author: Thompson, C. J.

text:
    Jones versus Wagner et al.

    1. By partition the surface was severed from the underlying coal and the parts were allotted to different heirs, without any limitation as to the removal of coal. S'eld, that the owner of the coal could not remove it without leaving sufficient support for the surface. I

      2. The mining property is servient to the surface to the extent of sufficient supports to sustain it, and on default the owners and workers are liable for damages.
    3. To control the rule of the common law, an usage to mine without observing this duty, must be so ancient and uniform in the particular region as to amount to a custom.
    4. Such custom must be so ancient, that the memory of man runneth not to the contrary.
    5. The upper and underground estates are governed as other estates, by the maxim, sic utere iuo ut alienum non lados.

    November 7th and 8th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 169, to October and November Term 1869.
    This was an action on the case by Christian Wagner against Benjamin E. Jones and others, to April Term 1868. The declaration set out that the plaintiff was possessed of a piece of land containing 4 acres, and that the defendants removed the coal underlying the tract in “ so negligent, careless and unskilful a manner, and without leaving proper pillars, ribs and supports,” that the surface caved in, greatly damaging the land, the dwelling-house and other buildings, the fences and fruit trees, and prevented the plaintiff from having the full benefit and enjoyment thereof, &c.
    The land of the plaintiff was part of a tract called Bergen-oy-Zoon, late of the estate of John Ormsby, deceased. By proceedings in partition in October 1855, the coal was severed from the surface: — the surface, of which the plaintiff’s land is a part, was allotted to the children of Sidney Gregg, and the coal purpart underlying 75 acres of the Greggs’ allotment was allotted to Christian Ihmsen. In the proceedings in partition there were no limitations, conditions or restrictions imposed on either estate in respect to the manner of mining and removing the coal, or to any other matter.
    By subsequent transmissions, Ihmsen’s coal estate vested in the defendants, October 18th 1856, and 4 acres of the estate of the Greggs became vested in the plaintiff on the 7th of July 1866. At the time the plaintiff’s title vested in him, no coal had been excavated under it. In 1867 and 1868 the defendants removed all the coal under plaintiff’s tract, except a pillar partly under or near the plaintiff’s house. The result was that the surface sank, injuring the house, &c. There was evidence as to the manner in which the coal was removed by the defendants; that it was removed as it was everywhere in the neighborhood; that at the time of the partition and since, it was the custom in the bituminous coal region to take out coal without leaving any pillars or supports; that, independently of not leaving supports, the defendants mined with proper care and skill, &c.

      The plaintiff asked the court to charge :—
    1. If the jury'believe from the testimony that in consequence
    of the removal by the defendants of the coal underlying the plaintiff’s grounds, the surface of plaintiff’s ground sunk, fell or caved in, so as to cause damage thereto, and to the plaintiff’s buildings upon the said grounds, they should find a verdict for the plaintiff in such damages as they believe from the testimony the plaintiff has sustained. \
    2. If the jury believe from the testimony that the defendants, in removing the coal underlying the ground of the plaintiff, did not leave sufficient ribs, pillars or dirt to support the surface of said ground, or did not, in place of ribs, pillars or dirt, erect or set up posts or other supports, sufficient in number and strength to support the surface of said ground, in consequence whereof the surface of said plaintiff’s ground sunk, became depressed, fell and caved in, causing damage to the said plaintiff’s ground, and to the building thereupon, then their verdict should be for the plaintiff in such damages as they believe from the testimony the plaintiff has sustained by reason of such sinking, depression, falling or caving in of the plaintiff’s ground.
    4. That no custom or usage as to the manner of mining or taking out coal can avail the defendants in this case, as they cannot establish, by custom or usage, a right to remove the coal in such a manner as to leave the surface unsupported.
    The court affirmed each of the foregoing points of the plaintiff, reserving for the consideration of the court in banc the questions raised by them.
    The defendants requested the court to charge:—
    1. That in virtue of the proceedings in the Orphans’ Court for the partition of “ Bergen-op-Zoon,” the coal under the surface of the lot now of the plaintiff was severed from the surface and became a distinct corporeal estate, and the owners of the coal had the right to mine and take it out according to the custom of mining coal in this region, without liability to the owner of the surface for consequential damages, provided they mined and took out the coal with proper care and skill, and without any negligence in the operation of mining and taking out the coal.
    Answer: “ The first proposition in this point as to the severance of the coal from the surface, and that the coal became thereby a distinct corporeal estate, affirmed, but the rest of point refused and question reserved.”
    2. That upon the whole evidence the verdict should be for the defendants.
    Answer: “Refused, but question reserved.”
    Hampton, P. J., concluded his charge as follows :—
    * * * We shall therefore reserve the questions presented by the learned counsel for the determination of the court in banc, and submit to you the question of damages.
    “ If you find from the evidence that the plaintiff’s property has been injured by the coal being mined and taken out as it was by the defendants, we instruct you, for the present, that" he is entitled to recover damages in this action for whatever injury he has sustained by reason of the coal being thus taken out before the bringing of suit. This will include the injury to his house, fences, trees, vines and for-the surface being rendered unfit for agricultural purposes.”] * * *
    The jury found for the plaintiff $1000.
    Afterwards the court in banc (Hampton, P. J., delivering the opinion) entered judgment on the verdict on the reserved questions.
    The defendants took a writ of error, assigning for error the answers to the points, the part of the charge in brackets, and entering judgment on the verdict.

      M. W. Acheson, for plaintiffs in error.
    — The manner of mining is to be controlled by the custom in the coal region: Smart v. Morton, 30 Eng. Law & Eq., 385; Rowbotham v. Wilson, 8 H. of L. 348. The grant of coal in the soil gives the full right to dig and carry it away with all the means to obtain it: Caldwells. Fulton, 7 Casey 475; Sheppard’s Touchstone, ch. 5, p. 89; and is inconsistent with any dominion in another: Clement v. Young-man, 4 Wright 341; Brown v. Corey, 7 Id. 495; Penna. Salt Co. v. Neel, 4 P. F. Smith 9; Whitaker v. Brown, 10 Wright 197 ; Turner v. Reynolds, 11 Harris 199; Irwin v. Covode, 12 Id. 167. The defendants were bound to use their rights carefully, in accordance with the established practice of mining: Ratcliff v. Mayor of Brooklyn, 4 Comstock 185; Clark & Foot, 8 Johns. R. 421; Frankford & B. T. Co. v. The Phila. & T. Railroad, 4 P. F. Smith 345; Panton v. Holland, 17 Johns. R. 92; Rockwood v. Wilson, 11 Cushing 221; Bentz v. Armstrong, 8 W. & S. 40 ; Haldeman v. Bruckhart, 9 Wright 514; Wheatley i>. Baugh, 1 Casey 528Smith v. Kenrick, 7 Mann. G. & S. 515. Proof of usage is admissible to interpret a contract: 1 Greenlf. Ev. §§ 292, 294; 2 Parsons on Cont. 49; Dwight v. Whitney, 15 Pick. 179 ; Stultz v. Dickey, 5 Binn. 285; Aughinbaugh v. Coppenbefier, 5 P. F. Smith 347; Taylor’s Land. & Ten. §§ 350, 538, 554; Van Ness v. Pacard, 2 Peters 137; McCullough v. Irvine, 1 Harris 438. The house having been built after the partition, the right to a support for the soil does not extend to the building: Washburne on Easements 441 et seq.

      S. M. Raymond and C. B. M. Smith, for defendant in error.
    By the partition a servitude to support the soil was imposed on the coal estate: Washburne on Easements 16, 17 ; Kieffer v. Imhoff, 2 Casey 438. The contract rights of the parties cannot be controlled by custom : Stoever v. Whitman, 6 Binn. 416. To establish a custom the right must be ancient, certain, uniform and reasonable : Rapp v. Palmer, 3 Watts 179 ; Newbold v. Wright, 4 Rawle 212; Cox v. Heisley, 7 Harris 243; Foley v. Mason, 6 Md. 37; Jordan v. Meredith, 3 Yeates 318; Henry v. Risk, 1 Dallas 265; Frith ¶. Barker, 2 Johnson 327; Brown v. Jackson, 2 Wash. C. C. 24; Holmes v. Johnson, 6 Wright 159. The surface is entitled to support from the subjacent soil; Humphries v. Brogden, 1 Eng. L. & E. 241; Harris v. Ridyng, 5 M. & W. 59; The Earl of Glasgow v. The H. & C. Alum Co. 8 Eng. L. & E. 13; Farrand v. Marshall, 19 Barbour 380; Richardson v. Vermont C. Railroad, 25 Vermont 465.
   The opinion of the court was delivered, February 9th 1871, by

Thompson, C. J.

— The piece of ground out of which the controversy in this case has arisen, formerly belonged to John Ormsby’s estate, and in the partition of that estate in November 1855, the minerals in, and the surface of the land were separated and made to constitute two separate and distinct properties or estates, without any restriction, limitation or servitude imposed on either, and were so allotted among two of Ormsby’s heirs. The plaintiff claims title to the surface through the heir to whom it was allotted, and so do the defendants to the minerals from another heir to whom they were allotted.

The question in the court below and here, is whether the latter have by their unrestricted title, the right to mine and take out all the coal underlying the surface, without liability for injury thereto, or to buildings and improvements thereupon by subsidence or otherwise. The learned judge below reserved the point and submitted to the jury the question of injury.; to what amount, and whether it arose from unskilful or negligent mining in not leaving sufficient pillars or props in the mine to sustain intact the surface. On this question the jury found for the plaintiff, and at a subsequent day the court ruled the reserved question also in his favor and entered judgment on the verdict. From this statement it will appear, that the only negligence or unskilfulness at all attributable to the defendants, if any, arose from not leaving sufficient pillars of coal or supports to sustain the surface, and this they undoubtedly did not, most probably under the belief that all the coals in the mine belonged to them by virtue of their purchase and title. - This was certainly true with the exposition of such a right given by Baron Parke in Harris v. Ryding, 5 M. & W. 60 : “I do not mean to say,” observed that able judge, “that all the coal does not belong to the defendants, but they cannot get it without leaving proper supports.”

