author: Porter, J.,

text:
    Thirteenth Street.

      Road law — Change of grade — Change of ownership — Act of May 16, 1891, P. L. 75.
    1. Where an ordinance authorizes the change of grade of a street which had already been opened as a public highway, the person entitled to receive the damages for the injury resulting from the change of grade is the owner at the time the actual work on the ground is begun, and not the owner at an earlier date; and this is the case even if the petition for the appointment of viewers had been presented by the owner of an earlier date. This was the law prior to the passage of the Act of May 16, 1891, P. L. 75, and that act has not established a different rule.
    2. The right to compensation in such a case accrues to the owner, and the cause of action arises only when the injury is complete, and the injury is complete under the constitutional provision relating to the taking or injury of private property for public use, as soon as the part of the work which will do the injury is begun.
    3. The fact that the fourth section of the Act of May 16, 1891, P. L. 75, authorizes the appointment of viewers before or at any time after the entry, taking or injury of a property, does not change the rule as to the person entitled to receive the damages.
    4. Viewers appointed to ascertain the damages, costs and expenses in the grading of a street, cannot make the report required by the act, until the costs and expenses of the grading have been ascertained. It follows from this that although viewers may be appointed prior to the actual work, they cannot make their report until the costs and expenses of it have been ascertained.
    5. The proceedings between the appointment of the viewers and the beginning of the actual work is tentative and experimental, and it is only when the municipality takes the property, or enters upon the actual work, that its liability becomes fixed, and the then owner becomes entitled to compensation.
    Argued Oct. 14, 1908.
    Appeal, No. 113, Oct. T., 1908, by Mary E. Brownlee, from decree of C. P. No. 5, Phila. Co., June Term, 1905, No. 1,443, dismissing exceptions to the report of viewers in case of Change of Grade of Thirteenth Street from Godfret Avenue to a point 230 feet north of Sixty-fifth Avenue north in the forty-second ward of the city of Philadelphia.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Exceptions to report of viewers.
    The facts appear by the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to report of viewers.

      J. Lee Patton, for appellant.
    There can be no doubt of the right of a party interested to have viewers appointed and damages assessed before the physical grading or opening is commenced: Weikel St., 11 Pa. Dist. Rep. 651; Winter Avenue, 23 Pa. Superior Ct. 353.
    A landowner becomes entitled to damages for opening a street through his property upon confirmation of the report of the jury assessing them, and that he is also entitled to interest from the date of the confirmation: Corry v. Chair Co., 18 Pa. Superior Ct. 271; Second Ave., 7 Pa. Superior Ct. 62.
    If it is true, then, that an owner can petition and have damages assessed for change of grade, and in the absence of a repealing ordinance and exceptions, have confirmation of the report awarding damages for said change of grade before the physical grading, and it is true, also, that confirmation of a report awarding damages is a judgment, entitling the awardees to a mandamus execution, it is most respectfully urged that Mary E. Brownlee is entitled in the present case to the damages. The right to have the damages ascertained accrued upon the passage and approval of the ordinance. This right she proceeded to enforce. Had the jury reported promptly, she would still have been the owner, and could have had confirmation of the report, even though no grading had been done. It was her right; her claim; and she proceeded to assert it and continued to assert it to the end. Moreover, she did not assign this claim or right: Philadelphia v. Dickson, 38 Pa. 247.
    As it logically follows from the provisions of the act of 1891, that an award of damages can be had and confirmed before the physical grading, it also must of necessity follow that the right to have the damages ascertained accrues upon the approval of the ordinance and that hence the injury dates from that date.
    February 26, 1909:
    The question whether the rule has been changed by virtue of the provisions of the Act of May 16, 1891, P. L. 75, has never been judicially determined, although an effort was made to have it done in the case of Howley v. Pittsburg, 204 Pa. 428.
    In Witman v. Reading, 191 Pa. 134, it was held: “By actual opening and construction of the street the date of taking relates back to the date of the ordinance adopting the route.”
    And in Shields v. Pittsburg, 201 Pa. 328, where land was taken for park purposes, the court held that the appropriation dated from the passage of the appropriating ordinance.

      Bertram G. Frazier, with him John W. Frazier, Jr., for Everett M. and Annie K. Matthews and Nellie T. Powell, appellees.
    The principle of law that the owner at the time the physical work is done is the one entitled to recover in a change of grade proceeding is too well founded and has been too often decided to warrant a lengthy discussion of the subject: Clark v. Phila., 171 Pa. 30; Ogden v. Phila., 143 Pa. 430; Howley v. Pittsburg, 204 Pa. 428.

      C. W. Van Artsdalen for Clara Hepburn, appellee.
   Opinion by

Porter, J.,

Mary E. Brownlee, the appellant, on June 14,1905, presented her petition to the court below representing that Thirteenth street, between Godfrey avenue and a point 230 feet north of Sixty-fifth avenue north, in the forty-second ward of the city of Philadelphia, was a legally open street upon the public plans of the city and that by ordinance approved April 8, 1902, the councils of the city authorized the grading of the said part of Thirteenth street, that the petitioner was the owner of property, abutting upon the said part of Thirteenth street, and “that by reason of the grading of the said Thirteenth street plaintiff’s property was greatly damaged and injured.” The petitioner prayed for the appointment of three disinterested citizens to assess the damages and benefits caused by reason of the said change of grade of Thirteenth street. The court below, on June 23, 1905, appointed the viewers as prayed for. The viewers filed their report in the court below, on March 26,1908, finding, inter alia, that the properties owned by Everett M. and Annie K. Matthews, Amelia Baum, Clara Hepburn and Nellie T. Powell, respectively, were damaged by the grading. The appellant filed exceptions to the several awards of damages to the parties named, averring that the compensation for the injuries to the properties owned by said parties, respectively, should be awarded to her. The court below overruled the exceptions and confirmed the report of the viewers. Mary E. Brownlee appeals from this decree and, having abandoned her claim as to the amount awarded to Amelia Baum, now contends that the decree should be modified and that the damages which were awarded to Everett M. and Annie K. Matthews, Clara Hepburn and Nellie T. Powell, respectively, should be decreed to be paid to the appellant, instead of to said parties. The question is not as to the amount of the damages, nor whether the city is liable, but is as to the party entitled to receive payment for the damages sustained by the several properties. The contest is between parties who owned the property at different times during the pendency of the proceeding.

The report of viewers states the facts as to the ownership of the properties in question, thus bringing those facts upon the record. All the property in this proceeding in question was from November 4,1898, to November 10,1903, owned by Abraham L. English and Forrest B. English, who on the date last mentioned conveyed the same to Mary E. Brownlee, the appellant. Mary E. Brownlee, on July 11, 1905, conveyed a part of the property to Nellie T. Powell, who still continues to be the owner of said part; she conveyed another part, on September 23, 1905, to Everett M. and Annie K. Matthews, who still continue to be the owners of said part; and, on October 16,1907, she conveyed what remained of said property to Clara A. Hepburn, who still continues to own said part. The report of viewers further finds that the grading of the street was physically begun by the city of Philadelphia on December 20, 1907, and that it had not been entirely completed on March 6,1908, when the report was made. These findings of fact are admitted by all the parties to be true. The property was, therefore, owned by Abraham L. English and Forrest B. English at the time the ordinance authorizing the grading was approved, but they had parted with the title before the petition for the appointment of viewers was presented and they had no interest in it at the time the physical change of grade was begun. Mary E. Brownlee had no interest in the property at the time the ordinance was approved, although she had acquired title thereto when she presented her petition for the appointment of viewers, but she had parted with her entire interest in the property before the city began to make the physical change of grade. Neither Nellie T. Powell, Everett M. and Annie K. Matthews,- nor Clara Hepburn, had title to their respective lots at the time the ordinance was approved, nor at the time the viewers were appointed, but they did each acquire title to their respective properties prior to the time the city began to make the actual change of grade. Abraham L. English and Forrest B. English on November 8, 1907, assigned any claim which they might have for damages to the property arising from the grading of Thirteenth street to Mary E. Brownlee; this was after Mary E. Brownlee had parted with her title to the property but before the actual grading was begun. The appellant did not attach to her petition for the appointment of viewers, nor has she printed in her paper-book, a copy of the ordinance relating to the grading of the street. The petition stated that the city had by ordinance, approved April 8, 1902, “authorized the grading of the street.” We cannot upon this mere statement assume that the provisions of the ordinance were peremptory, or that they did more than vest authority in an executive officer to proceed at his discretion when he had funds and the time was ripe. The property being situate in the city of Philadelphia and the proceeding having its inception in a petition for the appointment of viewers in the court of common pleas, the statutory authority for these assessments must be found in the Act of May 16, 1891, P. L. 75. The street having already been opened, the proceeding did not involve an assessment of damages for the opening or widening of a highway, and the Act of May 26, 1891, P. L. 117, can have no application in determining the rights of these parties. The question presented is whether, under the circumstances involved, the owner at the time the actual work on the ground is begun, or the owner at an earlier date, is entitled to the damages resulting to a property from the change of the grade of a street which had already been opened as a public highway prior to the authorization of such change of grade.

