text:
    The City of Philadelphia, Trustee under the Will of Stephen Girard, deceased, v. Ernst Hood, Appellant.

      Ejectment — Due effect to judgment — Act of 1834.
    The manifest purpose of the act of February 1, 1834, P. L. 26, was to give due effect to a judgment in ejectment by protecting the possession given under it to the plaintiff from subsequent intrusion by the defendant or claimants under him, in disregard of the judgment, for a period of three years from the return day of the preceding writ.

      Ejectment — Proceedings under act of 1834 — Pluries writ of h. f. p.— Practice, G. P.

    Proceedings to enforce judgment under the act of 1834, are in.accord with good practice, where a petition is presented, notice served on defendant and answer filed by him; depositions taken in pursuance of a rule after due notice.
    Where these depositions show title in plaintiff, the ejectment of defendant under a former writ, together with his re-entry and forcible retention of the premises, a rule allowing a pluries writ of h. f. p. was properly made absolute.
    The proceeding is in execution of a judgment aiding in the fulfillment of the court’s decree. The title to land cannot be tested in this proceeding, and none but the defendant in the ejectment, and those claiming under him, can be affected by it.

      Ejectment — Effect and purpose of proceedings under act of 1834.
    Were it not for the proceedings under the act of 1834, and the limitations placed thereon, a defendant might continue indefinitely his defiance of a judgment in ejectment by setting up one worthless title after another. Such trifling with the administration of justice cannot be tolerated. The ground on which an alias or pluries writ is to issue is the possession given to the plaintiff by the preceding writ, and the subsequent intrusion by the defendant. Proof of this is the “ cause shown,” on which the plaintiff is entitled to restoration of the fruit of his judgment.

      Argued Dec. 10, 1896.
    Appeal, No. 141, Nov. T., 1896, by defendant, from order of C. P. Schuylkill Co., Nov. T., 1895, No. 375, making absolute rule for pluries writ of h. f. p. with fi. fa. for costs.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Petition for pluries writ of h. f. p. Before Pershing, P. J.
    On November 6, 1895, an amicable action of ejectment filed; ■judgment entered and a hab. fac. issued and writ stayed. Subsequently an alias hab. fac. issued on which delivery of possession of the premises on November 21, 1895. Defendant subsequently re-entered and took possession of the premises, and forcibly retained possession of the same. Whereupon plaintiff filed the petition for a pluries writ of h. f. p. with fi. fa., under the act of February 1, 1834, P. L. 26, and notice was given to defendant and answer filed and the case heard on petition, answer and depositions, and the rule for the pluries writ made absolute.
    Other facts sufficiently appear in the opinion of the Superior Court.
    Defendant appealed.

      Error assigned were (1, 2) making absolute the rule for pluries writ of habere facias possessionem, with fi. fa. for costs.

      George J. Wadlinger, with him Jas. W. Ryan, for appellant.
    Defendant’s possession now is under a title separate, distinct and independent of any title or alleged claim of title on the part of the city of Philadelphia. He holds now under the title and possession of Mrs. Kloch, against whom no recovery in ejectment has ever been had by the city of Philadelphia or any other claimant; he holds now under the Mrs. Kloch title and possession never legally disputed in any court; and surely it will not be argued or asserted that Mr. Hood and Mrs. Kloch were not legally competent to enter into the relation of landlord and tenant.
    We need not cite authorities to establish that it is the duty of every tenant to defend the title of his landlord.

      S. S. Kœrcher and F. Carroll Brewster, for appellee.

      January 18, 1897:
   Opinion by

Smith, J.,

The plaintiff having obtained a judgment against the defendant in an action of ejectment, recovered possession of the premises under an alias habere facias possessionem, on November 30, 1895. In the latter part of April, 1896, the defendant, without the permission or knowledge of the plaintiff’s representatives, retook possession of the land, and has since claimed the right to retain it as lessee of Elizabeth Kloch under a lease dated April 28, 1896. On June 15, 1896, a petition on behalf of the plaintiff was presented to the court of common pleas of Schuylkill county, asking that a pluries writ issue under the provisions of the act of February 1,1834, P. L. 26. Upon this petition a rule to show cause was granted; the defendant filed an answer; depositions were taken on the part of the plaintiff; and on September 7, 1896, the rule was made absolute. From this order the defendant appeals.

The act of February 1, 1834, is as follows: “ Whereas inconvenience frequently occurs to plaintiffs in ejectments, from the re-entry of the defendants, or persons claiming under them, on the lands recovered, after the execution and return of the writ of habere facias possessionem, and the plaintiffs are obliged to resort to a new ejectment, and it is proper to render recoveries in ejectment more effectual: Therefore, it shall he the duty of the court, in which a judgment in ejectment shall be recovered, on the application of the plaintiff, his agent or attorney, and on cause shown, to award alias and pluries writs of habere facias possessionem, from time to time, notwithstanding any or all preceding writs may have been returned executed; and the additional costs shall be taxed and collected in the usual manner: Provided, that such application shall be made within three years after the return day of the preceding writ.”

The manifest purpose of the statute was to give due effect to a judgment in ejectment by protecting the possession given under it to the plaintiff from subsequent intrusion by the defendant or claimants under him, in disregard of the judgment, for a period of three years from the return day of the preceding writ. As a matter of fact there has been a “ re-entry by the defendant ” in this case, within the terms of the act of assembly, and the plaintiff was, therefore, prima facie entitled to the writ. The defendant avers in his answer that he is not in possession of the premises under the lease from the plaintiff upon which the judgment in ejectment was entered, but that he holds under Elizabeth Kloch, who claims the land by virtue of a deed from Benjamin K. Yost and wife dated January 15,1869; and against this proceeding he sets up the title thus derived. The power of the court to make tbe order complained of is thus challenged.

Prior to the act of April 13, 1807, parties claiming the right to possession of real estate might bring as .many actions of ejectment as they chose, against those in possession, the proceeding being distinctively a possessory action. This statute set a limit to alternating actions, by providing that where two verdicts are given in favor of the same person no new ejectment shall be brought by the defeated party. And in order to still further expedite the settlement of titles, under subsequent enactments a person in possession under a judgment in ejectment may rule the defeated party to bring a writ of error or a second ejectment within a specified time, in default of which such party will be forever debarred from proceeding with another ejectment. The act of 1834 is in line with the aim of this legislation, and serves to prevent the forcible acquisition or retention of the possession of real estate, after the right thereto is lost by verdict and judgment. While the proceeding under this statute may, in a certain sense, be regarded as of a summary character, its purpose is so manifestly just that we are not inclined to hamper its free operation by a construction so strict as to defeat its object, and thus perpetuate the evil it was designed to remedy.

The case in hand well illustrates the utility of the statute. The defendant held possession of the premises in dispute for two years under a lease from the plaintiff. Though notified to quit at the end of his term, he refused to vacate, and the plaintiff was obliged to proceed by action of ejectment to get possession. Being forced off the premises by legal process, the defendant took a lease of the same land from a third person, re-entered without the knowledge of the plaintiff’s agent, and, under color of this alleged title, now seeks to continue in possession notwithstanding the statute and the established right of the plaintiff, as against him, to the possession of the premises. Without the remedy here invoked, the plaintiff would be driven to a new action of ejectment, with its consequent delay and expense.

The proceedings here seem to accord with good practice. A petition was presented ashing for the writ, notice of this was served on the defendant, and an answer was filed by him. Depositions were taken in pursuance of a rule for that purpose, after due notice to the defendant. These depositions show title in the plaintiff to the premises in dispute, and that the boundary line of Mrs. Kloch’s land is some fifty rods distant. The possession of the defendant under the lease from the plaintiff, and his ejectment under a former writ, were shown, together with his re-entry and forcible retention of the premises. It further appeared that he defied the plaintiff’s agent, and said he would take as much ground as he pleased. None of this was denied by the defendant, and he offered no proof of the right of Mrs. 'Kloch or himself further than that which is set up in his answer.

It must be remembered that the proceeding under the act of 1834 is in execution of a judgment, aiding in the fulfillment of the court’s decree. The title to land cannot be tested in this proceeding, and none but the defendant in the ejectment and those claiming under him can be affected by it. The court is to inquire whether the parties are within the purview of the act and decide accordingly. To extend the examination beyond an inquiry into the fact of the previous adjudication, and the identity of the parties and the subject-matter, and to permit the defendant or one claiming, under him to set up a different title, and hold possession until its merits could be determined in a fresh action, would wholly defeat the purpose of the statute. If this were permitted, the defendant might continue indefinitely his defiance of the judgment in ejectment by setting up one worthless title after another. Such trifling with the administration of justice cannot be tolerated. Upon the execution of a writ of habere facias, the plaintiff is to be regarded as lawfully in possession; and if the defendant, or one claiming under him, alleges a better title than that on which the plaintiff recovered, he must establish it in an action of ejectment, instead of attempting to assert it through an intrusion in disregard of the adjudication against him. The ground on which the alias or pluries writ is to issue is the possession given to the plaintiff by tbe preceding writ, and the subsequent intrusion by the defendant. Proof of this is the “ cause shown,” on which the plaintiff is entitled to restoration of the fruit of his judgment.

The appeal is dismissed at the cost of the appellant, with leave to the appellee to proceed with the execution of its writ.


source: Caselaw Access Project

author: Wickham, J.,

license: Public Domain

text:
    Harry Fick, by his next friend and father, Samuel Fick, v. Henry H. Jackson, trading and doing business as Thomas Jackson & Son, Appellant.

      Master and servant — Negligence—Bisk of employment — Defective machine ■ — Province of court.