The right of supports, ex jure naturae, which the owner of the soil is entitled to receive from the minerals underneath, has, within comparatively a few years, received much attention in the courts in England, and the rule deducible from the cases in all the courts, the House of Lords, Exchequer and Queen’s Bench, is, that where there is no restriction or contract to the contrary, the subterranean or mining property is subservient to the surface to the extent of sufficient supports to sustain the latter, or in default, there is liability to damages by the owners or workers of the former for any injury consequent thereon to the latter. This is fully supported by Harris v. Ryding, 5 M. & W. supra, determined at Easter Term 1839, in the Exchequer; Humphries v. Brogden, 1 Eng. Law & Eq. 251 (1850), in the Queen’s Bench before Lord Campbell, C. J., and Patteson, Coleridge and Erie, JJ. The whole question was there discussed most learnedly and ably by the Lord C. J., and the same result arrived at as had been in the Court of Exchequer, supra, and in the case of The Earl of Glasgow v. The Hurlet Alum Co., House of Lords in 1850, 8 Eng. Law and Eq. 13. There are many other cases referred to in the English courts to the same effect, by Rogers on Mining, p. 455, et seq. Among them are Rowbotham v. Wilson, 8 H. L. Ca. 348; Pennington v. Gallard, 9 Exch. 1, for the principle stated by the learned author at page 467: That if an owner of lands grant a lease of the minerals beneath the surface with power to work and get them in the most general terms, still the lessee must leave a reasonable support for the surface, and so conversely, where the minerals are demised and the surface is retained by the lessor, there arises a primá facie inference at common law, upon every such demise, that the lessor is demising them in such a manner as is consistent with the retention by himself of his own right of support.” These citations prove two things, viz., that the owner of a mineral estate, if the law be not controlled by the conveyance, owes a servitude to the superincumbent estate, of sufficient supports; consequently the failure to do so is negligence, and so may be declared upon: Humphries v. Brogden, supra.

A usage to mine without the observance of this duty by defendants must have been so ancient and uniform in the region in which the property is situated, as to amount to a custom or usage capable of controlling the rule of the common law cited above, and of becoming the law itself. One element of such a custom would be, that it is so ancient “ that the memory of man runneth not to the contrary.” This could not be, and was hardly pretended of the locality in question. Nor is it likely that in a business like mining bituminous coal, found only in the western counties of the state, there ever was any rule there other than that which would result from convenience.

As to the house in question damaged, it undoubtedly had a right to supports as incident to the ground on which it stood. What might be the consequence of building in an unreasonable manner, taking into view the mining rights beneath, on a question of the sufficiency of the supports, does not arise in this case and need not be decided.

We have no case strictly of authority in our books, nor do I find any in the books of our sister states. In most of them but little subterranean mining exists, and in others the question has not presented itself for adjudication. In none of the cases cited by the learned counsel from our state reports, is the question decided or intentionally touched; we therefore must rule the point for ourselves for the first time. The English cases referred to, and others which might be referred to, emanate from great ability, and from a 'country in which mining, its consequences and effects, are more practical, and the experience greater, than in any other country of which we possess any knowledge. We think it safe, therefore, to follow its lead in this matter, and hold that in the case in hand, the recovery was right, predicated as it was of the want of sufficient supports in the mine to prevent the plaintiff’s ground, house and orchard, from injury by subsiding into the cavity made in the earth by the removal of the coal. The upper and underground estates being several, they are governed by the same maxim which limits the use of property otherwise situated, sic utere tuo et alienum non loedas. We have no doubt but all the evils deprecated by the adoption of this rule will disappear under regulations adapted to each case of severance of the soil from the minerals. Contract may devote the whole minerals to the enjoyment of the purchaser, without supports, if the parties choose. If not, the loss by maintaining pillars or putting in props will necessarily come out of the value of the mineral estate. If at any time the public necessities may demand the pillars to be removed for fuel, we may safely assume that the same necessity will provide some rule which will be satisfactory in such a crisis. We think the case was well decided below, and that the judgment must be affirmed.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    Tradesmen’s National Bank versus The Third National Bank.
    1. A draft on a bank to the order of the drawers passed into the hands of
    another bank, and was paid through the clearing-house, two days afterwards the signatures were found to be forged and repayment was demanded and refused. Held, that the first bank could recover from the second, under the Act of April 5th 1849, § 10. '
    2. A rule of the clearing-house was, “Errors in exchanges shall be adjusted by the banks concerned, and cheeks not'good shall be returned to the bank depositing them before one o’clock p. m.” This rule applied only to ascertaining that the account was not overdrawn.
    November 8th 1870.
    Before Thompson, C. J.,Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 196, to October and November Term 1870.
    To September Term 1870, The Third National Bank of Pitts-burg brought an action of assumpsit against The Third National Bank.
    The plaintiffs’ affidavit stated their claim to be for the amount of the following draft:—
    “2000. Pittsburg, Pa., Aug. 12th 1870.
    At sight, pay to the order of ourselves two thousand dollars, value received, and charge the same to account of
    Wm. B. Hays & Son.
    To Third National Bank, \
    Pittsburg, Pa. J ”
    “ ENDORSED.
    “ Pay to the order of J. & E. Greenwald.
    Wm. B. Hays & Son.
    “ J. $ JE. Greenwald.

    “ Pay C. Clark, Jr., Cash., or order, for account of First National Bank, Cincinnati, Ohio.
    Theo. Stanwood, Cashier.
    P. S. Jack, Teller.”
    The affidavit further averred that the signatures of Wm. B. Hays & Son had been forged; that defendant was, on the 18th day of August 1870, at the city of Pittsburg, the holder of the above described draft, and as such then and there endorsed the same by its teller, P. S. Jack, and presented the same to plaintiff for payment, and plaintiff then and there paid the full amount of the said draft to the said defendant, and the said defendant then and there received the said amount; that on the 20th day of' August 1870, plaintiff discovered that the signatures of Wm. B. Hays & Son had been forged, and that by reason thereof the said amount of $2000 had been erroneously paid by said plaintiff' to said defendant on said draft; immediately on said 20th day of August, plaintiff notified defendant of said forgeries, and demanded repayment of the amount of said draft, the sum of $2000, but the said defendant refused to repay the same to said plaintiff; that on the 22d day of August 1870, plaintiff made another 'demand of the defendant of the repayment of the said amount, which was also declined; that subsequently, on the 23d day of August 1870, plaintiff, through a notary public, again demanded of said defendant a repayment of the amount of said draft, which repayment was again refused, and the said notary public then and there duly protested the said draft for such non-repayment, &c.
    The affidavit of defence averred: — ■
    1. That defendant bank sent the draft to the Pittsburg Clearing House for collection, when it was delivered to the plaintiff bank under the recognised and printed rules of the Clearing House. The draft was handed to the officer of the plaintiff bank, first for examination, and then, if found genuine and correct, for payment. Said plaintiff hank did not return said draft to defendant bank until about noon of the second day after the same was delivered to it by the Clearing House, when it was required to deliver it before 1 p. M. of the day on which the plaintiff bank received it.
    2. That defendant bank had no interest in the draft, except as the collecting agent of the First National Bank of Cincinnati.
    3. That defendant bank had placed the amount of the money received to the credit of the First National Bank of Cincinnati, and had notified said bank of the same, thus placing it beyond the bank’s control and remitting the money, before the plaintiff bank notified the defendant that the said draft was not genuine and correct.
    4. That the loss, if any, must fall on the plaintiff bank, because the defendant bank was both ignorant and innocent of the character of said draft, and if the plaintiff bank had used proper diligence, the mistake would not have occurred.
    5. That under the rules of the Clearing House, the failure of the plaintiff bank to ascertain the real character of the draft, and advise the defendant bank before 1 P. M., of the day on which the draft was delivered to it by the Clearing House, discharged the defendant bank and'remitted the plaintiff to its action or actions against the other parties liable on said draft.
    7. That the plaintiff bank, as well as the defendant hank, clear through the Pittsburg Clearing House, and are parties to and bound by the printed rules of the same, which were made part of the affidavit of defence.
    The Clearing House rule referred to is as follows:—
    “ Errors in the exchanges shall be adjusted by the banks concerned, and checks not good shall be returned to the bank depositing them before 1 p. M. — the association not to be responsible in any case.”
    The court entered judgment against the ^defendants for $201,3.21 for want of a sufficient affidavit of defence.
    This was assigned for error on the removal of the case by the ^ defendants to the Supreme Court.

      Kerr Patterson, for plaintiffs in error.
    — The paper was a check, payable on demand: Act of May 21st 1857, § 1, Pamph. L. 629; Purd. 111, pl. 7; Byles on Bills, by Sharswood, 84 note. The entry of a forged check to the credit of the holder, in his bank-book, imposes the loss on the bank: Levy v. Bank of U. S., 4 Dallas 234; s. c., 1 Binn. 27; Price v. Neal, 3 Burrows 1354; Byles on Bills, 491. The Act of April 5th 1849, § 10, Pamph. L. 426, Purd. 111, pl. 5, does not change the law as to diligence: Rick v. Kelly, 6 Casey 527 ; Ellis v. O. S. Ins. & Trust Co., 4 Ohio St. R. 628.

