can he yet demand a hearing and discharge ?

If the court possess the power to grant relief in this case, it is our disposition to do it, being satisfied that the failure to present himself on the day fixed in the order of court was a mere oversight of the petitioner and his counsel.

We consider it clearly settled that the creditor has a vested interest in the bond given by his debtor, conditioned to take the benefit of the insolvent laws, of which the court cannot deprive him. If the bond is forfeited, there is no power in law to relieve the petitioner (1 Penna. 12, 270, 271; Ashmead, 102).

The condition of the bond requires the debtor to appear at the next term of the Court of Common Pleas, and then and there present his petition for the benefit of the insolvent laws, and abide all the orders of the court. A time of hearing between the petitioner and his creditors must be fixed, either by general order, or one specially made in the particular case, and at least fifteen days’ notice must be given to the creditors of the time and place fixed for the hearing. Our only rule of court on the subject requires publication in at least two newspapers for three weeks, the last insertion to be at least fifteen days before the day of hearing, unless otherwise ordered; according to our construction both of the act of Assembly and the rule of court, a particular day must be appointed for the hearing; the creditor is not obliged to attend during the whole term to examine his debtor in relation to his effects, or bring and detain witnesses for an indefinite period to resist his discharge. The phraseology of the act of Assembly is entirely changed when it fixes the time of presenting the petition and the hearing of the insolvent. The former is to be done at the next term, the latter on a time certain. It is true that in Sheetz v. Hawk (14 S. & R. 175), Judge Duncan speaks of the term as one day, and so it is for many purposes, and. there is no doubt of the power of the court to continue the hearing of insolvents from day to day or time to time throughout the term, but it must be done by the court, its action is required, and it will not do for the applicant to come forward on such day through the term as suits his convenience. That decision was made under the act of 1813, but the words are substantially the same as those of the act of 1836. A time and place of hearing must be fixed in the notice. The point now presented did not arise in that case; there the counsel for the applicant on Monday of the court, the day appointed for the hearing, asked for a continuance till Wednesday, which was granted, and on that day the insolvent was discharged. The only defect was that the record did not show the continuance; but the court held that the subsequent discharge was conclusive that all things required by law and the order of court had been complied with. Many of the later cases show that the greatest strictness on the part of the petitioner is required. In Frick v. Kitchen (4 W. & S. 30), it is decided that if the insolvent surrenders himself on the next day after the one appointed for the hearing, it is too late. He must surrender himself on the day when his discharge is refused. But a surrender on the first day of the term is a compliance with, the condition (Gallagher v. Kennedy et al., 2 Rawle, 163).

So far as come under our observation, or we have been able to learn from others still older in the practice, the usage has been uniform for the applicants for the benefit of the insolvent laws to present themselves on the day fixed for hearing, oi on their inability so to do the counsel conducting the business has asked for a continuance from time to time, and a failure to do either has always been considered a forfeiture of the bond.

The application on Saturday to continue the case over till Monday, and the order of the court to that effect, cannot relieve the petitioner or his surety, as the bond was already clearly forfeited, and no action of ours could take off the. forfeiture, nor was it so intended, but was done as a matter of course in the absence of the creditors’ counsel (or if he was present against, his remonstrance), in order to have the facts fairly presented.

We are of the opinion that it is out of our power to order the petitioner’s discharge at this time, that it was equally so on Saturday of the August Term when we continued the case, and that the bond was forfeited by his non-appearance on the Monday fixed for his hearing. Application for a discharge refused.


text:
      Court of Common Pleas, Dauphin County,

      March 3d, 1862.
    Elder v. Thompson.
    A transcript certified by a justice of the peace, whose term of office has expired, is void, and will be stricken off by the court upon motion. The docket.of such justice should.be given to his successor in office, and transcripts should, in ali cases, be certified by the latter.
   By the Court.

Rule to show cause why a transcript filed for the purpose of lien, should not be stricken off.

The only question presented in this case arises on the validity of the transcript filed of record. Charles C. Snyder, Esq., the magistrate before whom the judgment was obtained, went out of office by the expiration of his term, in the year 1859, and another was elected in his stead, as alderman, in the same ward. Esquire Snyder retained his docket in possession, and gave this transcript after his time expired, to wit, on the 3d day of December, 1861. Could he lawfully certify the transcript, and is it valid as a judgment?