    An employee who continues to uso a machine which he knows to be defective and dangerous, takes upon himself the risk-of any accident that may result therefrom, unless relying upon his employer’s promise to remedy the defect, and the risk be not such as to threaten immediate danger, if he retain his employment and is injured without any fault of his own.
    In the case at bar, it clearly appearing that the plaintiff had an intelligent knowledge of the risk he was running, that the accident was not the result of his inexperience or want of knowledge, and that the machine complained of was of the ordinary character used in the business, having been operated without accident for years, the jury should have been instructed to find for the defendant.

      Buie as to accident to employees from machinery.

    The ground of liability, in accidents to employees from machinery, is not danger but negligence, and the test of negligence is the ordinary usage of the business.
    Negligence consists in furnishing a machine or appliance which is not only dangerous, but as well different from that in common use in the trade or business in which it is employed.

      Evidence — Negligence—Subsequent precautions — Test of negligence.

    An extra precaution taken by an employer after an accident is not per se evidence of negligence to be deduced from its not having been previously adopted, the test is whether the particular machine as it stood before was like others in common use.

      Negligence — Master and servant — Buie as to minors.

    The rule that an employer is only required to furnish such machinery and appliances as are above indicated, is as fully applicable to minor employees as to adults; should a different standard be adopted it is likely the former would soon cease to find employment in works where machinery is used, as no one would care to take the risk of employing them.

      Argued Nov. 12, 1896.
    Appeal, No. 100, Nov. T., 1896, by defendant, from judgment of C. P. Berks Co., June. T., 1895, No. 44, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Trespass for personal injury to plaintiff. Before Ermentrout, P. J.
    The facts sufficiently appear in the opinion of the Superior Court.
    Verdict for plaintiff for $933.88. Defendant appealed.

      Errors assigned were, (1, 2) refusal of binding instructions . for defendant.

      Isaac Hiester, with him Stevens & Stevens, for appellant.
    The duty of the employer is to exercise ordinary care by providing suitable apparatus and machinery. His obligation does not require the operation of the best machinery which can be procured or that which combines the latest improvements, but only that which is reasonably safe and in common use: Augerstein v. Jones, 139 Pa. 183; Dooner v. Canal Co., 171 Pa. 583; P. & R. R. Co. v. Hughes, 119 Pa. 301.
    Latency of danger must be proved even in the case of minors : Melchert v. Brewing Company, 140 Pa. 448; Nagle v. A. V. R. R. Co., 88 Pa. 35; Kaufhold v. Arnold, 163 Pa. 281.
    As to employee’s responsibility for the hazards of his position, see Diehl, v. Iron Co., 140 Pa. 487.
    The case should be reversed without a venire facias de novo: Railroad Co. v. Fries, 7 W. N. C. 433.

      C. H. Ruhl, of Ermentrout & Ruhl, with him Rourke & Heinly, for appellee.
    In view of the youth and want of experience in the business on the part of plaintiff, it was necessarily a question for the jury whether his employer had sufficiently warned and instructed him about the dangers of the employment, and how to avoid them, or had done all that was reasonably necessary to protect him from injury.
    This contention is based upon Rummel v. Dilworth, 131 Pa. 509. Nor is the doctrine there laid down and invoked in the case in hand, refined away in the subsequent cases of Gillen v. Rowley, 134 Pa. 209, Zurn v. Tetlow, 134 Pa. 213, and Melchert v. Brewing Co., 140 Pa. 448.
    The question of contributory negligence was for the juiy : Germantown Rwy. Co. v. Walling, 97 Pa. 55; R. R. Co. v. McElwee, 67 Pa. 311; R. R. Co. v. White, 88 Pa. 327; R. R. Co. v. Werner, 89 Pa. 59.
    January 18, 1897:
   Opinion by

Wickham, J.,

The appellant in this case owned and operated a rope manufactory. Among the appliances in his establishment was a hemp picker; the principal parts whereof were an iron cylinder, about four feet long and two and one half feet in diameter, armed with iron spikes, and revolving horizontally, and a set of rollers in front thereof, between which the rough hemp was fed to the cylinder, to be picked or cleaned. The cylinder was operated by steam power, applied by means of a belt to a pulley at the left hand side, speaking with reference to the operator’s station. The axis of the cylinder, at the right hand side, extended out some six inches and bore another pulley connected by a belt with a pulley at the rollers, thus communicating notion to the latter. The cylinder was enclosed in a wooden box. In front was a horizontal opening or slit, through which the hemp was supplied, and a similar one behind through which the hemp was thrown out. There was also a small opening, about six inches high by three inches wide, in the right hand end of the box, through which passed the axis of the cylinder. The top of the pulley, which has already been spoken of as being on this axis, was two and one half feet from the floor. From the nearest part of the pulley to a platform, built on a steam pipe, along a wall, parallel with the machine, the distance was two and one half feet. The platform was used for the purpose of piling hemp thereon, as well as bags containing the pickings and dirt coming from the machine. Very often the hemp was passed through the machine twice or thrice, the number of cleanings depending on the condition of the fiber as it came from the bale. When this had to be done it was the duty of the operator to carry the hemp back, in his arms, through the passageway between the machine and the platform. The pulley was unprotected. When the machine was in motion a current of air, strong enough to draw in a handkerchief, four inches distant, flowed into the box through the opening at the end.

For nearly twenty-three years before the happening of the accident for which the plaintiff seeks to recover, this machine, just as described, had been operated by men, and, it would seem, by boys also, without complaint from any one having it in charge. So far as there was any evidence at all on the subject at the trial, it was made clear that the pulleys on like machines in other factories were never covered or guarded, and that the passageway was not unusually narrow.

On the morning of December 13, 1894, while the plaintiff was carrying an armful of hemp through the passageway, from the rear to the front of the machine, some of the fibers were caught by the belt and pulley, and one of his arms was so injured as to require amputation below the elbow. His theory is, that he exercised due care in carrying the hemp, but that owing to the narrowness of the -passage and the unprotected condition of the pulley, the accident occurred. The defendant, on the other hand, contends that the plaintiff was guilty of contributory negligence in trying to carry too large an armful of hemp, and in carelessly allowing the ends to hang down; that he, the defendant, had the right to arrange and maintain his machinery to suit the necessities of his business and his space; that practically it was placed as in similar factories, and as fully protected; and that whatever dangers attended the plaintiff’s employment were not only obvious to any one, but were actually known to himself.

Leaving out of consideration altogether the question of contributory negligence, we are forced to the conclusion, after a careful examination of all the evidence, that it was the duty of the court below to direct a verdict for the defendant. To have done so would have been not only just to the latter, but as well the truest kindness to the unfortunate plaintiff. While we deplore his misfortune, we cannot aid him at the expense of well established rules of law.

At the time of the accident he was within a few days of being eighteen years old, and, it is not questioned, had all the discretion usually possessed by young men of his age and class. He had been working with the machine at least four weeks, and his own testimony shows that he fully understood the nature and probable consequences of the only risk complained of, namely, the danger of the hemp being caught by the belt and pulley as he carried it by. It is unnecessary, therefore, to consider how far he should be held bound by the rule as to an obvious danger, if it'were left doubtful whether the danger were actually known to him. We quote from the testimony the following extracts, viz :

“ Q. Why didn’t it get caught in the pulley before? A. The wind of the machine brought it there. Q. There was the same wind of the machine before, was there not? A. Yes, sir. Q. If you watched as carefully as on previous occasions why did the threads get caught in the pulley? You say you were always careful to watch that the threads didn’t hang down and get caught in the pulley? A. Yes, sir. Q. You say you had noticed, as you worked the machine, that the ends of the hemp would reach as low as the pulley? A. Yes, sir. Q. You know that they did that — hang down that low? A. Certainly, they did hang down. Q. They hung down that low on former occasions as well as on this occasion, did they not? A. They hung down some. Q. As long as you had been running the machine you knew that the ends of the hemp would hang down that low? A. Yes, sir. Q. And were liable to be caught in the picker? A. Yes, sir.”

The well known general rule is, that an employee who continues to use a machine which • he knows to be defective and dangerous takes upon himself the risk of an}accident that may result therefrom, unless relying upon his employer’s promise to remedy the defect, and the risk be not such as to threaten immediate danger, if he retain his employment and is injured without any fault of his own: Marsden v. Haigh & Co., 14 W. N. C. 526 ; Brownfield v. Hughes, 128 Pa. 194; P. & R. R. Co. v. Hughes, 119 Pa. 301. No complaint as to the narrowness of the passage, or the unguarded condition of the belt and pulley was ever made by the plaintiff to anyone. Unless we arbitrarily assume, in the face of all the proof, that he possessed less mental capacity than the average youth of his age and class, we are bound to say, as was done in O’Keefe v. Thorn, 24 W. N. C. 379, Ash v. Verlenden Bros., 154 Pa. 247, and other cases, wherein suits were brought in behalf of minors, that he must be held as having accepted the obvious and known risks of his employment. In Nagle v. R. R. Co., 88 Pa. 35, cited approvingly and quoted from in Kehler v. Schwenk, 144 Pa. 348, it was held, that it was negligence per se for a boy of fourteen to run across a railroad track without looking, the court saying, “ At fourteen an infant is presumed to have sufficient capacity and understanding to be sensible of danger and to have the power to avoid it; and this presumption ought to stand until it is overthrown by clear proof of the absence of such discretion and intelligence as is usual -with infants of fourteen years of age.”

In O’Keefe v. Thorn, supra, it appeared that a boy of fourteen had his hand crushed by a machine for stamping tin shingles, which he was operating. Our Supreme Court in sustaining the judgment of nonsuit, said: “ All machinery is dangerous unless properly used. There was no danger in this particular machine that was not as obvious to a boy of fourteen as to an adult. He could see that if he placed his hand under the stamp it would be crushed. If boys are not allowed to use machinery until they have become accustomed to its use, it would be difficult for them to learn any useful trade or occupation by which to earn a livelihood.”