      J. M. Kennedy and M. W. Acheson, for defendants in error,
    referred to Act of 1849; Rick v. Kelly, supra ; 1 Bouvier’s Law Dict. 588 ; 2 Parsons on Notes and Bills 436; Story on Agency §800.
   The opinion of the court was delivered, January 3d 1871, by

Read, J.

— The drawee of a bill is held bound to know the handwriting of his correspondent, the drawer; and if he accepts or pays a bill in the hands of a bond, fide holder, for value, he is concluded by the act, although the bill turns out to be a forgery. If he ■ has accepted, he must pay ; and if he has paid, he cannot recover the money back. This was the law of Pennsylvania as settled by the ease of Levy v. The Bank of the United States, 1 Binn. 27. This rule was altered by the 10th section of the Act of the 5th April 1849, Pamph. L. 426, which enacts: “ That wherever any value or amount shall be received as a consideration, in the sale, assignment, transfer or negotiation, or in payment of any bill of exchange, draft, check, order, promissory note or other instrument negotiable within this Commonwealth by the holder thereof from the endorsee or endorsees, or payer or payers of the same, and the signature or signatures of any person or persons represented to be parties thereto, whether as drawer, acceptor or endorser, shall have been forged thereon, and such value or amount by reason thereof erroneously given or paid, such endorsee or endorsees, as well as such payer or payers respectively, shall be legally entitled to recover back from the person or persons previously holding or negotiating the same the value or amount, so as aforesaid given or paid by such endorsee or endorsees, or payer or payers respectively, to such person or persons, together with lawful interest thereon from the time that demand shall have been made for repayment of the same.”

This act, it will be seen, directly reverses in effect the case of Levy v. The Bank, and the drawee may recover back money paid on a forged name of the drawer.

A draft, purporting to be drawn in Pittsburg, Pa., August 12th 1870, in these words:—

“ $2000.
“ At sight pay to the order of ourselves two thousand dollars, value received, and charge the same to account of
“ The Third National Bank, “ Wm. B. Hays & Son.
“Pittsburg, Pa.
[Endorsed.] “ Pay to the order of J. & E. Greenwald.
“ Wm. B. Hays & Son.”
[All this was a forgery.]
[What follows are genuine endorsements.]
“ J. & E. Gbeenwald.”
“Pay C. Clark, Jr., Cash., or order for account of First National Bank, Cincinnati, Ohio.
“Theo. Stanwood, Cashier.
“P. S. Jack, Teller.”

The defendants being the holders of this draft, presented it at the clearing-house, on the 18th August, and it was paid by the plaintiffs. The plaintiffs having discovered the draft was forged, immediately on the 20th August notified the defendants of the forgeries, and demanded repayment of them'; and this was renewed on the 22d and 23d August.

These facts would seem to bring the case within the purview of the Act of Assembly, and to entitle the plaintiffs to a repayment of the amount erroneously paid to the defendants.

If the truth had been known, the defendants never could have presented the draft for payment; and now that it is known, it is equally clear they had no legal claim of any kind upon the plain-biffs.

In what capacity did they present the draft ? Clearly as the holder to demand payment of the payers, and in that capacity the money was received. If it had been refused, they could have instituted proceedings to recover the amount in their own name. The act is a practical one, and looks for repayment from the persons previously holding or negotiating the same of the amount paid by such payer to such person.

If the defendants were the agents of another bank this makes no difference, as in the present instance the money received is in the hands of the defendants, and we are not called upon to decide what would have been their situation if it had been actually paid over by them. The rule of the Clearing-House simply applies to ascertaining that the account was not overdrawn, and it is clear this was not the case with Hays & Son.

Judgment affirmed.


author: Williams, J.

text:
    Verner versus Carson et al.

    1. Yerner sold to Rhodes, to pay in annual instalments of $5000 each in eight years with interest at 8 per cent., payable quarterly, for which notes were to be given, Verner to retain the title as security, Rhodes to give a judgment-bond as further security; if he failed to pay any of the notes either for principal or interest when due, “ then the whole sum both principal and interest then unpaid whether in fact duo or not,” should become due and judgment be entered “ for the whole sum.” One interest note was unpaid when due, there being unpaid but not due one instalment and two interest notes. Verner entered judgment for the whole amount. Held, that the judgment was conclusive until reversed.
    2. Rhodes could not impeach the judgment collaterally except for fraud.
    3. Rhodes before the judgment sold to Carson with covenant to protect him against Verner’s claim; this was notice to Carson, and in ejectment by Verner to recover the purchase-money, Carson could not go behind the judgment.
    4. Independently of the estoppel by the judgment, Carson had no equity against the judgment, it being immaterial whether he paid his purchase-money to Rhodes or in satisfaction of the judgment.
    5. Whether any one but the borrower or debtor can set up the defence of usury under the Act of May 28th 1858, not decided.
    November 8th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to tbe Court of Common Pleas of Allegheny county: No. 156, to October and November Term 1870.
    This was an action of ejectment, commenced January 18th 1869, by James D. Yerner against Joseph M. Carson and Thomas Miller, for an undivided half part of a lot of ground in Pitts-burg.
    The plaintiff and Joshua Rhodes, who were partners as brewers, on the 1st of December 1860, entered into an agreement in writing, by which they dissolved the partnership, the plaintiff assigned and delivered to Rhodes all the stock, notes, &c., and all the effects of the firm whatsoever; “ the title to the brewery property, purchased of Thomas Scott, shall remain in the parties as it now is, as security for the amount to be paid to said James D. Yerner by the said Joshua Rhodes for his interest in the firm; and the said James D. Yerner does for himself, his heirs, executors, administrators and assigns, covenant, promise and agree to and with the said Joshua Rhodes, his heirs, executors, administrators and assigns, that whenever the said sum shall be paid to him, or secured in an ample and satisfactory manner, he shall and will thereupon, by good and sufficient deed, transfer, sell, assign and convey all his right, titles, interest and claim of, in and to said property to the said Joshua Rhodes.”
    “ In consideration of the foregoing premises, the said Joshua Rhodes agrees to pay the said James D. Yerner $41,000 in the manner following, viz.: $1000 in cash, and the residue in eight notes of $5000 each, so drawn that the first note shall fall due on the first day of July 1862, and the other seven regularly -on the first days of July in every year thereafter until the whole are paid; all bearing interest at the rate of eight per centum per annum, from the first day of January next, which interest, however, shall be made payable- regularly every three months, from the first day of January next, the first note falling due on the first day of April next: provided, however, that the note for $5000, to fall due on the first day of July 1862, shall be paid at any time before maturity, whenever the said James D. Verner may require the money. The said notes shall be further secured by the judgment-bond of the said Joshua Rhodes, and in the event of his neglect, failure or refusal to pay any one of the notes, either for principal or interest, at maturity, then the whole sum, both of principal and interest then unpaid, whether in fact due or not, shall immediately thereupon become due and payable, and the said James D. Verner, his endorsees, executors, administrators and assigns, shall be at liberty instantly to file up the said judgment-bond and issue execution thereon for the whole sum. The said judgment-bond, however, is not to be filed or used until this default occurs, without the knowledge, consent and approbation of the said Joshua Rhodes.”
    The bond from Rhodes to the plaintiff, given in pursuance of the agreement, bore even date with it, and was in the penalty of $110,000, with warrant of attorney to confess judgment for the penalty with costs, “ and attorney’s commissions for collection, viz.: 5 per cent, in case payment has to be enforced by pt jcess of law.” Rhodes gave notes for the payment of the consideration with interest according to the agreement, amongst the rest three notes of $100 each for the quarterly payments becoming due ’respectively on the first days of January, April and July 1869, and one for $5000, part of the principal, becoming due July 1st 1869.
    On the 1st of September 1866, Rhodes conveyed the whole premises to Carson, one of the defendants, and at the same time Rhodes stipulated as follows: — “ that I, the said Joshua Rhodes, hereby covenant and agree with the said J. M. Carson, that I will procure at my own expense a quit-claim deed, or release from the said James D. Verner, before the final payments made by the said Carson on account of his purchase of the said property.”
    It did not appear whether Carson had paid to Rhodes any part of the purchase-money.
    All the notes falling due before January 1st 1869, were paid according to their face, but default having been made in the payment of the interest due on that day, the plaintiff entered judgment on his bond on the 6th of January, and liquidated it at $5565, being the amount of the remaining instalment, $5000, of the three unpaid interest notes of $100 each, and of the commissions for collection. This action of ejectment was to enforce payment of the balance of the purchase-money to the plaintiff as ascertained by the judgment against Rhodes.
    The court (Sterrett P. J.) charged:— * * *
    “ If you believe the plaintiff’s testimony, he is entitled to your verdict for the undivided half of the premises described in the writ, to be released on payment (within such time as you may think reasonable) of the four last notes, viz.: three notes of $100, payable, respectively, January 1st, April 1st and July 1st 1869, and note $5000, payable July 1st 1869, with interest and attorney’s commissions, 5 per cent., and we will reserve the following questions of law and receive your verdict, subject to the opinion of the court in banc thereon, viz.:—
    “ 1. Whether the plaintiff ,is entitled to recover the three interest notes of $100 each, and attorney’s commissions, or any part thereof ?
    “ 2. WheAer the defendant is not entitled to set off the excess over the legal rate of interest paid by Rhodes, included in his interest notes from April 1st 1861, to October 1st 1868, both inclusive?” * * *
    The jury rendered this verdict:—
    “We find for the plaintiff the undivided half of the premises described in the writ, with six cents’ damages and costs, to be released on the payment of $5802.50 (or such less sum as judgment may be entered for by the court on the questions of law reserved), within nine months, with interest from this date, and on execution and delivery of deed by the plaintiff, subject to the opinion of the court on the questions of law reserved.”
    They accompanied their verdict with a statement of the amounts and dates of the payment of interest.
    In delivering the opinion of the court on the questions reserved, Sterrett, J., said:—
    * * * “ The first question is, whether the plaintiff'is entitled to recover the amount of the last three interest notes of $100 each, maturing respectively January 1st, April 1st and July 1st 1869, —and attorney’s commissions — or any part thereof.
    “ The plaintiff availed himself of the provisions in the agreement by which, in default of payment of either of the notes, all the subsequent notes became due and payable. Default was made in payment of the interest note which matured January 1st 1869, and he claims the right to collect not only this note, but the other two interest notes as well. These last notes were given expressly for the last six months’ interest on the instalment due July 1st 1869; in other words, for six months’ forbearance as to the last instalment. The plaintiff chose not to forbear, and proceeded to collect the instalment as due by the terms of the agreement. Under the circumstances, we are of opinion that it would be unjust and inequitable, to permit him to collect interest that was never earned. If the defendant were compelled to pay it, it would operate solely as a penalty for his default.
    “ As to the note due January 1st 1869, we are of the opinion that the plaintiff has a right to collect so much of thesame as will cover three months’ interest on the last instalment, or so much of the instalment as appears to have been unpaid at the maturity of the note, to be ascertained by calculation on the basis hereinafter referred to in disposing of the second reserved question.
    “We are of opinion that the plaintiff is entitled to the five per cent, attorney’s commissions on the amount found by our ruling to be due at the date of the verdict.
    “ The second reserved question is, whether the defendant is entitled to set off the amount of interest in excess of six per cent., embraced in the interest notes ?
    “We think he is; the two per cent, excess, included in each interest note paid, was usurious, and we are of opinion that defendant is entitled to credit for such excess as payments on account of the principal debt, as of the dates the notes were respectively paid.” * * *
    He accordingly directed judgment on the reserved questions for the plaintiff, to be released on the payment of $1245.47.
    The plaintiff took out a writ of error, and assigned for error the judgment as entered on the reserved questions.