Prior to the adoption of the amendments to the Constitution in 1838, all justices of the peace and aldermen were commissioned during good behavior, but in case of death, resignation, etc., they or their legal representatives were permitted to retain their docket, and certify transcripts for those who might require them. The act providing fox the election of justices, introduced some new ' provisions on this subject. By the tenth section of the act of the 21st of June, 1839, it is provided, that all magistrates elected under the amended Constitution, shall, on tire expiration of their term of office, give over their dockets and other office papers to their successor in the same district, whilst those then in commission were permitted to retain them, and certify transcripts. On the 27th of February, 1845, an act was passed giving aldermen and justices of the peace elected, or who should be elected, the same privilege to retain their dockets, and certify transcripts, which was accorded to those then in office, by the tenth section of the act of June 21st, 1839. On the 21st of April, 1846, another act was passed on this subject, the sixth section of which declares, “ that so much of the tenth section of the act of 1839, as provides for the delivery of the dockets and papers of an alderman or justice of the peace to his successors in office, shall be, and the same is hereby decreed and construed to extend to all cases of succession in office, whether by death, resignation, removal, or otherwise; and in case of the death of any alderman or justice of the peace, the said delivery shall be made by his legal representative to the person who is or may be elected and commissioned to succeed him in said ward, borough, or township.” It is very clear that this section operates as a repeal of the act of the 27th of February, 1845, and also of so much of the act of 1839, as permitted magistrates then in office, or their legal representatives, to retain their dockets, and they are from thenceforth required to be given over to their successors in office in all cases. It has been decided by the Common Pleas of Philadelphia, that a justice of the peace cannot proceed on the transcript from the docket of another justice; he must have the original docket before him; for after his term of office has expired, 'there is no authority vested in him to certify a transcript (2 Parsons, 297). This decision was made under the act of 1846, and is, as we conceive, a correct exposition of the statute. It is true that the Supreme Court held in Sloan v. McKinstry (6 Harris, 120), that such a transcript was evidence when suit was brought before a justice in another county, being expressly authorized by the act of 1810. But from all that we can gather from the case, we are led to believe that the transcript was certified before the passage of the act of 1846, although the suit was brought afterwards. There does not appear to have been any reference to the act of 1846 on the argument, and if our conjecture is right, the case is correctly decided; and even if we are in error in the supposition that this transcript was previously certified, it could not help the present case, as the act of 1810 authorizes the person having “possession of the doehet,” to make out arid certify a transcript to send to another county. That is not the present case. Here the transcript is used in the same county. My own opinion is, however, that the transcript cannot be certified by the magistrate when out of office, or by his executor or administrator, for any purpose whatever; but that the act of 1846 contemplates that the dockets shall, like other records, go into the hands of the succeeding magistrates in the ward or township, to be handed down from one to another, and that in all cases the transcript must be certified by a person then in office. The act of 1846 clearly intended to change and repeal all of the laws which contemplated that a justice of the peace might retain his docket, and to require that in all cases it should be handed over to his successor, whether the office terminated by death, resignation, expiration of the term, or from any other cause whatever. The consequence of this is, that Squire Snyder could not lawfully certify the transcript filed in the present case; it created no lien, and the same must be stricken off the record. Owing to the confusion and obscurity in these various acts of Assembly, magistrates may have been in the practice of retaining their dockets, and certifying transcripts after the expiration of their term of office, and if the practice has prevailed to such an extent as to create great mischief by vacating the judgment entered thereon, the evil may be reniedied by a curative statute, but the court cannot, on account of the prevalence of the evil, misconstrue the act of 1846.

Snyder, for plaintiff.

Alricks, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      February 6th, 1860.
    Scott v. Crum.
    In an action of slander, special bail is demandable only where special damage is shown, or the defendant is about to go out of the jurisdiction of the court.
   By the Court.

