author: Mb. Justice Mestbezat,

text:
    Daley, Appellant, v. Iselin.

      Evidence—Burden of proof—Pleading.

    A party, whether plaintiff or defendant, asserting the affirmative of a question in dispute assumes the burden of proving it. And the rule is equally imperative whether the proof required be of affirmative or negative matter. Whenever whether in plea, or replication, or rejoinder, or surrejoinder, an issue of fact is reached, then whether the party claiming the judgment of the court asserts an affirmative or negative proposition, he must make good his assertions. On him lies the burden of proof.
    On the trial of a plea to the jurisdiction of the court where the plea sets up an alleged defective service of the summons, the burden is on the defendant to establish the facts averred in the plea. If thei'e is no evidence to impeach the correctness of the return it is error to give binding instructions for defendant.

      Pleading—Practice, C. P.—Plea to the jurisdiction—Defective service— Delay—W aiver—A ppearance.

    Where a defendant files a plea to the jurisdiction of the court it is his duty to have it enforced promptly. If the defendant fails to do so, or if he takes any steps looking to a trial of the cause on the merits he must be held to have waived the right to insist upon his plea; and if he has entered a conditional appearance, such appearance will become general.
    . Practice, C. P.—Appearance—Withdrawal of appearance.

    It is improper practice to permit defendant’s counsel to withdraw their general appearance without notice to the plaintiffs or their counsel. The proper practice is to require defendant’s counsel to file a petition setting forth the reasons for withdrawing their appearance, and thereupon to grant a rule.
    Argued. April 18, 1905.
    Appeal, No. 341, Jan. T., 1904, by plaintiffs, from judgment of C. P. Clearfield Co., Sept. T., 1899, No. 320, on verdict for defendant in case of J. J. Daley and H. A. Daley v. Adrian Iselin.
    Before Dean, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Assumpsit to recover balance of purchase money on an alleged contract. Before Smith, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for defendant. Plaintiffs appealed.

      Errors assigned among others were (2) in directing a verdict for defendant; (9) in refusing to strike off defendant’s plea in abatement.

      Frank Fielding, with him Oscar Mitchell and W. 0. Pentz, for appellants.
    If a party wish to withdraw his appearance he should present his petition stating the reason therefor verified by affidavit, and obtain rule to show cause : Wright v. Galloway, 8 W. N. C. 163; Michew v. McCoy, 3 W. & S. 501.
    A general appearance by the defendant waives the summons and the service of the writ: Zion Church v. St. Peter’s Church, 5 W. & S. 215; Schober v. Mather, 49 Pa. 21; Stelwagon v. Ins. Co., 41 Legal Int. 24; Sherer v. Easton Bank, 33 Pa. 134; Dyer v. Walker, 40 Pa. 157.
    The appearance de bene esse in this case was in legal effect equivalent to full general appearance, because it was entered after the return day of the writ and when the sheriff’s return was on the record : Hoffman v. Kramer, 4 Northampton, 121; Bolard v. Mason, 66 Pa. 138; Blair v. Weaver, 11 S. & R. 84; Mut. Life Ins. Co. v. Pinner, 10 Atl. Repr. 184; Dey v. Printing, etc., Co., 4 Atl. Repr. 675.
    Any action by the defendant, in person or by attorney, looking to a determination of the cause on its merits operates as an appearance, preventing a default, and subjecting the defendant to the jurisdiction of the court: Jeannette Borough v. Roehme, 197 Pa. 230; Byers v. Byers, 208 Pa. 23.
    Application to set aside proceedings for irregularity should be made as early as possible : Poor v. Colburn, 57 Pa. 415; Del. & Hudson Canal Co. v. Loftus, 71 Pa. 418; Bazzo v. Wallace, 16 Nebraska, 290 (20 N. W. Repr. 315.)
    Entering rule to take depositions to be read on the trial of the cause was a waiver of the plea in abatement, or any defect in the service of the summons: Ranck v. Becker, 12 S. & R. 412.
    The burden of proof in the issue raised on the plea in abatement was on the defendant, who set up the plea. Pie undertook to contradict and defeat the service of the writ, which was regular on its face : Sheppard v. Graves, 55 U. S. 505; Poor v. Colburn, 57 Pa. 415; Wilson v. Hamilton, 4 S. & R. 238; Ralph v. Brown, 3 W. & S. 395.

      A. L. Oole, with him B. M. Clark, for appellee.
    Where pleas in abatement for want of jurisdiction and pleas in bar are filed coincidentally, expressly reserving all benefit and advantage of the plea in abatement, the filing of the plea in bar will not be held a waiver of that in abatement or ground for striking it off: McConkey v. Peach Bottom Slate Co., 14 Pa. C. C. Rep. 514; Nat. Bank of Northern Liberties v. American Ship Building Co., 2 Cent. Rep. 56; Phillips v. Library Co., 141 Pa. 462.
    May 24, 1905 :
   Opinion by

Mb. Justice Mestbezat,

This was an action of assumpsit brought in the court of common pleas of Clearfield county to recover a balance of purchase money alleged to be due on a written contract for the sale of certain coal properties situated in that county. The defendant is a citizen of New York, but it is alleged by the plaintiffs that, at the time of the institution of this suit, he was engaged in business in Clearfield county, and had an agent in that county. The summons was issued July 10, 1899, returnable to the first Monday of September, which was the fourth day of the month. On July 11 the sheriff made the following return to the writ: “ Adrian Iselin, the defendant within named, not being in my bailiwick at the time of the issuing of this writ, and he being a resident of the state of New York, but being engaged in business in the county of Clearfield, in my bailiwick, I served this summons on the 11th of July, A. D. 1899, on Lucius W. Robinson, the agent of said defendant, at the usual place of business of said agent in DuBois, Clearfield county, Pennsylvania, and in my bailiwick, personally, by giving him a true and attested copy of this writ and by making known the contents thereof to him.” Before the return day of the writ, the defendant appeared generally by having entered on the record the following: “Now, August 8, 1899, we appear for defendant. Cole &' Moore, attorneys.” On September 7, the sheriff returned that he had served notice of the filing of the plaintiff’s statement of the cause of action on A. L. Cole, a member of the firm of Cole & Moore. The next step in the case was a motion by Messrs. Cole & Moore, on September 11, after the return day of the' writ, for leave to withdraw their general appearance as attorneys for the defendant, which was granted without notice to the plaintiffs or their counsel and without any evidence, so far as the record discloses, supporting the grounds set forth in the motion that the appearance had been entered “ without authority and by mistake.” On -the day the counsel were permitted to withdraw their general appearance they entered an appearance de bene esse. On September 20, the defendant “ appearing especially and solely to object to the jurisdiction of this court,” filed a plea to the jurisdiction, setting forth that he was not in Clearfield county at the time of the service of the writ; that he is and was at the time of the service of the writ a citizen and resident of the state of New York; that he has not been engaged in any business in Clearfield county, and that Robinson, on whom the writ was served, at no time was a resident of Clearfield county and had no place of business in that county. On the day after this plea was filed the defendant filed an affidavit of defense, and therein, after reserving his lights under his plea to the jurisdiction, he set up at length a defense to the merits of the plaintiffs’ claim. On the same day the prothonotary, as required by the rule of court, entered the plea of non assumpsit for the defendant. The case was placed on the trial list for December Term and was continued. It was again placed on the trial list for February Term, 1900, but by an agreement in writing between the parties, signed by their counsel and filed of record, the case was continued until the next term of court. On April 30, 1900, an amendment to the plaintiffs’ statement was filed with notice to, and without any objection by, the defendant. On May 7, A. L. Cole, Esq., as counsel for defendant, presented his petition to the court setting forth the absence of a material witness for his client, and asking for the continuance of the cause until the next term, which was granted at the cost of the defendant. On the same day the amendment to the plaintiffs’ statement was allowed by the court, and a notice to defendant’s counsel to produce certain papers on the trial, served on A. L. Cole, Esq., was filed of record. On June 26, Cole & Moore filed a motion in court, signed by them as attorneys for defendant, for leave to enter a rule to take depositions outside the state “ to be read on the trial of this case,” which, with the consent of plaintiffs’ counsel, was granted. Depositions were taken on this rule and filed in the cause. On September 13, after the case was called for trial and a jury had been selected, the defendant’s counsel suggested “ the necessity of first passing upon the preliminary question raised by the plea in abatement.” The plaintiffs refused to file a replication to the plea, and, on motion of the defendant’s counsel, the cause was continued and ordered from the issue list. An appeal taken from this ruling of the court below was quashed by this court. The case was on the trial list at four different terms, and on each occasion the prothonotary sent to the defendant’s attorneys a copy of the list showing the names of the parties, the form of action and the pled, in each ease. In this case the copy of the list showed the action to be “ assumpsit ” and the plea “ non assumpsit.” No reference in the list was made to the plea to the jurisdiction.