The rule in proceedings of this character had, prior to the approval of the Act of May 16, 1891, P. L. 75, been well established by the decisions; it was the physical change and not the mere establishment of a grade, or the declaration of the intention of the city to grade the street at some time in the indefinite future, that gave the right of action, and the owner at the time the actual work on the ground was begun was the party entitled to receive the damages: Howley v. Pittsburg, 204 Pa. 428; Devlin v. Philadelphia, 206 Pa. 518, and cases there cited. This rule determined that the owner of the property at the time the actual injury was done was the person entitled to recover. The appellant contends that the act of 1891 calls for a new rule in cases of this character. The injury which a property suffers from a change in the grade of a street upon which it abuts is a consequential one and the right to compensation for such injury is primarily founded in the constitutional provision: “Municipal and other corporations, and individuals vested with the privilege of taking private property for public use, shall make just compensation for property taken, injured, or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction.” The right to compensation accrues to the owner, and the cause of action arises only when the injury is complete, and the injury is complete, under the constitutional provision, as soon as the part of the work which will do the injury is begun: O'Brien v. Railroad Company, 119 Pa. 184; Change of Grade in Plan 166, 143 Pa. 414. This was the well-recognized rule at the time the statute of May 16, 1891, was enacted, and is to be kept in view in determining the effect which should be given that statute. Mr. Chief Justice Mitchell, in Howell v. Morrisville Borough, 212 Pa. 349, after reviewing the events which preceded and led to the adoption of the statute, considered the purpose, scope and effect of the act of 1891, using this language: “It is in form and intent a general act, but it is part of the series of curative acts on the subject and manifestly intended as a blanket supplement to the others, to supply deficiencies and confirm doubtful powers under existing legislation.” “It is a uniform grant of power to municipalities of all grades, supplementary as already said to their existing authority, and in aid of their ability to reimburse themselves for the cost of the improvements.” “But its purpose was the protection of the interest of the cities, and there is neither express provision nor clear implication anywhere in the act of any intent to increase the obligations of the cities or enlarge the rights or claims of property holders. As to them, as said by our Brother Dean, in Daughters of American Revolution v. Schenley, 204 Pa. 572, the act adopted no new rule but merely accepted the law as it stood.” It was in that case held that this statute did not operate to give an owner whose property had been injured by the vacation of a street the right to recover damages, although the “vacation of streets” was included in the title of the act and in the sections of the statute upon which this appellant relies. A like view of the effect of this statute was taken in Seaman v. Borough of Washington, 172 Pa. 467, and Mill Creek Sewer, 196 Pa. 183. In the Park Avenue Sewer Cases, 169 Pa. 433, referring to the same statute, th'e present chief justice said: “No indication is anywhere given that damages are to be allowed or benefits imposed on any different basis than the usual one of the special and local effects of the improvement along, its line. A departure from the long-established line will not be presumed in the absence of explicit expression of such legislative intent.”

The enacting parts of the statute, secs. 1, 8 and 9, follow the same phraseology “All municipal corporations of this commonwealth shall have power whenever it shall be deemed necessary” in the opening, widening, vacating, grading, etc., of streets, constructing bridges, sewers, etc., “to take, use, occupy or injure private lands, property or material.” The first section, in addition to the grant of power, provides for the appointment of viewers, in case the compensation for the damages or benefits accruing have not been agreed upon, upon the petition of the municipal corporation or any person interested. The second and third sections regulate the proceedings before the viewers and provide for the assessment of the damages and benefits. The fourth section provides that the viewers may be appointed “ before or at any time after the entry, taking, appropriation or injury of any property or materials for constructing said improvements.” The sixth section provides for the filing of exceptions to the report of viewers, and empowers the court to confirm the report, or to modify, change or otherwise correct the same or change the assessments made therein, or refer the same back to the same or new viewers. The seventh section provides that any municipal corporation may repeal any ordinance passed, or discontinue any proceeding taken, providing for any of the improvements mentioned, prior to the entry upon, taking, appropriation or injury to, any property or materials, and within thirty days after the filing of the report of viewers assessing damages and benefits.

The appellant contends that because the fourth section of the statute authorizes the appointment of viewers before or at any time after the entry, taking or injury of the property, that, therefore, a new rule must be adopted not only as to the time when the damages are to be ascertained, but as to the party to whom those damages are payable. The statute contains no express provision referring to a legislative intention to change .the rule as to the party entitled to damages which had before existed. The cases hereinbefore cited must be accepted as clearly establishing that this statute did not give a remedy for any injury for which compensation was not allowed by some preexisting law. The statute manifestly intends to give compensation for the taking of or actual injury to the property, and not for the mere passage of a municipal ordinance.

The first, second and fourth sections of the statute must, for the purposes of this case, be construed in connection with the eighth. The eighth section contains a grant of power to municipal corporations, among other things, “upon the petition of a majority of property owners in interest and number abutting on the line of the proposed improvement, to be verified by affidavit, etc., to grade, pave, curb, macadamize and otherwise improve any public street or public alley within its corporate limits.” “On petition, viewers shall be appointed as provided in the first section of this act, who shall assess the costs and expenses of the sewer, or grading, paving, curbing, etc., of each street or alley upon the property benefited according to benefits, if sufficient can be found, but if not, then the deficiency, when finally ascertained, shall be paid by the municipal corporation, and the proceedings of said viewers and the proceedings on their report, shall be, as provided in this act, for viewers and reports of viewers, in cases of property taken, injured or destroyed.” These provisions apply to the present case, for this involved only the grading of a street which had already been opened. The grading of streets had, it is true, been mentioned in the general grant of power in the first section, but the grant of power to grade is specifically dealt with in the eighth section and the provisions of that section must be observed and control in any case when-there is an actual change of the grade of a previously open street. The viewers must ascertain the costs and expenses of the grading, and they must assess the costs and expenses upon the property benefited, if they find such property. The damages resulting from the change of grade and the costs and expenses of the grading are separate and distinct items, but the viewers consider both. The deficiency, if any, is to be assessed against the municipality, when finally ascertained. It is, therefore, evident that the viewers appointed to ascertain the damages, costs and expenses, in the grading of a street, cannot make the report required by this statute until the costs and expenses of the grading have been ascertained.

The viewers may, under the fourth section of the act, be appointed before the taking or injury of the property, but the appointment of the viewers does not determine that the petitioner or any other person is entitled to receive compensation. When the viewers are thus appointed before the actual injury, a property owner may have a prospective right, but that right is inchoate and defeasible. If there is a prospect that the buildings on a property, will be rendered less valuable in case a change of grade which a municipality contemplates should be actually carried into effect, the owner would not be entitled to compensation for that prospective and imaginary injury in the event of the destruction of the buildings by fire, or some other manner, before the injury had actually happened. The whole proceeding is tentative and experimental, under the provisions of the seventh section of the act, until the municipality has entered upon the property or begun the work which causes the injury, or the report of viewers has been filed and the municipality has not within thirty days thereafter repealed the ordinance. When the municipality takes the property or enters upon the actual work, its liability becomes fixed, and the property owner becomes entitled to compensation. When a report of viewers has been filed and, the municipality not having repealed the ordinance, the report is at the expiration of thirty days confirmed, the matter has been judicially determined and the awards have the effect of judgments. The act of 1891 made no change in the rule for ascertaining the parties who were entitled to compensation for the injury, nor did it make anything an injury entitling an owner to compensation which was not such under the then existing law. When anything takes place, after the viewers are appointed and before the actual injury which would entitle a person to compensation has occurred which works a change in the ownership of the property, it is the duty of the viewers to take notice of that fact and report accordingly. The effect of the ruling of the court below was to give the damages to the owners of the property at the time the injury was suffered, and in this there was no error.

The decree is affirmed and the appeal dismissed at costs of the appellant.


source: Caselaw Access Project

license: Public Domain

text:
    National Bank of Phœnixville, Appellant, v. Bonsor,

      Banks and banking — Checks—Failure of consideration — Holder for value.

