author: Per Curiam,

text:
    Commonwealth ex rel v. Walton, Appellant.

      Municipalities — Ordinances — Courts — Municipal contract — Payments to contractors by two-thirds vote of council — Act of May 28, 187k, P• L. 280.

    Where by reason of equity proceedings and lack of appropriations, work upon a municipal contract has been suspended, and expenditures have been made by contractors for safeguarding the materials and tools so that the work already done should not deteriorate, and the plant he preserved, the councils of a city of the first class may by a two-thirds vote and the approval of the mayor, enact an ordinance directing warrants to he drawn to pay for work actually done and materials furnished; to pay retained percentages thereon; to pay the expenses of safeguarding and maintaining the work and plant during the cessation of the work; and to pay for hindrance and delay.
    No power exists in the courts to declare such an ordinance invalid and of no effect, if it relates to a subject matter that councils have authority to act upon and is passed in a legal manner; nor has the city controller authority to refuse to sign the warrants directed to be drawn by the ordinance.
    Argued March 20, 1912.
    Appeals Nos. 67, 68 and 69 by defendant, from judgment of C. P. No. 1, Philadelphia Co., Dec. T., 1911, Nos. 99, 1000 and 1001, awarding writs of mandamus in case of Commonwealth ex rel. Millard Construction Co. and McNichol Paving & Construction Co. v. John M. Walton, Controller of the City of Philadelphia.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Demurrers to return to alternative writs of mandamus.
    Bregy, P. J., filed the following opinion:
    The councils of the city passed, and the mayor signed ordinances directing that warrant be drawn by certain officials of the city in favor of the different plaintiffs in matters we are now considering. The warrants were drawn and signed, but when sent to the controller to be countersigned he declined to do so.
    An alternative writ of mandamus having been issued directing the controller to state why he refused to sign the warrants, he has made a return thereto, and we are now required to determine whether the reasons he gives are sufficient in law to justify his action. This is not a suit on a contract, or contracts, but a proceeding to compel the performance of the acts that the ordinances directed to be done.
    The mayor of the city and the councils occupy a position in relation to legislation precisely similar to that of the governor and legislature of the state, within the scope of its authority to legislate.
    We have no more power or authority in relation to ordinances than we have in relation to acts of assembly, if as has just been said, the ordinance is within the scope of its authority to legislate.
    If an act of assembly has been passed in the manner prescribed by law, and relates to a subject, that the constitution of the state does not forbid them to act upon, no court has the power to interfere with its execution.
    The legislative branch of our government and the judicial are independent of each other, and it is only when the legislative act is one that the constitution prohibits that the court has authority to act, and what then can be done is to declare the act of assembly unconstitutional.
    Exactly the same principle applies to the ordinances of the city councils. It is well to remember that what we speak of as acts of assembly are in reality the acts of the governor and the legislature, and what we call ordinances of councils should properly be designated as ordinances of the mayor and councils.
    No court, in this state at least, has ever attempted to declare an act of assembly void because they did not approve of it or believed it to have been recklessly or improvidently passed, or not passed in good faith. And this for the simple reason that the court has no power to do any such thing.
    If the legislature passes acts that are not in the interest of the people, acts that are reckless or improvident, or in bad faith, the power to veto such acts lies with the governor, and with him alone. The power to veto does not lie with the courts. What we cannot do directly we cannot do indirectly. As has been already said, the courts have no more power to veto ordinances than it has acts of assembly. That is the right and power of the mayor alone.
    If there is any popular notion that the remedy for unwise legislation by councils and the mayor is to have the court declare that in their judgment the ordinance is unwise, vicious and prejudicial to the interests of the public, and therefore void, that notion cannot be removed too soon.
    The mayor and the councilmen are elected by the people and are supposed to represent them. If they misrepresent their constituents, the remedy and the only one is defeat at the polls. If citizens do not interest themselves on election day they must take the consequences of that neglect. The remedy for faithless, venal or reckless officials lies in the ballot-box. While individual legislators can be punished for criminal acts, the joint act of a legislative body cannot be set aside by the court, even if it can be clearly shown that the act was one of bad faith and bad public policy, if the body has the power to legislate on the subject and has done so in the way the law prescribes.
    It follows, therefore, that if the court cannot declare ordinances void for political reasons, the controller can-, not refuse to sign these warrants because he does not approve of the policy that dictated the legislation.
    The power does exist in the court to declare ordinances invalid and of no effect — if they are such as the councils have not the right to pass or if not passed in the manner prescribed by law. If the legislation is beyond their power or void by reason of improper passage it can be so declared, and will be, but if it relates to a subject-matter that councils have authority, to act upon, and is passed in a legal manner, their act, when approved by the mayor, becomes the official act of the municipality. The controller and the court may not approve of, or be in sympathy with the policy of it, but neither can make it ineffective.
    With this in mind, let us examine the ordinances and see to what they refer.
    In a general way, the ordinances with their recitals show this to be the situation that was in existence: Contracts had been entered into by the city and the plaintiffs. The legality of some or all these contracts was attacked in equity proceedings in the courts of the county, after considerable work had been done. In consequence of the equity proceedings alluded to, and by reason of the lack of appropriations, the work was suspended, the material on hand, tools, locomotives, and etc., were safeguarded and watched, so that the work already done should not deteriorate and the plant be preserved. A warrant had been drawn by the director against the appropriation for these contracts, which the controller refused to countersign.
    With this situation before it the ordinances that we are asked to construe were passed by councils. These ordinances directed warrants to be drawn to pay for work actually done, and materials furnished; to pay retained percentages thereon; to pay the expenses of safeguarding and maintaining the work and its plant during the cessation of the work; to pay for hindrance and delay.
    Was it within the power of councils to legislate upon these subjects, under the circumstances?
    The Act of May 23, 1874, P. L. 230, provides that any extra compensation to any agent or contractor, after service shall be rendered, or contract made or providing for the payment of any claim against the city not authorized by law, shall be passed by a two-thirds vote of both councils and approved by the mayor.
    It will be seen that councils can by a two-thirds vote and the approval of the mayor pay to contractors extra compensation or pay claims not authorized by law.
    The ordinances before us were passed by a two-thirds vote and approved by the mayor.
    It was decided in Bailey v. Phila., 167 Pa. 569, that an ordinance that directed a warrant to be drawn in favor of a teacher who had rendered some service to the city, although not possessing the necessary certificate to entitle her to be eligible to the position she claimed, was a valid exercise of power. And this was so decided by the Supreme Court after the same court had declared her ineligible. In Justice v. Phila., 37 Pa. Superior Ct. 267, the Superior Court held that, regardless of the legal propriety of a clerk’s appointment, as the city had received his services, the legality of the ordinance which directed him to be paid would be sustained.
    In neither of these cases had the plaintiff any right that could be enforced by action, and it is just that thing that councils and the mayor are authorized to act upon.
    It has been spoken of as a moral obligation, etc., but the better way to put it is that the law does not require the city of Philadelphia to refrain from paying for work, materials and other services that she has received, even if the plaintiff could not force the city to pay him.
    As councils, under these circumstances can direct warrants to be drawn to pay those that they consider have rendered service to the city, the next question is, can the court consider whether the amount directed to be paid is too much? To state the proposition would seem to answer it. Who is to say what the amount shall be? Certainly not the controller or the courts. That must be left to those who theoretically represent the voters of Philadelphia (even if in fact they misrepresent them) — to wit, the councils and the mayor.
    The next inquiry relates to the repayment of retained percentages — that is, money retained by the city, although due a contractor, as a sort of guarantee that the work shall be properly and promptly done. Why the city could not pay that over to the contractor when it chose to do so we do not see, but be that as it may, councils certainly had a right to dispose of that money by giving it to the man it belonged to before they were legally compelled to do so.
    As to the ordinances that relate to safeguarding of plant, etc., and hindrance and delay, we are of opinion that that was a matter entirely within the discretion of councils. It is possible, although not at all certain, that the city could not have been made to pay for these items, but, as was said by our Supreme Court in the cases cited, that is not to prevent the action of councils from being sustained.
    In his return the city controller claims that the supplemental contracts are illegal and void, and gives that as one of his reasons for not signing these warrants.
    In our opinion it is not necessary to pass upon the legality of these contracts. For the purposes of this proceeding that question is entirely immaterial. This is not a suit on those contracts, as has already been pointed out, and the right of councils and the mayor to pass these ordinances does not depend upon that question at all.
    We do not consider O’Rourke v. Phila., 211 Pa. 79, at all at variance with the cases cited and others that might be. The O’Rourke case was a suit in assumpsit on a contract, in which he agreed not to charge for extra work, but to accept a specified sum in payment for the work done. That amount was paid him, and on the allegation that he had signed the contract under protest he sought to recover for the extra work and alleged councils had made an appropriation to the department that was sufficient to pay him. That claim was decided adversely to the plaintiff on the ground that he could not sign or make a contract under protest, that he agreed to do the work for a certain sum and had received it. The case does not decide that if councils and the mayor had passed an ordinance to pay O’Rourke by a special warrant to him a sum to compensate him for the extra work, that they would have exceeded their powers; nor do we believe that in view of the Act of 1874 it ever would have been so held.
    The fact that the present director has asked to have the warrants returned to him is an immaterial matter. It would be equally immaterial if the former one had done so. The director’s duty in the matter was simply ministerial. Councils had the power to direct the director to draw the warrants, and he has done so. There his control over it ended. If he had originally refused to sign them he could have been made to do so.
    The only way the issue of these warrants could have been prevented was for the mayor to veto the ordinances.
    The city solicitor has earnestly endeavored to persuade us to take a different view of this matter than that here indicated, but our duty is to construe the law, not to make laws.
    Some persons may think there ought to be the power somewhere to overrule the acts of the mayor and councils when they are not in accord with their views of propriety. Unfortunately for them, however, it does not exist.
    We are of opinion that the ordinances are valid for the reasons here given, and that the duties of the controller are simply ministerial.
    The demurrers are sustained; judgment is entered for the plaintiffs and the peremptory writ is directed to issue.