This suit is brought for words spoken by the defendant concerning the plaintiffj and bail demanded in $1000. The defendant obtained a rule to show cause of action, and why he should not be discharged on common bail. The plaintiff, by her own oath and also by the affidavit of another, has established the speaking of actionable words by the defendant concerning her; and the allegation, when made against a female, is one highly derogatory to her character. She is charged with having committed fornication. The question presented for our consideration is, can the defendant be held to bail for mere actionable words spoken without any other circumstances averred in the affidavit?

We have repeatedly decided that a defendant cannot be held to bail in an action of slander without jiroof of special damage, or that the defendant is about to leave the State, or go out of the jurisdiction of the court. It is very confidently asserted by the plaintiff’s counsel that we have no warrant in the law for such decision; that for actionable words of a gross character, the defendant can always be held to bail. The general rule, as stated in the English books on the. subject of special bail, is that the defendant cannot be so held except where the plaintiff can swear to a sum certain that the defendant owes him, or that he has been injured to a certain amount.

There are a few exceptions to that rule which will be noticed. “The law,” says Sellon, in his Practice, p. 60, “has in England undergone a most extraordinary change on this subject. Originally no arrest was allowed for any debt or purely civil cause of action, but only for trespass committed vi et armis. Now the law is reversed, no arrest being allowed in actions of trespass vi et 'armis (except by particular order of a judge) but only in cases of debt and other civil actions.” Tidd, in his Practice, vol. i, p. 152, says: “ It is not usual to grant such special order except where there has been an outrageous battery or mayhem, or the defendant is about to quit the kingdom. The defendant may be arrested, of course, in an action of debt, assumpsit, or covenant, where the party can swear to a sum certain being due, but not where the amount is wholly uncertain.” It is said the party may be held to bail in trover where the plaintiff can swear that the defendant has wrongfully converted goods of a specified value to his own use (1 Sellon Prac. 108; 1 Willson, 335; Cowp. 529). Possibly tire same doctrine would prevail in trespass de bonis asportatis, where the plaintiff would swear to the taking and the value of the goods removed.

That this is the rule of law in Pennsylvania is stated by Chief Justice Tilghman (6 Binn. 304). He says: “ The general rule is that in actions of trespass bail is not demanded, because there is no standard by which the damages can be measured. But there are exceptions to this rule; one is where the defendant is about to depart out of the jurisdiction of the court,” etc. These principles all have a bearing on the present action, proving that bail will not be required where the damages are uncertain, except under special circumstances. In Barnes’s Notes, p. 79, 80, it is said, in an action of trover for a ship, that as the damages were uncertain, “the plaintiff was not entitled to bail without a judge’s order.” “In debt, assumpsit, trover, and covenant, by ao etiam bail is of course. In trespass, detinue, and special actions on the case, or covenant, at discretion; for words, no bail unless for slander of title.” This work is of the highest authority for all matters of practice. Still, we do not believe that bail is confined to slander of title merely, but embraces all other cases of special damage, as where a trader can prove his customers, in consequence of the charge, ceased to deal with him. A person that by reason thereof, he or she, lost a chance to marry, or any of the other cases enumerated, is special damage. The amount of that damage need not, and generally cannot be proved, but when special damage is shown, the court must use a sound discretion in fixing the bail. Starkie, in his work on Slander, page 243, title Process, says, “ Since the damages are uncertain, the party cannot be held to bail without a special order of the court or a judge on a full affidavit of the circumstances, and no instance appears in the books in which such an order in a common case has been granted. Even in an action of saandalum magnatim, the court has denied an application for good bail.” (See 2 Mod. 215; see also 3 Mod. 41.) We are well aware that in Pennsylvania the practice of a special order has never prevailed. By our custom, before the passage of the act of 1836, no previous affidavit was required, but the writ was issued and bail demanded by counsel. The defendant could at any time, when arrested, cite the plaintiff to show his cause of action, and why an order of common bail should not be made, when the whole subject was brought before the court, or a judge in vacation, by affidavit. The 4th section of the act of 1836 required a previous affidavit; but that part of the act was repealed in 1840 and the former practice restored. The decisions in England are cited merely to show the class of cases in which bail will or will not be ordered by a judge, and where no such order will be made, it cannot be demanded in our State. In the State of New York it is held that bail will not be required in libel or slander, unless for slander of title, or on fcome special cause shown. Bail cannot be demanded for mere defamation, nor is it in the discretion of the judge, which must necessarily be arbitrary, which the law will not allow (2 Caine’s Rep. 47). But when it is shown that the defendant was a mere transient person, and about to leave the State, bail was required (2 Johns. Eep. 292). Both of these cases are recognized, and the doctrine fully sustained in Norton v. Barnum (20 Johns. 337). The same rule, we have always understood, prevails in Pennsylvania. In McCawley v. Smith (4 Y. 193), where actionable words were uttered, and the charge also published in a newspaper, the court refused to hold to bail unless special damage proved, or the charge be of a gross nature. The latter qualification we think was improper, as it fixes no certain rule, but is necessarily arbitrary, which is a power not conferred on the courts. In that case bail was refused; yet the words were spoken of a landlord in the course of his business, that he robbed his guest, and the charge was also published in the newspapers. In Charles v. Holmes (1 P. A. Browne E. 297), it seems to be taken for granted that special damage must be sworn to. Bail was required where the party swore that the words were spoken of him in his trade or calling, and by reason thereof he lost a customer. The case in 2 Miles E. 392, only settles that the affidavit was insufficient, and does not pretend to declare what proof is necessary. We have but little in our books of reports on this subject, and in the absence of some judicial decision or settled practice to the contrary, we must be governed and guided by the . rules of common law, which require proof of special damage, or that the defendant is about to leave the State, -and such we have always understood to be the law of Pennsylvania.