      1. In an action by a bank against the maker of a check who had stopped its payment, where the evidence shows a failure of consideration as between the maker and the payee who had deposited the check with the plaintiff bank, and also shows that the bank was not a holder for value to the full amount of the check, it is proper for the court to refuse to charge, by binding instructions, that the plaintiff is entitled to recover the full amount of the check.
    2. When a bank makes advances or gives new credit on the faith of a check or other commercial paper which a customer has deposited for collection, and for which he has received credit in his account, it becomes entitled to a lien upon such paper and proceeds thereof for the amount thus advanced.
    3. Where a bank accepts a check for collection, and gives a depositor credit for it, and the latter draws against Ms account to an amount wMch reduces the apparent balance below the amount of the check, the bank has a lien for the amount of the overdraft, and to that amount is a holder for value, and may recover to such extent against the maker of the check. This right is established by the Act of May 16, 1901, P. L. 194, sec. 27, relating to negotiable instruments.
    Argued Oct. 15, 1908.
    Appeal, No. 61, Oct. T., 1908, by-plaintiff, from judgment of C. P. Phila. Co., March T., 1905, No. 126, on verdict for defendant in case of National Bank of Phcenixville v. C. F. Bonsor & Company, Incorporated.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Reversed.
    Assumpsit upon a check. Before Carr, J.
    At the trial when Charles F. Bonsor was on the stand the following offer was made:
    Mr. Porter: I offer to prove by this witness that this check was drawn to the order of the Schuylkill Valley Match Company; that it was afterwards stopped payment because the Schuylkill Valley Match Company were not entitled to the money and Bonsor & Company did not owe them the money; to develop by this witness the contract between Bonsor & Company and the Schuylkill Valley Match Company and show in detail the financial relations which required the stopping of the check and all the general merits of the case.
    Mr. Thompson: I object to that unless it is preceded by proof that the National Bank of Phoenixville was not a holder for value and that the National Bank of Phoenixville had notice of the equities between the parties'before it became holder for value.
    Objection overruled.
    Exception noted for the plaintiff by direction of the court. [1]
    Objections to similar offers were overruled. [2, 3]
    Defendant presented this point:
    That the court should direct a verdict for the plaintiff under all the evidence for the amount of the check; with interest from the date of the notice of nonpayment, December 20, 1904. Answer: Refused. [4]
    The court charged as follows:
    [In this case there is only one question of fact for you to decide, and that is whether or not the matches that were delivered after the spring of 1904 were up to quality. Upon that point there can be no doubt, because you have the testimony of Mr. Bonsor on his oath as to that, and the samples are before you, and the testimony of Hutchinson, as well as the testimony of Wheaton, and they say that it was admitted by the Schuylkill Valley Match Company that their goods were not up to the standard. Therefore, there can be no doubt in this case as to the proof of the fact.
    The law is, if you believe that, then it is a proper defense in this case, and your verdict should be for the defendant.] [5]
    [The Schuylkill Valley Match Company, being a depositor in the plaintiff bank, and the check in suit having been deposited in due course, the presumption of law is that the check was taken for collection, in the absence of a special agreement. There is no proof of any special agreement on the subject, and if you believe there was the failure to deliver up to the standard which they contracted to deliver, that is a good defense in this case.] [6]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4-6) above instructions, quoting them.

      Samuel W. Pennypacker, with him J. Whitaker Thompson, for appellant.
    It has long been settled that where a banker advances money to another, he has a lien upon all the papers that are in his hands for the amount of the balance, unless such securities were delivered to him under a particular agreement: Bank of the Metropolis v. New England Bank, 42 U. S. 234; Logan v. Smith, 8 W. N. C. 102; First Nat. Bank of Clarion v. Gregg, 79 Pa. 384; Erisman’s App., 1 Pa. Superior Ct. 144; Balbach v. Frelinghuysen, 15 Fed. Repr. 675; Hazlett v. Commercial Nat. Bank, 132 Pa. 118; German Nat. Bank v. Farmers' Deposit Nat. Bank, 118 Pa. 294.
    When an advance has been made which creates an indebtedness to the bank by the depositor, the bank has a lien on all business papers of the depositor held by it until the indebtedness is discharged: 1 Morse on Banks and Banking (4th ed.), sec. 324; U. S. Bank v. Macalester, 9 Pa. 475; Champion v. Gordon, 70 Pa. 474; Phelan v. Moss, 67 Pa. 59; Garrard v. Haddan, 67 Pa. 82.

      W. W. Porter, of Porter, Foulkrod & McCullagh, for appellee.
    It has been held in New York and some other jurisdictions, that the fact that the bank has permitted its depositor to draw against a check on which payment has not as yet been ascertained constitutes the bank a holder for value pro tanto, to the amount of the advance. This view is disapproved by the best text-book writers, who show that such advances in no way alter the status of the parties with respect to the ownership of the check: Daniel on Negotiable Instruments, sec. 340b; Ice Co. v. State Nat. Bank, 1 McGloin (La.), 181; 2 Bolles on Banking, 530; Morse on Banking (4th ed.), sec. 583.
    If the bank permits its depositor to draw against a check taken as a deposit before payment is ascertained thereon, it does so as a matter of favor and upon the credit of the depositor, and obtains a lien on the check, or its proceeds, for the amount so advanced by it, the title to the check remaining in the depositor: Hazlett v. Commercial Nat. Bank, 132 Pa. 118; Rapp v. National Security Bank, 136 Pa. 426.
    February 26, 1909:
   Opinion by

Porter, J.,

The defendant corporation gave to the Schuylkill Valley Match Company its check, dated December 16, 1904, upon the Southwark National Bank of Philadelphia for the sum of $700, payable to the order of the Schuylkill Valley Match Company. The Schuylkill Valley Match Company was a depositor of the National Bank of Phcenixville and, on December 17, 1904, which was Saturday, it deposited this check, with its general indorsement, with said bank and received credit for the amount thereof in its account, and at the close of business on that day the balance due the depositor, including the $700 check, was $982.49. The Phcenixville Bank sent the check to its Philadelphia correspondent for collection, and on Monday, December 19, 1904, the check was passed through the clearing house; the defendant had notified the Southwark National Bank not to pay, and the check was protested for nonpayment. The plaintiff bank received notice of such protest on Tuesday, December 20. The plaintiff bank had, on December 19, 1904, before receiving notice of the dishonor of the check, paid checks of the match company upon the account to the amount of $381.71, leaving a balance of $600.78 at the close of business on that day, including in the account as a credit of the depositor the $700 for the check in question. If the credit for this $700 check which had been entered in the account of the depositor is to be charged back, then the account on December 19, 1904, was overdrawn to the amount of $99.22, and there is no evidence in this case that this overdraft was ever made good to the bank. The Phcenixville National Bank brought this action upon the check against the maker thereof, who set up as a defense that there had been a failure of consideration, as between the maker and the drawee of the check, and that the plaintiff was not a holder for value. There was a verdict and judgment in favor of the defendant in the court below and the plaintiff appeals.

The plaintiff made out a prima facie case, by the presentation of the check with its indorsement and the certificate of protest for nonpayment; the burden was therefore upon the defendant. The defendant undertook to meet that burden by proving a failure of consideration as between the maker and drawee of the check, and that the plaintiff was not a holder for value. The evidence which is the subject of the first three specifications of error was directly relevant to the facts in dispute, and those specifications are overruled. The evidence produced would have warranted a finding that the consideration for which the check was given had wholly failed and that the plaintiff bank was not a holder of the check in due course and for value, to the full amount thereof; the request of the plaintiff for binding instructions that it was entitled to recover the full amount of the check, with interest, was therefore properly refused, and the fourth specification is dismissed.

The fifth and sixth specifications of error may be considered together. The check had been given in payment for matches bought by Bonsor & Company from the match company, which were to be up to a certain standard. The defendants produced evidence, which, if believed, would certainly have warranted a finding that the matches actually delivered were worthless, and that there had been a failure of consideration. The learned judge of the court below instructed the jury, in effect, that there was but one question in the case, that if they believed there-had been a failure to deliver the matches required by the contract, that the matches actually delivered were not of the qualitf required, their verdict must be for the defendant. Che'charge, in explanation of the position thus taken, contains this language: “The Schuylkill Valley Match Company, being a depositor in the plaintiff bank, and the check in suit having been deposited in due course, the presum$(¿&h of law is that the check was taken for collection, in the absence of a special agreement. There is no proof of any special agreement on the subject, and if you believe there was the failure to deliver up to the standard which they contracted to deliver, that is a good defense in this case.” This eliminated from the case any question of the right of the plaintiff bank, as a holder for value, to recover the amount which they had advanced to the match company upon the faith of the check, which it had deposited in its account.

When a bank credits a customer with the amount of a check, indorsed by him in blank, deposited in his account, the bank does not in the absence of a special agreement from this fact standing alone become a holder of the paper for value; the title to the check remains in the depositor. When such paper is dishonored the bank may charge it back to the depositor, without taking the steps necessary to hold him as an indorser. The relation arising from such a transaction, as between the bank and the depositor, is that the former becomes the agent of the latter for the purpose of collection: Hazlett v. Commercial National Bank, 132 Pa. 118; First National Bank of Clarion v. Gregg, 79 Pa. 384; Rapp v. National Security Bank, 136 Pa. 426; Morris v. First National Bank of Allegheny, 201 Pa. 160. The learned judge of the court below applied this rule in the present case, but in doing so lost sight of another rule applicable to the dealings of banks with their customers and to the rights which they acquire under the securities which come into their possession. When a bank makes advances or gives new credit on the faith of a check or other commercial paper which a customer has deposited for collection and for which he has received credit in his account, it becomes entitled to a lien upon such paper, and the proceeds thereof, for the amount thus advanced: United States Bank v. Macalester, 9 Pa. 475; First National Bank of Clarion v. Gregg, 79 Pa. 384; Logan et al. v. Smith et al., 8 W. N. C. 102; Bank of the Metropolis v. New England Bank, 42 U. S. 234; Davis v. Bowsher, 5 T. R. 488. When the plaintiff bank, on December 19, 1904, paid checks of its depositor, the match company, to an amount which reduced the apparent balance below 8700, it is fair to presume that this extension of credit was based upon the state of its account, which included the very check now in question: Erisman’s Appeal, 1 Pa. Superior Ct. 144. The plaintiff bank clearly had a lien upon the check for the amount thus advanced. We do not deem it necessary to consider what the effect of such a lien upon the rights of the bank, in the check, might be in other jurisdictions, that effect in Pennsylvania is controlled by statute. The Act relating to negotiable instruments, approved May 16, 1901, P. L. 194, sec. 27, provides that: “Where the holder has a lien on the instrument, arising either from contract or by implication of law, he is deemed a holder for value to the extent of his lien,” and sec. 191 thus defines the meaning of the word “holder:” “'Holder’ means the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof.” The uncontradicted evidence in the court below established that the plaintiff bank had made advances on this check to the amount of $99.22, and, if that evidence was believed, it was certainly entitled to recover that amount, with interest. The fifth and sixth specifications of error are sustained.

