author: Mr. Justice Brown,

text:
    Bowman’s Case.

      Constitutional law — Removal of public officers — -Justice of the peace— Act of May 25, 1907, P. L. 257 — Constitution of Pennsylvania, art. VI, sec. 4.
    1. A justice of the peace as a constitutional judicial officer elected by the people, can be removed from his office only by the governor for reasonable cause after due notice and full hearing on the address of two-thirds of the senate.
    2. A constitutional direction as to how a thing is to be done is exclusive and prohibitory of any other mode which the legislature may deem better or more convenient. What is forbidden, either expressly or by necessary implication, in the constitution cannot become a law.
    3. The Act of May 25, 1907, P. L. 257, authorizing the courts of common pleas to declare vacant the office of a justice of the peace who fails for a period of six calendar months to reside and maintain an office in the district for which he is elected, is unconstitutional as violating sec. 4, art. VI, of the constitution relating to removal of officers elected by the people.
    Argued May 10, 1909.
    Appeal, No. 23, Jan. T., 1909, by Charles W. Bowman, from order of C. P. Fayette Co., Sept. T., 1908, No. 342, removing justice of the peace from office In re Petition of J. H. Snowden et al.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Petition to remove Charles W. Bowman from office of justice of the peace of the borough of Brownsville.
    The opinion of the Supreme Court states the facts.

      Error assigned was the order of removal.

      W. J. Johnson, of Johnson & Rush, for appellant.
    The constitution is the paramount law. It is above legislatures and courts; what is therein ordained and established cannot be set aside by simple act of legislature: Reid v. Smoulter, 128 Pa. 324; Houseman v. Commonwealth, 100 Pa. 222; Hazle Twp., 9 Kulp, 365.
    The legislature, by mere legislative act, cannot remove a justice of the peace from the exercise of his duties and jurisdictions of his office and appoint another to fill his place: Com. v. Gamble, 62 Pa. 343.
    The gift of power to remove a constitutional officer, elected by the people, by impeachment or by the governor on the address of two-thirds of the senate, excludes the power to remove in any other manner: Com. v. Sutherland, 3 S. & R. 145; Com. v. Gamble, 62 Pa. 343; In re Division of Bern Township, 115 Pa. 615; Com. v. Moir, 199 Pa. 534.
    D. W. McDonald, with him James R. Cray, for appellees.
    The act is presumed to be constitutional and the burden is upon him who would declare otherwise: Com. v. Nichols, 10 Kulp, 193; Penna. R. R. Co. v. Riblet, 66 Pa. 164; Com. v. Butler, 99 Pa. 535; Com. v. McDermott, 37 Pa. Superior Ct. 1; Likins’s Petition, 37 Pa. Superior Ct. 625.
    The respondent was “ removed on conviction of misbehavior in office” as provided by the constitution: People v. Turnpike Road, 35 Am. Dec. 551; Attorney General v. Maybury, 113 Am. St. Rep. 512; Yoe v. Hoffman, 61 Kan. 265 (59 Pac. Repr. 351); Miller v. Roby, 9 Neb. 471 (4 N. W. Repr. 65); State v. Slover, 113 Mo. 202 (20 S. W. Repr. 788); Com. ex rel. v. Sanderson, 11 Pa. C. C. Rep. 593.
    June 22, 1909:
   Opinion by

Mr. Justice Brown,

The single question raised on this appeal is the constitutionality of the Act of May 25, 1907, P. L. 257, which authorizes the respective courts of common pleas of the commonwealth to declare vacant the office of an alderman or justice of the peace who shall, for a period of six calendar months, at any time during his term of office, fail or neglect to reside and maintain an office in the ward, district, borough or township for which he was elected and commissioned. Charles W. Bowman, the appellant, was duly elected a justice of the peace of the borough of Brownsville, Fayette county, at an election held on the third Tuesday of February, 1906, and, having been commissioned to serve for the term of five years from the first Monday of May of that year, entered upon the discharge of the duties of his office. On or about January 20, 1908, he went to Europe with his family, not intending, however, to remove from the said borough and reside abroad. .On July 21, 1908 — six months and one day after he started on his trip — a petition was presented to the court below, setting forth that he had, for the six calendar months last past, failed to reside and maintain an office in the said borough of Brownsville, and asking for a rule to show cause why his office should not be declared vacant. On the petition and answer the rule granted to show cause was made absolute, and from the decree declaring the office of the appellant vacant there comes this appeal, taken on the ground that the act of 1907 is repugnant to sec. 4, of art. VI, of the constitution.

The first three sections of art. VI of the constitution relate to impeachment and are not here involved. We are concerned only with the fourth, which is: “ All officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. Appointed officers, other than judges of the courts of record and the Superintendent of Public Instruction, may be removed at the pleasure of the power by which they shall have been appointed. All officers elected by the people, except Governor, Lieutenant Governor, members of the General Assembly and judges' of the courts of record learned in the law, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.” The condition upon which all officers shall hold their offices, whether conferred by appointment or secured by election, is good behavior. Removal is the penalty for misbehavior. This is the substance and meaning of the first sentence of the fourth section. All officers are either appointed or elected, and the second sentence of the section provides that those appointed, other than judges of the courts of record and the superintendent of public instruction, may be removed at the pleasure of the appointing power. This sentence is not involved in the determination of the question before us, but the last is, for it declares that all officers elected by the people, not within the exceptions, “shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.” Here is a distinct constitutional expression, and there can be no debate as to the validity of any legislation repugnant to it: Commonwealth v. Moir, 199 Pa. 534. Whether the words, “all officers elected by the people,” include officers elected to fill purely statutory offices created by the legislature and by it to be abolished at will is not a question now calling for a decision from us. What we are to decide is whether a constitutional officer, whose office the legislature did not create, and which it cannot abolish, may be removed in any other way than that pointed out in the constitution for the removal of officers elected by the people. Clearly there is but one answer to this. A constitutional direction as to how a thing is to be done is exclusive and prohibitory of any other mode which the legislature may deem better or more convenient. As the people have spoken directly in adopting their organic law, their represen-' tatives in general assembly met are at all times bound in undertaking to act for them, and what is forbidden, either expressly or by necessary implication, in the constitution cannot become a law.

Under all of our constitutions a justice of the peace has been a constitutional officer, and by the eleventh section of the judiciary article of the present one he is a judicial officer. This appellant was as much a judge, though in a limited sphere, as the judicial officer by whose decree the appellees would have him removed from office. He was duly elected by the people, and, by the mandate of the constitution, commissioned by the governor to serve for a term of five years as the head of a court not of record. As a constitutional judicial officer, elected by the people, he is to be removed from his office only by the governor for reasonable cause after due notice and full hearing, on the address of two-thirds of the senate, for, though others filling purely legislative offices may be without, the constitutional provision as to removal, he is clearly within it.

The order or decree of the court below is reversed, and it is ordered that the petition'of the appellees be dismissed and that they pay the costs below and on this appeal.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Vernon’s Estate.

      Decedents’ estates — Distribution in hind — Stock of corporation — Restriction on sale of stock.

    It is proper for the orphans’ court, all debts being paid, to award in kind to the widow of a decedent who died childless, one-half of the number of shares of stock owned by the decedent in a corporation, notwithstanding a restriction in the by-laws of the corporation on the sale of the stock, and notwithstanding the allegations of other parties interested in the estate that the stock would bring more if sold as a whole by the executor.
    Submitted May 11, 1909.
    Appeal, No. 291, Jan. T., 1908, by the Delaware County Trust, Safe Deposit & Title Insuranee Company, guardian of Mary W. Vernon et al., minors, from decree of O. C. Del. Co., dismissing exceptions to report of auditor in Estate of William G. Vernon, deceased.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to report of George B. Lindsay, Esq., auditor. Before Broomal, J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to auditor’s report.

      O. B. Dickinson, for appellant.
    None of the distributees have title to these shares of stock as stock, nor to any particular shares. All they have is a distributive share in the estate of the decedent of which these form a part. What, therefore, they are entitled to is to have the stock disposed of in the regular and orderly way provided by law for the settlement of decedents’ estates.
    In the orderly and regular course of settlement of decedents’ estates the amount of the estate for distribution is determined by the executor turning the property into money and the amount for distribution being brought into his account and either voluntarily stated by him or in the regular way found to be in his hands. This was not done in the court below, but'on the contrary the stock was in the first instance distributed by the court in kind to one of the distributees without regard to its effect upon the interests of the others and without it first being found through an accounting by the executor of just what the balance for distribution was.
    The complaint here made is not made by the executor but by a distributee who has as much interest proportionately in the stock awarded to Amanda T. Vernon as she to whom it was given had in it.