In Ash v. Verlenden Bros., supra, a boy of thirteen was injured while tending a card machine in a woolen mill. He had been instructed in the use of the machine and testified that he understood it. A judgment of nonsuit was entered in the court below and affirmed in the appellate court on the ground “ that the accident was not the result of his inexperience or want of knowledge.”

In the present case, it clearly appearing that the plaintiff had an intelligent knowledge of the risk he was running, the accident was not the result of his inexperience or want of knowledge, and the jury should have been instructed to find for the defendant on that ground, if there were no other.

It has been suggested, that this conclusion is in conflict with some of the views expressed in Kehler v. Schwenk, supra, and the earlier case of Oakland Ry. Co. v. Fielding, 48 Pa. 321, and that the question of the plaintiff’s capacity and knowledge, as well as the application of the rule, no matter how clear and uncontradicted may be the evidence, should be submitted to the jury, merely because be is a minor. In other words, that the court has no power in any case, no matter what the circumstances are, to say as a matter of law,' that a plaintiff who happened to be at the time he was injured a day or two under the age of twenty-one, assumed a plain, obvious, known and specific risk of his employment.

In Oakland Ry. Co. v. Fielding, supra, the plaintiff was not an employee of the defendant, and the question was, whether, under the conflicting evidence, he was guilty of ordinary contributory negligence. In Kehler v. Schwenk, supra, it was neither proved nor conceded that the minor understood the alleged manifest danger. The circumstances of these cases and of the one in hand are therefore different.

But the defendant was clearly entitled, on another ground, to have binding instructions in his favor. There was absolutely no proof of his negligence, such as the law requires, presented to the jury. “The ground of liability is not danger, but negligence, and the test of negligence is the ordinary usage of the business : ” Ford v. Anderson, 139 Pa. 261. “Negligence can never be imputed from the employment of methods or machinery in general use in the business: ” Augerstein v. Jones, 139 Pa. 183 ; Reese v. Hershey, 163 Pa. 253. “The employer is bound to furnish machinery and appliances that aré of ordinary character and reasonable safety, and the former is the conclusive test of the latter. Whatever is according to the general, usual and ordinary course, adopted by those in the same business, is reasonably safe within the meaning of the law: ” Kehler v. Schwenk, supra. It is to be regretted that the rule so clearly stated by Mr. Justice Mitchell, in the above quotation, is so often disregarded. Without the explanation and qualification therein contained, the general rule that the master is required to furnish reasonably safe and suitable appliances, tools and machinery, and a safe place to work, may become very misleading.

It is a mistake to suppose, that a plaintiff always makes out a prima facie case by showing that he has been injured by a dangerous machine or appliance, and that the burden of proof is then invariably shifted on the defendant. The negligence consists in furnishing a machine or appliance which is not only dangerous, but as well different from that in common use in the trade or business in which it is employed. In Augerstein v. Jones, supra, the court use language, which we quote as very applicable to the case at bar: “Not a witness was asked a single question as to whftt was the usual and ordinary way of constructing such machines, or whether this one was built in any respect differently from other machines of this kind. There is absolutely no information on that subject to be found anywhere on this record, and yet it is of the very essence of the plaintiff’s case. Judged by the test of experience, the inference is, that it was adequately built, as no accident had occurred on it during nine years of constant use.”

In Ford v. Anderson, supra, the plaintiff’s hurt was similar to that sustained by the plaintiff here, and resulted from a somewhat similar cause. The negligence charged was the leaving, uncovered, a pulley belt, which supplied power to the machine at which the plaintiff worked. The court in commenting on the lack of proof of negligence, say, “ It was not shown that it was usual to have belts inclosed, though, perhaps, they ought to be, or that the distance from the belt to the lever was unusually short, or that it was practicable to make it greater on a machine, in that place.”

When the plaintiff’s case in chief was closed, he had shown, first that he had suffered an injury; second, that it was caused by the pulley being uncovered; third, that' this defect, if it were one, and its probable consequences, were fully understood by him — more so, indeed, so far as the evidence goes, than by his employer; and fourth, that the pulley was guarded, by a fence, after the accident. It will be seen that “ the very essence ” of the plaintiff’s case was not even hinted at in the evidence he offered. No attempt was made to prove, either that it was usual to enclose such a pulley, or to have wider passages, in other, factories, of any description, or that he was uninstructed.

The defendant, however, proved that the common usage in other like establishments was to leave the pulleys uncovered and that passageways as narrow as two feet were often used. No attempt was made at contradiction. As to the fence put up around the pulley after the plaintiff was injured, it appeal’s that while it removed one danger, it introduced another, perhaps more serious, by preventing the belt from being promptly thrown off in case of accident. It is by no means improbable, that if any one is hurt from the latter cause, it will be urged that the defendant was guilty of negligence, in maintaining a device that shields the belt and pulley, thus preventing quick access thereto. In regard to this matter w.e may add, that as the change which was made did not tend to prove that the machine, as it stood before, was not like others in common use, the evidence regarding it did not aid the plaintiff. In Grimont v. Hartman, 17 W. N. C. 252, an action brought by a minor whose arm was caught and crippled by a machine, in the defendant’s works, it-was proved that the defendant admitted that the machine should have been covered, and that it was covered, after the accident. It was held, however, that the plaintiff was properly nonsuited for failing to offer other sufficient evidence of negligence.

The rule is, and no other would be practicable, because, in effect, no rule at all, that an employer can only be required to provide such machinery as is in common ordinary use in the trade or business wherein he is engaged. If this were not the fixed and invariable measure of his duty, new and conflicting standards would be established by verdicts, based even on the same circumstances, and. no employer, no matter how great his expenditure of .money and exercise of care and prudence, in securing what he might deem proper appliances, could feel or be secure. What one jury might say was right, another, with different ideas, might say was all wrong. There could be no certainty, as each juror would have the right to insist on his own standard. Moreover, if the rule is not to be held fully applicable in the case of minors, as well as adults, it is likely that the former Avould soon cease to find employment in works Avhere machinery is used, as no one would care to take the risks of hiring them. It is, therefore, really for the benefit of this large class of modern, industrial workers, that the standard, unfortunately ignored in the present case, should be rigidly maintained.

Judgment- reversed.


text:
    The Appeal of the Land Title & Trust Company, substituted trustee under the will of Samuel P. Shoch, deceased.

      Road law — Report of viewers — Time allowed for filing.

    Reports of viewers in Philadelphia must be filed within three months unless the time be extended by the court.
    Yiewers having finished and signed their report within the statutory period neglected to file same until after its expiration. The court reappointed the jury nunc pro tunc for a period of three months, whereupon the jury, without being resworn or taking any other action, filed their old report. Held, That the proceedings were dead before the order of the court continuing the jury nunc pro tunc was made, and could not be revived. The case is ruled by Salem Township Road, 103 Pa. 250.
    Argued Dec. 17, 1896.
    Appeal, No. 73, Nov. T., 1896, by. Land Title & Trust Co., trustee from decree of Q. S., Phila. Co., Jan. T., 1893, Court .No. 2, confirming the report of the viewers in the matter of the opening of Allegheny avenue, from Second street to Germantown avenue.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Exceptions to report of jury of view in the matter of opening Allegheny avenue.
    The facts sufficiently appear in the opinion of the Superior Court.
    The court below dismissed the exceptions and confirmed the. report of the jury.

      JErrors assigned were, (1-6) to the order of the court in dismissing exceptions to the report of the jury.

      M. Hampton Todd for appellant.
    It is not in the power of the court to approve a report of viewers nunc pro tunc and immediately to issue an order to open: Road to Ewing’s Mill, 32 Pa. 282.
    The report of road viewers must be made at the next term of court after the order is taken out and presented for approval: Chartiers Township Road, 48 Pa. 314; Salem Township Road, 103 Pa. 250.

      The authority of road viewers is limited by the terms of the order directed to them, and when they exceed their authority their report must be set aside. Road in Hempfield Township, 122 Pa. 439.

      Francis L. Wayland, assistant city solicitor, with him Greorge F. Fili, assistant city solicitor, and John L. Kinsey, city solicitor, for appellee.
    It was clearly within the power of the court to make the order extending the time for the report of the jury nunc pro tunc: Worth St., 5 Dist. Rep. 231.
    January 18, 1897:
   Opinion by

Wickham, J.,

On July 10,1893 viewers were appointed, by the court below, under section 7 of the act of April 21,1855, P. L. 264, to assess damages and benefits caused by the opening of Allegheny avenue in the city of Philadelphia.

By the act of March 16, 1866, P. L. 224, it is required that such viewers are to possess “ the same qualifications, and to have the like powers and perform the like duties as is provided by the general laws of this Commonwealth.”

In accordance with the authority conferred by the act of June 6, 1873, (P. L. 1874) 407, the court from time to time extended the powers of the viewers, the last order of extension having been made on February 25, 1895. It gave the viewers three months, from and after February 28,1895, wherein to file their report. By the terms of the act of 1873, the viewers were bound to file their report within three months after their appointment, unless allowed further time by the court. The longest single period of extension permitted by the act is three months.

On March 26, 1895, the viewers reached their final conclusions, and prepared and signed their report setting forth the same. They neglected, however, to file it within the time fixed by the extending order of February 25, 1895, and on June 12, 1895, the court made the following order in the premises, viz : “It is ordered, adjudged and decreed that the said jury be reappointed and continued nunc pro tunc, for a period of three months.” On June 19, 1895, the report which, on its face, shows that it was prepared on March 26 of the same year was filed. It further shows that the viewers when it was made up were acting under the oath administered to them on Decernber 11, 1893. It is and must be conceded, as a matter of fact, that they never were resworn, and that all they did after the making of the nunc pro tunc order was to file the report. The order was evidently intended to enable them to do that and nothing more. It was given the effect of a mere continuance and not of a reappointment. This fully appears from what the viewers did, and did not, do.

