text:
    McMahen v. White, Appellant.

      Practice, C. P. — •Trial—Charge—Negligence—Inadequate charge.

    Where a duty is to exercise ordinary and reasonable care, or as otherwise expressed, the care of an ordinarily prudent man, and this varies with the circumstances, it is the province of the court to instruct the jury that the omission to exercise such care is negligence, and the province of the jury to determine whether the conduct of the party established by the weight of the testimony involved the omission of such care.
    In an action to recover damages for the death of a horse caused by a collision with the defendant’s horse, where there is evidence that the latter was driven at a high rate of speed, and was suddenly and negligently pulled towards plaintiff’s side of the road, the failure of the trial judge to mention these matters specifically, does not render the charge inadequate where it appears that the questions involved were submitted to the jury with clear and concise instructions as to the rule of law by which the conduct of the parties was to be judged, and with sufficient reference to the disputed questions of fact to enable the jury to recall the testimony as a substantial whole, and to determine therefrom whether the injury resulted from the omission of either or both parties to exercise such care as reasonably prudent drivers would have exercised under the circumstances; and this is especially so where it appears that the defendant made no request for specific instructions as to any particular phase of the case.

      Negligence — Killing of horse — Negligence of driver — Permitting guest to drive.

    Where an owner of a vehicle accompanied by a guest, both being on a pleasure trip, permits the guest to drive at the latter’s request, and is in a position to take control of the reins at any moment, the owner will be liable for an injury caused by a negligent act of the guest in driving the vehicle.
    Argued Oct. 4, 1905.
    Appeal, No. 44, Oct. T., 1905, by defendant, from judgment of G. P. No. 2, Phila. Co., Dec. T.. 1902, No. 343, on verdict for plaintiff in case of William H. McMahen v. Stacy H. White.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for death of a horse. Before Wiltbank, J.
    The facts are stated in the opinion of the Superior Court and the charge which was as follows :
    The facts in the case have been gone over so carefully and fully by counsel for plaintiff and defendant, and they are in themselves so few, so far as they are controlling facts, that I need not state them again to you. The conceded facts are that these parties were driving along the Wissahickon road, and that there was a collision. The plaintiff’s horse and the defendant’s horse ran together, and you may reasonably infer that at least one of the parties was traveling at a rapid rate. Perhaps both were, but the result of the impact must necessitate the conclusion that at least one was, because the defendant has testified that the shaft of the plaintiff’s carriage pierced his horse’s breast to the extent of seventeen inches, and that the shaft of his own carriage pierced the plaintiff’s horse’s breast to the extent of seven inches. You may, therefore, I think, reasonably infer that the travel of these two parties was, so far as one and perhaps both of them may be considered, not slow travel. You are further to consider that it appears to be conceded that at the time of the accident the road was very dark. The electric lights can best be described by the park guard, who stated that along there, according to the regular method, that spot was pretty well lighted, but that there might be a time or times when there was a cessation in the light, or a falling of it so that it became dark. There seems to be no difficulty about that point. There is no difficulty about understanding that the plaintiff was driving his own horse northward on the proper side of the road. The defendant, however, was not driving his horse. Pie owned the horse, but he had permitted his guest to drive for him, and accordingly [in considering the proofs you are to consider what under the circumstances that guest was doing, and what she did in driving the horse at that time you may regard as substantially the act of the defendant himself], [2] He has said with candor that she asked if she might drive just after they left the house where they had dined, and he said she might, and she was driving at the time the accident occurred. It is further undisputed that people in both carriages were thrown out. The plaintiff himself was thrown out, his companion remaining behind, and the defendant and his companion were thrown out, so that we have a further indication that it was not easy driving on the part of both of these parties. One or both of them must have been driving somewhat more rapidly than the ordinary, usual, simple pace. However, I leave that to you. The resolution of all questions of fact is exclusively for you, and whilst I suggest these things as conelusions probably or reasonably to be looked for, yet you may reach quite different conclusions, and it is entirely within'your province to do so.
    Finding the plaintiff and defendant rightfully on the road, because each had a right to travel there, finding in the inception of the history of the transaction each on the right-hand side of the road, it is for you to consider whether the defendant was negligent in his driving to such an extent as to have produced the injury to the plaintiff’s horse and wagon, an injury which, had he used proper care, would have been avoidable and probably avoided. If the defendant through his agent used the care which a reasonable man might be expected to use under the circumstances, he is not to be held responsible here. If'you find, on the other hand, that his action through his agent was not such in respect of care as a reasonably prudent driver under the circumstances would have exercised, then you are to consider a further question, because even that will not conclude the case against the defendant. The further question is, whether the plaintiff himself was free from all contributory negligence. Was he driving along there in such a way as would be the course of a reasonably prudent driver under the circumstances ? If he was not, it makes no difference how much to blame you may regard the defendant as exceeding the rule of care, your verdict should go for the defendant. If he was exercising proper care and the defendant was not, according to my statement of the measure of care to you, then you might find that the verdict should be for the plaintiff.
    If you find a verdict for the plaintiff, the measure of damages would be the market value of the horse, of which you heard sufficient evidence to enable you to reach a conclusion, and the necessary outlay of the plaintiff in the premises incident to the result of the very accident itself — outlay in the care of the horse. I do not recall any evidence as to damage to the wagon, although it is claimed in the nan*.
    Verdict and judgment for plaintiff for $674.13. Defendant appealed.

      Errors assigned were (1) that the charge was inadequate ; (2) portions of charge as above, quoting it; (3) in refusing binding instructions for defendant.

      Alex. Simpson, Jr., with him Alfred J. Wilkinson, for appellant.
    — The charge gave the jury no standard to determine what was and what was not negligence : Tietz v. Traction Co., 169 Pa. 516; Richards v. Willard, 176 Pa. 181; McCord v. Whitacre, 8 Pa. Superior Ct. 277; Stuart v. Line, 11 Pa. Superior Ct. 345.
    The trial judge erred in charging the jury that the driver of the carriage was defendant’s agent, and, as a matter of law, he was chargeable generally for all her acts: Allen v. Willard, 57 Pa. 374; Reed v. Allegheny, 79 Pa. 300 ; Carr v. Easton, 142 Pa. 139; McCullough v. Shoneman, 105 Pa. 169; Dean v. R. R. Co., 129 Pa. 514; Carlisle v. Brisbane, 113 Pa. 544; Bunting v. Hogsett, 139 Pa. 363; Crescent Twp. v. Anderson, 114 Pa. 643; Kelton v. Fifer, 26 Pa. Superior Ct. 603; Cincinnati v. Stone, 5 Ohio, 38; Wood v. Cobb, 95 Mass. 58; Kimball v. Cushman, 103 Mass. 194; Millsaps v. Ry. Co., 69 Miss. 423 (13 So. Repr. 696); Norris v. Kohler, 41 N. Y. 42; Hill v. Morey, 26 Vt. 178; Oil Creek, etc., Ry. Co. v. Keighron, 74 Pa. 316.
    The point for binding instructions ought to have been affirmed: Connor v. Penna. R. R. Co., 24 Pa. Superior Ct. 241; Hershinger v. Penna. R. R. Co., 25 Pa. Superior Ct. 147; Kelton v. Fifer, 26 Pa. Superior Ct. 6000; Welfare v. London, etc., Ry. Co., Law Rep. 4 Q. B. 693; Brown v. Piper, 91 U. S. 37.

      J. A. Robbins, for appellee.
    — The charge of the learned trial judge was adequate: Tietz v. Traction Co., 169 Pa. 516; Richards v. Willard, 176 Pa. 181; McCord v. Whitacre, 8 Pa. Superior Ct. 277; Stuart v. Line, 11 Pa. Superior Ct. 345.
    From his own testimony the acts of his guest while driving under the circumstances described are, as a matter of law, imputable to the defendant: Kimball v. Cushman, 103 Mass. 194; Hill v. Morey, 26 Vt. 178; Oil Creek, etc., Ry. Co. v. Keighron, 74 Pa. 316; Norris v. Kohler, 41 N. Y. 42; Cincinnati v. Stone, 5 Ohio, 38; Wood v. Cobb, 95 Mass. 58; Millsaps v. Ry. Co., 69 Miss. 423 (13 So. Repr. 696); Bunting v. Hogsett, 139 Pa. 363; Township of Crescent v. Anderson, 114 Pa. 643; Kelton v. Fifer, 26 Pa. Superior Ct. 603; Hershinger v. Penna. R. R. Co., 25 Pa. Superior Ct. 147; Connor v. Penna. R. R. Co., 24 Pa. Superior Ct. 241.

      March 12, 1906:
   Opinion by

Rice, P. J.,

The plaintiff was driving northward in his carriage drawn by one horse on the Wissahickon road, a public highway in Fair-mount park, Philadelphia, and the defendant, with a friend who was driving by his permission, was riding in the opposite direction in a carriage drawn by one horse belonging to him. The time was about nine o’clock in an evening in July. At a point where, according to some of the testimony, there was a bend in the road, the two horses collided with such force, that the left shaft of each carriage penetrated deeply the breast of the horse hitched to the other carriage, and in consequence of the injuries both horses died a few weeks later. The evidence adduced by the plaintiff was to the effect, that he was driving at moderate speed, about four miles an hour, on the right-hand side of the road, so that there was ample room for two vehicles to pass, and that the collision would not have occurred if the defendant’s horse, which was being driven at an extremely rapid pace — described by one witness as “a runaway speed ” and by another as “ a dead run ” — had not been suddenly pulled over to the east side of the road, in order to pass another vehicle also being driven at a very rapid pace in the same direction as the defendant’s. On the other hand, the defendant’s testimony was, that his horse was being driven at moderate speed, not over six miles an hour, and was pulled over towaixl the middle of the road, not for the purpose of passing the vehicle ahead, but in order to go safely around the bend in the road, and that it was Arery dark at the time and place of the collision. He testified that as soon as he discovered the plaintiff’s carriage — coming up terribly, ” as he described the speed — he shouted in warning, and as he did so the collision occurred.

