author: Mr. Justice Paxson

text:
    Mudge versus Williamsport.
    Act of March 22d 1870 provided that the auditors of Williamsport should audit, &o., the accounts of the city treasurer, and report to the city council, and should have the same authority as county auditors have. The Act of April 15th 1834, provides that the county auditors’ report should be filed in the Common Pleas and have the effect of a judgment against the real estate of the officer. Held, that there was no authority to file the city auditors’ report in the Common Pleas ; and filing the report there had not the effect of a judgment.
    March 22d 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lycoming county: Of January Term 1874, Nos. 241, 242.
    The proceedings in this case arose upon the account of Hiram Mudge, treasurer of the city of Williamsport, which was incorporated January 14th 1866.
    The 29th section of an Act passed March 22d 1870, Pamph. L. 525, appointed three persons named in it, city auditors, any two of whom should be a quorum, to audit, &c., the accounts of the city treasurer, &c., “ and make report thereof to the city council, with a statement of the balance due from or to said treasurer, &c., and once in every year cause to be published, &c., a just and true account of all the moneys which shall have accrued to the city during the, year, and also the disposition thereof, * * * and the said auditors shall have the same authorities that county auditors now have by law';” * * * the auditors named to hold their office until the next city election, when their places were to be supplied by a new election.
    By the Act of April 15th 1834, sect. 55, Pamph. L. 547, 1 Br. Purd. 301, pi. 16, it is enacted, that:—
    “ The report of the county auditors shall be filed among the records of the Court of Common Pleas of the respective counties, and, from the time of being filed, shall have the effect of a judgment against the real estate of the officer who shall thereby appear to be indebted either to the Commonwealth or to the county.”
    Section 56 of the same act gives the county or the officer, on whose accounts the report is made, an appeal from the report to the Court of Common Pleas, and the court is authorized to direct an issue to try the same.
    A majority of the auditors, on the 1st of April 1872, made a settlement of the account of Mudge, as city treasurer, by which there appeared to be in his hands a balance of $58,303, and on the 11th of May 1872, they made report of the settlement, and the city asked the Court of Common Pleas that the report might be filed amongst the records of that court, under the provisions of the 29th section of the Act of March 22d 1870, and of the 55th section of the Act of April 15th 1834. Mudge objected to filing the report, denying that there was any authority by law to file it. On the 18th of May 1872, the court granted leave to the city to file the report of the auditors under the provisions of the Acts of 1834 and 1870 above mentioned, ‘‘to have such effect as fixed and provided by said Acts of Assembly.”
    On the 12th of June 1872, the defendant appealed from the report to the Court of Common Pleas of Lycoming county.
    The court directed a feigned issue, “ wherein the city of Wil-. liamsport shall be plaintiff, and Hiram Mudge, defendant, to determine whether the amount, found by the auditors of the city of Williamsport, to be due from the said defendant, as treasurer of said city, is more or less than is legally due from said defendant to said plaintiff, and what amount, if any, is due from defendant to plaintiff, on his account as treasurer of said city. Karr, to be filed, &c., plaintiff to give twenty days’ notice before court to defendant, of items and the character thereof, with which they propose to charge defendant, in addition to the amount found to be due by the auditors, and the defendant to serve same notice on plaintiff, of items and character thereof, which he claims should be credited to him in said account, and. which were rejected by the auditors.”
    The case was tried, November 28th 1873, before Gamble, P. J.
    The plaintiff offered in evidence the report of the auditors before stated, for the purpose of showing the indebtedness of the defendant. The defendant objected to the offer, on the grounds that, in directing the issue, the court was not authorized to make any order which would dispense with making out the plaintiff’s case by competent and legal testimony; the finding of the auditors is not evidence against the defendant; and being an issue in pursuance of an appeal, the plaintiff’s case must be established de novo.

    The offer was admitted, and a bill of exceptions sealed. The report was then given in evidence.
    Much evidence was offered, and, under objection and exception, some was received and some rejected; the grounds upon which the Supreme Court decided the case render it unnecessary to refer to it further.
    Under the direction of the court the jury found for the plaintiff for |63,304.33.
    The defendant sued out two writs of error, one from the appeal and the other from the feigned issue.
    He assigned fourteen errors.
    1. Admitting in evidence the report of the auditors
    13. The order directing the filing of the report.
    15. The order directing the feigned issue.

      8. IAnn (with whom was W. II. Armstrong), for plaintiff in error,
    cited and discussed the Acts of 1834 and 1870. The decisión of county auditors is conclusive, and cannot be inquired into except as provided for on appeal: Blackmore v. Allegheny, 1 P. F. Smith 163; no such conclusiveness can be attributed by implication to city councils. Liens are not to he implied: Hepburn v. Snyder, 3 Barr 78. The court could direct only the form in which • the issue should be found, but could not make any further order in relation to it: Richter v. Penn Township, 9 Barr 79; Brown v. Commonwealth, 2 Rawle 40; Marston v. Brackett, 9 N. H. 336.

      iS. T. McQormieh and R. P. Allen (with whom were J. 0. Hill and H. 6. Parsons), for defendant in error:
    cited and discussed the same Acts of Assembly; also, Burns v. Clarion Co., 12 P. F. Smith 426.
   Mr. Justice Paxson

delivered the opinion of the Court, March 29th 1875.

The radical error underlying these entire proceedings was the filing of the report of the auditors in the Court of Common Pleas. The 29th sect, of the Act of 22d of March 1870 (Pamph. L. 535), entitled “A further Supplement to an Act entitled ‘An Act to incorporate the city of Williamsport,’ ” which is relied upon to sustain the action of the auditors, provides that they shall “ audit, settle and adjust the accounts of the city treasurer, school directors and overseers of the poor of the said city, and make report thereof to the city council,” &c. The 48th sect, of the Act of 1834, Pamph. L. 547, relating to county auditors, provides that said auditors shall make report to the Court of Common Pleas of said county, and by the 55th sect, of said Act it is further provided that the report of the auditors shall be filed among the records of the Court of Common Pleas of the respective county, and from the time of being filed shall have the effect of a judgment against the real estate of the officer who shall thereby appear to be indebted, either to .the Commonwealth or to the county.” The subsequent sections of the Act of 1834 provide for an appeal from the report of the auditor to the Court of Common Pleas; designate the time within which such appeal may be entered, and the terms upon which it shall be allowed, with authority to the court to direct a feigned issue to ascertain, by the verdict of a jury, the indebtedness of such officer. The supplement to the charter of the city of Williamsport, above cited, contains none of these provisions. It is true, the 29th sect, provides, that “the said auditors shall have the same authority that county auditors now have by law.” This is relied upon, by the defendants in error, to justify the action of the auditors in filing their report in the Court of Common Pleas. We do not regard this as the proper construction of said section. This is not a question as to the authority of the auditors, but of the effect of their report. The Act of 1870 is explicit, that such report shall he made to the city council. There is no provision in said act giving to the report, when made, the conclusive effect of a judgment. Nor is it made a lien. This could not well be otherwise, in the absence of any provision giving a right of appeal.

The case comes up upon two writs of error. One to inquire into the right of the auditors to file their report in the Court of Common Pleas; and the other to contest the right of said court to order a feigned issue upon it, and the manner and effect of the trial. We have already seen that the filing of said report in the court below was without authority of law. It follows, necessarily, that all the subsequent proceedings therein are erroneous, and must be reversed. This view of the case renders it unnecessary to notice in detail the numerous assignments of error.

The judgment is reversed upon each writ of error; and it is further ordered that the order of the Court of Common Pleas of Lycoming county, of the 18th of May 1872, authorizing and directing J. W. Hays and A. Nismeyer, a majority of the city auditors of the city of Williamsport, to file their report, as auditors of said city, in the Court of Common Pleas of said county, together with all proceedings in said causes, subsequent to the said order, be reversed and set aside.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Commonwealth versus Reiter et al.

    1. An indictment set out an Act of Assembly — of April 17th 1869 — to lay out a state road ; averred that it was laid out through Cascade township ; that all the requirements of the act had been complied with, and that the supervisors of that township had neglected to open it. Held, that the supervisors were liable on the indictment.
    2. The 4th sect, of the act provided, after the report, &c., were filed, the road should be a “public highway,” and upon notice it should be opened,
    &c., as other public roads. ' The 5th sect, required the supervisors, upon the request of a person interested, “who may offer to advance money,” to open “ any certain portion ” of the road, to take his obligation for the sum and let out the opening to the lowest bidder, and on refusal the supervisors should be liable to the penalties “ now imposed ” for refusing to open roads. Held, on demurrer, that the supervisors, on notice under the 4th section, were bound to open the road, without such advance, and expend the general funds of the township for the purpose.
    3. The obligation on the supervisors, under the 5th section, is to open “ any certain portion” of the road on request of one interested who will advance the money.
    4. A supplement was enacted, which dispensed with some requirements of the act and imposed duties not in it. ■ The indictment was for neglect of duty after the supplement under its modifications. Held, that the supplement was valid and the supervisors were liable under it.
    5. The notice need not be in writing; and its reasonableness was for the jury, having regard to the season of the year and the sufficiency of township funds.