      D. Bruce, for plaintiff in error.
    — As to the two $100 notes he cited Robinson v. Loomis, 1 P. E. Smith 78. As to the usurious interest he referred to and compared the Acts of March 2d 1723, 1 Smith L. 156; May 28th 1858, Pamph. L. 622, Purd. 561, pl. 1, 2.

      M. W. Acheson, for defendants in error.
    — The contract under the agreement between Yerner and Rhodes is usurious: Evans v. Negley, 13 S. & R. 218; Eshelman v. Witmer, 2 Watts 264. Treating the sums paid in excess of legal interest as payments on the principal debt, was correct: Kupfert v. The Guttenberg Building Association, 6 Casey 465; Hughes’s Appeal, Id. 471; Philanthropic Building Association v. McKnight, 11 Id. 470 ; Reiser v. The William Tell S. F. Assoc., 3 Wright 137. The defendants were entitled to set up the defence of usury: Lloyd v. Scott, 4 Peters 205; Greene v. Tyler, 3 Wright 361.
   The opinion of the court was delivered, May 8th 1871, by

Williams, J.

— This was an ejectment to enforce the payment of the purchase-money charged upon the premises described in the writ. By articles of agreement dated December 1st 1860, the plaintiff sold his interest in the firm of Rhodes & Yerner, including the property in question, to his copartner, Joshua Rhodes, for the sum of $41,000, payable as follows: $1000 in hand and the residue in instalments of $5000 each, on the 1st day of July in each year from 1862 to 1869 inclusive, with interest thereon from the 1st of January 1861, at the rate of 8 per cent, per annum, payable every three months. In accordance with the provisions of the contract, Rhodes gave the plaintiff his promissory notes for the principal and interest, payable as the same became due, and his bond with power of attorney to confess judgment against him, in case of his failure to pay any one of the notes for principal or interest at maturity, for the whole amount of the notes then unpaid, whether due or not, and to issue execution therefor, with costs and attorney’s commissions.

On the 1st of September 1866 he sold the premises in controversy to the defendant, Carson, and entered into an agreement with him, in which, after reciting that “whereas James D. Yerner has a claim or lien against said property for the sum of $15,000,” he covenanted to procure, at his own expense, a quitclaim, deed or release from the said Yerner before the final payments were made by the said Oarson on account of the purchase of the said property. But there was no evidence showing at what price he sold the property, nor whether Carson had paid him any part of it.

Rhodes paid all the notes for principal and interest maturing prior to the 1st of January 1869. But he failed to pay the interest note for $100, which fell due at that date, and on the 6th of January the plaintiff caused judgment to be entered on the bond against him for $5565, being the amount of the notes then unpaid with attorney’s commissions thereon. On the 18th of January 1869 he brought this ejectment against Carson and Miller, to enforce payment of the amount of the purchase-money for which he had obtained judgment against Rhodes. On the trial of the case the defendants contended that if the plaintiff was entitled to a conditional verdict, to be released on payment of the unpaid purchase-money, he was not entitled to include in his claim the two interest notes made payable on the 1st of April and 1st of July 1869, and attorney’s commissions; and that they had the right to set off the excess over the legal rate of interest included in the interest notes previously paid by Rhodes. Under the instructions of the court, the jury found for the plaintiff the undivided half of the premises described in the writ, with six cents damages, &c., to be released on payment of $5802.50 (or such less sum as judgment may be entered for by the court on the questions of law reserved) within nine months, with interest from date, subject to the opinion of the court on the following questions of law reserved:—

1. Whether the plaintiff is entitled to recover the three interest notes of $100 each, due respectively January 1st 1869, April 1st 1869, and July 1st 1869, and attorney’s commissions of 5 per cent., amounting to $200, or any part thereof; and if so, how much ?

2. Whether the defendants are entitled to set off the amount of interest paid by Joshua Rhodes in excess of six per cent., amounting, without interest, to $3325, and with interest on each payment computed to the date of the verdict, to $4416.53; and if they are entitled to.set off said payments in excess of legal interest, whether with or without interest thereon. ‘

On the hearing of the reserved questions the court decided that the plaintiff was not entitled to recover the two interest notes payable on the 1st of April and the 1st of July 1864, for $100 each; that the defendants were entitled to set off the excess over the legal rate of interest paid by Rhodes ; and that the plaintiff was entitled to 5 per cent, attorney’s commissions on the amount due at the date of the verdict. The court accordingly directed judgment to be entered on the verdict in favor of the plaintiff, to be released on payment of $1245.47, with interest and costs, within the time specified in the verdict, &c.

The plaintiff excepted to the opinion of the court, and has assigned for error its rulings on the reserved questions.

The main question presented by the assignment is, whether the defendants are entitled to set off the amount of interest in excess of 6 per cent, included in the interest notes paid by Rhodes ?

' The paper-books do not furnish us with the evidence given on the trial, but it appears from the plaintiff’s history of the case and from the charge of the court, that in default of payment of the interest note due January 1st 1869 judgment was entered in favor of the plaintiff against Rhodes, on the 6th of January 1869, for the amount of the notes then remaining unpaid, and the sum due was liquidated at $5565. This judgment was binding and conclusive on the parties until reversed or set aside. It could not be collaterally impeached or avoided by Rhodes except on the ground of fraud. If it was conclusive upon him, it was equally conclusive upon the defendants in this action. They could not go behind it and inquire into its consideration, or question its validity. It is not pretended that it was fraudulently or collusively confessed by Rhodes to their prejudice. It could not have been, for Carson bought the property with nptice of the plaintiff’s lien and with Rhodes’s covenant to procure its release; and so far as appears, he has never paid any part of the purchase-money. Having the right to withhold its payment, the presumption is that his indebtedness to Rhodes exceeds the amount of the plaintiff’s judgment. But whether this be so or not, the judgment was conclusive of the amount due the plaintiff, and estopped the defendants from claiming a deduction of the two interest notes, or the excess of interest included in the notes previously paid by Rhodes: Hauer’s Appeal, 5 W. & S. 473; Drexel’s Appeal, 6 Barr 272; Dickerson’s Appeal, 7 Barr 257; Watson v. Willard, 9 Id. 89; Lewis v. Rogers, 4 Harris 21; Buehler v. Buffington, 7 Wright 278. But if the defendants were not estopped by the judgment, they have no such equity as entitles them to go behind it in order to contest the amount of the plaintiff’s claim. It was not confessed to their prejudice, and it can do them no possible harm. So far as it respects their rights, it is immaterial whether the purchase-money in the hands, of Carson is pajd directly to Rhodes or applied to the satisfaction of the plaintiff’s judgment. If Rhodes does not object to the judgment, it is clear that the defendants have no right in law or equity to make any defence to it whatever.

This view of the case renders it unnecessary to determine whether, under the provisions of the Act of 1858, any other than the borrower or debtor can set up the defence of usury, and at his option retain and deduct the excess of interest over the legal rate contracted for or paid by the borrower or debtor, from the amount of the debt sought to be recovered.