      Error assigned was the judgment of the court.

      Michael J. Ryan, City Solicitor, for appellant.
    The ordinances of municipalities in Pennsylvania, whether cities or boroughs, are not similar to the acts of the legislature.
    Ordinances are subject to judicial review, and where manifestly unreasonable, arbitrary or an abuse of discretion, the judiciary has power to declare them void. The discretion of the legislature, on the contrary, however unwisely exercised, unless unconstitutional, is not reviewable by the courts: Comm’rs, etc., of the No. Liberties v. No. Liberties Gas. Co., 12 Pa. 318; Kneedler v. Norristown, 100 Pa. 368; Com. v. Jackson, 34 Pa Superior Ct. 178; Com. v. Corson. 36 Pa. Superior Ct. 7; Mountain Water Co. v. Emaus Boro., 43 Pa. Superior Ct. 179; Com. v. R. R. Co., 23 Pa. Superior Ct. 205; Pittsburgh v. Keech, 21 Pa. Superior Ct. 548; Mayor and City Council of Baltimore v. Radecke, 49 Md. 217; Weston v. Syracuse, 158 N. Y. 274 (53 N. E. Repr. 12).
    The courts can inquire into the reasonableness and good faith of the action of the municipal councils in dealing with the public money and the public property: McCord v. Pike, 121 Ill. 288 (12 N. E. Repr. 259); Fullerton v. Des Moines, 115 N. W. Rep. 611; O’Rourke v. Philadelphia, 211 Pa. 79; Kelly v. Marshall, 69 Pa. 319; Mahon v. Board of Education, 171 N. Y. 263 (63 N. E. Repr. 1107); Stemmier v. New York, 179 N. Y. 473 (72 N. E. Repr. 581); Bush v. Orange Co. Board of Supervisors, 159 N. Y. 212 (53 N. E. Repr. 1121); Chapman v. New York, 168 N. Y. 80 (61 N. E. Repr. 108); Taber v. Erie Co. Board of Supervisors, 131 N. Y. 432 (30 N. E. Repr. 177); Perkins v. Milford, 59 Me. 315; Moulton v. Raymond, 60 Me. 121; Freeland v. Hastings, 92 Mass. 570; Arbour v. Pittsburgh Produce Trade Ass’n, 44 Pa. Superior Ct. 240; State v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262.
    The ordinances of November 28, 1911, directing the warrants in question to be drawn, are subject to judicial inquiry, as to their motive and effect for they are not legislative, but administrative or business acts: State v. Gaslight & Coke Co., 18 Ohio St. 262; Straub v. Pittsburgh, 138 Pa. 356; Seitzinger v. Electric Illuminating Co., 187 Pa. 539; Shaub v. Lancaster, 156 Pa. 362; State v. Gates, 190 Mo. 540 (89 S. W. Repr. 881).
    Warrants directing payments for retained percentages were improper. Such claims being in contravention of an express written contract: McManus v. Philadelphia, 211 Pa. 394.

      Geo. S. Graham, of Graham & Gilfillan, with him Samuel K. Louchheim, for appellees.
    The ordinances were proper: Bailey v. Philadelphia, 167 Pa. 569; Anderson v. Best, 176 Pa. 498; Smith v. Phila., 17 Pa. D. R. 381; Croasdill v. Phila., 18 Pa. D. R. 719.
    April 29, 1912:
    The city controller’s duty in this matter is purely ministerial: Com. v. Philadelphia, 176 Pa. 588; Com. v. Larkin, 216 Pa. 128.
    Mandamus is the proper remedy: Phœnix Iron Co. v. Com., 113 Pa. 563; Com. v. Lyndall, 2 Brewster 425; Com. v. Hancock, 9 Phila. 535.
   Per Curiam,

The cases from which these appeals arise were heard together in the Common Pleas and involve the same questions. The judgment in each is affirmed for the reasons stated in the opinion of the learned President of Common Pleas No. 1,. sustaining the demurrers to returns to writs of alternative mandamus and ordering writs of peremptory mandamus to issue.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Lindsay Brothers, Incorporated, v. Curtis Publishing Co., Appellant.

      Landlord and tenant — "Alterations, Improvements and additions” — Fixtures — Trade fixtures.