      6. Edge w. Commonwealth, 71 Barr 275 ; Grafms v. Commonwealth, 3 Penna. R. 502: Phillips v. Commonwealth, 8 Wright 197, followed.
    March 23d 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Certiorari to the Court of Quarter Sessions of Lycoming county: No. 258, to January Term 1874.
    On the 27th of January 1873, an indictment was found against John Reiter and Peter Mulvey, supervisors of Cascade township, Lycoming county, for refusing to open a public road.
    The indictment was :—
    That, by an Act of Assembly of April 17th 1869, to authorize “ the laying out a certain road in Lycoming, Sullivan and Bradford counties,” it was enacted :—
    Sect. 1. That certain commissioners named in the bill should lay out a state road from the inclined plane of Barclay railroad in Bradford county, to Bodine’s station, on the Elmira and Williams-port railroad, in Lycoming county.
    Sect. 2 directed the mode of procedure of the commissioners, and that they should inquire whether the owners of improved land through which the road might pass suffered damage, and determine and report how much was to be paid them when the road should be opened.
    Sect. 3 directs the marking of the route of the road, so as to enable the supervisors readily to find it, &c.
    Sect. 4 directed that drafts of the road be made, and a copy of the draft, with the report of the commissioners as to damages, &c., be filed in the office of the clerk of the Quarter Sessions of each of the three counties, on or before the 1st of October then next, and from the filing of the report the road should be a public highway, “ and upon notice to the supervisors by any persons interested, the same shall be opened and repaired as other public roads are opened and repaired in said townships.”
    Sect. 5 required the supervisors of the townships through which the road may pass, upon the written request of one or more of the landowners along the route of said road, or others interested, and who may offer to advance the money necessary to open any certain portion of said road, to take his or their obligations for the proposed sum, and thereupon to advertise and let such part of the said road to the lowest and best bidder for the same. Advances thus made shall be acknowledged by the proper township officers by a note bearing interest and payable by the township at such times as may be agreed upon by and between the parties, and shall be an off-set to road taxes in the hands of the holder assessed on property in such township ; and any neglect or refusal to comply with the foregoing provisions, shall be subject to the same fines and penalties that are now imposed on supervisors for refusing or neglecting to open and repair public roads.

      That by a supplement to the act, approved the 24th of March 1873, it was enacted :—
    Sect. 1. “ That the report required to he filed in the respective counties through which the said road may pass or he laid out, by the fourth section of the act to which this is a supplement, by the commissioners locating the same, shall be deemed in law good and valid, and for all purposes a sufficient compliance with the provisions of said section, in case said report shall have attached thereto a draft of so much of said road as may be situated in or pass through the territory of the county in which said report may be filed.”
    “ That the commissioners named in said Act of Assembly * * * did view, lay out and mark plainly upon the ground, as required by said Act of Assembly, a state road from, &c., the foot of the inclined plane on the Barclay railroad, in Bradford county, * * * to Bodine’s station, on the Elmira and Williamsport railroad, in the last named county, and did make out fair and accurate drafts of the location of the said road, as required by said Acts of Assembly, and did, with their report in respect to the vacating of roads and the assessments of damages, file a copy of the drafts aforesaid in the offices of the clerks of Quarter Sessions of the respective counties through which the said road passes or is laid out, as required by the said Acts of Assembly. And did in all respects comply with and fully perform all the matters and things required to be done and performed by them by the said Acts of Assembly.
    “ That a portion of the state road, viewed and laid out as aforesaid, is located in the township of Cascade, in the county of Lycoming aforesaid. That on or about the 28th of July 1873, Michael Kelly, a person interested in the said road, gave notice to Peter Mulvey, one of the supervisors of the said township of Cascade, to open the said road in the said township, as provided in said Acts of Assembly. And that on or about the 11th of August 1873, the said Michael Kelly gave notice to John Reiter, the other supervisor of the said township of Cascade, to open the said road in said township, as provided in said Acts of Assembly. That the said Peter Mulvey and John Reiter were at the time of the service of the notice aforesaid upon them respectively, the supervisors of the said township of Cascade, and still are such supervisors.” * * *
    The indictment averred the neglect and refusal of the supervisors to open the road.
    The defendants demurred to the indictment, and as cause of demurrer set out:—
    1. That they are not subject to indictment for not opening the road mentioned in said indictment.
    2. That said indictment is defective, in that it is not therein stated that a landowner along the route of said road, or any other person interested, offered to advance to the said John Reiter and Peter Mulvey, or their predecessors in office, the money necessary to open any certain portion of said road, as required by the 5th section of said act.
    ,3. Because the supplement to an Act of the General Assembly, approved the 24th day of March, A. D. 1873, arid recited in said bill, is an attempt by the legislature to give an explanation to the Act of April 17th, a. d. 1869, different from the judicial meaning previously fixed upon said act by this court, when Patrick Flannigan and Peter Wicks, supervisors of said township, -were tried and acquitted in this court for not opening said road.
    4. Generally, because said supplement to the act recited in said indictment is unconstitutional and void.
    5. That the supervisors have not had written or other notice of .the passage of the supplement referred to in said indictment, nor reasonable notice and time to open said road before the finding of the indictment in this case, wherefore they pray judgment.
    Judgment was entered on the demurrer for the defendants.
    The Oommonwealth sued out this certiorari, and assigned for error, that the court entered judgment for the defendants on the demurrer.

      S. II. Qummin and II. 0. Parsons (with whom was Gr. 0. Hinman, District Attorney), for the Oommonwealth.
    Not opening a highway is indictable: Edge v. Commonwealth, 7 Barr 275. Till the courts fix the meaning of a doubtful law, the legislature may explain it: O’Conner v. Warner, 4 W. & S. 227. The legislature might modify or repeal the 4th section of the act, although the courts might declare that rights previously vested should not be affected; Lambertson v. Hogan, 2 Barr 23; Reiser v. Savings Fund, 3 Wright 145; Journeay v. Gibson, 6 P. F. Smith 60; Shonk v. Brown, 11 Id. 327.

      J. J. Metzger (with whom was O. H. Beighard), contrá.
    The Oommonwealth alleges that she is proceeding under the 4th section, thus making the 5th a nullity. If the sections are inconsistent the latter must prevail: Packer v. Sunbury & E. Railroad, 7 Harris 219. The indictment does not show that one or more landholders offered to advance money to open the- road according to the 5th section; this should appear in the indictment: Wharton’s Am. Cr. L., sect. 364.
   Mr. Justice Mercur

delivered the opinion of the court, May 10th 1875.

Several special matters were alleged in the demurrer. As the court filed no opinion, we are not informed on which the demurrer was sustained.

That supervisors are liable to indictment for neglecting to open a public highway duly laid out in their respective townships, is well settled: Grafins et al. v. Commonwealth, 3 Penna. R. 502; Edge v. Same, 7 Barr 275; Phillips v. Same, 8 Wright 197.

1. The indictment recites at length the Acts of Assembly of 17th April 1869, and of 24th March 1873, which give the power and direct the manner of laying out this public road. It avers a due execution of that power, according to the requirements of the statute; and that the road was duly viewed and laid out in the township of Cascade, of which the defendants are supervisors. Thereupon, the Act of 17th April declares “ it shall, to all intents and purposes, be a public highway.” It, therefore, follows that the defendants were liable to an indictment for a neglect of their duty in regard to the road.

2. This assumes that the indictment was drawn under the fifth section of the Act of 17th April. This assumption is unwarranted. It is not justified by the record. The fourth and fifth sections severally prescribe under what circumstances the supervisors shall be required to open the road. Section four declares that “ upon notice by any person interested, the same shall be opened and repaired as other public roads are opened and repaired in said township.” Wherever there are supervisors, this power is lodged exclusively in them. No other person or official was authorized to open this road. An obligation was then imposed on those supervisors to expend the general funds of the township in opening it.

Section five of the act assumes that some person or persons owning lands along the route of the road may have a special interest in the construction of certain portions of it sooner than the existing funds of the township will pay for its opening. In such a case, if the person so desiring it will advance the money necessary for that purpose, it is made the duty of the supervisors to let such portion to the lowest and best bidder. This indictment does not aver any of those special facts. It does not charge a violation of any duty imposed by that section. It is true that section is recited with the rest of the act; but the specific charge of ' dereliction of duty is under the fourth section. It is, that after notice by a person interested, the defendants have neglected and refused to employ laborers to open and clear the road, and have neglected and refused to open and clear the same.

3 and 4. It was clearly within the legislative power to so modify and change the law as to dispense with some of its former requirements. The supplement might impose a duty under certain facts which created none before.

If the defendants were indicted for their neglect and refusal before the passage of the Act of 24th March 1873, to open the road, then this point would have force; but inasmuch as it is for their neglect of duty thereafter, the principle invoked does not apply.

5. The indictment avers notice. The statute does not require it to be in writing. The reasonableness of the time intervening between the notice and the commencement of the prosecution was not a question of law to be declared by the court; but one of fact to be passed upon by the jury, having due regard to the season of the year, and the sufficiency of township funds.

The learned judge, therefore, erred in allowing and sustaining the demurrer, and the judgment must be reversed.

Judgment reversed, and judgment entered in favor of the Commonwealth, and the record is remanded for the court below to impose sentence.


text:
    Keller et al. versus Young et al.

