author: Mr. Justice Potter,

text:
    Ross, Appellant, v. Dewey.

      Judgment — Validity of judgment — Collateral attack — Ejectment—Bes adjudicate,.

    Where a person takes a deed for land subject to the lien of a judgment, and thereafter the judgment debtor fails to have the judgment opened or stricken off in proceedings for that purpose, the grantee cannot in a subsequent action of ejectment collaterally attack the validity of the judgment as against one claiming title through a sheriff’s sale under the judgment.
    Argued April 23, 1906.
    Appeal, No. 143, Jan. T., 1905, by plaintiff, from judgment of C. P. Erie Co., May T., 1904, No. 129, on verdict for defendants in case of Rosalia A. Ross, v. Edwin C. Dewey and William H. Ross.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for land in North East Borough. Before Bouton, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows :
    The plaintiff offers in evidence, in support of her claim to the title to this land, a deed made by Eleanor B. Ross to Rosalia A. Ross, the present plaintiff, dated December 9, 1896, and recorded March 2, 1898, in deed book 123 at page 511. It is admitted upon the record that Eleanor B. Ross is the same person named upon the records of this court as Eleanor Ross. It is further admitted, for the purposes of this case, that the common source of title to the land in controversy was in Eleanor B. Ross.
    Now this, upon the face of it, uncontradicted, would make a good title in the plaintiff, but the defendants defend upon the ground that they, or one of them, Edwin C. Dewey, is the owner of the premises in dispute, having derived title thereto by virtue of a deed made by Geo. II. Barnett, sheriff of Erie county, to Dyer Loomis, acknowledged in open court, November 17, 1898, and recorded in sheriff’s deed book No. 5 at page 4, and recorded in the recorder’s office of Erie county in deed book 125 at page 447.
    That this sheriff’s deed was made and executed in pursuance of a sale made by the sheriff of these premises, by virtue of a fieri facias issued out of this court September 28, 1898, which fieri facias was issued upon a judgment of Dyer Loomis v. W. L. Ross and Eleanor Ross, entered May 20, 1895, for $731.74, which judgment was based upon an original judgment entered in this court to No. 407, November Term, 1867, entered December 26, 1867. That was revived by amicable scire facias to No. 240, May Term, 1874, on April 13, 1874. That the judgment entered May 20, 1895, was entered for an amount admitted to be due by the defendants, or one of them at least, in an affidavit of defense, filed July 8, 1890.
    The plaintiff contends that the judgment had been entered for want of an affidavit of defense, and the record so shows, on July 1, 1890, upon alias scire facias 104, May Term, 1890, issued upon judgment No. 240, May Term, 1874, and that the judgment of May 20, 1895, is not sufficient foundation for the fi. fa. issued in this case, on which the sheriff sold these lands, but rather that the judgment of May 20, 1895, was a mere liquidation of the judgment entered July 1, 1890. [While so far as the records in this ease show this judgment of May 20, 1895, may have been, and probably is, irregular, yet upon its face it purports to be, and is, the solemn judgment of this court and this lien was upon all the real estate owned by the defendants at the time of its entry, by virtue of the statutes of Pennsylvania, to wit: from May 20, 1895, and it is of no consequence, so far as the purposes of this case are concerned, whether there was a judgment entered July 1, 1890, — whether there were two judgments entered for the same cause of action, or more than two judgments.] [1] [This judgment upon its face was regular; it was entered by leave of this court, and hence became the solemn judgment of this court, and its effect was to bind all of the real estate owned by the defendants at the time of its entry. Hence it followed that it was a lien upon the premises in controversy in this case, and the sale by virtue of the fi. fa. issued upon this judgment passed to the purchaser a good title to the premises in controversy; at least a good title as against the defendants in the judgment, or any person claiming title under the defendants.] [2]
    [The present plaintiff, Rosalia A. Ross, purchased the premises in controversy December 9, 1896, from Eleanor B. Ross, and against whom the original judgment was entered, and against whom the judgment of May 20, 1895, stood, unimpeached, upon these records. She therefore purchased those premises with notice that Dyer Loomis held a judgment which was a lien upon the premises which she so purchased, for the amount of the judgment, namely, $731.74, and she having notice of the entry of this judgment cannot now, in this action, void the effect of the judgment by setting up this irregularity.] [3]
    There is no dispute as to the facts in this case.
    . As we view the case there is no question in it for the jury, except as directed by the court, and the defendants have asked us to instruct the jury “ that under all the evidence in the case the verdict must be for the defendant.” [We say to you that under the law and under the evidence in this case there is nothing left for you to do but to return a verdict in favor of the defendant for the land described in the writ, and the prothonotary will so take your verdict.] [4]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-4) above instructions, quoting them.

      J. Ross Thompson, of J. Ross Thompson $ Son, with him J. C. R. M. Sturgeon and Charles S, Burchfield, for appellant,

      May 24, 1906:
    cited: Sellers v. Burk, 47 Pa. 844; Fulton’s Estate, 51 Pa. 204; Riott v. Blackstone, 10 Pa. Superior Ct. 591; Dietrich’s App., 107 Pa. 174; Goepp v. Gartiser, 35 Pa. 130; Myers v. Boyd, 96 Pa. 427; Mackey v. Coates, 70 Pa. 350; Gray v. Coulter, 4 Pa. 188; Lewis v. Smith, 2 S. & R. 142; Com. v. Baldwin, 1 Watts, 54; Hays v. Tryon, 2 Miles, 208; Bryan v. Eaton, 4 W. N. C. 493; Kightlinger’s Appeal, 101 Pa. 510 ; Campbell v. Floyd, 153 Pa. 84; Bolton v. Johns, 5 Pa. 145; Uhler v. Hutchinson, 23 Pa. 110; Magaw v. Garrett, 25 Pa. 319.

      Frank Grunnison, with him T. A. Lamb and M. W. Shreve, for appellee,
    cited : Allison v. Rankin, 7 S. & R. 269; Milleisen v. Senseman, 4 Pa. Superior Ct. 455.
   Opinion by

Mr. Justice Potter,

On May 20, 1895, judgment was entered in the court of common pleas of Erie county against Eleanor B. Ross for the sum of $731.74. The title to the land which is here in dispute, was then in her, and the judgment therefore became a lien against the land. On December 9,1896, Eleanor B. Ross conveyed the property, for a nominal consideration, to Rosalia A. Ross, the plaintiff in this case. She took it with notice of the judgment. Shortly afterwards, oil December 21,1896, Eleanor B. Ross made an application to have the judgment which had been entered against her on May 20,1895, opened and stricken off. A rule to show cause was granted, and depositions were taken, and after hearing the rule was discharged. No appeal was taken. Execution was issued under which the land was sold, and deed delivered to the purchaser by the sheriff. By subsequent conveyance, the title became vested in the defendant, Edwin C. Dewey. In the present action of ejectment, Rosalia A. Ross, who was not a party to the original action, has attempted to question collaterally, the validity of the judgment against her grantor; she has no standing to attack the judgment in this way. There is no question as to the jurisdiction of the court over the parties, and the subject-matter, nor as to its right to adjudicate the particular matter which was decided. The judgment is admitted to have been irregular in its entry, but it cannot upon that account be attacked in a collateral procéeding. Nor can the title acquired under a sale upon a judgment which, is merely erroneous be impeached collaterally. There is no suggestion of collusion between the parties in the entry of the judgment, and the whole course of procedure shows that it was adverse, and that the validity of the judgment was vigorously attacked, and strongly contested in the common pleas court. Presumably the result of the litigation was accepted as final by the defendant in the judgment. At least no appeal from- the refusal to open the judgment was taken by her, and when the time for taking the appeal passed, the question of the validity of the judgment became res adjudícala.

The trial ]udge was entirely right in giving to the jury binding instructions in favor of the defendant. No other course was properly open to him.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Keeney, Appellant, v. Campbell.

      Negligence — Railroads—Private owners of cars — Siding.
    Where private owners of ears requested the agent of a railroad company for permission to place cars upon a siding, and the cars were placed where the agent directed them to be placed, the owners of the cars are not responsible for injuries to a brakeman resulting from other cars on the switch being ptrshed off the siding onto the main line, and colliding with a train on which the brakeman was riding.
    Argued April 30, 1906.
    Appeal, No. 148, Jan. T., 1906, by plaintiff, from order of C. P. Tioga Co., Sept. T., 1904, No. 273, refusing to take off nonsuit in case of DeLana Keeney v. Eben B. Campbell and Girard F. Hagenbuch, copartners under the firm name of Campbell & Hagenbuch.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Cameron, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing to take off nonsuit.

      W. I. Lewis, with him Nelson L. Allen, Arch. F. Jones, and R. R. Lewis, for appellant.
    The defendants were using this railroad for their own business. The most that can be said is that they were directed to use this track. It is idle to argue that it is negligence to block the main track of a public railroad. The only answer the defendants can make is that they were licensed to use the railroad track. Can this license excuse them from the negligent manner in which they used it ? We think there is a vast difference between the cases where injury necessarily results from the thing directed, and where the injury results only from the negligent manner of doing the thing directed. This is illustrated by the following cases : Clark v. Geer, 86 Fed. Repr. 447; Mills v. Orange, etc., R. R. Co., 1 McArthur, 285; Chicago, etc., Ry. Co. v. Groves, 56 Kas. 601 (44 Pac. Repr. 628) ; Webb v. Portland & K. R. R. Co., 57 Me. 117.