The first assignment of error, raises a question as to the adequacy of the charge to the jury. The foregoing outline of the testimony shows that it was not complicated, and did not require an extended review and analysis by the court, either to bring it freshly to the recollection of the jury or to enable them to appreciate its true bearing. But it is urged that it is the court’s duty in such a case to tell the jury what acts or neglects of the defendant would constitute negligence, and a failure to do so is error. Granting that it was the court’s duty to present to the jury a statement of the matters of fact upon which the case turned, and a clear statement of the law applicable to the facts which might be found by them, it does not necessarily follow that it was its duty to charge that driving at a certain speed, specifying it, or that suddenly pulling the horse to the middle or the other side of the road, either singly or in connection with the other, was or was not a negligent act. “The question was not alone what the defendant had done or left undone, but, in addition, what a prudent and reasonable man.would ordinarily have done under the circumstances: ” per Strong J., in McCully v. Clarke, 40 Pa. 399. It is true there are certain acts and omissions which it is the province and the duty of the court to declare constitute negligence, as, for example, the omission of a person about to cross a railroad track to stop, look and listen. A review of the adjudicated cases shows many other acts and omissions which are definitely determined to be, not merely evidence of negligence, but negligence per se. We can conceive of cases, not within that class, in which there might be no controversy as to the facts, and from these it might so clearly appear what course a person of ordinary prudence would pursue under the circumstances that there would be no room for honest difference of opinion between sensible and impartial men upon the question. In these the court would be warranted in treating the question of negligence as one of law. But such cases are exceptional, and it is not claimed that the case at bar belongs to either of these classes. In general, where the duty is to exercise ordinary and reasonable care, or, as otherwise expressed, the care of an ordinarily prudent man, and this varies with the circumstances, it is the province of the court to instruct the jury that the omission to exercise such care is negligence, and the province of the jury to determine whether the conduct of the party established by the weight of the testimony involved the omission of such care. “ When the duty is defined, a failure to perform it is of course negligence, and may be so declared by the court. But where the measure of duty is not unvarying, where a higher degree of care is demanded under some circumstances than under others, where both the duty and the extent of performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proved: ” McCully v. Clarke, 40 Pa. 399. This doctrine has been recognized in a multitude of cases, and amongst the very recent ones may be mentioned Rusterholtz v. New York, etc., R. R. Co., 191 Pa. 390; Cohen v. Philadelphia & Reading R. R. Co., 211 Pa. 227; Esher v. Mineral R. R. & Mining Co., 28 Pa. Superior Ct. 387. The question of the adequacy of the charge of the learned trial judge is to be considered in the light of these familiar principles. A charge is inadequate, it has been held, which fails to present to the consideration of the jury just what the issue is, by a statement of the matters of fact upon which the case turns, and a clear statement of the rules of law applicable to the questions involved: McCord v. Whitacre, 8 Pa. Superior Ct. 277. “An inadequate presentation of the case, when the omission to charge leaves the jury without direction on important questions involved, or plainly tends to mislead them, is ground for reversal: ” Earle v. Arbogast, 180 Pa. 409. Here, what was required of the drivers' of the horses in the exercise of ordinary and reasonable care under the circumstances, and the extent of performance, were to be ascertained as facts. These questions were submitted to the jury with clear and concise instructions as to the rule of law by which the conduct of the parties was to be judged, and with sufficient reference to the disputed questions of fact to enable the jury to recall the testimomy as a substantial whole, and to determine therefrom whether the injury resulted from the omission of either or both to exercise such care as a reasonably prudent driver would have exercised under the circumstances. To have treated the matter of speed, and the matter of pulling over toward the other side of the road, as separate and independent acts would have had a tendency to mislead. Obviously, they were to be considered together and in the light of all the other ffircumstances, and the charge of the court was well calculated to secure such consideration at the hands of the jury. It is to be observed further that while the defendant asked for binding instructions, he made no request for specific instructions as to any particular phase of the case. In the absence of such request, and of anything erroneous in the instructions, we think the defendant has no just cause to complain because the court did not charge more in detail as to what was necessary to be found by the jury to warrant a verdiet in the plaintiff’s favor: Borham v. Davis, 146 Pa. 72. The first assignment is overruled.

The second assignment brings into question the court’s instruction, that the juxy were to regard what the defendant’s guest did in drivixxg the horse at that time as substantially the act of the defendant himself. It is apparent that these instructions cannot be sustained upon the ground that the defendant was negligent in selecting an incompetent driver, for there is no evidence that she was such, aside froxn that relatixig to the manner of driving at this particular time. Nor was it essential to the plaintiff's recovery that negligence of the defendant in this particular be proved: Hays v. Millar, 77 Pa. 238. Further, if the defendant’s responsibility depended upon proof that he was negligent in not interfering more promptly when she suddenly pulled the horse to the left side of the road, the question should have been submitted to the jury, for there was evidence that he did attempt to take control at that time. In determining as to the propriety of the instructions we are xrot required to resort to presumptions such as were considered in Hershinger v. Penna. R. R. Co., 25 Pa. Superior Ct. 147, and Kelton v. Fifer, 26 Pa. Superior Ct. 603, and we fully agree with the appellant’s counsel that we would xxot be justified in resorting to inferences which the juxy possibly might have drawxx, but were xxot bouxxd to draw. The question is, whether, irrespective of negligence oxx the part of the defendant in either of the particulars above referred to, and in the absence of conclusive proof that he expressly directed or tacitly assexxted to the manner in which the vehicle was being managed, it was px'oper to say to the juxy that he was respoxisible to third parties for the conduct of the driver. The facts as testified to by him were, that he and others had been on a pleasure trip, and were returning to the house of Mrs. Fairlamb ; that upoix her suggestion and his permission she rode with him because oxie of the horses of her husband’s team ivas very fractious; and that after they had started on their way, she asked the defendant’s permissioxx to drive, which was granted. This is putting the case in as favorable a light for the defendant as is possible under the evidence. There being no dispute that these were the conditions under which the parties were acting, we think the court was right ixx treating the questioxi of the defexxd ant’s responsibility for the conduct of the driver of his vehicle as one of law. The present chief justice, speaking of the general ground of the operation of the maxim respondeat superior, said: “ If the master orders the thing done, he is responsible for the manner in which the servant does it: ” Duggan v. B. & O. R. R. Co., 159 Pa. 248; P. & R. R. R. Co. v. Derby, 55 U. S. 468. It has been said that the rule is severe at best: McCullough v. Shoneman, 105 Pa. 169, but it has also been declared with equal authority to be “very important that the principle of respondeat superior should be upheld and maintained for the sake of the general security of society:” Hays v. Millar, 77 Pa. 238; Smith on Master and Servant (Bl. ed.)* 323. At the foundation of the rule is the broad principle that every man in the management of his own affairs, whether by himself or by his agent or servant, shall so conduct them as not to injure another. This principle in no way conflicts with the light to accomplish a lawful object through an independent contractor, without liability for the'latter’s negligence, or with the right of an owner, to deliver property into the custody and control of another under a bailment, without assuming responsibility for the negligence of the bailee or his servants in the management of it. Nor is it conclusive of the responsibility of the master to a servant for the negligence of a fellow servant, for there another principle is involved. But, in general, a master is ordinarily liable to answer in a civil suit for the tortious or wrongful acts of his servant, if those acts were done in the course of his employment in his master’s service. To be more particular, a master is ordinarily responsible for an injury resulting from the negligence of his servant while driving the master’s vehicle, provided the servant was at the time engaged in his master’s business. To warrant the application of this rule, in the absence of negligence on the part of the defendant, the relation of master and servant, as distinguished from the relation of bailor and bailee or the like, must actually exist at the time: Connor v. Penna. R. R. Co., 24 Pa. Superior Ct. 241. Many of the cases bearing upon that particular phase of the rule are collected in the opinion of Judge Pouter. But this does not imply that the service be rendered under a contract which entitled the driver to compensation, or that he was in the performance of a customary duty incident to his general employment as the defendant’s servant. The person sought to be held responsible must have the right of selecting the person to render the service, but speaking particularly of a case like the present, it is not material whether the latter was driving at the request of the owner or person having the right of control of the management of the vehicle, or was a volunteer. Where a person undertakes voluntarily to perform service for another, who assents thereto, he stands in the relation of a servant to the latter: 14 Am. & Eng. Ency. of Law (1st ed.), 751; Wood on Master and Servant (2d ed.) sections 304, 306. Some point was made of the fact that the driver as well as the defendant was engaged in a matter in which she was personally interested; in other words, as expressed by the appellant’s counsel, they were on a joint pleasure trip. This circumstance might have an important bearing upon the question if the defendant had not been the owner of the horse and carriage, nor are we to be understood as implying that ownership is, under all circumstances, the conclusive test of responsibility where the owner is riding in .the vehicle. But if all the elements necessary to bring a case within the rule under consideration are present, we are unable to agree that the mere fact that the driver, as well as the owner who is riding in-the vehicle, has an interest personal to himself in reaching the destination will relieve the owner from responsibility to third persons. A somewhat extended examination of authorities bearing upon the question warrants us in saying that they generally agree, that the real elements at the foundation of responsibility to third parties of the person sought to be charged as master, in a case like the present, for the negligent manner in which the service rendered for him was performed, are the right to select the person who is to render the service, and the right to control his action while so doing. As has been declared in numerous cases, he must not only have the right to select the servant or agent, but to direct the mode of performance, and to so control him in his acts in the course of his rendition of the service as to prevent injury to others. It was upon the ground that the evidence was sufficient to support a finding that the defendant had the right of control, and that Campbell was driving for him, and that the judgment was affirmed in Kelton v. Fifer. Applying these principles to the case in hand we are quite clear that the facts testified to by the defendant established the relation between him and the driver which made him responsible to third parties for her negligent management of the vehicle. They plainly distinguish the case from Carlisle v. Brisbane, 113 Pa. 544; Dean v. Penna. R. R. Co., 129 Pa. 514; Jones v. Lehigh and New England R. R. Co., 202 Pa. 81; Little v. Central District & Printing Telegraph Co., 213 Pa. 229, and other cases of the same class. They would be pertinent if the situation of the parties had been reversed, and the driver had been the owner or bailee of the conveyance and the defendant had been riding in it by her invitation ,or permission. But under the defendant’s own showing, the driver of his vehicle did not stand to him in the relation of a bailee, he had not parted with his right to control the manner of driving, he could have retaken possession of the reins at any moment, and she was bound to obey his directions as to the manner of managing the vehicle or surrender the reins to him. Having regard to the principle which lies at the foundation of the rule we conclude that there was no error in the instructions complained of. It logically follows that there was no error in refusing the request for binding instructions.