    1. Clinton county having been erected out of two others, an act was passed May 11th 1848 directing commissioners “correctly to run and distinctly to mark the boundary line/' their report to be “ final and conclusive.'” April 28th 1857, another act was passed, appointing other commissioners, “ correctly to run and mark distinctly the boundary line :” to make out two drafts, giving the names of the warrantees along the line, and in case of any discrepancy between “ the drafts and the marks on the ground, the former shall govern and be final and conclusivenothing was done under this act; and by another, February 25th 1859, commissioners were appointed “ correctly to run and mark distinctly” the line and to lay down on their drafts the tracts through which the line may pass ; to make three drafts, one to be filed and kept as a matter of record; the report to be “ final and conclusive.” The commissioners ran and marked the line, the courses and distances, &c., on the report, and divided a tract, which on the draft was laid down as all in one county. Held, the line was to be determined by the marks on the ground.
    2. The marks on the ground placed part of a tract in Clinton county ; in the draft the whole tract was laid down as in the adjoining county, and was there taxed ; the part in Clinton was sold for taxes by the treasurer of that county: Held, that the title passed to the purchaser.
    3. Laying down the tracts on the drafts was to facilitate finding the county line ; the act gave the commissioner no power to change the line of any tract of land, nor to decide on which side of the county line any tract might lie.
    March 23d 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Clinton county: Of ■ July Term 1874, No. 251.
    This was an action of trespass, q. c. f., brought May 3d 1873, by Peter W. Keller and James David, against William B. Young, Edward Worth, R. T. Barber, Nathan McOloskey and others.
    The locus in quo was originally part of a larger tract of 415 acres in Centre county, in the warrantee name of Peter Hahn. Subsequently, Clinton county was erected out of parts of Centre and Lycoming counties. The whole tract was sold for taxes by the treasurer of Centre county to parties under whom the defendants claimed; the locus in quo was sold for taxes by the treasurer of Clinton county to parties under whom the plaintiffs claimed.
    By Act of June 21st 1839, Pamph. L. 362, certain parts of the counties of Lycoming and Centre by boundaries, as designated in the act, so as to include Logan, Lamar and Bald Eagle townships, then in Centre county, were erected into a new county, to be called Clinton, and commissioners were appointed by the act to “ ascertain and plainly mark the boundary lines ” of the new county.
    By the 7th section of the Act of April 11th 1848, Pamph. L. 505, other commissioners were appointed “ correctly to run and mark distinctly the boundary line between said counties, agreeably to the act creating Clinton county, * * * the commissioners shall make out drafts, one to be filed in the commissioners’ ofiice of each of the aforesaid counties, * * * and the report of said commissioners shall be final and conclusive.” An Act of April 28th 1857, Pamph. L. 332, recited the appointment of the last commissioners ; that they ran and marked the division line and reported a draft thereof according to law; it further recited that there was a discrepancy between the draft or report made by the commissioners and the marks on the ground of that part of the line from Beach creek to the west branch of the Susquehanna. The act then appointed other commissioners “ to run and mark distinctly the boundary line between said counties, from the west branch of the Susquehanna to Beach creek, agreeably to the act creating Clinton county, and the commissioners shall make out two drafts, giving the names of the warrantees, where known, along said division line, * * * and in case there should be any discrepancy between the drafts made by said commissioners and the marks upon the ground, the former shall govern and be final and conclusive.”
    These commissioners failed to act, and by Act of February 5th 1859, Pamph. L. 83, other commissioners were appointed, who “ shall correctly run and mark distinctly the boundary line between the counties of Centre and Clinton, and it shall be the duty of said commissioners to lay down on their drafts the tracts of land through which the lines may pass, agreeably to the Act of Assembly creating such counties and the supplements thereto; and the said commissioners, or a majority of them, shall make out three drafts, one of which shall be filed in the commissioners’ office of each of said counties, and the other be filed in the surveyor-general’s office, there to be kept as a matter of record, * * * and the report of said commissioners shall be final and conclusive.”

      On the 28th of November 1859, the commissioners reported:—

      “ We the undersigned, a majority of the commissioners named in the said act as commissioners aforesaid, do report the following courses and distances as being run and marked upon the ground as and for the division lines between the said counties. Beginning at a fallen sugar-tree corner on the bank of the Susquehanna river; * * * thence south four miles and 260 perches;'* * * then east along the division lines of certain tracts of land as represented on the diagram, east five miles; * * * then south three miles; * * * then south; * * * east two miles and 240 perches to the bank of Beech creek, and down the middle of said creek; * * * and we do further certify that, in pursuance of the requirements of the Act of Assembly, we used every means in our power to ascertain with certainty the true position of all the tracts of land through which the several courses run as laid down, and that the surveys as represented are correct in the respective counties.” * * *
    The draft placed the whole of the Hahn tract in Centre county, making the county line the eastern boundary of the tract; the courses and distances as stated in the report and draft, and those marked on the ground, ran the line through the tract, leaving the locus in quo, a triangular tract of about 173 acres, in Clinton county.
    On the trial before Mayer, P. J., September 17th 1872, the plaintiffs gave evidence of the assessment of the 173 acres, the locus in quo, in Clinton county, and its sale, for taxes of 1866— 1867, by the treasurer, on the 8th of June 1868, to A. H. Strayer and William H. Brown; the vesting of their title under the sale in plaintiffs in 1870, and the cutting of timber on the tract by the defendants.
    The defendants gave evidence of the assessment of the whole Peter Hahn tract, 415 acres, in Centre county, and its sale for taxes of 1850-1851, by the treasurer, on the 14th of June 1852, to John T. Hoover, and that this title was vested in the defendants in 1867. The court, after stating the facts, the Act of Assembly, the filing of the report, and draft by the commissioners, charged:—
    “ There is also appended to the draft the report of two of the commissioners, in which they say 1 that the surveys as represented are correct in the respective counties.’ From this draft it appears, as well as from the testimony, that the whole of the Peter Hahn tract was laid down as lying and being in Centre county, the divi-' sion line as represented on the draft being the eastern boundary of the Peter Hahn tract. It will be observed, that [as the Act of Assembly made it the official duty of the commissioners to lay down on the drafts to be filed by them in the commissioners’ offices of both counties the tracts through which the division line between the counties passed, to be there kept as a matter of record, and as the report of the said commissioners was to be final and conclusive, we are of the opinion that the draft and the report of said commissioners must be taken as determining the location of the tracts of lands through which said division line passes, for the purposes of assessment and taxation.] We think that the legislature intended that when this draft was filed and became a matter of record, and when they made the report of the commissioners final and conclusive, it was for the purpose of enabling the taxing oflicers of the two counties to ascertain the tracts of land which would be properly assessable and taxable within the territorial limits of each of the said counties, and to enable the owners of unseated lands, by an examination of the record in either county, to ascertain in which of the two counties their tracts would be properly chargeable with taxes, and where they would be required to pay the same. [This being our view of the law which is applicable to the facts of this case, we are of the opinion that the assessment of the 178 acres, part of the Peter Hahn tract in Clinton county, and its sale by the treasurer of Clinton county in June 1868, conferred no title upon the purchaser, and that the plaintiffs acquired no title under said sale, although the lines and monuments found upon the ground of the Peter Hahn survey would place these 173 acres on the Clinton county side of the division line. We therefore instruct the jury to find a verdict for the defendants.”]
    The verdict was for the defendants.
    The plaintiff sued out a writ of error and assigned for error the parts of the charge in brackets.

      W. H. Blair and S. R. Peale, for plaintiffs in error.
    Each county may tax so much land as lies within it: Patton v. Long, 18 P. F. Smith 260. The act did not authorize a survey of tracts of land, but merely required the report to give the warrantee names along the division line. The act being to mark the boundary of the counties could not- operate for another purpose: Ellis v. Hall, 7 Harris 292. They discussed the several Acts of Assembly in relation to marking the boundary between the two counties. ,

      S. B. Ball and L. Linn, for defendants in error, also discussed the Acts of Assembly.
   Mr. Justice Mercur

delivered the opinion of the court, May 10th 1875.

The facts necessary to an understanding of this ease are substantially these : The county of Clinton was created out of parts of Centre and Lycoming counties, by Act of 21st of June 1839, P. L. 362. The language of the act, designating the line between Centre and Clinton, was such as to produce uncertainty and give rise to dispute. By the Act of 11th of May 1848, Pamph. L. 504, commissioners were appointed, whose duty it was “ correctly to run, and mark distinctly, the boundary line or lines between said counties, agreeably to the Act of Assembly creating Clinton county, the report of the commissioners to be final and conclusive.” The commissioners ran and marked the line; and made report thereof, with an accompanying draft, to the commissioners of the respective counties.

It was subsequently ascertained that there was a discrepancy between the draft or report made by the commissioners and the marks upon the ground of that portion of the line running from the waters of Beech creek to the west branch of the Susquehanna river. To remedy this, the Act of 28th of April 1857, Pamph. L. 332, appointed commissioners, correctly to run and mark distinctly the boundary line between the said counties, from the west branch of the Susquehanna river to the waters of Beech creek, agreeably to the Act of Assembly creating Clinton county aforesaid ; and the commissioners shall make out two drafts, giving the names of the warrantees, who are known along said division line; * * * and in case there should be any discrepancy between the drafts made by the commissioners and the marks on the ground, the former shall govern and be final and conclusive.” These commissioners wholly failed to act, and the law became inoperative by its own limitation. Then, by the Act of 25th of February 1859, Pamph. L. 83, commissioners were appointed “ correctly to run and mark distinctly the boundary line or lines between the counties of Centre and Clinton; and it shall be the duty of said commissioners to lay down on their drafts the tracts through which the lines may pass, agreeably to the Act of Assembly creating said counties, and the supplements thereto.” They were further required “ to make out three drafts, one of which shall be filed in the commissioners’ office of each of said counties, and the other to be filed in the Surveyor-General’s oflice, and there kept as a matter of record.” The act further provided that “ the report of the commissioners shall be final and conclusive.” These commissioners, in the discharge of their duties, ran and marked the boundary line between Clinton and Centre counties, and made and filed the drafts required by the statute. In their report, they say “ the surveys, as represented, are correct in the respective counties.”

