text:
    Lee, Appellant, v. Marsh.

      School children — Vaccination—Method to be used — Form of certificate ■ — Constitutional law — Act of June 18, 1895, P. L. 808.

    1. The moaning of the term “vaccination” as used in the Act of June 18, 1895, P. L. 203, which prohibits the attendance of a child at school without a certificate of successful vaccination, or of its having had the smallpox, is inoculation with the virus of cowpox for the purpose of communicating that disease as a prophylactic against smallpox, and the test of its success is the appearance of the symptoms of the disease including those which manifest themselves on the skin.
    2. Under the act of 1905 the state health department has power to regulate the form of certificate to be used, so as to prevent ambiguity and to require the certifying physician to use words in the same sense with which they are used in the act.

      Argued Nov. 2, 1910.
    Appeal, No. 203, Oct. T., 1910, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., Jan. T,, 1909, No. 956, dismissing bill in equity in case of Harry E. Lee and Dorothy M. Lee by Harry E. Lee, her father and next friend, v. L. A. Marsh,'successor to W. E. Borger, principal of the Edgewood public school.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Miller, J., specially presiding, found the facts to be as follows:
    1. The plaintiff, Harry E. Lee, is a resident of the borough of Edgewood, this county and state, and is a citizen of Pennsylvania; as such he has a prima facie right to have his daughter, Dorothy M. Lee, eight years of age, residing with him, attend the public school of said Edge-wood borough school district. The defendant, W. E. Bor-ger, was, when this bill was filed, the duly elected principal of the schools of said district, and his successor is L. A. Marsh, substituted as defendant upon the hearing of the case.
    2. On or about September 7, 1908, there was presented by Dorothy M. Lee, who was of proper school age, to the defendant, W. E. Borger, then principal of the Edgewood public schools, the following certificate, exhibit “A,” attached to the plaintiff's bill:
    “certificate of vaccination.
    £‘ Wilkin,sburg, Pa., September 7th, 1908.
    “Mr. W. E. Borger,
    “Principal of Edgewood School.
    “After personal examination of Dorothy M. Lee, age
    7 years, residence No. 124 Elm St., . Ward, I
    hereby certify that she has been successfully vaccinated.
    “W. It. Stephens, M. D.
    “Office No. 814 Wood St.”

      Certificates in the foregoing form had been previously-accepted by said defendant.
    3. The defendant, Borger, having received notice from, or through the department of health, by the commissioner of health and his advisory board, that certificates of vaccination must be in the form prescribed by him, which certificates or forms were then in his possession, and which had been prescribed for use since September 15, 1905, refused to accept the foregoing certificate marked exhibit “A” from Dorothy M. Lee, gave her one of the forms so prescribed by the department of health, to be duly filled out, said form being as follows, exhibit No. 9:
    “Form 10.
    “I hereby certify that on the.day of., 190. ., I vaccinated.Age.Address. and that on the.day of., 190. ., I find a resulting sore, which in my opinion means a successful vaccination.
    “.M. D.
    “Address.
    “All certificates bearing date after Sept. 15, 1905, must be in above form.”
    Whereupon said certificate or form on the following morning was returned by Dorothy Lee, exhibit No. 1, filled out as follows:
    “Form 10.
    “I hereby certify that on the 7th day of Sept., 1908, I vaccinated Dorothy Martin Lee, Age 8, Address 124 Elm St., and that on the.day of., 190. ., I find a result which in my opinion means a successful vaccination.
    “W. R. Stephens, M. D., “Address 814 Wood St.
    “All certificates bearing date after Sept. 15, 1905, must be in above form.” '

      In addition to the omission of the date in the foregoing certificate, the original blank is changed by striking out. the syllable “ing” in the word “resulting,” and also striking out the word “sore.”
    It also appears that the date of the vaccination was the day preceding the date of presentation of the certificate.
    4. By the advice of the school board of said district, the foregoing certificate, exhibit No. 1, with like certificates presented at the time were, by the defendant, sent to the state commissioner of health, Dr. Samuel G. Dixon, who, under date of October 5, 1908, returned said certificate and replied as follows, exhibit No. 3:
    “Samuel G. Dixon, M. D.
    “Commonwealth of Pennsylvania
    “Department of Health
    “Harrisburg.
    “October 5, 1908.
    “Prof. W. E. Borger,
    “Edgewood Park, Pa.
    “My Dear Sir:—
    “Your favor of recent date is at hand and contents carefully noted.
    “In reply I beg to advise you that the Act of June 18, 1895, Section 12, is specific in requiring a certificate of successful vaccination, which result follows the application of vaccine virus to a cutaneous surface with a resulting sore and scar formation, the latter constituting conclusive evidence of a successful result.
    “In view of the specific requirements of the Act, bogus certificates such as the inclosed should not be accepted.
    “Very truly yours,
    “Samuel G. Dixon.”
    5. The theory and method of vaccination as applicable to school children, prescribed by the department of health, through the said commissioner of health and his advisory board, was determined upon and is set- forth in official circular No. 14, exhibit No. 10, the same being duly promulgated to all as required by the statute hereinafter referred to, and being made a part of this finding; said rules and regulations as described in said circular, after setting forth data with respect to smallpox upon persons vaccinated and not vaccinated, provides as follows:
    “The part should be prepared (preferably the left arm if the person is right handed) by thorough washing with soap and water, rubbing sufficiently to produce a slight surface redness — after which the part should be rinsed with boiling water and then by alcohol.
    “If the subject be a male, scarify over the insertion of the deltoid; if a girl, higher up near the shoulder or on the leg if desired.
    “The lymph should be forced out of the tube upon the disinfected skin by means of a rubber bulb. It should never be blown out of the tube.
    “Grasp the arm with the hand, rendering the skin tense over the site of operation and with a scalpel or needle that has been sterilized in a flame, gently scrape and scarify the area covered by the drop of lymph until the true skin is bared.
    “A space of an eighth of an inch in diameter should be scarified. Always endeavor to avoid bringing blood.
    “After allowing the area to dry, a clean, soft handkerchief or a soft cotton cloth (recently sterilized by boiling), is fastened to the shoulder of the under garment in such a manner that it will hang down over the wound, thus preventing irritation from rubbing of the clothes. No other dressing is necessary.
    “The following well-known succession of events appearing ordinarily after a successful inoculation should be explained fully to patients or their family, who should be instructed to consult a physician in the event of untoward symptoms.
    “Within three to five days, according to the activity of the virus, vesicles appear at the edges of the scarification and an area of redness appears around it, which is attended by considerable itching. Patients should be especially cautioned never to scratch it or permit dirt of any kind to get into the wound.
    “About this time the glands under the arm may become slightly swollen and tender, and there may be slight fever and loss of appetite. About the tenth day the sore begins to dry with the formation of a scab a few days later.
    “They should be instructed to observe care not to injure the scab, but allow it to dry up and fall off spontaneously, after which it should be burned.
    “Upon the appearance of the typical vesicle and resulting sore a certificate of successful vaccination should be issued and never before.”
    In connection with the foregoing official circular the foregoing blank certificates of vaccination, exhibit No. 1, had been prescribed by the department of health, and were at the time of the beginning of this action in the possession of the defendant, and presumably of all other persons interested.
    6. The vaccination of Dorothy M. Lee by the physician, who signed the foregoing certificates, was “by the giving of vaccine virus (triturated virus) through the alimentary canal, through the mouth .... in a powder form.”
    The foregoing is a method of vaccination recognized by the International School of Homoepathy.
    7. As a fact of which judicial notice is taken, since the discovery of vaccination by Dr. Jenner, the method as generally recognized by a great majority of definitions, descriptions and medical authorities of all the dominating schools of medicine, is by applying the virus to a scarified portion of the body.
    On the facts as found Miller, J., dismissed the bill.
    On exceptions to the findings of fact and conclusions of law, Shafer, J., filed the following opinion:
    Without undertaking to discuss in detail the exceptions to the findings of fact and conclusions' of law, we are of opinion .that the whole case really turns upon what is the meaning of the term “vaccination” as used in the act of 1895, which prohibits the attendance of a child at school without a certificate of successful vaccination, or of its having had the smallpox. The ordinary and usual meaning of “vaccination,” and the sense in which it must be supposed to have been used by the legislature, is inoculation with the virus of cowpox for the purpose of communicating that disease as a prophylactic against smallpox. It indicates an operation, and not a result. If a person should take cowpox by milking cows, or otherwise, or from other contact with the disease he could not be said to have been vaccinated. The operation is comparatively old, having been in use for over 100 years, and during that time has always consisted of inoculating the body, that is, grafting upon it the disease, by inserting the virus under the skin, and the test of its success has always been considered to be the appearance of the symptoms of the disease including those which manifest themselves on the skin.
    It appears in this case that for some years past another method of guarding against smallpox has come into use more or less extensively, which, as we understand it, consist in attenuating to a high degree the virus of smallpox, or of cowpox, the attenuation of the virus of smallpox being called variolinum, and that of cowpox, vaccininum, and administering one or the other of these substances by the mouth, and it is claimed that in this way there are produced in the body practically the same symptoms as are produced by vaccination except the exterior and local inflammation, and that either of these methods has the same preventive virtue as ordinary vaccination. From what is known of the use of toxins of other diseases this would seem to be possibly true, but whatever it may be, and whatever the result may be, it is not vaccination as the term is used in the act.
    The term “vaccination,” however, appears to be used by some physicians at least, as general term for the introduction into the body, by any method, of any kind of virus as a preventive of disease, and it is plain that in this case the physician who certified to the successful vaccination of the plaintiff used the term in this general sense and not in the sense of the act. In order, therefore, to guard against such ambiguous use of the term by which the act would be evaded, the health department, under the terms of the act of 1905, prescribed a form of certificate which would prevent such ambiguity, and the requiring of that form is really what is complained of in this case. It was strenuously argued that the authority given by the act of 1905 to the health department to fix forms of certificates is a delegation of legislative power and if it is claimed to authorize that board to require safeguards against disease which the act does not substantially require, it would be open to that objection. But all we understand the act of 1905 authorizes, and all that the department has done in this case, is to regulate the form of the certificate so as to prevent ambiguity, and to require the certifying physician to use words in the same sense with which they are used in the act.
    For these reasons we are of opinion that the certificáte required by the board of health was lawfully required by them, and that its use is obligatory.
    The exceptions are, therefore, dismissed.
    And now, to wit, September 10, 1910, this cause came on to be heard, having been argued by counsel upon bill, answer, replication and testimony, the court having filed its findings of fact and conclusions of law, and having passed upon the exceptions thereto filed by the plaintiffs and upon consideration thereof, it is now ordered, adjudged and decreed that the injunction heretofore granted be dissolved and the bill of complaint filed in this case be dismissed at the cost of the plaintiffs.