Ravm, for plaintiff.

Rerryhill and Echéis, for defendant.

Defendant is discharged on common bail.


text:
      Court of Quarter Sessions, Dauphin County,

      May 14th, 1860.
    In the matter of the Extension of North Street.
    Wien viewers are appointed to lay out a street under a private act of Assembly, and after tire view, but before the report was confirmed, a new law was passed providing another mode for opening streets, the court cannot confirm the report, and the proceedings must fall.
   By the Court.

A petition was filed on February 1st, 1860, asking for the appointment of viewers for opening a street, “commencing on the street or public road at a point at or near the northeastern termination of North Street in the borough of Harrisburg, and thence to the northeastern line of the borough near George Sheeye’s.” Pursuant to the prayer of the petitioners, twelve viewers were appointed in accordance with a special act relating to said borough, who, on February 25th, proceeded to lay out the street for public use, and made report to April Sessions following. Their report was filed for confirmation April 23d; and on the 28th, exceptions to the report were filed by G. W. Harris. The first exception relates to the point of commencement, which was not on the public street or road near the termination of North Street, but on a private road west of the public, from whence it proceeded to cross the public street. The other exception is, that this court has no power to act on the report, the law under which it was made having been repealed before the same was presented by the viewers, or acted on by the court. The report was confirmed nisi, and the width of the road fixed by the court two days before the exceptions were filed. The regularity of the view in regard to the place of commencement admits of grave question ; but we forbear to decide that point, being of the opinion that the other is fatal to the proceeding. On March 19th, 1860, an act was passed incorporating the city of Harrisburg, the 33d section of which created a special commission to lay out streets, lanes, and alleys in the city, according to a general plan or system, and conforming as nearly as practicable with the course and width of the streets and alleys already in existence; a plan of all which is to be submitted to and approved by the Court of Quarter Sessions, and the same to be opened from time to time according to that plan. The last section of the law repeals all acts relating to the borough of Harrisburg inconsistent with the law thus enacted. There is no saving in favor of proceedings then pending; but the aid of the 46th section is invoked by those in favor of the report to show that the act of 1817, under which the view was had, remains in full force. That section provides in substance that all acts of Assembly now in force touching or concerning the borough of Harrisburg, and all laws and ordinances not inconsistent with this act shall remain in force until the same shall be re-enacted, repealed, altered, or supplied by other acts of Assembly, or by-laws or ordinances enacted by the city. In our judgment the provisions of the city law is entirely inconsistent with that relating to laying out streets in the borough. It creates a new tribunal for the purpose, and endeavors to establish a scheme of uniformity between the new and old portions of the city. The two systems cannot stand together.' It was manifestly the design of the legislature to abolish the old and establish the new. The 46th section was mainly intended to preserve the ordinances and by-laws of the borough until others should be enacted by the city authorities; but it also embraces such statutes as are not in their provisions inconsistent with the city charter. All which are, cease to be obligatory. What effect has the repeal of the law on the preceding report? It was not made by the viewers until the law under which they acted was repealed, although the statute was in full force when they viewed and located the street. The report had to be confirmed nisi by the Quarter . Sessions, the width to be fixed, and after laying over till August Sessions could be confirmed absolutely. In the meantime, those opposed to the location had the right to demand a review. Could the court prove by review and re-review to locate the street after the law had been repealed, merely because the proceeding had been commenced during its existence? To ask the question presents the obvious answer. At what time then did our power cease? Most manifestly on the repeal of the law. All was struck dead eo instanti just where the repeal found it. In North Canal Street Noad (10 W. 351) it is decided that “ proceedings commenced under the provisions of a statute are arrested by the repeal of the statute; every act done towards their completion after the repeal is void.” The facts of that case, when examined, will be found much stronger in favor of the proceedings than in this; as they had progressed nearer to completion. In Abbott v. The Commonwealth (8 W. 517), it is held that “the repeal of a statute, pending a proceeding under it, puts an end to the further prosecution of it, unless there be a saving clause in the repealing act.” The same principle is settled in 4 Dall. 373; 1 Binn. 601; 1 Wash. C. C. N. 84. A proceeding which Avas imperfect when the act of Assembly under Avhich it was begun expires, cannot be perfected aftenvards. What is done hereafter is void (Stoever v. Immell, 1 W. 258).