On this draft the whole of the Peter Hahn tract' is laid down as situate in the county of Centre. The boundary line between the two counties is there represented as the eastern line of the tract. The boundary line, as actually run and marked on the ground, divides the tract and leaves a part of it, in the shape of a triangle, containing one hundred and seventy-three acres, in Clinton county. The courses and distances on the draft correspond with the marks on the ground.

The plaintiffs claim title to the one hundred and seventy-three acres through a sale in Clinton county as unseated land. The defendants claim the whole tract through a like sale in Centre county.

The respective rights of the parties depend on the construction to be given to the Act of 1859, and the legal effect of the action of the commissioners under it.

It is contended, on the part of the defendants, that inasmuch as the statute made it the duty of the commissioners “to lay down on their drafts the tracts of land through which the lines may pass,” and subsequently declares that “the report of the commissioners shall be final and conclusive,” therefore the Peter Hahn tract shall, in law, be held and adjudged to lie on that side of the boundary line, which the draft shall indicate, although in fact a part of it lies on the other side.

Let us consider whether this view is correct. ■

The object of the Statute of 1859 was to ascertain the true location of the boundary line between the two counties. The marks on the ground were in conflict with the courses and distances indicated on the draft. The statute did not contemplate any line of separation different from that designated by the Act of 1889. It did not authorize any territory to be added to, or to be taken from, either of the original counties, not named in the act creating the county of Clinton. Commissioners had previously located the boundary line. Their return of survey did not agree with their work on the ground. The Act of 1859 sought to remove that discrepancy. Like former acts, it directed the commissioners “ correctly to run and mark distinctly the boundary line.” It was hoped their marks on the ground would agree with the courses and distances which they described on the draft to be returned with their report.

The language appears to have been intentionally changed from the Act of 1857, under which no action was taken. The Act of 1857 appears to assume that the two might still vary. If so, the marks on the ground should yield to the courses and distances laid down on the drafts. The Act of 1859 gives no such controlling effect to the draft; but suppose it did, what then ? It says the report shall be conclusive. Conclusive of what? Manifestly of no more than of the correctness of the courses and distances declared in their report, of which the draft was to form a part. The courses and distances represented on the draft filed by the last commissioners are not in conflict with their work on the ground. Both agree. The one has no preference over the other. It is the tract of land which is made to interfere with both, but its actual location on the ground cannot thereby be changed.

The commissioners were “ to lay down on their drafts the tracts of lands through which the lines may pass.” This was to facilitate the finding of the county line. It gave no power to change the line of any tract of land, nor to move its corners. The commissioners were not authorized to re-locate any tract of land, nor to decide on which side of the county line any tract might lie. To them was given no judicial power beyond locating the boundary line, and establishing evidence thereof on the ground and in their report.

The third section of the Act of 13th of June 1836, relating to public roads, declares the viewers appointed to lay out the same shall “ annex and return to the court a plot or draft thereof, stating the courses and distances, and noting briefly the improvements through which it may pass.” Has any one ever contended that the action of the viewers, in noting improvements, could transfer land to a side of the road different from the courses and distances on the draft, and the concurrent marks on the ground established it? In that case the object is the location of the road. In the case now under consideration, the object was the ascertainment and correct designation of the boundary line between the two counties. In the case of a road, the report becomes final and conclusive on confirmation by the court. In this case it was so made without any such confirmation. In either case, the noting of the improvements is merely directory, and cannot affect the actual location of the line, nor change, for any purpose, the land situated on either side. The learned judge, therefore, erred in instructing the jury to find a verdict for the defendants.

Judgment reversed, and a venire facias de novo awarded.


author: Pee Curiam.

text:
    Dougherty versus Thayer et al.

    1. The motion, &c., for a rule on garnishees under the 56th sect, of June 13th 1836 (Attachments), may be regulated by a standing order under the power of the court to regulate its practice.
    2. The rule on the garnishee to answer is of right, not of discretion.
    3. A general rule is a standing order to accept the motion and grant it whenever asked for in a prescribed form of practice.
    March 24th 1875.
    Before Agnew, C. J., Sharswood, Merour, Gordon,- Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of JElk county: Of January Term 1875, No. 195.
    On the 22d of May 1874, H. S. Thayer and James H. Hagerty, partners, &c., issued an attachment execution against L. E. & H. Powers, in which S. Z. Dougherty, and others who were not served, were the garnishees. On the 28th of December 1874, the plaintiffs filed interrogatories, and entered a rule on the garnishee to answer in twenty days.

      The interrogatories were filed and the rale to answer taken under the standing rules of the Court of Common Pleas of Elk county. The rules provide that in attachment executions, &c., the plaintiff may “ enter a rule of course for the garnishee to answer on or before a day named in the rule, not less than ten days after the service of the rule and copies of the interrogatories; and upon failure of the garnishee to answer within the time specified, judgment may be taken against him on motion in court as in case of default.”
    The interrogatories and rule were duly served.
    On the 28th of January 1875, the garnishee moved to strike off the interrogatories and rule to answer, because the rale was not granted by the court, as required by the Act of Assembly, June 13th 1836, sect. 56, Pamph. L. 584,1 Br. Purd. 719, pi. 17. The act provides that after filing the interrogatories the court shall “ upon motion of the plaintiffs, grant a rule upon the garnishee to appear before said court, at the time and place in such rule to be named, and there to exhibit in writing * * * answers to the interrogatories of the plaintiff.” * * *
    The rule to strike off the interrogatories and rule was refused.
    On the same day the plaintiff moved for judgment for want of answers to the interrogatories. The motion was granted and judgment entered for the plaintiff, which was afterwards liquidated by the prothonotary at $2690.66.
    The garnishee, Dougherty, took a writ of error. He assigned for error, the refusal to strike off the interrogatories and rule, and entering judgment for the plaintiff.

      S. Souther (with whom was Gr. A. Rathbun), for plaintiff in error.
    The process for collecting judgments by attaching debts is statutory, and the statute must be strictly pursued: Arna’s Appeal, 15 P. F. Smith 72; Moyer v. Kirby, 14 S. & R. 164; Act of March 21st 1806, sect. 13, 4 Sm. Laws 332; 1 Br. Purd. 58, pl. 5. The duty as to the interrogatories and rule to answer is imposed upon the court, and cannot be substituted by a standing rule: Ringwalt v. Brindle, 9 P. F. Smith 51.

      J. Gr. Sail (with whom was O. S. MeOauley), for defendants in error,
    cited Wiener v. Davis, 6 Penna. Law Jour. 567.
   Judgment was entered in the Supreme Court, March 29th 1875,

Pee Curiam.

The 56th section of the act relating to foreign attachments makes it the duty of the court, after filing interrogatories “ upon the motion of the plaintiff to grant a rule upon the garnishees to appear,” &c., to make answer. It is not said the motion shall be in open court. It is, therefore, a motion which the court may regulate by its standing order, under the power conferred in the 21st section of the Act of 16th June 1836 (Brightly 233, pi. 136), to regulate the practice of the court, and expedite business. How the motion shall be made is a matter of practice merely. The rule on the garnishee to answer is of right and not of discretion. It is therefore in the power of the court to prescribe the practice by a standing order, that on filing the praecipe for the rule in the prothonotary’s office, the rule on the garnishee shall issue as of course. A general rule is a standing order to accept the motion, and grant it whenever asked for in a prescribed form of practice. There is no inconsistency between rule and the law in this instance. Had the law said the motion should be made in open court, the case would have been different; for then the court could accept the motion only in open court, and not in the office. We perceive no error in this case.

Judgment affirmed.


author: Per Curiam.

text:
    Nichols et al. versus Haynes.
    1. Prior to the Act of April 15th 1869 (Witnesses) books of original entry were the evidence, the oath of the party was supplementary: since, the party is a competent witness and may prove his claim as a stranger would have done before.
    2. Lumping charges in a book would not stand as evidence, but the testimony of the party that the entry was composed of items known to him to have been furnished would be competent to go to the jury.
    3. The party’s knowledge that the sum was correct would make it evidence: the credibility as to it would be for the jury.
    March 24th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lycoming county: No. 286 to January Term 1874.
    On the 3d of October 1870, Aaron J. Haynes brought an action of assumpsit against A. T. Nichols and A. C. Moore, partners, &c.
    The defendants being owners of timber land in North Carolina and a saw-mill in Virginia, in the year 1869, employed the plaintiff to go to the timber tract and superintend the cutting and hauling logs, rafting them, &c.
    The plaintiff’s wages were to be $50 per month. His claim was for wages for ten months ; and also for the services of his wife as cook for the hands; the claim on this account was for nine months at $15 per month. During his superintendence the defendants furnished him money and goods, which were to be sold to the hands and used in boarding them.
    The main controversy was the plaintiff’s disbursement of the money and goods.