      Error assigned was decree dismissing the bill.

      James T. Buchanan, with him Hermann L. Grote and Frederick C. Grote, for appellant.
    The duty of enforcing the provisions of the act is specifically imposed upon, and rests solely with, the principals and other persons in immediate or active charge of the schools; school directors, or health authorities of the district or municipalities are not such other persons: Com. v. Rowe, 218 Pa. 168; Cousins v. School District, 28 Pa. C. C. Rep. 381.
    January 3, 1911:

      John D. Meyer, for appellee,
    cited: Isenhour v. State, 157 Ind. 517 (62 N. E. Repr. 40); Blue v. Beach, 155 Ind. 121 (56 N. E. Repr. 89); Jacobson v. Massachusetts, 197 U. S. 11 (25 Sup. Ct. Repr. 358).
   Per Curiam,

The decree in this case is affirmed at appellants’ costs on the opinion of the court below dismissing the exceptions to the findings of fact and conclusions of law of the judge specially presiding.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Bell’s Estate.

      Executors and administrators — Administrator d. b. n. c. i. a. — Surcharge — Duty to collect — Entries in account books — Evidence.
    1. An administrator d. b. n. c. t. a. will be surcharged with the amount of a certain cash balance where it appears that from the date of testator’s death the assets were practically in his possession and when, therefore, the original administratrix died and letters were granted to him no transfer was necessary; that among the assets was at that time a cash balance on hand on deposit, of the amount in question, subject to his control; and that even if this fund had not in fact been in his possession his own books showed a liability for this amount on the part of the deceased administratrix which it would have been his “proper duty” to have enforced because they were decedent’s assets in course of administration.
    2. An administrator d. b. n. c. t. a. is properly surcharged with the proceeds of a sale of real estate where such surcharge is based upon entries in books kept by himself and it appears that he had exclusive charge of the testator’s business and assets, that he filed no account, and that the only record of the course of his administration was what he voluntarily wrote in the books in question.

      Argued Nov. 2, 19.10.
    Appeal, No. 151, Oct. T., 1910, by J. McF. Carpenter and William B. Secrist, executors, from decree of O. C. Allegheny Co., Sept. T., 1908, No. 42, dismissing exceptions to adjudication in Estate of Thompson Bell, deceased.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts appear in Bell’s Estate (No. 1), 226 Pa. 531, and in the following opinion of Hawkins, P. J., on rehearing:
    The former decree made in this court was reversed on appeal with this suggestion:
    "We think the account should be restated so as to show clearly and definitely the assets which actually came into the hands of James M. Bell as administrator d. b. n. c. t. a. of the estate of Thompson Bell, deceased, of which, in the proper discharge of his duty he should have collected.”
    And turning to the discussion on the opinion it is found that the difficulty arose out of confusion in the evidence relating to two items of surcharge: (1) The balance in the Western Bank; and (2) the proceeds of sale of Stowe township lots.
    The attention of this court will therefore be directed especially to these matters.
    1. In order to a proper understanding of this question, it is necessary a preliminary statement should be made: Mr. Bell sometimes did business in his own name, sometimes under that of the Western Bank, and sometimes under that of the Western Savings Bank. He had no partner; and accordingly in the settlement of his estate these assumed names were treated as merely formal and the assets in whatever character they appeared, as his assets. He died in 1886, leaving a will in which his niece Mrs. Emma M. Bell, and James M. Bell, were appointed executors, the term of the latter being limited to one year. Mrs. Bell united in taking out letters and in filing accounts; but took no part in the business of administration even to the extent of drawing a check: James M. Bell, who had been his uncle’s bookkeeper and was familiar with his affairs, took up the business of exclusive administration at his uncle’s death, and continued until the time of his own death. Books carefully kept by himself show the course of administration. In the investigation here the deposits were eliminated. From the date of Thompson Bell’s death until his own, the assets were practically in his possession; and when therefore Mrs. Bell died and letters were granted to him no transfer was necessary. Among these assets there was at that time a cash balance on hand of $2,235.34 on deposit, subject to his control. Even if this fund had not in fact been in his possession, his own books showed a liability for this amount on Mrs. Bell’s part which it would have been his “proper duty” to have enforced because they were decedent’s assets in course of administration.
    2. In 1881, Mr. Bell bought a tract of land in Stowe township, which he subdivided into a plan of lots, and afterwards conveyed the legal title to certain of these lots to Mrs. Bell, for reasons which have not been explained and are not material. When Mrs. Bell died in 1896, the legal title to some of these lots still remained in her, and in 1899 James M. Bell as administrator sold Thompson Bell’s equity in them to Mrs. Bell’s children for $20,000. This appears in the ledger of the Western Bank in his handwriting on the credit side without date in the account of “Stowe Township lots,” page 535 as follows: “Sold to account of E. M. Bell, guardian, $20,000;” and on page 128 debit side of same ledger, “March 30th, 1899, Stowe Township lots 40 — $20,000.” Corresponding entries appear in books kept by Mr. Bell for Mrs. Bell as guardian of her children, and continued by him after her death known as “E. M. Bell guardian account.” These entries are:
    “Cr. Cash Book March 30, 1899, Stowe township lots.$20,000

      Journal March 30, 1899, Stowe township lots
    Debtor cash lots in McKees Rocks borough. 20,000
    Dr. Ledger March 30, 1899, Lots McKees Rocks. 20,000
    Cr. Ledger Cash Account March 30, 1899 . 20,000”
    These guardian books show on hand when the entries were made over $31,000 — which was reduced to the extent of this $20,000 payment on March 30, 1899. No deed was made by Mr. Bell, although he had power under Thompson Bell’s will; Sheets’s Estate, 215 Pa. 164; but it is enough that his method of extinguishing the equitable title was approved and ratified by Mrs. Bell’s children. Objection is made that this is simply a method of bookkeeping; that it does not appear that a dollar was ever paid by Mrs. Bell’s children to James M. Bell. Aside from the significance of these entries, it is answered that there is no reason why Mrs. Bell’s children should be given this credit; they are not the only parties interested in the fund under Thompson Bell’s will; and that James M. Bell who was acting executor under Mrs. Bell credited Mrs. Bell's children with payment of this purchase money as above shown. The suggestion of lack of evidence that Mr. Bell received any purchase money has no merit. His own entries show he made a sale and received the proceeds. There could have been no occasion for these entries unless this was true. Good bookkeeping might have required formal debit and credit of this equitable title as being an unadministered asset on hand if that had been the fact, but the entry of consummated sale was an averment that this was an administered asset ready for distribution. The moving finger writes and having writ moves on; and nothing can change a line or blot out a word of it.
    It will thus be seen that the basis of these items of surcharge is the books kept by Mr. Bell himself. He had exclusive charge of the business and the assets; and the only record of the course of his administration is what he voluntarily wrote in them. He filed no account and ex-ceptants were therefore forced to rely upon these books as representing the facts.
    The court therefore finds that exhibit No. X, attached hereto and made part hereof, shows definitely and clearly the assets which accountant actually, or ought to have, received.
    It was suggested at the hearing that inasmuch as these accountants inadvertently omitted to claim compensation in the account filed, allowance should be made for Mr. Bell’s services. The question does not appear to be within the scope of the matter submitted; but this court suggests in the interest of justice that the services rendered by Mr. Bell are deserving of recognition. His failure to file an account has, to say the least, increased the expenses of settlement; but in view of the fact that he has rendered valuable services extending over a long period and seems to have kept accurate books, there would seem to be a balance of compensation due him.
    The accountants have charged themselves with $46,477.89, and the court surcharges them with $79,541.81, making a total of $126,019.70, which may serve as a basis on which commissions may be calculated if the Supreme Court sees fit to make an allowance. Exceptant’s counsel contends that Mr. Bell was fully compensated in Mrs. Bell’s lifetime, but it does not appear that he was compensated for services rendered as administrator.
    Exceptions to the adjudications were dismissed.

      Error assigned was in dismissing exceptions to adjudication.