    1. A provision in a lease that “all alterations, improvements and additions made by the lessee at his own expense, upon the premises, shall at the option of the lessor, remain on the premises at the expiration” of the lease, and become the property of the lessor, does not apply to electric power and lighting appliances installed by the tenant to furnish power and light for his printing presses. The words “alterations, improvements and additions” in such a lease are intended to apply to alterations, improvements and additions to the building, or what is in the nature of a building, and not to machinery or that which is in the nature of machinery, or other apparatus forming part of the contents of the building, and introduced into it by the tenant in pursuance of the business for which the building was leased.
    2. The sound policy of tbe law which favors a tenant in the matter of the removal of trade fixtures, requires that in the construction of an agreement containing words whose meaning is doubtful, the construction of the words most favorable to the tenant shall prevail.
    Argued March 20, 1912.
    Appeal, No. 94, Jan. T., 1912, by defendant, from decree of C. P. No. 3, Phila. Co., Sept. T., 1911, No. 1680, on bill in equity in case of Lindsay Brothers, Incorporated v. The Curtis Publishing Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Supreme Court.
    The court below found, inter alia, the following conclusions of law:
    “1. Whatever the purpose of the defendant in installing the electric wiring, conduits and switch-boards they must be regarded as alterations, improvements and additions and as such could not be removed from the demised premises without the consent of the complainant.”
    “3. A decree should be entered making permanent the preliminary injunction heretofore entered restraining the defendant, its agents or servants, from removing the electric wiring, conduits and switch-boards now upon the premises, from the demised premises.”
    The court entered the following decree:
    “It is ordered, adjudged and decreed, that the exceptions of respondent to the findings of fact and law of the trial judge be and they are hereby dismissed and that the said findings be and they are hereby confirmed; and that in accordance therewith the preliminary injunction heretofore entered in the above entitled cause, restraining respondent, its agents or servants, from removing the electric wiring, conduits and switch-boards now upon the premises 804, 806 and 808 Sansom street, is hereby made permanent and that the same is hereby dissolved with respect to the other articles specified in the complainant’s bill.
    April 29, 1912:
    “The costs of the cause to be paid by the respondent.”

      Errors assigned, among others were (7) refusal of defendant’s request to dismiss the bill; (8, 9) conclusions of law as above; (10) in imposing costs upon the defendant; (11) the decree quoting it.

      John Cr. Johnson, with him James Wilson Bayard, for appellant,
    cited: Isman v. Hanscom, 217 Pa. 133.

      Edmund W. Kirby and W. Norman Morris, for appellee,
    cited: Hey v. Bruner, 61 Pa. 87; Hill v. Sewald, 53 Pa. 271; Seeger v. Pettit, 77 Pa. 437; Wick v. Bredin,. 189 Pa. 83; Gulick v. Heermans, 6 Luz. Leg. Reg. Rep. 227; Carver v. Gough, 153 Pa. 225; Harris v. Kelly, 13 Atl. Repr. 523; Agnew v. Whitney, 10 Phila. 77; Whitney v. Shippen, 89 Pa. 22; Folsom v. Cook, 115 Pa. 539; Kenney’s Appeal, 22 W. N. C. 89.
   Opinion by

Mr. Justice Potter,

In this case it appears that certain premises were leased by appellant, to be used as a printing and publishing establishment. The lease provides that the lessee shall not make alterations, additions or improvements to the premises without the written consent of the lessor, and that “after such consent has been given, unless otherwise agreed upon in writing, all alterations, improvements and additions made by the lessee at his own expense, upon the premises, shall, at the option of the lessor, remain upon the premises at the expiration” of the lease, and become the property of the lessor. The appellant installed its presses and printing machinery in the building, and as part of its plant put in electric power and lighting appliances to furnish power and light for its presses. The presses were bolted to the floors, and the wires were placed in conduits fastened to the walls, but not embedded therein. At the expiration of the lease, the lessee began to remove the electrical appliances, whereupon the present bill was filed and a special injunction was issued restraining the lessee from removing the electric wiring, conduits and switch boards from the demised premises. This preliminary injunction was afterwards made permanent. Exceptions to the findings of the trial judge were dismissed by the court in banc, and from the final decree entered by the court below this appeal has been taken.

The trial judge states in his opinion that the conduits which contained the electric wires “were exposed to view and were not embedded in the walls except where it was necessary to pass them through the floors, and they were fastened to the walls by extension bolts and other fastenings. They were installed by defendant for its own convenience and could have been removed without serious damage to the premises.” In construing the terms of the lease, however, which was the contract between the parties, he considered himself bound by the decision in Isman v. Hanscom, 217 Pa. 133, to give to the words “alterations, improvements and additions” an application which would include the provision of the electric light wires, conduits and switch boards, and would therefore prevent their removal by the tenant. We are clear that in the lease now before us, the agreement that the “alterations, improvements and additions” made by the tenant should remain upon the premises and become the property of the lessor, was intended to apply to alterations, improvements and additions to the building, or to what was in the nature of a building, and not to machinery or that which is in the nature of machinery or other apparatus forming part of the contents of the building, and introduced into it by the tenant, in pursuance of the business for which the building was leased. Reference to the decision in Isman v. Hanscom shows tha,t it was not necessary in that case to discriminate closely between all the various items of property installed by the tenant upon the demised premises. Many of the improvements which he added, such as the toilet rooms, inlaid floors, dumb waiters, &c., were clearly in the nature of improvements in, and additions to, the building itself, and were not at all, as in the present case, merely adjuncts to the machinery, necessary to its operation, properly introduced into the rooms and fitted therein. An additional reason why- close discrimination in considering the character of the items was unnecessary in that case, was because of the insertion in the lease, of a clause most sweeping in its character under which the tenant was permitted to remove from the premises nothing but movable furniture which had been put in at his own expense. The words “alterations, additions and improvements” were there construed in connection with and in the light of that rigid additional limitation upon the rights of the tenant. Under that limitation, if the objects sought to be removed were not included under the description “movable furniture put in at the expense of the lessees” then under the terms of that lease they could not be taken away by the tenant. It is plain that all the alterations and additions which were made could not be classed as movable furniture. -

In the present case, we are not confronted by such a narrow limitation, nor do we find in the language of the lease any compelling reason requiring the words “alterations, improvements and additions” to be extended in their application to anything more than the building. We see neither necessity for, nor any propriety in, holding that they should be so extended as to deprive the tenant of the right to remove personal property placed by it upon the premises during the term of the lease. As we read the words, they do not properly apply to the contents of the building, even-though those contents may consist of heavy machinery and the appliances in connection therewith, which are needful to furnish light and power for its operation.

The principle of construction which we seek to apply is illustrated in Holbrook v. Chamberlin, 116 Mass. 155. In that case the lease contained a covenant to deliver up in good order “all future erections and additions” to or upon the premises. In construing it, the Supreme Court of Massachusetts held that the covenant was to be limited, in purpose and effect, to new buildings erected or additions to old ones and that it could not be extended so as to deprive the tenants of the right to remove trade fixtures, much less personal property put by them upon the premises. Liebe v. Nicolai, 30 Ore. 364, presents a case very similar in its facts to the one now under consideration. It was there held that dynamos and other electrical machinery used to furnish power for an electric light system placed within a building were not included within the terms of a lease requiring “erections and additions” thereto to be surrendered with the premises to the landlord on the termination of the lease.

The same sound policy of the law which favors a tenant in the matter of the removal of trade fixtures, requires that in the construction of an agreement containing words whose meaning is doubtful, the construction of the words most favorable to the tenant shall prevail. Nothing short of the clearest expression of an agreement by the parties to that effect, can justify the extension of the grasp of the landlord so as to cover chattels, or personal property brought upon the premises by the tenant, in pursuance of the business for which the premises were leased. We find no such clear agreement in the language of the lease which constitutes the contract between the parties in this case. It follows that the appellant is entitled to remove from the premises described in the lease, the electric wiring, conduits and switch boards which are the subject of this controversy.