      The cause was tried January 5th 1874, before Gamble, P. J.
    The plaintiff testified as to his employment, &c., that he paid the men in money and goods; he did not keep any account of groceries used in the boarding-house; he kept a book in which he entered the cash and all the other goods. He had received from the defendants besides groceries $978.68; his charge for outlay and his own claim for services was $1444.25.
    On cross-examination, he said that the entries were made in his book from September 1st 1869 to July 1st 1870 ; he made them as soon as he delivered the goods ; he kept the account “mostly ” on paper and transferred it to the books, but did not keep a day-book ; they were transferred every day when he was there to do it; when he was away they were kept until he came home, by his wife and a man he had.
    The plaintiff then offered in evidence “the book of account containing the account between the plaintiff and the defendants, also containing the account between the defendants' and the men employed; said accounts having been kept by plaintiff, showing the disbursement of the money received in payment of men.”
    The defendants objected:
    1. That the book did not show the amount of credits to which the defendants are entitled for goods furnished.
    2. That the book is not evidence of the amount of cash paid out by plaintiff, cash not being the subject of a book charge.
    3. The book on its face shows that it is not a book of original entries, and the plaintiff swears that it is not his day-book.
    The book was admitted in evidence, and a bill of exceptions was sealed for the defendants.
    The defendants gave evidence in answer to the plaintiff’s case.
    The court charged: * * *
    “We have admitted all the offers of evidence in order that you might have all the information the parties could give you in reference to the cause. [We have admitted the books of original entry on both sides. Books of original entry are evidence of work and labor performed, and of goods sold and delivered. Strictly speaking, they are not evidence of anything else. They are not, strictly speaking, evidence of money paid, but sometimes they serve to assist a jury where there is other evidence bearing upon the point. When there is no other evidence of the payment of money than the evidence in the book, the book is not evidence of such payment. It serves to corroborate the others, to convince the mind when there is other evidence of payment.] * * *
    “ The principal difficulty, is in relation to the payments. Where there is a conflict of evidence it is your duty to inquire which of the parties had the best opportunity for knowing the facts of which he testifies.
    [“ There is quite a difference in the accounts stated by the parties. Where witnesses differ materially, it is proper for us to consider which of them has the best opportunity of knowing the facts of which he affirms. Looking at it in this point of view we think the plaintiff had every opportunity to know the affairs'of that concern. He has produced a book here which he says contains an account of the moneys received by him and the moneys paid out by him. You will have that book out with you, and will give it careful consideration. If you find that the book contradicts the evidence of the plaintiff, it will weaken the credibility of his testimony. If, on the other hand, you find that the book coi'roborates his statements his evidence would be the most reliable.] He had an opportunity of knowing what money he received and what he paid out. The defence does not claim that either Mr. Nichols or Mr. Moore had that information. They depended upon other sources for their information.” * * *
    The verdict was for the plaintiff for $551.54.
    The defendants took a writ of error and assigned for error the admission of plaintiff’s book in evidence and the part of the charge in brackets.

      J. J. Metzgar, for plaintiffs in error.
    Books of original entry are not evidence of cash payments: Ducoign v. Schreppel, 1 Yeates 347.

      J. 0. Mill, for defendant in error.
    The entries having been made in the regular order of business and át the earliest time, were evidence: Ingraham v. Bockius, 9 S. & R. 285. So, when the entries are made from memoranda of an assistant: Jones v. Long, 3 Watts 326 ; Kline v. Gundrum, 1 Jones 248. The book may be kept in ledger form : Thomson v. Hopper, 1 W. & S. 467; Hoover v. Gehr, 12 P. F. Smith 138. Cash charges may be received as corroborative: Rodman v. Hoops, 1 Dall. 85. Such charges are the proper subject of a book charge.
   Judgment was entered in the Supreme Court, March 29th 1875,

Per Curiam.

Questions in relation to books of entry as evidence, since the Act of 1869, making the parties witnesses, stand upon a different footing from that on which they stood before. Then, the book itself was the evidence, and the oath of the party was merely supplementary. Now, the party himself is a competent witness, and may prove his own claim as a stranger would have done before the Act of 1869. That the facts contained in the book, either of charge or discharge, of cash or goods, or whatever else is in his personal knowledge, might be proved by a stranger, no one doubts. A clerk, for instance, could prove the account, including cash items, from his own knowledge, and might use the book to refresh his memory. The party now stands by force of the act on the same plane of competency as the stranger stood upon, and therefore may make the same proof as a stranger could ; he may also refer to entries made at the time of the transaction in. corroboration of his testimony. Lumping charges would not stand as evidence in a book, but the testimony of the witness that tbe entry was composed of items known to him to be furnished, would be competent to go to the jury. His knowledge that the sum was correct, would make it evidence, leaving the credibility of the fact to be determined by the jury. As this case was put to the jury, we discover no error. Judment affirmed.


author: Mr. Justice Gordon

text:
    Phillips versus Dunkirk, Warren & Pittsburg Railroad Co.
    1. A road was laid out over plaintiff’s land, opened and used by the public. A railroad company appropriated the road and laid their track upon it, without an assessment of damages under the General Railroad Law. The company under the same law made á new road to supply-its place, and the other road was abandoned without a formal vacation. Held, that the owner of the soil of the original road might recover it in ejectment.
    2. The owner had not been divested of his right to the soil, only of the surface so far as was required for public convenience.
    3. A corporation to construct a railroad, had no greater right to occupy land than an individual, except so far as the right is conferred by statute, and it would be responsible for damages for the occupation.
    4. The authority in the General Railroad Law to a railroad company occupying a public road, to supply it by another road made at their expense, does not divest the right of the owner of the soil to damages for occupying the road by a railroad.
    5. The right of eminent domain will not be presumed to exist in a corporation unless by express legislative grant. Such presumption does not arise from the General Railroad Law, February 19th 1849.
    6. When a new road is made by a railroad company to supply the place of one occupied by the railroad, the old road is legally vacated, and the owner’s right to the occupancy of the land is vested eo instante.

      7. Philadelphia and Trenton Railroad Co.’s case, 6 Wharton 25 ; Snyder v. Penna. Railroad Co., 5 P. F. Smith 340, remarked on.
    March 24th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Warren county: No. 284 to January Term 1874.
    This was an action of ejectment, commenced August 17th 1872, by D. C. Phillips against the Dunkirk, Warren & Pittsburg Railroad Company, fpr a piece of land, about .52 perches in length and 25 feet in width, belonging to the plaintiff, and adjoining his other land, over which a public road, formerly a turnpike, had been laid and opened, and which was afterwards occupied by the defendants’ railroad. After the appropriation of the road by the defendants for their railroad, the public no longer used the road, hut the defendants, under the 13th sect, of General Railroad Law of February 19th 1849 (Pamph. L. 81, 2 Br. Purd. 1221, pi. 39), constructed another l-oad in the place of the original road, which was then abandoned, without any formal vacation through the Court of Quarter Sessions. No proceedings had been had for the assessment of damages to the plaintiff.
    On the trial, December 9th 1873, before Vincent, J., the foregoing facts appeared by the evidence.
    The following were points of the plaintiff with their answers:—
    3. The plaintiff being the owner of land bounded by a public road, which road had been abandoned by the public, another having been provided by the proper authorities, owned to the centre thereof, and -had a right to extend his line to the centre of said road, and the entry of defendant and laying his railroad track upon that portion of the road belonging to plaintiff was wrongful, without authority of law, and a trespass.
    4. The defendant has no right to the occupancy of that portion of said road belonging to plaintiff without paying him for the same, and the plaintiff is entitled to recover in this case.
    These points were answered in the negative.
    5. If the old road has been entirely and notoriously abandoned by the public authorities and the travelling public, and a new one constructed as a substitute sufficient for the accommodation of the travelling public, and universally adopted by them, the owner of the soil may resume possession and occupancy of the ground thus abandoned, and maintain his action as such owner for any invasion or interruption of his occupancy by any party or person without his permission.
    Answer: Affirmed as a general proposition, but not as against the defendant in this case.
    6. If the jury believe the old turnpike road through or along the west line of the plaintiff’s land has been abandoned and disused, the plaintiff had the right to the occupation of the ground to the centre of the road, and if the defendant occupies any portion thereof the plaintiff has the right to recover unless the defendant has secured the right of way in the mode pointed out by law.
    , Answered in the negative.
    7. There being no evidence that this road was ever laid out and opened by the public authorities, but was constructed and after-wards abandoned by the Warren and Ridgeway Turnpike Company, and adopted and continued in use by the travelling public, no formal vacation of it by the action of the court or public authorities, was necessary to authorize the owner of the soil to resume full possession, if the same had been abandoned as a public highway by the travelling public and the road commissioners.-

      Answer: We think under the evidence before us we must presume that this road was laid out according to law, and must be so treated by us here. It must be vacated according to law as a public highway, to occupy any part of it, and as this has not been done, but as it is yet occupied as a highway, or, as we have explained in our general charge, we answer this in the negative.
    The court charged also: * * *
    t! The defendants have actually constructed another road satisfactory to the township authorities in place of the part thus occupied by the railroad track. This road so supplied has never been formally vacated, but is practically and in fact abandoned as a township road, because of the impossibility of safely using it, and we treat it as vacated, in this suit. The plaintiff claims that having thus actually been vacated as a township road, his right of possession, as an adjoining owner, at once revived and extended to the centre of the old highway. This would be so, if the old road had been vacated for public use, but such is not the fact. [When it was abandoned for use as a township road it was only that it might be at once occupied as another public highway, that by law had a right so to occupy it upon complying with certain duties to the public, which it is conceded it has done. The plaintiff never recovered his right to occupy this road as against the public, or in other words, to reduce it to private possession, and not having the right of possession as against the defendant he can not recover in this case. We cannot think that the defendant was bound to provide the public with a new road at its own expense, and then pay adjoining landowners damages for the use of land the landowner had then no right to occupy, as against the public and their last easement, and which they had supplied by another equally passable.]”
    The verdict was for the defendants.
    The plaintiff sued out a writ of error. — He assigned for error the answers to his 3d, 4th, 5th, 6th and 7th points, and the parts of the charge in brackets.