The judgment is affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Tourison v. Engard, Appellant.

      Landlord and tenant — Use and occupation — Contract—Affidavit of defense.

    The plaintiff in an action for the use and occupation of land must prove a contract to pay either a stipulated compensation for the use of the land, or such sum as the use was reasonably worth. A mere averment in the ^statement of claim that the defendant continued in the occupation of the premises after a sheriff’s sale, and had been frequently requested to pay an amount mentioned per month for the use and occupation of the premises, and had refused to pay that sum, is insufficient.
    To entitle'a plaintiff to judgment for want of an affidavit of defense, or for want of a sufficient affidavit of defense, the statement of his demand under the Act of May 25,1887, P. L. 272, must be self-sustaining; that is to say, it must set forth in clear and precise terms a good cause of action, by which is meant such averments of fact as, if not controverted, would entitle him to a verdict for the amount of this claim.

      March 12, 1906:
    Argued Oct. 5, 1905.
    Appeal, No. 119, Oct. T., 1905, by defendant, from order of C. P.No. 3, Phila. Co., Dec. T., 1904, No. 1,248, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Ashton S. Tourison v. Abram Engard.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for the use and occupation of land.
    The opinion of the Superior Court states the case.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      J. Hibbs Buckman, of Hopple & Buckman, for appellant,
    cited: Bank v. Ellis, 161 Pa. 241.
    In an action for use and occupation of a lot of ground, th'e plaintiff cannot recover without proof of a contract, expressed or implied, to pay either a stipulated compensation or such a sum as the use was reasonably worth: Brolasky v. Ferguson, 48 Pa. 434; "Wilkes-Barre v. Chase, 7 Pa. Superior Ct. 343.
    In both a declaration and an affidavit of defense, facts must be stated which, if proved as set forth, are sufficient to sustain the action in the one case or the defense in the other: Bill Posting Sign Co. v. Jermon, 27 Pa. Superior Ct. 171.

      Joseph E. Sagebeer, of Ellis & Sayebeer, for appellee.
    — Plaintiff is entitled to recover for the use and occupation: Bush v. National Oil Refining Co., 5 W. N. C. 143; Williams v. Ladew, 171 Pa. 369; Grove v. Barclay, 106 Pa. 155; Stockton’s App., 64 Pa. 58.
   Opinion by

Rice, P. J.,

The plaintiff’s amended statement alleges that on June 6, 1904, and ,for a long time prior thereto, defendant occupied certain described premises of which certain persons,' surviving executors, etc., were the legal owners; that on that date the premises were sold at sheriff’s sale to the plaintiff; that on June 20, of the same year, by deed duly acknowledged and recorded, the sheriff conveyed the same to the plaintiff, that the defendant continued to occupy the premises for three months from said date; and, although frequently requested by the plaintiff to pay $75.00 a month for the use and occupation, refused to pay that sum, and has not paid any sum. We omit reference to the allegation of service of notice to surrender the premises within three months from the date of the acknowledgement of the sheriff’s deed, because that allegation is unequivocally denied in the supplemental affidavit of defense. It is assumed in the appellee’s printed brief that the defendant was in possession under a lease dated after the mortgage under which the sheriff’s sale was made. But this does not distinctly appear in the pleadings. For aught that is affirmatively alleged he may have been in possession under a right granted prior to the date of the mortgage which was not affected by the sheriff’s sale; therefore, it cannot be positively asserted from what now appears that the plaintiff was entitled either to the possession of the premises on June 20, 1904, or to compensation for the defendant’s use and occupation of the same during the succeeding three months. In general, the plaintiff in an action for use and occupation must prove a contract to pay either a stipulated compensation for the use of the land, or such sum as the use was reasonably worth: Brolasky v. Ferguson, 48 Pa. 434; Wilkes-Barre v. Chase, 7 Pa. Superior Ct. 343. It is true, as said in the first cited case, the proof may be either direct or presumptive, and it has been held in later decisions that in the case of tenancy by sufferance after termination of a lease the law will raise an implied promise to pay for use and occupation for the interval between the termination of the lease and the election of the lessor to treat him as a trespasser: Bush v. National Oil Refining Co., 5 W. N. C. 143; Williams v. Ladew, 171 Pa. 369. See also Stockton’s Appeal, 64 Pa. 58; Grove v. Barclay, 106 Pa. 155. We agree with the appellee’s counsel that notice to quit is not necessary in order to enable a landlord to recover for use and occupation; the difficulty is that the statement does not clearly show that, the defendant was a tenant at sufferance. But granting that he was, and that the action will lie, the measure of recovery is, not what the plaintiff demanded at a time not specified, but what the use and occupation of the premises were reasonably worth. We do not find any distinct averment in the statement as to this matter of fact. The averment that the sum claimed “is justly due and owing” is the plaintiff’s conclusion, which, if based solely on the fact that this was the sum the defendant was requested to pay, is unwarranted in law, and if based on facts not stated, is not such compliance with the procedure act as entitled the plaintiff to summary judgment for the aniount of his claim. “To entitle a plaintiff to judgment for want of an affidavit of defense, or for want of a sufficient affidavit of defense, the statement of his demand under the act of May 25, 1887* must be self-sustaining; that is to say, it must set forth in clear and concise terms a good cause of action, by which is meant such averments of fact as, if not controverted, would entitle him to a verdict for the amount of his claim: ” Chestnut Street National Bank v. Ellis, 161 Pa. 241; Bill Posting Sign Co. v. Jermon, 27 Pa. Superior Ct. 171. Passing other objections raised upon the argument, the rendition of judgment for the amount of the plaintiff’s claim was erroneous, because the plaintiff’s statement failed to show a complete right to recover the sum claimed.

Judgment reversed and record remitted with a procedendo.


text:
    Henderson v. Sonneborn, Appellant.

      Brokers — Real estate brokers — Commissions—Contract.
    A real estate broker who sues for commissions must establish his employment, either by previous authority, or by acceptance of his agency, and the adoption of his acts. A mere volunteer is not entitled to commissions though he brings the parties together and is the efficient means of procuring the sale.
    Where the contract between the broker and his principal is in writing its construction is for the court. But where it is oral, and its terms are in dispute, it is erroneous to charge the jury that if the plaintiff brought the purchaser to the notice of the seller he is entitled to the commissions, and that that is the only question for them to determine, unless under the only reasonable interpretation of which the language of the parties is susceptible, in the light of the circumstances, that is all he was required to do to earn the commissions. What the parties said, and, subject to the foregoing qualification, what was meant by what they said, are questions for the jury.
    It is one thing for a real estate broker to hold out for a higher price in order to bring the prospective purchaser up to the price fixed by the prineipal, and quite another thing to insist that the property cannot be bought for less than the price which the agent has named, and that, too, in the face of the purchaser’s express offer to pay the price fixed by the owner. Possibly the former might be regarded as not prejudicial to the principal’s interest, but clearly the latter would be, in the absence of explanatory circumstances, or at least would have that tendency. Such agent is bound to act toward his principal with the utmost good faith, and exert his skill for his benefit.
    Argued Oct. 11, 1905.
    Appeal, No. 152, Oct. T., 1905, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1903, No. 2,253, on verdict for plaintiff in case of Luke D. Henderson, trading as Henderson & Company, v. Louis Sonneborn.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit to recover commissions on sale of real estate. Before Davis, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged as follows :
    The plaintiff sues for commissions on the sale of real estate. The law, as applied to this case, is that the person who brings a purchaser to the notice of the seller is entitled to his commission. [The question for you to determine is, did Mr. Henderson bring to Mr. Sonneborn’s notice Mr. Gazan, who subsequently purchased these fourteen properties ?] [1] It is not contended that he did it himself, but that it was done for Mr. Henderson by Mr. Martin, who, Henderson says, was in his employ for that purpose. He further says that having found Mr. Gazan, a prospective purchaser, he sent him to Frankford to look at these properties in company with Mr. Martin, and Mr. Martin says that is true, and that he was paid by Mr. Henderson for his services that day. [As I remember Mr. Martin’s testimony, he said that he had these properties in hand for Mr. Henderson, as he had very many others, and that he met Mr. Gazan and took him to see the properties, acting in the transaction for Mr. Henderson.] [2] Mr. Gazan testified that Mr. Martin took him to a Mr. Anderson, and that they wanted to sell him the properties for $700 apiece, and, as they could not come to terms, he went to Mr. Penn, who collected the rents, and from him learned the name and address of the owner, Mr. Sonneborn; that he then went to Mr. Sonneborn and made the purchase of the properties for $675 apiece, which appears to have been the amount named in the transaction between Sonneborn and Henderson.
    [If Mr. Henderson, either by himself or through the machinery of his office, brought the purchaser to the notice of the seller, he is entitled to these commissions. If he did not, he is not so entitled. That is the only question in the case, and it is for you to decide.] [3]
    The plaintiff asks me to charge you as follows :
    2. If the jury believe that the defendant authorized the plaintiff to seek a buyer for his houses, and the plaintiff, through his agent, brought said houses to the notice of one who subsequently purchased them, the verdict should be for the plaintiff.
    I affirm that point. ■
    The question for you to consider is : Was Mr. Martin acting for Mr. Henderson when he brought Mr. Gazan to the notice of Mr. Sonneborn ? If so, the transaction was the same as if Mr. Henderson himself had done so, and the mere fact that the price was mentioned as $700, instead of $675, does not affect this case. It frequently happens that a seller will, in the first place, ask more than he expects to get, and that the purchaser will offer less than he is willing to give, each hoping that a compromise will be effected for about the amount which he has in mind as that which he would pay or is willing to receive. As a matter of fact, Mr. Sonneborn got what he agreed to take for the properties in the first place, that is, $675 for each property. [4]
    Counsel for defendant has asked me to charge you as follows :
    1. If the jury find that the defendant told the plaintiff he would pay the commission if the plaintiff brought the purchaser to the defendant, your verdict must be for the defendant, unless you find that the plaintiff brought Gazan, the purchaser, to the defendant.
    I affirm that point. [5]
    You will take the words, “ Brought the purchaser to the defendant,” in the' popular sense. The question is whether he brought him, as a purchaser, to the notice of the defendant. - If he did, he may recover ; if he did not, the defendant should have your verdict.
    2. If you find that the defendant agreed to pay the plaintiff a commission if the properties were sold for $1,000 above incumbrances, and that the plaintiff or his agent stated to Gazan, the purchaser, that the price was $700 for each of fourteen properties, or $1,400 above incumbrances, and that Gazan got the correct price for which he purchased from another party, your verdict must be for the defendant.
    If there is any testimony in this case to indicate to you that the price of $700 was used by the plaintiff or his agent for the purpose of any fraud, or in any way to interfere with the sale of the property, and was dishonest, then I would affirm that point. If, on the other hand, the testimony shows you that such juggling with the price was simply the ordinary method used by men in such transactions, then I would refuse that point. You have the testimony and will be governed accordingly. [6]
    4. Under all the evidence your verdict must he for the .defendant.
    I refuse that point, and leave the case in your hands. [7]
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were (1-7) above instructions, quoting them.