      I). W. Baldwin and Seth T. McCormich, with them A. R. Niles, for appellees.
    There are two reasons why there can be no recovery against the appellees in this case :
    1. Because, when the engine and cars of Campbell & Hagenbuch came upon the tracks of the B. & S. R. R. Company, there was such an absolute surrender of all control and management of that engine and cars to the B. & S. R. R. Company, acting through their yardmaster Witte, as to make the train crew of Campbell & Hagenbuch operating the engine, for the time being, the servants o£ the B. & S. Railroad Company, which company can alone be held responsible for their acts while under that company’s direction and control: Johnson v. City of Boston, 118 Mass. 114; Hasty v. Sears, 157 Mass. 128 (81 N. E. Repr. 759) ; Saunders v. The Coleridge, 72 Fed. Repr. 676; Ewan v. Lippincott, 47 N. J. L. 192; Penna. R. R. Co. v. McHugho, 3 Walker, 469 ; Atwood v. Ry. Co., 72 Fed. Repr. 447; Byrne v. R. R. Co., 61 Fed. Repr. 605; Brady v. Ry. Co., 52 C. C. A. 48; Clark v. Geer, 86 Fed. Repr. 447.
    The second reason why the appellant cannot recover is:
    Because by virtue of the provisions of the first section of the Act of April 4, 1868, P, L. 58, persons lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, of which company such persons aré not employees, are made fellow servants of the employees of such railroad company; and the right of recovery on each side by such fellow servants for the negligence of the other is confined to the fellow servant whose act or negligence causes the injury, the principle of respondeat superior having no application, either on the part of the railroad company or on the part of the patron of the road by the negligence of whose servant an employee of the railroad company may be damaged: Catawissa R. R. Co. v. Armstrong, 49 Pa. 186; Kirby v. Penna. R. R. Co., 76 Pa. 506; Penna. R. R. Co. v. Price, 96 Pa. 256.
    May 24, 1906 :
   Opinion by

Mr. Justice Elkin,

The husband of plaintiff was employed as a brakeman on the Buffalo and Susquehanna Railroad lines. He was riding at the time of the accident in the cab of the engine. On the night of the accident the appellees obtained permission from the agent of the railroad company to allow their engine and crew to place three of their cars loaded with lumber on switch number one in the yard of the railroad company. The appellees were copartners and operated a private railroad to deliver their lumber to the railroad company at Ansonia, which was the eastern terminus of said railroad. The contention of appellant is that the appellees, having secured permission to place the three cars of lumber on the switch, negligently pushed some other cars standing on said switch out on the main line of the railroad company so that the next train which passed in a few minutes collided with them and caused the injury complained of. In disposing of the question the learned court below, among other things, said: “ If these defendants should be held liable to an employee of the B. & S. Railroad Company under these circumstances, we have the strange anomaly of holding the party liable for the result of a transaction over which he had no control and in which he took no part by word or act, a transaction directed and controlled by a fellow servant of the party complaining and entirely independent of the defendants. The placing of the cars on switch number one was not an unlawful act, neither was it negligence per se. The evidence clearly shows that the defendants had no power to direct either the time or manner of doing it. When the cars were brought to Ansonia, it is evident Mr. Witte did not consider the time nor the conditions of the switch proper for the placing of cars thereon. When in his judgment the time had arrived and the conditions were proper he had had nothing to say to Mr. Campbell who was then present waiting his authority: He took the lantern out of Mr. Campbell’s hand and told the crew where to put the ears without even a suggestion from Mr. Campbell. It is very evident that Mr. Witte exercised exclusive authority in this behalf. It would be a very harsh rule to hold these defendants liable to any person for the result of placing these cars on the switch when they could have nothing to say as to how, when or where they should be placed.”

It is earnestly argued by the learned counsel for appellant that the court below erred in holding that the ears had been placed on the siding as directed by Witte. We have carefully read his testimony on direct, cross and re-direct examination for the purpose of ascertaining if this contention was well founded, but have not been convinced that any error was committed in this respect. The testimony of the witness Witte as a whole is not susceptible of any other meaning than was placed upon it by the learned court below, to wit: that the cars of lumber were placed on switch number one at the place directed by the agent of the railroad company. His testimony on cross-examination to the effect that he directed appellees to put the cars on the switch, hut not the manner in which they should be placed on the siding, does not contradict his former testimony wherein he said: “ I took the lantern out of his hand and went and told the train crew where to put their cars.”

The testimony does not show that the defendants or any of their employees had any knowledge or notice of the number of cars on the switch upon which they were directed by Witte to place the cars. The appellees were shippers who were compelled to deliver their cars -of lumber at the point indicated by the carrier. An inspection of the record shows that the appellees acted upon the suggestion of the agent of the railroad company, and placed the cars where he directed them to be placed. If as a result of that direction other cars were pushed off the siding on the main line, we do not see under what theory appellees can be held liable in damages for an alleged negligent act not within their knowledge nor under their control.

We have carefully examined the record in this case, but have not been convinced that the testimony discloses any evidence of negligence on the part of the employees of the appellees that would justify a recovery of damages for the injuries complained of.

Judgment affirmed.


author: Mr. Chief' Justice' Mitchell,

text:
    Lawrence, Appellant, v. Smith.

      Judgment — Striking off judgment — Opening judgment — Mortgage—Scire facias.

    Where the record of a scire facias sur mortgage shows a service upon the defendant, and the entry of a judgment for want of an appearance, the •court cannot by a petition filed by the executors of the defendant, averring the death of the defendant about five months prior to the entry of judgment, strike off the judgment. In such a case, as the judgment is regular upon its face, it cannot be striken off. The proper remedy is a rule to open the judgment.
    The 'distinction between striking off and opening .a judgment is clear and .absolutely settled. A motion to set aside or to strike off a judgment must be on the ground of irregularity appearing on the face of the record; a motion to open it is an appeal to the equitable power of the court to let the defendant into a defense.
    Argued Jan. 30, 1906.
    Appeal, No. 304, Jan. T., 1905, by plaintiff, from order of G. P. Montgomery Co., March T., 1905, No. 166, striking off judgment in case of William P. Lawrence v. Bernard Smith.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Scire facias sur mortgage.
    Rule to open judgment. Before We and, J.
    The writ was issued April 11, 1903, returnable May 11, 1903, and was duly served upon the defendant, who was mortgagor and real owner.
    On April 17, 1905, judgment was entered against the defendant by default for want of an appearance.
    On May 15, 1905, the executors -of the defendant presented a petition averring that defendant had died on November 30, 1904 (about five and one-half months before the entry of judgment, and a little over a year and a half after the return day of the writ which was served upon him), asking to have the judgment and all proceedings thereon stricken off, because the said Bernard Smith was dead at the time the judgment was entered, and the petitioners were not made parties to the action.
    On this petition a rule was granted to show cause why the judgment should not be opened, and later a rule to strike off.
    After argument the court made the rule to strike off absolute.

      Error assigned was the order of the court striking off the judgment.

      Neville D. Tyson, with him L. L. Smith, for appellant.
    The judgment was regular on its face and could not be stricken off: Warder v. Tainter, 4 Watts, 270; Hartman v. Ogborn, 54 Pa. 120; Hopkins v. Weigglesworth, 2 Lev. 38; Taylor v. Young, 71 Pa. 81; Broden v. Gilliland, 67 Pa. 34; Adams v. Grey, 154 Pa. 258; North v. Yorke, 174 Pa. 349; Bradshaw Electro Sanitary Odor Co. v. Bradshaw, 27 Pa. Superior Ct. 196.

      W. Henry Sutton, of W. Henry Sutton $ Son, for appellee.
    The practice in the court of common pleas in the county of Philadelphia, as well as other counties, has been to set aside a fi. fa. and strike off judgment where the defendant is dead: England v. Kelly, 3 W. N. C. 156 ; Gordon v. Bartley, 4 W. N. C. 37; Warder v. Painter, 4 Watts, 270. This practice is also approved in the Superior Court in the case of: Stevenson v. Virtue, 13 Pa. Superior Ct. 103.
    The judgment was entirely irregular, but the record upon its face was free from error and the petitioners had but one course to pursue, which was to present their petition to the court below setting forth the facts and praying that the judgment be stricken off; see also Sleeper v. Hickey, 26 Pa. Superior Ct. 59. Hurst v. Fisher, 1 W. & S. 438, shows the old practice to have been by plea of abatement: Lanning v. Pawson, 38 Pa. 480.

      May 24, 1906:
   Opinion by

Mr. Chief' Justice' Mitchell,

The only question really involved in this case is the technical one of the form of the remedy. The judgment having been entered after the death of the defendant was voidable, but the fact of the death' not appearing on the record the judgment was regular on its face and could not be struck off on rule. The law is correctly stated in the opinion of the learned judge below, but it was technically misapplied in striking off the judgment. The distinction between striking off and opening a judgment is clear and absolutely settled.' “It is true that in proceedings upon a recorded mortgage there is not much practical difference between striking off and opening a judgment. The judgment in .such cases neither creates nor continues the lien. It is nevertheless important to observe the distinction in practice in all cases. A motion to set aside or strike off a judgment must be on the ground of irregularity appearing on the face of the record, a motion to open it is an appeal to the equitable power of the court to let the defendant into a defense.” Shabswood, C. J., O’Hara v. Baum, 82 Pa. 416. And by the same judge in Breden v. Gilliland, 67 Pa. 34 “opening a judgment and striking it off are two entirely different things. No court has power to strike off a judgment regular on its face. If there is a fact which ought but did not appear of record, which would render it irregular — as for example as is alleged here, a point of law reserved at the trial — that fact should have been put upon the record by an amendment nunc pro' tunc.” By the expression that a fact which ought but did not appear of' record should be put upon it by amendment nunc pro tunc, the court meant a fact which could regularly be the subject of amendment by the case as it was at the time of judgment, a fact which though not on the record' could be regularly put there on the basis of something that was really a part of the record' though omitted. Thus in that case there was judgment on a verdict for plaintiff but the court struck it off as was' claimed, by virtue of a- point reserved at the • trial. This court held that the striking off was irregular because the omitted part of the true record was not put on by amendment before ‘the striking' off. It was not intended to suggest that a new fact, not only dehors the record, but in pais could be put on record by amendment nunc pro tunc in order to sustain the striking off of a judgment which without such fact was regular. This has always been the rule. Thus in Adams v. Grey, 154 Pa. 258, it appeared by depositions at the hearing of the rule that the defendant was a married woman at the time the judgment was entered, and the court struck it off, but this was held to be error.