      S. JP. Johnson for plaintiff in error.
    Land dedicated for use as a public highway, gives no right to use it for other purposes, and the right to the soil continues in the owner of the land over which it is laid: Lewis v. Jones, 1 Barr 336; Chess v. Manown, 3 Watts 219 ; Chambers v. Fury, 1 Yeates 167. The owner of soil bounded by a highway owns to its centre: Union Burial Soc. v. Robinson, 5 Wharton 18 ; Paul v. Carver, 12 Harris 207; Cox v. Freedly, 9 Casey 124; Baker v. Chester Gas Co., 23 P. F. Smith 116. The owner of the land adjoining a highway is entitled to compensation when it is put to a different and more dangerous use : Springfield v. Connecticut Railroad Co., 4 Cushing 63; Williams v. Natural Bridge Pass. Ry., 21 Miss. 580; Williams v. New York Central Railway, 16 N. Y. 97; Presbyterian Soc. v. Auburn & R. Railway, 3 Hill 567; Mifflin v. Railroad Co., 4 Harris 182; Ridge Turnpike v. Stoever, 6 W. & S. 378.

      R. Brown for defendants in error,
    examined and discussed the cases cited by plaintiff in error, and also the General Railroad Law of 1849; he cited also Phila. and Trenton Railroad case, 6 Wharton. 25.
   Mr. Justice Gordon

delivered the opinion of the court, May 10th 1875.

The land of the plaintiff was subservient only to the public right of way; of the right to the soil he was never divested, but only of the surface thereof, so far as was required for the public convenience. As soon as the common road was vacated, either by legal process or by abandonment, the right to such occupancy revested in the owner of the fee; Lewis v. Jones, 1 Barr 336; Chess v. Manown, 3 Watts 219; Chambers v. Fury, 1 Yeates 167.

It is certain then, that a private individual would have had no right without the consent of the owner, to have occupied the land in controversy, by permanent fixtures for his own use, even before the vacation of the highway. But this corporation, defendant, had no better right in the premises than a private person, unless such right was conferred upon it by some legislative enactment. “ If it possesses the right claimed, it must be found in the power specifically granted, or must result as a necessary implication from the express grant, and if it can neither be found in, nor implied from, the terms of the grant, it does not exist Plymouth Railroad Co. v. Colwell, 3 Wright 340, per Woodward, J.

Without such grant, though the company might haye the right of occupancy, yet it would be responsible for consequential damages resulting from an extraordinary use thereof. As where land had been appropriated by a turnpike company and damages paid, and by an act of the legislature the turnpike company was authorized to sell to a railroad company, and the latter to lay rails upon the road-bed of the former; held, that the owners of the land were entitled to recover the damages consequent upon the construction of the railroad; Mifflin v. Railroad Company, 4 Harris 182.

Such being the rule of law, whence did the defendant derive its right to appropriate the land in question ?

The learned court below held, that this right was derived from the 13th section of the Act of 1849. That by supplying the common road, under the provisions of that act, it became entitled to the use of the land formerly occupied by the public, and hence owed no duty to the owner by way of compensation. We think this construction not warranted by the terms of the statute.

The right of eminent domain’ is a very high and arbitrary one, and arises only ex necessitate rei, and will not be presumed to exist in a corporation, unless by express legislative grant. But such presumption does not arise from the Act of 1849.

That act provides only for the supplying of the public with an easement in substitution of that occupied by the railroad. It deals solely with the public rights. Without this provision such occupancy of the highway could not be had. The force of the act is exhausted in putting the company in the same position as though there had been no previous public claim to the land. The insurmountable obstacle of the dominant franchise is thus removed and the company is permitted to deal with the owner of the land as in ordinary cases.

The public rights were first to be provided for by supplying a new road; when that was done the old one was legally vacated, and the owner’s right to the occupancy of his land vested eo instante. That he might maintain ejectment against an intruder, whether a corporation or an individual, results as a necessary sequence of the above stated principles.

Our attention h as been called to the cases of the Philadelphia and Trenton Railroad Company, 6 Whart. 25, and Snyder v. The Pennsylvania Railroad Company, 5 P. F. Smith 340. But we need hardly say these are not in point. They but decide that the Commonwealth may grant to a railroad company the right to use a street or road, and that, under such grant, it cannot be made liable for consequential damages resulting to adjacent property holders from such use.

The defendant, in the ease under consideration, has failed to exhibit the grant necessary to bring it within the principles contained in the above stated cases, and hence has failed in the attempted analogy.

Judgment reversed and a venire facias de novo awarded.


text:
    Snow et al. versus Deerfield Township.
    1. A railroad was laid on a public road; the company thereby becoming liable, under Act of February 19th 1849,to construct a new road in its place.
    The township in which the road was, could not release the company from their liability to make the road.
    2. The township could not exercise the special powers of the company, in laying out the new road, the payment of damages and constructing the road.
    3. Road commissioners were authorized by statute to lay out roads and report to the Quarter Sessions, subject to their confirmation. The railroad company laid their road on a public road, and upon payment of a sum of money, the township released them from making the road ; the commissioners constructed the road which the company should have made, without having it laid out according to law : the commissioners were paid by the township treasurer for its construction. A road was afterwards duly laid out on the ground of that constructed by the commissioners and confirmed. Held, that the money paid the commissioners might be recovered from them by the township.

      March 25th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Warren county: Of January Term 1874, No. 344.
    This was a feigned issue framed September 7th 1871, on appeal entered June 5th 1871, by B. A. Snow and John McCoy, road commissioners of the township of Deerfield, from the settlement of their accounts by the township auditors, in which they refused to allow the commissioners credit for $800, expended in making a road in the township, and reported that the commissioners owed the township $800.
    In the issue, the township was the plaintiff and the commissioners defendants.
    By Act of April 9th 1844, Pamph. L. 230, road commissioners are substituted in each township of Warren county for supervisors, and were required to take charge of the roads and. bridges, lay out and alter roads when necessary at the request of the citizens, and make return of the roads so laid out to the town clerk.
    By a supplement of March 15th 1848, Pamph. L. 163, they are required to report roads laid out by them to the Court of Quarter Sessions, and be subject to its approval.
    In 1867, the Warren and Franklin railroad was constructed through Deerfield township, and so occupied and obstructed a public road in that township, as to make it necessary that another road should be made; this hy the General Railroad Law, February 19th 1849, Pamph. L. 13, was to be done by the railroad company. The company, instead of making the road themselves, on the 23d of August 1867, entered into an agreement in writing with the township of Deerfield, through W. W. Connelly and John Robinson, the predecessors of the appellants, by which, in consideration of $2750, the township released the company from all liability “for the construction, building or repair of any of the roads in the township, * * * so far as such construction, building and repairs to said roads are rendered necessary by the obstructions or occupancy or injury caused by the building of” the railroad. The $2750 were paid to the township. Nothing was done towards the construction of the road until after the appellants came into office.
    On the 8th of October 1869, the appellants, as road commissioners, entered into a written contract with G. D. Leighton to build a road to supply the place of one occupied and obstructed by the railroad. The work on the road was commenced in August 1870.
    When this contract was made and the work was done, there had been no authority obtained for making the road. On the 7th of September 1871, McCoy and Snow, as road commissioners, reported that they had laid out the road over the ground on which it had been constructed by them; on the same day the report was confirmed nisi, and the road ordered to. be opened 50 feet wide; on the 7th of December 1871, the road was confirmed absolutely.
    The cause was tried March 12th 1873, before Wetmore, P. J.
    The plaintiffs in the issue gave evidence that Snow, one of the defendants, had received from the township treasurer $800, paid him by orders dated October 1st and December 7th 1870, and drawn in his favor by Leighton for making the road.
    They gave evidence, also, for the purpose of showing that the contract was not for the benefit of Leighton, but that Snow himself was the actual contractor.
    There was other evidence to which, in' view of the opinion of the Supreme Court, it is not necessary to refer.
    The defendant submitted these points:
    2. By the contract between said railroad company and the commissioners of Deerfield township, the rights of the railroad company as to entry, location and construction of a road for travel was transferred to the acting road commissioners of Deerfield township.
    5. The road on which this money was expended having been built to supply the road taken by the railroad company, and having been since accepted by the township, regularly returned to the court, confirmed and ordered opened, such action is an adoption of the previous acts of the road commissioners, said road is now a regular public road, and the expense of making such road was a legitimate expenditure of the money of the township, for which the commissioners should receive credit.
    6. When John McCoy became a road commissioner of Deerfield township, the Leighton contract was in existence, and if the money was paid on that as the work progressed, and the work was reasonably worth the sum paid, there can be no recovery against him.
    7. If the work done on the road and bridge under the Leighton contract reasonably cost the sum of $800, it was immaterial whether it was done by Snow or Leighton, and there can be no recovery in this case.
    The court negatived the 2d, 6th and 7th points, and answered the 5th as follows:—
    “ The facts on which this point is based do not constitute a defence in this case, and the defendants are liable for'the amount of money received from the township treasurer, on the orders dated October 1st and December 7th 1870.”
    The verdict was for the plaintiff .for $911.
    The defendants took a writ of error ; they assigned the answers to their points for error.