The judgment is reversed and a new venire awarded.


author: Henderson, J.,

text:
    Luckhurst v. Gimbel Brothers, Incorporated, Appellant.

      Negligence — Restaurant—Defective chair — Evidence—Province of court and jury.

      ' In an action against the proprietor of a public restaurant to recover damages for personal injuries caused by the breaking of a leg of a chair, the case is for the jury where the evidence shows that the chair in question was one of 600 chairs used in the restaurant, that these chairs were daily inspected by two or three men in two hours, that screws in some of the chairs became loose from time to time, and that the chair in question when brought into court showed that several of its screws were missing, and that these screws were used to hold the legs in place, and were necessary to the stability of the chair.
    Argued Oct. 16, 1908.
    Appeal, No. 91, Oct. T., 1908, by defendants, from judgment of C. P. No. 2, Phila. Co., March T., 1904, No. 4,303, on verdict for plaintiffs in case of Allen E. J. Luckhurst and Ada M. Luckhurst, his wife, v. Gimbel Brothers.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. Before WlLTBANK, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for Allen E. J. Luckhurst for $600 and Ada M. Luckhurst for $800.

      Error assigned was in refusing binding instructions for defendant.

      F. B. Bracken, of Loughlin & Bracken, for appellants.
    The mere happening of the accident itself, the only proof offered by plaintiff, did not justify the inference that it resulted from the negligence of defendant, and there was no issue of fact for submission to the jury. The maxim res ipsa loquitur did not apply: Weeks v. McNulty, 101 Tenn. 495 (48 S. W. Repr. 809); Stanley v. Bircher, 78 Mo. 245.
    There was no evidence of negligence: Stearns v. Spinning Co., 184 Pa. 519; Titus v. R. R. Co., 136 Pa. 618; Kepner v. Traction Co., 183 Pa. 24; Rushton v. Allegheny, 192 Pa. 574: Childs v. Crawford County, 176 Pa. 139; Clark v. Foundry Co., 219 Pa. 426; Garnett v. Bridge Co., 98 Fed. Repr. 192; Lanahan v. Turnpike Road Co., 4 Pa. Superior Ct. 382.
    The doctrine res ipsa loquitur, dangerous and uncertain at best, is never to be applied except where it not only supports the conclusion contended for, but also reasonably excludes every other: Alexander v. Water Company, 201 Pa. 252; Lewin v. Pauli, 19 Pa. Superior Ct. 447; Sack v. Ralston, 220 Pa. 216.

      John Wilson, with him W. W. Porter and Maxwell Stevenson, for appellees.
    Thus the following circumstances have been held to raise a presumption of negligence:
    The falling of cinders from a overhead railroad: Lowery v. Ry. Co., 99 N. Y. 158 (1 N. E. Repr. 608).
    The falling of a bolt from an overhead railroad: Volkmar v. Ry. Co., 134 N. Y. 418 (31 N. E. Repr. 870); Hogan v. Ry. Co., 149 N. Y. 23 (43 N. E. Repr. 403); Maher v. Ry. Co., 53 Hun, 506.
    The falling of overhead telegraph wires: Thomas v. Telegraph Co., 100 Mass. 156; Penna. Tel. Co. v. Varnau, 15 Atl. Repr. 624.
    The falling of a barrel from a window: Byrne v. Boadle, 2 H. & C. 722.
    The falling of a bag of coffee: Scott v. Docks Co., 3 H. & C. 596.
    The falling of bales of hay: Dehring v. Comstock, 78 Mich. 153 (43 N. W. Repr. 1049).
    The falling of a building: Mullen v. St. John, 57 N. Y. 567, and Vincett v. Cook, 4 Hun, 318.
    The falling of a scaffold: Flynn v. Gallagher, 52 N. Y. Super. 524.
    The falling of an elevator: Moran v. Wagon Co., 74 Hun, 454.
    The falling of hoisting machinery: Lyons v. Rosenthal, 11 Hun, 46.
    The sudden giving way of a door of a railway carriage: Gee v. Ry. Co., L. R. 8 Q. B. 161.
    The falling of a gang plank between a ship and a wharf: Packet Co. v. Defries, 94 Ill. 598.
    The falling of cross ties from a moving train: Howser v. R. R. Co., 80 Md. 146 (30 Atl. Repr. 906).
    The falling of an iron block from a derrick, caused by the breaking of a rope: Graham v. Badger, 164 Mass. 42 (41 N. E. Repr. 61); Shafer v. Lacock, 168 Pa. 497; Booth v. Dorsey, 208 Pa. 276; Mulhearn v. Roach, 24 Pa. Superior Ct. 483; Fisher v. Ruch, 12 Pa. Superior Ct. 240.
    ■ In the case at bar the fact that the defendants conducted a general retail store and restaurant, constituted an invitation to the public to enter their store for the purpose of transacting business or eating lunch therein; and it therefore became their duty to have the store or restaurant and the appliances and furniture therein free from any weakness or defect that might reasonably be expected to result in bodily injury to their customers. Persons entering their store had a right to assume that they had performed their duty in this regard: Polenske v. Lit Bros., 18 Pa. Superior Ct. 474; Quirk v. Siegel Cooper Co,, 43 App. Div. (N. Y.) 464; Clopp v. Mear, 134 Pa. 203; Reid v. Linck, 206 Pa. 109; Beale on Innkeepers and Hotels, 163; Severy v. Nickerson, 120 Mass. 306; Southcote v. Stanley, 1 H. & N. 247; Stott v. Churchill, 15 N. Y. Misc. 80 (36 N. Y. Supp. 476); Woodruff v. Painter, 150 Pa. 91.
    February 26, 1909:
    The plaintiff having proved all the facts within her power to prove was entitled to go to the jury: R. R. Co. v. Spearen, 47 Pa. 300; Matthews v. R. R. Co., 18 Pa. Superior Ct. 10; Ayres v. Wanamaker, 220 Pa. 313.
    An inference of negligence having arisen, the merit of the defense was a question of fact which the court could not decide, and therefore binding instructions would have been error: R. R. Co. v. Weiss, 87 Pa. 447; McCafferty v. R. R. Co., 193 Pa. 339; Kane v. Philadelphia, 196 Pa. 502; Devlin v. Beacon Light Co:, 198 Pa. 583; Rauch v, Smedley, 208 Pa. 175; Hedricks v. Schuylkill Twp., 16 Pa. Superior Ct. 508; Matthews v. R. R. Co., 18 Pa. Superior Ct. 10; Ackley v. Bradford Twp., 32 Pa. Superior Ct. 487.
   Opinion by

Henderson, J.,

The defendant contends that the maxim, res ipsa loquitur, applies- in this case and that there was no issue of fact for the jury. If the plaintiff’s case rested on the happening of the accident alone it would be necessary to consider and determine the applicability of the principle invoked by the appellant. It is true the plaintiff did not undertake to show the particular defects which caused the chair to give way, but the defendant’s evidence does throw light on that subject, for the chair which caused the accident was brought into court and exhibited to the jury. Its constructon was also described to some extent from which it appears that it was what is known in the trade as a bentwood chair, the legs of which were supported by a circular brace, described by one of the witnesses as a “runaround.”8 Screws were used to hold the legs in place and were necessary to the stability of the chair, as was shown by the evidence of two or three of the'witnesses. It was in the possession of the.defendant or ■its employees from the time of the accident until it was brought into court, at which time several of these screws were missing ■and if they or some of them were not in the chair at the time the ■plaintiff was hurt the accident might be readily accounted for. The defendant offered evidence that they were in place at the time the accident occurred, and one of the witnesses undertook to account for their absence at the time of the trial by stating that the chair had been at the office of the defendant’s counsel and that they were probably lost there. This, of course, was a purely conjectural explanation, and in view of the fact that the defendant had the custody of the chair might not have been at all satisfactory'to the jury. It appeared that screws in some of the chairs in the restaurant became loose from time to time, as a result of which the chairs became “rickety” and were removed for repairs. It was an important fact, therefore, that these screws were missing from the chair in question when it was first brought to the attention of other persons than the defendant’s employees after the accident. The defendant’s evidence was to the effect that each chair was inspected every morning and if found “shaky” it was taken away. As there were about 600 to be examined and the inspection was made by two or three men in two hours the matter of the carefulness of the examination was peculiarly a question for the jury. There was also evidence that of the 600 chairs about 100 were “braced up with wire” to strengthen them. Whether the chair in question was so repaired does not appear from the oral evidence. The credit to be given to the explanations made by the defendant’s witnesses'in view of the circumstances was for the jury, and this evidence taken in connection with the condition and appearance of the chair at the trial could form a basis for the jury’s finding on affirmative proof that the plaintiff’s injury was a result of the defendant’s failure to exercise due care in providing its guest with a substantial chair; and in that case the condition of the chair exhibited would be directly .contradictory of the defendant’s employees who testified that they had examined it before the accident and found it in good order.