      Wm. I. Schaffer and Hampton L. Carson, for Amanda T. Vernon.
    Where a residuary legatee is willing to take his share of an estate in stocks and bonds and other securities, held by the testator and remaining in the hands of the executors, he is entitled to do so, and the executors cannot refuse to make distribution on the ground that they have been unable to convert the securities into cash: Reed’s Est., 82 Pa. 428; Hart’s Est., 25 Pa. C. C. Rep. 401.
    June 22, 1909:
   Opinion by

Mr. Justice Potter,

It appears from the record in this case that at the time of his death, May 8, 1904, William G. Vernon owned 187 shares of the capital stock of the Philadelphia Lawn Mower Company of the par value of $100 per share. The market value of the stock was, however, regarded as being considerably more than the par value, provided the stock could be sold and transferred without restriction. It seems that a by-law of the corporation provides as follows: “Shares of capital stock may be transferred by indorsement on the certificate and its surrender to the secretary for cancellation, whereupon a new certificate shall be issued to the transferee: Provided, however, that before any one holding stock of this corporation at the time of the adoption of these by-laws shall sell or assign such stock so held by him he shall offer the same to the then stockholders, who shall have the option of buying the same at par and only upon the declination of the stockholders to buy said stock shall he have the right to sell to outside parties.” The executor of William G. Vernon offered the stock in question at public sale, and sold one share for $138. The remaining 186 shares were not sold. The purchaser paid for the share he bought, and it was assigned to him by the executor; but the officers of the company refused to issue a new certificate to him for the reason that the stock had not been offered to the other stockholders at par as required by the by-law above quoted. The purchaser then filed a bill in equity in the court of common pleas No. 4 of Philadelphia county, to compel the transfer of the stock and the issuance of a new certificate, but that court sustained the by-law in connection with the contract, and dismissed the bill. The result of the decision in that case would naturally affect the market value of the stock in the hands of the executor, but the question there decided is not directly raised in this case. It appears here that Amanda T. Vernon, the widow of William G. Vernon, elected to take against his will, and there being no children, is entitled to receive one-half of the personal estate absolutely. All the creditors of the testator having been paid, the widow petitioned the court below to have the lawn mower company stock distributed in kind to the persons entitled to it. This petition was referred to an auditor, who reported in favor of granting the prayer of the petitioner, and of awarding to her ninety-three shares of the stock and recommended that the remaining ninety-three shares be divided among the legatees entitled to testator’s residuary estate. Exceptions were filed to the auditor’s report, which were dismissed by the court below, and the report confirmed, in so far as it related to the award of the ninety-three shares to Mrs. Vernon. From the decree to that effect, this appeal has been taken.

No reason for the reversal of the order of the court below is given, except the suggestion that a sale of the stock, as a whole, might result in bringing in more money than if the entire holding were divided and sold in separate lots'. But on the other hand, the auditor in his report, forcibly points out that the conditions are such that delay may result in depreciation of the value of the stock. We see no good reason why the widow should be denied the right to a distribution in kind. She may not wish to dispose of the stock, but prefer to retain the ownership. At any rate she is entitled to do with it, as she may deem best. It is sufficient to say that nothing has been shown which in any way tends to convict the court below of an abuse, in the exercise of its discretion. That being so, nothing remains for this court, but to affirm the judgment, and it is so ordered.


author: Mb,. Justice Brown,

text:
    Irwin’s Estate.

      Practice, O. C. — Decree—Piling exceptions nunc pro tunc — Fraud.
    Where a decree nisi of the orphans’ court has become final under the rule, the court may permit exceptions to the adjudication to be filed nunc pro tunc, if application is made therefor by the parties in interest promptly within the term, and it appears that the claimants are nonresidents, that they were without actual knowledge of the proceedings, and in their application allege that the administratrix had appropriated all of the personal estate, and had secured a decree in her favor for an additional amount chargeable on the real estate, in payment of an alleged claim for nursing and other services for six years, which nursing and services had never in fact been performed.
    Argued May 11, 1909.
    Appeal, No. 42, Jan. T., 1909, by Isaac McConnell Irwin, from decree of O. C. Fayette Co., Dec. T., 1908, No. 23, refusing to allow exceptions to be filed nunc pro tunc in Estate of Elizabeth Irwin, deceased.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Petition for leave to file exceptions nunc pro tunc. Before Work, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the petition.

      Alfred E. Jones, for appellants.
    The orphans’ court has control over the accounts confirmed by -it during the term at .which they are filed: Metz’s App., 11 S. & R. 203; George’s App., 12 Pa. 260; Mylin’s App., 7 Watts, 64; White’s Est., 1 Pa. Dist. Rep. 508; Walker’s Est., 3 Rawle, 243; Bishop’s App., 26 Pa. 470.
    This act provides that in case of error, the orphans’ court “shall grant a rehearing” and provides further also that it shall “give such relief as equity and justice may require:” Kinter’s App., 62 Pa. 318; Meckel’s App., 112 Pa. 554.
    It has.been held that the orphans’ court has general equitable powers that enable it to grant relief according to the facts and circumstances of particular cases: Johnson’s App., 114 Pa. 132; Milne’s App., 99 Pa. 483; George’s App., 12 Pa. 260; Young’s App., 99 Pa. 74; Neisly’s App., 8 Pa. 457.
    June 22, 1909:

      John M. Core, for appellee.
    All our cases agree that, upon a question of the construction or application of its own rules, a court can be reversed only for manifest and material error: Bair v. Hubartt, 139 Pa. 96; Kunkle’s Est., 21 Pa. Superior Ct. 200; Carpet Co. v. Latimer, 165 Pa. 617; Livingston v. Kerbaugh, 30 Pa. Superior Ct. 534; Mylin’s Est., 7 Watts, 64; Coleman v. Nantz, 63 Pa. 178; Wickersham v. Russell, 51 Pa. 71; Dailey v. Green, 15 Pa. 118; Webster v. Coal & Coke Co., 201 Pa. 278.
    It is true that under certain circumstances the lower court may, in their discretion, allow exceptions to be filed nunc pro tunc: Mylin’s App., 7 Watts, 64.
    The notice given, agreeably to the rules of the court, and more especially by direction of the acts of assembly, must have the same effect as actual notice, and bind equally: Priestley’s App., 127 Pa. 420; Sheets’s Est., 215 Pa. 164; Yocum v. Commercial Nat. Bank, 195 Pa. 411.
    A bill of review can be granted for error of law apparent on the face of the record, or for new matter which has arisen since the decree: Priestley’s App., 127 Pa. 420; Bailey’s Est., 208 Pa. 594; Moore’s App., 10 Pa. 435; Com. v. Moltz, 10 Pa. 527.
    The whole matter was addressed to the discretion of the lower court and its decision thereon is not the subject to review: Bishop’s App., 26 Pa. 470; Priestley’s App., 127 Pa. 420; Johnson v. Ins. Co., 218 Pa. 423.
   Opinion by

Mb,. Justice Brown,

Elizabeth Irwin, a resident of the borough of Uniontown, Fayette county, died intestate February 9, 1908, leaving to survive her as her next of kin a sister, Margaret Blackburn, a resident of said county, and nephews and nieces, sons and daughters of a deceased brother and sister, all of whom were nonresidents of the county at the time of their aunt’s death. On March 16, 1908, Margaret Blackburn renounced her right, to administer on her sister’s estate and, upon her request, letters of administration were granted to her daughter, Rena B. Wycoff, the appellee. On March 25, 1908, the personal estate of the deceased was appraised at $2,991.94 and an inventory of the same was duly filed. On April 23, 1908 — thirty-eight days after letters were granted and twenty-nine days after the appraisement was taken — the administratrix filed her first and final account, in which she charged herself with $3,019.44, and, after taking credits'for funeral expenses, the payment of a note held by Margaret Blackburn, commissions, attorney fee, taxes, etc., amounting to $722.35, she appropriated the entire balance to herself on account of an alleged claim for nursing and taking care of the decedent for six years at the rate of $500 per year. The credit which she claimed was $3,000, and the balance appearing to be still due her is $702.91. This account was confirmed nisi on June 3, 1908, and no exceptions having been filed within ten days, it became, under the rule of court, absolutely confirmed on June 13, 1908. All of this occurred in less than ninety days from the time letters of administration were taken out by the appellee, and, if the relief which the court below denied to the appellants is not granted to them, she, as an alleged creditor of the estate, who ought not, under the circumstances, to have asked for letters, will be paid $2,297.09 out of the personal estate and have an adjudicated balance due her of $702.91, to be paid out of the real estate, on a claim without any proof whatever in support of it, though it belongs to a class of which it was most properly said by the present chief justice in Carpenter v. Hays, 153 Pa. 432: “Claims against a dead man’s estate, which might have been made against himself, while living, are always subjects of just suspicion, and our books from Graham v. Graham, 34 Pa. 475, to Miller’s Est., 136 Pa. 239 (249), are full of expressions by this court of the necessity of strict requirement of proof and the firm control of juries in such cases.”

As soon as the appellants — nonresidents of the county, who had no notice of the filing or confirmation of the account— learned that the appellee had appropriated to herself nearly all of the personal estate of the deceased,and had obtained an adjudication of the balance still due her, to be paid out of the real estate, they took steps to frustrate whai they not unnaturally regard as an attempted fraud upon them. On June '29, 1908, during the term at which the account was confirmed and only sixteen days from its absolute confirmation, they presented their petition to the court, setting forth the credit taken by the accountant for having paid to herself the sum stated for nursing and taking care of the decedent for six years, at the rate of $500 per year, and asking, as they had had no actual notice that the account had been filed, leave to file exceptions to it nunc pro tunc. On this petition a rule was granted to show cause why exceptions should not be filed, and the only answer made by the appellee was that the usual course of procedure taken by all the estates of this commonwealth had been followed in the settlement of this, and that, as the confirmation of the account had become absolute under a rule of the orphans’ court, the rule ought to be discharged. Subsequently, on September 3, 1908, a supplemental petition was presented to the court and directed to be filed, with leave to the accountant to file an answer thereto within fifteen days. In this petition it was set forth that none of the next of kin of the decedent, except the mother of the administratrix, were residents of Fayette county; that no actual notice of the filing of the account had been given to any of them by the administratrix, or from any other source, until the account, under the rule of court, was confirmed absolutely; that the said claim of $3,000, made by the appellee for nursing and attendance upon the decedent, had no merit as a valid claim against her estate; that on the claimant’s own request and for hér accommodation, more than fifteen years before, she had been allowed to make her home with decedent, in the borough of Uniontown, upon condition, that she should pay a small weekly allowance to the decedent for furnishing her board and room; that the privileges extended to the appellee by the decedent were continued until the latter’s death; that no contract or understanding, express or implied, ever existed between the claimant and decedent by which the former was to receive $10.00 per week, or any other amount, for any length of time for the alleged services; that the services for which the appellee makes claim were never rendered, for the reason that decedent needed no such services; that, with the exception of possibly a few weeks, at most, during the time for which the claim was made, the decedent was always in a physical condition to attend to her wants and duties, to take care of her house and to do her own cooking, which included that for the appellee as well; that she had no physical ailments which ever required the care of a physician, and that during the six years previous to her death she spent a considerable portion of her time— possibly one-fourth — away from her home in Uniontown, unaccompanied by the claimant. This supplemental petition was presented to the court upon notice to the attorney for the appellee. To it no answer was made. Subsequently, on November 16, 1908, the rule granted to allow exceptions to be filed nunc pro tunc was discharged, the court refusing to allow the original petition to be amended by adding thereto and incorporating in it the facts set forth in the supplemental petition. The only reason given for refusing to allow the exceptions to be filed nunc pro tunc was that the account had been confirmed under a rule of court which provides that after confirmation nisi the confirmation shall become absolute without further order, unless exceptions are filed within ten days, and that proper cause had not been shown for setting the confirmation aside.