      B. Brown, for plaintiffs in error.
    Notwithstanding the railroad company were bound to construct a road to supply the place of that occupied by the railroad, yet it was the duty of the road commissioners to see that it was done : Penna. Railroad v. Dusquesne Borough, 10 Wright 223. The township would be liable for any injury arising from obstructions to the road : Phœnixville v. Phœnix Iron Co., 9 Id. 135. The subsequent legal laying out of the road ratified the prior acts of the commissioners: Angell & Ames on Corp., sect. 304; 2 Dillon’s Mun. Corp., sect. 385, note 1; Allegheny v. McClurkan, 2 Harris 81; 1 Parsons on Contracts 139 ; 1 Hilliard on Contracts 551: McLain v. Snyder School District, 2 Jones 204 ; Hart v. Borough of Girard, 6 P. F. Smith 26; Kelsey v. National Bank, 19 Id. 426; Wright v. Burbank, 14 Id. 247; Klopp v. Witmoyer, 7 Wright 226.

      S. P. Johnson, for defendant in error.
    The commissioner’s could not alter the location of the road except by a new view: Furniss v. Furniss, 5 Casey 15; Clark v. Commonwealth, 9 Id. 112; Morrow v. Commonwealth, 12 Wright 305; even to correct a mistake in opening the road in the wrong place : McMurtrie v. Stewart, 9 Harris 323; Holden v. Cole, 1 Barr 303. A road cannot be opened till after the final confirmation : Middle Creek Road, 9 Barr 69. A township is not liable for work done without authority, however beneficial the work: Anderson v. Hamilton, 1 Casey 75. The township could not ratify an unauthorized and illegal expenditure of public road funds: Rapho v. Moore, 18 P. F. Smith 404; Grafins v. Commonwealth, 3 Penna. R. 502.
   Judgment was entered in the Supreme Court, April 1st 1875,

Per Curiam.

The agreement of the 23d of August 1867, between the township of Deerfield and The Warren & Eranldin Railroad Company, was not a mere substitution of W. W. Connelly and John Robinson as agents for the company to exercise its powers in making the road in question to supply the place of that occupied by the company. It was much more; it was an agreement by the township wholly to release the railroad company from all responsibility and liability for the construction and repair of this and all other roads made necessary by the obstructions, or occupancy, or injury caused by the building of the railroad, and to perform this duty on part of the township. Now, clearly this was a contract beyond the scope of the powers of the commissioners who made the agreement on behalf of the township. They could not release the railroad company from its'public duty and its liability to the public for neglect or non-performance of the duty. Nor could the township exercise the special powers of the company in the laying out of the new road, the payment of damages, and construction of the road. The whole contract was ultra vires, and compelled the township to assume a liability to the public which was specially imposed by law upon the railroad company. Had the road been duly laid out, and the contract been merely for the construction of the road, there might have been more plausibility in the claim of the present parties as against the township, for then a proper and reasonable performance of the work, and expenditures of the money upon it, would have been an equitable demand for compensation. But here the work was done upon a route not laid out by the railroad company under its responsibility to the public, or by any competent authority, and was done in substance and effect under a contract with one of the commissioners in his own right. This was in conflict with his duty as a commissioner. Then, when the road was afterwards laid out, it was in truth laid out to suit the expenditure of money already made. The duties of the commissioners in regard to the laying out of roads ought not to be thus made subject to their private interests. It is true the location was approved by the court, but this might really be done in ignorance of the fact that the location was designed to cover an expenditure already made by the commissioners. Upon the whole case we can discover no reasonable ground to admit the right of the commissioners to compensation. To do so would be to encourage a violation of duty, and subject the township to contracts and doings of the commissioners incompatible with its interests. The policy of the law is to secure a disinterested and faithful discharge of duty by public officers, which cannot be effected by laxity in the' requirements of the law, or by the administration of an imperfect and uncertain equity.

Judgment affirmed.


author: Chief Justice Agnew

text:
    McCue versus Commonwealth.
    1. On a trial for murder it was competent to give evidence, for the purpose of showing motive, that the prisoner and the deceased both visited the same woman, that just after the homicide the prisoner said he had warned deceased not to visit her, she would prove a curse to any man, and now it had come to pass.
    2. Unless the Commonwealth, shows “ ingredients” of murder in the first degree, no presumption arises from the killing that the offence is higher than murder in the second degree.
    3. If the evidence shows that from which it may be reasonably concluded that the murder was wilful, deliberate and premeditated, it is for the jury to pronounce the degree, and the power of the Supreme Court, under the Act of February 15th 1870, to determine whether ingredients of murder in the first degree existed, cease.
    4. If the killing was not accidental, malice and a design to kill are to be presumed from the use of a deadly weapon, the law adopting the rational belief that a man intends the usual, immediate and natural consequences of his voluntary act.
    5. Where upon a conviction of murder in the first degree the record does not show that before sentence the prisoner was asked if he had anything to say why sentence should not be pronounced, it is error; the sentence will be reversed, and the record remitted, that he may be sentenced afresh.
    6. Jewell v. Commonwealth, 10 Harx-is 94, followed.

      March 25th 1875.
    Before Agnew, C. J., Sharswood, Mbrcur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Oyer and Terminer of Lycoming county: Of January Term 1875, No. 51.
    On the 25th of November 1874, a true bill was found against Barney McCue, for the murder of John Dieter. On the 27th of November the defendant being arraigned, pleaded “Not Guilty,” and the same day the trial commenced, before Gamble, P. J., and his associates, judges of the Court of Oyer and Terminer of Lycoming county.
    Barney McCue, the defendant, and John Dieter, the deceased, occupied together a room in the basement of a building on the banks of the Susquehanna, about three miles from the borough of Muncy. The furniture of the room was a few stools, a bench, and a bunk in which McCue and Dieter slept. The bunk was in a corner of the room near a window, and about eight feet from the door; the bench stood under the window between the bunk and . the door ; the door opened on a porch about six or seven feet wide, which extended the whole length of the house.
    The Commonwealth called Charles McCarty, who testified:—
    “ On the 25th of October last I was at the house occupied by McCue and John Dieter. I was in the house before the shooting. Barney asked me to go in. John Dieter was lying in the bunk. Us three were there alone. Barney and I were sitting at the window. I thought John was asleep. Barney drew a pistol out of his pocket. I said, “Barney, do you carry a pistol?” He said he did; it stood him in hand to, and he would use it probably before I thought. Dieter jumped up and said, “ You are always talking of putting a bullet in somebody. If you think you can put one in me, come out and try it.” And John pulled his coat off as he went towards the door, and I jumped and got out first, and Barney grabbed the pistol from the window and followed. I was out first, and John ran against me and knocked me partly down. I ran across the street; Barney followed up very close. Barney walked up within four feet of John Dieter and fired. John said, “Barney, you have put one of them into me,” and for an instant they were covered with smoke. Next I saw John choking Barney, in the middle of the street. I was then near to them, and turned away and left them. Not one word more was said by John to Barney in the house than I have mentioned. I had only been in the house a few minutes. Barney just came back from Beardsley’s, and within fifteen minutes after, the shooting occurred. As John jumped from the bunk Barney grabbed his pistol. John ran out between the outer posts to the lower end of the steps. John stopped outside of the foot of the steps, toward the river. Barney came out between the inside posts, under the steps, and came towards John and shot him. John ran that far and then faced round toward Barney, with his right side rather towards Barney, as he came out from under the steps. * * * John had to pass Barney to get out. Barney was sitting with his back towards him. John dropped his coat before he got to the door. John did not stop, hut ran right out, and did not say a word. . Barney came out under the steps, within four feet of John. John was. standing about twelve feet from the door,, near the foot of the steps. Barney walked right up toward him to within four feet and then shot. John had stopped and turned round. The smoke of the pow'der prevented me from seeing them clinch. I did not see Barney raise the pistol the second time — the smoke prevented. I was within eight feet of them — a side view. When I saw them clinched, after the smoke had raised, they were facing each other, and when they fell Barney was on the broad of his back. There was not a word said by Dieter about me being there. No quarrel; no hard words. I thought John was asleep. I heard nothing between them until John said” (as before stated).
    Two other witnesses, who were sitting about twenty yards from the house, testified to about the same facts.
    There was evidence also that the pistol was afterwards picked up in the road ; it was a four-barrelled revolver ; it was cocked; had two charges in it; one barrel was discharged, and the fourth was apparently empty.
    There was evidence tending to show that McCue was intoxicated.
    In the course of the trial the Commonwealth proposed to ask Amelia Wertman, a witness, If McCue, in August preceding the trial, wanted to pay attention to her, and at the same time wanted her to run away with him, and if at the time of Dieter’s death she was not engaged to him; to be followed by evidence that McCue had said in the hearing of another witness, soon after the shooting, that he had often told the deceased that he had better leave Amelia Wertman alone, she would be a curse to any man, and now his words had come true — for the purpose of showing motive and malice.
    The prisoner objected to the offer; it was allowed by the court, and a bill of exceptions sealed.
    The witness, Amelia Wertman, answered the question in the affirmative.
    Catharine Reifsnyder testified that, about half an hour after the shooting she heard McCue say he had always told John to keep away from Amelia Wertman, that one part of his body would run away with his brains, and now it had come to pass.
    The defendant’s 5th point was:—
    “ If the jury believe from the evidence that the killing occurred while the prisoner was in the heat of passion, produced-by the threatening actions and language of deceased towards the prisoner, then, if guilty at all, he could only be convicted of manslaughter.”
    The court answered:—

      “ The fifth point affirmed, if the jury find in the evidence any such facts as it recites or assumes.”
    On the 1st of December the jury found the defendant “ Guilty of murder in first degree.”
    The record then has this entry:—
    “ And now, December 6th 1874, prisoner, Barney McCue, brought into open court, and the sentence of the court is: That you, Barney McCue, prisoner at the bar, be taken from hence to the jail of the county of Lycoming, from whence you came, and from thence to the place of execution within the walls of said jail, and that you he there hanged.” * * *
    The defendant removed the record to the Supreme Court by writ of error. He assigned a number of errors, amongst others, the admission of the evidence objected to ; the answer to his fifth point; that the Commonwealth did not show any motive for the crime ; there was no evidence which would furnish “ ingredients” of murder in the first degree ; and that the record did not show that the prisoner was asked, before sentence, if he had anything to say why sentence of death should not be pronounced against /him.