      William, E. Brennan, for appellant.
    — The testimony clearly shows that the plaintiff did not sell the houses or bring .a .purchaser for them to the defendant; that he aslced more for the houses than the price for which he was authorized to sell them, and he could not sell them; that the party who brought the houses to the notice of the purchaser was not the agent of the plaintiff, and that party took the purchaser, for the purpose ..of making a sale of said houses to him, to another party, other than the plaintiff, who could sell the houses, and this last party did not make the sale because he asked the purchaser more than he would pay for them and more than the selling price ; and that the party who made the sale was not the plaintiff, and was paid his commissions therefor by the defendant. Plaintiff therefore could not recover: Branson v. Kitchenman, 148 Pa. 541; Hershey v. Hershey, 8 S. & R. 333; Armstrong v. Hussey, 12 S. & R. 315; Galland v. Schroeder, 21 W. N. C. 103; Citizens’ Pass. Ry. Co. v. Ketcham, 122 Pa. 228; Hasson v. Klee, 168 Pa. 510.
    March 12, 1906:
    During the existence of the relation, the plaintiffs were bound to exercise the utmost good faith towards their principal, and to exert their skill for her benefit. A failure to discharge the duties of the employment must deprive them of the right to commissions for procuring a buyer: DeArmit v. Milnor, 20 Pa. Superior Ct. 369; McCaffrey v. Page, 20 Pa. Superior Ct. 400; Samuels v. Luckenbach, 205 Pa. 428; Carter v. Moss, 210 Pa. 612.

      J. A. Robbins, for appellee.
    — It may be conceded that such an extraordinary agreement as is set up by the appellant would be valid, if clearly proven, but it .must be clearly proven and not depend upon the superficial construction of a few words selected from the testimony — in other words, it should stand out clearly in the testimony without the aid of italics: Gibson’s Estate, 161 Pa. 177; Keys v. Johnson, 68 Pa. 42; Shepler v. Scott, 85 Pa. 329; Heffner v. Chambers, 121 Pa. 84; Jackson v. Carrick, 25 W. N. C. 132.
   Opinion by

Rice, P. J.,

A real estate broker who sues for commissions must establish his employment, either by previous authority, or by acceptance of his agency and the adoption of his acts: Keys v. Johnson, 68 Pa. 42; Earp v. Cummins, 54 Pa. 394; Twelfth Street Market Co. v. Jackson, 102 Pa. 269. “ A mere volunteer is not entitled to commissions though he brings the parties together and is the efficient means of procuring the sale: ” Samuels v. Luckenbach, 205 Pa. 428; Mayer v. Rhoads, 135 Pa. 601. Where the contract between the broker and his principal is in writing its construction is for the court. But where it is oral, and its terms are in dispute, it is erroneous to charge the jury that if the plaintiff brought the purchaser to the notice of the seller he is entitled to the commissions, and that that is the only question for them to determine, unless under the only reasonable interpretation of which the language of the parties is susceptible, in the light of the circumstances, that is all he was required to do to earn the commissions. What the parties said, and, subject to tbe foregoing qualification, what was meant by what they said, were questions for the jury. All the authorities bearing upon the subject, from McFarland v. Newman, 9 Watts, 55, down to Philadelphia v. Stewart, 201 Pa. 526, and Lavelle v. Melley, 27 Pa. Superior Ct. 69, sustain this proposition. A few of the many cases are: Brubaker v. Okeson, 36 Pa. 519; Maynes v. Atwater, 88 Pa. 496; Stoddart v. Price, 143 Pa. 537; Fulton v. Lancaster County, 162 Pa. 294; Schweyer v. Walbert, 190 Pa. 334; Scottish Rite, etc., Assn, v. Union Trust Co., 195 Pa. 45; Singer Mfg. Co. v. Christian, 211 Pa. 534; Speers v. Knarr, 4 Pa. Superior Ct. 80; Kelton v. Fifer, 26 Pa. Superior Ct. 603. It appears that the defendant had fourteen houses which he had advertised for sale at $675 each. The plaintiff, who was in the real estate business and a licensed broker, saw the advertisement and sent for the defendant to come and see him, which the defendant did. It is conceded by both sides that an agreement was entered into between them. But there is a substantial dispute as to the terms of the agreement; and in determining whether there was prejudicial error in the instructions complained of in the first, third, fourth and fifth assignments of error we must consider the possibility of a finding by the jury, if the question had been submitted to them, that the defendant’s version of what took place at his meeting with the plaintiff was true. He testified: “ I went there and he got talking about the properties and what commission I would allow him. I told him I would allow him $25.00 a house if he would bring me a purchaser, as I had given them to other parties in the same way, and wanted to close it out.” Being asked later, “What was Mr. Henderson to do with any purchaser that he might secure ? ” he answered, “ Bring him to me.” The court then propounded the question, “ What was the agreement as far as the property was concerned between you and Mr. Henderson?” To which the defendant replied, “ Mr. Henderson was to bring a purchaser to me.” It is argued by his counsel that the defendant had a special reason for putting his undertaking in those words, which was that he had advertised his properties and put them in the hands of different persons to dispose of — a fact alleged to have been communicated to the plaintiff — and in order to protect himself against conflicting claims for the commissions it was important that the plaintiff should bring the prospective purchaser to him. This was a legitimate argument to be addressed to the jury in favor of the defendant’s contention that tire words were used by him and understood by the plaintiff in their strict sense. This would not have been an unreasonable interpretation under the circumstances; to say the least, the testimony was not such as to justify binding instructions that the jury must reject it upon the ground that it was unreasonable, and if they found that he, or Martin acting for him, brought the houses to the notice of Gazan and showed them to him, and Gazan, having ascertained from another agent that the defendant was the owner, went to him and bought them,, the plaintiff would be ■entitled to a verdict in his favor. Whether the plaintiff could recover upon proof of these facts depended upon the contract between him and the defendant. What this was, and, if its terms were as testified by the defendant, whether the parties adopted them in their literal sense, or meant only that if a person should come to the defendant as a result of the defendant’s negotiations the plaintiff would be entitled to the stipulated compensation, were questions for the determination of the jury under appropriate instructions by the court. For the reasons above suggested the first, third, fourth and fifth assignments are sustained.

We are unable to agree with the appellant’s counsel that the court’s summary of the testimony of Martin as to whom he was acting for was incorrect. In a later portion of the charge the question whether he was acting for the plaintiff was properly submitted to the jury. Therefore the second assignment is overruled.