The rule to strike off being for irregularity apparent on the face of the record is in the nature of a demurrer to the record: North v. Yorke, 174 Pa. 349.

There are cases where the distinction has apparently been disregarded, but they will all be found to be cases where the facts which would constitute an irregularity in the judgment were undisputed, and the form of the remedy was unimportant. But, as said in O’Hara v. Baum, “ it is nevertheless important to observe the distinction in practice in all cases.” As an illustration let it be supposed that the date of defendant’s death in the present case was disputed, no one would claim that the court had any power to strike off the judgment summarily on a rule, yet the regularity of the judgment on its face would be no greater than it is now. But whether or not all the cases can be reconciled with it, “ the rule as stated in O’Hara v. Baum, 82 Pa. 416, is the true and settled rule and will always be enforced when the attention of the court is directed to it:” Hall v. Publishing Co., 180 Pa. 561. The learned judge below after stating the general rule correctly as already said, continued “ There is no denial of the time and death of Bernard Smith, the defendant, nor can his legal representatives be accused of laches. ... As the petitioners by their subsequent petition claim to have a defense-and it appearing that the entry of judgment was erroneous, and the judgment voidable, the prayer is granted.” He was thus inadvertently led into the application of the wrong remedy.

Appellant argues that a judgment on two returns of nihil habet to writs of scire facias on mortgage is a valid judgment although the defendant was dead at the time of issue of the writs and never was in actual default. Hence it is' argued a fortiori that when the defendant was alive and actually served but refused or neglected to appear he was not only' technically but in fact in much greater default than in the other case. Perhaps logically it would not be easy to refute this proposition, though whether if the cases were res nova the result would he to hold both judgments good or both voidable is not beyond debate. But the answer is that the judgment on two nihils whether strictly logical or not rests on long continued practice under the statute: Warder v. Tainter, 4 Watts, 270 (274), and is too well settled to be now questioned.

The judgment is reversed with leave to the eourt to reinstate the rule to open.


author: Peb Curiam,

text:
    Snider, Appellant, v. Harvey.

      Contract — Wagering contract — Broker—Evidence.
    In an action by a broker against a customer to recover a balance alleged to be due on a series of stock transactions, a nonsuit is properly entered where it appears that not a single transaction was alleged to have been actually settled by delivery, and the testimony of the parties shows that there was never any intention that actual deliveries should be made.
    Argued May 7, 1906.
    May 24, 1906 :
    Appeal, No. 253, Jan. T., 1905, by plaintiff, from order of C. P. Fayette Co., Sept. T., 1904, No. 331, refusing to -strike off nonsuit in case of D. R. Snider and J. H. Campbell, under the firm name of D. R. Snider & Co., v. William L. Harvey.
    Before Mitchell, C. J., Fell, Blown, Mestbezat and Stewabt, JJ.
    Affirmed.
    Assumpsit to recover a balance of account alleged to be d.ue. Before Umbel, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      J. J. Gray, of McDonald $ Gray, with him Howard §• Patterson., for appellant.

      John M. Gore, for appellee, was not heard.
   Peb Curiam,

The transactions between these parties extending over a period of months were always in the form of settlements for differences. It is true that the accounts were rendered in the guise of sales but plaintiff’s own testimony shows that it was a cover of transparent paper. Not a single transaction was even alleged to have been actually settled by a delivery or in any other way than by an adjustment in money of the profit or loss. Had the appellant testified that it was the bona fide intention of the parties, or even of himself, that actual delivery should be made of the purchases or sales respectively, it would then have been a question for the jury notwithstanding the uniform apparent character of what was actually done. But the plaintiff never brought himself up to that point. The nearest he would come to it was that he could and would have made delivery if it had been asked. But it was manifest that he knew it would not be asked for. To the question, “ Did you ever offer to hand over to William L. Harvey a single certificate for a share of stock that he had bought on your board ? A. He never asked for it. Q. Answer that question, yes, or no? A. No. Q. Did he ask you to deliver it? A. No. Q. But the settlements were made from time to time just as the market rose and fell? A. When he closed his transactions. . . . Q. How were they settled ? A. When the transactions were closed up they were paid. Q. In goods or money? A. In cash, whatever the profits were.”

This is a fair specimen of the testimony and it is creditable to the witness that he was not willing to go beyond the truth in his statement of the facts. It is by them that the issue must be determined: Jennings v. Morris, 211 Pa. 600. The case is another illustration of the unpleasant duty sometimes put upon courts to aid a dishonest debtor to escape payment of his just obligations. Speaking for myself I do not believe in the justice, morality or wisdom of extending the principle of “ public policy ” to the protection of transactions in fact dishonest. But the law is too firmly settled for the courts to disregard it.

Judgment affirmed.


author: Per Curiam,

text:
    Smallwood, Appellant, v. Baltimore & Ohio Railroad Company.

      Negligence — Railroads—Fellow servant — News agent — Act of April 4,1868, P. L. 58..

    An agent of a news company employed to sell papers, fruit and confectionery on railroad trains, and permitted to ride thereon by virtue of a contract between the railroad company and the news company, is in the position of an employee of the railroad company within the meaning of the first section of the Act' of April 4, 1868, P. L. 58, and if he is killed by the negligence of an employee of the railroad company, no recovery can be had for his death. ■ .
    Argued May 7, 1906.
    Appeal, No. 351, Jan. T., 1905, by plaintiff, from order of C. P. Fayette Co., Dec. T., 1904, No. 249, refusing to take off nonsuit in case of Lillian M. Smallwood v. Baltimore & Ohio Railroad Co.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband.
    Reppert, P. J., filed the following opinion:
    Brent F. Smallwood was a railway news agent employed by the Union News Company on the trains of the defendant. His run Was betwéen Cumberland and Pittsburg, leaving the former city at .9 A. M., •'and returning on the Duquesne Limited due .in Cumberland-about 11 p. M. He was killed in the wreck of the Duquesne Limited at Laurel Run on the evening of December 23,19.03, and this action is brought by his widow to. recover therefor. That. he was on the train in the usual course •of his employment and engaged in its duties at the time of his Meath is, -we think,- fully' established by competent evidence. After, the plaintiff’s- testimony was closed a motion for a compulsory: nonsuit was; sustained on the' ground that the first section of the act of April 4, 1868, precluded recovery. The section reads as follows :
    “ That when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein or thereon, of which such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee. Provided, that this section shall not apply to passengers.”
    The matter now comes before us on a motion to take off the compulsory nonsuit and to grant a new trial.
    It is contended on behalf of the plaintiff that while Small-wood was lawfully engaged on the defendant’s train and employed thereon, he was a passenger and within the proviso of the statute, thereby preventing its application.
    The contract between the railroad company and the news company provides that the latter shall have “the exclusive right to sell by its agents and employees newspapers, periodicals and books, confections and fruit, cigars and tobacco (the sale of cigars and tobacco on trains being limited to smoking cars) at the stations and on all the passenger trains operated by the railroad company ” for a stated consideration and upon certain terms and conditions. The contract further provides for the free transportation of the newspapers and other articles to be sold; that “news agents and employees at the stations shall be clothed in uniform, neat and clean in person and dress, polite to passengers, and while on trains shall be subject to the discipline of the conductor, and while in stations shall be subject to the discipline of the station master or agent. Any conductor, superintendent, station master or agent shall have the right to remove any news agent or employee from the train or station if in the opinion of such officer he may have acted improperly. The news company shall discharge any nows agent on train or at a news stand who is objectionable to the railroad company. While soliciting sales agents shall not be permitted to annoy passengers but may announce in the day coaches in a low tone of voice the articles offered for sale,” etc.
    “Agents’ trunks must be placed on the train in the baggage car, or such other location as may be designated by the conductor, not less than ten minutes before the time of tbe departure of the train,” etc. The foregoing are the provisions of the contract pertinent to the case, and, as it seems to us, they must determine the legal relation of the deceased to the defendant. If the deceased was a passenger on the train it was because this contract with his employer made him one. It is not contended than he was there by virtue of any other right or privilege. The contract itself distinguishes the agents and employees of the news company from the passengers carried on the trains of the defendant by requiring that they shall be “ polite to passengers,” they “ shall not be permitted to annoy passengers,” they “shall be clothed in uniform, neat and clean in person and dress.” Regulations such as these are designed for and apply to employees, not patrons and passengers of the road.
    The subject of this contract is not the transportation of anything or anybody. It grants- the right to carry on a business on the trains and at the stations of the defendant company. The deceased was hired to look after that business on certain trains. In the exercise of his employment he was necessarily required to be' on those certain trains. He did not travel as a passenger to a destination and on the train of his choice, and free to go or stay. His traveling on the cars, like that of a brakeman or fireman, was in pursuance of his employment; it was not under a contract with the company for his transportation to a particular point or generally. The obligation of the railroad company was not to carry the deceased on its trains, but to allow his employer, through him, to sell certain goods thereon. The transportation of the deceased was an incident, not the subject, of the contract under the provisions of which he was on the defendant’s train. It was not a contract for transportation with the right and privilege attached of selling on defendant’s trains and premises. Except as implied in the right granted to sell by its agents and employees on the passenger trains of the railroad company the contract makes no reference to a provision for the transportation of the agents and employees- of the news company. Beyond an opportunity to vend his wares and a place in the baggage car, or such other location as may be designated by the conductor for the trunks or' Cases containing his stock, the news agent has no express right upon the train. He is not entitled to a seat as passengers are, and, like a brakeman or other employee, he cannot occupy one to the exclusion of- a passenger. The baggage car where he may be required to keep his stock is a recognized place of danger. The two front seats in the smoker, the location, in this case, designated by the conductor for that purpose, are but a degree less dangerous. The news agent is under the control of the conductor only to the extent of being subject to his discipline for misconduct, just as other employees on the train are. Beyond that the conductor can exercise no control over him, nor is he bound, nor can he be compelled, under the terms of the contract, to conform to the rules of the company, whether for protection or otherwise, as passengers are, and the duties of his employment are inconsistent with such control and observance. His employment is a dangerous one, involving many of the risks to which other train employees are exposed, but to which passengers are not subjected. He is not a passenger as defined in Penna. Railroad Co. v. Price, 96 Pa. 256, being “ one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier, as the payment of fare, or that which is accepted as an equivalent therefor,” nor does he bear that relation to the carrier, because, as above pointed out, the contract in this case is not a contract for transportation by virtue of which he “ travels ” upon the train. It grants the right to conduct a business on the train, and Smallwood was there engaged and employed in conducting that business.
    Much stress is laid by the plaintiff’s counsel upon the case of Rowdin v. Penna. R. R. Co., 208 Pa. 623, as sustaining their contention that a person may be employed upon a train and yet be a passenger and within the proviso of the act above quoted. The contract of the railroad company in the Rowdin case was to carry two horses from Wissahickon Heights, Pa., to Trenton, N. J., with a man in charge, the consideration for whose transportation was included in the sum paid for the carriage of the horses. It was held that the man in charge was carried under a contract as a passenger for hire, and, being within the proviso, was not prevented by the act of 1868 from recovering for injuries received in a collision. The contract with the railroad in that case was a contract for transportation and for nothing else. The duty imposed upon the railroad was simply and solely to carry Rowdin and the horses from starting point to destination, and this duty was undertaken for hire. Pie was not “ employed ” upon the train in any different sense from that in which thousands of passengers are daily engaged, as the drover, nurse, traveling companion or other attendant, and he, no more than they, so far as his employment was concerned, sustained any relation whatever to the company by 'contract or otherwise. He clearly came within the definition of a passenger and as clearly was not employed upon the train. On the other hand, Smallwood, although not an employee of the company, was engaged and employed upon the company’s 'train in the conduct of a business connected therewith by a contract between his employer and the company providing therefor, and made expressly for that purpose and for nothing else. Under the authority of Penna. Railroad Co. v. Price, supra, we are led to the conclusion that Smallwood, at the time of his death, although not an employee of the defendant, was lawfully employed in and upon the train of the defendant, and was not a passenger of the defendant. He therefore comes within the first section of the act, and not within the proviso. It is urged that Price was not a passenger and could not recover because he was carried by compulsion under the act of congress. In construing the act of 1868 the supreme court of the United States say that the statute of the United States authorizing the appointment of clerks for the purpose of assorting and distributing mail matter in railway post offices, and directing that every railway company carrying the mail shall carry on any train which may run over its road, and without extra charge therefor, all mailable matter directed to be carried thereon with the person in charge of the same, does not make the person so engaged a passenger nor deprive him of that character, nor does it give to persons so employed any right as against the railroad company which would not belong to any other person in a similar employment by others than the United States. And Mr. Justice Mestbezat, in commenting on the postal clerk cases in Rowdin v. Penna. R. R. Co., 208 Pa. 623, says: “ Neither he (the postal clerk) nor his employer, the United States government, contracts with the company for his transportion.” He is therefore not a passenger within the meaning of the act, and does not come within the proviso. He is, however, lawfully employed upon the train of the railroad company by the United States government, and the act of congress requires that this employment be recognized and provision made therefor in the contract which the government .makes with the railway company for carrying the mail, and, therefore, he comes within the language of the act.