On October 1, 1901, the plaintiffs presented their petition to the court setting forth the record proceedings in the case as stated above and averred “that by reason of the facts hereinbefore stated and the law arising therefrom the said defendant waived and abandoned his said special plea, and that he has no legal right to now set up the same in this action,” and prayed the court to strike from the record the plea to the jurisdiction filed by the defendant. A rule was granted, but for some'reason, not apparent nor easily discernible, it was hot disposed of by the court for two years, and then was refused by the learned judge of the 54th Judicial District, specially presiding. The plaintiffs then by direction of the court filed a replication to the plea to the jurisdiction. The cause was again placed on the trial lists for December Term, 1903, and March Term, 1904, and on each occasion the case was continued by agreement of counsel before the session of the court had convened. At September Term, the cause was tried on the issue made up of the plea in abatement and the replication. On the trial the plaintiffs offered in evidence the papers of record in the case in detail. They first offered the summons and the return which were admitted in evidence. They then offered the other papers on file in the case and the record entries, and they were admitted under objection. Subsequently, on motion of defendant’s counsel, the court struck out “ all of the evidence given by the plaintiffs for the purpose of showing a waiver of the plea in abatement or the plea to the jurisdiction entered in this case.” No testimony was offered by the defendant, and at his request the trial judge directed a verdict for him on the ground “ that there is not sufficient testimony in what has been produced here to submit to you any question of fact.” Judgment having been entered on the verdict, the plaintiffs have appealed.

We have given the history of this case as disclosed by the record. It furnishes a striking illustration of the “ law’s delay ” and the means by which it can be accomplished, unprecedented, however, we are pleased to say, in the courts of the commonwealth. For nearly six years the court below has been trying to ascertain whether the defendant is subject to its jurisdiction, and the question is still unanswered. For the same length of time, the defendant has been permitted to have counsel in court to attack the merits of the plaintiffs’ claim while •keeping himself out of court and preventing a trial of the cause on its merits. No system of pleading rightly administered, will produce such a result which is a reproach to the administration of justice. It is a denial of justice accomplished under the forms of law which will not be tolerated by any enlightened system of jurisprudence.

The second and ninth assignments of error raise the controlling questions in the case and are the only assignments which need be considered. The second assignment alleges error in the court in directing a verdict for the defendant. In this ruling the learned trial judge overlooked or misapprehended the issue presented by the pleadings and failed to recognize the fact that the burden of proof rested upon the defendant. Subsequently, the learned judge correctly stated the issue in his written opinion as follows : “ This issue of fact, as set up in the pleadings, is: 1. Was Adrian Iselin, the defendant, a nonresident, engaged in business in Clearfield county on July 11, 1899, when this summons was served? 2. Was Lucius W. Robinson, the agent of said defendant, upon whom the writ of summons was served, a resident of the county of Clearfield who had and maintained an office or usual place of business therein, upon whom a legal service could be made under the act of assembly in such case made and provided ? ”

In this issue of fact the burden of proof was on the defendant. His plea asserted the affirmative of the proposition that he was a nonresident of the state, not engaged in business in Clearfield county, and that Robinson, who was served with the writ, as his agent, was not a resident of Clearfield county and did not maintain an office there. The plaintiffs filed a replication denying the truth of the allegations in the plea, thereby casting the burden of sustaining them on the defendant : Sheppard v. Graves, 55 U. S. 505; Gilmer v. Grand Rapids, 16 Fed. Repr. 708; Hart v. Kannady, 38 Texas, 720. It is a maxim of the law and a rule of universal application that a party, whether plaintiff or defendant, asserting the affirmative of a question in dispute assumes the burden of proving it. And the rule is equally imperative whether the proof required be of affirmative or negative matter. Whenever, whether in plea, or replication, or rejoinder, or surrejoinder, an issue of fact is reached, then whether the party claiming the judgment of the court asserts an affirmative or negative proposition, he must make good his assertions. On him lies the burden of proof: Wharton on Evidence (1888), sec. 354. In 5 Am. & Eng. Ency. of Law (2d ed.), 28, it is said: “ If, regardless of terms, it is borne in mind that when the issue is joined he has the burden of proof who seeks to move the court to act in his favor, the question of whether the grounds of his claim are alleged affirmatively or negatively is really of no consequence. . . . Therefore, where the proof of negative matter is essential to the successful maintenance of a cause of action, this may necessitate a negative averment, and the plaintiff has the burden of proving it, because looking at the substance of the issue as a whole he must be regarded as asserting the affirmative thereof.” In New Albany v. Endres, 143 Ind. 192, McCabe, J., delivering the opinion of the supreme court of Indiana, says : “ It is settled law that where a negative is essential to the existence of a right, the party claiming the right has the burden of proving such negative.” To the same effect are Amos v. Hughes, 1 M. & Rob. 464, and Soward v. Leggatt, 7 C. & P. 613.

The defendant having offered no evidence to sustain the allegations in his plea which were in contradiction of the facts set forth in the sheriff’s return, there was nothing to impeach the correctness of the return and binding instructions should have been given the jury in favor of the plaintiffs. This would have put an effectual end to the dilatory plea and the consequent delay it accomplished. This, possibly, would have been the result of the trial had not the learned judge erroneously held that the burden of proof was with the plaintiffs. This error permeated the whole trial and led the court to grant the motion of counsel to direct a verdict for the defendant. The second assignment must be sustained and the_ judgment must be reversed.

Having filed his plea to the jurisdiction of the court, it was the duty of the defendant to have it enforced promptly: Wilson v. Hamilton, 4 S. & R. 238. “It is a well established rule of practice,” says Sharswood, J., in Poor v. Colburn, 57 Pa. 415, “ that application to set aside proceedings for irregularity should be made as early as possible, or, as it is commonly said, in the first instance. If the party take subsequent steps in the cause he cannot afterward revert to the irregularity and object to it.” Pleas in abatement should not be regarded with favor, and when a party by entering the plea seeks to oust the jurisdiction of the court and thereby delay a trial of the cause on its merits, he must confine his action strictly to the enforcement of the plea. With that plea upon the record, no further action can be taken in the cause without the defendant’s consent until it is disposed of by trial or otherwise. If the plea is sustained, it puts an end to the suit in its incipiency and requires the plaintiff to institute another action, possibly in another form, if he would have the merits of his claim adjudicated. Being a dilatory plea and having the effect of preventing a trial on the merits, it is reasonable and just that he should interpose it and be required to act promptly in having it disposed of, and failing to do so, or if he take any steps looking to a trial of the cause on the merits, he must be held to have waived the right to insist upon his plea and his conditional appearance will become general.