It is established that where a remedy has been given by statute, and procedings instituted under it, but during their pendency the law was repealed, that the remedy was thereby taken away, and further proceedings to enforce it were illegal (Commonwealth v. Beatty, 1 W. 382). It was decided in a road case that “ no proceedings could be pursued under a repealed statute, though begun before the repeal, unless by a special clause in the repealed act. Therefore, under the act of 6th April, 1802, repecting roads, proceedings under former laws, thereby repealed, cannot be continued (4 Y. 392). It was held that “proceedings under are-pealed act cannot be completed after the repeal of the act; but they will be handed over to be finished under the new act” (Fenelon’s Petition, 7 Barr, 173). To take that course with the proceedings under consideration is to throw it into the general mass of streets to be laid out by the commissioners. In Hampton v. The Commonwealth (1 H. 329), it is decided that “ where the law requiring a street to be opened was repealed after the damages had been assessed, but before the opening, all proceedings to recover damages were void; the whole matter being ended by the repeal of the statute.” It was held that proceedings commenced under an act which was repealed before their completion, are not revived by a repeal of the repealing act (Commonwealth v. Leech, 12 H. 55). The case which at first glance would appear most like supporting this proceeding is that of Uwchlan Township Hoad (6 C. 156); but when examined that case conforms to all tlie others cited. It is there held that the act of 28th April, 1857, changing the number of viewers in road cases in Chester and Lancaster counties did not affect cases pending. “Where the jurisdiction of any subject-matter depends upon a special act of Assembly, the proceeding falls of necessity if the law is repealed before it is terminated; but an act changing the mode of proceeding will not have that effect.” Our case depends on a special act of Assembly relating to the borough of Harrisburg, varying in some essential particulars from the general law. The act which substitutes the commissioners instead of the viewers to lay out streets, etc., introduces a new system entirely inconsistent with the old; consequently, the latter must fall, as the latest expression of the legislative will is binding and must be our guide. Even if there was no repealing clause in this law, the inconsistency between the two systems would operate as a repeal without one (Johnstone’s Estate, 9 C. 511). If it were a mere change in the number of viewers, I am satisfied that it would not end the proceedings, as in appointing viewers on any subsequent view we could conform to the new law. But the act of Assembly chartering the city creates a new system and entirely abolishes and takes away the jurisdiction of the sessions to appoint viewers.

The report falls for want of power in the court to confirm it.