And now, May 8th 1871, it is ordered and adjudged that the judgment of the Court of Common Pleas in this case be and the same is hereby reversed; and it is further ordered, adjudged and decreed that judgment be now entered on the verdict in favor of the plaintiff, for the undivided half of the premises described in the writ, with six cents damages, &c., to be released on payment of $5802.50, with interest from the 3d day of December 1869, within three months from this date, and upon execution and delivery by the plaintiff of a good and sufficient deed for all his right, title and interest in the said premises.


text:
    Shriver et al. versus Pittsburg.
    A law imposed a tax “ on all articles of trade or commerce sold in the city of Pittsburg,” this included sales by agents of a merchant made out of the city and state and delivered from his store in Pittsburg.
    November 8th 1870.
    Before Thompson, C. J., Read, Agnew, Siiarswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny, county: No. 225, to October and November Term 1869.
    This was an amicable action and case stated, entered the 1st of October 1869, between The City of Pittsburg, plaintiff, and Samuel P. Shriver and others, trading as Samuel P. Shriver & Co., defendants.
    The following facts were agreed on by the case:—
    “ Section 2d of the Act of Assembly, parsed the 7th of March 1846 (PampL L. 78) provides ‘that the councils of the city of Pittsburg shall be and they are hereby authorized to levy and assess upon all articles of trade and commerce sold in the said city, including sales at auction or otherwise, an annual tax not exceeding five mills on the dollar, for the use of said city, to be levied and collected.from the venders of said articles, in the same manner as other city taxes are now levied and collected.’ The councils of Pittsburg, by virtue of said Act of Assembly, on the 25th day of January 1869, passed an ordinance assessing two and a quarter mills on the dollar, for all articles of trade and commerce sold in the city of Pittsburg for the year 1869. The defendants are wholesale grocery merchants, having their store and doing business in the city of Pittsburg, and were assessed by the city assessor, for the year 1869, upon sales amounting to the sum of $495,000, estimated in accordance with the provisions of city ordinances, from sales made by them for the year 1868. It is admitted that the sales made by the defendants during the year 1869 will amount to said sum of $495,000, but of this amount the sum of $75,000 is sold at their store in the city of Pittsburg, and the balance are sales made through persons employed by defendants who make contracts of sale for them outside the city of Pittsburg and state of Pennsylvania, which contracts are forwarded by said agents to the defendants at Pittsburg, and filled by them from goods and merchandise at their store in said city, and shipped to the purchasers by the most direct means of conveyance.
    “ If the court should be of opinion that upon the facts stated the defendants are liable to the'payment of the tax assessed upon all the sales made, then judgment to be entered for plaintiffs for the sum of $1018.75; but if the court should be of opinion that defendants are not liable for the payment of the tax assessed upon the goods and merchandise, the contracts for the sale of which are made outside the state of Pennsylvania, then judgment to be entered in favor of the plaintiffs and against the defendants for the sum of $168.75,” &c.
    The court entered judgment for the plaintiff for $1013.75.
    This judgment was assigned for error on the removal of the case to the Supreme Court by the defendants.

      D. Reed and M. W. Acheson, for plaintiffs in error.

      White & Slagle, for defendants in error.
   The opinion of-the court was delivered, January 8d 1871, by

Read, J.

— This case comes before us upon an agreed statement of facts, and involves the construction of the 2d section of an act relative to the assessment and collection of taxes in the city of Pittsburg,” passed 7th March 1846, Pamph. L. 78, which is in these words: “ That the councils of the city of Pittsburg shall be and they are hereby authorized to levy and assess upon all goods, wares and merchandise, and upon all articles of trade and commerce sold in the said city, including sales at auction or otherwise, an annual tax not exceeding five mills on the dollar, for the use of said city, to be levied and collected from the venders of said articles in the same manner as other city taxes are now levied and collected: Provided, however, that the aggregate amount to be levied on the sales of any individual or firm shall not exceed $100.”

This proviso was repealed by the Act of 13th March 1858, Pamph. L. 108.

The councils, on the 2d January 1869, passed an ordinance assessing a tax of two and a quarter mills on the dollar for all articles of trade and commerce sold in the city of Pittsburg for the year 1869. The defendants are wholesale grocery merchants, and their sales during 1869 amounted to $495,000; of this amount $75,000 is sold at their store in Pittsburg, and the balance, $420,000, are sales made through persons employed by defendants who make contracts of sales for them outside the city of Pittsburg and state of Pennsylvania, which contracts are forwarded by said agents to the defendants at Pittsburg, and filled by them from goods and merchandise at their store in said city, and shipped to the purchasers by the most direct Wans of conveyance.

The defendants are domiciled at Pittsburg, have their home there, their warehouse in which all their goods are stored and insured, and enjoy the protection and benefits of the city authorities, of the police and fire departments. The legislature, recognising the advantages of municipal organization to the inhabitants, gave this local taxation to aid in raising the necessary revenue to defray the city expenditure. The assessment is upon all goods sold in said city, to be levied and collected from the venders of said articles. This clearly covers goods in the warehouse of the defendants, sold by them, and the tax is to be collected from them by the very words of the law, for they are the venders of the articles.

There is no other method of reconciling the terms of the act. The defendants are the venders of all the goods, amounting to $495,000, and must pay the tax on that amount.

Judgment affirmed.


author: Agnew, J.

text:
    Pittsburg versus Cluley.
    1. Acts of 1857 and 1864 provided for paving, &c., the streets, <sco., in Pittsburg. The Act of 1857 provided a lien against lot-holders for setting curbstones and paving the sidewalks. The Act of 1864 authorized the city to pave the streets and set them with curbstones and to charge the cost to the lot-holders, and declared that paving and repaving sidewalks and curbstones are within the Act of 1857. A claim was filed for “grading, paving and setting with curbstones within six months past that part of Centre avenue,” &c., in pursuance of the Act of 1864. Held, that the claim was sufficient although it did not specify whether the work was to the sidewalks or the cartway.
    2. The Act of 1864 directs the regulator to make assessment of the expense, give notice by publication where the assessment may be seen and parties have an opportunity of having mistakes corrected, and after correction, the regulator shall give the assessment to the treasurer, who shall notify the parties charged, and if not paid in thirty days the city solicitor shall file a lien, in the same manner as mechanics’ liens, &c. It is not necessary that the solicitor should state all the particulars as in a'mechanics’ lien.
    3. The Mechanics’ Lien Law furnishes only a general not a specific rule of proceeding under these acts.
    November 8th 1870.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: Of October and November Term 1870.
    This was a scire facias to April Term 1869, upon a lien for a municipal claim by the City of Pittsburg against John F. Cluley.
    The city councils on the 10th of March 1868, passed an ordinance for paving Centre Avenue between Dinwiddie and Kirkpatrick streets, by virtue of which the claim was filed April 15th 1869, and is as follows:—
    “ The City of Pittsburg file this claim for the sum of $440.20, with interest thereon from November 6th 1868, and five per cent, additional, as attorney’s fee for collection, against all that certain lot of ground in the-Ward of the city of Pittsburg, situate on the north side of Centre avenue, fronting on said avenue sixty feet, &c., * * * of which the said John F. Cluley is owner or reputed owner.
    “ The said sum of $440.20, being the assessment upon said lot for the cost and expense of grading, paving and setting with curbstones, within six months last past, that part of Centre avenue extending from Dinwiddie street to Kirkpatrick street; the said work having been done in pursuance of an Act of Assembly, approved January 6th 1864, and an ordinance of the Select and Common Councils of said city, passed March 10th, A. D. 1868, and this claim is now filed as a lien against said lot in accordance with the' Acts of Assembly in such case made and provided.”
    There are two Acts of Assembly relating to municipal improvements in Pittsburg:—

      The Act of the 18th of April 1857 (Pamph. L. 240), which provides that the councils may on the failure of the owner of lots fronting on any street, lane or alley, after twenty days’ notice in writing, caused to he prepared and set with hewn curbstone of good and sufficient quality in front of his, her or their lot, at such grade and place as shall be directed by the city regulator, and that said councils shall have the like power to pave the sidewalks fronting on any street, lane or alley. It further provides that the cost of said work and materials shall remain a lien from the completion of the work, and that for the expense a lien shall be filed in the District Court, which when filed shall continue for five years, with particular directions how process shall issue for the collection of said lien.
    The Act of January 4th 1864 (Pamph. L. 1131), which enacts:
    Sect. 6. The said councils are hereby authorized, whenever they may deem the same necessary, to cause to be graded, regraded, paved, repaved or macadamized, any public street, &c., or any part thereof, which is now or which may hereafter be laid out and opened in said city, &c., and to have the same set with curbstone; and to levy and collect the cost and expense of the same from the owners of property bounding or abutting on the portions of said streets, &c., thus improved, by an assessment of an equal sum per foot front of said properties.
    Sect. 7. Whenever any street, &c., has been graded, &c., in pursuance of the preceding section, it shall be the duty of the recording regulator of said city to make the assessment for the cost and expense thereof, as provided for in said section, and to give notice by publication for ten days in two daily papers of said city that the said assessment has been made and may be seen at his office, and that the parties interested may have an opportunity of having any errors or mistakes corrected; after correcting any errors or mistakes that may have been discovered, he shall immediately hand over the said assessments with a plan and description of each lot, the amount assessed thereon, and the name of the owner or owners to the treasurer of said city.
    Sect. 8. As soon as the treasurer shall have received the said assessment-list from the recording regulator, he shall cause notice of the amount assessed upon each property to be given to the owner thereof, and that, if the same be not paid to him within thirty days from the time of said notice, it will be filed as a lien against said property with interest, costs and fees.
    Sect. 9. If said assessments are not paid within thirty days after the service of notice aforesaid, the treasurer shall hand over to the city solicitor the said assessment-list, with the plan and description of each lot, &c., as furnished by the recording regulator, .and the city solicitor shall file a lien, against each property for the amount of the assessment thereon remaining unpaid, with interest from the time notice for payment was given, and five per centum additional as the solicitor’s fee for collection.
    Sect. 18. The lien authorized by this act shall be filed in the District Court of said county, in the same manner as mechanics’ liens are filed, and writs of scire facias and levari facias may be issued thereon, as in case of mechanics’ liens, and the same costs shall be taxed; but when the same owner has two or more vacant lots adjoining each other on the same street, &c., all of said lots shall be embraced in one lien, &c. * * *
    Sect. 19. The assessments authorized by this act shall be liens upon the properties assessed, from the commencement of the improvements for which they were made, and shall, if filed within six months after the completion of said improvements, continue liens for five years, and be revived by scire facias as other liens, &c.
    The 25th section provides that liens for setting curbstones and paving sidewalks under the Act of 1857 shall be indexed as provided in this act, and that repairing sidewalks and curbstones and repaving are within the provisions of this act.
    On the 2d of June 1870, the case was tried before Kirkpatrick, J.
    H. J. Moore, city engineer of Pittsburg in 1868-9, testified, “ Under my direction Centre avenue was graded, paved and curbed from Dinwiddie to Kirkpatrick street, made an assessment on entire front paved for the work. It was done in my office, under my direction; amount assessed to defendant was $440.20. The work was completed on or about the 1st day of November 1868.”
    The defendant moved for a nonsuit, alleging that the lien was fatally defective.
    I. It did not show that the expense is charged for paving the sidewalk.
    2. The expense of curbing is included in the lien with the expense of paving.
    3. The lien does not give the date of doing the work.
    The court ordered a nonsuit, which the court in banc refused to take off.
    This was assigned for error by the plaintiff on the removal of the case to the Supreme Court.