The seventh, eighth, ninth, tenth and eleventh assignments of error are sustained, and the decree of the court below is reversed, and it is ordered that the injunction be dissolved and the bill be dismissed.


author: Mr. Justice Brown,

text:
    Lefebvre, Appellant, v. D’Arcy.

      Will — Construction — Partial intestacy — Particular and general intent — Contradictory clauses.

    1. A will must be so construed as to avoid a partial intestacy unless the contrary be unavoidable.
    2. In construing a will regard must be had to its whole scheme, and if it is found that a particular intent is inconsistent with a general intent, the former must give way to the latter.
    3. "While the first of two contradictory clauses in a will must give way, and the last must take effect, the rule does not take effect unless the two clauses refer to the same subject matter, and the last is clearly inconsistent with the first.
    4. Testator devised five dwelling houses particularly described, to his daughter for life, and after her death he gave the real estate devised to his daughter for life “to be divided between my two grandchildren” who were a son and daughter of the daughter to whom the devise was made for life. In a later clause in the will the testator proceeded to say that of the five properties devised to his daughter, three of them, particularly described, were to go to his granddaughter, and without again mentioning in any other portion of his will the other two properties, he subsequently directs that upon the death of his daughter, three other properties, which he mistakenly says he had given to her for life are to go to his grandson. Held, that the grandson and the granddaughter after the death of their mother could make a good title to the two properties not particularly mentioned after the original devise to the testator’s daughter for life with remainder to the two grandchildren.
    Argued March 20, 1912.
    Appeal, No. 102, Jan. T., 1912, by plaintiffs, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1911, No. 5059, for defendant on case stated in suit of Anna M. Lefebvre, et al., v. Joseph D’Arcy.
    Before Fell, C. J., Brown, Potter, Elkin and. Stewart, JJ.
    Reversed.
    Case stated to determine marketable title to real estate. Before Ralston, J.
    Tbe facts are stated in tbe opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant on case stated.

      John F. Gorman and William Gorman, for appellants.
    In the construction of a will the general intention prevails over the particular: Hitchcock v. Hitchcock, 35 Pa. 393; Law v. Douglass, 107 Iowa 606 (78 N. W. Repr. 212).
    No intention of the testator to die intestate as to a part of his estate can be presumed when his words as found in the will can fairly be construed to dispose of the whole of it: Ferry’s Appeal, 102 Pa. 207; Boies’s Est., 177 Pa. 190.
    Clauses are not considered repugnant when they are not totally inconsistent and when effect may be given to both by considering one as a modification of the intention expressed in the other: Urich’s App., 86 Pa. 386; Jones v. Strong, 142 Pa. 496; Ferry’s App., 102 Pa. 207; Sheetz’s App., 82 Pa. 213.
    The presumption is also against partial intestacy: Ferry’s Appeal, 102 Pa. 207; Anspach & Stanton’s Appeal, 112 Pa. 27; Boards of Missions of United Presbyterian Church’s Appeal, 91 Pa. 507; Axford’s Est., 11 Phila. 145.

      William I. Stanton, for appellee.,
    cited: Espy’s Estate, 207 Pa. 459; Duffield v. Morris, 8 W. & S. 348; Burford v. Burford, 29 Pa. 221.

      April 29, 1912:
   Opinion by

Mr. Justice Brown,

The narrow question raised on this appeal is whether, under the will of John Blackburn, the material parts of which appear in the case stated, his two grandchildren, Charles E. Lefebvre and Charlotte L. Burwell, took an estate in remainder in properties Nos. 24 and 26 Benton (now South Hicks) street, Philadelphia. The testator gave a life estate in them to his daughter, Anna M. Lefebvre, the mother of his said grandchildren, and she and they entered into an agreement to sell them to the appellee; but, on the case stated to determine whether they could give a good title, the court below held that, as to the remainder, the testator had died intestate. The clause by which he gave a life estate to his daughter is as follows: “I give, devise and bequeath unto my daughter (Anna M. Lefebvre) my dwelling house in which I now reside Situate on the West side of Twenty first Street on the Square between Race and Vine Streets in the City of Philadelphia (number 232) and I also give, devise and bequeath to my said daughter (Anna M. Lefebvre) my four three story contiguous brick messuages situate on the west side of Benton Street and north side of Melloy Street between Market and Chestnut Streets in the City of Philadelphia aforesaid being numbers Twenty-four, Twenty-six and Twenty-eight Benton Street and Number Fifteen hundred and fifteen Melloy Street. To have and to hold all and singular the premises hereby devised unto my said daughter for and during all the term of her natural life.” In unambiguous words the testator, by a subsequent clause of his will, gave the properties in dispute to the two children of his daughter Anna. The devise to them is as follows: “From and after the decease of my daughter Anna M. Lefebvre in this (my will) hereinbefore specially mentioned I give, devise and bequeath unto my grandchildren (to wit) Charlotte B. Lefebvre hereinafter by me in this my said will called by her pet name (Lottie B- Lefebvre) by which pet name she was called in her early childhood and by which name she still is called by her nearest relatives and most intimate friends and Charles Edward Lefebvre children of my said daughter (Anna M. Lefebvre) all the rest, residue and remainder of the several parts of my estate (both Real and Personal) by me in and by my said will devised and bequeathed unto my said daughter (their mother) for and during the term of her natural life to be divided between my two grandchildren aforesaid.” If the testator had stopped here, no question could be raised as to the title of the grandchildren as remaindermen, and their deed, joined in by their mother as the life tenant, would pass whatever title their grandfather had in the properties. But the contention of the appellee, sustained by the court below, is that, from what follows in the will, the testator must be regarded as having died intestate as to Nos. 24 and 26 Benton street. In determining whether this contention ought to be sustained, certain rules are to be kept in mind. One of them is that a will must be so construed as to avoid a partial intestacy, unless the contrary be unavoidable: Board of Missions of United Presbyterian Church’s Appeal, 91 Pa. 507; Boies’s Est., 177 Pa. 190. Another is that, in construing a will, regard must be had to its whole scheme, and if it is found that a particular intent is inconsistent with a general intent, the former must give way to the latter: Ferry’s Appeal, 102 Pa. 207; Jones v. Strong, 142 Pa. 496. “While there is no doubt that of two contradictory clauses in a will the first must give way, and the last must take effect, yet the two clauses must refer to the same subject-matter, and the last must be clearly inconsistent with the first. If the main provision plainly covers the whole subject, and is defined in terms that exclude all doubt, and the subsidiary provision may by conjecture be made either general or partial, and may be capable by construction either of subverting entirely or of modifying only the original gift, such a subsidiary provision must in the ordinary case be confined to its partial and restricted operation. It is said in 1 Red-field on Wills *438, that ‘plain and distinct words are only to be controlled by words equally plain and distinct.’ Such words, to have a controlling effect, must at least possess a definite and certain meaning. The clearly-expressed purpose of a testator is not to be overborne by modifying directions that are ambiguous and equivocal, and may justify either of two opposite interpretations. Such directions are to be so construed as to support the testator’s distinctly announced main intention”: Sheetz’s Appeal, 82 Pa. 213.