      J. McF. Carpenter, with him George N. Chalfant and William B. Secrist, for appellants.

      W. K. Shiras, with him C. C. Dickey, for appellee.

      January 3, 1911:
   Per Curiam,

The decree in this case is affirmed at appellant’s costs on the statement of the learned president judge of the court below on the rehearing.


text:
    Kunzman v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Evidence—Rebuttal.
    In an action against a street railway company to recover damages for personal injuries, where several witnesses for the defendant, after testifying that they saw the plaintiff run towards a car and attempt to get on when it was in motion, are confronted with another person in court, and they assert he was not the man, such person may be called in rebuttal to testify that he remembered the accident, and that it was he who had rim towards the car while it was in motion.
    Argued Nov. 2, 1910.
    Appeal, No. 134, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny County, First T., 1908, No. 106, on verdict for plaintiff in case of John P. Kunzman v. Pittsburg Railways Company.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for personal injuries. Before Swearin-gen, P. J.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $4,350 and judgment thereon. Defendant appealed.

      Error assigned among others was the admission of the, testimony of H. J. Williamson in rebuttal.

      Craig Smith, with him Clarence Burleigh and William A. Challener, for appellant.

      L. K. Porter, with him S. G. Porter, for appellee.

      January 3, 1911:
   Per Curiam,

This appeal is barren of merit, for the single question raised by it is entirely free from difficulty. The appellee testified that, as he was about to board a car of the defendant company after it had stopped at a street crossing, having his right foot on the running board and holding the handle bar with one hand, it was started with a sudden jerk and he was thrown off. Two witnesses who knew him and saw the accident — one of them being on the car at the time — corroborated his statement as to how it occurred. The defense was that he was injured in an attempt to get on the car while it was in motion. Several witnesses called by the defendant testified that they saw him running to catch it as it was moving and that as he grabbed it he was thrown to the ground and his foot crushed by the wheels. The conductor and motorman were among these witnesses, and they testified that only one man had run towards the car while it was in motion, and that he was the appellee. The question of the identity of the man who ran towards the car while it was moving was thus raised, and if, as a matter of fact, it was another man who ran towards and got upon it when the appellee was injured, it was clearly his right to show this in rebuttal. H. J. Williamson was in court during the trial. He was pointed out to the witnesses who testified that they had seen the man running to the car, and, when asked whether he was that man, they replied that he was not. He was then called in rebuttal and testified that he remembered the accident and that it was he who had run towards the car while it was in motion and boarded it at the time the appellee was injured. This testimony was strictly rebuttal, and, even if not, it is to be remembered that the rule as to rebutting evidence is liberally expounded in subserving justice: Graham v. Lane, 3 Brewst. 92.

The single assignment of error, complaining of the admission of Williamson’s testimony, is overruled, and the judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Connelly v. Pittsburg Railways Company, Appellant.
    January 3, 1911:

      Negligence — Street railways — Trial—Objectionable remarks of counsel —Withdrawal of juror — Practice, O. P.

    In an action against' a street railway company to recover $10,000 damages for personal injuries the trial judge commits reversible error in refusing to withdraw a juror when counsel for the plaintiff in his argument to the jury says, “Now, how much will she lose in the future? Do you think she will ever get fit for work? Remember almost four years have passed. If she did not get better in that time, she never will. She is twenty-nine years of age. The life tables use eighty as a basis. She has an expectancy of twenty-five years. Suppose she only makes $600 during the balance of the time. There is something like $18,000 or $20,000 for loss in earning power in the future” there being no proof as to life tables or expectancy and no evidence to sustain such an argument. .
    Argued Nov. 2, 1910.
    Appeal, No. 150, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny County, March T., 1907, No. 690, on verdict for plaintiff in case of Sadie Connelly v. Pittsburg Railways Company.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass for personal injuries. Before Brown, P. J.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $8,000 and judgment thereon. Defendant appealed.

      Error assigned among others was refusal to withdraw a juror.

      Walter M. Lindsay, with him Clarence Burleigh and William A. Challener, for appellant.

      L. K. Porter, with him Robert E. Price and S. G. Porter, for appellee.
   Opinion by

Mr. Justice Elkin,

We are of opinion that the second assignment of error must be sustained and the judgment be reversed with a venire. Counsel for appellee in his argument to the jury-said, inter alia: “Now, how much will she lose in the future? Do you think she will ever get fit for work? Remember almost four years have passed. If she did not get better in that time, she never will. She is twenty-nine years of age. The life tables use eighty as a basis. She has an expectancy of twenty-five years. Suppose she only makes $600 during the balance of the time. There is something like $18,000 or $20,000 for loss in earning power in the future.” Counsel for appellant then called the attention of the trial judge to these improper remarks, requested a juror to be withdrawn and moved that the case be continued. The motion was refused and this refusal is made the subject of the second assignment of error. That it was error must be conceded, but it is argued that it is not substantial or reversible error. We cannot accept this view of it. In the statement of claim the amount of damages sought to be recovered was fixed at $10,000. In several recent cases this court has held it to be reversible error for counsel or court to direct the attention of the jury to the amount of damages claimed in the declaration, because such statements are ex parte and may or may not have any substantial foundation in fact. They furnish no proper or legal measure of the damages to be recovered for the injuries suffered. The party asking for damages must prove them. The claims amount to nothing without the proofs. In the case at bar there was no proof as to life tables or life expectancy and therefore nothing in evidence upon which to base the argument about which complaint is made. There is nothing in the record to justify the argument and whether made inadvertently or intentionally the result is the same. The jury was told that the appellee had suffered a loss in earning power thus measured of from $18,000 to $20,000, twice as much as she claimed. The manifest purpose of the argument was to increase the amount of the verdict. There was no evidence to sustain the argument and it comes within the rule of the line of cases cited by appellant in which judgments were reversed for similar reasons: Reese v. Hershey, 163 Pa. 253; Wagner v. Hazle Township, 215 Pa. 219; Dougherty v. Pittsburg Rys. Co., 213 Pa. 346; Quinn v. Rapid Transit Co., 224 Pa. 162; Hollinger v. York Rys. Co., 225 Pa. 419.

It is unnecessary to discuss the remaining assignments because the matters complained of can be called to the attention of the court at the next trial when if more definite instructions are required counsel can secure the same by points or requests.

Judgment reversed and a venire facias de novo awarded.


text:
    Hodges, Appellant, v. McGovern.

