text:
      Court of Common Pleas, Dauphin County,

      March 15th, 1864.
    Gandolfo v. Hood, Executor of Seltzer.
    When one person gave to another a certain sum of money in order to settle a claim for which the former was liable, and the latter compromised it for a less amount than was given to him, and kept the balance, keeping the fact concealed from his principal, this was such a case of fraud as comes within the jurisdiction of a court of equity, and a bill will lie even against the personal representatives of the agent. A prayer for a discovery will not be granted, unless the bill is in proper form with the necessary averments. A bill in equity should contain all matters necessary to show that a claim is not barred by the statute of limitations. In a case oí fraud, the statute does not commence to run until the discovery.
   By the Court.

The complainant sets forth in his bill that Thomas Appleton, Jr., and himself constituted the firm of James Gandolfo & Co., and that their firm, together with Levi D. Seltzer, deceased, arranged with N. F. Cunningham & Co., to purchase certain cotton goods, etc., each to advance equally, and bear an equal portion of the loss, or divide the profits in like manner. Owing to losses on sales and on certain drafts, the firm of Gandolfo & Co. and L. D. Seltzer became indebted to the firm of N. F. Cunningham & Co. in something like $19,567, in all of which each owed equal moieties. In 1851 the plaintiff’s firm became dissolved, and he undertook the payment of the partnership debts. In 1853 he placed in the hands of Seltzer the sum of $2800 in cash, and a claim for $3197.60, due the firm of Gandolfo & Co. for certain property at Cincinnati, with which Seltzer agreed to settle plaintiff’s portion of the debt with Cunningham & Co. if practicable. That Seltzer afterwards informed him that he had used the whole of the funds so delivered to him in making the settlement, and had discharged his indebtedness, but refused to disclose the terms of the settlement, alleging that they were to be kept secret. Cunningham & Co. also refused to divulge the terms under the same excuse. This business was transacted in the year 1853, and Seltzer then gave to Gandolfo a receipt for all of the funds furnished him, amounting in the whole to $5997.60, which he states in the receipt he had “ used to compromise the claim which N. F. Cunningham & Co. had against said James Gandolfo & Co.” The'plaintiff then avers that he never knew the true sum paid by Seltzer in discharge of the claim of Cunningham & Co. against him, until the year 1861, when a member of that firm was called as a witness in a controversy between himself and partner, Avhen it was disclosed that Seltzer had only paid in liquidation of said debt the sum of $2000, and the witness also produced the letter of said Seltzer to their firm, requesting them to keep the amount secret from the plaintiff. He alleges that Seltzer thus fraudulently converted the sum of $3997.60 of plaintiff’s money to his (Seltzer’s) own use, and the fraud was not discovered until thus divulged on the trial. To this bill, the defendant has filed a general demurrer, assigning as cause therefor, that the court has not jurisdiction to sustain the bill, as the party has full and ample remedy at law, and cannot come into a court of equity; also pleading the statute of limitations in bar to the proceeding; and further averring that the plaintiff is not entitled to have the discovery sought, but should be required to prove his case before a jury, and establish the validity of the writing which is the foundation of his claim.

The equity jurisdiction of our courts in this State is limited to those subjects and cases referred to in the Constitution, or pointed out by the statutes, but when conferred, is quite general within the subjects designated. Among these are “all cases of fraud, either actual or constructive.” ' ■ That the common-law courts have jurisdiction in many cases of fraud, is well known to every lawyer, as remedy therefor is furnished daily. But the suitor can very generally have a choice of forms, and can seek redress either at law or in equity, for wrongs of that character. In passing on this bill as demurred to, we must take all the facts stated as true; and if so, it discloses and sets forth a case of gross fraud. A pretence by Seltzer that he had expended all of the money intrusted to him by Gandolfo to pay the debt of the latter, when in reality he had discharged it with less than half the sum. Also that he had enjoined on the creditor to keep the compromise a secret, so that the fact might not come to the plaintiff’s knowledge. The only impediment in the way of proceeding in equity, is that the injury might perhaps be fully redressed by an action of assumpsit. This remedy, however, was not permitted to defeat the bill in Church v. Moore et al. (10 Barr, 274), where the subject is fully examined by Gibson, C. J., who concedes that under our practice such an action can be sustained, but speaks of it as a clumsy and inefficient remedy. It was there held that under the jurisdiction conferred by the acts of 1840 and 1845, the party may resort to the equity side of the court in cases of fraud, actual or constructive, to redress the same wrongs formerly corrected at law; that the remedy heretofore was but a bill in equity in the guise -of an action at law. Judge Story, in his Equity Jurisprudence, s. 187, says in substance, “that the frauds over which courts of equity have jurisdiction, include all acts, omissions, and concealments, which involve a breach of legal or equitable duty, trust, or confidence justly reposed, injurious to another, or by which an undue or unconscientious advantage is taken of another.” Lord Hardwicke says that “courts of chancery have undoubted jurisdiction to relieve against every species of fraud” (Chesterfield v. Janssen, 2 Ves. 155). And Jeremy defines fraud to be “a device by means of which one party has taken an unconscientious advantage of the other” (Jeremy’s Equity, B. 3, pi. 2, p. 358). That the transaction complained of in the bill is of that char-' acter, and comes within the above definition, is self-evident; as we can conceive of no greater fraud than where a person is intrusted by another with a sum of money to discharge his indebtedness to a third, that the party so intrusted, after liquidating the debt with half the sum, should pretend to the person so confiding in him, that he had applied the whole amount in payment, and thus pocket the residue. For a further illustration of this subject see 1 Story’s Eq. Jur. 185-194. But it must be conceded that chancery has not jurisdiction in every ease of fraud; for full, complete, and adequate redress may sometimes be had at law. If, however, the remedy be not as plain and adequate, practical and efficient, to the ends of justice and its prompt administration, as in equity, the party has the right to resort to that jurisdiction (3 Peters, 215; 11 Conn. R. 112,1 Parsons’s E. B. 180). The remedies are frequently concurrent (13 Ves. 275, 10 Ibid. 470). Where the remedy at law is doubtful or difficult, equity will have jurisdiction (1 Ves. Jr. 416; 1 Paige’s Ch. 90; 4 Howard, 455). And the necessity of resorting to several actions at law, instead of having the whole settled in a single hearing in equity, will justify a resort to that remedy (1 Pars. Eq. B. 220).

And again, whenever a principal is demanding an account and discovery from his agent of transactions dui’ing liis agency, it will justify a resort to equity (4 Mad. Chan. Bop. 198 and 416). It cannot be pretended that in the present case the plaintiff would be obliged to bring an action of account render, as they were not partners in trade, and the dealings between the parties were confined to a few transactions; but the business, as disclosed in the bill, was very considerably complicated, and could be best unravelled in equity. It is, to say the least, problematical whether the claim, could be settled by a single action at law, where the suit must always be brought in the names of legal parties, and here a portion of the money furnished the defendant clearly belonged to James Gandolfo, whilst the funds at Cincinnati were owned by Gandolfo and Co., though from the settlement afterwards they were vested in James Gandolfo individually. Equity looks to the equitable OAvner of a fund, and sustains proceedings in his name ; Avhilst at laAV there must always be legal parties to the action based upon the contract, although the suit may be for the use of the equitable owner. It has been urged that Ave should entertain jurisdiction in this case in order to compel a discovery; but we should hesitate so to do on the present bill, which scarcely demands it in proper form. There is no doubt of the right of a principal to require from an agent a full discovery of the business transacted, and even from the executor of an agent, if he has acquired any important information from the papers of the decedent; but the discovery should be prayed in clear terras and in proper form, with averments as to the necessity, etc., nearly all of which is Omitted in this bill. It can scarcely be considered a bill for the discovery of facts;, but it is clearly settled that .where a court of equity entertains a bill for discovery and obtains it, relief will be granted by the same court, if properly demanded.

Therefore, we sustain this bill on the ground of the fraud complained of, and because the facts can be better investigated in equity, from their complicated nature; also to prevent the necessity of resorting to two actions at law, and being a demand for a discovery and account by a defaulting agent, as is alleged. Therefore, the demurrer for want of jurisdiction is overruled. There is a plea of the statute of limitations interposed against this claim. The practice at law and in equity essentially differ in one particular. At law the narr is on the claim generally; and if the plea of the statute is interposed, the replication sets up the matter of avoidance. In equity the bill itself must state every essential fact relied on to take the case out of the operation of the statute. This is fully done in the present bill, which avers the pretence that the whole sum of money was used by Seltzer to settle Gandolfo’s debt; the stratagems resorted to by him to prevent the plaintiff from discovering the actual amount paid, and the accidental discovery of the fraud in the year 1861, when Mr. Cunningham was examined as a witness, which he states was his first knowledge of the facts. It is clearly settled that the statute of limitations applies in the same manner in courts of law and equity (6 H. 20). But.it is scarcely necessary to resort to authority to show that, where a secret fraud has been practiced, the statute will be no bar in either court rrntil discovery. That is not in a court of equity, see Angell on Limitations, 28, 188; 5 John. Ch. 522; Story’s Eq. Jur. s. 1521, a; and the same doctrine is held at law in many cases (5 Mason C. C. N. 149; 3 Barn. & Aid. N.-436); and although this has been at times disputed in courts of law, yet it seems to be settled in Pennsylvania, where our courts proceed on equitable principles (4 Y. 109; 1 "Watts. 401; 2 Parsons, 3). Therefore, the plea of the statute of limitations must be overruled. It has been suggested by the defendant’s counsel on the argument, although not raised by the pleadings, that we have not all of the proper parties to this bill. We know not whose name could be added. It is certainly unnecessary and would perhaps have been error to have made Appleton a party plaintiff, as equity looks to the person who has expended and is entitled to receive the money on a decree, not to him whose name was used on the contract. Cunningham & Co. would not be proper parties, as no decree could be made against them. The fraud, if perpetrated, was by Seltzer alone, and the party injured was Gandolfo, and none other. It is also complained that one great point of contest here is the genuineness of the receipt set forth in the bill, and its authenticity should be established before a jury. Should that prove to be ah important matter of controversy, the court may direct the question to be determined by that tribunal. But we have yet to learn that a jury can pass on the genuineness of a writing with any greater certainty than an intelligent master in chancery, before whom the same proofs must be made as bn a trial in court.