      J. F. Slagle, for plaintiff in error,
    referred to the Acts of Assembly. The date when the work was performed is sufficiently shown: Lybrandt v. Eberley, 12 Casey 347; McCay’s Appeal, 1 Wright 125; Hahn’s Appeal, 3 Id. 413.

      D. Reed, for defendant in error,
    referred to the same acts. The date was not sufficiently stated, the same rules apply to municipal liens as to mechanics’ liens : Philadelphia v. Suter, 6 Casey 55; Russell v. Bell, 8 Wright 48.
   The opinion of the court was delivered, November 14th 1870, by

Agnew, J.

— This was a lien filed under the Act of 6th January 1864 by the city of Pittsburg against the defendant’s lot, for grading, paving and setting with curbstone a part of Centre avenue. The court below nonsuited the plaintiff, on the ground that the claim filed was fatally defective, and this is the only question. The first defect, alleging that the claim does not show whether the paving was for the sidewalk or for the cartway, is unfounded. It is true that there are two acts in force for paving, that of the 18th April 1857 for paving and curbing the sidewalks of the city, and the Act of 6th January 1864 for grading, paving and setting the streets with curbstones; and that the 25th section of the latter recognises the former act as in force. But the claim is neither indefinite nor uncertain in this respect; for it expressly claims the cost and expense of grading, paving and setting Centre avenue with curbstones, and adds the said work having been done in pursuance of the Act of Assembly, approved January 6th 1864, and an • ordinance of the Select and Common Councils of said city, passed March 10th 1868. It is evident, therefore, it is not a claim for paving sidewalks under the Act of 1857, but for grading, paving and setting with curb under the Act of 1864. The second defect alleged is also unfounded. Curbing is expressly provided for in the 6th section of the Act of 1864; and is just as necessary to protect the street pavement as it is the sidewalk, and to prevent the cobble-stones or other paving materials from being displaced by the wheels of wagons and the feet of horses, as well as to form gutters to carry .off the water. The third defect alleged, as to the want of the date of doing the work, on examination of the Act of 1864, will be found to be unsubstantial. A short review of its provisions will show this. The 6th section provides that the councils shall levy and collect the cost and expense of the same (to wit, of grading, paving and curbing) from the owners of property bounding on the street thus improved, “ by an assessment of an equal sum per foot front of said property.” Now it is evident this equal sum per foot front can be ascertained only by dividing the sum total of the cost by the total feet frontage, and it must result in a specific sum per foot. It is the amount of this foot frontage which is assessed against each lot.- The 7th section provides that the recording regulator of the city shall make this “ assessment,” and give notice to the owners for the correction of errors and mistakes in it, and then directs that “ after correcting any errors or mistakes that may be discovered, he shall immediately hand over the said assessments with a plan and description of each lot, the amount assessed thereon and the name of the owner or owners, to the treasurer of the city.” Then the 8th section provides that “ as soon as the treasurer shall have received the said assessment list from the recording regulator, he shall cause notice of the amount assessed upon each property to be given to the owner thereof,, and that if the same shall not be paid to him within thirty days from the time of said notice it (to wit, the amount assessed) will be filed as a lien against said property with interest, cost and fees.” Thus far it will be observed that the act provides for nothing but the assessment of the amount each lot-holder is to pay, and this is the result of a calculation of an equal sum per foot of the total cost of the work.

This brings us directly to the part to be performed by the city solicitor. The 9th section provides, “ that if said assessments are not paid within thirty days after the service of notice aforesaid, the treasurer shall hand over to the city solicitor the said assessment list, with the plan and description of each lot, &c., as furnished hy the recording regulator ; and the city solicitor shall file a lien against each property for the amount of the assessment thereon remaining unpaid, with interest from the time notice for payment was given, and five per centum additional as the solicitor’s fee for collection.” Thus we have given by the act itself the very material of the claim, which the law furnishes to the city solicitor as the lien to be filed. He has nothing else from which to construct the lien. Nor does the lot-owner need anything more. What has he to do with the contracts for the work, or the several amounts of paving, grading, and curbing ? All this is to be attended to by persons acting officially as his representatives in the city government. What he wants to know is the amount of his assessment, and in making this up the law affords him an opportunity to correct errors and mistakes. When the assessment list goes into the treasurer’s hands he has only to make payment. If he fails to pay, it is for the amount of the assessment the lien is given, and it would be impossible from the materials furnished to the city solicitor to make out a statement of the cost of the work and all the particulars required by the Mechanic’s Lien Law for the benefit of an owner of property who puts up a building at his own expense. When, therefore, we come to the 18th section, which says: “ That the lien authorized by this act shall be filed in the District Court of said county in the same manner as mechanics’ liens are filed, and writs of scire facias and levari facias may be issued thereon as in the ease of mechanics’ liens, and the same costs be taxed,” it is manifest the Mechanics’ Lien Act furnishes only a general, and not a specific analogy and rule of proceeding. This is evident by an examination of the provisions óf the 12th section of the Mechanics’ Lien Law of 1836. The city solicitor may set forth the names of the party claimant and of the owner; but how can he set forth the street contractors or builders ? and yet we know nearly all paving and grading are done by contract; and what interest has the contractor in the claim against the lot-owner, or what reason is there to make him a party ? The solicitor may also set forth generally that the claim is for grading, paving and curbing; but how can he set forth, or what use is there that he should, the several amounts and kinds of materials, and the several cost of grading, paving and curbing, or the time when the materials were furnished or the work done ? He has no materials furnished from which to construct such a claim, the act giving him only “ the assessment list, with the plan and description of each lot, the amount assessed thereon and the name of the owner or owners.” How is he to ascertain from this all the particulars required to be set forth in the case of the individual owner for whom work is done or materials furnished and who is the debtor with whom the account itself is to be settled ? It is evident the Mechanics’ Lien Act does not fit such a case in many respects, and is therefore to be followed only when the analogy is perfect. Besides, there is a question as to what act must be followed. There are two laws, the Act of 1836 and the Act of 16th April 1845, in regard to which this court has held that different rules prevail respecting the time to be set forth in the claim filed. Under the latter act, which provides for claims filed under contracts for building, it has been held that the time is sufficiently set forth when it is stated the work was done “ within six months lastpqst” : McCay’s Appeal, 1 Wright 125 ; Hahn’s Appeal, 3 Id. 413. Now this is the very language of the claim in this instance, and the claim here also sets forth that the interest runs on the amount assessed from the 6th of November 1868, which is less than six months from the date of filing. This is, therefore, a sufficient statement of time under the provisions of the Act of 1864, and proof having been made that the work was actually finished on or about the 1st of November 1868, the filing of the lien was clearly within time. The court, therefore, ■erred in ordering the plaintiff to be nonsuited.

Judgment reversed, and a venire facias de novo awarded.


text:
    Pittsburg versus Shaffer.
    By an Act of Assembly the councils of Pittsburg were authorized to cause grading, &e., of any street, the expense to be paid by the owners of property bounding on the'streets in proportion to their front. The councils authorized the owners of property on I). street, between O. and P. avenues, to fill that street to an uniform gradé under direction of the city regulator, without cost to the city. The defendant filled up D. street opposite his property in accordance with the grade furnished by the regulator and paid the whole expense. Councils afterwards ordained the grading of D. street, between O. and P. avenues, under the Act of 1864, and repealed all ordinances affecting this ordinance. The city officers caused the remainder of D. street to be filled and graded to correspond with the defendant's grading. Held, that the grading by defendant was in accordance with Act of 1864, and he was not liable for the grading done by the city under their last ordinance.

      November 8th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 195, to October and November Term 1870.
    This was a scire facias on a municipal claim in which the City of Pittsburg was plaintiff and John S. Shaffer defendant.
    On the 8th of October 1870, the following case was stated:—
    “ The defendant, John S. Shaffer, is the owner of property situate on the corner of Centre avenue and Dinwiddie street, in the city of Pittsburg, as described in the lien filed.