      Practice, C. P. — Amendments—Justice of the peace — False arrest— Constable. ,
    1. Where a justice of the peace and a constable are sued in their official capacity for false arrest without notice in writing delivered to the justice thirty d|ays before the suit, as required by the Act of March 21, 1772, 1 Sm. L. 364, an amendment, charging that the arrest was made in pursuance of a conspiracy and to compel payment of a judgment founded upon a contract, and that the arrest was made without a writ, will not be permitted to be filed, inásmuch as the amendment is an entire change in the cause of action.
    2. While the statutes of amendments are to be construed liberally so as to give effect to their clearly defined intent and to prevent the defeat of justice through mere mistake, they will not be allowed to the prejudice of parties by introducing a new cause of action or bringing in a new party, or changing the capacity in which he is sued.
    Argued Nov. 2, 1910.
    Appeal, No. 14, Oct. T., 1911, by plaintiff, from judgment of Superior Court, April T., 1910, No. 148, reversing judgment of C. P. No. 4, Allegheny Co., Third T., 1907, No. 874, on verdict for plaintiff in case of Thomas F. Hodges v. Charles C. McGovern and Charles W. Campbell.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Trespass for unlawful arrest and false imprisonment.
    Appeal from Superior Court. See Hodges v. McGovern, 43 Pa. Superior Ct. 566.
    The following opinion was filed by Orlady, J.:
    In 1907 the plaintiff purchased a set of books from the Weedon-Erick Book Company5 under an installment contract, which provided that title to the property should remain in the vendor until the consideration was fully paid, and having defaulted in his payments the vendor brought suit in trover for the value of the goods and obtained a judgment therefor before Charles C. McGovern, an alderman, for $99.00. Hodges failed to pay this judgment and as alleged by him a capias was issued thereon, directed to Charles W. Campbell, a constable, and he was taken into custody by the constable and detained in the office of the alderman for several hours.
    This action of trespass was brought by him against McGovern as an alderman and Campbell as a constable, for unlawful arrest and false imprisonment. The record shows that the action is against them in their official capacity, as the title to the action and the statement in the court below designates them as such, and it is admitted that no notice in writing had been delivered to the alderman at least thirty days before the suing out of the same, clearly and explicitly containing the cause of action, as required by the Act of March 21, 1772, 1 Sm. L. 364, 2 Stewart’s Purdon, 2162.
    Evidence of a second arrest was excluded, the offer being to show that' the plaintiff was arrested on a warrant and capias, but was subsequently discharged on a habeas corpus, so that this record has to deal with only the first arrest and detention. The statement filed shows that the complaint was based upon the illegal acts of the defendants done and performed by them as alderman and constable, and with the record in that condition it is practically conceded that there could not have been any recovery. However, an amendment was permitted, which alleged that the defendants wickedly, maliciously and unlawfully conspired together for the purpose of arresting the plaintiff and depriving him of his liberty in order to compel bim to pay a certain judgment which was founded upon a contract, and that McGovern, as alderman, and Campbell, as constable, pursuant to this conspiracy, without writ or warrant, did arrest the plaintiff. The trial judge disposed of this contention as follows: “My first impression was that possibly this old act of 1772 had some bearing on the facts connected with what is called the first arrest; because plainly, if what the defendants claim is true, the arrest was made under color of law, or under color of the official positions held by these defendants respectively, and I thought that perhaps the act of assembly might apply to such a case as that, but I am satisfied that the act does not apply to such a case, and that the alderman and constable are not protected by that act if what the plaintiff claims be true, because they did not make this arrest in the exercise of their office, but made it without any authority at all, no warrant having been issued by the alderman, and the constable having no warrant or vfait of execution upon which he could base his authority to make the arrest,” and held that the alderman was not entitled to the notice provided for in the act of 1772. The case was submitted to the jury, which returned a verdict of $500 against the defendants, designating them by their respective offices.
    We cannot agree with this interpretation of the testimony. The plaintiff testified, that when he was in his office, Campbell came to him and said: “ 'I want you.’ I said, ‘ What for?’ He said, ‘ Come over to the alderman’s office and you will find out.’ I said, ‘Well, can’t I see my attorney?’ We went up and explained to Mr. Behen that I was wanted, arrested, taken and wanted over at Alderman McGovern’s office. Mr. Behen said, ‘I will be over there just as soon as I am through here in this case.’ I went in custody of the constable over to the alderman’s office, the constable had said I was under arrest.” The plaintiff accompanied the constable to the alderman’s office and remained there by direction of the constable from 3:30 to 5 o’clock in the afternoon, waiting for the return of his attorney. The attorney testified that he had appeared and asked the alderman “What the trouble was about, he said, ‘I have arrested Hodges and he has got to pay that bill or I will put him in jail if he does not.’ I said, ‘ Do you have authority to do this? You had better go slow.’ He said that he did have the authority to do it, and that he would commit Hodges to jail if he didn’t pay the bill.” The constable testified that he arrested the plaintiff herein on an execution, with a capias clause, which he exhibited on the witness stand, but which is not printed in the paper-book.
    To justify this amendment, it is urged by the appellee that the defendants were sued under a misapprehension that a tort had been committed by the alderman and constable in their respective official capacities; but that on the trial, it was developed by the alderman’s docket that no writ had been issued, and that the amendment changed the form of action so as only to charge them with a tort committed by them under color of their office and not by virtue of the same. This distinction is entirely too refined. While there was some controversy on the trial as to the correctness of the alderman’s docket, both the alderman and the constable testified that at the time the plaintiff herein'was taken into custody, a writ had been issued and was then in the hands of the constable, although not properly noted on the docket, and in submitting the question to the jury the court said: “If such a writ was issued and the constable had it, he is protected as well as the alderman and there could be no recovery against them. If such a writ was not issued, and this exhibit was an afterthought, and this plaintiff was arrested without a writ of execution with a capias clause, then the constable and alderman, — for the alderman seems to have been expecting him at his office, — if you believe the testimony produced on the part of the plaintiff, exceeded their authority, and are answerable in. damages.”
    In Trego v. Lewis, 58 Pa. 463, it was said: “Undoubtedly the courts will never permit a party to shift his ground or enlarge its surface by introducing a new and different cause of action, especially when by reason of the statute of limitations, or an award of arbitrators, or for some good reason, it would work an injury to the opposite party.” In Kille v. Ege, 82 Pa. 102, it was said: “Amendments depriving the opposite party of any valuable right shall not be allowed.”
    Under the pleadings, at the time the amendment was allowed, the lack of notice required by the act of 1772 was a bar to the action; and under the undisputed testimony, the present plaintiff was taken into custody by an officer of the law, notified that he was under arrest, then taken to the office of an alderman, who confirmed the statement of the constable that he had “arrested Hodges and he has got to pay that bill, or I will put him in jail if he doesn’t.” These were acts which could only be interpreted as being by virtue of their offices of alderman and constable, and not under mere color thereof. Furthermore, Hodges was represented before the alderman by his attorney, who demanded his release on account of the irregularity of the proceeding, coupled with a plea for extension of time, and a promise of payment of the judgment, which was refused by the alderman, and the threat as above quoted was then made. While the statutes of amendments are to be construed liberally so as to give effect .to their clearly defined intent, and to prevent the defeat of justice through mere mistake, they will not be allowed to the prejudice of parties, by introducing a new cause of action or bringing in a new party, or changing the capacity in which he is sued: Grier Bros. v. Assurance Co., 183 Pa. 334; Soperstein v. Salsberg, 17 Pa. Superior Ct. 288; Peterson v. Delaware River Ferry Co., 190 Pa. 364; Garman v. Glass, 197 Pa. 101.
    The amendment allowed in this case was not a mere change of form but an entire change in the cause of action. In Holmes v. Penna. R. R. Co., 220 Pa. 189, the court adheres to the rule laid down in Cassell v. Cooke, 8 S. & R. 268, in relation to the cause of action: “The true criterion is whether the alteration or proposed amendment is a new or different matter, another cause of controversy; or whether it is the same contract or injury, and a mere permission to lay it in a manner which the plaintiff considers will best correspond with the nature of his complaint and with his proof and the merits of his case” and cites a number of cases in which the distinction has been observed. The change in the form of this action being substantial, and depriving the defendant of a valid defense as the record stood before the amendment was allowed, it was error to permit it to be made. Though the plaintiff did not request a view or hearing of the warrant, he had the right to assume that the officer, who was well known to the plaintiff as such, had a legal warrant for his apprehension, and he acted in that belief by going with him to the alderman’s office, and was there again assured by the alderman, who was also well known to be such, that he was under arrest. His liberty was interfered with by the constable and alderman, who acted by virtue of their offices, and the undisputed evidence in this record shows that these officers were being sued in their official capacity. In this view of the case it was error to allow the amendment, and the assignments of error are sustained; the judgment is now reversed for the reason that the alderman was entitled to the notice as required by the act of 1772.
    January 3, 1911:

      Error assigned was judgment of Superior Court.

      Denis Æ. Behen, for appellant.

      Charles A. O’Brien, for appellees.
   Per Curiam,

The judgment of the Superior Court is affirmed on the opinion of Judge Orlady.


author:
Mr. Justice Elkin,
      Mr. Justice Moschzisker,

text:
    Roumfort Company, Appellant, v. Delaney.

      Constitutional law — Buildings—Regulations—Municipalities—Police power — Enforcement—Presumptions—Local and special legislation — ■ Classification — Municipal “affairs”' — Taking for public use — “Powers and privileges” — Act of May 8,1909, P. L. 1/.17.

    1. Although, the Act of May 3, 1909, P. L. 417, requiring exits, fire escapes and other safeguards in buildings where people assemble, might be enforced in such an arbitrary manner as to work hardship and do great injustice in some instances, it will be presumed that officers intrusted with its enforcement will only require such reasonable compliance as the exigencies of each particular case demand, and when so enforced there can be no valid objection on the ground of its requirements being unreasonable.
    2. Where classification is relied on to sustain an act it must appear either that the act itself makes a class upon which its provisions operate or that they operate upon an already existing class or classes.
    3. Incorporated municipalities may adopt police regulations in reference to buildings of the same character but in so doing they act under power delegated by the state, and the commonwealth is not estopped from exercising its sovereign power directly if it chooses to do so.
    4. An act relating to the safeguarding of buildings, which is a state regulation, whose provisions are enforced by state officers, which does not impose upon any city, county, borough, or school district officer any duty to be performed or any responsibility, to be incurred, and which does not regulate the fees of any such officer or have anything to do with the revenues of counties, cities or townships, does not regulate the “affairs” of such municipal divisions within the meaning of the constitution.
    5. The act of May 3, 1909, requiring exits, fire escapes, fire extinguishers and fire preventatives for buildings of a certain character such as theaters, public halls and other places where persons assemble or the public resort “other than buildings situated in the cities of the first and second classes” is local because cities of the first and second classes are permanently excluded from its operation, but it does not regulate the affairs of municipalities and is, therefore, not within the prohibition of art. Ill, sec. 7, of the constitution.
    6. The act of May 3, 1909, is a proper police regulation, and does not constitute a talcing, injury to, or destruction of, property for public use within the meaning of art. XVI, sec. 8, of the constitution.
    7. The act of May 3, 1909, grants no “powers or privileges” within the meaning of art. Ill, sec. 7, of the constitution.

      Argued May 23, 1910.
    Appeal, No. 7, May T., 1910, by plaintiff, from decree of C. P. Dauphin Co., Equity Docket No. 443, dismissing bill in equity in case of the A. L. Roumfort Company v. John C. Delaney, chief factory inspector of Pennsylvania. Before Fell, C. J.,
    Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Kunkel, P. J.
    The A. L. Roumfort Company was a corporation conducting in the city of Harrisburg a place of amusement. Shortly after the passage of the act of May 3, 1909, orders were issued by the chief factory inspector to the corporation requiring it to make such changes and alterations in its place of business as would fully meet the requirements of the act of 1909. The corporation filed a bill praying for a decree that the act of 1909 be adjudged unconstitutional and that the chief factory inspector be enjoined from demanding of the corporation compliance with the provisions of the act. A preliminary injunction was granted and thereafter the defendant filed a demurrer to the bill. The court below filed an opinion sustaining the demurrer, dissolving the injunction theretofore granted and dismissing the bill. Plaintiff appealed.

      Error assigned was decree dismissing bill.

      C. H. Bergner and Lyman D. Gilbert, with them Frederic W. Fleitz and J. H. Langfitt, for appellant.
    The act is local: Davis v. Clark, 106 Pa. 377; Scranton v. Silkman, 113 Pa. 191; Wheeler v. Philadelphia, 77 Pa. 338; Wein-man v. Railway Co., 118 Pa. 192; Reeves v. Traction Co., 152 Pa. 153; Bradford City v. P. & N. Y. Tel. & Tel. Co., 26 Pa. C. C. Rep. 321; s. c., 206 Pa. 582; Scranton v. Whyte, 148 Pa. 419; Chalfant v. Edwards, 173 Pa. 246; Safe Dep. & Trust Co. v. Fricke, 152 Pa. 231; Morrison v. Bachert, 112 Pa. 322; Scowden’s Appeal, 96 Pa. 422; Ayars’s Appeal, 122 Pa. 266; Perkins v. Philadelphia, 156 Pa. 554.