Lamberton and Bimonton, for plaintiff.

Alriohs, for defendant.

All of the objections to this proceeding must be overruled, and the defendant required to answer over.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
      Court of Common Pleas, Dauphin County,

      February 12th, 1866.
    Newman’s Executors v. Metzgar’s Administrator.
    An auditor’s report is final after confirmation; and even if there is a mistake in it, the court has no power to appoint another auditor to determine questions properly before the former one. It is legal to appoint an auditor to find the amount due to a widow from her husband’s estate, and also to determine its future distribution after her death.
   By the Court.

On December 24th, 1844, the sum of $3650.27 was paid into court to be placed at interest for the use of Catharine Breneman during life, and on her death to be distributed among the heirs and legal representatives of David Breneman, deceased. This was a surplus after paying all of the liens on the real estate belonging to David Breneman, deceased, which had been sold by the sheriff on an execution. The land had descended to Adam Breneman, a son of David; and. his widow Catharine was entitled to dower therein. Adam died when about nine years old, and his mother inherited his land for life as his heir; on her death it would be distributed among the brothers and sisters of David Breneman, three of whom'survived him. They would take as next of kin of Adam, ex parte paterna. An auditor was appointed 'to report the amount due after paying the liens, who fixed the sum stated. The widow received the interest during her life, and on her death it was brought into court for distribution. This court appointed an auditor, who reported that Henry Breneman, one of the brothers of David, died intestate and without issue during the lifetime of Adam; that the other brother, John, left issue three children, and the sister, Mrs. Gambers, left issue two children. Both of the latter died before Adam; consequently, their children would be entitled to this money, per capita. This report was confirmed; but the confirmation is asked to be taken off, and the report set aside, on the ground that all of the facts in controversy before this auditor had been passed on. by one appointed in 1845, and his report finally confirmed, which appears from the record to have been the case. The proof at that time showed that the brothers and sister of David Breneman survived Adam, and the money is distributed among them equally, to take effect and be enjoyed on the death of the widow; consequently, the money in court must now be distributed among them per stirpes, one share to the three children of John, and an equal amount to the two children of Mrs. Gambers. This may be contrary to the truth of the case, but conforms to the undisputed evidence given before the auditor in 1845. The report then made is conclusive of the facts, and the money must take the course indicated by the decree of confirmation, provided the court had the power to appoint an auditor to act on the future disposition and distribution of the fund. That the court had general jurisdiction over the subject-matter cannot be controverted. It was necessary to fix the amount due to the widow, that it might be put at interest for her use during life. It was proper to ascertain its legal disposition after her death to enable the bond or recognizance, given to secure the life interest, to state for whose use it should afterwards stand, being then a vested right in money. The bond or mortgage would properly name the persons to whom the money should be paid on the widow’s death, and it would then go to them or their legal representatives. That part of the auditor’s investigation appears to have been carefully made, and is full and exhaustive. It disposes of all of the money then and in futido ; but divides it among the two brothers and sister, although they must all three have been dead at the time. If errors exist, we have no authority to correct them, or disregard the effect of the decree. This report is fully recognized in the mortgages taken to secure this money, when lent out under the order of court; for after providing for the payment of the interest during the lifetime of Catharine Breneman, it directs the principal to be paid after her death to Henry Breneman, John Breneman, and Barbara Gambers’s heirs. This money probably should be paid to the administrators of each of these persons; but it is conceded that Henry died without issue, his administrator is long since dead, and his brother’s and sister’s children are his heirs. John and Barbara are both long dead, their estates settled, and administrators dead or discharged. One of the sister’s children, Christiana Morrell, is dead, and Abram Peters is her administrator. David and Anna Breneman, children of John, are living; and John Breneman, the younger, also, but has assigned his claim. Therefore, it is agreed that, after the court has settled the principles of distribution under the reports, the money shall be directly decreed to the parties now having the interest therein. The costs of the last audit will very properly be taken out of the fund in court, and the. residue distributed among the heirs, per stirpes.

Fisher, for plaintiff.

Krause and Boas, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      April 9th, 1866.
    Forster v. Forster’s Executors.
    A citation to settle an account will not be issued against an assignee for the benefit of creditors after more than twenty years have elapsed from the date of the assignment.
    Any presumption that might arise against the assignee from a settlement between him and the assignor, in which it is stated that all matters of account embraced in the deed of assignment are left out and excluded, will be rebutted by the fact that the assignor was discharged under the bankrupt and insolvent laws, and in the schedule of his property made no mention of any money coming to him from his former assignee; and the fact that the latter lived twelve years after the above-mentioned writing, and the citation was not asked for until after his death.
   By the Court.

On June 13th, 1835, John E. Forster executed to John Forster a deed of assignment, under the acts of Assembly then in force, for the use of certain creditors of the assignor named in the deed, and should there be a surplus after paying the debts, the same should inure to his own use. On December 13th, 1864, John E. Forster filed his petition for a citation to John Forster’s executors, asking that they shall be required to settle an account of the trust funds. On November 29th, 1864, a citation was awarded by the court. An answer was filed on January 31st, 1865, by the executors denying the right of the petitioner to call for a settlement under the circumstances. Something over twenty-nine years have intervened between the time of executing this assignment and the application for the citation; and as this is not one of those technical and continuing trusts, which fall within the proper and peculiar jurisdiction of a court of equity, it will be presumed to be fully complied with and the duties of the trustee to have been performed, from the lapse of time alone, unless the delay in requiring an account or calling for a settlement has been fully explained, or some other satisfactory proof made, which will repel the legal presumption (1 Parsons, 170, 70, 482; 2 H. 531; 7 Ibid. 138; 2 Parsons, 258; 1 "Watts, 275). The law generally presumes every kind of obligation settled and discharged after twenty years, unless that presumption be satisfactorily repelled, and will not permit an executor, administrator, assignee, or other trustee to be coerced to make a settlement after that time. This is necessary for the peace and repose of society. These general principles are not denied by the petitioner, as we understand; but he relies on a writing executed between him and the trustee, made on October 9th, 1857, to repel the legal presumption. The material part of the agreement, so far as relates to the deed of trust, is set forth in a few words. It states that the parties have settled all matters of account existing between them from June 13th, 1835, the date of the deed of assignment, to November 8th, 1848, the date of a certain bill of sale of goods in a store at Car-lisle, and the amount of indebtedness due to John Forster, on March 14th, 1850, to be $3611.81, with interest thereon till paid. “ All matters of account embraced in the deed of assignment above mentioned, and all matters of account existing between us after the bill of sale mentioned, are left out and excluded.” John Forster then goes on to give to John E., in trust for the wife of the latter, a store of goods; a value is fixed on those goods, which is to bear interest from the date of the deed of trust.

On October 13th, 1851, a written agreement to pay the debt, $3611.81, is given by John E. to John Forster, reciting many of the facts spoken of in their mutual contract, signed by both, as already cited in part, but not adding to the strength thereof. Does this agreement of October 9th contain a promise to pay, or any expression from which one could be implied ? Does it admit that anything was due from the trustee either to the cestui que trust or his creditors under the deed ? Does it declare or imply that the trust had not been executed, the duties performed, and an account thereof settled ? It certainly does declare that the accounts under the deed of trust, -as well as those since the bill of sale of 1848, are not embraced in that settlement, whether in any other is not stated, but as they are placed on the same footing as those arising since the bill of sale in 1848, we might imply that no account had been rendered. Therefore, we are obliged to take into consideration the other facts proved, in order to ascertain whether the executors of John Forster can now be called upon to render an account of that trust.