Had the court power to make such an order ? Whether we look at the general road laws or the act of 1873, we are satisfied it had not. The proceedings were dead before that order was made and could not be revived. The decision in Road in Salem Township, 103 Pa. 250, which is fully applicable here, precludes any other conclusion. It is unnecessary to dwell further on the matter, nor need we pass on the appellant’s remaining objections, as the one just considered is fatal.

The decree is reversed, the proceedings set aside and the appellee directed to pay the costs.


author: Smith, J., Rice, P. J.,

text:
    William Bandel, Appellant, v. George G. Erickson, trading as J. M. Erickson & Co., Agent for Walter R. Kern, landlord, and I. H. Jones, constable.

      Pleading — Waiver of teehniealities — Implication thereof.

    The strictness formerly maintained in relation to pleading lias, in this state become greatly relaxed. A neglect to compel the opposite party,!to perfect the pleadings will be construed as a tacit agreement to waive matters of form and try the cause on its merits.

      Actions — Pleadings—Avowry.
    •There being no general issue upon an avowry, matter of defense must be specially pleaded. The system of short pleadings which prevails in this state, however it may serve in other cases, is not to be commended in pleading to an avowry; it is better and safer to plead, in extenso, the matter of defense.

      Landlord and tenant — Denial of title by lessee.

    It is well settled that a lessee will not be permitted to deny the title under which he has entered, and hold possession against it; but though the tenant may not deny that the landlord had title when the demise was made, he may show that this title has since determined

      Argued Oct. 6, 1896.
    Appeal, No. 16, Nov. T., 1896, by plaintiff, from judgment of C. P. No. 3, Phila. Co., June T., 1893, No. 540, on verdict for defendant.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Rice, P. J., dissents.
    Replevin for goods distrained for rent. Before FinletTER, P. J.
    The above suit was an action of replevin by William Bandel ■for goods distrained for rent. Defendant filed an avowry and cognizance, and plaintiff’s pleas were “payment,” “no rent in arrear,” and “ non est factum.” The lease was given by Walter R. Kern, agent. June 18, 1893, Walter R. Kern dis-trained for rent which should have been paid to trustees of the owner of the property, William H. Kern, subsequent to the death of the said William H. Kern for whom Walter R. Kern acted as agent. The trial judge held that the plaintiff could not explain whom Walter R. Kern, agent, was agent for, nor show that the rent was paid to the trustees for the real owner, W. H. Kern, and directed the jury to find for the defendant.

      Error assigned was, in overruling and rejecting plaintiff’s offer, as follows: “ Counsel for plaintiff offers to prove that Walter R. Kern was the agent for William H. Kern, who died on April 8,1893, and that the rent for which the levy was made was paid to the Fidelity Trust Company. I desire to show by this witness that the lease dated September 12, 1892, for premises No. 3825 Hamilton street, made by W- R. Kern, agent, to Charles Bandel was made by Walter R. Kern as agent for William H. Kern, who was the owner of the property in question, and that the rent for which distress was made was paid in full, after the death of William FI. Kern, to Hood Gilpin and the Fidelity Trust Company, trustees under the will of William H. Kern, by the tenant.” (2) In directing the jury to find for the defendant.

      Bernard Gilpin, for appellant.
    This offer should have been admitted, for if it should not be, then it would be possible for any real estate agent, all of whom make their leases in their own names as agents, to go on after the death of his principal collecting tbe rents due indefinitely, to the total exclusion of the heirs of the owner: Newell v. Gibbs, 1 W. & S. 496; Barrett v. Bemelmans, 163 Pa. 122.

      George P. Rich, with him Henry C. Boyer, for appellees.
    January 18, 1897:
   Opinion by

Smith, J.,

The principle that the lessee shall not be allowed to deny the title under which he has entered, and to hold possession against it, as illustrated in Holt v. Martin, 51 Pa. 499, in Snyder v. Carfrey, 54 Pa. 90, and in Bedford v. Kelly, 61 Pa. 491, is’not to be questioned. In those cases, the lessor described himself in the lease as “ agent ” or “ trustee,” and it was held that he might, as lessor, representing the title, recover possession at the expiration of the term, under the acts of 1772 and 1863.

But though the tenant may not deny that the landlord, had title when the demise was made, he may shoAV that this title has since determined: Newell v. Gibbs, 1 W. & S. 496.- And Avith respect to the payment of rent, where the lease is made by a lessor as agent or trustee, the tenant may show a revocation of the agency or trust, and a payment to tbe actual owner: Barrett v. Bemelmans, 163 Pa. 122. In the latter case, which Avas an action for rent by a part owner, on a demise by an agent described in the lease as “ trustee,” the land belonged to five persons, one of whom (Barrett) was appointed by the others “ as our agent or-trustee,” to lease and collect the rents. After he had leased to Bemelmans, Mrs. Bennett, one of the owners, revoked his authority to act for her, and gave the tenant notice to pay her one fifth of the rent. The tenant nevertheless continued to pay Barrett. It was held that Mrs. Bennett could maintain an action on the lease, in the name of Barrett to her use, for one fifth of the rent; .the Supreme Court, in an opinion delivered by Mr. Justice Williams, saying: “The question is, to whom, after the notice of revocation, should the tenant pay the accruing rent, so far as Mrs. Bennett’s share of it is concerned ? The tenant kneAV from the lease that Barrett was acting.for others, although their names were not disclosed in that instrument. Barrett knew that as to the interests of his cotenants, he Avas simply an agent, and that the terms of his agency gave him no interest in the subject-matter that would enable him to resist a revocation, as a fraud upon him. Upon these facts we think the following propositions are beyond any question: (1) Mrs. Bennett had a right to revoke the agency of Barrett whenever she pleased. (2) Barrett acquired, under the terms of the agency, no interest in the rent due to his principals other than that necessarily acquired by one authorized to collect money for another, and he had no right to object to the revocation of his authority at the will of his principals. (3) When this revocation was duly made, and notice thereof given to the tenant, the tenant was bound to take notice of the fact. No equitable or other right existed in the tenant to object to the revocation except as to acts done or rent paid before the notice was received.”

In the case before us, the lessor described himself in the lease as “ W. R. Kern, agent.” Thus, as in Barrett v. Bemelmans, “the tenant knew from the lease that Kern was acting for others, although their names were not disclosed in that instrument.” In defense of the action, an offer was made to prove that the principal was Wm. H. Kern, owner of the premises; that the lease had been made by W. R. Kern as his agent; that he had died after the demise and before the commencement of the action; and that the rent accruing after Ms death had been paid to Hood Gilpin and the Fidelity Trust Company, trustees under his will. Though not setting forth as particularly as might be done the right of Gilpin and the trust company, from probate of the will, and its provisions respecting the demised property, the offer was not objected to on this ground, and it may be implied from its language that they were authorized to receive the rent as trustees.

For the purposes of the case, it must be assumed that the matters set forth in the offer were facts. If they constituted a defense to the avowry, the right of the plaintiff to prove them cannot be doubted. The only question, therefore, is whether they form a defense to the avowant’s claim. Regarding the allegations embodied in or implied from the offer as true, they present a state of facts identical, in substance and effect, with those in Barrett v. Bemelmans. They show that .the real owner of the demised property was Wm. H. Kern; that W. R. Kern, by a lease in which he described himself as “ agent ” demised the premises to Bandel, the plaintiff, as agent for Wm. H. Kern; that between the demise and the commencement of the action Wm. H. Kern died; and that by his last will and testament Hood Gilpin and the Fidelity Trust Company were authorized to receive the rents accruing subsequent to his death.

Holding W. R. Kern to have made the demise as agent for Wm. H. Kern, the death of the latter was a revocation of the agency. The right of the agent to receive the rent thereupon ceased, unless preserved by some provision of the principal’s will. No such provision appearing, his authority as agent was at an end. It is not even material in whom the authority to receive the rent is now vested, since upon the death of the principal it passed out of the agent. As in Barrett v. Bemelmans, the revocation affected no interest of the agent, and the tenant, upon notice of it, was bound to recognize the right of the principal, or of the legal successors to that right.

The defense thus offered is in no sense a denial of the lessor’s title at the time of the demise. Admitting all that the lease imports, it is an averment that the lessor’s title has since determined, and that the right to receive the rent has passed to others. It falls within the well settled rule on this subject, illustrated in Newell v. Gibbs, supra, and the cases there cited.

It only remains to consider whether the defense set out in the offer is admissible under the pleadings. There being no general issue upon an avowry, matter of defense must be specially pleaded. It may be proper to observe, here, that the system of short pleadings that prevails in this state, however it may serve in other cases, is not to be commended in pleading to" an avowry; it is better and safer to plead, in extenso, the matter of defense.

The strictness formerly maintained in relation to pleading, has, in this state, become greatly relaxed. The reports abound in illustrations of a disregard of technicalities that stand in the way of substantial justice. One of the earliest is in Sauerman v. Weckerly, 17 S. & R. 116, where Mr. Chief Justice Gibson said: “An omission to compel the opposite party to perfect the pleadings beforehand ought to be considered, what it is in justice and truth, a tacit agreement to waive matters of form and try the cause on its merits; just as going to trial on a short plea is, according to our practice, a waiver of the right to demand a plea in full form.” The principle here laid down has become familiar in practice, owing to the too frequent inattention, on the part of counsel, to the rules of pleading. In general it maybe said that when a “ short plea ” is incomplete, or inadequate merely in form, it may be construed to embrace such matters, germane to the' issue it is designed to raise, as may reasonably be implied from it.