By the Act of June 16,1836, P. L. 784, the orphans’ courts of the commonwealth have power and authority to establish such rules regulating practice as in their discretion they shall judge necessary or proper, and the rule of the court below, upon which it relied in holding that it could not allow the account of the appellee to be subjected to exceptions, is one which, in effect, is in general force throughout the state; but no accountant ought ever to be permitted to use such a rule as a means for the perpetration of a fraud upon distributees, if they promptly invoke the power of the court to save them. That the facts as set forth in the unanswered supplemental petition, which the court made part of the record in directing it to be filed, with leave to answer, show fraud oh the part of the appellee, is not to be questioned, and she may not shield herself behind a rule of court under which there was.an absolute confirmation of her account, hurriedly filed for a manifest purpose. If she had brought suit upon her alleged claim, she could not have been a witness in support of it, and, as one of just suspicion, it could have been established only by competent and sufficient evidence under the court’s firm control of a jury. This she undoubtedly knew, and undertook to obtain for herself, as a creditor of the estate, a judgment against it by default, though she, as its representative, of all others, should have protected it against such a judgment. The face of the account is proof of her faithlessness.

That the court below could have allowed the exceptions to be filed is not an open question. Counsel for appellee admit that this power may, in a court’s discretion, be exercised under certain circumstances. In Mylin’s Estate, 7 Watts, 64, this court held that the lower court had committed no error in enforcing its own rule as to the time within which exceptions were required to be filed, because it was not alleged that the appellant had received no notice of the filing of the auditor’s report nor that any reason had been assigned by him for omitting to file his exceptions in due time; but at the same time it was said: “The legislature has made it necessary to give notice to the heirs and legatees, in a manner prescribed, and which, in almost every instance, has the desired effect. But if a fair notice has not been received (which in some instances may be the case), the orphans’ court may, in their discretion, afford an adequate relief, by permitting the party aggrieved to file exceptions, nunc pro tunc.” In the earlier case of Metz’s Appeal, 11 S. & R. 203, in which the orphans’ court was reversed for holding that after having settled an account it had no power to open it, it was held, through Tilghman, C. J.: “When the orphans’ court struck these charges out of the account of the administrators, they were not present, and consequently, had no opportunity of supporting them. They petitioned for a rehearing, in a few days, and during the same session of the court; and it really does appear 'to me, that they might have been heard without any breach of law; for I cannot think, that the hands of the court are tied, from opening an account, the moment after they have closed it. For what period of time their power to open an account continues, I mean not now to give an opinion; it is enough for the present occasion, to say, that I am satisfied, they have power to open and re-examine it at any time during the same term at which it was settled.”

The confirmation of the account of the appellee as administratrix was undoubtedly a decree of the court, and the petition to file exceptions to the account nunc pro tunc, presented during the term at which it was confirmed, was but an application to open the decree and grant a hearing to parties who had never been heard. ‘ ‘ Final decrees of the orphans’ court may be corrected in various forms, depending on the time and the grounds of the application. 1. On mere motion, as to clerical errors, and matters that are necessary to make the decree accord with the form that is usual for the kind of case, and that, as the case appeared and is remembered by the court, would have been inserted or omitted if it had been suggested to the court: 12 Ser. & R. 171; 1 Hoffm. Ch. P. 559; 7 Ves. 292, 293; 5 Mad. 121; Moseley, 255; Dick. 59. 2. On petition for a rehearing, setting forth the grounds of the application, and verified by oath or affirmation. This applies in cases of decrees by default, and even of decrees on hearing, if applied for during the term, or perhaps after that, if nothing has been done under the decree to prevent it: 11 Ser. & R., 206; 1 Hoffm. Ch. P. 561, 562; 3 Mar. 698; Dick. 109, 145; 1 Dan. C. P. 576, 579; Id. 1207; 7 Paige, 512; Id. 180:” Bishop’s Appeal, 26 Pa. 470.

With the undoubted power of the court below, in its discretion, to suspend its own rule and permit the exceptions to be filed, its failure to exercise that power, when promptly invoked by the appellants, was so manifestly wrong, in view of the unanswered averments in the supplemental petition, that nothing more need be said in directing that the prayer of the appellants be granted.

The decree of the court below is reversed at the cost of the appellee, and it is ordered that leave be granted to the appellants to file exceptions to the account of the appellee nunc pro tunc, and that the court proceed to pass upon them.


author: Mr. Justice Fell,

text:
    Hardoncourt, Appellant, v. North Penn Iron Company.

      Libel — Corporation—Authority of officer — Scope of authority.

    1. A corporation may be held liable for a libel published by its officer acting within the scope of his authority.
    2. A verdict against a corporation for damages for libel will be sustained, where the evidence shows that the libelous matter consisted of a letter signed with the name of the corporation, and the treasurer’s name as such, that the letter contained grave charges affecting the character of the plaintiff, a former employee of the defendant, and was sent to various persons with the evident object of protecting the company’s business from competition by the plaintiff, and that the person who signed the letter was not only a treasurer and director, but was in fact the general manager of the company.

      Practice, C. P. — Judgment non obstante veredicto — Appeals.
    3. A judgment non obstante veredicto may be entered only in cases where binding directions to the jury would have been proper at the trial.
    4. Where the appellate court reverses a judgment non obstante veredicto, it will remit the record to the common pleas with leave to reinstate the rule for a new trial, in order that such judgment may be entered thereon as law and right require. In this way an opportunity is given to the defendant to appeal.
    Argued May 11, 1909.
    Appeal, No. 133, Jan. T., 1908, by plaintiff, from judgment of C.P. No. 1, Phila. Co. Sept. T., 1905, No. 4262, for defendant non obstante veredicto in case of Arthur Hardoncourt, Jr., v. The North Penn Iron Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elicin, JJ.
    Reversed.

      June 22, 1909:
    Trespass for libel. Before Kinsey, J.
    At the trial the jury returned a verdict for plaintiff for $15,000. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      Oliver W. Payran, with him Lillian Herbert Andrews, for appellant.
    A corporation is liable for a libel: Goddard v. Grand Trunk Ry. Co., 57 Maine, 202; Philadelphia & Reading R. R. Co. v. Derby, 55 U. S. 468.
    There is no case in Pennsylvania directly in point to the one at bar; there are analogous ones, however, which have enunciated the principle that a corporation is responsible for the tortious acts of its agents: Chestnut Hill, etc., Turnpike Co. v. Rutter, 4 S. & R. 6; McCready v. Guardians of the Poor, 9 S. & R. 94.

      Clifton Maloney, with him J. B. Colahan, 3d, for appellee.
    A corporation is liable for the acts of its officers only when those acts are performed in the course of their duties as its officers, or agents: Mapes v. Second National Bank of Titusville, 80 Pa. 163.
   Opinion by

Mr. Justice Fell,

This was an action for libel and the trial resulted in a verdict for the plaintiff. Judgment was entered for the defendant non obstante veredicto on the ground that it had not been shown that the officer of the defendant corporation, who wrote the letter containing the libelous matter complained of, was in so doing acting within the scope of his authority. The letter was sighed “The North Penn Iron Co., P. M. Maloney.” It contained grave charges affecting the character of the plaintiff, a former employee of the defendant, and it was admittedly libelous. Copies of the letter were sent to persons with whom the defendant then had or desired to establish business relations with the evident object of protecting its business from competition by the plaintiff. P. M. Maloney was one of the defendant’s directors and was its treasurer. It was testified that the defendant’s business was really managed by him and that he was called the general manager, although it did not appear that the office of general manager had been created.

A corporation may be held liable for a libel published by its officer acting within the scope of his authority, and it cannot be said that the testimony furnished no ground for an inference that P. M. Maloney in writing and publishing the letter was acting within the scope of his authority. The conclusion reached by the jury upon the whole evidence may not be the correct one, but the question was one of fact and a binding instruction for the defendant could not properly have been given at the trial. Since this was the case, judgment non obstante could not be entered for the defendant. The Act of April 22, 1905, P. L. 286, which provides that, where at the trial of a cause a point requesting binding instructions has been reserved or declined, the court may upon motion enter such judgment non obstante veredicto as should have been entered at the trial, enlarges the power of the court by enabling it to enter judgment against the verdict for either party; but it makes no change in the settled line of distinction between the province of the court and that of the jury. A judgment non obstante may be entered only in cases where binding direction to the jury would have been proper at the trial: Dalmas v. Kemble, 215 Pa. 410; Bond v. Railroad Co., 218 Pa. 34; Shannon v. McHenry, 219 Pa. 267. Where the finding of the jury is improper, the remedy is as heretofore by a new trial. The judgment is reversed.