■ These considerations answer the appellant’s second proposition that the defendant’s evidence conclusively rebutted any presumption of negligence arising from the mere happening of the accident. The court would not have been warranted in instructing the jury that the defendant had exonerated itself from liability. On the whole case we are- of the opinion that the question of the defendant’s negligence was one of fact for the jury-

The judgment is affirmed.


author: Beaver, J.,

text:
    Philadelphia to use v. Tradesmen’s Trust Company, Appellant.

      Practice, C. P. — Rules of court-^Book accounts — Books of original entries — Affidavit of defense.

    1. Where a rule of court provides that books of entry need not be produced at the trial where the book accounts have been filed and no objections have been made to them by affidavit, the books themselves may be produced at the trial, although a copy of the book accounts has been filed without objection by affidavit.
    2. Where entries in books have been made from cartage slips or delivery tickets at or about the time the slips were signed, the books will be considered the books of original entries.

      Principal and surety — Construction contract — Parties.
    3. The words "labor furnished to the job,” in a construction contract, include a charge for furnishing a horse and cart for cartage, and such a charge may be enforced against the surety of the contractor.

      Principal and surety — Appropriation of payments.

    4. In an action upon a bond of contractors, the plaintiff may credit the price of articles sold to him by the contractors upon an account between them which existed prior to the sureties’ liability on the bond, if it appears that the contractors had not specifically appropriated the items in question.
    5. Where there are items of debt and credit in a running account, and the intention of the debtor at the time of making payments to specifically apply them, is not shown either in words, acts or circumstances, they will be appropriated to the discharge of the items first due in the order of account.
    Argued Oct. 16, 1908.
    Appeal, No. 101, Oct. T., 1908, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 1,043, on verdict for plaintiff in case of City of Philadelphia to use of Charles J. Thompson v. Tradesmen’s Trust Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.

      Assumpsit on a contractor’s bonds.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were (1, 2) rulings on evidence referred to in the opinion of the Superior Court, quoting the bill of exceptions and various exceptions.
    Verdict and judgment for plaintiff for $264.54. Defendant appealed.

      W. W. Porter, of Porter, Foulkrod & McCullagh, for appellant.
    The liability of a surety, under bonds of this character, has been frequently before the courts of this state and also the federal courts, and the test, as to whether the material or labor furnished and claimed for is covered by the terms of the bond, has been declared by this court to be the same as the test applied by the federal courts: Philadelphia v. Malone, 214 Pa. 90; United States v. Kimpland, 93 Fed. Repr. 403; United States v. Morgan, 111 Fed. Repr. 474; Thos. Laughlin Co. v. American Surety Co. of New York, 114 Fed. Repr. 627.
    The use plaintiff’s ledger, into which a bookkeeper copies the entries for cart hire from cartage slips signed by the party to be charged is not sufficient proof of use plaintiff’s claim: Shoemaker v. Kellogg, 11 Pa. 310; Nichols v. Haynes, 78 Pa. 174; Stuckslager v. Neel, 123 Pa. 53; McKnight v. Newell, 207 Pa. 562.
    Where goods delivered to the operation and paid for by the contractor are redelivered to the use plaintiff to be credited on account of the contractor’s indebtedness, the use plaintiff cannot credit their value against the contractor’s earlier indebtedness to the prejudice of the surety.

      Francis S. Cantrell, Jr., with him Francis S. Cantrell, for appellee.
    In a suit against the surety on a bond given under the ordinance of Philadelphia of March 30, 1896, a claim for cartage is recoverable: Bowditch v. Gourley, 24 Pa. Superior Ct. 342.
    The appropriation was proper: Woods v. Sherman, 71 Pa. 100; Pardee v. Markle, 111 Pa. 548.

      February 26, 1909:
   Opinion by

Beaver, J.,

The defendant company was surety for Wallace & Company, contractors for the construction for the plaintiff of “an extension of the main intercepting sewer from its then terminus at Nixon’s Mill northeast of Fountain Street on piivate property to Shawmont Avenue, thence north upon Shawmont Avenue to Eva Street.” The contract was evidenced by two separate agreements with the city of Philadelphia, one dated November 17, 1902, and the other December 9, 1903. It is admitted that the defendants were surety for the contractor only under the supplemental contract last above mentioned, the bond of suretyship being of the same date.

The use plaintiff bases his claim for work and labor and materials furnished by him to the contractors under the supplemental contract aforementioned, as contained in a copy of his book of original entries filed with his statement. It was admitted at the trial that the work and labor done and materials furnished prior to March 3, 1904, being under the first contract, should be deducted from the account, the defendant not being liable therefor. It was also admitted that the items for bituminous coal furnished were not properly chargeable against the defendant.

Several questions are raised by the assignments of error which may be best considered and disposed of by taking them in their order.

The first two relate to the admission of the plaintiff’s book entries, as contained in the following offer: “Mr. Cantrell: I next offer in evidence the copy of the book entries attached to the statement of claim beginning on March 3, 1904, with the ex-, ception of any cartage which is there noted, the cartage being questioned in the affidavit of defense. Objected to, unless the book account is proved. Objection overruled and book account admitted in evidence. Exception allowed for defendant.”

As we understand the argument of the appellant, the rules of the court in which the case was tried provide that: “In actions on book accounts a copy,of which, supported by an affidavit of the truth thereof, shall have been filed, it shall not be necessary to produce the books at the trial, unless the defendant in the affidavit of defense, or other affidavit filed thereafter, allege that the account or copy is incorrect and demand the production of the books at the trial; otherwise said copy shall be admitted as evidence without further proof.” The plaintiff’s book account having been fully set. forth and no exception made thereto, and no demand for the books themselves having been made in the affidavit of defense, we think the account as filed proved itself, with the exception of the items for cartage, which were expressly objected to in the affidavit. No wrong, therefore, was done the defendant by admitting the book of original entries which need not have been produced, the copy of the account, as filed with the statement, being all that was necessary.

The second assignment, however, denies that the book as produced was one of original entries, for the purpose of proving the cartage. The entries in the book produced were made from cartage slips or delivery tickets. The entries, as we understand it, were made directly from these slips at or about the time they were signed. The court ruled that the book was one of original entries and admitted it as such under exception. We think this action is justified by Hoover v. Gehr, 62 Pa. 136, in which it was held, Mr. Justice Sharswood delivering the opinion, in which many authorities are cited, that: “It is not a valid objection to a book as one of original entries that it is kept in ledger form.” This was a case in which the accounts were transcribed from pass books into the larger book and in which the admission of the book by the court below was held to be proper.

The third, fourth, fifth and sixth assignments relate to the subject of the charge for cartage, the court below holding that the furnishing of a horse and cart was “labor furnished to the job,” and submitting to the jury the amount or number of days when the horse and cart were employed about the job. This is excepted to by the appellant, upon the authority of Philadelphia v. Malone, 214 Pa. 90, in which it was held that: “A subcontractor is not entitled to recover against the surety on a municipal contractor’s bond for coal furnished for generating steam to run a steam shovel and a locomotive used in excavating and removing dirt in constructing a reservoir, where it appears that the bond was conditioned that the contractors ' shall and will promptly pay all sums of money which may be due for labor and materials furnished and supplied, or performed, in and about the said work,’ and an inspection of the contract and specifications discloses nothing whatever which could be construed to include coal furnished for running a steam shovel or locomotive.” If the charge here had been for food and forage for the horses hitched to the cart, it would be similar to the case upon which the appellant relies. We think the court was right in holding that the horse and cart were just as much labor as if the work had been done by a man with a wheelbarrow. In fact, the surety doubtless benefited by the employment of such labor rather than by human labor. It has been held by the federal courts, which involves the same principle, that board furnished to a contractor’s'workmen is not covered by the bond, United States v. Kimpland, 93 Fed. Repr. 403, and it was held in the present case and admitted by the plaintiff that the .coal contained in the account upon which the suit was brought was not a proper item of charge, and it was stricken out. The assignments of error, relating to this subject, both in the admission of the testimony and the instructions to the jury are, therefore, not sustained.

It appeared in the trial that the plaintiff credited the price of a horse and some brick sold to him by the contractors, upon an account between them which existed prior to the defendant’s liability on its bond. The court allowed this credit and instructed the jury that the credit had been properly entered, although at the time of its entry the defendant was liable on its bond for the acts of the contractors within the terms of their contract. This we think was clearly right, under all the authorities. In Woods v. Sherman, 71 Pa. 100, as stated in the syllabus: “Davis was indebted to Sherman for printing; he refused to do more without a guaranty. Woods agreed to guaranty to Sherman the contract made by him with Davis to the amount of $10,000. Afterwards, Davis paid money to Sherman, without directing any appropriation. Held, that Sherman might apply it to the debt due before the guaranty.” So in Pardee v. Markle, 111 Pa. 548: “Where there are items of debt and credit in a running account, and the intention of the debtor at the time of making the payments to specifically apply them, is not shown either by words, acts or circumstances, they will be appropriated to the discharge of the items first due in the order of the account.” It was not shown that the contractor had specifically appropriated the items in question to his liability to the use plaintiff under the supplemental contract, which was covered by the bond of the defendant. He was, therefore, justified, as we view the transaction, in crediting these items to the earlier indebtedness of the contractor and the court below was justified in so holding. The seventh assignment of error is, therefore, overruled.