The intent of the testator, as it appears in the above quoted clause of his will relating to his grandchildren, is plain. It is that his residence and properties Nos. 24, 26 and 28 Benton street and 1515 Melloy street, after having been enjoyed by his daughter for life, are, upon her death, “to be divided between” her two children. Is there anything that follows this clearly expressed intention that requires it to be struck down, creating an intestacy as to the two properties in dispute? After directing that the properties given to his daughter for life shall be divided between her children after her death, the testator proceeds to say that of the five properties devised to his daughter, three of them — ■ his residence, No. 28 Benton street and No. 1515 Melloy street — are to go to his granddaughter Charlotte, and, without again mentioning in any other portion of his will Nos. 24 and 26 Benton street, he subsequently directs that, upon the death of his daughter, three other properties, which he mistakenly says he had given to her for life, are to go to his grandson Charles Edward. This is all to which the appellee can point as showing an intestacy as to Nos. 24 and 26 Benton street.. Nowhere in the will is a word to be found indicating any change of the clearly expressed general intention of the testator that, upon the death of his daughter, the five properties given to her for life should be divided between Ms two grandchildren. He manifestly did not intend an intestacy as to any portion of bis estate, and in the devise to bis grandson Charles, nothing appears which is irreconcilable with his clearly expressed intention that Nos. 24 and 26 Benton street should go to him and his sister upon the death of their mother. She and they can, therefore, convey to the appellee whatever title the testator had.

The judgment is reversed and is entered here for the appellants for $18,000, with costs.


author: Mr. Chief Justice Fell,

text:
    Wolf v. C. Schmidt & Sons Brewing Company, Appellant.

      Negligence — Bicycle — Collision with moior truclc — Charge of court — Failure to charge on a particular point.

    1. In an action by a bicyclist to recover damages for personal injuries sustained in a collision with defendant’s motor-truck, where the evidence is conflicting as to the negligence of the defendant and the contributory negligence of the plaintiff, and the court correctly instructs the jury as to the rights of the parties if they find one or the other'or both guilty of negligence, the court cannot be charged with error in failing to say that there could be no recovery if neither party was in fault, if it appears that no request was made to so charge, and the court did say that if the plaintiff got “into a position where the accident was practically unavoidable by anybody,” he could not recover.

      Negligence — Damages — Loss of future earnings.

      2. Where in an accident case future earnings are anticipated and capitalized, the plaintiff is entitled to their present value only. The standard is the present worth of the probable future earnings of which a plaintiff will be deprived, based on factors which apply to the individual case, such as his age, condition, station in life, occupation, health and surroundings.
    3. In a negligence case where the plaintiff claims damages for the loss of a leg, and his counsel in argument suggested that plaintiff’s expectancy of life was fifty years, aud that the measure of damages should be ascertained by multiplying his annual loss of wages by fifty, the court commits no error in calling attention to the fact that a loss computed on the basis claimed would amount to more than twice the cost of an annuity that would equal the annual loss of wages. Such an instruction was not the setting up of the cost of an annuity as a standard, but a proper warning against adopting a mistaken method of calculation urged by counsel.
    Argued March 20, 1912.
    Appeal, No. 97, Jan. T., 1912, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1907, No. 2070, on verdict for plaintiff in case of Charles W. Wolf, Jr. a minor child by his father and next friend, Charles W. Wolf, Sr., and Charles W. Wolf, Sr., v. C. Schmidt & Sons Brewing Company.
    Before Pell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Sulzberger, P. J.
    At the trial, it appeared that the plaintiff was injured on June 1, 1907, at 17th and Clearfield streets in the city of Philadelphia. The accident happened by a collision between a bicycle that the boy was riding and defendant’s motor truck. The boy who was fifteen years of age lost Ms right leg as the result of the collision. The evidence of the negligence of the defendant and of the contributory negligence of the plaintiff was conflicting.
    The court charged in part as follows:
    [“If I were to assume now that a man wanted to get $400 for the rest of his life, being fifteen years old, having 50 years to live, I would not have to give $20,000. If I had $7,000 to pay to an annuity company that would be sufficient. I am only giving you a rough figure. It may be near $6,000, but if I had somewhere between $6,000 and $7,000 to pay to the best annuity company in the land, it would agree to pay him $400 a year if he lived to the age of Methuselah. So do not get caught on the mathematics which ignore the effect of interest. This is not a question of investment and interest but a question of annuity. If therefore, as I say, you should adopt some of the bases of that calculation, and we were to assume, for the sake of mere hypothesis, that your idea is that his services in life would be worth $400 a year less for the rest of his life, a verdict of between $6,000 and $7,000 would cover the element of damage. I do not propose to go into all the calculations, but I know there is intelligence enough among you, after you fix what you think he lost per annum, to use that as an approximate basis for a reasonable calculation of the amount you ought to allow for such a thing.”] (1)
    [“The question before you is to determine how that injury was inflicted. The plaintiff charges that it was inflicted in consequence of the negligence of the defendant’s driver, who drove an electric truck for the defendant company, and the defendant says that the cause was the negligence of the plaintiff.”] (2)
    [“If you come to the conclusion that the accident was on the whole due to the negligence of the defendant’s driver, without the concurrent negligence of the plaintiff, that is one thing. If you come to the conclusion that it was due to the plaintiff’s carelessness, want of that forethought which he ought to have exercised, by getting himself into a position where the accident was practically unavoidable by anybody, then your only course is to find a verdict for defendant. If, however, you come to the conclusion that the plaintiff was not guilty of carelessness but the defendant was, and that the carelessness of the defendant, without admixture of carelessness of the plaintiff, produced this accident, then your verdict ought to be for the plaintiff.”] (8)
    Verdict and judgment for Charles W. Wolf, Jr., for $7,950, and for Charles W. Wolf, Sr., $1,250. Defendant appealed.

      April 29, 1912:

      Errors assigned were (1-3) above instructions quoting them.
    (4.) In not charging the jury that if neither of the contingencies alluded to in the part of the charge assigned for error in the third assignment, viz: negligence of the plaintiff or negligence of the defendant, had occurred and the injury was due to accident without negligence, the verdict should be for the defendant.
    (5) In refusing binding instructions for defendant and (6) in refusing defendant’s motion for judgment n. o. v.

      Franh P. Prichard, with him M. J. O’Callaghan and J ames Wilson Bayard, for appellant.
    The court below erroneously instructed the jury that the cost of an annuity was the proper measure of damage: Kerrigan v. R. R. Co., 194 Pa. 98; Goodhart v. R. R. Co., 177 Pa. 1; Hollinger v. Railways Co., 225 Pa. 419; Wilkinson v. North East Borough, 215 Pa. 486.
    In a case where there was little positive evidence as to the cause of the occurrence, and where it might have occurred either through negligence or accident, the court instructed the jury as to what would be the proper alternative verdict in case of the negligence of the.plain tiff or defendant, but gave them no instructions as to the proper verdict if the accident occurred without negligence, thus leaving the jury to believe that the only question was one as to who was negligent

      M. Hampton Todd, with him Wendell P. Botoman, for appellees,
    cited as to the measure of damages, Reed v. American Dyewood Co., 231 Pa. 431.
   Opinion by

Mr. Chief Justice Fell,

A boy fifteen years of age was riding south on a bicycle, on a street on which the defendant’s electric truck was running north. At about the same time the bicycle and the truck were turned east on a cross street, where a collision between them occurred some forty feet from the crossing. A disputed question at the trial was whether the boy was ahead of the truck and was run down from behind or whether he was at the side of the truck and was thrown from his bicycle by hitting the curb or by being hit by the truck. There was testimony tending to show carelessness in managing the truck and the case was undoubtedly for the jury.