The plaintiff never met Gazan, the purchaser, and had no negotiations with him. He claims the benefit of the result of Martin’s negotiations with Gazan, because Martin was acting for him in the matter. It therefore becomes important to ascertain what Martin did, and to inquire whether his conduct was the exercise of that good faith and proper skill which his employer owed to the defendant. Martin testified that having learned that Gazan had failed in his effort to buy certain other houses at which he had been looking, he called his attention to the houses in question, and took him to see them. This is not in dispute, but from that point the history of the transaction was given by Gazan. He testified that he asked Martin what the price was, and the latter replied that he could not exactly tell him but he would bring' him to a party that could sell the properties, and that following up this suggestion Martin took him to one Anderson. We remark parenthetically that this was not a truthful and candid answer to Gazan’s inquiry, if the plaintiff’s testimony that he told Martin the price was $675 for each house be accepted. But to go on with the history of the transaction as given by Gazan: the latter testified that he asked Anderson what he wanted for the houses and he said he would take $700 ; that then he offered $650, which Anderson refused, and upon being asked what the lowest figure would be, the latter replied that he would let him know, and subsequently told him there could not be a sale for less than $700 ; that he offered $675 and Anderson replied that they were not for sale for less than $700; that he then, of his own motion, set out to ascertain who the owner was, and upon inquiry of the agent who collected the rents was directed by the latter to the defendant ; that thereupon he went to the defendant and bought the houses for $675 each. In view of this testimony of the plaintiff’s own witness, which was not contradicted nor explained, we think the answer to the defendant’s third point for charge, and the instructions upon the same subject given in answer to the plaintiff’s second point, did not fully meet the requirements of the case. It is one thing for such an agent to hold out for a higher price in order to bring the prospective purchaser up to the price fixed by the principal, and quite another tiling to insist that the property cannot be bought for less than the price which the agent has named, and that, too, in the face of the purchaser’s express offer to pay the price fixed by the owner. Possibly the former might be regarded as not prejudicial to the 'principal’s interest, but clearly the latter would be, in the absence of explanatory circumstances,, or at least would have that tendency. Such agent is bound to act toward his principal with the utmost good faith, and exert his skill for his benefit: Pratt v. Patterson, 112 Pa. 475; Wilkinson v. McCullough, 196 Pa. 205; DeArmit v. Milnor, 20 Pa. Superior Ct. 369; McCaffrey v. Page, 20 Pa. Superior Ct. 400. The refusal of Gazan’s offer to pay $675 each for the houses, the price fixed -by the defendant, accompanied by the positive statement that they could not be bought for less than §700 each, without directing him to the defendant, onjnforming the defendant that he had made the offer, or even that he was a possible purchaserywas mot acting with that skill, and good faith toward the defendaiit, which the plaintiff owed to him.' If notwithstanding this he had subsequently made the sale, or his subsequent efforts had brought the seller and purchaser together, a different question would be presented. But according to the testimony of his own witness, neither lie nor any one acting for him did anything to further the sale after the refusal of Gazan’s offer. Under the facts developed in the presentation of his own case, his agency was not the immediate and efficient cause of the sale: Earp v. Cummins, 54 Pa. 394; Kifer v. Yoder, 198 Pa. 308. We conclude that the sixth and seventh assignments of error must be sustained*

Judgment reversed.


author: Porter, J.,

text:
    Lamorelle, Appellant, v. Nass.

      Bankruptcy — Federal bankrupt act — Attachment execution — Dissolving attachment.

    A garnishee in an attachment execution against whom a judgment has been entered has no standing after both the plaintiff arid the defendant in the attachment have been adjudicated bankrupts, to move the court to dissolve the attachment, and strike off the judgment. Only the trustee in bankruptcy of the defendant can take such action.
    Argued Oct. 17, 1905.
    Appeal, No. 22, Oct. T., 1905, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1903, No. 3,051, making absolute rule to strike off judgment in case of Joseph F. Lamorelle, trustee in bankruptcy of Gustav Berger, v. George Nass, Jr., Trustee in bankruptcy of Charles A. Auchter, trading as Charles Auchter Co., defendant, and the Bainbridge Street Methodist Episcopal Church.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Rule to strike off judgment.
    The opinion of the Superior Court states the case.

      March 12, 1906:

      Error assigned was the order of the court making absolute rule to strike off judgment.

      William C. Wilson, for appellant.
    — The garnishee had no standing to have the judgment stricken off: Stephens v. Cowan, 6 Watts, 511; King v. Brooks, 72 Pa. 363; Pickersgill v. Myers, 99 Pa. 602; Lorenz v. Orlady, 87 Pa. 226; Neff v. Love, 2 Miles, 128; Pleasants v. Cowden, 7 W. & S. 379; Conrad v. Groff, 17 Lane. L. Rev. 205.

      Alfred M. Mohr, with him Edgar J. Pershing, for appellee.
    —The court has power to dissolve an attachment which is null and void under section 67 (f) of the national bankrupt act of 1898 and its supplements, upon the application of a garnishee, where there is no objection on the part of the defendant’s trustee in bankruptcy, and it is unnecessary to preserve the lien for the benefit of the bankrupt estate: Peck Lumber Mfg. Co. v. Mitchell, 8 Pa. Dist. Rep. 203.
   Opinion by

Porter, J.,

Gustav Berger, on July 23, 1903, issued an execution attachment upon a judgment previously obtained against Charles A. Auchter, summoning the Bainbridge Street Methodist Episcopal Church as garnishee, and the attachment was served on both garnishee and defendant on July 24, 1903. Judgment was, on September 28, 1903, entered against the garnishee upon its answer. The record stood in this condition until December 10, 1904, when a suggestion was filed of record that Gustav Berger, the plaintiff, had been adjudicated a bankrupt on October 29, 1903, and Joseph F. Lamorelle appointed trustee. On December 12, 1904, it was suggested of record that Charles A. Auchter, the defendant, had been adjudicated a bankrupt and George Nass, Jr., appointed as his trustee in bankruptcy. The garnishee, on December 13, 1904, presented a petition averring that at the time the attachment issued, Charles A. Auchter, the defendant, was insolvent, and that he was subsequently, on September 23, 1903, adjudicated a bankrupt; the petition admitted that the debt was still owing by the garnishee, but averred that it should be paid to George Nass, Jr., as trustee in bankruptcy of Charles A. Auchter, and prayed that the attachment be dissolved and the judgment stricken off. The garnishee upon the presentation of this petition obtained a rule on Joseph F. Lamorelle, trustee in bankruptcy of Gustav Berger, and George Nass, Jr., trustee in bankruptcy of Charles A. Auchter, to show cause why the attachment against the garnishee should not be dissolved and the judgment set aside. The court subquently made absolute the rule to dissolve the attachment and strike off the judgment, and from that order we have this appeal. - The fund in the hands of the garnishee became bound by the attachment on July 24, 1903, the date of the service of the- writ. The record upon which the judgment upon the garnishee was based was in all respects regular, and the judgment had been entered over a year prior to the time when the application was made to strike it off. The only reason for striking off this judgment is supposed to be found in section 67 (/) of the national bankruptcy act of 1898: “ That all levies, judgments, attachments or other liens obtained through legal proceedings against a person who is insolvent at anytime within four months prior to the filing of a petition in bankruptcy against him shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment or other lien shall be deemed wholly discharged and released from the same, and shall pass to the trustee as part of the estate of the bankrupt, unless the court shall, on due notice, order that the right under such levy, judgment, attachment or other lien shall be preserved for the benefit of the estate; and thereupon the same may pass to and shall be preserved by the trustee for the benefit of the estate as aforesaid. And the court may order such convejumce as shall be necessary to carry the purpose of this section into effect.”

This provision of the act was intended to preserve the estate of the bankrupt, and aid in its collection, for the purpose of distribution among his creditors; and is not to be used by those who were indebted to the bankrupt as a device to avoid payment of their debt. The trustee of the bankrupt represents the estate and the creditors thereof, and it is for him to invoke the provisions of the statute. When a levy, judgment or attachment comes within the operation of this section of the act, it is for the court in bankruptcy, which has the supervision and control of the estate, to determine “ on due notice ” whether the lien shall be preserved for the benefit of the estate or be stricken down. The assignees in bankruptcy representing, respectively, both the original plaintiff and defendant liad become parties to this proceeding; they were in court. The garnishee admitted that the money was owing to one of them, and only averred that it should be paid to one and not the other. It was not for the garnishee to determine whether the interest of the estate of the bankrupt required that the lien of this attachment should be preserved. The interest of the garnishee would be made absolutely secure by paying the money into court, in this proceeding to which both bankrupt estates had voluntarily become parties, the respective assignees could then proceed to determine the ownership of the fund.

The judgment being regular upon its face, the assignee in bankruptcy of the defendant having made no effort to strike it down, and it being evident that the legal rights of the garnishee do not require that it should be set aside, we are of opinion that the learned court below fell into error in making absolute the rule to dissolve the attachment and set aside the judgment.

The order of the court below is reversed and the judgment is reinstated.


text:
    Davis Coal & Coke Company v. Hess, Appellant.

      Receivers — Judgment—Execution—Federal courts

    Where a judgment has been obtained in a state court against a receiver of a corporation appointed by a federal court, and an execution has issued on the judgment, an appeal from an order of the state court refusing to make an order staying the execution, will be dismissed, where it appears that before the appeal was taken the receiver applied to the federal court and obtained a restraining order enjoining the plaintiff from proceeding on the judgment. The order of the state court is, under the circumstances, harmless, and the appellate court will leave the parties to their remedies in the court having full equity jurisdiction in the matter.
    It seems that in such a case the state court has jurisdiction to stay the writ at least until after application has been made to the federal court and leave obtained to proceed with it.

      Argued Oct. 24, 1905.
    Appeal, No. 64, Oct. T., 1905, by defendant, from order of O. P. Lebanon Co., June T., 1904, No. 269, discharging rule to stay execution in case of The Davis Coal & Coke Company v. Abram Hess and J. Lansing Mines.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Rule to stay execution. Before Ehrgood, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court discharging rule to stay execution.

      George B. Woomer, with him Frederick M. Leonard, Albert B. Weimer and Lyman B. Gilbert, for appellants.
    — This question has been passed upon by various courts, and the jurisdiction of the court out of which process issues to restrain it on application of the receiver appointed by order of a United States court affirmed, notwithstanding the act of congress which authorizes suit to be instituted without previous leave of the court appointing the receiver : Irwin v. McKechnie, 58 Minn. 145 (59 N. W. Repr. 987); Dillingham v. Anthony, 3 L. R. A. 634; Dillingham v. Hawk, 60 Fed. Repr. 494; Arnold v. Penn, 11 Texas Civ. App. 325 (32 S. W. Repr. 353); Conshohocken Tube Co. v. Iron Car Equipment Co., 167 Pa. 592.
    While the time and manner of enforcing payment of a judg-' ment obtained in a suit in a state court against a receiver appointed by a federal court must be controlled by the court appointing the receiver, still it is the duty of the state court in which such a judgment may be recovered to withhold execution on such judgment: Arnold v. Penn, 11 Texas Civ. Appeals, 325 (32 S. W. Repr. 353); In re Geister, 3 Am. B. R. 228; Hill v. Harding, 107 U. S. 631 (2 Sup. Ct. Repr. 404).