The last assignment of error relates to a clause in the charge of the court below, in which it is claimed that the trial judge overstated the amount of the basis of the plaintiff’s claim as follows: “Therefore, if I understand it correctly, that amount of $64.15 is to be deducted from the $109.62 or from the $119.47, that is immaterial, but taking it from the $109.62, leaving $45.47, which added to the $119.47, would leave the defendant’s claim, as I make it, $164.94. I may be wrong as to the figures in hastily running over them. Assuming that I am correct, you will take the law from me. I mean in regard to assuming that is correct, you have the basis of the plaintiff’s claim, a sum of $349, as per his book account filed. Or, rather, that is the basis of the plaintiff’s claim here for you.” As a matter of fact, the basis of the plaintiff’s claim, as set forth in the copy of his book account attached to the statement, was $379.09, which was reduced by the charges for which it was conceded the defendant was not liable for the items of bituminous coal which were excluded by agreement and it would, therefore, have been perfectly correct for the court to have named the basis of the plaintiff’s claim as the amount contained in the copy of his book of original entries. He placed the basis of the claim, however, at $349, being less than the aggregate claim as contained in the plaintiff’s statement. The error, therefore, if there was any, was in favor of the defendant, but the court specially guarded his statement by the cautionary instructions to the jury that he might be wrong as to the figures in hastily running over them and carefully instructing the jury that in all questions of fact they were to determine and were bound only to take the law from the court. He was also careful at the end of the charge to say: “ In this case I have taken a less time perhaps than the full explanation desired, and I shall ask counsel, if they desire any further instructions on any point, or any further reference to the testimony, that they will call my attention to it.” That the jury understood that questions of fact were purely for them is shown by the verdict which, as we understand it, was the amount of the plaintiff’s provable claim, with interest.

An examination of all the assignments of error, as tried by the testimony and the charge of the court, and a full consideration of the appellant’s argument, fail to convince us that the court below erred in any way in the trial, so far as indicated in the assignments of error. None of them is, therefore, sustained.

Judgment affirmed.


text:
    Commonwealth v. Havrilla, Appellant.

      Constitutional law — Public officers — Special district attorney — Act of May 2, 1905, P. L. 351.
    1. The Act of May 2, 1905, P. L. 351, authorizing the attorney general to appoint a special district attorney under certain circumstances is not unconstitutional as depriving the district attorney, an elective constitutional officer, of his power. While the legislature may not abolish the office of district attorney, it may regulate the method of its administration.

      Election law — Neglect to deliver returns to prothonotary — Indictment— Surplusage — Acts of July 2, 1839, P. L. 519, January 30, 1874, P. L. 31, and June 10, 1893, P. L. 419 — Criminal law — Binding instructions.

    2. Where an election officer is charged with willful fraud in not delivering election returns to the prothonotary, and the jury finds him guilty of neglect of duty in not delivering the said returns, the words “willful fraud,” which are appropriate to an indictment under the Act of July 2, 1839, P. L. 519, may be stricken out as surplusage, and the indictment will then stand good under the Act of January 30, 1874, P. L. 31.

      3. All unnecessary words in an indictment may be rejected as surplusage if the indictment will be good after they are stricken out.
    4. On the trial of an indictment against an election officer for neglect to deliver election returns to the prothonotary, it is reversible error for the court to give binding instructions to the jury to convict the prisoner.
    5. In such a case the court may instruct the jury that the evidence is not sufficient to warrant a conviction and may set aside a verdict found in opposition to such instruction, but cannot direct a verdict of guilty, because the defendant cannot be found guilty but on the judgment of his peers. The question of guilt often involves an intermingling of law and fact, and the whole case is given to the jury. The trial of such a case is by a jury of the country, not by the court. The burden of proof does not shift in a criminal case; the jury must be satisfied beyond reasonable doubt of the guilt of the accused before a conviction can be lawfully had, and it makes no difference how convincing to the court the evidence of witnesses may be the credibility of the evidence is for the jury.
    Argued Oct. 19, 1908.
    Appeal, No. 18, March T., 1908, by defendant, from judgment of Q. S. Luzerne Co., Jan. T., 1907, No. 89, on verdict of guilty in case of Commonwealth v. John Havrilla.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Indictment for not delivering election returns to the prothonotary. Before Staples, P. J.
    The opinion of the Superior Court states the case.

      Errors assigned were (1) in refusing to quash the indictment; (4) in giving binding instructions to convict.

      John M. Garman, with him B. R. Jones, Frank A. McGuigan and James H. Shea, for appellant.
    The Act of May 2, 1905, P. L. 351, is unconstitutional in that it deprives the district attorney, an elective officer, of his power, without due process of the law: Houseman v. Com., 100 Pa. 222; Com. v. Gamble, 62 Pa. 343; Lloyd v. Smith, 176 Pa. 213.
    The court erred in directing the jury to find the defendant guilty: Com. v. Magee, 10 Phila. 201; Kilpatrick v. Com., 31 Pa. 198; Johnston v. Com., 85 Pa. 54; Nicholson v. Com., 91 Pa. 390; Kane v. Com., 89 Pa. 522; McClain v. Com., 110 Pa. 263; Com. v. Orr, 138 Pa. 276; Com. v. McManus, 143 Pa. 64; Com. v. Goldberg, 4 Pa. Superior Ct. 142; Com. v. Warner, 13 Pa. Superior Ct. 461.
    February 26, 1909:
    The court erred in directing a verdict of guilty of an offense not charged in the indictment: Brooks v. Ry. Co., 158 Ind. 62 (62 N. E. Repr. 694); Com. v. Gable, 7 S. & R. 423.

      John H. Williams, with him John McGahren, for appellee.
    The offense was sufficiently charged: Respublica v. Roberts, 1 Yeates, 6; Dinkey v. Com., 17 Pa. 126; Hunter v. Com., 79 Pa. 503; Gorman v. Com. 124 Pa. 536; Com. v. Parker, 146 Pa. 343.
    Binding instructions were proper: Com. v. Anthes, 71 Mass. 185; Com. v. McManus, 143 Pa. 64; Com. v. Goldberg, 4 Pa. Superior Ct. 142; Tadrick’s App., 1 Pa. Superior Ct. 555; Com. v. Gamble, 36 Pa. Superior Ct. 146.
    The Act of May 2, 1905, P. L. 351, is constitutional: Com. v. McCombs, 56 Pa. 436; Com. v. McHale, 97 Pa. 397.
   Opinion by

Henderson, J.,

The first complaint presented in the appeal is that the court erred in not quashing the indictment. We do not find in the record any motion to quash in this case. It is said, however, in the argument of the appellant’s counsel, that a motion was made in another case involving the same question, which motion was to apply in all the cases growing out of the particular election; but no agreement to that effect is exhibited in the record, and the first assignment of error might well be dismissed for that reason. As no objection is made, however, by the counsel for the commonwealth on that ground we may assume that they had the same understanding which the appellant’s counsel had with reference to the alleged agreement. The specific objection against the indictment was that it was signed by John McGahren, Esq., special district attorney, appointed by the attorney general under the Act of May 2, 1905, P. L. 351, and that this act is unconstitutional. Under the provisions of this statute the president judge of any district in which any criminal proceeding in the court of oyer and terminer or quarter sessions is pending may apply in writing to the attorney general, setting forth that in his judgment the case is a proper one for the intervention of that officer; whereupon, the attorney general is empowered to retain and employ such attorney or attorneys as he may deem necessary to properly represent the commonwealth in the proceeding and to prosecute any offenders or alleged offenders against the law. Any attorney so employed is authorized by the act to supersede the district attorney of the county where the case has arisen and to prepare and bring the same to trial. As preliminary to the discharge of his duty he is required to take the oath of office taken by district attorneys and is clothed with all the powers and is subject to all the liabilities imposed upon district attorneys by law. It is claimed that as the district attorney is a constitutional officer this act deprives him of his power. The argument presents the distinction between elected and appointed officers and contends that elective officers can only be removed by the governor for reasonable cause after due notice and full hearing on the address of two-thirds of the senate, and that because the district attorney is recognized in the constitution as a county officer his duties may not be controlled by the legislature. This view of the case overlooks the fact, however, that the constitution does not prescribe the duties of the district attorney. The legislature may not abolish the office, but it may regulate the method of its administration. Cases may arise where by reason of personal interest or relationship or other sufficient consideration it would be highly improper for the district attorney to act. This has. been taken notice of by the legislature and provision made for conducting the prosecution in such cases. This does not violate any right of the district attorney, nor impinge against any provision of the constitution. Such was the decision in Commonwealth v. McHale, 97 Pa. 397.