      May 24, 1906:

      Error assigned was refusal to take off nonsuit.

      W. J. Sturgis and Albert A. Doub, with them Q-eorge D. Howell and James A. McHenry, for appellant.

      D. W. McDonald, with him Thomas II. Hudson and James R. Cray, for appellee.
   Per Curiam,

Judgment affirmed on the opinion of the court below.


author: Pee Curiam,

text:
    West v. Vernon, Appellant.

      Will — Life estate — Issue—Children.
    Testator directed as follows: “To my daughter I give, bequeath and devise the farm .... during her lifetime, and at her death I direct the same to be divided equally among her children, should she have any living, and in case she die without living issue, then .... this property shall revert again to my estate.” Held, that the daughter took a life estate only in the farm.
    Argued May 8, 1606.
    Appeal, No. 38, Jan. T., 1906, by defendant, from judgment of C. P. Fayette Co., June T., 1904, No. 272, for plaintiff on case stated in suit of James West and Morgan West v. Pierce Frazee Yernon.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    . Case stated to determine marketable title to real estate. Before Umbel, J.
    From the case stated it appeared that James West died seized of the property in question, leaving a will, the part of it material to the controversy being quoted in the opinion of tlie Supreme Court. James West and Morgan West, the plaintiffs, were the only living children and heirs of James West, the testator. After the death of the testator, Mary Frances West was married to Pierce Frazee Yernon, the defendant, to whom she devised all her estate in fee simple. She died childless. The ease stated submitted for the determination of the court the question as to whether or not Mary Frances West took only a life estate in the land under her father’s will or whether she took a fee simple which passed by her devise to her husband, Pierce Frazee Vernon.
    May 24, 1906:
    The court entered judgment for plaintiffs on case stated.

      Error assigned was the judgment of the court.

      D. M. Hertzog, for appellant.

      W. J. Johnson, with him F. P. Rush, for appellees.
   Pee Curiam,

The language of the testator was “ To my daughter Mary Frances West, I give, bequeath and devise the farm . . . . known as the Porter farm, during her lifetime, and at her death I direct the same to be divided equally among her children, should she have any living, and in case she should die without living issue, then .... this property shall revert again to my estate.” This is an express gift of a life estate to the daughter with a remainder over at her death to her children “ should she have any living ” to wit: living at the time of her death. There is no difference in meaning between the words used “ should she have any living ” and “ having issue at the time of her death ” which were held in Beckley v. Riegert, 212 Pa. 91, to carry only a life estate to the first devisee. The testator’s intent in both cases is entirely clear to provide for a definite failure of issue at the date of the death of the life tenant, and the present case is even stronger than the other insomuch as the testator uses the word “ children ” which is prima facie and presumably a word of purchase.

Judgment affirmed.


author: Mb,. Justice Fell,

text:
    Edmonds v. First National Bank of Connellsville, Appellant.

      Contract — Evidence—Technical terms — Parol evidence.

    In. an action upon a written contract where it appears that the plaintiff was to do all of what was “properly brick work” in a building operation, and it nowhere appears from the contract, or the specifications what was included by the words “properly brick work,” parol evidence is admissible to explain their meaning.
    Argued May 7, 1906.
    Appeal, No. 319, Jan. T., 1905, by defendants, from judgment of C. P. Fayette Co., Deo., T., 1903, No. 102, on verdict for plaintiff in case of C. L. Edmonds v. First National Bank of Connellsville, Owner or Reputed Owner, and Wm. Kerr’s Sons, Contractors.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Assumpsit on a building contract. Before Umbel, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for 16,034.06. Defendants appealed.

      Error assigned was in admitting parol evidence to explain the contract.

      E. C. Higlee, of Sterling, Higlee, Dunlauld § Brown, for appellants.
    The contract having been established is presumed in law to be the only evidence of the agreement between the parties : Coal Co. v. Everhart, 206 Pa. 118; Martin v. Berens, 67 Pa. 459 ; Streator v. Paxton, 201 Pa. 135; Rowand v. Finney, 96 Pa. 192 ; Bryant v. Hagerty, 87 Pa. 256; Foster v. Berg, 104 Pa. 324; Sparks v. Pittsburg Co., 159 Pa. 295; Jessop v. Ivory, 158 Pa. 71; Kaufmann v. Friday, 201 Pa. 178 ; Sutch’s Estate, 201 Pa. 805; Kreuger v. Nicola, 205 Pa. 38.

      D. M. Hertzog, for appellee.
    The court did nob err in submitting to the jury parol testimony as to the meaning of the expression “ that which is properly brick work ” as used in the contract between the parties: Carter v. Philadelphia Coal Co., 77 Pa. 286 ; Phœnix Iron Co. v. Samuel, 13 W. N. C. 50; Streppone v. Lennon, 143 N. Y. 626 (37 N. E. Repr. 638).
    May 24, 1906:
   Opinion by

Mb,. Justice Fell,

William Kerr’s Sons, one of the defendants, contracted with the First National Bank of Connellsville to erect a bank building and the plaintiff contracted with them in writing to furnish the materials for and to do all the brick work. By the terms of the contract the plaintiff was to furnish “all materials and labor required for all the brick work on the First National Bank Building — specified and shown on plans prepared by Mowbray and Uffinger, architects, under the head of mason and brick work, or under any other heading, which is properly the above work.”

Whether under the fvgreement the plaintiff was required to lay the fireclay arches, lintels and roof coping was a subject of dispute at the trial, and parol testimony was admitted to show the mutual understanding of the parties as to the meaning of the contract at the time it was signed and to show by persons familiar with the business the meaning of the words “ properly brick work ” when used in a building contract such as this. The assignments of error to be considered relate to the admission of this evidence.

If the intention of the parties could have been ascertained from the specifications, there would have been nothing to explain by parol evidence. These specifications were prepared to designate not the work to be done by the plaintiff, but all the work to be done by the principal contractor on the whole building. There was a general classification of the work but not one in which under separate heads all of a specific kind of work and only work of that kind Avas included. Brick work is found under three distinct heads, and under the head of “ brick work ’•’ in immediate connection with the laying of fireproofing is found work provided for under different heads. The obligation of the plaintiff to do all of the brick work under whatever head named Avas made clear by the agreement, but what was “ properly brick work ” was not. It was therefore competent in aid of the construction of the writing to prove the understanding of the parties at the time in respect to it and to explain the trade meaning of a technical term used in connection with the particular work which was the subject of the agreement : Brown v. Brooks, 25 Pa. 210; Carey v. Bright, 58 Pa. 70.

The judgment is affirmed.


text:
    DeHaven’s Estate.