We are of opinion that the defendant in this action cannot be permitted to avail himself of his plea to the jurisdiction. We have stated at length the successive stages of this litigation and the part the defendant, through his counsel, has taken in it. The return of the sheriff shows the service of the writ to have been made in strict conformity with the Act of April 21, 1858, P. L. 403, 1 Purd. Dig. 61, pi. 9. It was filed in the prothonotary’s office on July 11, 1899. The defendant did not file his plea to the jurisdiction until September 20. In the meantime, the record shows a general appearance by defendant’s counsel, entered August 8, the filing of the plaintiff’s statement on the same day, and service of this statement on defendant’s counsel and the withdrawal of the general appearance of the latter and an appearance by them de bene esse on September 11. It will be observed that the plea was not filed until more than two months after the service of the writ and after the return day of the writ and more than a month after the plaintiffs’ statement had been filed and served on defendant’s counsel. The defendant was guilty of equal' or greater laches and displayed greater activity in preparing for the trial of the cause on its merits after the plea to the jurisdiction had been filed than he had done prior to that time. The day after he filed his plea and disregarding its effect, he filed an affidavit of defense and, while reserving the right to deny the jurisdiction of the court, yet set up a full and complete defense on the merits. The prothonotary on the same day entered the plea of non assumpsit, sec. reg. The case was placed on the trial lists at the next four consecutive quarterly terms of the common pleas, extending over a period of more than a year, and each list, showing the plea of the defendant to be non assumpsit and not to the jurisdiction, was placed in the hands of the defendant’s counsel by the prothonotary. During this time and in addition to these affirmative acts of the defendant and his counsel showing an intention to disregard the plea to the jurisdiction and to try the case on the plea of non assumpsit which was of record, his counsel had the cause continued at his cost and consented on three other occasions to its continuance, permitted the statement to be amended, and entered a rule to take depositions “ to be read on the trial of this case.” It was not until after these several steps in the case had been taken without objection and a year after the plea to the jurisdiction had been filed, that defendant’s counsel on the trial and after the jury had been selected suggested “ the necessity of first passing upon the preliminary question raised by the plea in abatement.” The plea of non assumpsit had then been of record for a year with notice to the defendant’s counsel as the several trial lists in their possession disclosed. We are constrained to hold that these facts establish a waiver by the defendant of his right to deny the jurisdiction of the court and that the plaintiffs’ motion to strike off the plea to the jurisdiction should have prevailed. When this case was here before, Dailey v. Iselin, 200 Pa. 200, we held that the court below properly refused to proceed with the trial on the merits of the case “ with this undisposed of plea on the record.” For a like reason, after the filing of the plea no further steps in the pleading could be properly taken to form an issue on the merits without defendant’s consent until the dilatory plea had been disposed of. The defendant could have prevented any pleading on the merits subsequent to his dilatory plea until that had been disposed of, if he had so desired. On the other hand, he could unquestionably waive his right to insist on his plea and submit himself to the jurisdiction of the court. This may be done as effectively by his acts as by his positive agreement, and we think that the defendant’s conduct clearly establishes that he did so in this case. On October 1, 1901, the time the plaintiffs made their motion to strike the dilatory plea from the record, the plea of non assumpsit had been entered and had remained on the record for more than two years with the knowledge of defendant’s counsel acquired from the trial lists. This motion should have been allowed had it been made at the time the cause was called for trial on its merits in September, 1900, when the defendant’s counsel suggested that the plea in abatement should first be disposed of.

We do not approve the action of the learned court below in permitting defendant’s counsel to withdraw their general appearance without notice to the plaintiffs or their counsel. This was a vital step in the proceedings and should not have been taken without notice to the opposite party. An ex parte hearing in a judicial proceeding affecting the merits of the case or the jurisdiction of the court infringes the constitutional guaranty that no person shall be deprived of his property without due process of law. It is seldom permissible, and should never be taken or allowed if the rights or interests of the parties are involved. The proper course in this case was for the court to have required the defendant’s counsel to file a petition setting forth the reasons for withdrawing their appearance and thereupon to have granted a rule. The parties could then have been heard, on proofs if necessary, and their rights preserved by a proper order of the court.

The effect of our judgment will be to eliminate from the case all proceedings subsequent to the appearance de bene esse which became general by the action of the defendant’s counsel. The case will then be at issue on the plea of non assumpsit and ready for trial on its merits.

The second and ninth assignments of error are sustained, the plea to the jurisdiction is stricken from the record and the judgment of the court below is reversed at the costs of the appellee, and a new venire is awarded.


source: Caselaw Access Project

author: Mb. Chief Justice Mitchell,

license: Public Domain

text:
    Commonwealth v. Kebort, Appellant.

      Constitutional law—Title of statute—Adulteration of food—Drink.

    The Act of June 26, 1895, P. L. 317, entitled, “An act to provide against the adulteration of food, and providing for the enforcement thereof,” which states in section 2 of said act that “the term food, as used herein, shall include all articles used as food or drink by man, whether simple, mixed or compound,” is unconstitutional as applied to drink, and violates the provision of sec. 3, art. Ill of the constitution of Pennsylvania, relating to the title of statutes.
    The right of the legislature to define the terms it uses is beyond question and the meaning it so attaches is mandatory upon the courts in the construction of the statute. But where such meaning is given to the words describing the subject of the act, and is not that which attaches to them in the common understanding, the constitution requires that the title shall express such special meaning with at least' sufficient clearness to put readers on inquiry as to the full provisions.
    The words food and drink in common usage and understanding are complementary and associate terms, denoting the two prime necessities of life, but they are so far from synonymous that they import a plain and fundamental distinction, as universal as language and as- old as the human race.
    No tongue is so primitive that it lacks different words to indicate them and different words to express the sensations of want of them, as hunger and thirst.
    The adulteration of drink is nowhere made an offense in the Act of June 26, •1895, P. L. 317.
    Argued April 24, 1905.
    Appeal, No. 351, Jan. T., 1904, by defendant, from judgment of Superior Ct., April T., 1905, No. 134, reversing order of Q. S. Crawford Co., Feb. T., 1904, No. 35, arresting judgment in case of Commonwealth v. F. J. Kebort and Nick Kebort.
    Before Mitchell, C. J., Dean, Fell, Beown, Mesteezat and Elkin, JJ.
    Reversed.

      Appeal from the Superior Court. See. 26 Pa. Superior Ct. 584.
    The opinion of the Supreme Court states the case.

      Error assigned ivas the judgment of the Superior Court.

      Wesley B. Best and Thomas J. Prather, with them Otto Stolz and Julius Byles, for appellant.
    The sense given to particular words by our great lexicographers is always entitled to weight, yet where the word is used in an act of assembly regard must be had to the circumstances surrounding its use: Penna. R. R. Co. v. Price, 96 Pa. 256.
    Words not used in a technical sense nor as words of art are presumed to have been used in their known sense: Garman v. Potts, 135 Pa. 506.

      A. H. Woodward, with him George W. Hashins and John 0. McClintoch, for appellee.
    The word “food” is not a term of art or science. It has no technical meaning. It has no exact and definite meaning in the law signifying the same thing under all circumstances. It changes, embracing more or less according to various social and racial habits. The lexicographers do not pretend to give it a precise and unvarying definition, and by no two is it defined exactly alike. It has many synonyms. Manifestly, therefore, it is a word which when used in an act of assembly, the legislature has the right to define, yea more, in order to prevent uncertainty, should define. And when the definition there given makes the term to embrace what custom and social habit has recognized as a food, the legislature is well within its power and no constitutional inhibition can be invoked. The effort to declare this law unconstitutional on the ground of title is simply an effort to impale useful and beneficial legislation on the horns of sharp criticism, which this court has repeatedly declared it would not countenance: Mauch Chunk v. McGee, 81 Pa. 433; Blood v. Merceliott, 53 Pa. 391; Allegheny County Home’s App., 77 Pa. 77.
    May 24, 1905 :
   Opinion by

Mb. Chief Justice Mitchell,

The appellants, who are licensed liquor dealers, were in-dieted under the Act of June 26, 1895, P. L. 317, for selling a bottle of blackberry wine, which was adulterated within the meaning of the statute. The title of the act is “ an Act to provide against the adulteration of food, and providing for the enforcement thereof.” Section 2, enacts that “ the term ‘food’ as used herein shall include all articles used for food or drink by man whether simple, mixed or compound.” The first question before us is whether that section can be sustained as to drink, under the constitutional requirement that the subject of the act shall be clearly expressed in the title. The right of the legislature to define the terms it uses is beyond question and the meaning it so attaches is mandatory upon the courts in the construction of the statute. But where such meaning is given to the words describing the subject of the act, and is not that which attaches to them in the common understanding, the constitution requires that the title shall express such special meaning with at least sufficient clearness to put readers on inquiry as to the full provisions.

As to drink, this act plainly fails to meet this requirement. It is a penal act creating an arbitrary and artificial crime, without reference to criminal intent, and must receive a strict construction with due regard to the popular comprehension. The words food and drink in common usage and understanding are complementary and associate terms, denoting the two prime necessities of life, but they are so far from synonymous that they import a plain and fundamental distinction, as universal as language and as old as the human race. No tongue is so primitive that it lacks different' words to indicate them and different words to express the sensations of want of them, as hunger and thirst.