It is further objected that the court erred in instructing the jury that they might return a verdict of guilty of neglect of duty in not delivering to the prothonotary of the court of common pleas of Luzerne county the election return of the district in which the defendant was the judge of elections. The indictment contained thirteen counts, on all of which, under the instruction of the court, the defendant was acquitted; but the jury was instructed that the defendant might be convicted of neglect of duty. The seventh count in the indictment charged the defendant with willful fraud in the discharge of his duty as judge of election, in that he did not deliver the election returns to the prothonotary of the court of common pleas of the county, but did deliver them to a certain person, to the grand jurors unknown, who was not the prothonotary of the county, nor a person authorized and empowered by law to receive or take into his possession the.said returns. The one hundred and second section of the Act of July 2,1839, P. L. 519, provides that if any inspector, judge or clerk of elections shall be convicted of any willful fraud in the discharge of his duties he shall undergo imprisonment, etc. It was apparently under this section that the indictment was drawn. The facts, however, as construed by the court, brought the defendant under the prohibition of the thirty-third section of the Act of June 10, 1893, P. L. 419, which declares that any public officer upon whom a duty is imposed by this act who shall negligently or willfully fail to perform such duty, or who shall negligently or willfully perform it in such a way as to hinder the object of this act, or who shall negligently or willfully violate any of the provisions thereof, shall be guilty of a misdemeanor. The twenty-eighth section of the same statute directs that: “A full return shall be made in the manner now provided by law of all votes cast,” etc. The manner of making the return to which the clause just quoted .has reference is provided for in the thirteenth section of the Act of January 30, 1874, P. L. 31, whereby it is made the duty of judges of election to deliver the returns of the election to the prothonotary of the court of common pleas of the county within the time therein stated. The nineteenth section of the latter act imposes a penalty of 1100 upon any election officer who shall, without reasonable or legal cause, neglect or refuse to perform any duty enjoined by the act. The act of 1839 did not require the judge of elections to deliver the returns to the prothonotary, and the offense charged against the defendant was not punishable under that act. It is charged in the seventh count of the indictment that the defendant did not deliver the returns to the prothonotary and this, we think, is a good count under the act of 1874. It is a well-established rule of criminal pleading that all unnecessary words may be rejected as surplus-age if the indictment would be good after they are stricken out: 1 Bishop’s Cr. Law, sec. 819; Wharton’s Cr. Evidence (9th ed.), sec. 138; 2 Russell on Crimes, 746; Jillard v. Com., 26 Pá. 169. The averment that the defendant was guilty of willful fraud may be discharged from the count without destroying it, for a distinct offense, to wit, the neglect of the defendant to make the return to the prothonotary as required by the act of 1874, is sufficiently set forth. The words rejected are words of aggravation and in no way essential to the integrity of the count. The conviction was, therefore, in fact, of an offense contained in the seventh count.

The second, third and fourth assignments apply to the direction of the court to find the defendant guilty. The language excepted to is at the conclusion of the charge and is in the form of a binding direction to the jury to render a verdict of neglect of duty in not delivering to the prothonotary the sealed envelope containing the returns. In so charging the jury the learned judge exceeded the discretion allowed a trial judge in expressing an opinion on the merits of the case. It is well settled in this commonwealth that a judge may express his opinion regarding the evidence, and in some cases it may be his duty so to do, but this should be so done as not to withdraw the evidence from the consideration and decision of the jury; but there is a substantial agreement in the cases that it is error to give binding instruction to the jury to convict. Even where the case turns on a question of law the province of the court is to advise the jury what the law is, leaving to that body the disposal of the whole case. It is the duty of the jury to decide the case according to the law and the evidence, and they should take the court’s statement of the law as the best evidence of what the law is, but a conviction or acquittal must be by the jury. The law was plainly stated by Mr. Justice Harlan in the opinion of the court in Sparf & Hansen v. United States, 156 U. S. 51. It was there held that with few exceptions the rules which obtain in civil cases in relation to the authority of the court to instruct the jury upon all matters of law arising upon the issues to be tried are applicable in the trial of criminal cases. The most important of those exceptions is that it is not competent for the court in a criminal case to instruct the jury peremptorily to find the accused guilty of the offense charged or of any criminal offense less than that charged. To the same effect is United States v. Taylor, 3 McCrary, 500. Many cases in this state deny to the court authority to direct a verdict of guilty in a criminal case: Kilpatrick v. Com., 31 Pa. 198; Johnston v. Com., 85 Pa. 54; Kane v. Com., 89 Pa. 522; Nicholson v. Com., 91 Pa. 390; McClain v. Com., 110 Pa. 263; Com. v. Orr, 138 Pa. 276; Com. v. McManus, 143 Pa. 64; Com. v. Church, 17 Pa. Superior Ct. 39; Com. v. Stanley, 19 Pa. Superior Ct. 58; Com. v. Gamble, 36 Pa. Superior Ct. 146.

The court may instruct .the jury that the evidence is not sufficient to warrant a conviction and may set aside a verdict found in opposition to such instruction, but cannot direct a verdict of guilty, because the defendant cannot be found guilty but on the judgment of his peers. The question of guilt often involves an intermingling of law and fact, and the whole case is given to the jury. The trial of such a case is by a jury of the country, not by the court. The burden of proof does not shift in a criminal case; the jury must be satisfied beyond reasonable doubt of the guilt of the accused before a conviction can be lawfully had, and it makes no difference how convincing to the court the evidence of witnesses may be, the credibility of the evidence is for the jury. Questions of fact were involved in the charge against the defendant, one of which was whether he delivered the returns to the prothonotary or to some person authorized by law to receive them; and upon these questions he had a right to the judgment of the jury uncontrolled by the binding direction of the court. The second, third and fourth assignments are sustained.

The judgment is reversed and a new venire awarded.


author: Rice, P. J.,

text:
    Pulaski Avenue.

      Road law — Vacation of street — Statute of limitations — Estoppel.
    Where the court of common pleas has entered an order quashing a petition for the appointment of viewers to assess damages for the vacation of a street, and such order is not appealed from, property owners, not petitioners, represented by counsel in the proceedings, cannot after the expiration of thirteen years from the date of the order petition the court for the appointment of viewers, because the Supreme Court in another proceeding between different parties had declared the law in an exactly contrary sense to that upon which the order dismissing the original petition was based. In such a case no estoppel arises against the city because the order dismissing the original petition was made on the city’s motion, it not appearing from the record what part the petitioners took in the original proceeding.
    Argued Oct. 16, 1908.
    Appeal, No. 126, Oct. T., 1908, by Henry R. and Walter Hatfield, from order of Q. S. Philadelphia Co., April T., 1908, Minute Book 8, page 180, quashing a petition for the appointment of viewers in the Matter of the Vacation of Pulaski Avenue.
    Before Rice, P. J., Porter, Henderson, Morrison and Orlady, JJ.
    Affirmed.
    Motion to quash petition for appointment of viewers.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in quashing the petition.

      W. W. Porter, of Porter, Foulkrod & McCullagh, for appellants.
    If it be contended that the statute of limitations has been sufficiently pleaded by the city by some indirect inference from the averments contained in the answer, nevertheless the rights of the parties to this proceeding are defined by the judgment of the court of common pleas entered in 1895, which has conclusively determined that the right of action of these appellants accrued upon the actual vacation of Pulaski avenue, which occurred within six years from the presentation of this petition: Peterson v. Lothrop, 34 Pa. 223; Pulaski Avenue, 220 Pa. 276; Pulaski Avenue, 5 Pa. Dist. Rep. 1.
    February 26, 1909:
    The city of Philadelphia is estopped by the judgment of the court of common pleas No. 1, entered in 1895, on the city’s own motion, from pleading the statute of limitations in bar of the right of recovery of these appellants: Bailey v. Bailey, 44 Pa. 274; McQueen’s App., 104 Pa. 595; Armstrong v. Levan, 109 Pa. 177; Wills v. Kane, 2 Grant, 60.

      James Alcorn, assistant city solicitor; with him William Gray and J. Howard Gendell, city solicitor, for appellee.
    It would seem that the status of all claims arising out of the vacation of Pulaski avenue had been finally fixed by the decision of this court in In re Pulaski Avenue, 33 Pa. Superior Ct. 108.
    The present case is very much like the case of Upsal St., 22 Pa. Superior Ct. 150. See also Old Tacony Road, 32 Pa. Superior Ct. 444.
   Opinion by

Rice, P. J.,

For a history of the proceedings relative to this matter which preceded the present application we refer to the opinion of Mr. Justice Mestrezat in Pulaski Avenue, 220 Pa. 276, and the opinion of our Brother Henderson in Pulaski Avenue, 33 Pa. Superior Ct. 108.

The appellant’s petition for the appointment of viewers to assess their damages which is now under consideration was presented on April 3, 1908. This was nearly fifteen years after the part of the street in question had been struck from the city plan pursuant to the ordinance approved April 7, 1893. The city moved to quash the petition for the reasons set forth in the answer.” The motion and the answer considered together preclude doubt that the facts alleged in the latter, in which was included the fact of lapse of time, were relied on by the city as barring the petitioners’ claim. This was a sufficient pleading of the statute of limitation to warrant the court in dismissing the petition, if under the admitted or undisputed facts the claim was barred.