      J. J. Metzgar and H. 0. Parsons, for plaintiff in error.
    The presumption from killing with' a deadly weapon arises no higher than that it is murder of the second degree: Commonwealth v. Drum, 8 P. F. Smith 9 ; Johnson v. Commonwealth, 12 Harris 389. The prisoner should have been asked if he had anything to say why sentence of death should not be pronounced: 1 Chit. Crim. Law 700 ; 1 Archbold’s Crim. Prac. 676, note ; Dunn v. Commonwealth, 6 Barr 384; Hamilton v. Commonwealth, 4 Harris 129 ; Dougherty v. Commonwealth, 19 P. F. Smith 292.

      W. W. Part, District Attorney, for Commonwealth, defendant in error,
    cited, as to the evidence containing the “ ingredients” of murder in the first degree, Grant v. Commonwealth, 21 P. F. Smith 495. As to want of evidence of motive: Commonwealth v. Ferrigan, 8 Wright 386; Commonwealth v. Green, 1 Ashmead 299; Kilpatrick v. Commonwealth, 7 Casey 198; Cathcart v. Commonwealth, 1 Wright 112. If the prisoner be not asked if he had anything to say why sentence should not be pronounced, the verdict will not be set aside, but the record will be returned that the prisoner may be sentenced anew: Jewell v. Commonwealth, 10 Harris 94.
   Chief Justice Agnew

delivered the opinion of the court, May 10 th 1875.

We think the assignments of error in this case fail to show any ground for reversal, except of the sentence of the Court of Oyer and Terminer. It was certainly competent to show, that the prisoner and the deceased had visited the same woman, and to follow this by evidence, that immediately after the homicide, the prisoner referred to the fact that he warned the deceased to let her alone, that she would be a curse to any one, and now his words had come to pass. Jealousy is among the strongest of the human passions, and it certainly was for the jury to determine, in the absence of any other assignable motive, whether it was the cause of the prisoner’s act. The deceased and the prisoner had been apparently upon good terms, and lived together as single men. The witness, Amelia Wertman, testified, that she was engaged to the deceased, and that the prisoner had visited her, and proposed to her to run away. If nothing had been secretly rankling in his heart, the shooting under the circumstances stated was singular and scarcely to he accounted for. The evidence of intoxication at the time of the shooting is very slight, and the degree of intoxication must have been very little. Afterwards he appears to have been a good deal more so, though not excessively drunk.

There was no evidence that the deceased had used threatening language, or acts toward the prisoner. Hence, the answer of the court to the fifth point was correct. The facts were referred to the jury. The only material question is, whether the evidence in the case contained the elements, or “ ingredients” of murder in the first degree. It is certainly true, that the Commonwealth must establish the existence of these elements, otherwise no presumption arises from the killing, of an offence higher than murder in the second degree. But if the evidence may reasonably admit of the conclusion, that the murder was wilful, deliberate and premeditated, it is for the jury to pronounce upon the degree of the crime, and a court of error will not reverse. In giving an interpretation to the Act of 15th of February 1870, we have said, if there have appeared in the testimony the ingredients to constitute murder in the first degree, our power ceases. We do not sit to hear the case as upon a motion for a. new trial, to determine where the weight of evidence lies, but “ to determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist.” These being proved, the jury must determine the guilt or innocence of the prisoner: Grant v. Commonwealth, 21 P. F. Smith 495.

This leads us to inquire into the circumstances of the killing. But one witness, Charles McCarty, was present. His account of the affair is concise and clear. On Sunday, October 25th 1874, McCarty was with the prisoner, who invited him to come into the house where he and the deceased lived. On going in, Dieter, the deceased, was lying in a bunk, apparently asleep. McCue, the prisoner, and McCarty took a seat by the window and took a drink of wine. McCue gave McCarty something to apply to his sore eyes, and while he was applying it McCue was hunting for some money in his pockets, took off his vest, and laid a pistol on the window sill. McCarty said, “ Barney do you carry a pistol ?” He said he did; it stood him in hand to, and he would use it probably before I thought. Dieter jumped up and said : “ You are always talking of putting a bullet into somebody. If you think you can put one into me, come out and try it.” He then made for the door, putting off his coat as he went. McCarty jumped out before him, and Dieter ran against him outside of the door, throwing him upon his hands and knees. While they were going out McCue grabbed the pistol from the window, and followed. The witness ran across the street, and McCue followed Dieter closely, and when within four feet of him fired, the ball entering Dieter’s right side in front between the seventh and eighth ribs. Dieter said “ Barney, you have put one of them into meand approached McCue. McCue raised the pistol, and Dieter knocked it out of his hand, closed with McCue, threw him down, and choked him until McCue gave up. The pistol was picked up and found cocked. One load was discharged, two loads remained in it, and the fourth chamber seemed not to have been charged. These are the important facts bearing upon the shooting. The act was clearly unprovoked and needless. The deceased was unarmed, and had made no threats or demonstrations against McCue. If what he said when he jumped up and ran out, may be construed as idle bravado, it was neither justification nor excuse for the shooting. The pistol was loaded with three charges; it was within four feet, or six, as another witness states, of Dieter’s front side, and was discharged right at him, the ball penetrating the liver, a vital organ ; and the prisoner raised it again to discharge it. What then must we say of an act so plainly directed at the life of another, so unprovoked and so barbarous, done with a deadly weapon, under no circumstances of rage or passion, produced by any reasonable cause of provocation ? Clearly, there was sufficient time to think, deliberate and premeditate the act; as clearly the act was wilful and intentional, and the instrument used a deadly one, aimed at a vital part, where death was the probable and the natural consequence of the act. What other, intention, than an intention to kill, could be rationally inferred from the whole conduct of the prisoner ? The motive may be obscure, indeed may not be fathomed; but the act was there, plainly and fully obvious to the senses, and the effect of it clearly open to the pi-isoner’s own mind. The ingredients of the crime of murder in the first degree were all there, however inscrutable may be the causes which moved the prisoner to commit the deed. When all the elements of the crime are present, and when there can be but one rational inference from the act itself, retribution cannot be avoided, because the motive lies hidden and unrevealed in the heart of him only, who could disclose it.

It.is true the time was short and the bullet swift, and God alone knows the motive; but the time was not too short or the messenger of death too speedy, to take from the prisoner a consciousness of the true nature of his act. Of this, therefore, the jury must judge. They had ground for their verdict and their conclusion, that the prisoner intended to kill, and wilfully, and with deliberation and premeditation shot Dieter, was not irrational or plainly unfounded. The circumstances indicated “ a wicked and depraved disposition, a heart fatally bent on mischief.” The act was not more sudden than that of O’Harra, who killed Aitkins, and had less provocation than his: Commonwealth v. O’Harra, Appendix to 7 Smith’s Laws 694. Without adopting all the language of Chief Justice McKean in that case, I may use that of Judge Strong in Cathcart v. The Commonwealth, 1 Wright 112 : “ If the killing was not accidental, then malice and a design to kill were to be presumed from the use of a deadly weapon; for the law adopts the common rational belief that a man intends the usual immediate and natural consequences of his voluntary act. Human reason will not tolerate the denial that a man who intentionally, not accidentally, fires a musket ball through the body of his wife, and thus inflicts a mortal wound, has a heart fatally bent on mischief, and intends to kill.” We are of opinion, therefore, that the elements of the crime found by the jury existed in the evidence, and so far there was no error.

But there is one error for which the sentence of the court must be reversed. It does not appear from the record, that the prisoner was asked before sentence, why sentence of death should not be pronounced upon him. This is a fatal error, and affects the merits of the case. It is necessary to ask the prisoner this, that he may have an opportunity, before the penalty of death be visited upon him, to plead in bar of the sentence any matter sufficient to prevent its execution. He may have found out some good reason why the trial was not legal, or he may plead a pardon, or supervening insanity. The question and the answer that he hath nothing to say other than that which he hath before said, or this in substance, must appear in the record before the sentence can be pronounced: Prine v. The Commonwealth, 6 Harris 104; Dougherty v. Commonwealth, 19 P. F. Smith 291. In this case the question may have been asked in fact, but as it does not appear in the record, and is a matter of substance, we must treat it as not having been done. In all high felonies, and especially in cases of murder, the presiding judge should see that the record is made up properly, before the term is over.

The sentence will be reversed, in order that the case may he sent back, and an opportunity afforded to the prisoner to plead in bar of it, but this error will not reverse the trial and conviction. Jewell v. Commonwealth, 10 Harris 94, 102.

The sentence of the Court of Oyer and Terminer in this case is reversed, and it is ordered that the record be remitted to said court, with an-order of procedendo, to proceed and sentence the prisoner afresh, in due order and process of law.