      Statutes of limitations — Charge on land — Act of April 27, 1855, P. L. 368 —Payment.

    A voluntary deed to one of the heirs of a decedent by the other heirs charging a sum of money on the land, the interest on which is to be paid to the widow of the decedent during her life, and the principal to the heirs after death, is within the provision of the Act of April 27, 1855, P. L. 368, and if no payment, claim or demand is made by an heir for more than twenty-one years after the death of the widow, the charge as to such heir will be persumed to have been paid. In such a case the fact that the grantee before the expiration of twenty-one years executed a mortgage to a stranger in which he refers to the land as subject to dower, does not prevent the running of the statute.
    Argued May 14, 1906.
    Appeal, No. 300, Jan. T., 1904, by Jobn H. DeHaven and Levi DeHaven, from judgment of Superior Court, Oct. T., 1902, No. 235, reversing judgment of O. C. Lancaster Co., May T., 1902, No. 10, dismissing exceptions to adjudication in Estate of Azariah DeHaven.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Appeal from Superior Court. See 25 Pa. Superior Ct. 507.
    Morrison, J., filed the following opinion :
    This case is now before us on reargument, on motion of counsel for the exceptants. When the case was formerly argued and submitted no reference whatever was made by the learned counsel for the exceptants to the Act of April 27, 1855, P. L. 368, and in the opinion which we filed on December 19, 1903, the said act was not considered, nor was it contended by the counsel that the claim in dispute was in any way controlled by said act. Therefore, our decision then made was upon the question of sufficient evidence to overcome the presumption of payment arising after the lapse of twenty-one years.
    In that opinion we said, “ James DeHaven died in 1860, intestate, seized of a farm of ninety-four acres and sixty perches of land, in Caernarvon township, Lancaster county, Pennsylvania, leaving to survive him a widow, Ann DeHaven, and six children, viz.: James, Barbara (wife of George Handwork), Philip, Ann, Harriet and Azariah. On April 1, 1862, a deed for said tract of land was executed to Azariah DeHaven by his brothers and sisters, as heirs of James DeHaven, deceased, for the sum of $6,134.37, subject to the following charge, viz.: ‘ Subject and charged with the principal sum of $2,044.79 during the lifetime of Ann, the widow of said deceased, the interest of said principal sum to be paid annually on the first day of April to said widow, and after her death the said principal sum of $2,044.79 to be paid immediately to the heirs and legal representatives of said James DeHaven, deceased.’ The evidence shows that written on the above-mentioned deed are the accounts of the payment of interest on said sum for many years. The principal of this dower was never paid, and it was not contended by anybody seriously that Azariah DeHaven ever paid any part of it except the share of James, his brother, which was advanced to James, before his mother’s death, to enable him to buy a farm.
    “ The said deed of April 1, 1862, was not recorded until July 11, 1894. At which time Azariah DeHaven borrowed $1,400 and executed a mortgage on three farms, of which the above-mentioned farm was No. 1. Two of these properties were charged with dowers, and said dowers were referred to twice in the mortgage given for the $1,400, as follows : ‘ The first and second above-mentioned tracts are respectively subject to dowers, as by indentures may appear,’ and again, ‘ subject to the aforesaid dowers.’ Azariah’s deed and the said mortgage were recorded on the same day, to wit: July 11, 1894, and as soon as recorded sent back to him.
    “ The learned judge of the orphans’ court distributed one-third of this dower, which, with interest, thereon amounted in all to $906.19, to administrators to be appointed of Barbara Handwork, deceased, and it is over this distribution that the contest arises. The executors and devisees of Azariah DeHaven, deceased, except to this action of the orphans’ court, on the ground that the presumption of payment had arisen as to the portion of the dower claimed by the legal representatives of Barbara DeHaven Handwork. The length of time which had elapsed, about twenty-four years, is sufficient to raise the presumption of payment, which presumption, however, is only prima facie and is capable of being rebutted by evidence that in fact there was no payment.”
    Upon the presentation of the question then made we were of the opinion that the recognition of the so-called dowers in the mortgage above referred to in connection with the payments of interest upon said claim for a period of about fourteen years, with some other slight circumstances, was sufficient to warrant the court below in holding that the so-called dower to Barbara Handwork had not been paid, and we affirmed the decree of the court below, awarding this money, with interest, to administrators of said Barbara.
    In su pport of this we relied on Reed v. Reed, 46 Pa. 289; Eby v. Eby, 5 Pa. 485; McDowell v. McCullough, Administrator, 17 S. & R. 51; Foulk v. Brown, 2 Watts, 209 ; Levers v. Van Buskirk, 7 W. & S. 70. And on the question of the findings of fact by the court below, we cited Fague’s Estate, 19 Pa. Superior Ct. 638; Murphy’s Estate, 21 Pa. Superior Ct. 384.
    As the matter was then presented to us, we think we reached a correct conclusion, and if it were not for the new questions raised on the reargument, we would be disposed to adhere to that decision.
    In our opinion the charge created by the deed of April 1, 1862, comes squarely within the provisions of section 7 of the Act of April 27,1855, P. L. 368, viz.: “ That in all cases where no payment, claim or demand shall have been made on account of, or for any ground rent, annuity or other charge, upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises, subject to such ground rent, annuity or charge, a release or extinguishment thereof shall be presumed, and such ground rent, annuity or charge shall thereafter be irrecoverable.”
    We think the fund in question was raised from the sale of land charged within the meaning of this act, and, therefore, our question is, had the claim become irrecoverable before it was presented in the orphans’ court in this proceeding ? The charge was created by the deed of April 1, 1862, and it would become due and payable immediately on the death of Ann DeHaven, which occurred on March 2, 1876. It appears that the heirs of Barbara Handwork did not present and demand their claim to her share of this charge till May 24, 1902, about twenty-six years after it became due by the very terms of the deed creating it. A careful examination of the evidence in regard to the payment of interest upon this so-called dower charge shows that the last payment of interest was made on March 26, 1875. This was about one year prior to the death of Ann DeHaven. The only other evidence of recognition of the existence of this charge which seems to us worthy of consideration, is contained in the mortgage executed and delivered by Azariah DeHaven, in July, 1904, to Cyrus G. Huyett. In that mortgage occurs the following: “ The first and second above-mentioned tracts are respectively subject to dowers, as by indenture may appear,” and again, “ subject to the aforesaid dowers.”
    When the case was before us at the former argument, we were of opinion that this was a strong recognition, on the part of Azariah DeHaven, in July, 1894, that the so-called dowers had not been paid. We are still of the opinion that it is some evidence upon that question. But inasmuch as the mortgage was made to a stranger, so far as the Handworks are concerned, we cannot see how it furnishes sufficient evidence to relieve the claim from the effect of the act of 1855.
    Counsel for claimants urges that the statute of 1855 was not' pleaded in the court below and for that reason it cannot be interposed now. This question was clearly ruled in the appeal of Stephen Wingett, 122 Pa. 486, where, on page 494, Mr. Justice Williams says : “ Nor is it necessary to plead this act. It is a defense under the general issue, and may be set up before an auditor where no formal pleadings are provided for; and, unless the claimant makes the proof of formal demand, or part payment, or other explicit acknowledgment of the existence of the lien asserted, within the time fixed, the act extinguishes the claim. Proof of mere nonpayment is not enough. The nonpayment must be accounted for consistently with a positive assertion of the demand on the one hand, or an explicit acknowledgment on the other.”
    It is urged that the statute of limitations is not applicable in a dower case, the debt being of record, and DeHaven et ux. v. Bartholomew, 57 Pa. 126, is cited. That case was strictly dower, and it was not created by a voluntary deed like our case. Moreover, the plea was non assumpsit infra sex annos, and the question of the effect of the act of 1855 was not considered. It is also contended that the latter act does not relate to dower. That may be conceded, and yet it does not help the argument because in strictness this case was not dower, although so named by the parties. It was a charge upon the land, created by voluntary deed. The Act of June 8, 1893, P. L. 356, and the Act of May 8, 1895, P. L. 44, are also cited. But these acts are not inconsistent with the act of 1855. The act of 1895, by its very terms, covers charges under deed, will, mortgage, dower, recognizance, judgment, decree or other obligation or instrument creating charges upon land and provides a method for the release and discharge of the same after twenty-one years from the maturity of the charge. This act seems to place charges upon land created to secure dower upon the same footing as other charges by deed, etc., and by its plain terms all such charges seem to be barred after the expiration of twenty-one years from the date when the same becomes due and payable, where no payment has heen or shall have been made within said period on account of such encumbrance or charge by the owner or owners of the land.
    In regard to the claim that the act of April 27, 1855, was not raised in the court below, and, therefore, cannot be raised here, it is sufficient to say that it was contended in the court below that this claim was barred by the lapse of more than twenty-one years without any payment; acknowledgment, recognition or demand for payment having been made. And, therefore, it was the duty of the court below, and also of this court, to take notice of the acts of 1855 and 1895, which are general laws, even though the counsel did not cite said acts or refer to them either in his printed or oral argument. Notwithstanding this, we are of opinion that the exceptants did not lose their legal rights under these statutes because they were not specially pleaded.