      January 3, 1911:

      William M. Hargest, assistant deputy attorney general, with him M. Hampton Todd, attorney general, and J. E. B. Cunningham, deputy attorney general, for appellee.
    To sustain an act as an exercise of the police power the courts must only be able to see that it has for its aim the preservation of the public health, morals, safety or welfare: Com. v. Yrooman, 164 Pa. 306; Penna. R. R. Co. v. Electric Ry. Co., 152 Pa. 116; Com. v. Beatty, 15 Pa. Superior Ct. 5; Wyatt v. Ashbrook, 154 Mo. 375 (58 S. W. Repr. 627).
    The state may act directly in the exercise of police power: Com. v. Moir, 199 Pa. 534; Wartman v. Philadelphia, 33 Pa. 202.
    Under the police power rights of property are impaired, property restricted, and the profits often lessened, without any compensation whatever, not by a taking of the property but by a regulation of its use: Leisy v. Hardin, 135 U. S. 1,00 (10 Sup. Ct. Repr. 681); Meffert v. Medical Board, 66 Kan. 710 (72 Pac. Repr. 247); Philadelphia v. Scott, 81 Pa. 80; Com. v. Yrooman, 164 Pa. 306; Health Dept. v. Rector of Trinity Church, 145 N. Y. 32 (45 Am. St. Rep. 579; 39 N. E. Repr. 833); Mugler v. Kansas, 123 U. S. 623 (8 Sup. Ct. Repr. 273); Welch v. Swasey, 193 Mass. 364 (118 Am. St. Rep. 523; 79 N. E. Repr. 745).
    The act is not special legislation: Com. v. Moir, 199 Pa. 534.
    Legislation operating upon a single class of cities may be sustained if the subject-matter relates to the regulation of municipal affairs and if it be applicable to all the members of the class to which it relates: Scranton v. Whyte, 148 Pa. 419; Ruan Street, 132 Pa. 257.
    The act does not grant special powers and privileges: Wolf’s Appeal, 58 Pa. 471.
   Opinion by

Mr. Justice Elkin,

This proceeding was evidently instituted to test the constitutionality of the Act of May 3, 1909, P. L. 417. This act requires exits, fire escapes, fire extinguishers and fire preventatives for buildings of a certain character such as theaters, public halls and other places where persons assemble or the public resort. It was intended to afford greater protection from fire and resulting panic. It is in the nature of a police regulation and must be sustained, if at all, as a proper exercise of the police power. Appellant contends that it is an unreasonable exercise of the police power and should be declared invalid on this ground. We cannot accept this view of the provisions of the act. The subject-matter of the act and the means provided for protecting persons from great danger in cases of emergency are proper for police regulation. It is true the act might be enforced in such an arbitrary manner as to work hardship and do great injustice in some instances, but nothing of this kind appears in the present case. It will be presumed that officers intrusted with its enforcement will only require such reasonable compliance as the exigencies of each particular case demand. The act should be enforced in a spirit not to destroy the usefulness of property or to place undue burdens upon the owner, but only as a protection to such an extent as may be required in view of the situation of the building, having due regard to the use made of it. When so enforced there can be no valid objection on the ground of its requirements being unreasonable. That it will be so enforced may be presumed.

It is further contended that the act offends against art. Ill, sec. 7, of the constitution in that it is local legislation regulating the affairs of counties, cities, townships, wards, boroughs, or school districts. The position of appellant is that the act is local in its application because buildings located in cities of the first and second classes are permanently excluded from its operation. The exclusion of a single county from the operation of a general act relating to counties makes the act unconstitutional: Davis v. Clark, 106 Pa. 377. As stated by Chief Justice Mercuk in the case cited, “It was not, then, a general act, applicable to every part of the commonwealth. It did apply to a great number of counties; but there is no dividing line between a local and a general statute. It must be either the one or the other. If it apply to the whole state it is general. If to a part only, it is local. As a legal prin-. ciple it is as effectually local when it applies to sixty-five counties out of the sixty-seven as if it applied to one county only. The exclusion of a single county from the operation of the act makes it local.” This is the rule as the courts have laid it down. The permanent exclusion of cities or other municipal divisions from the operation of a general law is just the same in principle as the exclusion of counties. The act of 1909 tested by this rule is local unless made general by classification, upon which ground the learned court below sustained it. This can only mean that the act divided the state into classes for the purposes of this legislation because there is no existing classification to which its provisions can be made applicable without changing the whole purpose of the statute. Nothing contained in the act indicates an intention to create a new classification, and it does not relate to any existing classification except to exclude from its operation buildings located in two classes of cities. How, then, can it be said that the act either made a new classification, which it did not attempt to do, or that it is to operate upon certain municipal classes already created, which it does not do. It operates upon buildings of the character specified located in any and every part of the commonwealth except in cities of the first and second classes. To make it operative the building need not be located in a city, or borough, or other incorporated municipality. The building may be located in an unincorporated village, or in a mining town, or in a country school district, and if so, the act applies just the same as if the same character of building were located in a large borough or city. The operation of the act depends upon the character of the building and the use made of it and not upon the place of its location. The act operates without reference to any classification for municipal purposes and is not dependent upon any such classification. When. classification is relied on to sustain an act, it must appear, either that the act itself makes a class upon which its provisions operate, or that they operate upon an already existing class or classes. The act of 1909 does neither. As an illustration, the legislature has expressly authorized the creation of counties, townships, boroughs and school districts, each one of which municipal divisions constitutes a class upon which general laws operate. An act relating to county affairs and applying to all counties is a general law. So, too, an act regulating borough affairs and applicable to all boroughs is general legislation. The same principle applies to townships and school districts. Legislation affecting all cities is general, but by reason of varying local conditions and upon the ground of necessity the legislature deemed it wise to classify cities so that legislation of a municipal character might be passed for each class without disturbing other cities not requiring such legislation. The courts have sustained this classification for municipal purposes only. Hence an act relating to municipal affairs and applicable to cities of the first class, or to cities of the second class, or to cities of the third class, is held to be a general law because it operates upon each member of the class. It is important to bear in mind in this connection that in every instance the classification above mentioned resulted from positive affirmative legislation. Classification does not arise by implication. It is the result of express legislative enactment. In the present case the act of 1909 makes no attempt at classification. It is not a classification act and was not intended to be. From beginning to end it deals with buildings and the duties of state officers and has nothing to do with municipal classification. For these reasons we think the act does not lose its local character by reason of classification.

We, however, cannot agree with the learned counsel for appellant in the contention that the act regulates the affairs of counties, cities, townships, boroughs or school districts. If it did, being local, it would be unconstitutional. In what manner does it regúlate the affairs of counties or of any other municipal class? No one has pointed out how it regulates the affairs of any municipality and the act is silent upon the subject. It is true incorporated municipalities may adopt police regulations in reference to buildings of the same character, but in so doing they act under power delegated by the state. Under the constitution our police power is lodged in the commonwealth which may and frequently does delegate it to municipalities for certain purposes. The commonwealth, however, is not estopped from exercising its sovereign power directly if it chooses to do so. This is what was done in the present case. The act is a state regulation and its provisions are enforced by state officers. It does not impose upon any city, county, borough, or school district officer any duty to be performed nor any responsibility to be incurred. The words “counties, cities, townships, wards, boroughs or school districts,” do not appear in the act except as the phrase “other than buildings situated in the cities of the first and second classes” makes a reference to the two excluded classes of cities. The chief factory inspector and his deputies are empowered to enforce the law and the state pays all expenses of these officers. It is the direct assertion of the police power of the state through its own officers, and not through any county, city, township, or other municipal officer. Its enforcement does not depend upon any county, borough or municipal officer. It does not regulate the fees of any such officer nor does it have anything to do with the revenues of counties, cities or townships. It does not relate to the affairs of municipalities. The law would be a valid exercise of police power by the state itself and through its officers if there were not a single municipal division in the commonwealth. Under these circumstances how can it be successfully contended that the act of 1909 in any manner whatever regulates the affairs of cities, counties or townships? In every case decided by this court in which was involved the question as to an act being local or general, the statute then under consideration in some manner related to the affairs of the class to which it applied. In Montgomery v. Com., 91 Pa. 125, the act required school directors to levy and assess a tax for a certain purpose,- thus having to do with the affairs of a township. In Morrison v. Bachert, 112 Pa. 322, the Act of June 12, 1878, P. L. 187, was declared unconstitutional because it regulated and fixed the fees of county officers and was local in its application. In Frost v. Cherry, 122 Pa. 417, certain duties were imposed upon county commissioners in connection with the repeal of the fence law of 1700, 1 Sm. L. 13, the method provided for the repeal being such as to make the law local in its application. In Straub v. Pittsburg, 138 Pa. 356, the Act of June 14, 1887, P. L. 395, relating to certain powers conferred upon the guardians of the poor in cities of the second class was held to be a regulation of the affairs of such cities upon the ground that the care of the poor was a municipal function. But the act in express terms dealt with the duties of these officers and was therefore a regulation of their affairs. In Perkins v. Philadelphia, 156 Pa. 554, the act related to the officers composing the building commission of Philadelphia. There are many other cases in which the same question was involved but in each instance the act related to the duties of municipal officers, or to their fees, or to the revenues of the municipality, or to some other municipal function. There is nothing of this character in the case at bar. The act of 1909 imposes no duties upon any municipal officer; does not regulate their fees; does not provide for the levy and assessment of any tax; does not require the performance of any municipal function; and does not relate to an “affair” of any municipality. So far as the present case is concerned it does not matter whether the word “affairs” be given a liberal construction or a more limited interpretation. In any event it must relate to some kind of an “affair” of the municipality. The act of 1909 does not relate to any such affair. It, therefore, necessarily follows that this act does not regulate the affairs of a county, or city, or borough or other municipal division within the meaning of the constitution.