The object of the constitutional requirement as to the title is “ that legislators and others interested shall receive direct notice, in immediate connection with the act itself, of its subject so that they may know or be put upon inquiry as to its provisions' and. their effect: ” Com. ex rel. v. Samuels, 163 Pa. 283. Legislation on the subject of drink, in the form of intoxicating liquors has been frequent and continuous from the provincial days, and there was on the statute books when this act was passed, an elaborate system of license, etc., in regard to it. No liquor dealer, as the appellants are, having a. wakeful eye to the strict regulations of his business by the other statutes, would suppose he was to be affected by a new act with a title indicating food as its only subject. Nor is it reasonable to suppose that his representative in the legislature so intended. The act is clearly unconstitutional as far as it assumes to apply to drink.

The act was under consideration in Com. v. Kevin, 202 Pa. 23, but from an entirely different view. The point then decided was that the words “ poisonous or injurious to the health ” used in subclause 7 of sec. 3, referred to the ingredients used in the adulteration. “ It is not the quantity but the nature of the substance added,” said our Brother Mestrezat, “ which the act prohibits. . . . The terms of the clause declare against a compound that is formed by the addition of a poisonous or injurious ingredient, and not against a compound that is poisonous or injurious to health.” None of the questions in the present case was raised or considered in that.

There is another objection which though not so far-reaching is equally fatal to the conviction in the present case. What appellants were charged with doing is nowhere made an offense in the statute. After extending in section 2 the meaning of the word “ food ” the act immediately returns to the general distinction between food and drink. Section 3 enacts, “an article shall be deemed to be adulterated within the meaning of this act:

(a) In the case of food: 1. If any substance or substances have been mixed with it so • as to lower or depreciate or injuriously affect its quality, strength or purity, ” and so on under seven different descriptions or methods of adulteration, all subclauses under the general heading “(a) In the case of food.” This first head naturally implies that there is to be a second one, “ (5) In the case of drink,” or some similar division, but there is none. The act, after bringing food and drink together under one definition, in section 2, returns in section 3 to the distinction commonly understood ; makes full provision as to food as a separate subject, and thep stops short without any provision as to drink. It is apparent that the act either was left incomplete by its draughtsman, or the part relating to drink was cut out in its passage and its place not supplied. Whatever be th¿ reason, the act fails to create any such offense as appellants are charged with.

Q tber assignments of error cover objections to the act as violating art. Ill, sec. 15 of the constitution because diverting money from the state treasury without a specific appropriation; also art. IY, Sec. 19, as curtailing the constitutional powers of the secretary of internal affairs; and art. Ill, sec. 27 prohibiting the creation of any state office for the inspection, etc., of any commodity. As the assignments already considered fully dispose of this case, we express no opinion on the others.

The judgment of the Superior Court is reversed, and the order of the Quarter Sessions of Crawford County arresting judgment on the indictment is affirmed.


author: Me. Chief Justice Mitchell,

text:
    Commonwealth v. Ezell, Appellant.

      Criminal law—Murder—Evidence—Collateral" issue.

    Where the effect, if not the intention of evidence offered is to divert the attention of the jury by a collateral and subordinate issue, the matter must always be left largely in the discretion of the trial judge.
    On the trial of an indictment for the murder of oné railroad employee by another, when a witness for the commonwealth who was also an employee of the railroad company, was on the stand, the defense offered to show by him that after the murder and shortly before the trial, the witness had stated that “if he knew anything in favor of the prisoner it would be as much as his job was worth to mention it anywhere.” The offer did not embody a statement of any fact favorable to the defense within the knowledge of the witness. The testimony of the witness in its main points agreed with that of the defense. Held, that as the apparent purpose of the offer was to raise in the minds of the jury a prejudice against the railroad company which was a wholly collateral issue, the discretion of the trial judge was properly exercised in refusing the offer.

      Criminal law—Murder—Arguments of counsel.

    The arguments of counsel to the jury are not assignable as error. When counsel misstate facts or material evidence, or resort to comment unfair or unduly prejudicial to the other side, it is the duty of the opposing counsel at once to call the attention of the court to the matter, and the action of the court may then become the subject of exception. In general it is matter of discretion and reviewable only for abuse.

      Practice, Q. S.—Appeals—Assignments of error—New trial—Discretion.

    The opinion and reasons of the judge in refusing a new trial and his reception or exclusion, of depositions, or other proofs, in regard to after-discovered evidence are not assignable for error.
    The refusal of the judge to delay an argument of a motion for a new trial is entirely within his discretion and is not assignable for error.

      Stenographers—Transcript of testimony—Delay—Order on stenographer.

    Stenographers are appointed and made part of the judicial machinery to facilitate and expedite the proceedings, not to delay them, and it is the duty of the court at all times to see that’ their duties are performed without delay. It is the right of counsel to have the transcript and whenever he is hindered or unduly delayed in his conduct or consideration of the case by want of it, he is entitled to move the court for an order on the stenographer to furnish it.
    Argued May 8, 1905.
    Appeal, No. 101, Jan. T., 1905, by defendant, from judgment of 0. & T. Fayette Co., Dee. T., 1904, No. 2, on verdict of guilty of murder of the first degree in case of Commonwealth v. James W. Ezell.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Indictment for murder. Before Reppert, P. J.
    At the trial it appeared that on September 10,1904, William G. Porter, assistant yard master at Newell Station on the Pitts-burg and Lake Erie Railroad, was killed by James W. Ezell, night telegraph operator at the same station. Ezell had been discharged by Porter and shortly afterwards cut the latter’s throat with a razor.
    Verdict of guilty of murder of the first degree upon which judgment of sentence was passed. Defendant appealed.

      Errors assigned among others were (4) in overruling the offer of testimony of M. D. Flannagan, quoted in the opinion of the Supreme Court; (5) in refusing a new trial on the ground of improper remarks by the district attorney; (6) refusal of motion for continuance of argument on rule for new trial; (7) in holding incompetent certain expert testimony offered on rule for new trial; (8) in refusing generally to grant a new trial.

      Hal. S. Corbett and Leslie A. Howard, with them Harry A. Cottom and George Patterson, for appellant.

      Alfred E. Jones, ex-district attorney, Davis W. Henderson, associate counsel, and Thomas H. Hudson,-district attorney, for appellee, were not heard.

      May 24, 1905:
   Opinion by

Me. Chief Justice Mitchell,

None of the assignments of error can be sustained, and they do not require extended discussion.

The deceased was the assistant yard master, and the prisoner the night telegraph operator at the same railroad station, and the killing took place in the office of that station, about 8:30 p. M. on Saturday.

The condition and conduct of the prisoner-on Friday night and the orders in regard to him which the deceased had received from his superior, the yard master, were part of the chain of circumstances leading up to the murder entirely proper for the information of the jury and not too remote.

One Flanagan, a witness for the commonwealth, being on the stand, the defense offered to show by him that after the murder, and shortly before the trial, the witness, an employee of the railroad company, had stated that “ if he knew anything in favor of Ezell it would be as much as his job was worth to mention it anywhere; for the purpose of showing the disposition of the witness to be extremely adverse and hostile, and such duress exercised by the railroad company as would render his freedom of speech and action extremely questionable and biased to an altogether improper extent as testimony in this case.” Objection to this was sustained, apparently because the counsel for the prisoner would not embody in'the offer a statement of any fact favorable to tlje defense that they knew or suspected Flanagan had knowledge of, and because the apparent purpose of the offer was to raise in the minds of the jury a prejudice against the railroad company, which had shown a natural and entirely proper interest in the investigation of the murder of one of its employees. On this subject the learned judge in his opinion refusing a new trial, said, “ the allegation that these and other witnesses of the commonwealth were intimidated by their employer, with the result that their testimony was biased and exaggerated and their attitude hostile to the defendant, is not sustained by the demeanor of these witnesses while oh the stand, nor by fair consideration of their testimony along with that of the defendant himself, for in much of it there is substantial agreement. There is no intimation by this defendant, or otherwise, that .there are within the knowledge of any of these witnesses any facts favorable to himself which have been withheld.” As the prejudice or bias of a witness is always a proper subject of inquiry, it would doubtless have been more prudent to have followed the general rule and admitted the offer. But where the effect, even if not the intent of the evidence offered is to divert the attention of the jury by a collateral and subordinate issue, the matter must always be left largely in the discretion of the judge, and in this case it was certainly not abused, as it is clear that there was no solid foundation for the charge of hostile bias on the part of the witness, whose testimony in the main points agreed with that of the defense.