      The record in the present case furnishes no sufficient evidence to relieve the claim from the operation of the act of 1855, because there is no evidence of such payment, declaration or acknowledgment or demand as will conclusively rebut the legal presumption of extinguishment or release after the lapse of more than twenty-one years from the date when the claim became due.
    In Clay v. McCreanor, 9 Pa. Superior Ct. 488, we held, in a careful opinion by Rice, P. J.: “ Mere admissions made to a stranger, or implied from transactions with him, may possibly be corroborative, and admissible in evidence upon that ground, where there is proof of a distinct and unequivocal acknowledgment to the ground-rent owner ; but we cannot think that every such loose admission is, of itself, sufficient to make the question of extinguishment or release a question of fact for the jury, if all the other facts essential to bar action exist in the case. The declaration or acknowledgment which the legislature contemplated is one, which, if satisfactorily proved, conclusively, and as a matter of law, rebuts the presumption of extinguishment or release. If the recital in the deed of August 20, 1878, falls short of being such an acknowledgment or declaration, then, by the express stipulation of the case stated, judgment was properly entered for the defendant. It should be noticed that this clause of the deed added nothing whatever to, and took nothing from, the rights or remedies of the ground-rent owner. It was not a declaration or acknowledgment made to him or his agent, or which was intended to inure or did inure by operation of law to his benefit.”
    It is true the above was a ground-rent case, but the acknowledgment and declaration of the existence of the ground rent was much like the recitation in the mortgage in our case, and this was the only recognition relied upon to rebut the presumption of extinguishment or release on account of no claim or demand having been made within the period of twenty-one years. Therefore, we regard the principle decided applicable to the present case.
    If we are correct in holding the claim in question to be a charge upon land,, within the meaning of the acts of 1855 and 1895, then it is quite clear there is no more to rebut the presumption of extinguishment or release than was agreed upon in that case. To apply a different doctrine to the present case would require the overruling of that case, and we discover no sufficient ground for doubting its soundness. We are, therefore, of opinion that there was error in not holding the so-called dower charge extinguished and released by the lapse of time. This conclusion requires the sustaining of the 4th and 14th exceptions and the decree of the court below is now reversed, and it is ordered that the fund in question be awarded to the parties lawfully entitled thereto, excluding the claim of the appellee under the so-called dower charge. And it is further ordered that the legal costs in this appeal be paid out of the fund for distribution.
    May 24, 1906:

      Frror assigned was the judgment of the Superior Court.

      W 11. Roland, with him W. W. Franklin, for appellants.

      B. F. Davis, for appellees.
   Per Curiam,

The decree is affirmed on the opinion of the Superior Court.


text:
    Kannenberg, Appellant, v. Conestoga Traction Company.

      Negligence — Street railways — Crossing—“Stop, look and listen” — Car and wagon — Nonsuit.
    In an action against a street railway company to recover damages for personal injuries it appeared that the plaintiff was riding in a closed laundry wagon going in the direction in which the cars ran, and the only precaution he took before crossing the tracks was to stop and look back when twenty-five or thirty feet from the crossing. He then drove on slowly and without looking again turned across the tracks, and was struck by a car which he could have seen if he had looked again before turning or when at the edge of the tracks. Held, that a nonsuit was properly entered.
    Argued May 14, 1906.
    Appeal, No. 304, Jan. T., 1904, by plaintiff, from order of C. P. Lancaster Co., April T., 1902, No. 2, refusing to take off nonsuit in ease of Charles A. Kannenberg v. The Conestoga Traction Company.
    May 24, 1906:
    Before Fell, Brown, Mestrbzat, Potter and Elkin, JJ.
    Affirmed.
    Trespass, to recover damages for personal injuries. Before Landis, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing to take off nonsuit.

      B. F. Davis, for appellant.

      W. U. Sensei, for appellee.
   Per Curiam,

The plaintiff was riding in a closed laundry wagon going in the direction in which the cars ran, and the only precaution he took before crossing the tracks was to stop and look back when twenty-five or thirty feet from the crossing. He then drove on slowly and without looking again turned across the tracks, and was struck by a car which he could have seen if he had looked again before turning or when at the edge of the tracks. He disregarded a duty established by an unbroken line of decisions on the subject extending from Ehrisman v. East Harrisburg City Pass. Railway Co., 150 Pa. 180, to Moser v. Union Traction Co., 205 Pa. 481.

The judgment is affirmed.


author: Per Cur ram,

text:
    Commonwealth v. Cover, Appellant.

      Taxation — Mercantile tax — Manufacturers—Tanners—Exemption.
    Where a tanner concedes that he manufactures leather in Virginia, and sells it in a store in Pennsylvania, the commonwealth has a prima facie right to the mercantile tax upon the whole volume of the business, and the burden of showing that any portion of the sales is exempt, rests upon the tanner. The fact that the leather is cut in the store into various sizes and pieces, but not manufactured into any complete article, does not exempt from taxation the leather thus treated, on the ground that it was manufactured into articles for sale.

      Argued May 1, 1906.
    May 24, 1906 :
    Appeal, No. 7, Jan. T., 1906, by defendants, from judgment of Superior Ct., Oct. T., 1905, No. 143, reversing judgment of C. P. No. 3, Phila. Co., March T., 1905, No. 3,703, on verdict for plaintiff in case of Commonwealth v. Thomas Cover, Loring A. Cover and Henry E. Drayton, trading as Cover & Drayton.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court.
    For the facts see opinion of Supreme Court and 29 Pa. Superior Ct. 409.

      Error assigned was the judgment of the Superior Court.

      William Drayton, for appellants.

      Ira J. Williams and Hampton L. Qarson, Attorney General, with them Franklin L. Lyle, for appellee.
   Per Cur ram,

The appellants manufacture leather in the states of Virginia and West Virginia, which is shipped to their place of business in the city of Philadelphia for sale to their customers. They do not question their liability as wholesale dealers to pay a mercantile tax on the uncut sides which they sell, but, as to those which they cut up at their business to satisfy the requirements of their customers, they claim to be manufacturers.

What the appellants sell at their place of business here is leather. The sides, when uncut, are admitted to be leather, manufactured at distant tanneries and shipped here to be sold by the appellants as leather. By no process of reasoning can the mere cutting up of the sides into pieces, to suit the requirements of the customers of the dealers, transform them into anything else than what they were before. The customers of the appellants want leather, and whether they get cut or uncut sides, they get nothing but leather, unmanufactured into anything else from the time it left the tannery. The dealers in it cut it up into convenient pieces to facilitate its sale to their customers, who buy it, not as something having been manufactured from leather, but for the purpose of having something manufactured from it as leather. Nothing need be added to the view of the majority of the Supérior Court, as expressed by Judge Morrison, in which we all concur.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    Augustine, Appellant, v. Wolf.

      Judgment — Opening judgment — Discretion of court.

    On an application to open a judgment it is proper for the court below to anc* ^he apéllate court will not reverse for the exercise of a sound discretion. weigh the evidence and to decide according to the preponderance thereof,
    The court to which an application is made to open a judgment may judge the weight of the evidence and the credibility of the witnesses, and is not bound, even where there is a conflict of testimony, to send the case to a jury. The whole proceeding resolves itself into the exercise of a sound judicial discretion.
    Submitted May 7, 1906.
    Appeals, Nos. 29, 30, 31, 32 and 33, Jan. T., 1906, by plaintiff, from judgment of Superior Court April T., 1905, Nos. 187, 188, 189, 190, 191 and 192, reversing judgment of C. P. Fayette Co., June T., 1894, Nos. 4, 5, 6, 7, Augustine, for use of Daniel Augustine, for use of Jasper Au-9 and 11, discharging rule to open judgments in case of Jasper gustine v. Joseph Wolf.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Reversed.
    Appeal from the Superior Court.
    The facts appear by the opinion of the Supreme Court and by the report of the case in 29 Pa. Superior Ct. 336.

      Error assigned was the judgment of the Superior Court.
    JV. Ewing and A. D. Boyd, for appellant.

      Lindsey $ Johnson, L. K. S. Gf. Porter and Robinson <f> Mc-Kean, for appellee.

      May 24, 1906:
   Opinion by

Mr. Justice Brown,

Joseph Wolf, the appellee, appealed to the Superior Court from the refusal of the court of common pleas of Fayette county to open six judgments that had been entered against him by Jasper Augustine, the appellant. By a stipulation filed the six appeals were heard together. The Superior Court affirmed the order as to one of the judgments and reversed as to the other five, reinstating the rules to open and making them absolute: Augustine v. Wolf, 29 Pa. Superior Ct. 336.

The applications to open the judgments were disposed of by the court below on the petitions of the defendant, the answers of the plaintiff and depositions taken by each side. On the appeal to the Superior Court no exception was taken by Wolf to the material facts stated by the court below in the opinion discharging the rules; and there is no complaint of them here. The six judgments were entered against the defendant on March 6,1894. About the same time and to the same term ten other judgments were entered against him in favor of the same plaintiff. On January 11, 1895, Wolf filed a bill in equity in the court of common pleas of Fayette county, alleging that Augustine had been guilty of fraud upon him in transactions covering a period of many months, and the said ten judgments were selected and specifically set forth as those against which he had a defense. None of the six judgments under consideration were complained of in the bill, though they had been entered more than ten months before it was filed. The complaint of Wolf as to the judgments entered against him by Augustine was confined to the other ten. In 1899 a writ of scire facias was issued upon each of the six judgments before us. To each writ an affidavit of defense was filed, in which Wolf alleged that the judgment was involved in the equity proceedings, which were still pending and undecided. No other defense was set up. About two months after the decree in the equity court was affirmed by this court, Wolf filed supplemental affidavits of defense in the suits brought to revive the judgments, in which he alleged that he had intended to include them in the equity proceedings, and was advised and believed that they were covered by the general finding of the referee, that he did not know whether he had executed the notes or not and could not say until he saw them. On February 25,1902, almost three years after the proceedings to revive the judgment had been instituted and more than eighteen months after the final decree in the equity proceedings had been entered, the petitions were presented to the court below, asking that the judgments be opened. In these petitions Wolf again declared that he did not know whether he had signed the notes upon which the judgments were entered, and that, if he did sign them, they were without consideration and had been obtained by fraud. To these petitions full, complete and responsive answers were filed. Testimony was taken on behalf of the petitioner and respondent, and although after former inspection of the notes the petitioner had sworn he could not say whether or not he had signed them, in his testimony taken in support of his rules he denied the signatures to all but one and called four experts who agreed with him. Augustine swore that he had seen Wolf sign each note and explained in detail the consideration entering into each. He also called four expert witnesses in handwriting, who, in most positive terms, pronounced genuine the signatures to the five notes attacked as forgeries. With these facts found by the court below and unquestioned by Wolf on his appeals to the Superior Court, the orders refusing to open the judgments entered on notes alleged to be forgeries were reversed. The only question before the Superior Court was whether the court below had rightly exercised its discretion, and this is the only question before us, to be now determined as if Wolf’s appeals had been here in the first instance.