Our attention has been called to the desire of the appellee to have an opportunity to appeal if the assignment of error should be sustained. In accordance with the practice suggested in Hughes v. Miller, 192 Pa. 365, we remit the record to the common pleas with leave to reinstate the rule for a new trial in order that such judgment may be entered thereon as law and right require.


author: Per Curiam,

text:
    Commonwealth v. Leskoski, Appellant.

      Criminal law — Murder—Amending stenographer’s notes — Practice O. and T.

    1. It is not reversible error for the trial judge upon rule to amend the stenographer’s record of a murder trial, over five years after the trial, to refuse to permit one of the trial attorneys to testify from recóllection that certain objections to admission of evidence were made and rulings had thereon, when the record and the recollection of the judge show no such objection or ruling, and the answer of the attorney for the commonwealth denies that such objections or rulings were made.

      Criminal law — Murder—Trial—Evidence.
    2. On the trial of an indictment for murder it is not error to receive in rebuttal competent evidence. that the. deceased before she died charged the defendant with shooting her, and that he did not deny it.
    Argued May 17, 1909.
    Appeal, No. 160, Jan. T., 1909, by defendant from judgment of O. & T. Carbon Co., Oct. T., 1903, No. 1, on verdict .of guilty of murder of the first degree in case of Commonwealth v. Martin Leskoski.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Heydt, P. J.
    At the trial the court charged in part as follows:
    Martin Flisic and Valent Yananchik say when Martin Leskoski was taken before Mary Yananchik, when she was on the wagon' to be removed to the hospital, that she, Mary Yananchik, said, “Martin Leskoski, you shot me;” that Martin Leskoski said, “Did I shoot you?” that she said, “Yes, you did.”
    Edward O’Donnell says that when he was taking Martin Leskoski to Mauch Chunk jail, Leskoski said, “Eddie, this is a bad thing; if this woman dies, I’ll get a couple of years.”
    Gentlemen of the jury, if you believe this testimony, it tends to establish that Martin Leskoski shot Mary Yananchik and you should so find.
    On a rule to amend the transcript of the stenographer, Heydt, P. J., filed the following opinion:
    On motion of counsel for the defendant the court granted a rule to show cause why the transcript of the official stenographer’s notes of testimony should not be amended in certain particulars, specifying them.
    There was no petition verified by affidavit of any sort upon which the motion was based.
    There is no allegation that the transcript of the notes as filed. is not a full, true and correct report of the proceedings.
    The competency, honesty, integrity and fairness of the official court stenographer have not heretofore, (to the knowledge of the court) been challenged; counsel disclaimed at bar any intention to reflect upon him by this proceeding.
    The transcript of the notes was made and filed by the official stenographer January 21, 1904,- over five years ago.
    Considering the infirmities of human memory; the great lapse of time since the trial; the fact that the prisoner had broken jail, and escaped and hardly anybody expected him to be returned; considering the frequent altercations of counsel during heated discussions in the trial of causes, counsel for one side confidently and positively asserting that counsel for the other side made certain statements, and counsel for the other side just as emphatically and absolutely denying that they made the statements attributed to them, claiming they had said something different; considering also the dangerous pitfalls and temptations to which enthusiastic and earnest counsel would be exposed if permitted under such circumstances as the present case presents to vary the record by their personal recollection, the criminations and recriminations which would be apt to follow (and the court has the highest possible regard for the integrity and fidelity of counsel engaged in this case ■'and would not for one moment insinuate that they would will- ■ fully or knowingly do violence to the truth) and considering also the duty which the court owes to the members of its legal household, the court refused to admit oral testimony to vary the record as made by the official stenographer.
    The court is ordinarily inclined to be liberal in granting exceptions. We are asked in this case to permit the record to be amended upon the strength of the recollection of counsel by adding: Objections of counsel to testimony, the reasons for such objections, a ruling upon the alleged exceptions, and the sealing of bills of exceptions in the face of the written record made by a competent official at the time.
    In other words, put upon the record; first, an objection (which was never made); second, a ruling upon said alleged objection (which was not made); third, an exception to said ruling (which is not true). Then this whimsical and imaginary record is to be assigned as error and made the basis for granting a new trial. This it seems to us would be liberality “gone mad.” This we decline to do. It would be bad practice. In this case we will hold the stenographer’s report of the case, as it is made by the act of assembly (re-enforced by the extrinsic facts and the court’s recollection) the “official record and the best authority in any matter in dispute.”
    Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

      Errors assigned were in the following form:
    1. The court erred in sustaining commonwealth’s objection to the following offer of testimony upon the hearing sur motion to amend the transcript of official stenographer:
    Horace D. Lentz, called on the part of defendant and sworn: “Q. Mr. Lentz, you were an attorney in this case when it was tried? A. I was. Q. You were present all the time the' case was tried in court?' A. Yes, sir. Q. You were active as an attorney in the case, and participated in all the proceedings in the case? A. Yes, sir, I was. Q. Will you please turn to page 9 at the beginning of Valent Yananchik’s testimony, ‘what did he say and the defendant objects,’ and the rule of the court ‘the offer now is to prove what took place between this prisoner and the dead woman.’ Do you recollect that at that time you and your associate counsel took exception to the ruling of the court?”
    Objected to, that the evidence was taken in open court before an official stenographer, who is here present in court now, and that his notes show no such objection made after the language of the court quoted, as appears from the transcript filed; and that the witness is incompetent at this time to contradict the record as the stenographer has it on his notes. Objection sustained. Exception for defendant and bill sealed.
    2. The court erred in sustaining commonwealth’s objection to the following offer of testimony at the hearing upon the motion to amend transcript of official stenographer:
    “ Q. On page 58 of the testimony of Martin Leskoski, at the beginning: ‘did she see you;’ and as set forth in the transcript, ‘Commonwealth at the request of defendant reduces the question to writing. The commonwealth proposes to ask the defendant on the stand whether Mary Yananchik the morning after the shooting, did not say to him that he shot her, and the prisoner then asked her, did I shoot you, and she said, yes, you did, and the whole conversation at that time.’ Do you recollect as one of the counsel for the defendant, Mr. Lentz, that that offer was objected to because what Mary Yananchik said at this time would not be evidence or a part of the res gestai or dying declaration and therefore inadmissible. Do you recollect if you put in that objection, Mr. Lentz?”
    Objected to by the commonwealth that the notes of the stenographer and the record in the case show no such objection made as set forth. Commonwealth admits that the record from the notes of the stenographer does set forth, as follows: "Defendant objects to any conversation that Mary Yananchik, the deceased, had to anybody else at that time as being hearsay evidence;” that that portion just quoted was omitted from the transcript of the testimony filed by the stenographer, and commonwealth agrees that it now be inserted at that point; that otherwise the record as it appears in the transcript filed, is a true and correct record from the notes of the stenographer made at the time, and the witness is not now competent to contradict that record and the evidence is inadmissible for that purpose. Objection sustained. Defendant asks for an exception.
    The Court: Do not think you are entitled to an exception, as this testimony will not be reviewed. The court will direct the stenographer to amend the record in any part where the transcript differs from the notes he has, but we will not permit the defendant to vary the record by putting thereon what the recollection of counsel for the defendant is as to any subject outside of what the stenographer has on his notes.
    The defendant requests the court to direct the stenographer to transcribe the proceedings on this motion and file them with the papers in the suit, and that they be made a part of the record. Commonwealth objects to the court ordering these proceedings being made a part of the record, but has no objections to an order of the court being made to transcribe them for the benefit of the defendant, if there can be any, but as part of the record, it is immaterial and incompetent and inadmissible, as the whole matter is addressed to the discretion of the court.
    The Court: These proceedings may be transcribed by the stenographer and filed.
    3. The court in charging the jury, erred in directing the attention of the jury to the testimony of Martin Flisic and Valent Yananchik given in rebuttal in connection with, and,as though a part of the testimony of the commonwealth in chief, and in not limiting this testimony thus given to the contradiction of defendant’s testimony upon examination, and as affecting his credibility as follows:
    “Martin Flisic and Valent Yananchik say when Martin Leskoski was taken before Mary Yananchik when she was on the wagon to be removed to the hospital that she, Mary Yananchik said, ‘Martin Leskoski, you shot me;’ and that Martin Leskosld said, ‘Did I shoot you?’ that she said, ‘Yes, you did.’
    4. After directing the attention of the jury to the testimony. of the witnesses for the commonwealth, of which a part is set forth in the second assignment of error, the court erred in charging the jury 'as follows: “ Gentlemen of the jury, if you believe this testimony, it tends to establish that Martin Leskoski shot Mary Yananchik, and you should so find.”

      Horace De Y. Lentz, with him Nathan M. Balliet, R. A. Heberling and James M. Breslin, for appellant.

      George E. Gray, district attorney, and Frank P. Sharkey, for appellee, were not heard.

      June 22, 1909:
   Per Curiam,

If the first and second assignments of error are to be entertained, they are dismissed on the opinion of the court below, discharging the rule to show cause why the transcript of the official stenographer’s notes of testimony should not be amended. The testimony which is the subject of the third and fourth assignments, though received in rebuttal, was properly commented upon in the charge. The judgment is affirmed and the record remitted to the court below for the purpose of execution.


text:
    Myers, Appellant, v. Edison Electric Illuminating Company.

      Negligence — Electric light company — Uninsulated wires — Instruction as to danger.