      “ On April 30th 1866, a resolution was passed by the councils of Pittsburg as follows:—
    “ ‘ That the owners of property on Dinwiddie street be and they are hereby authorized and empowered to fill up said street from Centre avenue to Pennsylvania avenue to a uniform grade, provided that said filling up shall be done in such manner as not to interfere with travel along and over said street, and provided that the watercourses over and along the same shall not be disturbed, and such filling up shall be done subject to the direction and control of the city regulator, and without any cost to the city.’
    “ The defendant procured from the city regulator the grade of Dinwiddie street, and after the passage of said resolution, and under the authority thereby granted, proceeded to fill the street in front of his property, and made the same to the uniform city grade at his own expense, and without cost to the city.
    “ On August 31st 1868, the council passed an ordinance for the partial grading of said street, as follows:—
    “ £ That the city engineer be authorized and directed .to advertise for proposals for the partial grading of Dinwiddie street, from Centre avenue to Pennsylvania avenue, and to let the same in the manner directed by an ordinance concerning streets, passed August 31st 1857, also an act concerning streets, approved January 6th 1864.
    “ £ Any ordinance or part of ordinance, conflicting with the passage of this ordinance at the present time, be and the same is hereby repealed, so far as the same affects this ordinance.’
    “ A contract was entered into by the city officers for the grading of said street, as required by the ordinance, and the work was completed on or about February 28th 1869, the portion of Dinwiddie street between Rose street and Pennsylvania avenue being filled or graded to a level with that part of Dinwiddie street between Rose street and Centre avenue, which was graded by the defendant. Thereupon an assessment was made of the entire cost of said work, upon all the property fronting on Dinwiddie street, from Centre avenue to Pennsylvania avenue, in proportion to the feet front, including the sum of $525.92 upon the aforesaid property of the defendant, which was the proportionate amount of the cost of the whole work done, assessing it upon all the property fronting on the whole length of Dinwiddie street. The amount assessed against the defendant’s property hereinbefore mentioned not being paid, the lien in this case was filed, and is to be taken as part of this case stated. No part of the work for the cost of which this lien was filed, was done on any portion of Dinwiddie street, on which the defendant’s property bounds or abuts.
    “ The defendant paid the amount assessed against his othe property lying in Dinwiddie street below Rose street,” &c.
    “ If the court should be of opinion that on the above-stated facts the plaintiff is entitled to recover, then judgment to be entered in favor of the plaintiff for $525.92, with interest from February 28th 1869, and five per cent, attorney’s commission. Otherwise judgment to be entered in favor of the defendant.”
    The material parts of the Act of January 6th 1864, will be found in the preceding case, Pittsburg v. Cluley.
    On the 8th day of October 1870, judgment was entered in favor of the defendant in the case stated.
    The plaintiff removed the case to the Supreme Court, and assigned the entry of the judgment for error.

      J. F. Slagle, for plaintiff in error,
    referred to the Act of 1864; O’Connor v. Pittsburg, 6 Harris 187.

      F. P. Jones and D. T. Watson, for defendant in error, referred to the same act.
   The opinion of the court was delivered, January 3d 1871, by

Read, J.

— By the 6th section of an act concerning streets and sewers in the city of Pittsburg, passed 6th January 1864 (Pamph. L. 1133), the councils of Pittsburg were authorized to cause to be graded any public street or any parts thereof, the expense to be paid by the owners of property abutting on it, according to the foot front of such properties.

The defendant was the owner of property on Dinwiddie street, extending from Centre avenue to Rose street.

On the 30th April 1866 a resolution was passed by the Select and Common Councils of the city of Pittsburg as follows:—

“ Resolved, That the owners of property on Dinwiddie street 'be and they are hereby authorized and empowered to fill up said street, from Centre avenue to Pennsylvania avenue, to a uniform grade, provided that said filling up shall be done in such manner as not to interfere with travel along and over said street, and provided that the watercourses over and along the same shall not be disturbed; and such filling up shall be done subject to the direction and control of ike city regulator, and without any cost to the city?’

The defendant procured from the city regulator the grade of Dinwiddie street, and after the passage of said resolution, and under the authority thereby granted, proceeded to fill up the street in front of his property, and made the same to the uniform city grade, at his own expense and without cost to ,the city. It is clear then that the councils caused to be graded that portion of Dinwiddie street lying between Centre avenue and Rose street, the cost being paid by the person liable by law to pay for the grade. This portion of the street was brought up to the uniform city grade, and required no further action of the city authorities.

If all the grading in the city of Pittsburg could be done on the same terms it would be a great bléssing to the community, although it might diminish the emoluments of some of the city officers. Some time after this portion of Dinwiddie street between Centre avenue and Rose street had been graded under the authority of the city councils, on the 31st August 1868 councils passed an ordinance “ That the city engineer be and he is hereby authorized and directed to advertise for proposals for the partial grading of Dinwiddie street from Centre avenue to Pennsylvania avenue, and to let the same in the manner directed by an ordinance concerning streets, passed August 31st 1857; also an act concerning streets, approved January 6th 1864.”

It is clear that this ordinance could have no legal application to that portion between Centre avenue and Rose street, which the councils had already caused to be graded, and which grading had been legally paid for. If, under the resolution of 1866, all the owners of property had graded the whole of Dinwiddie street from Centre avenue to Pennsylvania avenue, the ordinance of August 1868 would have been entirely inoperative, and no assessment could have been made on the owners of property bounding or abutting on the said portion of the said street.

All proposals therefore for grading Dinwiddie street between Centre avenue and' Rose street, and all letting of the same were without authority of law, and of course all assessments for the same, and the municipal claim filed in this case, fall to the ground.

Judgment affirmed.


text:
    Carr versus McGovern.
    1. The payment of the taxed costs is a condition precedent and is indispensable to an appeal from an award of arbitrators.
    2. Such defect could not be cured by charging the costs to counsel.
    3. The court will enforce by attachment the payment of costs taxed subsequently to an appeal.
    4. The negligence or want of knowledge of the prothonotary will not condone the errors of a party in failing to do what the law requires.
    5. Omitting an amount coming within the principle de minimis will not set aside an appeal.

      November 8th 1870.
    Before Thompson, C. J., Read, Aaiprw, Shahswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 152, to October and November Term 1870.
    To April Term 1870, James McGovern brought an action ofreplevin against William Carr and James Blondin. A rule of reference was taken out, and on the 15th of June 1870 the arbitrators filed their award, finding for the plaintiff. On the 16th of June, Carr made and filed the proper affidavit for an appeal, and entered into a recognisance himself, but without any surety, in the sum of $100, and' paid $1.50 of the costs. The costs besides amounted to $22.41, as to which was the following docket entry: “July 6th 1870, costs charged to Attorney Marshall.”
    On the 9th of July the plaintiff obtained a rule to show cause why the appeal should not be quashed on the grounds: that the costs had not been paid and that the recognisance required by law had not been taken. On the hearing of the rule the clerk of the prothonotary testified that the defendant came to the office to enter the appeal, and, having taken the affidavit, entered himself into the recognisance and paid the costs .then chargeable for the recognisance, &c., the clerk told him that he had nothing more to do.
    The court quashed the appeal. The defendant took a writ of error and assigned the quashing of the appeal for error.

      F. M. Magee and T. M. Marshall, for plaintiff in error,
    cited Williams v. Hazlep, 2 Harris 157 ; Fraley v. Nelson, 5 S. & R. 234.

      W. A. Leggatt and L. B. Duff, for defendant in error.
   The opinion of the court was delivered, November 14th 1870, by

Thompson, C. J.

— There was no appeal taken in this case by the plaintiffs in error from the award of arbitrators against them in the court below, in fact or in law. There was no recognisance taken and filed, such as the Act of Assembly requires, the appellant’s own recognisance only being taken without bail, and the costs taxed all remaining unpaid, with the exception of a small fraction, of $1.50, out of $22.41 taxed on the record. It is, perhaps, true that if the only objection had been to the defective recognisance, the court might have had authority to allow it to be perfected, and this would have been going the full length of their power, to say the least of it. But we see nothing like a proposition looking to this by the appellants. They complain of the court for quashing the appeal as it stood, without any offer to amend or perfect the recognisance. The court could not say there was a good appeal as the record stood, and this was all they had to do with. But the want of payment of the costs taxed was an incurable defect. It could not be cured by charging the costs over to counsel. The costs taxed must be paid in cash, so we said in Ellison v. Buckley, 6 Wright 281. The note of the party will not do, nor the assumption of his counsel. The payment of the taxed costs is a condition precedent to a valid appeal. Where they are not taxed, the party is in no default in not paying them. There the court enforces payment when taxed subsequently to the appeal by attachment; but when taxed before appeal, and not paid, the court quashes the appeal for the non-performance of one of the conditions of appeal. The negligence or want of knowledge of the officer does not condone the errors of the party in failing to do what the law requires in order to perfect the appeal. Any amount unpaid, coming within the principle of de, minimis, would undoubtedly not be allowed to set aside an appeal; but that is not the case in hand. The great body of the costs remained unpaid, and this of itself justified the court in striking off the appeal, even if the other ground had not existed.

Judgment affirmed.


author: Sharswood, J.

text:
    Duff’s Private Road.
    1. All that is examinable on-certiorari is the regularity of the proceedings.
    2. The refusal of the Court of Quarter Sessions to continue a road order is discretionary and not reviewable in the Supreme Court.
    3. An order for review issued at the term at which the view is returnable, must he returned at the next term.
    4. A review may be applied for at the election of the party at the same, or next term after the view returnable.
    5. Having made an election the party is hound by it.
    November 8th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Certiorari to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1870, No. 22.
    On the 9th of January 1869, William Duff presented a petition for viewers for a private road from his dwelling-house to a point in the Baltimore road. On the 24th of April, it appearing that the order had not been issued, the court directed an alias order returnable to the next term. On the 7th of June, the viewers made report, laying out a road, which was approved.
    During the same term a petition for a review was presented, and reviewers appointed, the report to be made at September term. On September 4th, the 1st day of September Term, a motion was made to continue the order of review, and make it returnable to the next term. The terms of the Court of Quarter Sessions of Allegheny county commence on the first Mondays in March, June, September and December.