The arguments of counsel to the jury are not assignable as error. “We have had occasion to sayón several occasions within the last few years that there is no way provided for excepting to the remarks of counsel:” Com. v. Windish, 176 Pa. 167. They are under the supervision and control of the judge, who is not bound to give attention to them unless called upon to do so. If the district attorney’s remarks can be made the subject of exception, then so must be those of the defendant’s counsel, and the appellate court would be asked to review the trial, not on the evidence but on the talk. When counsel misstate facts or material evidence, or resort to comment unfair or unduly prejudicial to the other side, it is the duty of the. opposing counsel at once to call the attention of the court to the matter, and the action of the court may then become the subject of exception. In general it is matter of discretion and reviewable only for abuse: Com. v. Windish, 176 Pa. 167; Com. v. Weber, 167 Pa. 153.

It ought not to be necessary to say again at this late day, that the opinion and reasons of the judge in refusing a new trial, and his reception or exclusion of depositions or other proofs in regard to after-discovered evidence, are not assignable for error.

The action of the judge in refusing to delay the argument of the motion for a new trial was entirely within his discretion and is not assignable here for error. But the frequency of complaints from counsel on the dilatoriness of the court stenographers in transcribing the notes of trial, give us much reason to believe that the stenographers are not always, or perhaps generally, held to the degree of promptitude and diligence that tbe law intends. They are appointed and made part of tbe judicial machinery to facilitate and expedite tbe proceedings, not to delay them, and it is the duty of tbe court at all times to see that their duties are performed without delay. It is the right of counsel to have the transcript and whenever he is hindered or unduly delayed in his conduct or consideration of the case by want of it, he is entitled to move the court for an order on the stenographer to furnish it. The motion to delay the court’s action in the case is not the appropriate remedy, for there are many other considerations that may arise on such an application, including the general duty of the court to prevent delay. It sometimes happens in this court that counsel either aslc for postponement, or offer as excuse for an imperfect paper-book, the difficulty of getting the transcript of the evidence from the stenographer. The proper practice in such cases is to apply to the court below for an order on the stenographer, and if that prove ineffective, this court at any time after the appeal is lodged here, is open to enforce relief.

The judgment is affirmed and the record remitted to the court of Oyer and Terminer of Fayette county for the purpose of execution according to law.


author: Mb. Justice Elkin, Mjr. Chief Justice Mitchell,

text:
    Commonwealth v. Fellows, Appellant.

      Criminal law—Murder—Degree—Function of jury.

    A conviction of murder in the first degree will be reversed where the charge of the trial judge amounts to binding instructions to find that the crime alleged to have been committed'was murder of the first degree, thus taking from the jury the right to determine the degree as required by the Act of March 31, 1860, P. L. 382.
    Where the trial judge instructs the jury that he does not deem it necessary to define murder of the second degree or explain it, for the reason that under the testimony the verdict should be murder of the first degree, or not guilty, and there is nothing in the general charge to save the error, the conviction will be reversed.
    Mr. Chief Justice Mitchell dissents.
    Argued May 8, 1905.
    Appeal, No. 84, Oct. T., 1905, by defendant, from judgment of 0. & T. Cambria Co., Dee. T., 1904, No. 3, on verdict of guilty of murder of the first degree in case of Commonwealth v. Stephen Fellows.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Reversed.
    Indictment for murder. Before O’Connor, P. J.
    The court charged in part as follows:
    [We do not know that we should take the chance of confusing you by defining the various degrees of homicide, for the reason that it does seem to us that in this case your verdict should be murder in the first degree or not guilty.] [1]
    [We have before suggested that we do not deem it necessary in this case to define murder in the second degree or to explain it, nor do we deem it necessary to define manslaughter and to explain it, for the reason that there are no elements of manslaughter in the case, and there seems to be nothing in the testimony that would fix the degree of the defendant’s guilt at murder in the second degree, if he be guilty at all. It seems to us, under the evidence, that he is either guilty of murder in the first degree or he is not guilty of anything, and that is why we have considered it best not to confuse you, in your disposition of the case, by burdening you with definitions of offenses which we conceive have no application here] [2.]
    [If you find, from all the evidence in the case, that this defendant has committed a wilful and deliberate murder, you convict him of murder in the first degree, for, as we have suggested, that is the only question in the case, if the evidence is to be believed, unless you find that, at the time of the commission of the offense, the defendant was not responsible. If you find that, it does not reduce the crime, but operates in the acquittal of the defendant entirely, and your verdict would be not guilty.] [3]
    Verdict of guilty of murder of the first degree on which judgment of sentence was passed.

      Error assigned was the judgment of the court.

      John E. Evans, with him Frank J. Hartmann, for appellant.
    It is error for the court to withdraw from the jury their right to fix and determine the degree of murder: Rhodes v. Commonwealth, 48 Pa. 396; Lane v. Commonwealth, 59 Pa. 371; Shaffner v. Commonwealth, 72 Pa. 60; Com. v. Sutton, 205 Pa. 605.
    It is error, in a homicide ease, if the court fails to instruct the jury fully upon the law applicable to the evidence: Myers v. Com., 83 Pa. 131; Com. v. Sutton, 205 Pa. 605.

      M. B. Stephens, with him J. W. Leech, for appellee.
    The learned judge of the court below did not in any manner withdraw from the jury their right to.fix and determine the degree of murder in this case: Rhodes v. Com., 48 Pa. 396.
    “ An imperative instruction which takes from the jury the right to ascertain the degree of murder is erroneous, but an instruction which points out to them their duty under .the law but leaves them free to act is not: ” Commonwealth v. Kovovic, 209 Pa. 465.
    The distinction between a binding instruction and the proper statement of the law has been pointed out in Rhodes v. Commonwealth, 48 Pa. 396; Lane v. Commonwealth, 59 Pa. 371; McMeen v. Commonwealth, 114 Pa. 300; Commonwealth v. Sheets, 197 Pa. 69.
    The Supreme Court will not reverse a judgment on a verdict of guilty of murder in the first degree because of a trivial error which could have done the prisoner no harm : Commonwealth v. Van Horn, 188 Pa. 143.
    May 24, 1905:
   Opinion by

Mb. Justice Elkin,

Did the charge of the learned trial judge amount to binding instructions to find that the crime alleged to have been committed was murder of the first degree, thus taking from the jury the right to determine the degree as required by the act of assembly ? The appellant contends that error was committed in this respect. The Act of March 31, 1860, P. L. 382, under which defendant was indicted, provides, inter alia : “ And the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict ivhether it be murder of the first or second degree.” This is an imperative duty, which under the express provisions of the statute the jury alone must perform. The court cannot be the keeper of the consciences of, nor the arbitrator of the facts for, the jury, because in the law it is otherwise written. Binding instructions to find the defendant guilty of murder of the first degree or to acquit, and which gave the jury no alternative in finding the degree, violate the statutory rule and are erroneous. All of our cases recognize and follow this rule: Rhodes v. Commonwealth, 48 Pa. 396; Lane v. Commonwealth, 69 Pa. 371; Shaffner v. Commonwealth, 72 Pa. 60; Commonwealth v. Sutton, 206 Pa. 605.

In Rhodes v. Commonwealth, 48 Pa. 396, Chief Justice WOODWARD said: “ It is vain to argue that the judge was more competent to fix the degree than the jury, or that the circumstances proved the crime to be murder of the first degree, if murder at all; for the statute is imperative that commits the degree to the jury. It was proper for the judge to advise them of the distinction between degrees, to apply the evidence, and to instruct them to which of these degrees it pointed; but to tell them they must find the first degree, was to withdraw the point from the jury and decide it himself.” It was said in that case that the charge, which left the jury no alternative degree to consider by instructing them that it was their duty either to find the defendant guilty of murder of the first degree or to acquit, was erroneous.

It is true in some of our cases it has-been held that the rule was not violated because while the jury was not instructed to ascertain the degree in specific terms, the charge as a whole reasonably left the alternative degrees of murder for the determination of the jury. In these cases the distinction is drawn between a correct statement of the law and the facts applicable thereto, and binding instructions to the jury which take from them ' the right to ascertain the degree. In not a single case, however, has this court departed from the settled rule that instructions to either convict of murder of the first degree or to acquit were erroneous, except in those instances where the error in this respect was held not to be reversible because the general charge fairly left the whole question to the jury. While murder is a common-law offense, our statute fixes what constitutes the degree thereof, and imposes on the jury the duty of ascertaining the same. In the case at bar the learned court below instructed the jury that he did not deem it necessary to define murder of the second degree or explain it, for the reason that under the testimony the verdict should be murder of the first degree or not guilty. These instructions are substantially reiterated several times in the charge. They are -in substance binding instructions to either return a verdict of murder of the first degree or to acquit, and the general charge did not save the error. No alternative as to the degree was suggested in the charge. ■ We concede that courts will not be astute in sustaining unsubstantial technicalities in favor of criminals whose guilt is clear and where a just verdict has been returned. The instructions fin this case, however, not only violated an express provision of the statute, but the settled rules of law applicable thereto as well. The learned trial judge, actuated by a sense of duty, no doubt, thought the defendant should be convicted of murder of the first degree, and inadvertently went further than the act of assembly permits or the decisions of our court justify in his effort to reach this result.