In the case before us, -if the question could be regarded as open, much might be urged in support of the view contended for by the appellant, that the plea of “ no rent in arrear ” may be sustained by proof that the rent had been paid to the persons by law entitled to receive it, and hence that nothing remained-in arrear. But the scope of the plea as defined by the courts does not permit this: Hill v. Miller, 5 S. & R. 355 ; Williams v. Smith, 10 S. & R. 202. The plea in full 'form is “ that no part of the said supposed rent, in the said avowry mentioned, was or is in arrear from the plaintiff to the defendant in manner and form as the defendant hath in his avowry in that behalf alleged.” It must be sustained by proof that the plaintiff has paid to the avowant the rent claimed in the avowry; nob that the avowant has no right to receive it.

But the defense to the avowry does not rest on the plea of “ no rent in arrear.” The record shows also a plea of “ payment.” Though in this- form incomplete, as a plea to the avowry, it cannot be disregarded. As a “ short plea ” it has no place in this action, the fact of payment being included in the plea of “no rent in arrear; ” hence its meaning here cannot be limited to its scope as a plea in assumpsit. The avowant might have required the plaintiff to set forth at large the ground of defense which it was designed to embrace. His omission to do this is a waiver of exception to its form. It may fairly be understood as implying that payment of the rent claimed had been made to the party entitled by law to receive it, and to permit proof of this. Under the facts set forth in the offer, the avowant could receive it only as agent for Wm. H. Kern’s successors in title, and for transmission to them. Their right is paramount to his, and payment to them must be regarded, in substance and effect, as a payment in discharge of the tenant’s obligation. In several English cases it has been held that payment to a person having a claim paramount to that of the avow-ant may be shown under the plea of “ no rent in arrear: ” .Jackson and Gross on Landlord and Tenant, 461, 462. With still greater reason may such a payment be shown under the plea of payment. It is further to be observed that there was no objection to the plaintiff’s offer on the ground that the matters embraced in it were not admissible under the pleadings. Had such an objection been made, it could have been met by an amendment under which no question could have arisen respecting the competency of the evidence offered. In general, as has frequently been held, a fault of pleading ivhich is amendable will be regarded as amended, when necessary to preserve an obvious right. If it be true that the plaintiff has in fact paid the rent for which this distress was made to those lawfully entitled to receive it, it would be a gross wrong, when not essential, to so closely adhere to form as to compel its payment a second time, without possibility of redress. Extreme technicality in pleading must be subordinated to the higher demands of justice.

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

Dissenting opinion by

Rice, P. J.,

January 18, 1897:

This was an action of replevin for goods distrained for rent. In the plaintiff’s declaration Walter R. Kern is described as landlord, and J. H. Jones as constable. The former avowed and the latter made cognizance, and justified the taking “ because they say that one Charles L. Bandel for a long time, .... held and enjoyed the said dwelling-house in which the said goods and chattels were contained, with the appurtenances, as tenant thereof under the said Walter R. Kern, defendant, by virtue of a certain lease dated the 12th day of September, 1892, wherein the said Walter R. Kern demised to the said Charles L. Bandel the said dwelling-house,” etc. Then follow the usual averments as to the rent reserved in the lease, and the nonpayment of the same for the period above referred to. To the defendants’ avowry and cognizance the plaintiff pleaded, “ payment,” “no rent in arrear,” and “non est factum.” The lease was dated September 14, 1892, and was signed and sealed by W. R. Kern, as lessor, and Charles L. Bandel, as lessee, but in the premises the lessor was described as “ W. R. Kern, agent.” On the trial of the issue the plaintiff called Charles L. Bandei as a witness, who testified that he signed the lease, and then the plaintiff offered “to prove that Walter R. Kern was the agent for William H. Kern, who died on April 8,1893, and that the rent for which the levy was made was paid to the Fidelity Trust Company. I desire to show by this witness that the lease dated' September 12,1892, for the premises No. 3835 Hamilton street, made by W. R. Kern, agent to Charles Bandel, was made by Walter R. Kern, as agent for William H. Kern, who was the owner of the property in question, and that the rent for which distress was made was paid in full, after the death of William H. Kern, to Hood Gilpin and the Fidelity Trust Company, trustees under the will of William H. Kern, by the tenant.” Before ruling upon the objection to this offer, the court remarked: “ We will consider the lease now in evidence.” No objection was made to its being so considered; and then, the objection to the offer above quoted was renewed and sustained. The rejection of this evidence is the subject of the first assignment of error. The second assignment of error is to the charge of the court directing a verdict for the defendants.

The first question in the case is, whether the evidence embraced in the plaintiff’s offer was admissible under the pleadings.

Where a lease is specially stated in the avowry, non est factum may be pleaded, but it puts in issue the execution of the lease only: Bloomer v. Juhel, 8 Wend. 448. But this plea was disproved on the trial by the testimony of the tenant. Assuming that “payment” is a permissible plea in such a case, the proof to support it must be confined to matters which were admissible at common law and which constitute technical payment: Lovegrove v. Christman, 164 Pa. 390. “ The plea of payment means common law payment — actual payment. It need not be in money; it may be by the transfer of choses in action, or other property, but it must be something which is accepted as money: ” Steiner v. Erie Dime Savings and Loan Co., 98 Pa. 591, and see cases there cited. “ Payment,” without more, does not put. in issue the tenancy. It is, obviously, not so broad a plea as “ no rent in arrear,” and, if the offered evidence was not admissible under the latter plea, it was not under the former. It is held in Pennsylvania that there is no such thing as a general issue to an avowry; but some special point must be traversed. “ Avowry,” said Chief Justice Gibson, “ like a declaration, sets forth the nature and merits of the landlord’s case; and must distinctly state every fact necessary to show that the distress was lawful, and among others, the existence of a lease; the existence of every fact not traversed is admitted. Although, since the act of 1772, which substantially agrees with the 2 Geo. II., ch. 19, nil habuit tenementis, which admits the existence of the lease, cannot be pleaded to avowry, still, the plaintiff may traverse the tenancy: Syllivan v. Stradling, 2 Wils. 208; and that course ought to have been pursued here; for it is clear, as well on principle as from authority, that the plea of ‘ nothing in arrear ’ admits the existence of the tenancy, and puts the defense on matter subsequent: ” Hill v. Miller, 5 S. & R. 354. Hence, it was held that while the tenant might show, that, prior to the accruing of the rent, he purchased the premises with the assent and by the advice of the landlord, yet such evidence could not be given on the issue of “ nothing in arrear.” In Alexander v. Harris, 4 Cranch, 299, a lease for three years certain was alleged in the avowry. On the trial of the issue joined on the plea of “ nothing in arrear ” the avowant gave in evidence a lease for one year certain, and proved a subsequent possession for two years. A verdict was rendered for the avowant. On writ of error the court held, that the lease offered in evidence did not support the avowry, but that the plea dispensed with proof of the demise laid in the avowrj by admitting it. Chief Justice Marshall, who delivered the opinion of the court, after an elaborate consideration of the question, said: “ It is thought important in the inquiry, that, the law appropriates a different plea, which controverts the demise, if the tenant means to contest it — the plea of non demisit.” I am not to be understood as saying, that, where a plea of non tenuit, or non demisit, or a special plea that the landlord’s title has expired subsequently to the lease, and that the plaintiff has been compelled to pay rent to another or the like, and the plea of “ no rent in arrear ” are joined, as undoubtedly they may be, the tenancy is admitted. I am speaking of the latter plea standing alone, in which case the rule seems to be well settled that the title and the tenancy as laid in the avowry are admitted: Williams v. Smith, 10 S. & R. 202; Morris on Replevin, 127; 2 Br. T. & H., Prac. 1754; Wilkinson on Replevin, 6 Law Libr. *83.

Many of the strict rules of pleading have been relaxed, and others have been wholly abolished by statute and judicial decision. But after a diligent investigation no case has been found modifying in any degree the rule laid down in the cases above cited as to the effect of a plea of “no rent in arrear.” It has acquired a well understood meaning, and, in view of the liberality with which amendments are allowed, it cannot he said that injustice will be wrought by adhering to the rule. Perhaps a simpler method of bringing such a cause to an issue might be devised, but it is quite as important in this day, when the calendars of the courts are overcrowded, as it was in the days of Chief Justice Marshall and of Chief Justice Gibson, that the system — no matter by what name the allegations of the parties may be called — shall result in narrowing the issue to be tried to the points actually in controversy, and in showing what that issue is, and that the proof shall be confined to matters relevant thereto. The purpose of the plaintiff’s offer was to prove that no rent was in arrear, because, during the period for which the defendant distrained, the tenant did not hold under the defendant. The effect would be —if the evidence was ad missible at all — to disprove the tenancy alleged in the avowry. As this was not put in issue by any of the pleas, the offered evidence was clearly irrelevant. Being so, the court cannot be convicted of error in rejecting it, unless the defendant waived this specific objection by something which he said or did on the trial. Being unable to find anything in the record from which .a waiver may be implied, I feel constrained to record my dissent from the judgment that is about to be entered.


author: Beaver, J.,

text:
    Margaret C. Hill v. The Leibig Manufacturing Company, Appellant.

      Conditions precedent to a valid sale of personalty as against creditors.

      Good faith, honesty of purpose; a valid and adequate consideration; an absolute unconditional sale; actual, visible, manual delivery, or, in its absence, such change of possession as the character of the property and the nature of the transaction, the position of the parties and the intended sale of the property admit of; continuous possession by vendee, — these are tile essential prerequisites which must enter into and proceed from the transaction to make a sale of personal property valid as against creditors in Pennsylvania.

      Sale — Fraud—Bonafldes—Change of possession — Question for jury.

    The general rule as to fraud in delivery of personalty is recognized as laid down in Clow v. Woods, as also are the exceptions thereto clearly indicated in that ease by Gibson, C. J.: Weller v. Meeder, 2 Pa. Superior Ct. 488.
    Where the facts of a case are such as to bring it within this universally recognized exception it is proper to leave to the jury to find from the evidence whether the sale was in good faith or colorable, and whether the change of possession was all that could be reasonably expected of the vendor, taking into view the character and situation of the property and the relation of the parties.