    A carpenter who has been working under an independent contractor of an electric light company in the company’s establishment for three weeks, cannot recover damages from the company for injuries sustained by coming in contact with uninsulated electric wires in a room of the company’s plant, where it appears that the danger from the wires was an obvious one. In such a case the injured person assumes the risk of the employment. He has no standing to complain that the electric company did not give him instructions as to danger, since it was not to the company, but to his own employer that he was bound to look for instructions.
    Argued May 17, 1909.
    Appeal, No. 315, Jan. T., 1908, by plaintiff, from order of C. P. Lancaster Co., March T., 1906, No. 38, refusing to take off nonsuit in case of Davis B. Myers v. The Edison Electric Illuminating Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Hassler, P. J., filing the, following opinion:
    The defendant employed an independent contractor in the summer of 1906 to do some work at its power plant near this city. • He sent several carpenters there, of whom the plaintiff was one, in charge of a foreman. They were there working, for some weeks before the accident, which is the subject of this suit,- occurred, the plaintiff having been there about three weeks. On the evening of December 12, 1906, the chief electrician of the company, under orders from its superintendent, told the foreman of the carpenters of some work he wanted done. On the morning of December 13, 1906, the foreman took the plaintiff into a room, and, while he was engaged in measuring for the work, he came in contact with some of the appliances or wires there, and was severely injured by an electric shock. It is for these injuries that he seeks to recover damages in this action. The room in which the accident occurred was a dangerous place, and prior to the accident no one, unless accompanied by an electrician, was permitted to go into it. The foreman who had charge of the plaintiff admits that he knew that it was a dangerous place, though it did not appear that either he or the plaintiff were instructed as to the dangers by a representative of defendant company.
    The only allegation of negligence which any attempt was made to support by testimony, is that the plaintiff, who claims in his statement to have been in the employ of the defendant as a mechanic, was directed and ordered by one of its agents, foremen, or.employees to do some work in the room where the accident occurred, and was not instructed as to the danger, nor had he any notice of it.
    It is the duty of an employer to properly instruct an inexperienced employee of the latent dangers of the machinery and place where he is employed: Sweigert v. Klingensmith, 210 Pa. 565; Bartholomew v. Kemmerer, 211 Pa. 277. But he is under no such duty where the dangers are subjects of common knowledge or apparent observation, for in such cases the employee assumes the risk of his employment: Cracraft v. Bessemer Limestone Company, 210 Pa. 15; Eisenberg v. Fraim, 215 Pa. 570.
    It is the subject of common knowledge that electric light wires are dangerous, particularly so, as was the case here, where the connections have no insulation, and the plaintiff must be presumed to have had this knowledge. The fact that he was working at the defendant company’s plant for thi’ee weeks before the accident occurred, justified the defendant in assuming that he had not only common knowledge, but that he had acquired knowledge of the dangers of such wires from experience, and is an additional reason to excuse it from instructing him of them. That the wires and connections were there, was apparent to him. He therefore, we think, assumed the risk of his employment and cannot recover because of the failure of the defendant to properly instruct him. Additional cases to sustain this position recently decided are: Nelson v. Street Railway Company, 207 Pa. 363; Simmons v. Traction Company, 207 Pa. 589; Masterson v. Eldridge, 208 Pa. 242.
    But even though this view of the law is not correct, we do not think that the plaintiff is entitled to recover from the defendant, for the reason that he was not an employee of the defendant company, but of an independent contractor, to whom he must look if he was not properly instructed as to the dangers of the place where he was working, if he was entitled to such instructions. He was not lent to the defendant company as his counsel contends, and. the cases cited by him, show that an employee is lent to another employer, only when he is placed there in his control and subject to his orders. The plaintiff in this case was not at the defendant’s power plant in the control or subject to the orders of the defendant or of its superintendent, but was there under the orders and in the care and control of the contractor’s foreman. Whatever orders to do work were given' by the defendant’s representative, were not given to the plaintiff but to the foreman of the contractor, who selected the man or men who was to do it, and directed him or them in doing it. When the plaintiff was selected to work in the room where the accident occurred, which was a dangerous place, the defendant company was not aware of his selection to do that work. It was an act with which it had nothing to do, and not knowing that he was going there to work, it would be exacting entirely too much of it to require that it should have instructed him as to the dangers. But the plaintiff had a right to assume that the contractor’s representative knew whether of not the place he was taking him to work was a dangerous one, and he says he did know it, and that he would properly instruct him, if it was not obvious and subject of common knowledge, or of such knowledge which his employer’s foreman knew he had acquired during the weeks which he had been employed in and about the place. It was a duty which his employer, and not the defendant, owed to him.
    June 22, 1909:
    In either view of the case we do not think the plaintiff is entitled to recover in this action, and discharge the rule to show cause why judgment of nonsuit should not be stricken off.
    Rule discharged.

      Error assigned was order refusing to take off nonsuit.

      B. F. Davis and C. E. Montgomery, for appellant.

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

This judgment is affirmed on the opinion of the court below, refusing to take off the nonsuit.


text:
    Stark, Appellant, v. Pennsylvania Telephone Company.

      Negligence — Telephone companies — Electric wire — Charge—Custom — Evidence.
    A telephone company cannot be charged with liability for personal injuries sustained by a pedestrian in a street coming in contact with one of its wires which had broken in a storm, and had become charged with electricity by falling across an electric light wire, below it, if there is no evidence to show that it was customary to place guards or screens between telephone wires and electric light wires strung beneath them.
    Argued May 17, 1909.
    Appeal, No. 355, Jan. T., 1908, by plaintiff, from order of C. P. Lancaster Co., March T., 1903, No. 12, refusing to take off nonsuit in case of Kate Stark v. The Pennsylvania Telephone Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Hassler, J., filing the following opinion:
    The defendant company has a line of poles on which are strung a number of telephone wires on Beaver street in the city of Lancaster. At the time with which we are concerned an electric light company had a line of poles supporting a number of electric light wires on the same street. These wires ran along the street about ten feet underneath the wires of the defendant company. On the night of February 21, 1902, there was a sleet and rain storm of unusual severity, which did much damage to telephone and electric light wires, among others breaking one of the telephone wires of the defendant company on Beaver street, which hung down, over and on the wire of the electric light company, thus becoming charged with electricity. Oscar Stark, a sixteen year old son of the plaintiff, came in contact with the wire, and was almost instantly killed. The plaintiff seeks to recover damages in this action for his death.
    In her statement she alleges a number of particulars in which the defendant company was negligent, but at the trial it was only attempted to prove that it was negligent in one particular, which was its failure to have a screen or guard or protection of some kind between its wires and the wires of the electric light company immediately underneath, so that if a wire of defendant company broke, or became disengaged, it would be prevented from coming into contact with the wires of the electric light company, and thus become charged with electricity, thereby avoiding the danger which caused the death of plaintiff’s son. On this subject it is said in Stark v. Lancaster Electric Light, Heat & Power Company, 218 Pa. 575, a case growing out of this accident, “While companies using electricity are held to the highest degree of care practicable and are required to take every reasonable precaution suggested by experience and known dangers, it is not for a jury without evidence to set up a standard of care as to a matter not within the range of common knowledge. In Aument v. Penna. Telephone Company, 28 Pa. Superior Ct: 610, a case in which the same question was involved, it was said by Rice, P. J.: 'If, therefore, there had been evidence that it is customary, or if not customary, that it is practicable for telephone companies to maintain guard wires under the circumstances proved at the trial, the plaintiff’s case would present a different aspect. But we cannot say that this was a question of fact upon which the generality of mankind are so well informed that the jurymen drawn from the ordinary walks of life ought to have been permitted to determine it without evidence, and then make their finding the basis of an inference that the omission to maintain such wires in the present instance was negligence, and the proximate cause of the injury complained of.’”
    The plaintiff called three witnesses on the trial of this case, all of whom testified that they had known of guards or screens between telephone and telegraph wires and wires of high tension, such as electric light wires, at crossings, which would prevent the former when they broke from coming in contact with the latter. Not one of these witnesses testified that such a contrivance was in use any place where, as here, electric light wires ran along a street, underneath those of the telephone or telegraph company, nor that under such circumstances, if one had been used, it would have prevented the wires from coming in contact with each other in case of a break. We were of the opinion at the trial that the plaintiff had not met the requirements laid down in the case from which we have quoted above, and we entered judgment of nonsuit. Nothing has been presented to us since the trial that convinces us that we erred in entering the nonsuit, and we therefore discharge the rule to strike it off.
    Rule discharged.

      Error assigned was order refusing to take off nonsuit.

      June 22, 1909:

      B. F. Davis, for appellant,
    cited: Dannenhower v. Western Union Tel. Co., 218 Pa. 216; Combs v. Tel. & Tel. Co., 218 Pa. 440; Fox v. Manchester, 183 N. Y. 141 (75 N. E. Repr. 1116); United Electric Ry. Co. v. Shelton, 14 S. W. Repr. 863; Economy Electric Light & Power Co. v. Hiller, 203 Ill. 518 (68 N. E. Repr. 72); Aument v. Tel. Co., 28 Pa. Superior Ct. 610; Delahunt v. Tel. Co., 215 Pa. 241.

      W. U. Hensel, for appellee,
    cited: Hand v. Tel., etc., Co., 1 Lack. L. N. 351.
   Per Curiam,

This judgment is affirmed on the opinion of the court below, refusing to take off the nonsuit.


author: Mr. Justice Stewart,

text:
    Shank, Appellant, v. Edison Electric Illuminating Company.

      Negligence — Electric light companies — Master and servant — Fellow servant.

    Where a lineman employed by an electric light company after having located a break in a circuit, turns off the current, and directs the electrician and engineer not to turn it on again until he is heard from, and the latter disregard his request and turn on the current, and he is injured, the lineman cannot recover from his company for his injuries without showing that eithef the electrician or the engineer had charge of the line or switch board, or some particular part of the company’s business, or what, if any, duty was delegated to either. In the absence of such proof the court is bound to hold that the electrician and engineer were fellow servants of the lineman.
    Argued May 17, 1909.
    Appeal, No. 364, Jan. T., 1908, by plaintiff, from order of C. P. Lancaster Co., Sept. T., 1897, No. 45, refusing to take off nonsuit in case of H. J. Shank v. The Edison Electric Illuminating Company.
    Before Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.