On December 18th, 1841, John E. Forster presented his petition to the Court of Common Pleas of this county for the benefit of the law for the relief of insolvent debtors, and was discharged as such by order of the court on January 17th, 1842, having executed an assignment of all his property, rights, and claims for the. benefit of his creditors. In that proceeding he made no mention of this claim, does not return John Forster as his debtor, or state that he has funds in his hands for the benefit of the petitioner or his creditors. On the contrary he there returns under oath that he owes John Forster by judgment $4230, and for moneys paid at various times $780. This, too, after sufficient time had intervened .to have enabled the debts to have beem collected, the property sold under the deed of trust, and the creditors named to have been paid in whole or in part, so far as the fund would reach. In that deed John Forster was returned as a creditor to the amount of $129, and by the time of the insolvent application it had increased to $5010. It is true John Forster was returned as an indorser for John E., as stated in the deed of trust, to the amount of $6200. But to meet that indebtedness mention is made of some $9400 of collaterals in the hands, of the creditor. It mattered not whether the creditors named in the deed had or had not been paid, or whether there was or was not a surplus. The trust should have been referred to in the assignment, unless, indeed, the whole were settled, and the accounts squared, in which case no return need have been made, and as the schedule of property and debts was made under oath, we are bound, as against John E., to presume that such was the case, and he is estopped from averring the contrary, and it must be borne in mind that this settlement is not demanded by the creditors, but by the assignor himself. Besides, though not returned, nor any mention made of the fund in the hands of the trustee, it passed by the assignment, and the proper person to demand an account is the assignee in insolvency. Again, in April, 1842, we find that John E. Forster presented his petition to the District Court of the United States for a discharge under the bankrupt laws, in which no mention is made of any claim in the hands of John Forster under the deed of trust, but in it the latter is returned as a creditor to the amount of $780 on a book account. The proceedings show that this petitioner was regularly sworn to his petition and schedule, and discharged as a bankrupt; but it does not appear that he executed an assignment, though it is more than probable that he did, as he returns assets to the amount of $2500.

To overcome the effect of these two gross omissions to make a return of a claim under the deed of assignment the evidence of a mistake should be clear and satisfactory, but it is in no wise accounted for in any part of the case, except by the vague expressions used in the agreement of October 9th, 1851. There is a further very powerful equitable objection to enforcing the demands of John E. Forster’s petition. The settlement was made and obligation given to John Forster in October, 1851. The latter died upwards of twelve years thereafter, and during all of that time no request or demand was ever made on him for a settlement, but, on the contrary, between 1857 and April, 1863, we find John E. very frequently borrowing money from John Forster, and giving his note for the sums borrowed. This did not indicate that the former considered the latter his debtor. If an account was to be demanded of this ancient transaction, it should have been done during the lifetime of John Forster, who would doubtless have been much better able to explain how each item was disposed of, and what debts were discharged, with the amounts thereof, than can be expected from his executors. Where a party lives for a long time after a transaction, during which he might have been called on for a settlement, a court of equity will take that into consideration in addition to the lapse of time before (17 Ves. 87).

Nothing can insure the interposition of a court of equity but conscience, good faith, and reasonable diligence. The court from motives of public policy refuses to interpose in favor of stale claims (1 Howard, 168, 189; Smith v. Clay, 3 Bro. Ch. 639, note; 2 Scho. & Lef. 636; 1 Story Eq. Jur., s; 529, and the cases there cited; 1 Fonbl. Eq. B. 1, ch. 4, s. 27). And our own books of reports are full of decisions to the same effect. There is no doubt that, as a general rule, twenty years must intervene in cases of this kind between the execution of the deed of assignment and the demand for a settlement, before either a court of law or equity will presume that all has been arranged and discharged, but a less time attended with circumstances has, ever since the days of Lord Mansfield and perhaps long before, been permitted to raise the presumption. Had John E. Forster, in 1851, when the article was entered into, demanded a settlement in his own favor under the deed of trust, I am strongly inclined to believe that the period of sixteen years, strengthened by the failure to make any mention of the claim in either of his applications for the benefit of the insolvent and bankrupt laws, would have operated as a bar. The creditors, if not paid, could - have required an account; he could not; and although there are expressions used from which it might be implied that the business remained open, yet, whether left out for the benefit of the one or the other, does not appear from the writing. We cannot permit that equivocal statement to throw all open now, especially when we take into consideration the very considerable time that John Forster lived afterwards without being asked to account. We are irresistibly led to the conclusion that this proceeding was instituted on account ■ of the very considerable advancements charged against John E. Forster in his father’s will, from which he found himself cut out from any participation in the estate. After a very careful consideration of the whole course of dealing between these parties, as presented to the court by the petition, answer, and evidence, we are constrained to say that it is not a proper case for judicial interference; we must treat all the matters between father and son as settled, and dismiss the citation at the cost of the petitioner.

Fleming, for plaintiff.

Briggs, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      May 21st, 1866.
    Shoemaker v. Murray.
    A court of equity has no power to enjoin a tax collector from selling property under a void or irregular warrant. The proper remedy is by action of trespass.
    The clerk constitutes no part of an election board for the purpose of assessing taxes, and his absence will not make a tax-warrant void. An election board has the power to choose a secretary, and a tax-warrant signed by him, as such, is regular. When a tax was assessed, persons to collect, and a treasurer to receive it, appointed by an election board, before their successors were elected, a tax-warrant issued after such election, and before their successors were duly inducted, is regular.
   By the Court.

The complainant files his bill on the equity side of the court, asking that the respondent shall be restrained from selling his property under what is averred to be a pretended or irregular warrant for the collection of a bounty tax assessed on the citizens of the Third Ward of the city of Harrisburg. We have doubts of the equitable jurisdiction of this court over the subject, and are inclined to the opinion that the complainant should be left to his remedy by a common-law action, if the process in the hands of the respondent is void, or so irregular as not to justify the proceeding. The furthest the courts have gone in restraining a sale, is where a wife’s properly was levied on for the debts of her husband; the court of equity granted an injunction under the acts of 1848 and 1850 (Hunter’s Appeal, 4 Wright, 194). It is spoken of as an exceptional case. As no question has been raised as to the jurisdiction of the court, and it is the desire of all parties that the validity of the warrant and right to sell should be determined, we will endeavor to decide on the points raised by the parties. The defendant justifies the seizure of the goods, and claims that it is his duty to sell them under his warrant, issued by the election board of the Third Ward of this city, for the collection of a bounty tax assessed by said officers, under the act of March 25th, 1864, and its supplement of the 25th of August of the same year, relating to bounties for volunteers. That the election board of this ward had an undoubted right to ass&ss the tax for the purpose indicated, is not to be questioned; it is provided for in the statute, and the power to so legislate has received the sanction of the highest judicial tribunal of the State. The tax, when assessed, is to be collected in the mode pointed out in relation to county rates and levies. But exception has been taken to the present proceeding, in this: First, the assessment was not resolved on and made by the election board. The clerks were not present, and took no part in the action. In our opinion, for a purpose of this character, they constitute no part of the “election board;” that consists of the two inspectors and the judge. The clerks merely keep proper minutes of the board’s action when sitting to receive, count, and record the votes polled. The inspectors and judge are elected by the people of the proper district at the spring election, and are thus prepared for the performance oí their duties at the next general election. The clerks are appointed by the respective inspectors, when the election is about to be held. The former have high and important judicial functions to perform, in receiving and rejecting votes; the latter have merely to record truly what the board of officers direct. They are invested with no judicial powers whatever. Both in powers, duties, and common parlance, the inspectors and clerks are designated the election board; the clerks act as subordinate officers. It is, therefore, the inspectors and judge to which the acts of Assembly relating to bounties, refer, by the expression, “board of election officers,” and not to the clerks of election, who never were selected by the people of the township or district, but appointed by the respective inspectors. This tax was assessed by the designated officers. Second, it is said that the defendant, Murray, was not duly appointed; but the answer clearly shows that he had a majority of the votes of the board, to wit, two out of three, and it need not appear by which two he was elected. Third, the warrant was signed by A. F. Swartz, ás secretary; whereas there is no such officer known, and no proof that he was elected. It would have been competent for this election board, when met for the purpose of imposing a tax, to have acted as an entirety, and all signed the proceedings. It was equally competent to select a president and secretary, and that is perhaps the more usual course, even when the board consists of a very small number. Such appears to have been the case here. Both the ■ minutes kept, and the answer, show that Frank A. Murray was appointed president, and A. F. Swartz, secretary; and as secretary, Swartz was the proper person to authenticate the minutes, and although all three might have signed the warrant to the collector, commanding him to collect the tax, yet it could be done by the president and secretary, or either of them; all that it required was the signature of some officer of the board, to give it authenticity. Fourth, it is said that the election board tvhich assessed this tax, was functus officio before the same was laid, and the warrant for its collection came from one who had ceased to be an officer. The answer shows that the board met towards the last of February, and resolved to assess and collect a tax of two per cent, on the adjusted valuation of properly in the ward. The minutes are without date, but they prove that such was the resolution of the board, and to collect a capita tax of five dollars per head. The collector was appointed on the 10th of March. "When the duplicate was made out, does not appear, but the warrant for its enforcement is dated the 10th of April. There can be no question but that the proper officers resolved to impose and collect this tax; they unquestionably constituted the election board at the time; they also properly appointed the collectors, as the election of new inspectors and judge did not take place until the 16 th of March, six days after the appointment. Having done all of the judicial acts, imposed the tax, fixed the amount thereof, ordered it to be collected, and appointed an officer to collect, and a treasurer to receive it, they were, in my opinion, the proper persons to. carry out the mere formal part, by issuing a warrant for its collection. For a purpose of that kind, they continued in office until their successors, the officers elect, were duly inducted. This, perhaps, could not be the case until an election was required to be held by the people, as that is the time they are to appoint clerks, and then all take the oath of office. The law clearly points out the time of appointing the clerks, and the regular order of the statute requires that all shall then be sworn, which must be done before entering upon the duties of their office. It cannot be that they must formally take the prescribed oath in anticipation of an election, merely to enable one of their number to authenticate a warrant for the collection of taxes. We consider the warrant regularly issued by competent authority, to collect a lawful tax, duly laid according to the proper adjusted valuation, and directed to a legally appointed collector; and therefore it is his duty to enforce payment of the tax, and to sell the property on failure to pay. Consequently, this court cannot enjoin the defendant from proceeding to sell on his warrant. The application for a special injunction is refused.