      Evidence — Feigned issue — Husband and wife — Interest—Competency of wife.

    In an interpleader proceeding between the creditor and alleged vendee of the defendant in the execution, the debtor has not such interest in the result of the issue as would exclude the testimony of his wife.
    Argued Nov. 14, 1896.
    Appeal, No. 147, Nov. T., 1896, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1896, No. 82, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Interpleader on claim to property levied upon by sheriff.' Before Livingston, P. J.
    From the evidence it appeared that Eber E. Hilton, the defendant in the execution, and his wife, lived with his mother-in-law, the claimant in the inteipleader, on a farm. Of this farm Hilton owned sixty-one acres and Margaret C. Hill, the claimant, owned one hundred and seventy-one acres, with the buildings. Hilton farmed his mother-in-law’s farm on shares and was the owner of certain personal property used on the farm.
    On February 15, 1895, he executed a judgment bond to the defendant in the interpleader on which execution was issued June 15, 1896. On January 25, 1895, Margaret Hill paid a debt of Eber E. Hilton, and at the same time he executed to her the following bill of sale : “ January 25, 1895. This is to certify that I, Eber E. Hilton, do set over unto Margaret C. Hill to have and to hold all personal property heretofore claimed and owned by the said Eber E. Hilton on the premises of the said Margaret C. Hill. (Signed) Eber E. Hilton. Witness, A. Belle Hilton.”
    After the bill of sale was made, Hilton continued to reside on his mother-in-law’s farm and to do work thereon as an occasional hireling, but his brother William Hilton was employed to manage the farm. There was no evidence that Margaret C. Hill had told anyone outside of the family of the transfer to her of the title to the personal property. At the trial evidence was admitted, under objection, of the money borrowed by claimant to pay the debt of Hilton and of the payment of the debt which amounted to $500.
    The court admitted, under objection, the testimony of the wife of Hilton as to the sale and transfer of property.
    The court left to the jury the question of the bona fides of the sale and whether the change of possession was all that could be reasonably expected of vendor, taking into view the character and situation of the property and the relation of the parties. [7-17]
    Yerdict for plaintiff. Defendant appealed.

      Errors assigned were, (1-6) admission of evidence, in support of the condition set out in statement of facts, and tending' to show the bona fides of the transaction and the consideration therefor; (7-17) instructions of the court to the jury in the general charge and in answers to the points on the questions of good faith and sufficiency of delivery of possession.

      J. W. Johnson, for appellants.
    The case was tried below on the assumption that the law applicable thereto was correctly stated in Barr v. Reitz, 53 Pa. 256. The burden of proving the delivery lies on the purchaser, who must establish his possession by sufficient evidence. And that as stated in Stephens v. Gifford, 137 Pa. 219.
    As to the admission of the wife’s testimony, see Pleasanton v. Nutt, 115 Pa. 266.
    As to the question of delivery of possession, cited Crawford v. Davis, 99 Pa. 576; Brawn v. Keller, 43 Pa. 104; McKibbin v. Martin, 64 Pa. 352; Stephens v. Gifford, 137 Pa. 219.

      J. Hay Brown, with him W. U. Hensel, for appellee.
    The case was properly tried below and the question of bona fides and sufficiency of the delivery under the circumstances left to the jury: Evans v. Scott, 89 Pa. 136; McKibben v. Martin, 64 Pa. 352; McVicker v. May, 3 Pa. 224; Crawford v. Davis, 99 Pa. 576; Renninger v. Spatz, 128 Pa. 524.
    January 18, 1897:
   Opinion by

Beaver, J.,

In order to make a sale of personal property valid as against creditors of the vendor in Pennsylvania, there must enter into and proceed from the transaction, first, good faith — honesty of purpose; second, a valid and adequate consideration; third, an absolute and unconditional sale; fourth, actual, visible, manual delivery, or, in its absence, fifth, such a change of possession as the character of the property, the nature of the transaction, the position of the parties and the intended sale of the property make possible; sixth, continuous possession. All of these elements can be legitimately found in the evidence offered in the present case. As to the most of them there was practically no dispute. That which the appellant alleges to be wanting is a sufficiency in the change of possession or such a delivery as meets legal requirements. The title to the property in question was raised by a feigned issue under the Sheriff’s Inter-pleader Act between two creditors of a common debtor. The plaintiff claimed by virtue of a sale by the debtor and the defendant corporation by virtue of a levy made by the sheriff upon an execution issued by it. It is very clear that the debtor had no interest in the contest in any event, nor could he by any possibility derive any benefit from the result of the issue. His wife was, therefore, a competent witness. The testimony embraced in the bills of exceptions contained in the first, second, fourth, fifth and sixth assignments of error was all competent evidence, bearing directly upon the bonajides of the transaction and the consideration therefor. That the remark of the trial judge in the court below complained of in the seventh assignment of errors, was correct is found in the fact that the defendant at the trial voluntarily surrendered at least the one half of the articles levied upon. The slip of the trial judge in using the words “ judgment note ” instead of promissory note, as complained of in the eighth assignment of error, did the defendant no harm. The obligation was practically the same.

All the remaining assignments of error relate to the charge of the court, and its answer to points presented by the defendant. The appellant alleges that his first and second points were framed in the exact words, or taken substantially from the case of Brawn v. Keller, 43 Pa. 104. This is doubtless true, but a sufficient answer is found in the fact that the court answered them in substantially the language employed by the Supreme Court in Evans v. Scott, 89 Pa. 136, Crawford v. Davis, 99 Pa. 576, Renninger v. Spatz, 128 Pa. 524, in which the facts more nearly resemble those in the present case.

It is not necessary for us to enter into a discussion of the laAV of Pennsylvania upon this subject. We-have lately discussed it very fully in Weller v. Meeder, 2 Pa. Superior Ct. 488. It is not the intention of this court to depart by a hair’s breadth from what has been erroneously called the iron rule of the recognized leading case upon this subject in Pennsylvania, — Clow v. Woods, 5 S. & R. 275. The exceptions to the rule were clearly indicated by Chief Justice Gibson, when he said: “ The inclination of my mind is to give the statute (13 Eliz.) a liberal, perhaps an enlarged, construction, by putting the rule requiring a change of possession on grounds of public policy, and confining its exceptions to those cases where, from the very nature of the transaction, possession either could not be delivered at all, or at least without defeating fair and honest objects intended to be effected by, and which constituted the motive for entering into the contract.” We think the facts in this case bring it within the exception which has been universally recognized by our appellate courts, and are of the opinion, as expressed by the Supreme Court in Renninger v. Spatz, supra, “ that the learned judge did not err in refusing to hold as matter of law that the delivery of possession was insufficient. It was for the jury to find from the evidence whether the sale was in good faith or colorable, and whether the change of possession was all that could reasonably be expected of the vendor, taking into view the character and situation of the property and the relation of the parties.” This identical language was used, so far as it was applicable, by the trial judge in the court below, and is assigned for error. This is a case in which the language was strictly applicable. All the elements of a valid sale by Hilton to the plaintiff below being contained in the evidence, and being practically undisputed or found by the jury, to whom they were properly submitted, the judgment should be and is hereby affirmed.


author: Smith, J.,

text:
    Jacob Ginther, Appellant, v. The Borough of Yorkville.

      Negligence — Municipal liability — Independent contractor — Municipal supervision.

    A municipality is not liable for the negligent performance of a contract by an independent contractor resulting in injury to the property of a citizen even if the work is done under the direction of an official authorized to inspect it who is vested with all powers necessary to secure compliance with the contract, payment even being conditioned on his approval of the work.

      Practice, Superior Gourt and G. P. — Point reserved — Exceptions—Eevieio.

    Whei’e a point is reserved the parties will be presumed to have assented to the correctness of the statement of facts embraced in the reservation; and a party not excepting to it at the time is estopped from denying its accuracy; the only inquiry which can be made on review in the appellate court is as to the legal effect of the facts set out in the reservation.
    Argued Dec. 8, 1896.
    Appeal, No. 98, Nov.- T., 1896, by plaintiff, from judgment of C. P. Schuylkill Co., Nov. T., 1892, No. 195, non obstante veredicto in favor of defendant.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Trespass for injury to plaintiff’s property.
    The court directed a .verdict for the plaintiff, reserving a question of law (which is set out in the opinion of the Superior Court).
    Other facts sufficiently appear in the opinion of the Superior Court.
    Verdict for plaintiff, $500. Judgment entered for the defendant on the question reserved. Plaintiff appealed.

      Errors assigned were, (1, 2) entry of judgment for defendant non obstante veredicto.

      Geo. J. Wadlinger, for appellant.
    The defendant was liable under section 8, article 16 of the constitution of Pennsylvania: Edmundson v. R.R., 111 Pa. 316; Ladd v. Phila., 171 Pa. 485; Coal Co. v. Phila., 156 Pa. 54.
    In its controlling principles, this case does not materially dif» fer from O’Brien v. Philadelphia, 150 Pa. 589; Mellor v. Philadelphia, 160 Pa. 614, and other cases in the same line, and is virtually ruled by them.
    It is no answer to say that there was no exercise of the right of eminent domain in the construction of the pipe line or the setting of the fire plug on the pavement of the plaintiff and hence no remedy for him by art. XVI. sec. 8 of the constitution: Chester Co. v. Brower, 117 Pa. 647; Borough of New Brighton v. U. P. Church, 96 Pa. 331; Power v. Borough of Ridgway, 149 Pa. 317; Fredericks v. Penna. Canal Co., 148 Pa. 317; Ogden v. Philadelphia, 143 Pa. 430; Jones v. Bangor, 144 Pa. 638; In re Towanda Bridge Co., 91 Pa. 216 ; 2 Kent’s Com., 338; Cooley’s Const. Lim., 662; Mt. Pleasant Borough v. B. & O. R. R., 27 W. N. C. 177; Phila. v. P., W. & B. R. R., 33 Pa. 41.
    It was a proper question for the jury whether Smith was an independent contractor or a servant of the defendant: Jessup v. Sloneker, 142 Pa. 527.