Judgment reversed and a venire facias de novo awarded.

Mjr. Chief Justice Mitchell,

dissenting:

I would affirm this judgment. There is not the slightest doubt about the guilt of the appellant or the degree of it. Even his counsel, who come here under their professional obligation to take the most favorable view of their client’s case, have nothing to offer but a technicality, which in my opinion is not sound even technically.

It is true that the statute enacts that the jury if they find a person indicted guilty shall “ascertain in their verdict whether it be murder of the first or second degree,” but they are to “ ascertain,” i. e., to decide and declare, that fact, just as they do the other facts in the case, in accordance with their oath to render “ a true verdict according to the evidence. ” In the present case the only verdict the evidence would justify, was, as the judge instructed the jury, either murder of the first degree or not guilty. The jury had the power to render a different verdict, just as they had the power to find the prisoner guilty of assault only, but I cannot be convinced that it was reversible error for the judge to omit to tell them that they had the power, if they chose, to disregard their duty and violate their oaths by a verdict which no view of the evidence would sanction. It is well settled-that where the evidence does not justify a verdict of manslaughter it is not error to omit to charge the jury on that grade of homicide : Brown v. Com. 76 Pa. 319 (339); Clark v. Com. 123 Pa. 555 (575); Com. v. Crossmire, 156 Pa. 304; Com. v. Buccieri, 153 Pa. 535. I am unable to see why the distinction between the degrees of the highest form of homicide, murder, should have any greater sanctity to disregard the binding force of the evidence. There are some strong expressions in the cases on the duty of the court to leave this question to the -jury, but they should be understood as referring to the right of the jury to. decide the facts, according to the law and the evidence, where the evidence admits of an issue of fact. Where the evidence raises no such issue but points to only one alternative conclusion of murder of the first degree or not guilty at all, I can see no difference of duty either in court or jury between trials for murder or for any other crime.

On the contrary, in Shaffner v. Com., 72 Pa. 60, the judge charged the jury, “if the prisoner is guilty there can be no difficulty in ascertaining the degree for being by poison it must be in the first degree if purposely administered; . . . . if you are convinced that he is guilty of the crime, it is murder of the first degree as declared by the act of assembly, and it is your duty to say so without regard to the consequences to the prisoner.” This was held not to be error. And in McMeen v. Com., 114 Pa. 300, the charge was: “ If you find the defendant sent the poison to his wife with the intent to take her life, then the law says it is murder in the first degree and you should say so in your verdict.” This again was held not to be error. The distinction between these instructions to the jury and that given in the present case, is altogether too illusory and unsubstantial to be worthy of countenance by a court administering law and justice in a case of serious crime.


author: Mr. Justice Mestrezat,

text:
    Arnold v. Russell Car & Snow Plow Company, Appellant.

      Appeals—Interlocutory decree—Equity—Assignment of error.

    A decree of the court of common pleas overruling a demurrer to a bill in equity and directing the defendant to answer, is an interlocutory decree from which no appeal lies.
    Assignments of error to orders appointing a receiver and granting an injunction, and continuing the injunction and receiver, without quoting the orders, are incomplete and will not be considered.
    Argued May 2, 1905.
    Appeal, No. 119, Jan. T., 1905, by defendants, from decree of C. P. Elk Co., April T., 1905, No. 1, on bill in equity in case of N. T. Arnold' et al. v. Russell Car & Snow Plow Company and J. W. Russell.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Appeal quashed.
    Bill in equity for an injunction and receiver.
    The court entered a decree overruling the demurrer and requiring the defendant to answer over.

      Errors assigned among others were as follows :
    1. The court erred in its order of December 8, 1904, appointing a receiver and granting a preliminary injunction.
    2. - The court erred in its order of January 6,1905, continuing the injunction and receiver..
    3. The court erred in not dismissing plaintiff’s bill.

      Fred H. Ely, for appellant.

      Harry Alvan Hall, with him Eugene H. Baird, for appellee.
    May 24, 1905:
   Opinion by

Mr. Justice Mestrezat,

This is an appeal from the decree of the court below in overruling a demurrer to a bill in equity and directing the defendants to answer over. The first two assignments of error are incomplete, and will not be considered: Cessna’s Estate, 192 Pa. 14. The decree is interlocutory and not final,' and hence no appeal lies.

The appeal is quashed.


author: Pee Cueiam,

text:
    Real Estate Investment Company’s Assigned Estate.

      Assignment for creditors—Payment to creditors—Surcharge—Beni of office.

    Where an assignee for creditors after diligently trying to sell the equities in a number of mortgaged houses owned by the estate'fails to do so, and then conveys the houses to certain of the creditors in extinguishment of their claims, the assignee will not be surcharged with the difference between the appraisement and the rate at which the houses were taken by the creditors, if the weight of evidence shows that the appraisement was too high, and that the arrangement made by the assignee was as favorable a one as he could reasonably be expected to make.
    Where the assignee of a corporation secures a tenant for the building occupied by the corporation, and conducts the business of the assignment at his own private office, he is entitled to the credit for one-third rent of his office, where the evidence shows that the arrangement was an advantageous one to the assigned estate and resulted in a net profit to it of several hundred dollars.
    Argued Jan. 25, 1905.
    Reargued, May 11, 1905.
    Appeal, No. 325, Jan. T., 1904, by John J. Ridgway, from order of C. P. No. 1, Pliila. Co., Dec. T., 1900, No. 140, dismissing exceptions to auditor’s report In re Assigned Estate of The Real Estate Investment Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ., on reargument.
    Reversed.
    Exceptions to report of Sheldon Potter, Esq., auditor.
    The opinion of the Supreme Court states the casé.

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

      John Gf. Johnson, with him Thomas Ridgway, for appellant.
    •No paper-book filed and no appearance for appellee.

      May 24, 1905 :
   Pee Cueiam,

The assignee had on his hands a much involved and troublesome estate, a considerable portion of which consisted of the equities over the mortgages on real estate in the city of Philadelphia. The mortgagees were pressing for payment and after diligent effort to sell the houses for cash, the assignee conveyed certain of them to creditors in extinguishment of their claims against the assigned estate. The auditor being of opinion that this was a payment to the grantees of the houses of a larger percentage of their claims than the other creditors would receive from the other assets, surcharged the assignee with what he deemed the excess. In so doing, however, he made the serious mistake of regarding what he considered the value of the property, chiefly based on the appraisement, instead of what the assignee could actually have sold them for. No doubt the appraisement was made by fair and competent appraisers, but at best it was only opinion, and the diligent but unsuccessful efforts of the assignee to sell showed that the valuation was too high. The evidence not only fails to sustain the surcharge, but the,clear weight of it shows that the arrangement by the assignee with the purchasing creditors was as favorable a disposition of the assets as he could reasonably be expected to make.

The investment company at the time of its assignment occupied a building on Walnut street, eligible for offices. The assignee after some time secured a tenant for the first floor, moved the safe and papers, and conducted the business of the estate in his own office, thus securing a considerable amount of rent for the company from its former building. In his account he claimed credit for one-third of the rent of his office thus devoted to the use of the assigned ' estate. This credit the auditor disallowed and surcharged to the assignee. In this he was clearly wrong. The evidence shows that the move was an advantageous one to the assigned estate, resulting in a net profit of more than $1,200. It was also a burden on the assignee’s private business which he was not called upon to bear without fair compensation. It requires very little experience to estimate the interruption of the assignee’s regular business by the visits and demands of depositors, mortgagees and other creditors of the insolvent company urgent for their money and the additional office room and clerical force thus made necessary. The claim was a proper one, moderate in amount and should have been allowed.