It is local because cities of the first and second classes are permanently excluded from its operation, but it does not regulate the affairs of municipalities and is therefore not within the prohibition of art. Ill, sec. 7, of the constitution. What, then, is the. situation? Section 8 of art. Ill provides for the enactment of local legislation but requires notice to be published in the locality to be affected for thirty days prior to the introduction of the bill into the general assembly. The act of 1909, although local for the reasons stated, was a proper subject for legislative action, provided notice by publication was given as required by the constitution. The presumption is that what the constitution requires as to publication was done.

The appellant further contends that the act violates sec. 8 of art. XVI of the constitution which prohibits the taking, injury or destruction of property for public use without just compensation. The answer to this position is that a proper police regulation requiring certain safeguards in buildings where people assemble does not constitute a taking, injury to, or destruction of, property for public use, within the meaning of the constitution.

It is also contended that the act violates sec. 7 of art. Ill of the constitution which provides that no law shall be passed “granting powers or privileges in any case, where the granting of such powers or privileges shall have been provided by general law.” This position is not well taken. It is a sufficient answer to say that no “powers or privileges” within the meaning of the constitution are granted by the act of 1909, and the clause in question has no application under the facts of the present case.

Upon the record here presented and for the reasons above stated, the assignments of error are overruled and the decree is affirmed at the cost of appellant.

Mr. Justice Moschzisker,

concurring:

While I concur in affirming the decree in this case, the opinion of the majority seems to me, in several respects, so far at variance with certain of our former decisions and with the thought heretofore expressed by this court, that I deem it best to put my views upon record.

I agree that the Act of May 3, 1909, P. L. 417, is a reasonable exercise of the police power; that the legislature may enact any local or special law not expressly prohibited in the constitution; that classification must be for municipal purposes, and that where the constitutionality of an act depends upon the theory of classification, the act itself must make the classification or the subject of the act must be within the sphere of an established classification. But I cannot agree that the subject-matter of this act is not within the sphere of established classification; and in this connection I cannot subscribe to the restricted meaning given to the word “affairs” in the majority opinion.

The constitution provides that the general assembly shall not pass any local or special law “regulating the affairs of counties, cities, townships, wards, boroughs, or school districts.” The Act of June 25, 1895, P. L. 275, classifies cities, inter alia, for “the purposes of legislation, regulating their municipal affairs.” Under this act, without any further special classification, the general assembly may legislate on matters concerning the municipal affairs of the subdivisions as therein classified, and such an act would be general and not local: Wheeler v. Philadelphia, 77 Pa. 338.

The word “affairs” in the constitution and in the classification act should be given the same construction, and it should not be a narrow one. Mr. Buckalew in his book on the constitution, at p. 72, says: “In the Pennsylvania provision the word 'affairs’ is the important one to be examined. It was obviously borrowed from the two constitutions which were in 1873 of most recent formation, in which it was made to supply the place of the word ‘business’ found in the earlier constitutions above mentioned. This substitution of a French word for a Saxon word— ‘affairs’ for ‘business’ — was probably made in consequence of judicial opinions which had assigned a somewhat restricted effect to the word ‘business’ as found in the earlier constitutions, and was intended to give the prohibition upon local legislation a more extended application.” In Morrison v. Bachert, 112 Pa. 322, the lower court defined “affairs of counties” to be such “as concern counties in their governmental and corporate capacity.” On appeal we said: “This will not do. It is too narrow a construction. . . . When it (the constitution) speaks of the affairs of a county, it means such affairs as affect the people of that county;” and we there cite with approval the excerpt just quoted from Mr. Buckalew’s book. In Frost v. Cherry, 122 Pa. 417, after citing Morrison v. Bachert, 112 Pa. 322, for a definition of the word “affairs,” we held the act there in question unconstitutional as local legislation, saying, “The act .... concerns the great body of the people of the county. It affects every farmer, .... and every person who keeps horses or cattle. . . . How then can it be said that it does not relate to the ‘affairs’ of counties within the meaning of the constitution? ”

The thought running through our cases seems to be that if the subject-matter of an act would naturally fall within local control, that is, if it is a subject which, in the absence of state legislation controlling the matter, a local governing body could regulate by ordinance, or be given the power so to do, it is a municipal affair: Reeves v. Phila. Traction Co., 152 Pa. 153; Van Loon v. Engle, 171 Pa. 157; Anderson v. Township, 217 Pa. 369. To my mind the present act is one dealing with such affairs, and, by the exclusion of cities of the first and second classes, unless saved by classification, it offends the constitutional restriction against local legislation. The question is, Does the act lose its local character by reason of classification? In other words, it being within the power of the general assembly to legislate for cities in matters connected with their municipal affairs to the exclusion of the rest of the state, can they so legislate for the whole state excluding one or more classes of cities?

It might have required considerable exposition of thought to state satisfactorily an answer to this question were it not for our decision in Rose v. Beaver County, 204 Pa. 372, affirming 20 Pa. Superior Ct. 110, where Judge Beaver said: “The objection to the bill that it is not general in its application is not well founded. It relates to every county within the state. It is true that it excepts cities from its operation, but if the legislature has power to legislate for the government of cities and provide affirmative legislation for their particular needs, and not only so, but to legislate for the several classes of cities, how much more should it have power to except cities in general from the operation of laws which are not applicable to their peculiar needs? ” It will not do to dismiss this case from our consideration. The contention may be made that we could have laid down a different rule, but we have there given our express affirmance to the view that under the classification act, upon permissible subjects, cities may not only be legislated for to the exclusion of the rest of the state, but the rest of the state may be legislated for to the exclusion of cities. That decision is binding upon us until expressly overruled. The attempted distinction that “the difference between that case and the one now before the court consists in the fact that here all the cities are not excluded from the legislation” is not a valid one, for cities being classified, each class is just as much a whole for purposes of general legislation as the sum total of all the classes; if all of them can be excluded, then any one or more of the classes can be excluded. In the present instance, the legislature might well have considered that the matter covered by the act required different regulation in small cities and rural communities than in the large cities.

In view of our decision in Rose v. Beaver County, supra, I cannot agree with the statement in the majority opinion that the act “is local because cities of the first and second classes are permanently excluded from its operation.” In my opinion, under our ruling in that case, the act can be supported as general legislation, and we should rest our decision upon that ground. It is true, we have declared acts unconstitutional. as local legislation where they contained a proviso making them inapplicable to counties having a population of over a certain number (Davis v. Clark, 106 Pa. 377), saying that such legislation could not be sustained upon any rational theory of classification,, because in point of fact it made no attempt at classification but merely at exclusion: Morrison v. Bachert, supra. But that line of authorities is to be distinguished from the present case by the fact that the legislature has never taken counties out of the general whole and classified them for purposes of legislation; whereas cities have been so classified, and the classification has been upheld: Wheeler v. Philadelphia, supra.

The vice of the majority opinion is that by the circumscribed meaning" placed upon the word “affairs,” the operation of the provision of the constitution restricting the passage of local laws regulating the affairs of communities is unduly limited. If the majority view is adhered to, in my judgment it will tend to fritter away that most important provision and lead to future abuses. The fact that the enforcement of the provisions of an act is committed to state officers should not be given any controlling effect in deciding whether or not it deals with municipal affairs within the meaning of the constitution or the classification act. The act of 1895 gives several headings under which cities are therein classified for the purposes of legislation, of which the first is, “regulating their municipal affairs,” then, “the exercise of certain corporate powers,” and next, “having respect to the number, character, powers and duties of certain officers thereof.” The first takes in all matters such as we have before defined as comprehended within the term, “affairs,” while the others cover what may be strictly termed “governmental matters,” to be worked out through officials of the communities. If the general assembly sees fit to legislate on a subject which would fall strictly within the term “municipal affairs,” the fact that it puts the enforcement of the law in the hands of state officers will not change the character of the act. It still remains one regulating the affairs of communities and subject to the restraint against local legislation, unless saved by classification. If this be not so, then, notwithstanding the prohibition in our organic law, the home affairs of each community can be interfered with by purely local acts to be' administered by state officers. This is the end to which the reasoning of the majority leads, and it is one of the very evils thought to have been abolished by the constitution.

In the respects indicated I cannot agree with the majority, but, for the reasons stated in this opinion, I join in the final order affirming the decree of the court below.

Mb. Justice Stewart joins in the above concurring opinion.


author: Mr. Justice Mestbezat,

text:
    McNulty’s Estate.

      Decedent’s estate — Audit—Appeals—Compensation for services— Executors and administrators.

    1. Where two persons have, at the audit of an administrator’s account, presented separate and distinct claims for services rendered in selling the real and personal estate of the decedent, each claiming to have sold the property and to be entitled to compensation, it being conceded, however, that there was no privity of contract between them, a decree in favor of either should be separate and not joint, and if there are ample funds to meet any claim the court might allow, one of the parties has no standing to attack the other’s claim, or appeal from a decree allowing it.
    2. In such case on appeal by one claimant from the allowance of the claim of the other, the administrator has no standing to contest the claim, where such administrator has not taken the proper legal steps to contest the claim by appealing from the decree.