      E. E. McCurdy, of Gobin & McCurdy, for appellee. —
    The court committed no error in refusing to stay the execution: Real Est, Title, Ins. & Trust Co. v. Rolling Mill Co., 6 Pa. Dist. Rep. 411; Barton v. Barbour, 104 U. S. 126.

      March 12, 1906:
   Option by

Rice, P. J.,

In the decree of the circuit court of the United States appointing the defendants receivers of the Lebanon Iron and Steel Company, the company, its officers, agents and employees and all other persons were enjoined from interfering with the possession of the receivers. Later, the circuit court authorized the receivers to continue the business of the company, and in so doing they contracted the debt for which the plaintiff brought suit and obtained this judgment. Immediately thereafter, and without obtaining leave of the federal court, the plaintiff issued a fi. fa., by virtue of which the sheriff was about to levy on and sell the property of the company in the hands of the receivers. Thereupon they applied to the common pleas and obtained a rule to show cause why the execution should not be stayed, set aside and stricken from the record, which, after argument upon demurrer to the petition, the court discharged, for the reason set forth in the opinion of the president judge, “ that this court has no jurisdiction to grant or refuse the prayers of the petitioners.” The ordinary effect of the appointment of a receiver under circumstances such as these is to take the property out of the custody of the parties and place it in charge of an officer of the court. The property being in gremio legis, the court appointing the receiver will protect his possession against intentional interference therewith by any person without leave, by all necessary process known to its practice, including attachment for contempt: Ex parte Tyler, 149 U. S. 164 (13 Sup. Ct. Rep’r. 785); and, in the absence of legislation governing the subject, other' courts will recognize and respect the custody thus taken: Robinson v. Atlantic & Great Western Railway Co., 66 Pa. 160. Prior to the act of Congress of March 3, 1887, suit could not be instituted against the receiver of a corporation appointed by a federal court without first obtaining leave of the court appointing him: Barton v. Barbour, 104 U. S. 126; Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593 (12 Sup. Ct. Repr. 905). And while that act, as amended in 1888, provides, that the receiver may be sued in respect of any act or transaction of his, in carrying on the business connected with such property, without the previous leave of the court in which he was appointed, it also provides, that “such suit shall be subject to the general equity jurisdiction of the court, in which such receiver or manager was appointed, so far as shall be necessary to the ends of justice.” Under this act a court may establish by its judgment a debt against the receivership, which must be recognized, even by the court appointing the -receiver, and is not open to revision by it, if the court rendering the judgment had jurisdiction of the subject-matter and the parties: Dillingham v. Anthony, 73 Texas, 47; s. c. 3 L. R. A. 634 (11 S. W. Repr. 139); Gay, Hardie & Co. v. Brierfield Coal & Iron Co., 94 Ala. 303; s. c. 16 L. R. A. 564 (11 So. Repr. 353); Dillingham v. Hawk, 60 Fed. Repr. 494; s. c. 23 L. R. A. 517. But the general equity jurisdiction of the court appointing the receiver, which is preserved by the express terms of the act, obviously includes the adjustment of the equities between all persons having claims on the property and effects in the hands of the receiver; and where it is admitted, as it is here by the demurrer, that the property is insufficient to satisfy all the claims, it would seem clear that to use the process of the court in which the judgment wfis obtained to wrest from the custody of the receiver the property, or enough thereof to satisfy the judgment, and thus gain an unlawful preference, would be an unwarranted invasion of the equity jurisdiction of the court, winch by its officer has the custody of the property. Prior to the act of 1887-the court of common pleas would have recognized and respected the possession of the federal court, and upon application of the receiver would have prevented the use of its execution process for such purpose, unless the leave of the federal court was first obtained: Robinson v. Atlantic & Great Western Railway Co., 66 Pa. 160. The reasons for respecting the possession held by the federal court through its officer, and for the court in which the judgment is entered to restrain, upon proper application, the use of its execution process to disturb that possession, remain in full force, notwithstanding the right given by the act to reduce the claim to judgment; and the cases construing the act, so far as they have come under our notice, do not take the view that the law in this particular has been changed. See cases above cited; also Irwin v. McKechnie, 58 Minn. 145 (59 N W. Repr. 987); Malott v. Shimer, 153 Ind. 35 (54 N. E. Repr. 101). It is unnecessary, however, to go outside the decisions of the courts of our own state. In Conshohocken Tube Co. v. Iron Car Equipment Co., 167 Pa. 592, the question was raised, whether since the act of Congress an attachment may issue against a receiver as garnishee. Mr. Justice Williams who delivered the opinion of the Supreme Court said: “ We think it can be; but whether judgment should be rendered in any given case must depend upon circumstances. The accounts of the receivers must be settled in the court which appointed them, and if the transaction out of which the indebtedness grew was such as that court could not approve, or the payment of the money attached would be a withdrawal of it from the proper purposes of the trust created by the appointment, then in any such case upon the suggestion of the receivers the state court would suspend the proceedings until the consent of the proper court could be asked and obtained. Since the act of Congress of 1888 we think an.attachment may issue against a receiver as garnishee, but if it becomes necessary for his protection to withhold judgment until the opinion of the proper United States court can be taken upon the propriety of the payment to the attaching creditor this should be done.” Here we see a clear recognition of the authority of the state court to control its process in a proper case, notwithstanding the fact that the federal court in which the receiver was appointed may have jurisdiction to restrain an interference with the custody of the receiver under process issued from the state court. Hence we are unwilling to decide that the court below did not have jurisdiction to stay the writ, at least until after application was made to the federal court and leave obtained to proceed with it.

But the refusal to set aside or stay an execution is not always a matter subject to review on appeal: Stephens v. Addis, 19 Pa. Superior Ct. 185, and cases there cited. If after the refusal of the court to stay or set aside the execution in this case the plaintiff had voluntarily stayed it, it would seem that the order would not constitute such prejudicial error as would entitle the defendant to appeal. A somewhat similar situation is presented here. The appellee’s counsel showed upon the argument of this appeal, and this was not disputed, that before the appeal was taken the receivers applied to the federal court, under whose .decrees and orders they were acting and holding the custody of the property, for a rule to show cause why the execution should not be stayed; that the federal court granted the rule and at the same time issued a restraining order enjoining the plaintiff and the sheriff from further proceeding on the "judgment, execution and levy until the disposition of the rule; and that the rule was still pending in the federal court at the time of the argument of this appeal. Both sides agree that the federal court has jurisdiction of the matter and can take such action relative to the custody and sale of the property as is necessary to preserve the rights and equities of all parties concerned. The receivers having invoked that jurisdiction, and the federal court having taken jurisdiction of the matter, it is difficult to see how the order brought up for review on this appeal can be prejudicial to the appellants, or how any disposition, affirming or reversing, we may make of the appeal, will benefit them. Under the circumstances it is the opinion of this court that the appeal should be dismissed,' and the parties left to their remedies in the court having full equity jurisdiction in the matter.

The appeal is dismissed.


text:
    Mesta Machine Company v. Hess, Appellant.
    March 12, 1906:
    Argued Oct. 24, 1905.
    Appeal, No. 65, Oct. T., 1905, by defendant, from order of C. P. Lebanon Co., June T., 1904, No. 270, discharging rule to stay execution in case of The Mesta Machine Company v. Abram Hess and J. Lansing Mines.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
   Opinion by

Rice, P. J.,

The questions raised in this case are precisely the same as in the case of the Davis Coal & Coke Company against Hess et al., ante, p. 198. Por the reasons there given the appeal is dismissed.


text:
    Gingrich v. Hess, Appellant.
    March 12, 1906:
    Argued Oct. 25, 1905.
    Appeal, No. 66, Oct. T., 1905, by-defendant, from order of C. P. Lebanon Co., June T., 1904, No. 289, discharging rule to stay execution in case of John A. Gingrich v. Abram Hess and J. Lansing Mines.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
   Opinion by

Rice, P. J.,

The questions raised in this case are precisely the same as in the case of the Davis Coal & Coke Company against Hess et al., ante, p. 193. For the reasons there given the appeal is dismissed.


text:
    Commonwealth, Appellant, v. Kembel.

      Nuisance — Obstruction of street — Bay window.

    A second-story bay window projected beyond the building line over and into the street of a city, and erected in disregard of notice by the proper municipal authorities, in the absence of any municipal ordinance upon the subject, constitutes a public nuisance per se: and the reasonableness or unreasonableness of such an obstruction, its necessity, convenience or ornament, are not matters to be submitted to the jury from which they may determine the fact of a public nuisance.
    In the absence of express municipal authorization, evidence tending to show the existence of other bay windows, extending over the building line, is not admissible as a defense to an indictment for maintaining a second-story bay window projecting into the public highway.
    Argued Oct. 23, 1905.
    Appeal, No. 200, Oct. T., 1905, by plaintiff, from judgment of Q. S. Lebanon Co., Sept. T., 1905, No. 39, on verdict of not.guilty in case of Commonwealth v. George E. Kembel.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson. JJ.
    Reversed.