      At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Hasslek, J., filing the following opinion:
    The testimony in the trial of this case showed that the plaintiff was in the employ of defendant company as a lineman, on September 15, 1895, and had been so employed for several years. On that day there was some trouble with the wires of the company, which several attempts had been made to locate, at the switch board in the power plant. After ascertaining that the trouble was not on the circuit where they supposed it to be, the plaintiff returned to the power plant, and in the presence of the foreman of the linemen, the chief engineer of the company, and its chief electrician or consulting engineer, he made another attempt, and did locate the circuit on which the trouble was. He then threw off the switch of the circuit which turned the current from it, and told these three people to leave it open. He, accompanied by the foreman part way, went over the line, and found that the wire of defendant company had come in contact with the wire of another company on East King street about one and a half miles from the power plant. He climbed a pole, and was about to properly adjust the wires when he received a severe shock and was severely injured, for which injury he seeks to recover damages in this case.
    In his statement, as amended, the plaintiff alleges four acts of negligence (1) that the wires were crossed in another portion of the city; (2) that the defendant had an inexperienced foreman; (3) that its wires were not properly insulated; and (4) “that he turned or pulled the main switch that conducted electricity over the line that he subsequently went over and was injured, and at the time he did it, and, previous to his starting away from said power house, the defendant had knowledge thereof, and the representatives or officials and persons in employ of said company were informed thereof by the defendant, and also requested not to move the said switch, but to leave the same in the condition in which the plaintiff put it, that he was going out on the line to search for the trouble on the same and repair or correct it, that after the plaintiff left, and unknown to the plaintiff, the said defendant or its employees turned the said switch without the knowledge of or informing the plaintiff thereof, and caused the electricity to pass over the wire to where the plaintiff received his injuries, etc.” No testimony was produced to support the first two allegations of negligence, nor was there any testimony to show that the insulation of the wires was imperfect, or that any other kind of insulation was in general use, or if another kind had been used it would have prevented the accident. The testimony in support of the fourth act of negligence was that the chief engineer who had charge of running the engines of the company in the same room in which the switch board was located, together with the chief electrician or consulting engineer, some time after the plaintiff left to look for the trouble on the circuit on which he had located it, went to the switch board and tested for the trouble which they did not find. The engineer then changed the switch so as to turn the current on that circuit.
    We entered judgment of nonsuit at the trial because we were of the opinion that the turning on of the current into the wire upon which plaintiff was at work was the act of a coemployee, for which the defendant company was not liable. In this application to strike off the nonsuit, the only question for our consideration is whether the man who had charge of the engines in the room, in which the switch board was located, and who turned on the current, or the chief electrician, or consulting engineer, who was with him, were coemployees of the plaintiff or not.
    The cases are numerous in Pennsylvania where the distinction between an employee and a vice principal are pointed out. In the recent case of Hughes v. Leonard, 199 Pa. 123, it was claimed that a superintendent of a certain piece of work for the defendants was a vice principal, and that his knowledge of the defective rope, which broke and caused the accident for which the plaintiff sought to recover damages, was the knowledge of the defendant’s employer. In delivering the opinion of the court Justice Brown says: “No matter by what title called by those under him, and though he may have power to employ and discharge them, and, in directing them in their work, hold in his hands plans and specifications, the man selected by his employer simply to direct a set of men in their performance of a special piece of work is their fellow workman; generally and properly known as their foreman. For the consequences of his incompetency, his employer must respond to his coemployee; but the risk of his negligence is assumed by those who work with him. No incompetency of Sprague is charged, and his negligence, if he was negligent, was his own, and not that of his employers. He was not acting for them as their representative when the accident occurred; he was working for them. To have bound them by his negligence, his relation to them must have been that, so clearly defined in Prevost v. Citizens’ Ice, etc., Co., 185 Pa. 617: A vice principal for whose negligence an employer will be liable to other employees must be either, first, one in whom the employer has placed the entire charge of the business, or of a distinct branch of it, giving him not merely authority to superintend certain work, or certain workmen, but control of the business, and exercising no discretion or oversight of his own: New York, Lake Erie & Western R. R. Co. v. Bell, 112 Pa. 400; or secondly, one to whom he delegates a duty of his own which is a direct, personal and absolute obligation, from which nothing but performance can relieve him: Lewis v. Seifert, 116 Pa. 628; Ross v. Walker, 139 Pa. 42; Prescott v. Ball Engine Co., 176 Pa. 459.’”
    Tested by this case, the chief engineer was a coemployee and not a vice principal. He was not in entire charge of the defendant company’s business, or a distinct branch of it that had anything to do with turning on or off the current into or from the wire which caused the accident. Nor does it appear that any other duty than running the engines had been delegated to him by the defendant. When he turned on the switch he was meddling with something that was not part of his duties, as shown by the testimony, and if any accident resulted from such meddling, as did here, he was responsible for it to the injured party, but it did not bind the company. What the duties of the chief electrician or consulting engineer were we are not told. It does not appear that he had charge of the lines or switch board, or any particular branch of the defendant company’s business, or what duties were delegated to him by it. The burden was on the plaintiff to prove this fact, and having failed to do so, we cannot assume that he had such powers and duties delegated to him by the defendant as made him a vice principal.
    The cases of other states cited by counsel for the plaintiff to sustain the position that those at work in the power plant of an electric light company are not coemployees of the linemen, do not do so. In Zentner v. Oshkosh Co., 105 N. W. Repr. 911, it was the superintendent of the plant who turned on or failed to turn off the current. He was held to be a vice principal. It is stated in that case that if he had been engaged as chief engineer and chief electrician or consulting engineer, as here, in the common employment of ascertaining the trouble to the lines in order to repair them, he would have been a co-employee of the linemen. In Christ v. Wichita Gas, etc., Co., 83 Pac. Repr. 199, the person who turned on the current was the superintendent of the plant, who had previously told the linemen to go to work on the line, as the current had been turned off. The case also decides that a foreman is a fellow servant when laboring to accomplish a common object or purpose of the labor. In New Omaha Electric Light Company v. Baldwin, 87 N. W. Repr. 27, the superintendent was held to be a vice principal.
    It is a question also, whether even though the person who turned the current into the wire, on which plaintiff was working, and which caused the accident, was a vice principal, the plaintiff did not assume the risk of his employment, and would, on this account, be unable to recover. We will not discuss this, however, as we are firmly convinced that the person who turned on the current was a coemployee of the plaintiff, and that the defendant company is not liable but that the plaintiff must look to his coemployee, if the coemployee did what he should not have done, and thereby caused the injury.
    We, therefore, discharge the rule to show cause why judgment of nonsuit should not be stricken off.

      Error assigned was order of the court refusing to take off nonsuit.

      B. F. Davis, for appellant.
    The chief engineer and electrician and advisory engineer of the company were the persons at the power house, and having charge of those premises, and the switch board was in their room under their control and observation. It was placed there for the purpose of detecting trouble along the lines of their wires. Where else could the servant be expected to give notice of the trouble except to these parties having charge of this same switch board. They were the officers having the care of that particular department: Patterson v. R. R. Co., 76 Pa. 389; Zentner v. Oshkosh Gaslight Co., 105 N. W. Repr. 911; Smith v. Electric, etc., Ry. Co., 106 N. W. Repr. 829; Myhan v. Elec. Light & P. Co., 7 L. R. A. 172; Knowlton v. Edison Light Co., 90 N. W. Repr. 818; Cessna v. Ry. Co., 95 S. W. Repr. 277; Christ v. Wichita Gas, etc., Co., 83 Pac. Repr. 199; New Omaha Elec. Light Co. v. Baldwin, 87 N. W. Repr. 27; Daltry v. Media Electric Light, etc., Co., 208 Pa. 403.

      W. U. Hensel, for appellee.
    The engineer who turned on the switch was a coemployee: New York, Lake Erie, etc., R. R. Co. v. Bell, 112 Pa. 400; Prevost v. Citizens’ Ice, etc., Co., 185 Pa. 617; Lewis v. Seifert, 116 Pa. 628; Ross v. Walker, 139 Pa. 42; Prescott v. Ball Engine Co., 176 Pa. 459; Zentner v. Oshkosh Gaslight Co., 105 N. W. Repr. 911; Christ v. Wichita Gas, etc., Co., 83 Pac. Repr. 199; National Tube Works Co. v. Bedell, 96 Pa. 175; Ricks v. Flynn, 196 Pa. 263; Weger v. Penna. R. R. Co., 55 Pa. 460; Duncan v. Roberts Co., 194 Pa. 563; Keystone Bridge Co. v. Newberry, 96 Pa. 246; McGinley v. Levering, 152 Pa. 366.
    Plaintiff had, by his employment and experience, assumed the risk of the danger from which he suffered: Epperson v. Tel. Cable Co., 50 S. W. Repr. 795; Hart v. Allegheny County Light Co., 201 Pa. 234; Combs v. Tel. Co., 218 Pa. 440; Vant v. Roelofs, 217 Pa. 535; Best v. Staple Co., 218 Pa. 202; Kuhns v. Frick Coke Co., 216 Pa. 385; Taylor v. Penn Steel Castings, etc., Co., 217 Pa. 269; Cisney v. Penna. Sewer Pipe Co., 199 Pa. 519; Nye v. Penna. R. R. Co., 178 Pa. 134.
    June 22, 1909:
   Opinion by