The assignments to be considered relate to the instructions in relation to negligence and to the measure of damages. The instruction complained of on the question of negligence was this: “If you come to the conclusion that the accident was on the whole due to the negligence of the defendant’s driver, without the concurrent negligence of the plaintiff, that is one thing. If you come to the conclusion that it was due to the plaintiff’s carelessness, want of that forethought which he ought to have exercised, by getting himself into a position where the accident was practically unavoidable by anybody, then your only course is to find a verdict for defendant. If, however, you come to the conclusion that the plaintiff was not guilty of carelessness but the defendant was, and that the carelessness of the defendant, without admixture of carelessness of the plaintiff, produced this accident, then your verdict ought to be for the plaintiff.” At the close of the charge an exception was taken “to so much of the charge of the court as instructed the jury that the issue is whether the plaintiff or the defendant was negligent.” It is conceded that the instruction given was correct, but it is argued that there was error in not charging that there could be no recovery by the plaintiff if neither party was in fault and the injury was due to accident without negligence. It is a sufficient answer to say that the court was not asked to so charge. The exception did not call attention to an omission to charge, but suggested error in the instruction given. It was said that if the plaintiff got “into a position where the accident was practically unavoidable by anybody” he could not recover. If more specific instructions were desired, they should have been asked for. The part of the charge in relation to the measure of damages, assigned for error, must be considered in the connection in which it was made. The plaintiff had lost a leg as the result of the accident and the most important element of damages to be considered was the loss of earning power. Where future earnings are anticipated and capitalized, the plaintiff is entitled to their present value only. The standard is the present worth of the probable future earnings of which a plaintiff will be deprived, based on factors which apply to the individual case, such as his age, condition, station in life, occupation, health and surroundings. There was no departure from this standard or the setting up of a different measure by the charge. It had been suggested in the argument for the plaintiff that his expectancy of life was fifty years and that the measure of damages should be ascertained by multiplying his annual loss of wages by fifty. This was an obviously fallacious argument. In pointing out its error the court called attention to the fact that a loss computed on the basis claimed would amount to more than twice the cost of an annuity that would equal the annual loss of wages. This was not the setting up of the cost of an annuity as a standard but a proper warning against adopting a mistaken method of calculation urged by counsel.

We find no error calling for a reversal and the judgment is affirmed.


text:
    Keenan, Appellant, v. William M. Lloyd Company.

      Negligence — Master and servant — Animal — Vicious mare — Kick of horse.

    In an action against an employer to recover damages for personal injuries sustained by an employee caused by the kick of a mare, where the negligence alleged was the failure to warn the plaintiff that the mare was in the habit of kicking, binding instructions for the defendant are proper where the evidence shows that the mare had been owned by the defendant for three years, and during that time had been known to have kicked only once before, and then at another horse that came up behind her; and that the kick that caused the injury was not a vicious kick at a man, but a kick at a horse that was led close behind her when she was tied, and that tendency to kick under like circumstances was common to all mares.
    Argued March 21, 1912.
    Appeal, No. 104, Jan. T., 1912, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1908, No. 2000, on verdict for defendant in case of Catherine Keenan, Administratrix of Estate of John A. Wolf, deceased, v. William M. Lloyd & Co.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Barratt, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for the defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for the defendant.

      George M. Henry, with Mm Herbert L. Maris, for appellant.

      R. Stuart Smith, with him Charles E. Morgan, for appellee.

      April 29, 1912:
   Per Curiam,

This appeal is from a judgment on a verdict directed for the defendant in an action by an employee to recover for injuries caused by the kick'of a mare. The negligence alleged was the failure to warn the plaintiff that the mare was in the habit of kicking. There was no proof of any habit of the mare that would subject an employee to an unusual risk and impose on the employer the duty of warning. She had been owned by the defendant and had been used in its business three years and had been known to have kicked but1 once before. On that occasion while at a watering trough in the stable yard, she kicked with one foot at a loose horse that came up behind her. It appeared from the testimony of the witnesses for the plaintiff, who were employed at the stable, and one of whom had driven the mare two and a half years and cleáned her twice a day during that time, that she was qjiiet and had not before been known to kick except on the occasion above referred to; that the kick that caused the injury complained of was not a vicious kick at a man but a kick with one foot at a horse that was led close behind her when she was tied in the stable yard and that the tendency to kick under like circumstances was common to all mares.

The judgment is affirmed.


text:
    Benner, Appellant, v. Cassatt.

      Trespass — Encroachment on land — Foundation wall.

    1. A bill in equity to restrain the maintenance of the windows in what is alleged to be a party wall and for damages, is properly dismissed where it appears that the foundation of the wall as originally built encroached upon plaintiff’s land from two and one-half to four inches at places; that the whole of the wall above the foundation was within the defendant’s line, and that the portions of the foundation wall which encroached upon the plaintiff’s land were removed when the defendant’s attention was called to the encroachment and before the bill was served upon him; and all the more should the bill be dismissed if it appears that the strip of land extending along the side of the plaintiff’s lot where the wall was built, was subject to the easement of an alley for the use of the owners and occupants of the lots bounding thereon. In such a case the costs are properly placed upon the plaintiff where it appears that at the time the bill -was filed and service thereof accepted, the intrusion on the plaintiff’s premises had ceased; nor had the plaintiff any right to damages whatever.

      Equity practice — Filing hill — Printed hill — Certificate as to time — Certificate as to poverty — Cost of hill.