Ilerr', for plaintiff.

Kunhel, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      May 21st, 1866.
    Miller et al. v. Hershey et al.
    A fuUing-mill, -nrMcli was repaired, a new shed erected alongside of it, and new machinery placed in it to turn it into a grist-mill, is not such a new building as will subject it to a mechanics’ lien for the work done or materials furnished.
    The question as to whether a building is an old one repaired, or a new one erected, is a question of law for the court.
   By the Court.

The facts in this case are undisputed, and raise a single question of law. Is the building in which the machinery furnished by the plaintiffs was placed the subject of a mechanic or materialman’s lien ? It is described as “ a two-storied stone grist-mill, thirty-three feet more or less front on the east, and thirty feet deep, with a water-house at the rear, ten feet wide and thirty-six. feet long, with the ground and appurtenances thereto belonging, situate in Derry township, Dauphin county, adjoining,” etc. The evidence shows that the stone building described was on the ground many years before, of the size and description stated in the lien, and had been built and used for a fulling-mill. The owner, Hershey, wished to convert it into a grist-mill, and for that purpose built a new frame and stone shed adjoining, stone to the surface of the ground, frame for one story higher, ten feet wide by thirty-six feet long. This was constructed for the purpose of containing the water-wheel and some other portion of the machinery for the grist-mill. One side of the old mill was used for the shed. A new roof was put on the old mill -, the rafters and lath remained as before, but the roof extended down so as to cover the new shed part. A new floor was placed in the old mill, next the ground, and also on the second story, laid on the old joists, new ones having been placed under the floor next the ground. ■ The shed was built for the purpose of holding the new water-wheel and a portion of the works for the grist-mill. Part of the iron machinery procured for the flouring-mill was placed within the new shed building, the residue thereof in the old stone mill. The wheel of the fulling-mill was some twenty-two feet high, and stood within the old stone building. The wheel for the flouring-mill was twenty-nine feet high, and was outside of the walls, and under the new shed, as was also the master cog-wheel, and at least one large pinion or gudgeon.

The lien is not filed for work done at or within the new shed, but generally against the stone grist-mill,” for work and machinery placed therein. It is called and treated by the material-man as a new grist-mill. Is it such in contemplation of law ? It certainly never was a grist- or flouring-mill until the new iron machinery, furnished by the plaintiffs, was placed in it; but' it was not a new, but an old stone mill, though of a different character, and used for another purpose. Does the change in the use and the alterations in the building make it a new mill, so -as to subject it to a lien under the law? Had the claim been made for work done, or materials furnished in theserection of the new shed adjoining the mill, and specially filed against that building, it would have come within the case of Harman v. Cummings and Wife (7 Wright, 322), and those reported in 2 Barr, 79, 4 Casey, 156, and 11 Casey, 348. It describes that shed as connected with the main building, but these articles were not furnished for it in particular, but consisted of materials for mill work in the stone mill and shed, without any specification of what was to go into the one or the other; the machinery was designed for the entire mill. Would the stone mill pass as an incident to this shed, or was not the latter rather an appurtenance to the former ? A kitchen built for the use of a house is held to be subject to a mechanics’ lien in Lightfoot v. Krug (11 Casey, 348), and Pretz & Gausler’s Appeal (lb. 349), and the law must be considered as so settled. But whether the main house would pass by a judicial sale of the kitchen on the lien filed, as appurtenant thereto, as intimated in one of those cases under the strength of that of Nelson v. Campbell (4 Casey, 156), is certainly somewhat problematical. We have, on the other hand, the case of Summerville v. Wann (1 Wright, 182), which decides that where an engine or other new machinery was placed in a mill, with a view of driving it by steam, when it had formerly been propelled by water power, but the frame of the mill was not changed, yet a new shed was erected of sufficient size, and for the purpose of covering the steam works, it did not constitute it a new mill so as to render valid a lien filed for the engine and machinery furnished.

The shed built for the purpose of covering the steam works was not there treated as a new erection, but merely as an appurtenance to the old mill-house, and it is a little difficult to draw a distinction between such a shed and one constructed to cover a water-wheel; if the one is appurtenant to the main building, the other must be so likewise. True, the main contest appeared to be as to the act of 1856, extending to such a case, and it was contended that the statute gave a lien for the machinery without regard to the character of the building in which it was placed, but the court declared that there is no lien where new works of the kind described in the act go into an old building, that the lien is for the machinery furnished, and not on it. The lien must be on the ground or building, and they must come within the act of 1836. I decided the same principle in a case which arose soon after the passage of the act, where the party who furnished a steam-engine which was placed in an old mill, claimed a lien on the engine. The claimant was allowed no part of the money arising from a sheriff’s sale of the property. Many alterations were made in the old mill buildings, the walls remaining as before, but new shingles were placed on the old raftersj so as to constitute in the main a new roof. An entire new floor was laid below, and a new one above except the supporting joists. Yet acording to adjudicated cases, this was but repairing an old building. The changes in the structure were less extensive than in Landis’s Appeal (10 Barr, 379). There was a new front wall, the conversion of a dwelling into a storehouse, or the'reverse, or a small factory into a large and extensive one, with an alteration of the machinery or propelling power, without enlarging the building, and cites in support the opinion of Judge Kennedy, in 5 Nawle, 307. The change of a carpenter’s into a blacksmith’s shop would not be less marked than that of a fulling- into a flouring-mill. Yet if the external structure remained the same, we cannot believe that a lien could be created by the change of purpose. In the mill all of the old works used for fulling cloth must be removed, and new ones of a different character supplied. In the shops the alterations are equally necessary, though generally less expensive. The same might be said of the stable converted into a wagonmaker’s shop, or tjre converse, without any alteration in the external edifice. From the whole current of adjudicated cases, it would seem that there must be an essential and marked change in the external structure of a building, and not merely a conversion of it to a different use in order to afford the mechanic or materialman a lien for his labor or materials. In this case the new roof, floors, and shed did not, in our opinion, convert the old stone mill into a new building, nor would the change of purpose have that effect so as to give the materialman a lien for his machinery supplied for converting the 'fulling- into a grist-mill. The old building remains intact, and it is on it and the soil subservient thereto that the law gives the lien, not on the materials supplied, which went indiscriminately into the whole structure, the old stone mill-house, as well as into the new shed, and what went into the one building or the other is not distinguished either in the lien filed or.the evidence on the trial, except, possibly, as to one or two items mentioned by the witnesses.

The facts in this case being entirely undisputed, whether a new building or not is a question of law, and not as intimated in some of the cases one of fact to be submitted to a jury. If so to be determined, one half of the liens filed against a building may be sustained, and the residue overturned or rejected, according to the variable opinions of jurors on the same state of facts. This 'case was not so submitted, but the instruction was given to find a verdict for the plaintiffs, and the point was reserved for the decision of the court. We now determine on the reserved question that tbe plaintiffs are not entitled to recover, and render judgment in favor of the defendants non obstante veredicto.

Miller and Breneman, for defendant.

Affirmed by the Supreme Court (59 Penna. 64).

(The act of April 4th, 1867, changes the law in the above opinion in Dauphin county.)


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      Court of Common Pleas, Dauphin County,

      June 2d, 1866.
    Ball’s Administrator, for Use of Foster, v. Nicholson’s Administrator.
    "When an executor or administrator resides within the State, a judgment against his decedent should not be revived on two nihils, without giving him notice. A judgment upon two nihils, entered nine days after the return of the second, is taken prematurely.
    Ajudgment against a decedent in his lifetime, and revived against an administrator fraudulently appointed by the contrivance of persons having no interest in the estate or the claims against it, will be opened, although seven years had elapsed after its revival.
   By the Court.