In the opinion of the Superior Court it is stated that “ the defendant should be allowed a trial where he has shown by á preponderance of evidence sufficient to sustain a verdict in his favor, that he has a just defense.” No such preponderance in favor of the defendant appears in the present case, and his counsel did not attempt, either before us or in the Superior Court, to call attention to it. On the contrary, as to the charge of forgery, upon which allegation the five judgments were directed to be opened by the Superior Court, the court below said: “ The allegation of forgery, if promptly made and supported, would be all sufficient to warrant the opening of these judgments. In the present case, however, it is scarcely hinted at until the time came for taking testimony in support of the rules to show cause. The petitioner, Wolf, after an inspection of the notes, stated under oath that he did not know whether or not he signed them. Afterwards he swears that five of the signatures are forgeries, and called four experts to support his statement. Augustine denied that the signatures were forged, swore that he saw Wolf sign each and every of these notes, and stated specifically for what each and every note was given. In addition to his own testimony he called an equal number of experts in handwriting, who positively declared their belief in the genuineness of the disputed signatures. . . . The defense set up by Wolf, including the allegations contained in his petitions for opening these judgments is so weakened in our judgment, by a consideration of the course pursued by him throughout this long continued litigation, that at most his hope could only arise to a mere chance with a jury, for which alone, courts will refuse to grant new trials and should refuse to open judgment. The ordinary juror would not likely give much weight to a defense which was not made when opportunity therefor offered nearly ten years ago, neither is it likely he would be impressed by the allegation of forgery which the petitioner seemingly could not determine without the aid of an expert. For our part, we fail to discover any forgery, or any necessity for it when we consider the petitioner’s own statement that he signed without question any note or paper which Augustine presented.” A further statement by the Superior Court is: “ Ordinarily it is for the judge who heard the evidence to pass upon the question, even where forgery is charged, as ‘There is no inflexible rule which compels the court to open the judgment: ’ Shannon v. Castner, 21 Pa. Superior Ct. 294. It remains an equitable proceeding to bo decided by a chancellor, and a jury if necessary. While a judgment should not be opened upon the defendant’s oath when contradicted by the oath of the plaintiff, ‘ yet where there are corroborative circumstances or circumstances from which inferences may be drawn corroborating the defendant, it is proper to open the judgment, and refer the question to a jury: ’ Cloud v. Markle, 186 Pa. 614.” The oath of this defendant was not only contradicted by that of the plaintiff, but the circumstances were corroborative of the latter rather than of the former.

That the legal discretion of the court below was not improperly exercised is clear and, if it was not so exercised, its orders refusing to open the judgments must be affirmed. On an application to open a judgment it is proper for the .court below to weigh the evidence and to decide according to the preponderance thereof, and we will not reverse for the exercise of a sound discretion: Wernet’s Appeal, 91 Pa. 319. “An application to open a judgment entered on warrant of attorney or on a judgment note is addressed to the equitable powers of the court below, and upon an appeal to the Supreme Court, under the Act of April 4, 1877, P. L. 53, the question is whether the court below rightly exercised its discretion on the evidence. It is a mistake to suppose that the court to which the application is made, cannot judge of the weight of the evidence and the credibility of the witnesses but in every case where there is a conflict of testimony, must send the ease to a jury: Jenkintown National Bank’s Appeal, 124 Pa. 337. Applying these well-settled principles to the case at bar we cannot convict the court of error in refusing to open the judgment: ” Blauvelt v. Kemon, 196 Pa. 128.

The order of the Superior Court is reversed and the order of the court below in refusing to open the judgments Nos. 4, 5, 7, 9 and 11 to June Term, 1894, is affirmed in each case at the cost of the appellee.


text:
    Nissley, Appellant, v. Lancaster County.