      A. W. Schalck, for appellee.
    The seventeenth rule of court is violated in the omission of appellant to furnish the court with the greater part of the testimony produced on the trial: Bradley v. Vernon, 166 Pa. 603 ; Joyce v. Lynch, 17 W. N. C. 79; Pittenger v. Kennedy, 148 Pa. 198; Murdock v. Martin, 147 Pa. 203.
    No exception having been taken in the court below to the point reserved the substance of such reserved point, is not reviewable: Koons v. Telegraph Co., 102 Pa. 164; Ins. Co. v. Phœnix Co., 71 Pa. 31; Heany v. Schwartz, 155 Pa. 154.
    January 18, 1897:
   Opinion by

Smith, J.,

The plaintiff seeks to recover for injuries to his real and personal property caused by the flooding of his cellar with water, which, he alleges, escaped from the public water pipe at or near a fire plug which had been placed in the street by the borough authorities,, and left resting upon a stone drain leading from the plaintiff’s cellar. The plaintiff’s theory is that the fire plug apparatus was too heavy for the drain, and therefore crushed it, and thus opened a passageway for the escaping water through and along the drain into the cellar, and that the flooding was due to the defendant’s negligence in not properly sealing the pipe, and in breaking the stone drain.

The defense set up was that the work of laying the water pipe and putting in the fire plugs was done by an independent contractor in accordance with adopted plans ; that the borough authorities had no control over the work; and that the borough, therefore, was not responsible for negligence on the part of the contractor.

At the close of the charge the learned trial judge reserved the following question: “ The uncontradicted evidence in the case being that the digging of the water pipe trenches, the construction of the pipe line, and the setting of the fire plugs in the borough of Yorkville, were committed to contractors employing their own workmen, and acting and performing the work under the general supervision of officials of the borough charged simply with the duty of seeing that the work was properly done according to the plans and specifications, the question whether, under tins state of the evidence, the breaking or stopping of the plaintiff’s drain pipe by the workmen employed by said contractors, and the flooding of his cellar by reason thereof, can create any liability on the part of the borough to compensate the plaintiff in damages, is reserved.” To this reservation no objection was made or exception taken, and a verdict having been rendered for the plaintiff, the court afterward made absolute a rule for judgment for the defendant upon the point reserved, notwithstanding the verdict. The plaintiff duly excepted to this entry of judgment for the defendant, and appealed to this court.

We are met at the threshold of the case as presented here with an objection to our review of the cause further than that presented in the reserved point and the ruling of the court thereon, upon the ground that no exception was taken to the reservation at the time it was made, in form or substance, and that it is now too late to do so.

The reservation sets out the facts upon which the legal question is based, and, under the law, that question is of such-, a nature that it necessarily controls the case. It thus contains the essentials of a properly reserved point: Wilde v. Trainor, 59 Pa. 439. The facts contained in a reserved question may be found by the jury specially, or may be agreed upon by the parties, or may be stated by the trial judge; in the latter case, if either party is dissatisfied he may object, and except to such statement, and thus preserve his right to have the correctness of the judge’s finding of facts reviewed by an appellate court. But if no exception be taken to the judge’s statement of facts, the parties will be presumed to have assented to them and are concluded by them and their legal effect. Thus in the case of Insurance Company v. Phœnix Ins. Co., 71 Pa. 31, in speaking of the effect of a reserved question by the trial judge, Mr. Justice Sharswood said: “No exception was taken to the reservation in the court below, and such being the case, we are bound to assume that it was assented to or acquiesced in by all parties as a true statement of the facts. Yery great injustice might be done if a party not objecting at the time of the reseryation should be permitted afterward to take the ground that there was no evidence of the facts, or that they ought to have been submitted to the jury. If a point of law be reserved it must be .done by stating on the record the facts .on which it arises : Winchester v. Bennett, 54 Pa. 510; Wilde v. Trainor, 59 Pa. 439; Ferguson v. Wright, 61 Pa. 258; Campbell v. O’Neill, 64 Pa. 290. Unless the facts are found by the jury specially, there is no mode of reserving a question but by an agreement, and if the judge states the facts without such an agreement, the party must make his objection and enter his exception at the time, according to every rule for the fair trial of causes.” In the case of Koons v. Western Union Tel. Co., 102 Pa. 164, where some of the questions were not properly reserved by the court below, Mr. Justice Paxson said: “Had the reservations been excepted to, a judgment entered for the defendant upon them could not have been sustained. If a reserved point is based upon facts that are not conceded, it is the duty of counsel to except and thus warn the court of what may be an unintentional mistake.” Again in Central Bank v. Earley, 113 Pa. 477, in discussing the same question, Mr. Justice Clark said: “ The facts must be admitted of record by the parties, or found by the jury. When they are stated by the court as a part of the record, and no exceptions taken, it will be presumed that the parties have so agreed, and that the statement is true.” In the case of Mohan v. Butler, 112 Pa. 590, the same learned jurist says : “ The error assigned in this case, is that the judgment was entered for the defendant, non obstante veredicto, upon the question of law reserved in the answer of the court to the defendant’s third point. In the determination of this question we must assume the facts to be as they are in the point stated. No exception was taken to the manner in which the question was reserved, or to the facts assumed, out of which the question of law is supposed to arise; the parties are therefore conclusively presumed to have acquiesced in the facts as stated in the point, and assented to the reservation as made. A party, not objecting at the time of the reservation, cannot be permitted afterward to say that the facts ought to have been submitted to the jury.” In the case of Headley v. Renner, 129 Pa. 542, in speaking of the practice and necessity of an exception to the manner of reserving a question, the Supreme Court, in a per curiam, say: “We are asked to reverse this judgment for the reason, inter alia, that the question of law was not properly reserved. This point should have been made at the time of the reservation. It will not do to acquiesce in the action of the court below, and then come here to complain of it. ‘ When no exception is taken below to a point reserved, the presumption is that it was assented to as a true statement of the facts: ’ Insurance Co. v. Insurance Co., 71 Pa. 31.” There are other cases to the same effect: Blake v. Metzgar, 150 Pa. 291; Fulton v. Peters, 137 Pa. 613; Heany v. Schwartz, 155 Pa. 154. It is clear from these authorities that the plaintiff is presumed to have assented to the correctness of the statement of facts embraced in the reservation; that not having excepted at the time, he is now estopped from denying its accuracy; and that the only inquiry which can now be made is as to the legal effect of the facts set out in the reservation.

The opinion of the learned judge disposing of the reserved question fully vindicates his conclusion .on tins point upon reason and authority. In Painter v. Pittsburg, 46 Pa. 213, the general principle was enunciated that one person' cannot be held liable for the acts or negligence of another unless the relation of master and servant or principal and agent exist between them; that when an injury is done by a party exercising an independent employment, the employer is not responsible to the person injured; and that this rule applies with full force to

municipal corporations. This rule has .been uniformly adhered to in the later Supreme Court cases where the question arose. It has been further held that liability for negligence is not shifted from the contractor to the municipality by the fact that the work is done under the direction of an official authorized to inspect it and to exercise all powers necessary to secure compliance with the contract, and that payment is conditioned on his approval of the work: City of Erie v. Caulkins, 85 Pa. 247 ; Wray v. Evans, 80 Pa. 102; Reed v. Allegheny City, 79 Pa. 300; School District v. Fuess, 98 Pa.. 600.

Under the law the judgment was properly entered on the reserved question in favor of the defendant, and it is therefore affirmed.


author: Orlady, J.,

text:
    Commonwealth v. A. J. Gibbons and Mark Rosenberry, Appellants.

      Criminal law — Evidence—Expert testimony.

    No clearly defined rule is to be found in the books as to wliat constitutes an expert. Much depends upon the nature of the question in regard to which an opinion is asked.
    Opinions of witnesses are in some cases admissible as evidence even when not coming properly under the head of expert testimony.

      Criminal law — Evidence of general and particular reputation.

    Defendants have a right to submit their reputation as peaceable, law abiding citizens as positive evidence and it is error to permit the commonwealth to seek to overcome the effect of this by proving a special ami particular reputation as an abortionist, abortion being the crime charged

      Criminal laio — Evidence as to character.

    In an indictment for procuring abortion evidence having been given as to defendant’s general good character it was error to permit the commonwealth’s witnesses, called in rebuttal, after stating that the character of defendant as a peaceful, law abiding citizen in his community was “ bad ” or “ not above reproach” to answer affirmatively questions touching his particular reputation as a procurer of abortion.

      Criminal law — Discretion of court limiting number of witnesses.

    After a reasonable number of witnesses have been called, it is not aiding the administration of justice to multiply the proof, and the trial judge being belter able to decide when to stop than the appellate court, his discretion will not be reviewed unless it is apparent that the defendant has been injured.

      Criminal law — Clerical error in docket entries — Q. S. and O. & T.

    The clay of mere technicality is past, and,courts will look more at substantial justice than artificial nicety. An assignment will not be sustained where the record shows that an indictment, trial and recognizance were had in the quarter sessions though the docket entries by clerical error were kept in the oyer and terminer. The defendant was deprived of no constitutional right, and the amendment, to correct what was a clerical error, was properly allowed.
    Argued Dec. 14, 1896.
    Appeal, No. 76, April T., 1897, by defendants, from judgment and sentence of O. T., Greene County, April T., 1896, No. 2, on verdict of guilty.
    Before Rick, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed as to defendant Rosenberry and reversed as to defendant Gibbons.
    Indictment for procuring abortion. Before Crawford, P. J.
    The facts sufficiently appear from the opinion of the Superior Court.