On the 25th of January, 1865, on motion a judgment was entered in the Court of Common Pleas of this county, that William S. Halsey, administrator de bonis non of John Nicholson, be made party to the action, and the same was revived against the estate for the sum of $59,303.80, for default of appearance. This judgment was taken on two nihils. The first sci. fa. was issued on the 18th of November, 1864, returnable the 2d of December (the second return day of the November Term, the first being — day of November). An alias sci. fa. (the above stated writ) issued on the 3d day of January, 1865, returnable on the 16th of that month, and on the 25th of January judgment was entered for default of appearance, as above stated. During all of this time the administrator (Halsey) resided in the city of Philadelphia, and there was no service or attempt to serve him with process. The act of the 6lh of April, 1859, appears .to have been overlooked or disregarded in the proceeding. That act, which is a supplement to the one relating to executors and administrators, provides, that where such representative of a decedent resides without the jurisdiction of the court, the scire facias required by the 27 th and 32d sections of the act of the 24th of February) 1834, may be served by the sheriff of the county in which he is resident, if in the opinion of the court such service may be reasonably practicable; but if otherwise, or the representative of the decedent resides out of the State, the service may, under the direction of the court, be made by publication in one or more such newspapers as will be most likely to give notice to the executor or administrator, which is to have the same force and effect as the service required by the former act. Prior to the passage of the act of 1834, it was the well-settled practice of Pennsylvania to revive judgments inter vivos by scire facias on the return of two nihils. It was equally common by the same process, to bring in and take judgments against the representatives of a decedent. We would have thought, independent of judicial decision, that the act of 1834 intended to change the practice, and require actual service on the representative before making him a party. The 2 7 th section of the act of 1834 provides that within twenty days after the service of the sci. fa. on the executor or administrator, the court shall have power to make them parties to the action by the judgment of the court; but even then the representative made a party is entitled to a continuance for one term. The first case 'which came before the court after the passage of the act was Chambers v. Carson, reported in 2 Wh. 9, and same book, 365, where it was held that the old practice continued notwithstanding the act. That was a sci. fa. on a mortgage, the proceeding being purely local in its character; and it was decided that the sheriff could not go out of his bailiwick to serve the writ. Judgments could, however, have been pursued by actions of debt or by filing copies of the record where the representative could be found, rather than have defaulted a dead man, or taken judgment against the executor or administrator without service or notice of the existence of any claim against the decedent. It would have been quite as proper to have process served upon or notice given to the representative, as to serve a citation out of the Orphans’ Court in a distant county, which is the constant practice and always hold legal. The inconvenience arising from taking judgments against the representatives of decedents without service or other notice was doubtless felt and led to the passage of the act of 1859, which furnished a full remedy and must be strictly followed. It has not been done in the present case, and therefore the judgment must be set aside. The administrator made application to have this done so soon as he was aware of it having been rendered. We have no doubt of the power of this court to vacate its judgment entered without authority and without notice; it must be reversed if removed to the Supreme Court, and Ave can correct our oavii errors where judgment has been inadvertently and illegally given. There is another irregularity, of minor importance, to which we may advert. Supposing the two returns of nihil to be equal to a service, it certainly should not give the plaintiff greater advantage than could the actual service of the Amt. The return is made on the 16th of January,. 1865, the return day of the writ; the judgment is taken on the 25th of January, nine days thereafter; yet the act of 1834 gives the executor or administrator twenty days after service to appear and become a party, or show cause at the next term why he should not become a party.

We think the judgment was taken prematurely. Wo must now turn our attention to the judgment.,- No. 193 of April Term, 1858 (Ball’s Administrator v. J. Vance Creswell, Administrator of John Nicholson). This writ was issued on the 22d of April, 1858, and served on the administrator the same day, to bring him in and make him a party. The return day of the term was the 26th of April, but this writ was made returnable on the second return day, the 7th of May. On the 11th of May judgment was taken for default of appearance, for $42,297.30. This was perhaps premature and irregular, but as more than seven years had intervened between that period and the application to set aside the judgment, it is cured by lapse of time, and can neither be disturbed by this court or reversed on a writ of error. Should this judgment be opened under the facts proved, so as to let the present administrator into a defence? The original judgment, No. 101 of December Term, 1796, was entered against John Nicholson, on the 3d of March, 1797, by virtue of a warrant of attorney. Mr. Nicholson died in December, 1800. Letters of administration were first taken out on his estate in the year 1826; the administrator was discharged in 1838, and a few days after another was appointed. In November, 1857, the second administrator, who was a son of John Nicholson, was discharged, and J. Vance Creswell was appointed. This appears to have been done on the petition of one Mary Susanna Davy, who, it is averred, had no interest whatever in the estate, and was no relative to the deceased. It is shown that this woman presented the petition through the management of one J. C. Heylman, who at the time had neither interest in or connection with the estate, nor had he any claim on this judgment. At a previous time, in 1853, Heylman had purchased from the heirs of John Nicholson, all of their interest in his estate, including lands, mortgages, contracts, etc., and had sold the same to Mr. Taggart during the same year. The latter sold the property and interest to W. J. Halsey, the defendant, on the thirty-first day of August, 1859, who, the following year, took measures to have Mr. Creswell removed, as having been improvidently appointed administrator de bonis non of John Nicholson; and the Orphans’ Court of Philadelphia County vacated the letters, and granted new ones to Halsey. Mr. Creswell received his appointment as administrator in November, 1857, and in April, 1858, a scire facias issued to revive this judgment, then some sixty-one years old. The writ was served on Mr. Creswell, who gave it no attention, and judgment was entered against him a few days after for default of appearance, and a revival had for $42,297.30 and costs. Mr. Creswell testifies that he administered on the solicitation of Heylman, and for his accommodation, avIio, he supposed, held the claim, and Avas pursuing it for the benefit of Taggart and his assignee, to whom he had sold the Nicholson property. At the time of the revival, Heylman had no claim on this judgment, and no right to meddle with it. He purchased it some three years afterwards, according to the evidence of Mr. Caldwell, for a small sum, probably three or four hundred dollars. Caldwell, administrator of Ball, knew nothing of its existence or situation; for although his name was used, he did not know of the judgment till informed by Heylman, nor of the proceeding upon it, until shortly before giving his testimony. He never employed counsel, or moved in the business. The whole matter appears to have been concocted by Heylman for his oAvn benefit. The name of Mary S. Davy must have been used as a blind in getting up an administrator, as she appears to have had no interest, but Avishcd to accommodate Heylman, and acted under his direction. CresAvell knew nothing of the object, but suffered his name to be used, and did not look after the interest of the estate he AAras appointed to represent, but permitted Heylman to manage the business in his own way. The least care on his part would have protected the estate and defeated a recovery. We cannot look upon the whole proceeding in any other light than an improper meddling Avith the estates of two dead men by a person Avho had no interest in or right to interfere Avith either, and got up by Heylman for the fraudulent purpose of embarrassing a right of property Avhich he himself had sold a few years before. If any judgment should be opened or vacated as obtained by fraud, this one is of that character. It is said, however, that there is a want of poAver in the court to disturb a judgment after so great a lapse of time; and if Ave possess the power, it should not be exercised against the present holders of the claim, who are bond fide purchasers, without notice, they relying upon the truth and good faith of the record. That the courts of Pennsylvania possess a general poAver to open judgments entered-by default or on a warrant of attorney is not to be questioned, provided the application be made in a reasonable time after its existence is discovered. The cases in which the authority Avas questioned is where there has been a trial or judgment rendered by the court on a hearing. Such Avas Catlin v. Robinson (2 Watts, 379). There had not only been a trial and judgment, but a sale of the property and recovery in ejectment. In Stephens v. Cowan (6 Watts, 513), the power to change the judgment entered by mistake on the part of the court is recognized. In Matthews’s Executors v. Patterson (9 C. 487), there had been a decision and affirmance in the Supreme Court, held too late to correct the error. Iii Banning v. Taylor (12 H. 289), it was held that a judgment entered on a warrant of attorney improperly might be stricken off by the court, even after some time had elapsed. The same is decided in Hutchinson v. Ledlie (12 C. 112). In the case before ,us we have a plan concocted to revive a long-extinguished judgment against the estate of a decedent by a person who had no interest either in the claim or the estate — an administrator raised up by the contriver to effect the object, and in contemplation of law a combination between the party and the administrator to have a judgment recovered. We say a combination in contemplation of law, for we do not believe that Mr. Creswell was guilty of anything but gross negligence arising from misplaced confidence in Heylman, who he did not suppose was pursuing any improper object, but was endeavoring to collect his debt and secure a title sold. The judgment thus obtained is now endeavored to be used against the very property which Heylman had himself disposed of. We think that moral honesty and the ends of justice require that this judgment should be opened. It is said, however, that the rights of innocent third persons will be injuriously affected. It is a settled principle of law that the assignee of a judgment is in no better situation than the assignor. If these purchasers desired to protect themselves they should have inquired of the present defendant, the administrator de bonis non, whether there was any defence against the judgment before they paid their money. Besides, we think that there was sufficient in the record in this case to put a man of ordinary prudence on inquiry. There was a judgment over sixty years old, on which nothing had been done during all of that time; an administrator de bonis non then raised up, and a judgment of revival entered against him by default; he promptly removed for some cause, and some years after, another administrator de bonis non brought in; without any legal service of process, and the judgment revived by default; and it is this claim, thus illegally entered, that the present parties in interest aver they have purchased. They must have bought for speculation, and should it fail, must bear the loss. The present defendant has combated the claim with reasonable diligence. So soon as he knew of Mr. Creswell’s appointment as administrator de bonis non of Nicholson, he applied to the Orphans’ Court of the proper county and had him removed. He knew nothing, as he testifies, of the judgment rendered against himself, until a copy was sent to Philadelphia, and then, for the first time, discovered this previous entry against Creswell. We are of the opinion that this large judgment should not stand in force against the estate without the opportunity of a trial, and we shall therefore order it to be opened and the defendants let into a defence, the lien, if any, to remain against the property of the decedent, and the defendant, as administrator de bonis non, to substitute himself as defendant in that writ of scire facias, so as to try the cause as if the writ had originally been issued against him as administrator.