The decree is reversed and the account ordered to be restated in accordance with this opinion. Costs to be paid by the appellees.


author: Mb. Justice Elkin,

text:
    Philadelphia to use v. Cooper, Appellant.

      Municipal claims—Continuance of lien—Alias writ of scire facias—Service—Registered owner—City of Philadelphia—Acts of March 29, 1867, P. L. 600, June 10, 1881, P. L. 91, May 16, 1891, P. L. 69, and July 26, 1897, P. L. 420.
    A scire facias sur municipal lien fatally defective in its service and a nullity for the purpose of obtaining judgment thereon has not sufficient potentiality to continue the lien beyond the time of its expiration so as to give validity to a judgment attempted to be secured on an alias scire facias sued out after the lien of the original claim had expired by efflux of time.
    Where a scire facias sur municipal lien is issued in Philadelphia within five years from the time when the claim was filed, and is returned nihil habet without the filing of an affidavit averring that the registered owner is a nonresident or cannot be found, and an alias scire facias is issued more than five years after the claim was filed but within five years from the exit of the first writ, the alias writ is invalid and should be stricken from the record.
    Fell and Potter, JJ. dissent.
    Argued March 22, 1905.
    Appeal, No. 38, Jan. T., 1905, by defendant, from judgment of Superior Court, Oct. T., 1904, No. 76, reversing order of C. P. No. 4, Phila. Co., June T., 1895, No. 131, M. L. D., making absolute a rule to quash the alias scire facias, sur municipal lien in case o£ City of Philadelphia to use of The Vulcanite Paving Company, contractor, v. Sarah A. Cooper, owner, etc., William H. Haines, actual and registered owner, and Frank Mauran, present registered and real owner.
    Before Fell, Brown, Mestjrezat, Potter and Elkin, JJ.
    Reversed.
    Scire facias sur municipal lien. See Philadelphia v. Cooper, 27 Pa. Superior Ct. 552.
    The facts are stated in the opinion of. the Supreme Court.

      Error assigned was the judgment of the Superior Court.

      Sharmood Brinton, for appellant.
    Where the scire facias is returned “nihil habet” and there is not of record an affidavit that the registered owner is a nonresident or cannot be found the service of the writ is fatally defective, no valid judgment .can be obtained thereon, and if in fact judgment is entered it is not simply voidable, but absolutely void: Simons v. Kern, 92 Pa. 455; Ferguson v. Quinn, 123 Pa. 337; Trust Co. v. Fricke, 152 Pa. 231; City of Phila. v. Merz, 16 Pa. Superior Ct. 332; Philadelphia v. Ward, 16 W. N. C. 76; Phila. v. Scott, 93 Pa. 25.
    If the service of the writ be fatally defective the writ is a nullity and must be regarded precisely as if it had never been issued: Phila. v. Merz, 16 Pa. Superior Ct. 332; Phila. v. Ward, 16 W. N. C. 76; Simons v. Kern, 92 Pa. 455; Ferguson v. Quinn, 123 Pa. 337; Trust Co. v. Fricke, 152 Pa. 231.

      John K. Andre, with him Henry F. Walton, for appellee.
    The lien was saved by scire facias issued in the manner provided by law in case of a judgment: Haddington M. E. Church v. Philadelphia, 108 Pa. 466; Silverthom v. Townsend, 37 Pa. 263; Lichty v. Hochstetler, 91 Pa. 444; Kirby v. Cash, 93 Pa. 505.
    The lien was preserved by the saving Act of July 26, 1897, P. L. 420.
    May 24, 1905:
   Opinion by

Mb. Justice Elkin,

Stripped of refinements, that do not* convince, and of distinctions that do not distinguish, the exact question before us is, whether a scire facias sur municipal lien, fatally defective in its service and a nullity for the purpose of obtaining judgment thereon, has sufficient potentiality to continúe the lien beyond the time of its expiration so as to give validity to a judgment attempted to be secured on an alias scire facias sued out after the lien of the original claim had expired by efflux of time. If it has, this judgment must be affirmed. If it has not, it must be reversed.

The claim was filed August 19, 1895. A scire facias was issued thereon July 18, 1900, and was returned nihil habet the first Monday of August, 1900. An alias scire facias was sued out October 1, 1903, more than five years after the filing of the claim. Frank Mauran, the present registered and real owner, became the purchaser of the property after the expiration of five years from the filing of the original claim, and was suggested of record as such on the first day of October, 1903. The contention of the appellant is that the return of nihil habet to the original scire facias did not comply with the express provisions of the statutes relating to the service of the writ, was therefore a nullity, the effect of which left the claim in the position as if no scire facias had been issued thereon, and as a result the lien expired in five years from the date of its entry. It is further contended that the alias scire facias having been sued out after tbe expiration of the lien, cannot revive and continue it. •

Municipal claims are creatures of our statutes. These acts being in derogation of the common law, as well as of private rights, must be strictly construed. The learned judge who delivered the opinion of the Superior Court correctly stated the rule as follows: “ The lien of the mechanic or municipal claim being by statute, its validity, duration and extent are wholly dependent upon compliance with the statutory provisions.” We entirely concur in this view of the law, but must insist that the application of the rule is fatal to the claim of the appellee. A scire facias must be issued on a municipal claim within five years of the filing of the same or the lien is lost: Act of May 4, 1889, P. L. 79. If there is personal service on the registered owner, it must be in the same manner as a summons, as provided in the Act of March 29,1867, P. L. 600. If personal service on the registered owner is not made, then an affidavit must be filed suggesting that the registered owner is a nonresident or cannot be found, to be followed by posting and publication, as provided by the Act of June 10, 1881, P. L. 91.

In the present case the writ of scire facias was not personally served on the registered owner, and no affidavit was filed showing that he was a nonresident or could not be found, and service was not made by posting and publication as required by the act of 1881. The return of nihil habet is not in compliance with the acts of assembly regulating the service of the Avrit in this case. It is therefore fatally defective and must be treated as a nullity. The conclusion reached by the Superior Court overlooks the act of 1881, and since these statutory provisions were not' complied with, under the rule announced the validity of the claim cannot be sustained. This court has held in .several cases that where the writ was defectively served, as in the case at bar, no valid judgment could be obtained thereon, and if in fact a judgment be entered it is not only voidable but void: Simons v. Kern, 92 Pa. 455; Ferguson v. Quinn, 123 Pa. 337; Safe Deposit & Trust Co. v. Fricke, 152 Pa. 231. If a writ fatally defective in its service is a nullity, and no valid judgment can be entered thereon, it is futile to argue that it has sufficient potentiality to continue the lien beyond the statutory period so as to support'an alias writ issued after its expiration, and thus give - vitality to a lost lien. This position is not sound, nor is it in harmony with our cases. If the service of the original scire facias was so fatally defective as not to support a judgment, and therefore a nullity for this purpose, it must be treated as a nullity for all purposes. The learned judge who delivered the opinion of the Superior Court holds that the provisions of the act relating’ to filing an affidavit and posting and publishing notice, are but a substitute for personal service. This may be true, but it is a substitute imperatively required by the act and not provided in this case. The case at bar is not different in principle from Philadelphia v. Merz, 16 Pa. Superior Ct. 332, wherein the rule applicable to the service of writs of scire facias on municipal claims is correctly stated. It was held in City of Philadelphia v. Ward, 16 W. N. C. 76, that a scire facias on a municipal claim with a fatally defective service was ineffectual to continue the lien of the claim, and amounts to a nullity. We have said in City of Philadelphia v. Scott, 93 Pa. 25, that an alias writ issued more than five years after the filing of the claim, though less than five years from the exit of the original writ, will not preserve the lien of the claim in cases where the first writ is a nullity as the result of an ineffectual or defective service.

The facts of the present case do not distinguish it in principle from the rule of the cases just cited. In construing the somewhat similar Act of February 24,1871, P. L. 126, relating to the registry of lots in the city of Pittsburg, Mr. Justice Paxson said: “ The plain object of this act was to prevent the real estate of those citizens who had complied therewith in the matter of registry, from being swept from them by a judicial sale upon a municipal claim without notice to them and without their knowledge. If the act is no protection to a registered owner it has failed of its purpose, and might as well not have been passed by the legislature: ” Ferguson v. Quinn, 123 Pa. 337.