      The motion was refused, and the proceedings were removed to the Supreme Court by certiorari.
    Confirming the private road and refusing to continue the order of review were assigned for e^ror.

      White & Slagle, for certiorari.
    — The order of review could not be returned before the 1st day of September term: Erankstown Road, 2 Casey 472; Baldwin and St. Clair Road, 12 Id. 10. When the viewers are prevented by accident from reporting, the proper course is to obtain a continuance of the order : Charlotte Street, 11 Harris 287; Baldwin and Snowden Road, 3 Grant 63. If a report be set aside for informality the party is entitled to an alias order although it be too late for a review: Kiskiminitas Road, 8 Casey 10; McConnell’s Mill Road, Id. 286.

      J. Mellon, contra.
    — Granting the motion was discretionary: 'Newville Road, 8 Watts 172.
   The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— On a certiorari to bring up the record of an inferior court all that is examinable here is the regularity of the proceedings. The Statute of Westminster 2 gives a bill of exceptions only in a trial according to the course of the common law, and there is no other means of putting evidence on a record: Union Canal Co. v. Keiser, 7 Harris 134. The refusal of the court below, on motion of the petitioners, to continue the order for review was a matter entirely of discretion, and is not assignable as error: Porter v. Lee, 4 Harris 412. It is contended, however, by the appellants that inasmuch as a p^ition for a review would have been in time when the motion to continue was made, the court ought to have regarded the motion in the light of an original petition, and that they had then a legal right to a review. By the 25th section of the Act June 13th 1836, Pamph. L. 559, it is provided that “ in all cases of views for any purpose mentioned in this act, the respective court shall, on petition of any person interested, direct a second view or review for the same purpose : Provided, that application therefor be made at or before the next term of the court after the report upon the first view.” It is true that the petitioners might have postponed their application until the next term, but the act gave them the election to do so or to apply at the same term. They exercised their election, and must be held bound by it. The review was therefore a pending proceeding, and must be subject to all the provisions of the law in relation to it; among others that the report must be made at the next term: Frankstown Township Road, 2 Casey 472.

Proceedings affirmed.


text:
    Penn Township Road.
    1. The jurisdiction of the Quarter Sessions oyer state roads is one of special authority not of general power.
    2. The only power of the court over a state road is to change or supply its route by a new road and to vacate so much of the state road as shall be supplied.
    3. The new route becomes the state road and is not an independent county road.
    4. Under the general road laws viewers may vacate parts only of an old road.
    5. Viewers to alter and supply a designated portion of a state road laid out a road supplying the state road but vacated only part of that which was supplied. The Quarter Sessions confirmed the report. The Supreme Court modified the order of confirmation by directing the part of the state road supplied to be vacated.
    6. The road law directing the part of thé state road supplied to be vacated, is mandatory.

      T. Mill Creek Road, 5 Casey 197, adopted.
    November 8th 1870.
    -Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Certiorari to the Court of Quarter Sessions of Allegheny coúnty: No. 126, to October and November Term 1870.
    On the 29th of March 1787, an act was passed for laying out a state road, from the Frankstown junction of the Juniata river to the Conemaugh river, and in 1791, a supplement was passed, continuing the road to Pittsburg. In pursuance of these acts a state road was laid out. On the 16th of October 1869, a petition was presented setting forth that the portion of the state road “ in Penn township, beginning on the Pittsburg and Leechburg road, at a point about half-way between Stotler’s shop and H. M. Wilson’s residence, thence by residence of Henry Morrow (late deceased), and of John Morrow, to the point where the Turtle Creek road intersects said Frankstown road, near the residence of David Collins, is injudiciously located,” &c., and praying that “the portion of said Frankstown road above described, or so much thereof as the court may deem meet, be vacated and altered so as to render the travel on said road less inconvenient and burdensome to your petitioners and to the public.”
    Viewers were accordingly appointed, who reported that they had viewed, &c., “ and considering a change of location of the said road necessary, we proceeded to vacate and change the said road in manner following, viz.: We vacate that portion of the road mentioned in said order, beginning at a point where the Turtle Creek road intersects the said Frankstown road, near the residence of David Collins; thence (giving the courses and distances) to the point where the public road leading from the northern turnpike * * * intersects said Frankstown road, near the residence of John Morrow: for the reason that the portion so vacated is of very steep and heavy grade, and inconvenient and burdensome for public travel; and we do further report that we have viewed and laid out and do return for public use and travel the following road: Beginning at said point where the Turtle Creek road intersects said Erankstown road, and thence, &c., (giving the courses and distances of'the new road), to a point on the old Erankstown road, &c., thence, &c., (giving the several courses and distances) to the place of beginning mentioned in said order.” * *
    The report of the views laid out a new road for the whole distance between the points of the state road mentioned in the petition, but left about two-thirds of the state road between the same points as it had been.
    The report was confirmed nisi, December 11th 1869, and the following exceptions filed:—
    1. Viewers should have vacated, changed, or adopted the whole of the old road between the points prayed for by the petitioners ■ — their report should show that they had done so.
    2. The viewers had no power to vacate part of the old state road between the termini of the new road, and leave a part of the old road without adopting it and making it a part of the new road.
    4. The report does not state, nor the plot show, that the new road is intended to supply the place of the old road; but on the contrary, part of the old road is left in full life and being between said termini.
    8. The petition should have been to alter and amend and not to vacate the state road; the court has no power to vacate any part of a state road.
    The exceptions were overruled April 2d 1869, the road confirmed and ordered to be opened.
    The exceptants removed the proceedings to the Supreme Court by certiorari, and assigned for error overruling the exceptions and confirming the road.

      H. H. McCormick (with whom was C. C. Taylor), for the certiorari.
    — The only power the Quarter Sessions has over state roads is to change or supply the route by a new road, and thereupon to vacate so much of the state road as shall be thus supplied : Act of June 13th 1836, § 2, Pamph. L. 558, Purd. 874, pl. 27; Phœnixville and Trappe Road, 2 P. F. Smith 161.

      A. M. Stoteler, contrá,
    referred to Loretto Road, 5 Casey 350; Act of 1836, supra; Act of May 3d 1855, §1, Pamph. L. 422, Purd. 873, pl. 26; Hess’s Mill Road, 9 Harris 217; Southampton Road, Id. 356.
   The opinion of the court was delivered, November 21st 1870, by

Agnew, J.

— The viewers in this case laid out a new road between two points on the state road to Eranlcstown, within Penn township, and vacated only about one-half of the state road thus supplied. The remaining half was not vacated on account of its connection with the northern turnpike. There is no doubt this portion is necessary for public use. For this reason we have desired to support the proceeding in the court below if possible. It seemed as if it might be done under the general powers of the court to lay out and annul roads. But a closer examination discloses that this is a question of special authority, and not of general power. The authority of the court over state roads is clearly different from that over county roads, and it would lead to great confusion were we to attempt to eke out the former by a resort to the latter. A state road is a highway laid out by the direct authority of the state, generally between distant places, and •through different counties, to supply a want felt by a large district of country, and which the diversity of local interests is not always willing to supply. It being a creature of special legislation the proceedings to locate, and often the repair and regulation of the road itself, are provided for by the special terms of the act. There is often a great variety in these terms, just as the views of the draftsman of the act, or the special circumstances of the case, may dictate. Hence it is not easy to reduce the system of state roads to uniformity. In consequence of this, and also to prevent local interests and feelings from strangling a state road, or turning it into a cul de sac, the only power committed to the Court of Quarter Sessions is “ to change or supply by a new road the route of any state road which may be laid out by direction of any Act of Assembly .within their respective counties, and thereupon to vacate so much of such state road as shall be supplied.”

The power to change or supply by a new road was evidently given to correct mistakes in the original location, and to allow of deviations resulting from accidents, but not otherwise to interfere with the road, either by cutting it asunder, or multiplying its parts. It may, therefore, be changed and supplied at any point by means of a new route, but when this is done it is evident the old route gives place to the new, and the new becomes the state road, and not an independent county road. If the new route were but a county road, it might be vacated by the court, and thus the state road which had been severed by the new route turned into a cul de sac, and the interest of distant places defeated by the local opposition. It is evident also that the legislature did not intend in this authority over state roads to give the power to multiply them. The court may change and supply, but not create a second road. If it could lay out a new route between distant points in the county and leave all of the old route standing except some insignificant part, it might repeat the process until the multiplication of the parts of the state road would become so great it would be difficult to determine how many or how much were the state road. If the part of the state road supplied or a portion of it can be left to stand, it must continue to be a state road governed by the law of its creation, and cannot be vacated except by again supplying a new route. This repeating process upon unvacated portions of the part supplied is clearly contrary to the intent of the law. The principle of the thing as to changing and supplying a new route is well stated in a different case by Lewis, C. J., in Mill Creek Township v. Read, 5 Casey 197: “ The authority to alter a road (he says) is an authority to substitute a new road for an old one, and whenever this is done, the old road so far as it is supplied by the new one is vacated.” The county road system is different from that of the state. In the former the viewers may vacate parts only of the old road, and so return to the court: Loretto Road, 5 Casey 350. Looking, therefore, at the character of a state road as a creature of special legislation, the restraint upon the authority of the court, and the reason for this limitation of power, it is evident we must construe as mandatory the clause in the act “to vacate so much of such state road as shall be supplied.”

The order of confirmation of the Court of Quarter Sessions is therefore reversed and modified as to so much of the Erankstown. state road as was not vacated by the viewers, and it is ordered that the entire state road between the terminal points supplied by the new route laid out by the viewers, shall be vacated, and the report of the viewers laying out the new route to supply the same confirmed.

It may be added that there is nothing to prevent the court from laying out a new county road over that part of the state road which the views did not vacate.

Order and decree as above stated.