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      Court of Common Pleas, Dauphin County,

      January 3d, 1867.
    Zerbe, Administrator of Leeler, v. Miller.
    An administrator or executor can appeal from an award of arbitrators without paying costs, even where he took out the rule of reference.

      Mumma, for plaintiff.

      AlricJcs, for defendant.

   By the Court.

In this case, the plaintiff, as administrator of Ann Leeler, took out a rule of reference. An award was made, with which he was dissatisfied, and an appeal taken without payment of costs. The defendant contends that the case comes within the 31st section of theactof 16th June, 1836, which imposes costs before appeal, on the executor or administrator taking out the rule. The plaintiff says that that part of the section is repealed by section 2 of the act of 13th of April, 1846, which excepts executors, administrators, guardians, or trustees, from the payment .of costs where they are appellants. The different acts are undoubtedly obscure and difficult to be reconciled, but we are-of the opinion that the exception in the act of 1846 is so general, as to give the appeal in all cases to those suing or sued in a fiduciary capacity, without regard to which party entered the rule of reference. In doubtful cases, sxrch a construction should be given .to statutes, as would secure the trial by jury, under the supervision of the courts; this especially in the .case of decedents’ -estates. If we could not so decide, we would permit the administrator in the present case to pay the costs nunc pro twna rather than have his appeal defeated under a doubtful law, at least one difficult of construction. The motion to quash is refused.


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      Court of Common Pleas, Dauphin County,

      January 3d, 1867.
    Bergner et al. v. The City Council of Harrisburg.
    The mayor and city council have no power to bind the municipality to pay ■ the expenses of a visit to their city by the President of the United States, or any other person or persons, although a resolution had been adopted by them, inviting him to come; and no such power is given by the charter of the city of Harrisburg. But the corporation is responsible for the pay of special policemen employed to keep order on such an occasion. The court will grant an injunction to prevent the payment of such claims, although articles have been furnished and expenses incurred on the faith of a resolution passed by the city council. Such injunction may be prayed for by any taxpayer; it need not be asked for by the attorney-general.
    (Reynold v. The Mayor of Albany, 8 Barb. 597, and Ketchum v. The City of Buffalo, 4 Kern, 856, distinguished.)
   By the Court.

The bill in this case prays for an injunction to restrain the municipal authorities of the city of Harrisburg from paying certain bills due to individuals, on account of expenses incurred in the reception of the President of the United States, certain members of his cabinet, and the highest officers of the army and navy who visited this city last autumn, pursuant to a resolution adopted by said authorities on September 5th last, extending to them the hospitalities of the city. The amount is $838.63, for the most of which orders had been drawn on the treasurer, before notice of the application for an injunction, but no part thereof is yet paid. The first and main question presented by the bill and answer is, can the mayor and council bind the city for such expense ?

Municipal, like other corporations, possess no powers except those expressly granted by the act of incorporation, by the general laivs of the State, or such as are necessary for the purpose of carrying into effect the granted (Dowers. Aid the general authority of a corporate body must be restricted by the nature and object of its institution; it can make no contract except such as is necessary, either directly or incidentally, to enable it to answer that purpose (Wilcox on Municipal Corporations, 769; Angel & Ames on Corporations, 59, 60; 3 Barn. &, Ald. 11; 29 Conn. 356, 363; 1 Duer, 452; 2 Denio, 140; 2 Kent’s Com. 298). Besides, corporations stand on an entirely different platform from individuals. The latter may do all acts, and make all contracts not inconsistent with the laws of society and their duty as members thereof. Whereas, the former, having been created for a specific purpose, can do no act, and make no contract, which is not necessary, either directly or incidentally, to enable it to answer that purpose (A. & A. on Corp. 139). Their powers of appropriation are limited; and hence when they undertake to apply public funds for purposes not authorized by their charter or by positive law, their acts, whether clothed with the form of legislation, resolution, or ordinance, are without authority and void (Davis v. The City of New York, 1 Duer, 452; 1 Sandford, 29; 29 Conn. 356; Booth v. The Town of Woodbury, Law Registers of 1865-6, 202; 12 Cush. 103, 106; 1 Met. 284)._

Under these well-settled principles, is there any general power in the city authorities to apply the money of the people to the purposes set forth in the bill ? On this subject we have no direct decisions in our own State, but the question has been carefully considered in the highest courts of many of our sister States. In New York, the case of Hodges v. The City of Buffalo (2 Denio, 110) first brought this matter to the attention of the public. The corporation by resolution had authorized a supper and ball to be given on the fourth of July to entertain the citizens and certain invited guests; it was furnished, the bills sued for, and it was held that the persons furnishing could not recover, as there was no power in the city authorities to make such a contract, or pass such an ordinance. They cannot appropriate money by ordinance or resolution to any purpose of that kind. No express power is given, and none can be implied from the words of the charter authorizing them “ to pass such ordinances and by-laws for the good government and order of the city, and the trade and commerce thereof, as shall be necessary to carry into effect the powers given to the council.” Such an appropriation of public money is unauthorized. In Bayland v. The Mayor of New York (1 Sandford, 29), the correctness of the principles laid down in the foregoing case are fully recognized; and it is there reiterated that the corporation has no power, except as given by statute, or necessarily incidental thereto. And where the corporation by resolution had called a public meeting on State and National affairs, it was outside of the charter powers, was the mere unauthorized act of the mayor and members of council, not a municipal or corporate act, and the city was liable for no portion of the expenses thereof. The case referred to in 2 Denio is cited with approbation, and relied on as the law in 1 Duer, 452; 1 Comstock, 430. In Halstead v. The Mayor of New York (3 Comstock, 433), decided in the Court of Appeals, Pratt, J., says: To judge from the conduct of municipal corporations alone, we would conclude that there was no limitation of their powers, at least their power of expending money and laying taxes. Until the case of Hodges v. The City of Buffalo was decided, nothing was more frequent than for city authorities to vote largess, and give splendid banquets for objects and purposes having no possible connection with the growth and wellbeing of the body politic, thus subjecting their constituency to unnecessary and expensive taxation. Since that decision it has generally been understood that their powers are more limited.” It was then declared that where the corporation of the city attempted to vote money to indemnify their officers, fined and subject to costs for neglect of duty, which they were required by a city ordinance not to perform, that such a vote of money was in violation of law, and entirely out of their power and iurisdiction. Thus the law may be considered as settled in New York.

We find similar doctrine enunciated by the courts of Massachusetts. In one of the latest books of reports in that State, it is held “ that a town cannot appropriate money to celebrate the fourth of July” (1 Allen, 103). And no usage will justify it. Nor to expend money to celebrate the anniversary of the surrender of Cornwallis (Tash et al. v. The Treasurer of Natick, 10 Cushing, 252). Nor to vote money to purchase, uniforms for an artillery company, and will be restricted by injunction even after the uniforms had been purchased on the strength of the ordinance, and deposited in the armory of the company (Lee et al. v. The Town of Hopkinton, 4 Gray, 502). Nor can it appropriate money in time of war and danger of hostile invasion to give additional wages to the militia (Stetson v. Kempton et al., 13 Mass. 272). And it is said to be well settled in that State that a town will not be bound, even by the express vote of a majority, to the performance of contracts or other legal duties not coming within the scope of the objects and purposes for which they are incorporated (1 Metcalf, 286). Numerous other cases to the same effect might be cited. The same principle prevails in Connecticut. In The City of New London v. Bramard (22 Conn. 522), it is said: Corporations have only such rights and powers as are expressly granted to them, or as are necessary to carry into effect the rights and powers so granted. Therefore, the city of New London has no power in its corporate capacity to appropriate money to celebrate Independence Day, and a tax-payer had a right to pray for an injunction; and it is the proper remedy to restrain both the city and the treasurer.” Where the State was bound to build a bridge (if there was an obligation in any one to build it), and the town voted money for the purpose, it was held that it had exceeded its power, and the contract to pay on its part was void, and could not be enforced (29 Conn. 356). That too where it was said that the bridge was of great utility to the citizens at large. Towns have no powers except such as are expressly granted to them by the legislative power of the State; and therefore cannot grant gratuities to men drafted for the military service of the United States (Booth v. The Town of Woodbury, 5 Am. Law Reg., N. S. 202.)