      Errors assigned were, inter alia, (1) admission of evidence on behalf of the commonwealth, of Mrs. McMasters, a midwife, touching the stains on clothing of prosecutrix washed by witness, and permitting witness to state her opinion that prosecutrix was in the family way; (2-9, 11). The defense having introduced evidence as to general good character; errors are assigned to permitting the commonwealth in rebuttal to interrogate certain witnesses as to the particular and special reputation of Dr. Gibbons as an abortionist; (10) in limiting the number of witnesses to be called by defendant as to reputation of defendant Rosenberry as a peaceable, law abiding citizen; (14) the oyer and terminer had no jurisdiction.

      Jas. E. Sayers, with him R. F. Downey and Joseph Patton, for appellants.
    As to 1st assignment and the character of.tire commonwealth’s witness as an expert cited: Carter v. Boehm, 1 Sm. L. C. (7th Am. ed.) 834, note ; Dell on Expert Test., 13. As to the rebuttal evidence involved in admission of testimony as to defendant’s special reputation as an abortionist, cited: Wike v. Lightner, 11 S. & R. 198 ; Snyder v. Com., 85 Pa. 519; Chess v. Chess, 1 P. & W. 41. The exception to the rule'is where the crime offered in evidence has a direct tendency to prove the particular crime charged. It must belong to the res gestae, and be one of the undesigned incidente illustrative of the particular litigated act: Shaffner v. Com., 72 Pa. 65; Com. v. Pipes, 158 Pa. 25; Wharton’s Crim. Ev., 9th ed. sec. 27. The proper test is reputation, not single acts: Elliott v. Boyles, 31 Pa. 65; Goersen v. Com., 99 Pa. 388. As to the fourteenth assignment consent cannot give jurisdiction, and the proceedings were a nullity: Mills v. Com., 13 Pa. 631.

      J. B. Donley, with him H. J. Ross, district attorney, for the commonwealth.
    Whether a witness may give Ms opinion on a state of facts described by him is a matter very much in the discretion of the court below: Oil Co. v. Gilson, 63 Pa. 146; Towboat Co. v. Starrs, 69 Pa. 36; Sorg v. Congregation, 63 Pa. 156 ; Company v. Coon, 10 W. N. C. 502.
    The court had power to correct the mistake in its own record: Cohn v. Scheuer, 115 Pa. 183; and it is not the subject of appeal: Kendig’s Appeal, 82 Pa. 68.
    January 19, 1897:
   Opinion by

Orlady, J.,

The defendants were convicted of procuring an abortion on the body of one Myrtle Waters, and fourteen assignments of error are urged for our consideration on this appeal.

The first refers to receiving in evidence the opinion of one Mrs. McMasters as to what produced the condition of certain soiled clothing which she had washed. This witness testified she had been present as nurse at over one hundred cases of childbirth; had seen Myrtle Waters prior to her illness and from her appearance judged she was in the family way far enough to show it; had washed a bedquilt and other clothing taken from the bed in which she had laid; that they were in a bad condition, “ very bad and very dirty and darklike colored in places.” “ I cannot tell just exactly what it was made by, but it was just the color I have always washed in them kind of clothes. Looked like blood in some condition.”

The commonwealth then asked, “Mrs. McMasters, from your examination and cleansing of these clothes, and your experience in childbirth and delivery and washing such clothes, what in yoür opinion caused the clothing to be soiled in the way it was and to the extent it was ? This for the purpose of showing that Miss Waters had been pregnant and had either had a miscarriage or childbirth just’previous to the time the witness spoke of, as testified to by Miss Waters.”

Objected to as incompetent and irrelevant. It is a disputed, fact in regard to the clothing whether it was that of Miss Myrtle Waters or not, and the further fact that it was a mere expression of opinion asked for on that subject.

By the Court: I understand her to say she washed these ' clothes, and had experience in childbirth and so on. We will permit her to do that.

The testimony as applied to- the facts stated was not incompetent and irrelevant but highly important and proper as corroborating the prosecutrix in a very material matter. The only merit the objection had, was to her competency to express her opinion as to the cause producing the soiled condition of the clothing taken from the bed.

The examination should have proceeded further to more fully explain the condition of the clothing, the facts and circumstances in detail, the presence or absence of foreign matters, but the omission of the commonwealth was largely relieved by the cross-examination.

The witness did not pretend to say what had produced the stain, but “ it looked like blood in some condition; ” and that it was different in amount, and not the color of the menstrual discharge.

No clearly defined rule is to be found in the books as to what constitutes an expert. Much depends upon the nature of the question in regard to which an opinion is asked: Ardesco Oil Co. v. Gilson, 63 Pa. 146; Towboat Co. v. Starrs, 69 Pa. 36; Kraut v. Railway, 160 Pa. 327.

The rule governing the action of the court is clearly expressed in Graham v. Penn. Co., 139 Pa. 149, “ That the opinions of witnesses are in some cases admissible as evidence even when not coming properly under the head of expert testimony, has long been established in practice. In several classes of questions the line between witness’s judgment or opinion and his affirmation of a fact is so indistinct that it cannot be marked out in practice.

“ Such are questions of identity of persons or things, of the lapse of time, of comparative shape, or color, or sound, of expression and, through it, of meaning, etc. In all these, however positively the witness may affirm facts, what he says is largely his opinion, but so blended with knowledge and recollection that the line where opinion ends and fact begins cannot be distinguished. Hence both must be admitted or both excluded, and to do the latter is often to shut out the only light the case admits of . •. . . where the circumstances can be fully and adequately described to the jury, and are such that their bearing on the issue can be estimated by all men, without special knowledge or training, opinions of witnesses, expert or other are not admissible,” followed in Dooner v. Canal Co. 164 Pa. 17. In Gaines v. Commonwealth, 50 Pa. 319, and in McLain v. Commonwealth, 99 Pa. 86, a non-expert witness was permitted to testify as to the existence of human blood from stains, but only after a full detailed statement of the facts. This assignment is not sustained.

The second to ninth and eleventh assignments relate to the admission in evidence of certain answers from as many witnesses, called by the commonwealth in rebuttal to answer a number called by the defendant, on the question of character, and all in substance the same. After stating that the character of Dr. Gibbons as a peaceable, law abiding citizen in his community was “bad” or “not above reproach,” they were permitted by the court to answer in the affirmative, questions, viz : “ Have 3ou heard general talk that Dr. Gibbons was guilty of abortion ? Is not the general talk to the effect that he has been practicing abortion in the-neighborhood? Is not the general reputation in that neighborhood that he is an abortionist ? Has there not been considerable talk for the last number of years connecting Dr. Gibbons with the crime of abortion ? ” The defendant excepted to each and the court in answer to the fifth point submitted by defendant gave the reasons moving it, in receiving the evidence: “The force of the testimony of the witnesses in this line is their knowledge of the general character or reputation of the defendants or either of .them in the neighborhoods in which they live, as peaceable and law abiding citizens, not what particular fact they or either of them may know with reference to it. It is not sought by the commonwealth to rebut the evidence of the defendant’s good character by suggesting any fact or circumstance alone, but by what is generally said or reported about that fact or circumstance as going to make up these defendants’ reputation as law abiding or peaceable citizens in that community.”

The evidence in rebuttal as to the character of Dr. Gibbons, took a much wider scope than is permitted in any reported case. It was a collateral attack which could not be expected nor defended against. It necessarily had great weight, for if one be shown to be guilty of another crime, equally heinous, it will prompt a more ready belief that he might have committed the one with which he is charged; it therefore predisposes the mind of the juror to believe the person guilty: Shaffner v. Commonwealth, 72 Pa. 65 ; Commonwealth v. Snyder, 85 Pa. 519.

The defendants had a right to submit their reputation as peaceable, law abiding citizens as positive evidence: Commonwealth v. Cleary, 135 Pa. 64.

It was sought to overcome the effect of this by proving the opposite reputation, and, in addition, that as to Dr. Gibbons, he had a special and particular reputation as an abortionist.

Under some circumstances a distinct crime unconnected with the one laid in the indictment may be given in evidence; to establish identity, prove knowledge, motive or design, etc.: Commonwealth v. Pipes, 158 Pa. 25.

And in actions of slander, to mitigate the damages, the rule is qualified, but no ease cited or found will sustain the contention of the commonwealth on this branch of the case, and these assignments of error are sustained.

The tenth assignment is not sustained; even if the number of witnesses had not been agreed to, it was clearly within judicial discretion to limit the number of witnesses on a particular phase of the case. After a reasonable number has been called, it is not aiding the administration of the law to multiply the proof, and the trial judge is better able to decide when to stop than an appellate court. Unless it is apparent that the defendant has been injured, the decision will not be disturbed, and we do not discover any such injury in this record: Union etc. Co. v. Moore, 80 Ind. 458; Everett v. Union R. R. Co., 59 Iowa, 243; Hilliard v. Beattie, 59 N. H. 462.

The charge of the court and answers to the points covered by the twelfth and thirteenth assignments were fair, and they are not sustained.

The fourteenth assignment is not sustained, as the record shows the cause was tried in the quarter sessions and recognizance and appeal filed therein. The indictment was found in that court, and though the docket entries were kept in the oyer and terminer, it was not suspected by anyone until the record was made up for certification to this court that the case had been tried therein. The defendants in this respect were not deprived of any constitutional right. Both courts were held by the same judge, and a single clerk fills the office of clerk in each. The amendment to correct what was a clerical error was properly allowed. The day of mere technicality is past, and courts will look more at substantial justice than artificial nicety: Brown v. Commonwealth, 73 Pa. 321.

This record as to Mark Rosenberry is free from error. As to him the judgment of the court is affirmed, and the record remitted that the sentence imposed may be carried into effect. The assignments of error sustained apply only to A. J. Gibbons, the other defendant. As to him the judgment is reversed and a venire facias de novo awarded.