Mr. Justice Stewart,

The plaintiff was a lineman in the employ of the defendant company. An interruption having occurred in the circuit, he ascertained by using the switch board at the power plant where the trouble was on the line. Before proceeding to make the necessary repair, in the presence of his foreman, the company’s electrician and the engineer in charge of the engine, he turned off the current, and told those present not to turn it on until he was heard from. He then started in company with his foreman to the place of interruption. Within a half an hour after he left, the electrician and the engineer went to the switch board and tested the circuit. No break being disclosed by the test, the engineer turned on the current, with the result that the plaintiff, then engaged with the wires in repairing the break, received the charge and was severely injured. Manifestly the plaintiff was injured through negligence not his own. Was it the company’s negligence or the negligence of a fellow employee? In the general business in which defendant is engaged, furnishing electric light and power, the interruption of the circuit from one cause and another is a matter of such frequent occurrence, that it is necessary to keep steadily employed trained men whose business it is to make repairs in the line and maintain it in working condition. It is alike necessary to employ others of technical skill to co-operate in this general work. The whole business of repairing the line, whether regard be had to the actual work on the line, or the care of the circuit while men are so engaged, must necessarily be done by employees engaged in the general business under the direction of the employer. It would be wholly impracticable for an employer to personally attend to such detail, and therefore it is that such work may be properly, and commonly is, intrusted to employees. Where this is so the duty of- the employer extends no further than to employ competent and suitable fellow servants and supply them with everything needed for the work. In all such cases the employee is presumed to have contemplated that work incidental to that which he engaged to do, would be done by fellow'employees, and he is held to have assumed all risk for their negligence in doing it. Here the whole dependence of the plaintiff was on the faithful and intelligent co-operation of the electrician and engineer, both of whom were admittedly competent. Both were in the employ of the company, neither of them, however, exercised any supervisory power over the plaintiff or the work. They simply assisted in the accomplishment of a common object, and were strictly coemployees: New York, Lake Erie & Western R. R. Co. v. Bell, 112 Pa. 400; Hughes v. Leonard, 199 Pa. 123. What was done by them, or either of them, in the matter of the turning on of the current, could not be regarded as the act of the defendant company, except it be held to be an absolute nondeligible duty of the employer to keep constant watch upon the switch to prevent the current being turned on every time an employee attempts to repair a line. We know of no authority which enforces such obligation. The learned judge directed a nonsuit, which he afterwards refused to remove, on the ground that it nowhere appears in the evidence that either electrician or engineer had charge of the line or switch board, or any particular part of defendant's business, or what, if any, duty was delegated to either. The opinion filed in discharging the rule to take off the nonsuit, amply vindicates the conclusion reached. Judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Burger, Appellant, v. S. R. Moss Cigar Company.

      Mechanic’s lien — Agreement not to file lien — Signature to agreement.

    1. An agreement between contractors for a building, as parties of the first part, and owner, after reciting the original building contract provided as follows: “ Now, for a valuable consideration, the said parties of the first part agree that no lien or claim of mechanics or material men or of any other nature whatsover, shall be filed by anyone whatsover, excluding the contractor himself, the parties of the first part hereto, or any subcontractor or material men, against the building herein mentioned and contracted to be erected on the premises above described.” The agreement was separate from the original contract and was duly filed in the prothonotary’s office. Held, that the agreement was a valid contract by which every person entitled by law to file a mechanic’s lien was prohibited from doing so.
    2. The purpose in the use of the language of the latter part of the clause beginning with the word “excluding” was not to limit or defeat the general prohibition against liens in the former part of the agreement, but to make more clear that no one, not excepting the parties named, should file a claim against the property.
    3. An agreement not to file mechanics’ liens signed by the contractor although not signed by the owner, and duly filed in the prothonotary’s office is sufficient notice to subcontractors and material men.
    4. A mechanic’s lien will not be stricken off which is regular on its face for matters dehors the lien.
    5. An agreement not to file mechanics’ liens, which is not a part of the original building agreement involves a matter of defense which can only be set up as a defense to a scire facias issued on the lien. If the lienor does not issue a scire facias, the owner or contractor may require him to do so, and thus secure an opportunity to set up the defense; but it is error for the court to strike off the lien merely because of the existence of a separate agreement not to file liens.
    Argued May 17, 1909.
    Appeal, No. 40, Jan. T., 1909, by plaintiff, from order of C. P. Lancaster Co., Mechanic’s Lien Docket, No. 7, p. 102, making absolute rule to strike off mechanic’s hen in case of Henry Burger, Agent, v. S. R. Moss Cigar Company, Owner or Reputed Owner, and H. G. and L. J. Dill, Contractor.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Rule to strike off mechanic’s hen. Before Landis, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order making absolute rule to strike off the hen.

      John E. Malone and John G. Johnson, with them H. M. Houser, for appellant.
    The court has not the jurisdiction to strike off a mechanic’s hen which is regular upon its face: Voigtman & Co. v. Cigar Co., 26 Lancaster Law Rev. 17; Connell v. Ker, 9 Pa. Dist. Rep. 145; King v. Reese, 11 Pa. Dist. Rep. 357; Gallagher v. Gangwisch, 11 Pa. Dist. Rep. 615; O’Hara v. Baum, 82 Pa. 416; Lee v. Burke, 66 Pa. 336; Miller v. Bedford, 86 Pa. 454; Bohem v. Seabury, 141 Pa. 594; North v. Yorke, 174 Pa. 349; Hall v. Publishing Co., 180 Pa. 561; Stoke & Co. v. McCullough, 107 Pa. 39; O’Hara v. Baum, 82 Pa. 416.
    The agreement, as filed, is not an agreement against the filing of liens, but, on the contrary, an agreement permitting the contractors and the subcontractors to file mechanics’ liens: Bithell v. Diven, 18 Pa. Superior Ct. 178; Murphy v. Morton, 139 Pa. 345; Moore v. Carter, 146 Pa. 492; Loyd v. Krause, 147 Pa. 402; Nice v. Walker, 153 Pa. 123; Murphy v. Ellis, 153 Pa. 133; Hotchkiss v. Barnes, 34 Conn. 27; Avery v. Stewart, 2 Conn. 69; In re Curtis-Castle Arbitration, 64 Conn. 501 (30 Atl. Repr. 769).
    An alleged agreement not to file liens is not sufficient notice to subcontractors and material men, etc., when signed by the contractor alone and not by the owner: Haspel v. O’Brien, 218 Pa. 146.

      W. U. Hensel and W. H. Keller, with them W. R. Brinton, for appellee.
    The meaning and effect of the stipulation is that the contractors should file no liens; and this stipulation excluded the contractors and all subcontractors and material men: Voigtman & Co. v. Cigar Co., 26 Lancaster Law Rev. 17.
    Where a particular word or words of a contract is susceptible of two meanings, one of which will uphold a contract and make it valid, and the other of which will destroy it and make it invalid, the former will be adopted so as to uphold the contract: Tiernan v. Jackson, 30 U. S. 580; Watts v. Camors, 10 Fed. Repr. 145; Mattocks v. Rogers, 16 Fed. Cas. 9,300.
    The decisions in reference to the waiver of the right to file liens hold “that any form of words which expresses or implies prohibition against the filing of liens will be sufficient ”: Cote v. Schoen, 1 Pa. Superior Ct. 583; Morris v. Ross, 184 Pa. 241; Craig v. Trust Co., 211 Pa. 7.
    The court had power to strike off the lien, on petition, when it was satisfied the subcontractors had no right to file liens: Blaisdell v. Dean, 9 Pa. Superior Ct. 639; Phelps v. Burns, 16 Pa. Superior Ct. 391; Knelly v. Horwath, 208 Pa. 487; Wharton v. Real Estate Inv. Co., 180 Pa. 168; Fidelity Mut. Life Assn. v. Jackson, 163 Pa. 208.
    June 22, 1909:
    It is sufficient if the contract of waiver of the right to file a lien be signed by the contractor; it is not essential that the owner sign it.
    A contract signed by one and acted on by the other party thereto is binding: Grove v. Hodges, 55 Pa. 504; Flannery v. Dechert, 13 Pa. 505; Beam v. Clark, 30 Fed. Repr. 225.
   Opinion by

Mr. Justice Mestrezat,

The plaintiff filed a mechanic's lien, which it is conceded is regular upon its face, and in accordance with the Act of June 4, 1901, P. L. 431, and its supplement. The S. R. Moss Cigar Company, the owner, presented a petition praying the court to strike off the lien on the ground that a contract waiving liens had been entered into by the owner and contractors and had been duly filed in the prothonotary’s office as required by the act of assembly. The court granted a rule to show cause why the prayer of the petition should not be granted. The plaintiff filed an answer in which he claimed the lien should not be stricken off because: (1) being regular upon its face, the court has no jurisdiction to strike it off; (2) the alleged agreement of waiver of liens was not an agreement against the filing of liens; and (3) the alleged agreement was not a valid contract as it was signed only by the contractors and not by the owner. The court below sustained neither of these positions, made the rule absolute, and struck the lien from the record. We will consider these positions separately, beginning with the second and concluding with the first.