The provisions of the act of 1881, relating to service upon or notice to the registered owner are wise and salutary, and being requirements of the statute they must be strictly observed. The contention of the learned counsel for appellee that the service of the 'original scire facias is effectual under the Act of March 29, 1867, P. L. 600, or by the Act of May 16, 1891, P. L. 69, or other similar acts, cannot be sustained, for the reason that the provisions of these acts relating to the service of writs of scire facias generally on such claims cannot be held to apply to the present case, in which, personal service not having been made, under the express provisions of the act of 1881, service by posting and publication after affidavit filed is required.

Judgment of the Superior Court reversed, and the order of the court of common pleas No. 4 of Philadelphia county, making absolute a rule to quash the alias scire facias and strike off lien, is affirmed.

Fell and Potter, JJ., dissent.


author: Mb. Justice Fell,

text:
    Presbyterian Board v. Gilbee.

      Corporation—Contract—Consideration—Ultra vires—Principal and agent ■—Transfers.

    A corporation may not avail itself of ultra vires as a defense where a contract has been entered into and executed in good faith by the other party and the corporation has received the benefit of the performance.
    It is repugnant to every sense of justice and fair dealing that a principal shall avail himself of the benefits of an agent’s act, and at the same time repudiate his authority.

      A corporation deposited certain of its bonds with trustees who were to deliver them to such persons as the board of directors should designate. A purchaser received some of the bonds with a power of attorney in blank to transfer them. Subsequently the same person loaned money to the company under an agreement by which he was to receive additional bonds as collateral. When the loan was made, three of the board of directors, one of whom was the secretary, one the treasurer, and the other the general manager of the company requested the trustees, one of whom was also a director, to deliver the bonds to the person making the loan, and this request was complied with, but no further power of transfer was given. Subsequently the corporation was adjudged a bankrupt and its real estate sold under proceedings on a mortgage prior in lien to the mortgage by which the bonds were secured. The trustee in bankruptcy claimed the whole fund as against the holder of the bonds on which the loan had been made, on the ground that the transfer of the bonds had not been authorized by the directors as a board, and because no power to transfer had been executed by the trustees. Held, that the claim was unfounded, and that the loan should be repaid out of the fund.
    Argued Jan. 20, 1905.
    Appeal, No. 178, Jan. T., 1904, by-Richard Y. Filbert and New Jersey Corporation Guarantee & Trust Company, from decree of C. P. No. 4, Phila. Co., June T., 1900, No. 882, dismissing exceptions to and confirming report of the auditor appointed to make distribution of the fund paid into court in case of Presbjderian Board of Relief for Disabled Ministers and the Widows and Orphans of Deceased Ministers v. Manuel A. T. Gilbee.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrbzat, Potter and Elkin, JJ.
    Reversed.
    Exceptions to report of John K. McCarthy, Esq., auditor.
    The opinion of the Supreme Court states the case.

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

      Charles F. Warwick, witb him J. Edgar Butler, for appellant.—A
    bankrupt and its trustee in bankruptcy cannot repudiate a transaction in which a creditor in good faith loaned them money by taking advantage of a resolution limiting the apparent authority of the agent (the trustees of the bonds for the company), which resolution was hidden away in the minute book of the company, and of which the creditor did not and could not possibly have had notice: Millward-Cliff Cracker Co.’s Estate, 161 Pa. 157; Hetzel v. Sawyer, 10 Pa. Dist. Rep. 29; Fay v. Noble, 66 Mass. 1; Penna. Natural Gas Co. v. Cook, 123 Pa. 170; Pittsburg, etc., R. R. Co. v. Clarke, 29 Pa. 146; Moorehead v. Gilmore, 77 Pa. 118.
    No power of attorney accompanied the bonds delivered on June 30, because none was necessary. Filbert already had three powers of attorney signed by the registered owners, but blank as to the amount of bonds. It was intended that these should be used to transfer any amount of bonds which the transferor could produce.
    The bonds delivered constituted an equitable assignment which the law will enforce to protect the consideration actually received by the corporation: East Lewisburg Lumber, etc., Co. v. Marsh, 91 Pa. 96; Wallace’s App., 104 Pa. 559; Collins’s App., 107 Pa. 590; Harris’s App., 21 W. N. C. 189; Hetzel v. Sawyer, 10 Pa. Dist. Rep. 29.
    . Arthur Colville, with him Alex. Simpson, Jr., and James H. Wolfe, for appellee.
    The trustees had no authority to hand over the bonds to Filbert: Allegheny County Workhouse v. Moore, 95 Pa. 408; Stoystown, etc., Turnpike Road Co. v. Craver, 45 Pa. 386; Fisher v. Gas Co., 1 Pearson, 118; McGowan v. Lincoln Park, etc., Co., 181 Pa. 55.
    June 22, 1905 :
   Opinion by

Mb. Justice Fell,

This appeal is from an order confirming the report of an auditor awarding distribution of a fund realized by a sheriff’s sale. The only question to be considered is the validity of the appellant’s title to bonds which were a lien on the fund and entitled to payment from it. In March, 1900, the Schuylkill Iron and Steel Company issued registered bonds, secured by a mortgage of its property, to the amount of $80,000. One half of these bonds it placed in the hands of two trustees, in whose names they were registered, to be held subject to the order of the board of directors. At the same time the board authorized the trustees to transfer bonds to the amount of $20,000 as collateral security to the holder of its outstanding notes. In April, 1900, the appellant bought these notes and received the bonds with other collaterals which accompanied them. In June, 1900, he loaned the company, $2,000, with which to pay wages, under an agreement that he was to receive its note with bonds of the face value of $7,000 as collateral. These bonds are the ones in question. When the loan was made, three of the board of directors, one of whom was the secretary, one the treasurer, and the other the general manager of the company, requested the trustees, one of whom was also a director, to deliver the bonds to the appellant, and the request was complied Avith. In July, 1900, the company was adjudged bankrupt, and subsequently its real estate was sold under proceedings' on the mortgage, which was prior in lien to the mortgage by which the bonds were Secured, and the fund for distribution Avas created by this sale.

It is conceded that the lien of the mortgage securing the bonds was divested by the sale and transferred to the fund, and that there was not an avoidable preference under the bankruptcy law, because there was a present consideration for the transfer of the bonds. The trustee in bankruptcy therefore stands in the same position that the company stood. He and the appellant are the only claimants of the fund, and no rights are involved except those of the appellant, who loaned the money on the faith of the pledge of the bonds, and those of the company Avhich borrowed it. The auditor rejected the appellant’s claim on the ground that the directors as a board had not authorized the trustees to deliver the bonds, and because the trustees, the registered owners, had not transferred the bonds nor executed a power of attorney for that purpose.

The trustees in whose names the bonds were registered and Avho had custody of them were not trustees under the mortgage by which the bonds were secured, but under a trust created for some business purpose of the company, and the limitation of their authority appeared only by a resolution on the minute book, and of it the appellant had no notice. He had before purchased bonds of the same issue, registered in the names of these trustees, which had been pledged as collateral for loans made the company, and. his title to them had been fully recognized by the company. The power of the officers to negotiate the loan and, as incidental to this power, to pledge the property of the company, is not disputed. The trustees in delivering the bonds, as they had before delivered similar bonds, were acting within the scope of their apparent authority. Conceding that the directors could act only as a board, and that the trustees were not duly authorized to make delivery, we have only the case of agents exceeding their actual authority. It is repugnant to every sense of justice and fair dealing that a principal shall avail himself of the benefits of an agent’s act, and at the same time repudiate his authority. A corporation may not avail itself even of ultra vires as a defense where a contract has been entered into and executed in good faith by the other party and the corporation has received the benefit of the performance: Oil Creek, etc., Railroad Co. v. Penna. Transportation Co., 83 Pa. 160; Boyd v. American Carbon Black Co., 182 Pa. 206.

The contention that the appellant’s title was defective because the trustees had not executed a power of attorney for the transfer of the bonds, is without force. The delivery of the bonds was an equitable assignment of them which could be enforced to protect the consideration paid to the company. It was the ordinary case of loaning money on collateral security. The clear intention of the parties to the transaction was that the legal title should be vested in the appellant, and he had at the time blank powers of attorney which had been delivered to him with the bonds accompanying the notes which he bought, which could be used for the purpose of transferring these bonds. There was no necessity for making new powers.'

We are of opinion that the appellant is entitled to recover from the fund in court the amount of the loan he made, with interest thereon.

The order of the court affirming the auditor’s report is reversed, and it is directed that distribution be made as indicated in this opinion.