It clearly was barred (see Butler St., 25 Pa. Superior Ct. 357), unless the order of the common pleas entered in 1895 had the effect of suspending the operation of the statute until the whole of the part of the street vacated was physically closed to public travel. We cannot agree that it had that effect. To hold that it had would seem to be in conflict with the general principle that the conclusive effect of a judicial design cannot be extended by argument or implication to matter not actually heard and determined: Schwan v. Kelly, 173 Pa. 65. The court did not attempt to decide what would be the rights and obligations of the parties when the property owners should actually close the street. The order was based on two grounds: first, that property owners had no right to recover damages for the mere striking a street off the public plan; second, that in Philadelphia the court of common pleas had no jurisdiction of a proceeding to assess damage for the vacation of a street. Speaking of the order Justice Mestkezat said in the case above cited: “The order was in the nature of a decree or judgment adjudicating the rights of the present appellants” (who are the appellants in this case) “and other abutting property owners to have damages assessed for alleged injuries sustained by reason of the vacation of Pulaski avenue. It was final and was made in a proceeding in which the court had jurisdiction of the persons and the subject-matter. The order w'as conclusive against the rights of the parties to maintain an action for damages at that time. If erroneous the order was not void, but simply voidable, and the aggrieved party had the right to appeal. This is a statutory right and if any of the interested parties were aggrieved by the order, an appeal could have been taken and the error corrected by the appellate court.” Further on in his opinion, speaking of the same order, he said: “The order .... was not excepted to or appealed from within the statutory period, and is as binding and conclusive as if an appeal had been taken and the order had been affirmed by this court. The decision, therefore, is the law of the case as applied to that order and neither party can now assail or controvert it.” The appellants take this to mean that this adjudication of the common pleas, though shown by subsequent decisions of the Supreme Court to be erroneous, established the right of these appellants to proceed for the assessment of damages at any time within six years after the street was actually closed to public travel; that that is the law of the case, notwithstanding the general rule of law applicable to the vacation of streets in Philadelphia is that the proceeding must be begun within six years after the street is struck from the public plan. We do not so interpret the opinion, and that the Supreme Court did not intend that meaning to be taken from it is shown quite clearly, we think,- by the following concluding remarks: “Again, it appears that the decision of the court upon which the appellants rely to convict the lower court of error in this case were rendered in the early part of 1900, and, therefore, more than a year before the expiration of the six years within which they were required to institute proceedings to have their damages assessed. The position, therefore, which the appellants now occupy certainly cannot commend itself to any court. There should be an end to litigation and courts cannot look with favor upon proceedings instituted by parties who, as here, give no consideration to the limitations within which the statute provides they shall assert their rights.” If this is not absolutely inconsistent with, it certainly does not support, the contention, that although the appellants had no right after that lapse of time to have the proceeding in the common pleas reinstated so that they could have their damages assessed therein, they could nevertheless have them assessed in a new proceeding of the same kind instituted in another court. The reasoning of the opinion taken as a whole leads to the conclusion that the remedy of parties aggrieved by the erroneous decision of the common pleas (which, as we have seen, was simply that abutting property owners had no right to recover damages for the mere striking a street off the public plan) was by motion to rescind the order within the term or by appeal therefrom within the statutory period allowed for appeals. We regard the decision rendered on the appeal of Emil Walsh Manufacturing Company (Pulaski Avenue, 33 Pa. Superior Ct. 108), as ruling the question of the effect of the order of the common pleas of 1895 against the appellants’ present contention, and have not felt called upon to go into a discussion of the question again further than to show that the later decision of the Supreme Court does not require a different ruling.

It is argued that the principle of estoppel applies, because the order of July, 1895, was made on the city’s motion, and that so far as this question is concerned the facts of this case distinguish it from the case of Emil Walsh Manufacturing Company, above referred to. It is true the,present petition alleges that the appellants were notified of the first meeting of the viewers appointed in the proceeding in the common pleas, and pursuant thereto appeared as parties. It is not alleged that their appearance was entered of record, but it is stated in their brief of argument, and not denied by the appellee, that their counsel were present at the argument of the motion to quash that proceeding. But whether they claimed damages, and whether they sided with the petitioner or the city upon the hearing of that motion, are matters of fact that are not shown by the record, nor by the present petition. It is impossible to raise an estoppel against the city in favor of the appellants from these facts.

The order is affirmed.


text:
    Commonwealth v. Scott, Appellant.

      Criminal law — Charge—Weight of evidence.

    1. In a criminal case the judge may in a proper way express an opinion as to the evidence, and may indicate to the jury its weight, provided the jury is permitted to render a verdict uncontrolled by the judge’s opinion.

      Election law — Election officers — Failure to deliver returns — Penalty.
    2. On the trial of an indictment for failure to deliver an election return to the prothonotary, it is not error to refuse to admit in evidence a copy of the election laws sent by the county commissioners to the board of which the defendant was judge, where there is no offer to show that the defendant read the copy, or that he acted on the information alleged to have been contained in it to the effect that the returns should be made to the prothonotary's office.

      3. In such a case the court cannot be convicted of error in failing to charge that the defendant could not be convicted of neglect of duty unless he failed to make the return without any legal or reasonable cause, where no request for such instruction was made in the court below.
    4. The legal or reasonable cause which will excuse an election officer from the performance of his duty as required by the Act of January 30, 1874, P. L. 31, is a matter of defense, and makes the question one of evidence, and if there is a conviction, the appellate court will assume that there was no evidence of any such cause.
    5. An election officer convicted under the Act of January 30, 1874, P. L. 31, of neglecting to deliver an election return to the prothonotary, may be sentenced under the provisions of sec. 33 of the Act of June 10, 1893, P. L. 419.
    Argued Oct. 19, 1908.
    Appeal, No. 17, March T., 1909, by defendant, from judgment of Q. S. Luzerne Co., Jan. T., 1907, No. 58, on verdict of guilty in case of Commonwealth v. John Scott.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for failure to deliver election returns to the prothonotary. Before Staples, P. J.
    The opinion of the Superior Court states the case.

      Errors assigned were as follows:
    1. The court erred in refusing to quash the indictment'.
    2. The court erred in charging the jury as follows: “We say to you that under all the testimony in this case it is the opinion of the court that this defendant did not exercise such care and caution as he ought to have done in the premises, and that he, therefore, is guilty of neglect of duty. The question, however, we leave to you, but see no reason why you should not, under all the facts and beyond a reasonable doubt, find the same as the court.” [3]
    3. The court erred in charging the jury as follows; “We say further to you, gentlemen óf the jury, that even if you should find the defendant not guilty of the direct charge which is made in the fifteenth count of the indictment, under the law a return judge, or a judge of election who neglects any duty. required by the act of assembly may be convicted, under this count, of neglect of duty, and the neglect of duty in this case would be the not delivering the triplicate return to the prothonotary as required by law.”
    February 26, 1909:

      5. The court erred in refusing to admit in evidence a copy of the election law sent by the county commissioners to the election board, of which the defendant was a judge, and in which law it was stated that the returns should be made to the prothonotary’s office.
    6. The court erred in failing to instruct the jury that the defendant could not be convicted of neglect in duty in failing to make his return to the prothonotary unless he failed to make said return to the prothonotary without any legal or reasonable cause.
    7. The court erred in imposing a penalty other than the maximum fixed by the penal section of the act of 1874.

      John M. Garman, with him B. R. Jones, Frank A. McGuigan and James H. Shea, for appellant.
    No argument nor printed brief for appellee.
   Opinion by

Henderson, J.,

This case was argued with Commonwealth v. John Havrilla, ante, p. 292, and arises out of a similar state of facts. The decision in the latter case disposes of the first assignment in this case.

The second assignment brings into question a part of the charge in which the court expressed the opinion that under the evidence the defendant was guilty of neglect of duty. There was no error in this. It has been frequently held that the judge may indicate to the jury the weight of the evidence, provided the jury is permitted to render a verdict uncontrolled by his opinion. The charge shows that the question was fully committed to the jury and there is no ground of complaint on this account.

The subject of the third assignment of error was considered and disposed of in the opinion in Havrilla’s case above referred to, and reference is made thereto for our opinion on the charge of the court with regard to the form of the verdict.

The fifth assignment relates to the refusal of the court to admit in evidence a copy of the election law sent by the county commissioners to the election board of which the defendant was judge, in which copy it was stated as alleged that the returns should be made to the prothonotary’s office. There was not any offer, however, to show that the defendant read the copy so sent nor that he acted on the information obtained from it. The court was not in error, therefore, in excluding the evidence.

There was no request for the instruction set forth in the sixth assignment, and the court should not be convicted of error in omitting to give it. Moreover, the legal or reasonable cause which will excuse an election officer from the performance of his duty as required by the act of 1874 is a matter of defense and makes the question one of evidence, and as the jury found the defendant guilty we must assume that there was no evidence of any such cause.

We are not persuaded that the court was in error in imposing a penalty under the thirty-third section of the Act of June 10, 1893, P. L. 419. The twenty-eighth section of that act establishes a method of counting the ballots, and declares that “ a full return shall be made in the manner now provided by law of all votes cast and the total vote as soon as counted shall be publicly announced.” The manner of making the return to which this provision relates is set forth in the thirteenth section of the Act of January 30, 1874, P. L. 31. The act of 1893 imposes a duty which is defined by the act of 1874. The nineteenth section of the latter act provides a penalty to be imposed upon any election officer who shall neglect or refuse to perform any duty enjoined by that act without reasonable or legal cause. The penalty imposed is $100. The provision of the act of 1893 is upon the same subject, as will be observed, and declares that for negligent or willful failure to perform any duty imposed by that act any public officer shall be guilty of a misdemeanor and upon conviction shall be sentenced to pay a fine not exceeding $1,000, or to undergo an imprisonment for not more than one year, or both, at the discretion of the court. As this act imposes the duty upon the election officers of making a return the negligent omission so to do becomes a misdemeanor, punishable as above quoted. It is not essential that the manner in which the return is to be made should be set forth at length in the statute. If it is sufficiently declared in the act of 1874, to which reference is made, the offense may be punished under the act of 1893. The penalties for neglect of duty in the two statutes are different, and we are of the opinion that the penalty provided in the act of 1893 applies to the charge of neglect of duty in making an election return.

The judgment is affirmed.