      January 3, 1911:
    3. An award of a lower court of a sum deemed sufficient compensation for services found to have been performed in behalf of a decedent’s estate will not be disturbed save for manifest error.
    Argued Oct. 21, 1910.
    Appeal, No. 182, Oct. T., 1910, by S. E. Kingsley, from decree of O. C. Allegheny Co., April T., 1910, No. 129, dismissing exceptions to adjudication In re First Account of the Colonial Trust Company of Pittsburg, administrator d. b. n. c. t. a. of Estate of P. J. McNulty, deceased.
    Before Fell, C. J., Mestbe-zat, Potter, Elkin and Stewabt, JJ.
    Affirmed.
    Exceptions to adjudication. Before Miller, J.
    The opinion of the Supreme Court states the facts.

      Errors assigned were in dismissing exceptions to adjudication.

      Thomas Watson, with him Geo. R. Wallace, for appellant.

      A. M< Neeper for C. M. Johnston, appellee.

      Thomas M. Benner, with him Frank P. Patterson for Colonial Trust Company, appellee.
   Opinion by

Mr. Justice Mestbezat,

R. M. Gulick and the McNulty estate owned certain real estate in the city of Pittsburg known as the Bijou. Theater property. It was heavily incumbered by mortgage and tax liens amounting to more than $500,000. The property was sold and the proceeds of McNulty’s interest therein as well as the proceeds of certain personal property on the premises constitute the fund for distribution. Stair & Hávlin bought the property for themselves and others who had formed a pool for the purpose of making the purchase. The interest of McNulty was sold at private sale by order of, the orphans’ court.

C. M. Johnston and S. E. Kingsley each presented claims to the auditing judge for commissions or compensation for having made the sale of the property. The claims were allowed by the orphans’ court, but Kingsley being dissatisfied with the amount awarded him has taken this appeal. One or more of his assignments allege error in the court allowing compensation to Johnston, and other assignments allege error in not allowing Kingsley’s claim to compensation in full. Johnston filed a motion to quash the appeal so far as the same relates to the decree of the court awarding him compensation for services rendered the estate in making the sale. Neither the estate nor any creditor has appealed from the decree allowing Johnston’s claim.

We think the motion to quash must prevail. Kings-ley’s claim against the estate for services rendered in procuring the sale of the property to Stair & Havlin amounted to $11,770. Of this claim the court allowed $2,500. Johnston’s claim for similar services was allowed to the amount of $5,000. The amount allowed Johnston and Kingsley’s entire claim aggregate $16,770. As appears by the decree entered by the court below, there is yet in the hands of the accountant, undistributed and subject to the auditing judge’s control, the sum of $70,266.17. If Kings-ley is entitled to any compensation in addition to that awarded him by the orphans’ court, there are still funds in the hands of the accountant amply sufficient to pay the claim.

Johnston and Kingsley presented separate and distinct claims for services rendered in selling the McNulty real and personal estate. Each contends that he sold the property and is entitled to compensation for his services. It is conceded by Kingsley that there is no privity of contract between him and Johnston, and that their rights to compensation, if any, are several and not joint, but independent of each other. If, therefore, either was entitled to be remunerated for his services, he was entitled to a separate, and not a joint decree in his favor.

Before a party has the right to appeal, he must be aggrieved by the decree that is entered. If he is not aggrieved, he is not affected or injured and, hence, has no standing to complain. Under the circumstances of this case, it is apparent, we think, that Kingsley was not aggrieved or injured by the decree allowing compensation to Johnston. His right to compensation does not depend upon Johnston’s claim against the estate for services in the sale of the property. If he rendered services to the estate in making the sale and satisfied the court that he was entitled to compensation therefor, a decree should have been entered for him, regardless of any claim which Johnston may have against the estate for similar services. It by no means follows that if Johnston is entitled to compensation for assisting in the sale of the property, that Kingsley did not also aid in making the sale and was entitled to compensation for services rendered the estate. The claims of Johnston and Kingsley were separate and distinct and whether either or both should be allowed depended upon the ability of each party to support his claim by proper testimony. Kingsley is not injured by the allowance of Johnston’s claim. As already observed, there are funds undistributed in the hands of the accountant ample to meet any claim which the court may award as compensation to Kingsley. He, therefore, has nó standing to attack Johnston’s claim or appeal from the decree which allows it. So far as this appeal alleges error in awarding Johnston’s claim it is quashed.

The administrator has filed a paper-book in which the claims of Johnston and Kingsley are attacked and in which we are asked to reject both claims. Unfortunately for the administrator, it has no standing in this court to attack either claim. Until the contrary appeared in its paper-book, it seems to have been satisfied with the amounts awarded each of the two claimants. It has not taken an appeal and, therefore, it cannot contest the claims "here. The only appellant and party who can be heard in this court is Kingsley who has appealed from the decree of the court below in refusing to allow him sufficient compensation for his services in selling the Bijou property. It must be conceded that the argument of the administrator against Johnston’s claim is not without force but as it has not taken the proper legal steps to contest the claim by appealing from the decree, we are not in a position to either hear or heed the argument. Whether, therefore, Johnston is entitled to any commission or compensation for services rendered in selling the Bijou property we are not called upon to determine and, therefore, do not decide. The administrator occupies the same position in regard to Kingsley’s claim. By its failure to appeal, it admits that it is satisfied with the decree.

Kingsley alleges that he is entitled for his services to two per cent commission amounting to $11,770. The learned court below awarded him $2,500. We have examined the testimony, and had we been the auditing judge the decree might have been different. The orphans’ court, however, has found the facts and unless we reverse its findings we must sustain the decree. We are not convinced of manifest error in the court’s findings and, therefore, Kingsley’s appeal cannot be sustained.

As found by the auditing judge, “efforts to effect a sale or mortgage (of the Bijou property) for the purpose of paying debts seem to have been carried on for a long time by various persons, some with, and others without any claim or authority.” Prior to Kingsley’s attempt to make a sale, it was generally understood that the property was heavily incumbered and would have to be sold. Other persons than he had brought the property to the attention of parties who would likely purchase. It may fairly be found from the evidence that it was not Kings-ley’s efforts alone that finally secured a purchaser for the property. Johnston had preceded him and had found a purchaser whose bid was not accepted by the court. Stair & Havlin’s bid for the property exceeded it by $5,000 and a sale to them was confirmed. The principal service rendered by Kingsley was in calling Davis’s attention to the property. He failed to make a sale to Shubert Brothers and, as found by the court, he was not personally in contact with Stair & Havlin or with Gulick or Shubert Brothers or the other parties at the time the sale was consummated. In fact, Mr. Davis advised Kingsley not to be present at the conferences held by these parties when they were considering the purchase of the property. Kingsley may have been informed of what was taking place in the conference resulting in the sale, but he did not participate therein or aid in securing the conclusion to purchase. In fact, the court distinctly finds that the offer of the increased price and better terms for the estate was suggested by Mr. Davis. The latter had a business reason for trying to control the sale and to prevent a competing bidder from acquiring the property. Mr. Kingsley’s efforts through Mr. Davis resulted in increasing the Nirdlinger bid $5,000. For this service and certain advantages to the estate the court below awarded what it deemed sufficient compensation for the services rendered. The appellant has not convicted the court of clear error in its findings and the conclusions based thereon, and, therefore, the assignments, other than those alleging error in allowing Johnston’s claim, are overruled and the decree is affirmed.


author: Mr. Justice Mestrezat,

text:
    McDermott v. Blank, Appellant.

      Appeals — Supreme Court — Exceptions—Act of April S2, 1874, P- L. 109 — Trial by court without jury.

    An appeal from the judgment of the court in an issue framed and submitted to the court without a jury under the Act of April 22, 1874, P. L. 109, must be quashed where the record discloses no exception taken to the order of the court overruling the appellants’ exceptions to the decision and directing judgment to be entered for the appellees, and no exception or bill sealed in the court below to any action of the court throughout the proceedings resulting in the judgment against the appellants.
    Quashed without argument.
    Appeal, No. 130, Oct. T., 1910, by defendants, from judgment of C. P. Westmore-land Co., May T., 1908, No. 694, in case of James Mc-Dermott, W. F. Holtzer and C. H. Roose, supervisors of Hempfield township, v. J. J. Blank, J. S. Peters and Hempfield township.
    January 3, 1911:
    Before Fell, C. J., Brown, Mes-trezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Appeal quashed.
    Taxpayers’ appeal from auditors’ settlement of township supervisors’ accounts. Before Van Swearingen, J.
    The opinion of the Supreme Court states the case.
    The appeal to the Supreme Court was quashed on motion.

      William S. Rial, James S. Moorhead and Robt. W. Smith, for appellees,
    submitted the following reasons on the motion to quash. — The appellants not having excepted to the order of the court below overruling their exceptions to the findings of fact and law acquiesced in such order and are not entitled to be heard on appeal: Southern R. R. Co. v. Moyer, 125 Pa. 506; Harris v. Mercur, 202 Pa. 313; Wingert v. Teitrick, 31 Pa. Superior Ct. 187.
    This case being an appeal from the auditors’ settlement of the township supervisors’ accounts, and as the case was not pending and undetermined when the Act of May 11, 1901, P. L. 185, was approved, no appeal lies from the decision of the court of common pleas, and this court is without jurisdiction.