Although we have had no cases involving the appropriation of money by municipal corporations for mere civic purposes brought before the Supreme Court of this State, yet we have had those embracing cognate principles. It has been held here, as in Connecticut, that independent of express legislative authority, there was no power in municipalities to apply money to the payment of bounties to volunteers, to drafted men, or to relieve from the draft, and to render such application legal and valid, it must be shown to come strictly within the law. A borough or ciiy could not, without special legislation, appropriate money towards building a railroad, or securing a nearer approximation to its limits, or levy a tax to pay such subscription (Brightly, 332). Or to the erection of steamships to start from the city (Pennsylvania Railroad v. Philadelphia, 11 Wr. 189). It was gravely doubted, in several reported cases, whether such corporations could subscribe to railroad stocks, even under the sanction of an act of Assembly, but decided that they could when so authorized (9 H. 147, 188). Judge Woodward says: “ There is no congruity between such an enterprise (building a railroad) and the legitimate purposes of municipal corporations. They were designed to regulate the internal affairs of the places in which they were located. Police, health, streets, lanes, alleys, and the like, are the appropriate subjects of municipal administration” (9 H. 182). Our courts have always held corporations of all kinds to the strict letter of their charters or the powers conferred by general statutes. Some decisions have been referred to by the counsel of the respondents which are worthy of examination. In Reynold v. The Mayor of Albany (8 Barb. 597), it was held that, when the city was authorized by statute to procure and furnish a room for the use of the council, it could contract for a portrait of tho governor as part of the furniture, it being discretionary with the municipality as to how itshould be furnished, and it having been customary to procure such portraits as part of the furniture. Ketchum v. The City of Buffalo (4 Kem. 356), decides that, as the city was empowered to establish and regulate markets, it had, incidentally, the power to purchase the ground on which to build the market-house. In both of these cases, express power was conferred by statute to do the act; the manner of doing it was discretionary with the municipality. There is no pretence that this court can control the city council in doing or not doing acts left to their discretion; but the position is assumed by the orators here that there is no discretionary power, that the act is unauthorized, is outside of the municipal jurisdiction, and a mere usurpation. The Mayor of Colchester v. Linten (1 Ves. & Bea. 226), greatly relied on, arose on an effort to set aside a mortgage given by the city for the payment of money expended by an attorney in defending the mayor against suits brought on account of alleged improper conduct on his part. Tho claim of the attorney appears to have been much litigated, an award of arbitrators in his favor, and the mortgage given for the sum awarded. The chancellor declared that if the mortgage was given for a matter entirely outside of the corporation business and duties he could vacate it; but if at all within the power of tho council, it could not be done after the award. The case was one of doubt, and seems to conflict in some of its features with that in 3 Comstock, 433. We are not required to decide between them. To us it is very clear that the city of Harrisburg had no common-law power to appropriate money for the purposes stated in the bill; for however proper and commendable it may be in the citizens of this country to pay all due respect to the highest officers of the nation, they must do it as citizens and not as corporations. The funds necessary to meet the expenses must be furnished by the voluntary contributions of the citizens, those in favor of the demonstration, not wrung from the unwilling pockets of the people by taxation. If it can be for this, it may be for any other fflte, the celebration of Independence Day, the battle of Gettysburg, or any other great event in our national history, and thus perhaps an unwilling people be obliged to pay for that in which they feel no interest. If the money can be voted for a civic feast on the advent of the chief executive, it may be for men in inferior stations, provided they have sufficient influence with the city authorities. There is certainly no well-established custom in Harrisburg which can be relied on, as this is perhaps the first occasion to call forth such a reception. If a discretionary power exists, it may be subject to gross abuse. The mayor and council, if so disposed, might feast themselves and their friends at the public expense, and refuse to suffer any others to participate. There is no discretion; it is outside of the corporate powers and duties, unless it comes within the words of the charter. Section 6 of the act of 19th of March, 1860, incorporating the city of Harrisburg, provides inter alia, that the council shall have power to “ establish all such by-laws, ordinances, resolutions, and regulations, as they may deem necessary to preserve the peace, and promote the good order, government, and welfare of said city, and the prosperity and happiness of the inhabitants thereof; and the same to alter, amend, repeal, or revoke.” This is the whole power of legislation conferred, and is almost in the words of the charter of Buffalo, commented on in 2 Denio, and very similar to those of other cities, whose power was held by the courts of the respective States, not to embrace appropriations of this character. It would be ostensibly more important for a town or city to have a railroad brought nearer to its limits, than to feast those who are strangers to the corporation, and have no interest in its welfare. It has been held that the city of Philadelphia could not authorize a railway to be laid on one of its streets, and the same is decided by the Court of Appeals under the charter of New York (4 Kernan, 506). Yet these things might be promotive of the prosperity and happiness of the inhabitants. The answer avers that the invitation to the chief magistrate and its acceptance, would be promotive of the welfare of the city, and the prosperity and happiness of a majority of the inhabitants thereof; but as the council in their answer has not pointed out to the court how the prosperity of the city was to be promoted thereby, we must take it as an empty assertion to. bring the vote-within the words of the charter, which can have no weight, in our judgment. The charter, in our opinion, gives no authority to pass any ordinance or resolution such as is here referred to, or to impose upon the inhabitants any portion of the expense necessary to carry it into effect.

The payment of twenty-eight extra policemen comes within the power of the city. It was the duty of the authorities, if they apprehended the assembling of a large crowd of people, and consequent disturbance, to provide in advance for the safety of the citizens in their persons and property; it is one of the primary objects of such corporations. This maybe done whether the expected gathering be a State or National convention, a mass meeting, the inauguration of a governor, the advent of the President of the United States and his cabinet, or a menagerie or circus. From whatever cause numbers of persons are congregated together, a sound discretion may be used by the municipality as to the means of preserving the public peace. The extra policemen must be paid. The city might lawfully contract for arms to place in their hands to preserve order, if the same was deemed necessary (State of New York v. The City of Buffalo, 2 Hill, 434).

It is contended that where articles have been furnished, and expenses incurred on the faith of a city ordinance or resolution, equity will not interfere to prevent payment. In all of the cases cited from the decisions of other States, the contract had been completed on the one hand, yet the other was restrained from payment, frequently by injunction. Those who deal with municipal corporations, must see that they possess the power to contract, else they may lose what they furnish, especially when it does not go to the public benefit. Besides, if the money in the present case had all been paid out, it would have been the bounden duty of the city auditors to disallow the expenditure, and to charge all of the corporation officers engaged in making it with the amount thereof. There are many cases where private corporations have received the money or property of others, and not been permitted to retain it, or withhold payment, although there was the want of authority to contract originally. Yet I have noticed but one case of a municipal corporation where the doctrine applied, and that is reported in 10 Cushing, 252, and is put on the ground of gross negligence, where equity will not interfere. There is nothing in the ánswer tending to show that the complainants knew that these guests were to be entertained at the expense of the city, or that any outlay was to be incurred. We doubt the correctness of the principle enunciated in that case, as bills for injunctions under like circumstances.have been sustained both in that State and onr own, after the services were rendered, money lent, or expenses incurred.

Simonton, for plaintiff.

Lamberton and Muenah, for defendant.

It is also said that the orators in the present case are not to be heard. If the city authorities are about to expend public money in violation of their duty, the attorney-general alone can interfere. The attorney-general in Pennsylvania may stand as the representative of the State at large, but is not required to look after the interest of each city, borough, or township. The tax-payers of those corporations are alone interested, and every rated inhabitant has the right to ask the interposition of the judicial tribunals. It was not considered necessary to use the name of the attorney-general in the case of Sharpless v. The Mayor of Philadelphia, or Moers v. The City of Heading, already cited. Nor was it introduced in the case of certain citizens of Halifax township against the school directors thereof, where they were restrained from collecting a tax to pay expenses incurred in avoiding the draft, and a perpetual injunction was there granted, although the money had all been borrowed, and faithfully expended on the object for which it was raised (1 Pearson). This is unlike the usurpation of a franchise affecting the public at large, or the neglect of a duty by which the people may be injured, as in 14 Wright, 91. None can be affected here but the tax-paying citizens, and they alone have the right to complain. We were informed on the argument that the city of Philadelphia has frequently expended money for similar objects. That is quite possible; and the judges of New York in their opinion say that until the case of Hodges v. The City of Buffalo the matter had passed sub silentio in their State. Since it was brought before the courts, it is understood differently. The solicitor of the city of Philadelphia is said to have recently advised the council they had no authority by their charter to expend the public money for any such objects. With the character of the President’s journey, the object of the city authorities in inviting him here, or the motive of those who oppose the expenditure, about all of'which a good deal has been said, this court has nothing to do. We have viewed and decided the case as a mere question of law, and must treat it as we would any other unauthorized expenditure of public money. An injunction is granted.


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      Court of Common Pleas, Dauphin County,

      January 29th, 1867.
    City of Harrisburg v. The Harrisburg Passenger Railway Company.
    A city lias general power over its streets and alleys to keep them in good order and to regulate their use for the benefit of the public. The legislature has the power to authorize the construction of a railroad over the streets of a city even against its will. In the absence of any statutory provision a railway company is bound to keep in repair that part of the streets of a city occupied by it, but the city cannot pass an ordinance compelling it to keep in order any more. If the track of a railroad company is out of order so that it cannot be crossed with safety it may be indicted.
    A city may to a certain extent control and regulate the action of other corporations within its limits by ordinance ; but it cannot prohibit a city passenger railway company, chartered by the legislature, from running its cars upon its streets for the non-compliance with the provisions of an ordi- • nance.
   By the Court.