      Public officers — Poor laws — Directors of the poor — Compensation—Acts of February 27, 1798, 3 Sm. L. 306; March 31, 1807, 4 Sm. L. 388; April 14, 1864, P. L. 422, and July 2, 1895, P. L. 424.
    “The Directors of the Poor and of the House of Employment of the County of Lancaster,” created by the Act of February 27, 1798, 3 Sm. L. 306, are not county officers, and their compensation as fixed by the Act of April 14, 1864, P. L. 422, is not affected or changed by the Act of July 2, 1895, P. L. 424, which fixes the salaries of county directors of the poor in counties containing over 150,000 inhabitants.
    Argued May 14, 1906.
    Appeal, No. 195, Jan. T., 1905, by plaintiff, from judgment of Superior Court, Oct. T., 1904, No. 71, affirming judgment of C. P. Lancaster Co., Sept. T., 1903, No. 55, for defendant on ease stated in suit of Clayton L. Nissley v. Lancaster County.
    Before Fell, Bbown, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    Appeal from Superior Court.
    Rice, P. J., filed the following opinion :
    In the recent case of Commonwealth v. Brown, 210 Pa. 29, Chief Justice Mitchell has restated the rules or principle relating to the question of the implied repeal of local laws as follows : “ The result of the cases may be summed up as follows: First, the rule that a general statute does not repeal by implication a local act with different or inconsistent provisions, is still the prevailing rule. Secondly, but the rule being founded, on a presumption of legislative intent, will not apply when a contrary intent is clearly apparent. Thirdly, where the clear general intent of the legislature is to establish a uniform and mandatory system as in the municipal classification acts, the presumption must be that the local acts are intended to be repealed. Fourthly, where an act is passed to carry into effect a mandatory general provision of the constitution, the presumption must be that it was intended to repeal even local acts inconsistent with its terms.”
    Section 5, article XIY of our constitution provides, that in counties containing over 150,000 inhabitants all county officers shall be paid by salary. Was this mandatory general provision intended to apply to “ directors of the poor and of the house of employment of the county of Lancaster,” when that county came within the class thus established ? The solution of this question will aid very materially in the decision of the concrete question before us, namely, whether or not the special law fixing the compensation of those officers at “ two dollars per day and juror’s mileage for each and every day’s necessary attendance and official service,” was repealed, or the mode of compensating them was changed, by the Act of July 2, 1895, P. L. 424.
    Section 1 of the same article of the constitution declares: “ County officers shall consist of ” certain officers, naming them — directors of the poor not being in this enumeration — . “ and such others as may from time to time, be established by law.” Of course the fifth section applies to all the officers specifically designated in the first section, and to all new county officers thereafter established by the legislature. It may also be conceded, for the purposes of this case, that it applies to an office established by a prior statute, which, though bearing a different name, is coextensive with the county, and is identical, so far as the powers and duties attached to it are concerned, with an office specifically designated in the first section. See Taggart v. Commonwealth, 102 Pa. 354; Commonwealth v. Oellers, 140 Pa. 457. But the office in question belongs to neither of these classes. It was established by the special and local act of February 27, 1789, 3 Sm. L. 306, which provided that there shall be elected in the county of Lancaster, in the mode provided by the act, six reputable citizens, two each year, to be directors of the poor, and of the house of employment for the county of Lancaster, who shall be a body politic and corporate in law to all intents and purposes whatsoever relating to the poor of the county, and shall have perpetual succession, and may sue and be sued, etc., “ by the name, style and title ” above given, and may use, alter and renew “ one common seal in all business relating to the said corporation.” They were empowered, by the corporate name above given, to take and hold any lands, etc., not exceeding the yearly value of $5,000, and any goods and chattels whatsoever of the gift, alienation or bequest of any person or persons whatsoever; to purchase, take and hold any lands and tenements within their county in fee simple, or otherwise, and erect suitable buildings thereon, for the reception, use and accommodation of the poor of their county; to provide all things necessary for the reception, lodging, maintenance and employment of the said poor; to appoint a treasurer annually, who shall give bond, with sufficient surety 5 for the faithful discharge of the duties of his office, and that at the expiration thereof, he will well and truly pay and deliver over to his successors all moneys, bonds, notes, books, accounts and other papers, to the said corporation belonging, which shall then be remaining in his hands, custody and possession ; to employ, and at pleasure remove, a steward or stewards, matron or matrons, physician or physicians, surgeon or surgeons, and all other necessary attendants for the said poor; to bind out as apprentices or to service, such poor children as shall come under their notice; “ and to exercise and enjoy all such other powers, now invested in the overseers of the poor, as are not herein granted or supplied.” They were also empowered, subject to the approbation of the judges of the court of common pleas, to make and ordain all such ordinances, rules and regulations as they shall think proper, convenient and necessary for the direction, government and support of the poor and house of employment, and of the revenues thereunto belonging, and of all such persons as shall come under their care or cognizance, provided the same be not repugnant to this law, or any other of the laws of this state, or of the United States. By a supplement of March 31, 1807, 4 Sm. L. 388, they were directed to furnish to the county commissioner's, annually, an estimate of the sum wanted for the use of the poor, which is to be assessed and collected in addition to the county tax, which shall be paid by the county treasurer to the directors, on warrants of the county commissioners. The provisions above referred to and others that might be cited clearly show the distinct and separate corporate existence of “ The Directors of the Poor and of the House of Employment of the County of Lancaster,” the corporation of which the plaintiff is a director: Township of Cumru v. Directors of Poor, 112 Pa. 264; Commonwealth ex rel. v. Coyle, 185 Pa. 198. The fact that the district over which its powers and duties extend is coterminous with the county does not of itself warrant the conclusion that the officers appointed to administer them are county officers: Melvin v. Summerville, 210 Pa. 41. When it is remembered further, that the framers of the constitution omitted such officers from the list of county officers specifically designated, and that they do not exercise the powers and perform the duties attached to any office that is designated, the conclusion seems irresistible that the mandatory provision, above quoted, of section 5, article XIV, of the constitution does not apply to them, unless they have been made county officers by legislation subsequent to the adoption of that instrument. The- legislature evidently took this view of the constitutional provision when they enacted the statute to carry it into effect: Act of March 31, 1876, P. L. 13. And, in order to leave no doubt as to its application to the officers known as city treasurer, city controller and city commissioners in any city coextensive with the county, and containing over 300,000 inhabitants, the legislature expressly declared that they “ shall severally be regarded as county officers, and as such shall severally be subject to all the provisions of this act, and shall have all the powers and perform all the duties herein enjoined, and be subject to the same penalties as if they had each been elected or appointed as county officers, and had been designated as such.” No such clear intent to make the office held by the plaintiff a county officer is expressed either in the title, or in the body, of the Act of July 2, 1895, P. L. 424. Is it to be implied from what the legislature did? We assume that the power of the legislature to establish new county offices includes the power to add to the number by transferring to that class previously established offices: Taggart v. Commonwealth, 102 Pa. 354. When the legislature has exercised the latter power it forthwith becomes its duty, so far as counties containing over 150,000 inhabitants are concerned, to regulate the compensation attached to them in the mode prescribed by the constitution, that is, by salary. The power may be exercised and the consequent duty performed in a single enactment. All this is plain enough, biit it does not prove that in prescribing a salary for “ county directors of the poor ” the legislature of 1895 must be deemed to have performed a duty springing out of its own exercise of the power to make them county officers. We do not say that this designation would not be broad enough to include the office held by the plaintiff within the operation of the act, if it was a county office, but we are not convinced that it warrants the implication of an intention on the part of the legislature to change the nature of the office. So far as that is concerned it was left unaffected by the act of 1895; and as no other act making it a county office within the meaning of section 5 of article XIV of the constitution has been called to our attention, we conclude that it was not mandatory upon the legislature to make it a salaried office. Hence no presumption of an intention to repeal the local law relative to the compensation of the officer can be based on that ground.
    But whilst this was not a duty imposed by the constitution upon the legislature, the latter had power, by a general law applicable to all officers of the same class, to change the compensation attached to the office from a per diem allowance and mileage to a specific annual salary without mileage. It is argued that the legislature saw fit, in the exercise of this power, to put “ county directors of the poor,” in counties containing over 150,000 and less than 250,000 inhabitants, into one class and to compensate them in the same way, and therefore a previous local statute applicable to any member of the class relating to the same subject must give way by reason of the nature and purposes of class legislation. In support of this proposition the learned counsel for the appellant cite Commonwealth v. Macferron, 152 Pa. 244. We appreciate the force of this argument, but this, like all other rules of construction, is simply an aid in the discovery of the actual intent of the legislature; it is not to be resorted to to defeat that intent, nor to expand the act so as to include matters which it appears otherwise it was not the intention of the legislature to include. It is to be borne in mind that the act of 1876 as amended by the act of 1895 does not profess to classify counties for all purposes, but only for purposes of legislation relative to the salaries, fees and emoluments of certain officers who arc designated, and amongst them, “county directors of the poor.” But this is not the whole of the description. Referring to the title of the act of 1895 we find some evidence, although we do not say it is conclusive, that the legislature did not have in view county directors of the poor who were compensated under existing laws otherwise than by salary. Nor can it be said that the clause must be construed as applying to such officers, otherwise there will be nothing for it to operate upon. There were offices established by general laws, which, equally as well as the offices in question, would answer to the description, and to which a specific annual salary was attached. See Act of May 8, 1876, P. L. 149; Act of May 18, 1878, P. L. 68. But we are not disposed to rest our decision upon the ground that the title of the act is misleading, or that it is to be construed as confining the words of the act to the offices created by the general laws last mentioned. Both of these points, although well worthy of consideration, may be left undecided. It is enough for present purposes to say that both may be rejected, and yet it would not follow that the principle enunciated in Commonwealth v. Macferron and cases of that class imperatively requires us to hold that the act of 1895, not only includes the directors of a corporation, which is separate and distinct from the county and was created by special law to meet local and exceptional conditions, but also repealed, by necessary implication, the special law whereby the legislature attached to the offices compensation suited to their peculiar duties.
    “A local law presumably was passed to meet local and exceptional conditions, and a general statute to meet general conditions does not imply that the local conditions have changed, or that the legislature intends to change the law which it had previously deemed necessary or appropriate to such conditions. ‘ Rarely, if ever, does a case arise where it can justly be held, that a general statute repeals a local statute by mere implication:’” Commonwealth v. Brown, 210 Pa. 29. “We fully recognize the right of the legislature to express its will in any form affirmative or negative, that it pleases, so long as it does not transgress constitutional prohibitions, and the principle that whether the question be as to the implied repeal of a prior local or a prior general statute, the intention of the legislature must control. See Rodebaugh v. Philadelphia Traction Co., 190 Pa. 358; McCleary v. Allegheny Co., 163 Pa. 578. But while the rule above stated ” — that a general statute without negative words does not repeal a previous statute which is particular though the provisions of one are different from the other — “ is not an unbending one, to be applied without regard to other evidence of the legislative intent, we nevertheless feel confident, from a consideration of the act as a whole, and a view of the entire course of legislation upon the subject, that we are more likely to carry out the actual intention of the legislature by holding that the rule applies here, than by holding otherwise : ” Loyalsock Township Road, 26 Pa. Superior Ct.219, citing Morrison v. Fayette Co., 127 Pa. 110; Rymer v. Luzerne County, 142 Pa. 108; Commonwealth v. Philadelphia & Erie R. R. Co., 164 Pa. 252; Commonwealth v. Lloyd, 2 Pa. Superior Ct. 6; s. c. 178 Pa. 308. These remarks are pertinent in the present case. Aside from the considerations already mentioned, it is to be noticed that the act of 1895, contains no repealing clause, and, what is more significant, makes no provision that the salary shall be a charge on the county treasury and shall be paid in any event. It simply amends section 14 of the act of 1876. It leaves unchanged section 16, which provides that certain officers expressly mentioned “ shall severally be paid quarterly and shall be paid the full amount allowed them by this act,” and that “ all other officers shall be paid the amount herein assigned to them, only when the net receipts of their respective offices shall reach the amount herein respectively fixed for them.” It is worthy of remark that this section was amended in 1901, but not so as to affect the clause last quoted or to include county directors of the poor in the class of officers “who shall be paid the full amount allowed them.” The fact that the legislature did not see lit to put the office in question in that class furnishes a basis for the strongest kind of an inference that it did not intend to strike down the only law through which the officer can derive any fees or emoluments whatsoever. It is thus seen, that if the act of 1876, as amended by the act of 1895, applies at all to the directors of the poor and of the house of employment of the county of Lancaster, the local and special act of 1861 furnishes the measure of their compensation, subject to the limitation imposed by the later general law. This is all that need be decided in the present case. It follows that the judgment of the learned court below upon the admitted facts was right.
    May 24, 1906:
    Judgment affirmed.

      Error assigned was the judgment of the Superior Court.

      John M. (Jroff and Cyrus (J. Derr, with them William E. Fisher, for appellant.

      N. Franlclin Hall, county solicitor, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the learned president of the Superior Court.


text:
    Eisenberg, Appellant, v. Fraim.

      Negligence — Master and servant — Infant—Instruction by master — Nonsuit.
    The dangers of which it is the duty of the employer to give warning to an employee are not those that are subjects of common knowledge or apparent to ordinary observation.
    In an action to recover damages for personal injuries, it appeared that the plaintiff, a boy fifteen years of age, employed at the defendants’ works, was at his own request transferred from the drill room to the press room to operate a machine used to punch metal plates. The plunger of this machine was held by a clutch which was opened by the operator’s placing his foot on the treadle. When the clutch was opened, the plunger dropped on the plate, and was then drawn back to its position where it was caught and held in place by the clutch. While the clutch was held open by pressure on the treadle, the plunger would continue to go up and down, and it was therefore necessary that the operator should remove his foot from the treadle after each drop of the punch. The plaintiff on the second day of his employment at the machine failed to remove his foot from the treadle and his fingers were injured by the plunger. The plaintiff had been instructed by a foreman how to operate the machine and he knew all about it. Held, that the plaintiff was guilty of contributory negligence, and that a nonsuit was properly entered.
    Argued May 14, 1906.
    May 24, 1906 :
    Appeal, No. 4, Jan. T., 1906, by plaintiff, from order of O. P. Lancaster Co., Aug. T., 1904, No. 136, refusing to take off nonsuit in case of Mosheh W. Eisenberg by bis father and next friend, Abraham Eisenberg, and Abraham Eisenberg v. Edward T. Fraim, Proprietor of the Keystone Lock Works.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Hassler, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.
    C. E. Montgomery, for appellants.

      Coyle Keller, for appellee.
   Per Curiam,

The plaintiff, a boy fifteen years of age, employed at the defendant’s works, was at his request transferred from the drill room to the press room to operate a machine used to punch metal plates. The plunger of this machine was held by a clutch which was opened by the operator’s placing his foot on the treadle. When the clutch was opened, the plunger dropped on the plate, and was then drawn back to its position where it was caught and held in place by the clutch. While the clutch was held open by pressure on the treadle, the plunger would continue to go up and down, and it was therefore necessary that the operator should remove his foot from the treadle after each drop of the punch. The plaintiff on the second day of his employment at the machine failed to remove his foot from the treadle and his fingers were injured by the plunger.

The plaintiff had been instructed by a foreman how to operate the machine and he knew all about it. His injury was not caused by a latent danger as to which he had not been warned but by his inattention and negligence in failing to do what he knew he should do. He was not told to remove his foot from the treadle when the plunger fell, but he was shown that that was the way to operate the machine, and he knew that pressure on the treadle opened the clutch and that while the latter was open the plunger would continue in motion. The dangers of which it is the duty of an employer to give warning to an employee are not those that are subjects of common knowledge or apparent to ordinary observation : Cracraft v. Bessemer Limestone Co., 210 Pa. 15.

The judgment is affirmed.