The agreement signed by the contractors and duly filed in the prothonotary's office provided, after reciting the original contract, as follows: “ Now, for a valuable consideration, the said parties of the first part agree that no lien or claim of mechanics or material men or of any other nature whatsoever, shall be filed by anyone whatsoever, excluding the contractor himself, the parties of the first part hereto, or any subcontractor or materialmen, against the building herein mentioned and contracted to be erected on the premises above described.” The claim was filed for work and labor performed in and about the construction of the building. The plaintiff contends that this is not a contract waiving the right of the contractor, subcontractor or material men to file a claim; that they are excluded from the provision prohibiting the filing of a claim by the words: “excluding the contractor himself, the parties of the first part hereto, or any subcontractor or materialmen.” It is argued most strenuously that this clause of the agreement was inserted for the purpose of conferring on the contractor, subcontractor and material men, the right to file a claim against his property. With this contention we do not agree. While possibly the contract might have been stated in terms more clear and distinct, yet we think there can be no doubt, from its language, of the intention of the contractor and the owner. The agreement must be interpreted so as to carry out, if possible, the intention of the parties, and in construing it, as has been held, we must consider the subject-matter, the object intended to be effected by it, the general position of the parties and the circumstances surrounding them. This agreement was not a part of the original contract between the contractor and the owner for the construction of the building, but it was a separate agreement entered into for the manifest purpose of waiving the right to file claims against the property. It was filed in the prothonotary’s office, as provided by the statute, in order to give notice of the prohibition against liens. There can be no other reason for the existence of the agreement or for observing the statutory provision requiring it to be entered in the prothonotary’s office. Looking at the contract we see that the first clause provides “that no lien or claim of mechanics or materialmen or of any other nature whatsoever, shall be filed by anyone whatsoever.” There can be no difference of opinion as to the proper interpretation of this clause of the contract. It specifically prohibits the filing of a claim of any nature by any mechanic or material man. If the contract had ended here, there would be no ground whatever for the contention that it would not prohibit the filing of claims. This we think is, or must be, conceded by the plaintiff. He, however, relies upon the subsequent part of the agreement and contends that the language immediately following the part of the contract we have just quoted excludes the contractor, the subcontractor and the material men from the operation of the former part of the agreement. If this be true then the contract is meaningless, ineffective, and is no contract whatever. This is undoubtedly the result of the plaintiff’s contention because it eliminates from the contract, as parties who have no right to file a claim, the only parties who could avail themselves of such right. According to the plaintiff’s contention, the first clause, of the agreement prohibits specifically the filing of any claim by any mechanic or material man, but it is modified by the immediately succeeding clause so as to permit any person entitled thereto under the statute to file a claim. The effect of this construction is to place two clauses of a sentence in the contract in direct antagonism, and to avoid the agreement which was manifestly entered into and filed in the prothonotary’s office for the statutory protection of the owner of the real estate. We do not agree to such interpretation of the contract, nor of that part of its language relied upon by the plaintiff to produce such result. That language was, as suggested by the learned court below, merely explanatory of the former prohibition against filing of claims and was inserted to emphasize it. The purpose in the use of the language was not to limit or defeat the general prohibition against liens in the former part of the agreement, but to make more clear that no one, not excepting the parties named, should file a claim against the property. This interpretation gives effect to the whole agreement, makes it consistent throughout and carries out the manifest intention of the parties.

Section 15 of the act of June 4, 1901, as re-enacted in sec. 1 of the Act of April 24, 1903, P. L. 297, 3 Purd. 2490, provides as follows: “If the legal effect of the contract between the owner and the contractor is, that no claim shall be filed by any one, such provision shall be binding; but the only admissible evidence thereof, as against a subcontractor, shall be proof of actual notice thereof to him, before any labor or materials are furnished by him; or proof that a duly written and signed contract to that effect has been filed in the office of the prothonotary.” The contract in the case at bar was signed by the contractors only, and it is contended by the plaintiff that it was not such a contract as is contemplated by the act of assembly because the owner of the building failed to sign it. We think, however, that the signing of the contract by the contractors was a compliance with the statute. The prior Act of June 22, 1895, P. L. 369, provided that the right to file a lien should not be defeated unless a stipulation should be put in writing and “signed by the parties thereto prior to the time authority is given to the principal contractor to proceed with said work.” The subsequent and present act, however, provides that the agreement not to file claims shall not be available against a subcontractor unless he has actual notice of it before the labor or materials have been furnished, “or proofs that a duly written and signed contract to that effect has been filed in the office of the prothonotary.” There is a difference between the language of the two statutes. If it be conceded, as claimed by the plaintiff, that the owner as well as the contractor was required to sign the agreement under the act of 1895, it does not follow that both parties must sign it under' the provisions of the present act, which requires only “a duly written and signed contract.” When, however, we consider the purpose for which the contract is executed and the reason for filing it in the prothonotary’s office, there does not appear to be any necessitj^ for the owner to sign it. The statute authorizes any person furnishing labor or materials to the structure or improvement to file a claim, and the purpose of the contract, provided by the act, is to protect the owner against such claim. The contract between the contractor and the owner does not prevent the filing of the claim by a subcontractor unless he has notice of the contract. This notice may be actual, or it may be constructively given by filing a copy of the contract in the prothonotary’s office. If it is filed in that office within the statutory period, all parties furnishing labor or material in the construction of the building must take notice of its provisions and are bound by them. It is notice of the agreement of the contractor, and not of the owner, that no claim shall be filed, that prevents a subcontractor from filing the claim. Hence there is no necessity for the owner signing the contract. The agreement in the case at bar was not included in the original contract between the parties, but was a separate contract by which the contractor exercised his statutory right to agree that no claim should be filed against the property. There was no covenant in this contract for the owner to perform, nor anything which he agreed to do. No action would lie against the owner by the contractor for failing to do or not to do anything stipulated in the agreement. The acting party and the only party bound by the agreement was the contractor, and through him such subcontractors who had actual or constructive notice of the agreement. We are of the opinion that the agreement waiving the right to file claims was properly signed, and as it was duly filed in the prothonotary’s office, is a prohibition against the filing of claims by any subcontractor.

It was error for the learned court to strike the lien from the record. It is settled on reason and authority that a mechanic’s lien will not be stricken off which is regular on its face for matters dehors the lien. This rule was early established in this state and has been uniformly adhered to by this court. The right to a mechanic’s lien being entirely statutory, not only the right itself, but the method of enforcing it, must depend upon the statute, and must be pursued in strict compliance with the terms of the statute: 27 Cyclopedia of Law & Procedure, 317; Stoke v. McCullough, 107 Pa. 39. The statute enacts that the lien shall be enforced by a scire facias and provides the form of the writ. It also provides the mode of service of the writ and the defenses which may be made to the action. The lienor may proceed voluntarily on the lien, or the owner or contractor may require him to do so. The statute provides a remedy for the disposition of the lien by all parties concerned, and that remedy must be pursued. Mr. Justice Clark, speaking for the court in Stoke v. McCullough, 107 Pa. 39, said (p. 42): “The claim is a specific lien under the statute, and the court has no power over it, except in the form provided by statute. A scire facias is the legal means of its enforcement and either party may oblige the other to go to trial. If no scire facias be issued, the defendant may by rule proceed as if a scire facias had issued.” Matters dehors the hen can be made available to the defendant on a trial on a scire facias. They are matters of defense and necessarily can only be interposed as such on the trial under proper pleadings. A contract against liens in this case was not a part of the original contract between the owner and the contractor, and hence was not disclosed by the record of the lien. It could be made available, however, on the trial of a scire facias when offered as a defense to the plaintiff’s claim.

The existence of the contract, its legality, or its sufficiency to prevent the filing of a lien are questions which should be determined on the trial of the cause. When interposed as a defense on the scire facias, the plaintiff may contest its validity and defeat it as a defense by showing that it is a forgery, that it was not signed and filed in the prothonotary’s office as required by the statute, or by any other matter which would prevent its use for defeating the plaintiff’s lien. He may show that the contract under which he performed the labor or furnished the material was not the contract which waived the right to file a lien. This was done in the very recent case of Pagnacco v. Faber, 221 Pa. 326. That was a scire facias on a mechanic’s lien in which the owner defended on the ground that the contractor had waived the right to file a lien. The owner set up a contract under which he alleged the work was done which waived the right to file a lien; the claimant alleged and proved to the satisfaction of the jury that he had performed the labor under a subsequent contract which did not waive the right to file a lien. Mr. Justice Stewart delivering the opinion of the court said, inter alia: “The one issue of fact was whether Pagnacco, the claimant, had waived his right to file a lien. . . . The jury found that the original contract with Nyce (former owner) had been superseded by the contract with Faber, and that under the latter there was no waiver of the right to file a lien.”

In Lee v. Burke, 66 Pa. 336, Sharswood, J., delivering the opinion said, inter alia (p. 339): “The plaintiffs below had a right to accept the issue tendered of ‘no lien,’ as an issue of fact; because it might well be that for some cause dehors the record there was no lien; as, that the claim had not been in fact filed within six months after the work done or materials furnished, that the work was not done or materials furnished on the credit of the building, that the plaintiffs had bound themselves to file no claim, or that the building was not such a one as was within the acts of assembly; and there may be other defenses coming under the same category. But, as to defects on the face of the claim filed, they are not raised by such a plea.” And in the more recent cases on the subject, we have continued to recognize the principle, settled in the earlier cases, that a lien cannot be struck off for matter dehors the record, but the defendant must pursue the statutory method for relieving himself of the lien. In Thirsk v. Evans, 211 Pa. 239, the owner' moved the court to strike off a mechanic’s lien. While the question involved in the case was the right -to amend the lien, Mr. Justice Elkin delivering the opinion said, inter alia (p. 244): “A copy of the notice need not be set'out in the lien. That the form arid substance of the notice are in compliance with the provisions of sec. 8, are matters to be determined at the trial.” In the very recent case of McVey v. Kaufmann, 223 Pa. 125, Mr. Justice Brown, after quoting with approval the above extract from the opinion in Thirsk v. Evans, said (p. 127): “The notice being no part of the lien, the only remedy for a defect in it is not, as counsel for the appellees contend, to move to strike it off, but defense may be made on the trial that there was rio right to file it, though regular on its face, just as such defense may be made, if, as a matter of fact, the lien was filed too late or the labor or materials were not furnished. It is a substantive defense on a matter dehors the lien.”

While we are compelled to reverse the judgment of the court below on the ground of error in striking the lien from the record, our conclusion on the other two points in the case will defeat an action on the scire facias, unless the contract against filing the lien can be invalidated by other matters than those made to appear on this appeal. If, as we hold, the contract is valid and effective against the filing of claims, it- will be a complete defense to an action on a scire facias issued on the lien.

The assignments of error are sustained, the judgment is reversed, and the mechanic’s lien is reinstated.