The city of Harrisburg has an undoubted general power over the public streets, lanes, and alleys therein, to prevent all obstructions or nuisances, and to regulate the occupancy and use thereof for the benefit of the people. It is also bound by the terms of its charter to keep them in good order. The streets are public highways, cither by dedication or special grant, and stand in precisely the same situation whether the right commence in the one way or the other; in either case they are highways for the use of the people at large, over which the State has undoubted authority by right of eminent domain. They are subject to the corporate regulations for the purpose-of grading, curbing, paving, and drainage; but may be controlled by the paramount power of the legislature in their use by carriages, rail-cars, or any other means of locomotion. A city has but a qualified property in its streets, and holds them as a public trustee, not for the citizens only, but for all the inhabitants of the commonwealth. The legislature may, therefore, modify, abridge, or en-' large their use, or permit their enjoyment for other public purposes of travel, without the consent and even against the will of the municipal corporation (6 Wharton, 44, 45; 2 Watts, 23). The power of the legislature to construct a railroad over such a public street is indubitable, and the authority which the State possesses may be conferred upon others when believed to be beneficial to the people (12 Casey, 99). No corporation or individual would have the right to build such a road in a city unless empowered by an act of Assembly, but the assent of the municipality is not a prerequisite. It may be done without its consent and against its will. The legislature of the State, without the exjiressed assent of the ciiy of Harrisburg, incorporated a company, in the year 1861, to make a passenger railroad over certain streets- in the act designated. No provision is made in the statute as to who shall keep the track of the road in order. The city, by its charter, was required to keep its streets in a good state of repair, which general duty would include those named in the law, as well as others. But the act of 1861 gave the virtual use of a portion of each of those streets to the railroad company. True, the public have certain limited rights on the track of the road. It is required to be made at grade with the street, and therefore may be passed over at pleasure. Many vehicles travel upon its rails, but must give way at all times and under all circumstances to the cars of the company, which has measurably an exclusive enjoyment of so much of the public street. Who then must keep that portion of the street so occupied in repair in the absence of all statutory provision ? As we conceive, it must be done by the railroad company. From the very nature of the enjoyment, the duty devolves upon it. The legislature has taken the control of that portion of the highway from the cily authorities and given it to another corporation, to be used in a method peculiar to itself. All of the streets not so occupied must be kept in repair by the city. If the track of the railroad becomes so deep and ponderous that it cannot be crossed with safety, the company may be indicted. If injury occurs to persons or property in consequence of its neglect of duty, the company must pay the damage. The State having taken that part of the street from the city, I am of the opinion that it is in now.se responsible for any consequential injury to the public or individuals. There is ample means of redress to either by the common law. To the public by indictment, to individuals • by action. A city ordinance is, therefore, of little moment, but it may be tolerated and supported on account of the public crossings, which the city must see are kept in proper order. There is probably ample room for the people to travel on each side of the railroad; they are, therefore, provided with a suitable thoroughfare by the municipal authorities. But every crossing street must be kept in repair by the city, on the railroad track as well as elsewhere. Not because it is required to work on the track of the road, but on account of the other public thoroughfare, the cross street. As the city has a direct interest in the wellbeing of the track, and at such points may be obliged to keep it up, the council may, with propriety, take the necessary measures to compel the other corporation within the city limits to perform its duty. The burden of repairing the streets at large cannot be shifted from the municipality to the railroad, for, as we have already said, the company is bound to keep its track in repair at all places. This we conceive it may do by ordinance, as it is clearly laid down that the city is the superior corporation and may control and regulate the action of other corporations within its limits, as well as that of individuals. Such is the principle of the Broad Street Passenger Railway case, decided last June by the Supreme Court. And we have an example of such an ordinance supported in Northern Liberties v. The Gas Company (2 Jones, 318). Many other authorities might be cited to the same effect. We are, therefore, of the opinion that the councils of Harrisburg might enact an ordinance to oblige the railroad company to keep the track of its road in good order within the limits of the city.

The next question is, can this ordinance bo enforced? We think it unobjectionable for one of the reasons urged against its validity, — that it is retroactive in its operation. Although made after the track was laid, yet it only requires the company to perform its duty. It does not .punish the company for having the road track in bad condition prior to the enactment, but for acts done in future. No penalty could be imposed for past delinquencies, nor is it attempted.

There is, however, one objection to this ordinance which we deem fatal. It requires the company to keep its track in order for the distance of eighteen inches on the outside, on each side thereof, whilst the special verdict concedes that the company occupies the ground for only nine inches on each side beyond the track. The company can doubtless be required to keep that portion of the street in order which it occupies, even to the outer end of its cross-ties on which the rail rests, but no further. This ordinance obliges it to do more, and attempts to throw upon the company a portion of the duty resting by law on the city. For this excess the ordinance is void, and as the acts provided against are not under -the ordinance susceptible of division, and the order is an entirety, no part of the penalty can be enforced. It is laid down by several of the best writers that if a by-law or ordinance be entire, so that the part which is void influences the whole, the entire by-law is void (Angell & Ames on Corp. s. 358; Wilcox on Municipal Corporations, ss. 384, 385, 386, 387, 388).

There are other parts of this ordinance which are fatally ruinous if attempted to be enforced, but having no effect in the present case are harmless. It is not in the power of the city, by ordinance or by law, to stop the running of the cars on account of the nonpayment of the penalty; they are authorized to run for the convenience of the public, and cannot be prevented by municipal enactment; there is no authority to pass such a by-law or ordinance. The best writers say that corporations can only impose penalties for a breach of ordinance, which in general should be specific, but may be limited between certain sums, but cannot imprison for a violation, still less can they operate in the nature of injunction or impose a forfeiture (Ang. & Am. on Corp. s. 360; Grant on Corporations, 84, 85, 86, 370, 371).

The second section of the ordinance is entirely unnecessary, as it can neither enlarge the authority of the city or its workmen, or abridge that of the railroad company. The city authorities have all the power therein conferred without the ordinance.

Note. — There are some portions of this opinion which may need modification. It is quite probable that the city corporation could be held responsible to individuals injured by reason of the railroad track being out of repair; but if made pay damages, it would have remedy even against the railroad company. Possibly the city authorities might be indictable for a neglect of duty in suffering the street to become deep, or ponderous, or a public nuisance, but the city might put the criminal law in motion against the company. The possibility of such action or indictment will go far towards justifying the enactment of the ordinance, so as to avoid the responsibility.

For the reasons given, we render judgment in favor of the defendant on the special verdict, for the excess of duty imposed on the company, by requiring it to keep more of the street in repair than is occupied by its road.


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      Court of Common Pleas, Dauphin County,

      February 11th, 1867.
    Woodside & Storeger v. The Pennsylvania Railroad Company.
    When a party has demanded an appeal from a justice of the peace within twenty days after judgment, but was prevented from obtaining it until the time had expired by the severe illness of the magistrate, this appeal is good.
   By the Court.

The deposition of D. A. Muench sets forth all the facts of the case; his veracity is not questioned. From that, ic appears that an appeal was applied for in proper time, and was promised by the alderman. An effort was made on several subsequent occasions to perfect it, but failed from the severe indisposition of the officer, and it was regularly taken on the earliest occasion after the officer was able to attend to his duties, but that was after the twenty days had expired. Where a party has done all that lies in his power to obtain his appeal, and thus secure to himself the great constitutional right of a trial by jury, he is not to be turned out of court through the default or misfortune of the officer who tried the cause, provided the appeal is perfected at the earliest possible day. These principles are sanctioned and supported by the cases of Louderback v. Boyd (1 Ashmead, 380) and Read v. Dickinson (2 Ashmead, 224), decided by the Common Pleas of Philadelphia, and sustained in principle by the Supreme Court in Clark v. Wallace (3 Penna. Rep. 441) where the doctrine was applied to an appeal from the award of arbitrators, which failed to be entered in time, owing to the default of the prothonotary, who refused to open his office after the usual business hours to take it. The motion to quash the appeal is refused. We are of the opinion that it should be sustained under the circumstances disclosed in the deposition.

Miller and McAlarney, for plaintiff.

Snodgrass, for defendant.


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      Court of Common Pleas, Dauphin County,

      February 11th, 1867.
    Ackerman v. Smith et al.
    Unliquidated damages arising from a tort cannot be set fortli in an affidavit of defence to an action ex contractu, as they are not a fair subject of set-off. No more than six per cent, interest can be lawfully contracted for, or allowed by the court in Pennsylvania.

      Briggs, for plaintiff.

      Fleming, for defendant.

   By the Court.

The affidavit presents as a defence a claim which would be entirely admissible on a trial. It is for unliquidated damages arising out of a different transaction, and not founded on contract, but on a tort or wrong done by manufacturing an inferior quality of oil, by which the defendant’s credit was in-' jured, and their custom lost. For this injury a special action on the case might be sustained, but not arising ex contractu, it is not the subject of set-off. Even if an express contract had been set forth to do the work well, the party could not set off the remote injury arising from the loss of custom, though possibly they might be permitted to show the loss sustained by a return of the oil, or deduction from its price on account of inferiority in quality, arising from a violation of contract. That portion of the defence arising from indebtedness for boarding is admissible, so far as it goes. That is a fair subject of set-off. If the plaintiff is willing to give credit for the sum claimed for boarding, he will be entitled to a judgment for the residue of his note, except a portion claimed as interest, one per cent, of which is illegal. No more than six per cent, can lawfully be contracted for in Pennsylvania, or, if bargained for, allowed by the courts. ■ It is not in the form of a contract to pay the taxes on the loan under the act of March 27th, 1865, but simply and nakedly a bargain for usurious interest. If the plaintiff takes a judgment under this opinion, in the liquidation thereof, interest must be computed at six per cent., and a credit allowed for the boarding,