      S. A. Kline, W. T. Kline and S. W. Bierer, for appellants.
   Opinion by

Mr. Justice Mestrezat,

In the court below this was an appeal by certain taxpayers, the defendants, from the report of the auditors of Hempfield township, Westmoreland county, settling the account of the supervisors, the plaintiffs. An issue having been framed the parties dispensed with a trial by jury and submitted the case to the decision of the court under the provisions of the Act of April 22, 1874, P. L. 109, 3 Purd. 3658. From the judgment entered by the common pleas the defendants have appealed to this court.

The act of 1874 requires the court to make its decision in writing, and to state separately and distinctly the facts found and the conclusions of law. If no exceptions are filed to the court’s findings, it is the duty of the pro-thonotary to enter judgment in accordance with the decision. If, however, exceptions are filed to the findings of facts or conclusions of law, the court or the judge who tried the cause may “order judgment to be entered according to the decision previously filed, or make such modifications thereof as in justice and right shall seem proper, subject always, nevertheless, to review by writ of error or appeal in the Supreme Court; such writ of error or appeal to be taken in the time and manner and with the effect prescribed by law.” By the second section of the act, writs of error aqd appeals are to be heard and determined’ as in other cases brought to this court for review.

The purpose of the act was to authorize the parties to a suit to waive their right' to trial by jury and to have the facts as well as the law determined by the court. The jury is eliminated from the proceeding and the court takes its place and performs its functions. The court or judge acts in the dual capacity of court and jury. The case is tried as if a jury were sitting to hear and pass on the evidence and find the facts. The evidence is offered and the aggrieved party may have the court note an exception to .its ruling in receiving or rejecting it. Requests for findings of fact or conclusions of law may be made and the court’s rulings thereon are the subject of exception. The court within sixty days of the hearing must file its decision, and the proper practice is then to direct judgment to be entered in conformity with the decision .unless exceptions be filed within the statutory period. Both parties are thus given an opportunity to file exceptions to the preliminary decision and findings by the court or judge who is required to consider and pass on them and “order judgment to be entered” in the cause. This is the .judgment which may be reviewed by a writ of error or appeal to the proper appellate court. The preliminary decision is neither a verdict nor a judgment nor can it be reviewed on appeal. It does not become a judgment until further action by the prothonotary or the court in the manner pointed out in the statute. It is then reviewable, as provided in the act, on a “writ of error or appeal to be taken in the time and manner and with the effect prescribed by law.” The appellate proceeding is now a statutory appeal, but the proceeding itself is unchanged and is in effect a writ of error or appeal as the appropriate remedy may require.

Article Y, sec. 27, of the constitution and the act of April 22, 1874, regulating the trial of cases thereunder provide that the judgment entered by the common pleas shall be subject to a writ of error or of appeal as in other cases at law or in equity. It is familiar practice that a writ of error will be quashed if taken to review a judgment in cases when the alleged erroneous matter has not been brought on the record by a bill of exceptions. If the writ is brought to review a judgment entered on a verdict, an assignment of error will not be considered which is not supported by a proper bill of exceptions. There is no other way of getting the objectionable matter on the record. The same rule applies to writs of error brought to review a judgment entered by the court after a trial under the act of 1874. On this writ we can review only questions of law, not of fact. In finding the facts in such cases, the court or judge takes the place of a jury, and we determine the case here as if the facts had been found by a jury. The correctness of the court’s rulings during the trial on requests for findings of law, and in sustaining or overruling exceptions filed to its decision cannot be considered and determined unless brought before the court on a proper bill of exceptions. Such would be the practice if the judgment attacked on a writ of error was entered on the verdict of a jury, and the reason supporting the practice obtains with like force when the writ is taken to review a judgment entered under the act of 1874.

In the case at bar the record before us fails to disclose any exceptions taken or bills sealed by the court at the instance of the appellants. No exception was taken to the order of the court overruling the appellants’ exceptions to the decision and in directing judgment to be entered for the appellees. In fact, no exception was taken or bill sealed in the court below to any action of the court throughout the proceedings resulting in the judgment against the appellants. It is therefore manifest that the assignments cannot be considered and that the appeal must be quashed.

Each of the twenty-seven assignments of error is vio-lative of some rule of court and is therefore defective, requiring the appeal to be quashed. Assignments one and five and seven to fifteen inclusive offend rule 29 in embracing more than one point and raising more than one distinct question. Assignments six and eight to fourteen inclusive are bad in alleging error in the court in not finding certain facts when the record discloses no request by appellants for such findings. The opinion of the court is not assignable for error and therefore the sixteenth assignment is bad. The seventeenth and eighteenth assignments are bad because they are meaningless and do not set out the language of the alleged error. The nineteenth assignment is meaningless as there can be no verdict in a case tried under the act of 1874. Of the twelve additional assignments, subsequently filed, one to ten are to the opinion of the court and are therefore bad; and eleven and twelve violate rule 31 in failing to quote the testimony and offers with reference to the pages of the paper-book where the matter could be found.

We express no opinion on the merits of the case. The questions attempted to be raised are of importance to the taxpayers of the rural parts of the state, but they are not properly before us and we cannot review them.

The motion of the appellees is allowed, and the appeal is quashed.


text:
    Pittsburg, Appellant, v. Rhodes, et al.

      Banks and hanking — Depositories—Bonds—Discharge of sureties.

    Where a bank is selected as a city depository for a term of years, and executes a bond to secure the safe custody of all moneys deposited with it, and at the expiration of the term it executes a new bond with different sureties for a new term, and on the same day enters the exact balance to the city’s credit in the individual transfer ledger as a deposit by the city, and the city thereafter adds to and checks against this balance in amounts largely exceeding such balance, the sureties on the first bond are discharged of liability for a default occurring during the second term.
    Argued Nov. 2, 1910.
    Appeal, No. 198, Oct. T., 1910, by plaintiff, from order of C. P. No. 2, Allegheny Co., July T., 1908, No. 174, opening judgment entered d. s. b. for plaintiff in case of City of Pittsburg v. Joshua Rhodes, now W. B. Rhodes and Mary H. Rhodes, executors, et al.
    Before Beown, Mesteezat, Pottee, Elkin, Stewaet and Moschziskek, JJ.
    Affirmed.
    Rule to open judgment and stay execution on a surety bond. Before Shafee, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in making absolute rule to open judgment.

      Charles A. O’Brien, with him A. M. Imbrie, for appellant,
    cited: Pittsburg, Ft. Wayne & Ghicago Ry. Co. v. Shaeffer, 59 Pa. 350; Harrisburg v. Guiles, 192 Pa. 191; Lancaster County v. Hershey, 205 Pa. 343; McCracken v. The Church, 111 Pa. 106; Leas v. Hafer, 39 Pa. Superior Ct. 160; Com. v. Caldwell, 224 Pa. 103.

      William Watson Smith, with him George B. Gordon, for W. B. Rhodes and Mary H. Rhodes, executors of Joshua Rhodes, deceased,
    cited: Clayton’s Case, 1 Meri-vale, 572; McKee’s Executors v. Com., 2 Grant, 23; Bod-enham v. Purchas, 2 Barnewall & Alderson, 39; United States v: Wardwell, 5 Mason, 82.
    January 3, 1911:
   Per Curiam,

The Allegheny National Bank was selected as one of the depositories of the city of Pittsburg for a term of four years and two months, beginning December 1, 1900, and ending January 31, 1905. To secure the safe custody of all moneys to be deposited with it during that period, the bank éxecuted its bond to the city, upon which Joshua Rhodes, deceased, was one of the sureties. On January 31, 1905, — the day the term of the depository expired — there was on deposit with it to the credit of the city a balance of $1,014,635.32. The bank was rechosen as one of the city’s depositories, and the balance to its credit at the close of business on January 31, 1905, was entered by the bank in the individual transfer ledger on February 1, 1905, as a deposit to the credit of the city. For the new term of the depository, beginning February 1, 1905, and to end January 31, 1909, it gave a new bond to the city upon which Rhodes was not a surety. Between February 1, 1905, and May 16, 1908, — the day the bank closed its doors — the city deposited with it, in addition to the $1,014,635.32 credited to it on February 1, 1905, $22,401,147:86 and during that period checked out $21,868,829.24. On March 17, 1908, the balance to its credit was reduced to $310,515.93. On May 18-, 1908, the city of Pittsburg entered judgment against the sureties on the bond covering the period between December 1, 1900, and January 31, 1905, and from the order of the court opening it the city has appealed.

If on February 1,. 1905, the city had drawn its check for the whole amount of the balance to its credit in the bank at the close of business the day before, and, upon receiving cash in payment of the check, had redeposited the money with the bank, just starting on a second or new term' as a depository, the sureties on the present bond would unquestionably have been fully discharged, for the city would have received all of the money due it from the bank at the expiration of the first period, for which alone the sureties were bound. The condition of their bond would have been performed. This, in effect, is what was done. The bank, on February 1, 1905, formally entered as a deposit to the credit of the city the exact balance due it at the close of business the day before, and the city, having accepted this as a deposit to its credit, immediately began to check against it. From February 1, 1905, to May 16, 1908, as already stated, it made additional deposits amounting to more than $22,000,000, and checked out on its account during the depository’s second period more than $21,000,000. In thus checking against its account it drew out what it had on deposit on February 1, 1905. The learned judge below correctly held that there is nothing in the case to take it out of the ordinary rule of the application of payments as stated in McKee’s Executors v. Com., 2 Grant, 23, and which applies to a bank as well as to others: Clayton’s Case, 1 Merivale, 572. The order of the court opening the judgment is affirmed with costs to the appellees.