      Indictment for maintaining a nuisance. Before Ehrgood, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows :
    [There was evidence admitted that this bay window is not the only bay window in this town ; that is, there are a large number of other bay windows in the town; that is, similar obstructions to the public highway. . . . All these bay windows in the city may be nuisances, for all we know, and it cannot help the defendant because those bay windows exist that he can have his bay window, except if the municipal authorities of this city have tacitly permitted the erection of those obstructions on the public highway, together with other obstructions that they may have permitted by ordinance. If they have impliedly permitted these obstructions to be placed there and the citizens of the communities in which the bay windows exist have acquiesced in the maintenance of them, then it may be what is said in several of these cases that were called to my attention, that it may be a license to the defendant to erect this nuisance, if it was a nuisance under the common law. ... If they are reasonable constructions, if they are not unreasonable obstructions 'to the public highway, then they can be maintained. That, we understand, to be the law.] [13]
    [Now, under some of the authorities that justify, as we understand it, the maintenance of these bay windows and other obstructions to the public highway, other things are considered, the necessity, the convenience and ornament. As has been said by one of the judges passing upon nuisances of the same character as this, the question of necessity, of actual necessity, cannot exist, but is recognized by the authorities to exist, but, in reality, could not exist. If I own a lot in the city of Lebanon, there is no actual necessity for my erecting a house, in which I must place any portion of that house on the public highway. I can keep my house free from the public highway altogether, and can put it back and can have my porch and everything else off of the public highway. So that, in that respect, no necessity exists. There is.no necessity that the public highway should be obstructed by my placing the house on the line at the base and have the roof, or cornice, of the house extend a foot, or several feet, over the pavement. I can place my house back so far that the cornice of my house does not obstruct any portion of the public highway. So that no actual necessity in that direction probably exists, for any of these obstructions. As that judge says, in deciding that case, he says the steps may be placed inside of the house, so that you step right from the pavement into the house, or the floor can be lowered to such an extent that the pavement, on going into the house is on-a level, that it required no steps. You go along Cumberland street, and you find the business buildings have no steps. There is no necessity for steps, because the first floor is even, or almost even, with the pavement. There is no obstruction of the public highway by reason of porches or steps. But the law says — or the Supreme Court makes this as one of the reasons — necessity. Convenience is another reason given. Porches are very convenient, if you are permitted to use five feet of the pavement to erect a porch, a nice covered porch to sit on. It is convenient, of course, and yet, under the common law, it is a nuisance. It is an invasion of the public right. It is an impedient to the pedestrian on the sidewalk. It is a real obstruction. Another reason given is that it is justifiable or excusable on the ground of being an ornament. Among the ornaments mentioned in some cases are trees planted along the curbstone on the pavement. It obstructs the public highway, but it is excused on the ground that by reason of the ornament to the town, or to a place, in some places at least, it is permissible. Now, the place where these obstructions are permitted is also to be considered by a jury in determining whether an obstruction is a nuisance or not. For example, if the merchants along Cumberland street, between Seventh and Ninth streets, would commence to dig up pavements and each plant several trees in front of their business houses, quite likely there would be trouble, and quite likely juries would consider the place where these obstructions were placed and would say that they were nuisances. Or, suppose the merchants or the business people of the town, or those that could have them, would commence to erect porches on Cumberland street, between Ninth street and Eighth street, the busy portion of the town, and thereby narrow the sidewalk to the extent of these porches, a place in this city traveled by large numbers of peopie — juries might not hesitate very much and say that such obstructions were undoubtedly nuisances, notwithstanding, perhaps, an ordinance to the effect that they might be used. That is, in general, it would be an invasion of the public rights that the courts would quite likely say was unreasonable.] [14]
    [Now, under the law, it does not make any difference for the defendant, if you find that this is'such an unreasonable obstruction of the public highway as to make him guilty of a nuisance, it makes no difference whether he has constructed it or not. ... So that if you find that it is an unreasonable obstruction to the public highway, then it is your duty to say so and declare this bay window a nuisance. If, on the other hand, you find that this is not an unreasonable obstruction of the public highway, not such an unreasonable obstruction of the public highway that he ought to take it away, then, we say, that you ought to acquit him. ... We believe that the law is that if a man erects an obstruction in a public highway, whether it is a bay window or not, which is unreasonable, then he is guilty of a nuisance and must be convicted. If he does erect an obstruction on the public highway, such as a bay window or any other obstruction which is not unreasonable, then we believe that the law justifies it and that it is the duty of juries to acquit. ... If he has not erected a nuisance, an unreasonable obstruction, then acquit him. . . . If, as I have instructed you, this man has put an unreasonable obstruction in the public highway, it is your duty to convict him. ■ If he has not placed an unreasonable obstruction in the public highway, then we say he was justified and you can acquit.] [16]
    Verdict of not guilty.

      Errors assigned among others were (18-15) above instruc" tions, quoting them.

      Warren Gr. Light, with him Harry J. Schools, for appellant.
    The construction of a bay window in an upper story, projecting over the street line in a city, constitutes a nuisance per se: Reimer’s App., 100 Pa. 182; Hess v. Lancaster, 4 Pa. Dist. Rep. 737; Com. v. Harris, 15 Phila. 10.
    It is sufficient to show the existence of a bay window projecting over the street line into the highway; and evidence of any special injury which may or may not be- suffered by certain persons is immaterial: Ex parte Shrader, 33 Cal. 279; People v. Vanderbilt, 28 N. Y. 396.
    March 12, 1906:
    The general rule is that no one can encroach beyond the building line without showing express authority to do so: Phila. v. Clare, 17 Phila. 59.
    The fact that the municipality has tolerated the existence of certain appurtenances, to houses, such as bay windows, encroaching on the street line, does not give to other property owners the right to maintain similar encroachments: Broadbelt v. Loew, 162 N. Y. 642 (57 N. E. Repr. 1105); Weiser’s App., 3 York, 103.

      Thomas H. Capp, with him George B. Woomer, for appellee.
    — The bay window in question was not a public nuisance: Livingston v. Wolf, 136 Pa. 519; Com. v. Beaver Borough, 171 Pa. 542; Com. v. Allen, 148 Pa. 358; Com. v. Northern Cent. Ry. Co., 7 Pa. Superior Ct. 234; Allegheny v. Zimmerman, 95 Pa. 287; Com. v. Hauck, 103 Pa. 536; King v. Thompson, 87 Pa. 365; Com. v. First Nat. Bank, 207 Pa. 255; Sutton v. Eshleman, 3 Lanc. Bar, No. 12; Coulter v. Pine Township, 164 Pa. 543; Com. v. Suesserott, 5 Pa. C. C. Rep. 1; Com. v. Miller, 139 Pa. 77; Com. v. Cassell, 1 Pa. Superior Ct. 476; Allegheny v. Zimmerman, 95 Pa. 287.
   Opinion by

Porter, J.,

The defendant erected and now maintains a second-story bay window, about twelve feet above the sidewalk and projecting about fifteen inches over the street line and into North Eighth street, a public highway and thoroughfare near the cen ter of the city of Lebanon. The defendant had been notified, at the time the structure was in process of erection, by the chief of police of the city, under the direction of the mayor, that the bay window extended over the street line and that it was illegal; but he disregarded the notice and finished the structure. He was indicted and tried for the maintenance of the alleged nuisance, which trial resulted in an acquittal, and the commonwealth appeals.

The court below admitted evidence on the part of the defendant to the effect that there were other bay windows in the city of Lebanon which extended over public highways, and that the particular bay window in question was ornamental and finished in good taste. The learned judge instructed the jury that if the municipal authorities “ have impliedly permitted these constructions to be placed there and the citizens of the communities in which the bay windows exist have acquiesced in the maintenance of them, then it may be what is said in several of these cases that were called to my attention, that it may be a license to the- defendant to erect this nuisance, if it was a nuisance under the -common law. ... If they are reasonable constructions, if they are not unreasonable obstructions to the public highway, then they can be maintained.” And, again: “ Now, under some of the authorities that justify, as we understand it, the maintenance of these bay windows and other obstructions to the public highway, other things are considered, the necessity, the convenience and ornament.” The learned judge then proceeded to instruct the jury that the term “necessity” as thus used did not mean an actual necessity, that the convenience might be one which would exclude the public from the use of a part of the highway; and that the ornaments mentioned might constitute an obstruction of the highway “ to be excused on the ground that by reason of the ornament to the town or the place, in some places at least, it is permissible.” The learned judge, in referring to the alleged nuisance said: “It may be a convenience to him (the defendant), and it may be an ornament to his building-, but it is true that it obstructs the view of the prosecutor in this case. It interferes with his view from his building. Now, under the law, it does not make any difference for the defendant if you find that this is such an unreasonable obstruction of the public highway as to make him guilty of a nuisance; i't makes no difference whether he has it constructed or not. That must not enter into your minds. He had notice before he commenced to construct, and it is his own fault if he erected a nuisance which must be abated, and he must bear the expense of putting up the nuisance and tearing it down again. So that, if you find that it is an unreasonable obstruction to the public highway, then it is your duty to say and declare this bay window a nuisance. If, on the other hand, you find that this is not an unreasonable obstruction of the public highway, not such an unreasonable obstruction of the public highway that he ought to take it down, then we say to you, you ought to acquit him.”

The jury must, under these instructions, have been convinced that even though the defendant was maintaining a nuisance, he was not to be convicted unless they were satisfied that that nuisance constituted an unreasonable obstruction to the public highway. The question of the guilt or innocence of the defendant was made to depend not upon his actual maintenance of a nuisance, but whether in the opinion of the jury that nuisance unreasonably obstructed the public highway. The verdict, under these instructions, only means that even if the defendant was maintaining a nuisance, the jury were not satisfied “ that he ought to take it away.”

Those limited encroachments upon public highways which are excused upon the ground of convenience, are such only as relate to the convenient use of the street in connection with the property, such as steps, cellar doors and area ways. The taking of a part of the street for purposes of ornament can be done for the ornamentation of the street only, such as the planting of shade trees, the location of statues, or the laying out of the sides or middle of the street as a park, of which the public have the benefit. No abutting owner has the right, in the absence of a valid municipal regulation permitting him to do so, to inclose a part of the street within the walls of his own building for the purpose of making that building more beautiful. The learned judge of the court below no doubt relied upon the decisions in proceedings, at law or in equity, between private parties, of which King v. Thompson, 87 Pa. 365; Allegheny v. Zimmermann, 95 Pa. 287, and Livingston v. Wolf, 136 Pa. 519, are examples. In the recent case of Commonwealth ex rel. v. First National Bank, 207 Pa. 255, the question of the right of an abutting owner to permanently include any part of the public street within the walls of his building was not involved. The case of Commonwealth ex rel. v. Beaver Borough, 171 Pa. 542, presented only the question of the power of the borough authorities to regulate the streets and squares which had been laid out by the commonwealth, upon the original plan of the town, but the learned judge who wrote the opinion, which was adopted by the Supreme Court, clearly draws the distinction between the ornamentation of a street, by planting shade trees, and the inelusion of a part of the highway by an abutting owner by the erection of a permanent building and fences, so as to unlawfully exclude the public.