    2. Where a plaintiff files an unprinted bill in equity without the certificate as to time or poverty, required by the equity rules, and immediately borrows the bill from the prothonotary, and it is never seen again, and one week thereafter the plaintiff files a printed bill in proper form, the court will consider the first bill as a nullity, and will dispose of the case' and the costs thereon by a consideration of the second bill only.
    Argued March 21, 1912.
    Appeal, No. 83, Jan. T., 1912, by plaintiff, from decree of C. P. No. 4, Pbila. Co., March T., 1911, No. 782, dismissing bill in equity in case of Samuel T. Benner v. Robert K. Cassatt.
    Before Fell, C. J., Beown, Pottee, Elkin and Stewaet, JJ.
    Affirmed.
    Bill in equity for an injunction, and for damages.
    Audeneied, J., filed the following opinion:
    The bill prays that the defendant be restrained from maintaining windows in what is alleged to be a party wall between his property and that of the plaintiff, and from continuing to trespass on the plaintiff’s land. It also prays for an award of damages as compensation for the trespass complained of.
    The trial judge finds that the wall referred to in the bill is not a party wall; that the only trespass committed on the plaintiff’s land by any one connected with the defendant had ceased before the bill was served on the latter, and that the plaintiff is not entitled to have damages for the trespass complained of awarded him in these proceedings because he has failed to show any facts existing at the time when his bill was served which would suffice to give equity jurisdiction over the matter, because he has failed to show that he sustained pecuniary injury by reason of such trespass, and because the proofs do not show the defendant’s responsibility for the trespass. The decree nisi dismisses the bill and requires the plaintiff to pay the costs.
    To the findings of the trial judge the plaintiff has filed sixteen exceptions. These may be classified and discussed under three heads. The first class relate to the finding that the wall through which the defendant has opened windows is not a party wall. The second class relate to the disposition of the case as if the proceeding had its inception on March 14, 1911, instead of on March 7, 1911. The third class relate to the refusal of an award of damages for the trespass complained of in the bill.
    The plaintiff’s lot fronts on the west side of Fifteenth street and extends westward parallel with Locust street. The defendant’s lot fronts on the north side of Locust street and extends northward parallel with Fifteenth street until it reaches the south line of the plaintiff’s lot. The wall referred to in the bill is built across the north end of the defendant’s lot. Its foundation was originally of stone. Its superstructure is of brick. That portion of the wall above the surface of the ground stands south of the division line between the two lots. Some of the stones of the foundation originally constructed projected slightly and in varying degrees to the north of that line. At one point where the plaintiff’s witnesses examined the foundation the encroachment amounted to four inches; at another point to two inches and a half. It was not shown that the encroachment extended along the entire face of the foundation. When the attention of the defendant’s contractor was directed to the encroachment, this stone foundation was removed and there was substituted for it a foundation of brick that does not project beyond the defendant’s boundary. The stone foundation was wholly removed before March 14,1911, as were also the cornice that surmounted the wall and the show sills of the windows opened through it.
    On these facts the plaintiff contends that the defendant’s north wall must be regarded as a party wall, and that, therefore, the defendant should be restrained from maintaining the windows that have been constructed in it. The basis for this contention is the fact that the foundation that had originally supported the wall was partly laid upon the plaintiff’s ground. It is claimed that the question whether such a wall as that with which we are here concerned is or is not a party wall depends in every instance on the location of its foundation; the structure being always a party wall if its foundation is laid in part on the lot adjoining that of the builder.
    It is, in general, the law that a wall which has its foundations laid partly on the ground of an adjoining owner is a party wall: Western National Bank’s Appeal, 102 Pa. 171; and this is true, even where so much of the wall as appears above the surface of the ground is wholly within limits of one of the lots and does not project beyond the division line; ib.: Lukens v. Lasher, 202 Pa. 327. Where, however, its foundation was not meant to encroach on the lot adjoining that of the builder but does so accidently, and to a very slight degree, and there is nothing else to indicate that the builder intended that the wall should be used to accommodate both properties, the protrusion of parts of the foundation into the neighboring land must be regarded as a mere trespass, and, if the encroaching projections of the foundation be removed, the wall is not to be treated as a party wall: Pile v. Pedrick, 167 Pa. 296.
    The facts in the case at bar resemble quite closely those in the case last referred to. The plaintiff proved that the foundation stones of the defendant’s wall projected at two points for an inconsiderable distance into his soil. This was probably due to the carelessness of the workmen who constructed it. It was not shown that the defendant or his architect had directed that such an encroachment should be made. The strip of land three feet wide extending along the southern side of the plaintiff’s lot is subject to the easement of an alley laid out as a passageway and watercourse for the use of the owners and occupants of the lots bounding thereon. While it may be that the plaintiff has the right to build over this alley provided that he leaves so much headway as not to obstruct its use for the purpose for which it was intended, it is so improbable that he will ever do so that it is unreasonable to impute to the defendant the anticipation that such a thing would come to pass, and the intention to build a wall for the accommodation of both lots. The existence of the easement of the alleyway would certainly have prevented the plaintiff from building a party wall along the south side of his lot, and since the right to construct a party wall must necessarily be a mutual one, it is difficult to see how, in view of this circumstance, the defendant alone could have enjoyed such a right. If the defendant had no right to build a party wall along his north line, the intention to build one is manifestly not to be ascribed to him, and the encroachment of his foundation on the plaintiff’s land must be viewed as a mere trespass, in no wise affecting the character of the superstructure. For these reasons we are of the opinion that the wall referred to in the bill is not a party wall, and that, consequently, the windows opened through it may be maintained by the defendant.
    The second group of exceptions raise the question whether or not the court should dispose of the case upon the basis of the facts as they existed on March 14th, 1911. The relevancy of the question is this: On that date the continuing trespass complained of by the plaintiff had already ceased, and the trial judge, finding that there was at that time nothing to enjoin, dismissed the bill on that ground and put the costs on the plaintiff. It is conceded that if at the time when this proceeding was instituted the trespass was still persisted in, the plaintiff should not be burdened with the costs, even though subsequent to its institution the trespass ceased. The simple question, therefore, is when, under the circumstances of this case, is the proceeding to be regarded as having commenced.
    The facts bearing on this question are as follows: The docket entries show that a paper entitled a bill in equity was filed in the office of the prothonotary by Samuel T. Benner against Robert K. Cassatt on March 7th, 1911. It is impossible at this time to ascertain what averments this so-called bill contained, or what were its prayers, because it has disappeared from the record. It is stated by counsel for the plaintiff that its disappearance is due to his having borrowed it from the deputy prothonotary as soon as it was marked “filed.” The taking away of this paper from the prothonotary’s office was in direct violation of Section 1 of Rule 32, by which it is provided that, “No records shall be removed from the office of the prothonotary, except when needed for use by the courts or by auditors, masters or other similar officers appointed by the courts.” The paper thus abstracted has not been returned to the files, nor has any attempt been made to replace it by a properly authenticated substitute. On March 14th, 1911, the plaintiff filed as of the same term and number another paper, also entitled a bill in equity. Upon this was endorsed a notice to the defendant requiring him to appear and answer it. Since this notice is dated March 14th, 1911, a date which the notice endorsed on the paper originally filed as a bill in all probability did not bear, there is no reason to suppose that the second bill was identical in other particulars with the first bill filed; and owing to the disappearance of the paper first filed, it is impossible now to determine by comparison whether or not its substance was the same as that of the bill subsequently filed. Service of the copy of the second bill was accepted by counsel for the defendant, who claims, without contradiction, that neither he nor his client knew, until March 14th, 1911, the day when he accepted service of the second bill filed, that any proceeding had been begun by the plaintiff. The case was tried on the bill filed March 14th, 1911, and the defendant’s answer thereto. Nothing was said at the trial about the filing of any other bill, and how completely even counsel for the plaintiff had forgotten that any step had been taken in the case prior to the filing on March 14th, 1911, of the bill of which service was accepted on behalf of the defendant on that day may be gathered from the efforts in which he participated to establish the facts as of that date.
    Under these circumstances, we have no doubt that the case must be regarded as having been commenced on March 14th, 1911, and that it must be disposed of upon that theory. It may be said in a general way that, except where there is a voluntary appearance, the issuing and service of formal process is essential effectively to constitute one a party defendant. In this State, therefore, before any person is bound to consider himself a party defendant to a bill in equity, the bill must have been filed in the office of the prothonotary, and the defendant must have been served with a copy thereof, having endorsed upon it a notice to appear within fifteen days in the court where the bill has been brought, and observe what such court shall direct. The equity rules provide that no suit shall be deemed pending until the bill in equity is filed in the prothonotary’s office. In interpreting the rule, due effect must be given to the phrase “actually filed.” It is no compliance with this requirement to exhibit to the prothonotary, or his deputy, a bundle of written pages, have the bundle marked “filed” and assigned to a certain court, term and uumber, and then take the bundle away, leaving to represent it in the files of the office merely a piece of paper marked with the term and number of the case and the names of the parties. The prothonotary has no power to permit an unprinted injunction bill to be filed unless it be accompanied by a certificate stating either that the plaintiff, by reason of poverty, is unable to pay for printing it, or that there has not been time to print it. It is admitted in this case that no such certificate accompanied the paper presented by counsel to the prothonotary on March 7th. 1911. It, therefore, should not have been received by the prothonotary; and, for this reason, in conjunction with the fact that in violation of the rule of court it was withdrawn from the prothonotary’s office immediately after it was marked “Filed,” and the additional fact that it has never been returned, we feel bound to disregard it altogether and to hold that these proceedings were actually begun only when the printed bill now remaining of record was filed and service thereof was accepted on behalf of the defendant, which, it appears, was March 14th, 1911. It was, therefore, entirely pertinent to inquire into and ascertain the state of facts existing at or near the boundary line of the parties on the date last named; and since it appears that the intrusion or trespass complained of by the plaintiff had then ceased, the dismissal of the bill, so far as it was based on the ground of a continuing trespass, was inevitable.
    Little need be said to sustain the refusal of the trial judge to state an account of the damages suffered by the plaintiff through the trespass committed on his land.
    No loss or pecuniary injury of any kind was proved. The claim advanced that it was not necessary for the plaintiff to produce evidence of the extent of his mental pain and suffering sustained by reason of the projection of the foundation stones of the defendant’s wall into the soil of his lot, and that it was the duty of the trial judge to fix the amount that would reasonably compensate him therefor, as best he could, is, to put it mildly, entirely untenable. Such a thing as mental pain and suffering in a case of trespass quare clausum fregit was never heard of. To support even a claim for nominal damages, it was necessary that the plaintiff establish that the trespass complained of was committed either by the defendant or some servant of his acting within the scope of his employment, or, if the construction of the Avail was let out to an independent contractor, that the work necessarily involved a trespass on the plaintiff’s land; but none of these things was shown. Outside of all this, however, we are of the opinion that the right to claim an award of damages for the trespass in these proceedings vanished when it became evident that the defendant’s wall was not a party Avail, and that the stones that projected from this foundation into the soil under the surface of the alley had been removed before the proceeding was, in fact, begun. The right to claim damages in equity is a mere incident to the jurisdiction that equity has acquired over a matter for some reason other than the existence of a wrong for which the law affords ample remedy. If it appear that the jurisdictional facts are not present, a chancellor has no authority to proceed with the case for any purpose. It cannot be that a party may escape all the risks and inconvenience involved in presenting to a jury his claim for damages in respect to a trespass that has ceased, or a nuisance that has been abated, by demanding a trial in equity, on the ground that lie has coupled with his prayer for damages a prayer for an injunction to restrain the continuance of that which has already ended.
    The plaintiff’s exceptions are dismissed, and counsel may prepare a final decree following the form of the decree nisi.