The attempts of private citizens to check the tendency to encroach upon the highways have generally proved abortive, for it is a well-established rule that the private citizen who attempts to redress a public grievance must show a special damage to himself over his fellow citizens, which is generally difficult. Iiis rights to the highway are those of a traveler, and he cannot complain of erections by owners of the soil, however unlawful, except such as obstruct his right of passage. When the commonwealth intervenes all questions of the right to bring suit disappear, and length of occupation becomes an aggravation rather than an excuse. It is conceded that there was not at the time this bay window was constructed, nor is there now, any uniform rules and regulations, as to bay windows, of the city of Lebanon. The city might, under the power conferred by the Act of May 28, 1889, P. L. 277, have adopted reasonable and uniform rules and regulations permitting encroachments of the character in question upon the public highways, but it' has not done so. The highways belong to the commonwealth, in trust for the great body of the people, and that any one who claims a peculiar privilege to invade them must establish beyond peradvenbure his title under some act of legislative power to do so, is well settled. “ Projecting windows from an upper story interfere to some extent with the ordinary and proper enjoyment of rights which are free to all, and one who appropriates the space above the foot way creates a purpresture by making several to himself that which ought to be common to many.” This case is ruled by Reimer’s Appeal, 100 Pa. 182; Kopf v. Utter, 101 Pa. 27; Commonwealth v. Moorehead, 118 Pa. 344; Commonwealth v. McNaugher, 131 Pa. 55, and Commonwealth v. Harris, 15 Philadelphia, 10. The defendant failed to show any valid municipal regulation authorizing his encroachment upon the street, and the question for the jury to determine was whether the bay window did extend over the building line into the street, as charged in the indictment.

The judgment is reversed and a venire facias de novo awarded.

Morrison, J., dissents.


text:
    Justice v. Meeker, Appellant.

      Justice of the peace — Judgment—Transcript—Amendment.
    A transcript of a judgment of a justice of the peace filed in the common pleas may be amended so as to make it correctly show what proceedings were had before the justice.

      Justice of the peace — Summons—Judgment—Act of March 20, 1810, sec. 2, 5 Sm. L. 161.
    A judgment of a justice of the peace based upon a summons issued on May 17, returnable May 22, is valid. The five days provided by the statute are to be computed by excluding the first day, that of the date of the summons, and including the last day, that of the return of the summons.

      Judgment — Partnership—Names of partners.

    A judgment is not void because it was entered against a partnership without setting forth the names of the individual partners.
    Where irregularities, not jurisdictional in character, in a judgment are allowed to stand for ten years unquestioned, it will be presumed that such irregularities have been waived.
    Argued Dec. 5, 1905.
    Appeal, No. 10, Oct. T., 1905, by defendant, from order of C. P. Lehigh Co., Nov. T., 1895, No. 117, permitting amendment and refusing to strike off a judgment in case of William Justice & Sons v. Daniel Meeker & Co.
    Before Rice, P. J., Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Rule to amend transcript.
    Rule to strike off judgment. Before Trexler, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court.

      Calvin E. Arner, for appellant.
    — The court may strike off a judgment for irregularities appearing on its face: Davidson v. Miller, 204 Pa. 223.
    This is so, even if the judgment is entered on a justice’s transcript: Pantall v. Dickey, 123 Pa. 431; McKinney v. Brown, 130 Pa. 365; Althouse v. Hunsberger, 6 Pa. Superior Ct. 160.
    It is fatal defect in a suit against a partnership to omit the names of the individual partners: McConnell v. Apollo Savings Bank, 146 Pa. 79; Hoffman v. Faulk, 5 Pa. Dist. Rep. 774.
    March 12, 1906:
    The judgment should be stricken off: Treasurer of Div. No. 168 v. Keller, 28 Pa. Superior Ct. 135.
    In reckoning the days between the issuing of a summons and the return day, the day of issuance must be excluded: Ferris v. Zeidler, 5 Phila. 529; Bigham v. Redding, 19 Pa. C. C. Rep. 200; Brenner v. Dombach, 3 Lanc. Bar. No. 40; Goldman v. Teitlebaum, 10 Pa. Dist. Rep. 53; Killian v. Rishell, 14 Pa. Dist. Rep. 374.

      Reuben J. Butz, with him John G. Diefenderfer, for appellee.
    — The court had power to amend the transcript so as to make it conform to the justice’s record: Caldwell v. Thompson, 1 Rawle, 370; Miles v. Tanner, 3 P. &. W. 95; Gehman v. Christ, 15 W. N. C. 171; Kearney v. Pennock, 2 Pa. Dist. Rep. 32; Wertzler v. Herchelroth, 8 Pa. Dist. Rep. 423.
    Appellant does not deny the indebtedness or that he was served, and has been guilty of gross laches: Inquirer Printing Co. v. Wehrly, 157 Pa. 415; Moore v. Baker, 2 Kulp, 326; Duffy v. O’Neill, 2 Kulp, 423; Watson v. Wehrley, 9 Lanc. L. Rev. 179; Strause v. Scheurman, 13 Pa. C. C. Rep. 332.
    The transcript is sufficient to support the judgment entered thereon, whether the amendment be made or not: Seitz v. Buffum, 14 Pa. 69; Armstrong v. Robinson, 5 Gill & Johns. 412; McDonald v. Simcox, 98 Pa. 619; Link v. Repple, 7 Pa. C. C. Rep. 138; Boyd v. Thompson, 153 Pa. 78; Moore v. Moore, 153 Pa. 495; Franklin v. Morris, 154 Pa. 152; Evans v. Watts, 192 Pa. 112; Candee & Co.’s App., 191 Pa. 644; York Bank’s App., 36 Pa. 458.
   Opinion by

Porter, J.,

The plaintiffs brought an action against the defendant before a justice of the peace and judgment was entered in their favor on May 17, 1894; a transcript of this judgment was filed and judgment entered in the court of common pleas on November 19, 1895; on April 6, 1904, a scire, facias was issued to revive the judgment in the common pleas; the defendant, on June 16,1904, presented a petition and obtained a rule to show cause why the judgment should not be stricken from the record, because of irregularities in the proceedings before the justice disclosed by the transcript; the plaintiffs and the justice of the peace, who was still in commission, presented a petition, on November 22, 1904, averring that the transcript on file was not a true and correct transcript of the said judgment as it appeared upon the docket of the justice, and annexing a transcript of the proceedings, certified by the justice of the peace, which was averred to be a true and correct transcript of the proceedings as they appeared upon the record on his docket, and praying that the record in the common pleas “ be amended to conform with the transcript hereto annexed; ” the court granted a rule to show cause why the transcript should not be amended, and, on January 2, 1905, made absolute the rule to amend the transcript and discharged the rule to strike off the judgment.

The order of the court permitting the amendment of the transcript was right; this was not an amendment of the proceedings before the justice, but the correction of mistakes in the transcript so as to make it correctly show what proceedings were had before the justice. When there are mistakes in a transcript they may be, and ought to be, corrected. The judgment is founded upon the record of the justice, and the transcript should be made to truly present that record ; whether it does so is to be determined by the court below, upon inspection of the docket, and all the papers and evidence before them: Caldwell v. Thompson, 1 Rawle, 370; Miles v. Tanner, 3 Penrose & Watts, 95; Lyon v. Chalker, 2 Watts, 14. The first assignment of error is dismissed.

Assuming the proceedings before the justice to have been as set forth by the amended transcript, there was no error in the refusal of the court below to strike off the judgment. The defendant did not in his petition to strike off the judgment allege that he did not owe the debt, nor that the summons issued by the justice had not been served upon him, nor that he did not know, at the time the judgment was entered by the justice in 1894, that said judgment had been so entered. His complaint that the summons issued by the justice was made returnable within a shorter time than allowed by law is not well founded. The summons was issued on May 17 and returnable on the 22d of the same month. The act of March 20, 1810, sec. 2; 5 Smith’s Laws, 161, requires that the summons shall command him (the constable) “to cause the said defendant to appear before the said justice on a certain day therein to be expressed, not more than eight nor less than five days after the date of the summons.” In computing this time fractions of days are not to be regarded. Had the statute required that the summons should be returnable “ on a day certain, neither less nor more than five days after the date of the summons,” there could be no question that a summons issued on May 17 must be returnable on the 22d of the same month. If fractions of days were to be considered in computing this time, a part of both the fifth and eighth days after the date of the summons would be without the period allowed by the statute. Each day is to be considered as a distinct unit. The time is to be computed by excluding the first day, that of the date of the summons, and including the last day, that of the return of the summons: Cromelien v. Brink, 29 Pa. 522; Lutz’s Appeal, 124 Pa. 273; Marks’s Executors v. Russell, 40 Pa. 372; Duffy v. Ogden, 64 Pa. 240; Davis v. Davis, 128 Pa. 100; Whitton v. Milligan, 153 Pa. 376. The Act of June 20, 1883, P. L. 136 is declaratory of the law as it existed prior to its passage.

The contention of the appellant that the judgment was void because it was entered against a partnership without setting forth the names of the individual partners, cannot be sustained. While such an objection is good if made in time, the irregularity is cured by a judgment: Seitz & Co. v. Buffum & Co., 14 Pa. 69; McDonald v. Simcox, 98 Pa. 619; Moore v. Moore, 153 Pa. 495.

The other defects in the record of which the appellant complains are irregularities only, not jurisdictional in nature, and while they might have been sufficient to cause the judgment to be set aside, if proper diligence had been used and a writ of certiorari issued within the time prescribed by law, the defendant, having permitted the judgment to stand unquestioned for ten years, must be held to have waived the irregularities: Inquirer Printing Company v. Wehrly, 157 Pa. 415.

The judgment is affirmed.