      Error assigned was decree dismissing the bill.

      Henry K. Fox, for appellant.
    An owner cannot encroach upon the adjoining lot, save for the construction of a party wall: Western Nat. Bank’s Appeal, 102 Pa. 171; Gordon v. Milne, 2 W. N. C. 513; McCall v. Barrie, 15 W. N. C. 28.
    In the case at bar, the appellee built a foundation wall over the line, but, in erecting the super-imposed brick wall, he receded sufficiently to bring the latter wall within and flush with the boundary line, and built therein window openings, which were manifestly illegal in a party wall: Milne’s App., 81 Pa. 54.
    The presence of an alley on the south side of appellant’s lot does not preclude his using the wall built by his neighbor, in the nature of a party wall, for support of a building erected over the alley by appellant, and the privilege of attaching his structure to the said wall, provided he does not interfere with the easement for passageway and watercourse: Patterson v. R. R. Co., 26 W. N. C. 327; Duross v. Singer, 224 Pa. 573; Carter v. Lebzelter, 15 Pa. Superior Ct. 478; Mercantile Library Co. v. University of Pennsylvania, 220 Pa. 328.
    Neither is the appellee to be excused for his encroachment upon the soil of the appellant on the ground of mistake, carelessness or intention. It is the act itself, unaccompanied by anything else, which, in law, sets the rights of the respective parties: Western Nat. Bank’s App., 102 Pa. 171; Pile v. Pedrick, 167 Pa. 296.

      April 29, 1912 :
    If the character of the defendant’s wall is fixed by the foundation of it, the appellant has the right to insist that it shall be a solid wall, without openings; and he also has the right to build thereto, under municipal regulations, upon making compensation: Vollmer’s Appeal, 61 Pa. 118.
    The doors of a court of equity are shut against one who, in his prior conduct in the very subject-matter at issue, has violated good conscience, good faith or fair dealing: Orne v. Coal Co., 114 Pa. 172; Hart v. Kucher, 5 S. & R. 1; Hoffstot v. Voigt, 29 W. N. C. 397.
    A bill in equity is lis pendens of which every one is bound to take notice, and begins when the jurisdiction attaches: Diamond v. Lawrence County, 37 Pa. 353; Fessler’s Appeal, 75 Pa. 483; Warren and Franklin Ry. Co. v. Clarion Land & Imp. Co., 54 Pa. 28.
    While courts of equitable jurisdiction possess a discretion as to the imposition of costs, the general rule, which would compel the party against whom the decree goes to pay the costs, is not inflexible: Stokely’s Est., 19 Pa. 476; Biddle’s Appeal, 19 W. N. C. 219; O’Hara v. Stack, 90 Pa. 477; Coleman v. Ross, 46 Pa. 180; Eppley v. Naumann, 5 Pa. D. R. 471.

      Thomas Ridgioay, for appellee,
    citedí: Mercantile Library Co. v. University of Penna., 220 Pa. 328; Pile v. Pedrick, 167 Pa. 296.
   Per Curiam,

The decree is affirmed at the appellant’s cost on the opinion of Judge Audenried, dismissing exceptions to the adjudication.


text:
    Severino, Appellant, v. Philadelphia Rapid Transit Co.

      N egligence — Street — Railways—Infants.
    In an action against a street railway company to recover damages for personal injuries to a boy between eight and nine years of age, run over by one of defendant’s cars, a nonsuit is properly entered where the evidence shows that the accident happened near the middle of a city block, that the boy ran or walked from the pavement directly in front of the car, and when he reached the track was within ten or fifteen feet of the car; that the car was stopped within five feet of the place where the boy was struck, and that there was no evidence of undue speed nor inattention on the part of the motorman.
    Argued March 22, 1912.
    April 29, 1912:
    Appeal, No. 188, Jan. T., 1911, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1908, No. 1270, refusing to take off nonsuit in case of Joseph Severino by his father and next friend, Alearco Severino and the said Alearco Severino in his own right v. Philadelphia Rapid Transit Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bregy, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in refusing to take off nonsuit.

      Engene Raymond, for appellants.

      Layton M. Schoch, for appellee.
   Per Curiam,

This action was to recover for injuries sustained by a boy between eight and nine years old, whose foot was run over by a wheel of the defendant’s car. The accident happened near the middle of a block and at least seventy-five feet from the nearest cross-street. The boy ran or walked from the pavement directly in front of an approaching car, and when he reached the track, he was within ten or fifteen feet of the car. There was no evidence of undue speed nor of inattention on the part of the motorman. The car was stopped within five feet of the place Where the boy was struck by the fender. The nonsuit was properly entered.

The judgment is affirmed.