text:
    Hartman’s Estate.

      Trusts and trustees — Cestui que trust — Assignment—Will.
    A direction in a will that the share of a son shall be paid directly to him “without diminution for the payment of any debts or liabilities whatever in transit from’’ the executor to him, applies to an assignment by the son of his share to his wife for the support of herself and children, and renders invalid such assignment.
    Argued May 10, 1906.
    Appeal, No. 102, April T., 1906, by plaintiff, from decree of O. C. Allegheny Co., Sept. T., 1905, No. 309, dismissing exceptions to adjudication in case of Julius Hartman v. Kate Hartman.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Exceptions to adjudication.
    Hawkins, P. J., found the facts to be as follows :
    Maria Hartman, by will dated October , 1899, gave all her estate to her children with the “ distinct will and desire and an express condition of the gifts hereinbefore contained that none of the effects, real, personal or mixed above bequeathed to Julius Hartman .... shall be liable to be attached or seized, or in any manner pledged, appropriated, disposed of or parted with by anticipation or before the same shall have accrued or become payable, but the whole amounts of their respective shares shall be for their respective, sole, separate and exclusive use and benefit, and shall be paid over and distributed by my executor or administrator directly to them, as the parties entitled thereto, without diminution for the payment of any debts or liabilities whatever in transit from my said executor or administrator to them. In 1902 Julius Hartman, upon information made by his wife, was ordered by the court of quarter sessions to pay her 15.00 per week for support. In August, 1904, a petition was presented on his behalf setting forth among other things this order for support, and an attachment issued upon which he was arrested and placed in jail and asking to be released upon his own recognizance, which prayer was refused; and the next month another petition was presented reciting this refusal to enlarge him and that “ he has now agreed with his wife to turn over to her all his interest in the estate of his mother (who had died in March); which was bequeathed to him by her last will and testament .... and that he has also agreed with his wife that the executor of his estate will turn over to his said wife all his interest upon the audit of said estate ; that he will also sign and receipt for any papers that may be required by reason of that; and that the same shall be a full release and discharge forever from his said wife of any claim that she may have against him.” Whereupon an assignment was made and this indorsement thereon, viz: “ I, Kate Hartman, wife of Julius Hartman, have accepted this promise given by my said husband, and -hereby consent that the order made for my support by your honorable court in this case, be revoked, and that my husband Julius Hartman be discharged as your honors deem proper,” and air order of discharge ivas accordingly made. During Mrs. Hartman’s married life of sixteen years she worked in stores, supported herself and children, her husband giving her nothing except under compulsion of an order of court. Testatatrix knew how Julius treated his wife and was herself friendly with her.
    The assignment made to Mrs. Hartman was presented for allowance.
    The court awarded to Mrs. Kate Hartman the sum of §602.12 as due to her under the assignment.
    Exceptions to the adjudication were dismissed by the court.

      Errors assigned were in dismissing exceptions to adjudication.

      W. S. Maxey, for appellant.
    — The share of Julius Hartman was payable only to him, and no power could take it from him —not eren his own act prior to the delivery of the same to him: Beck’s Estate, 133 Pa. 51; Goe’s Estate, 146 Pa. 431; Board of Charities, etc., v. Lockard, 198 Pa. 572; Holbrooks’ Estate, 213 Pa. 93; Rockhill’s Estate, 29 Pa. Superior Ct. 28.

      James T. Buchanan, with him W. U. Me Gary, for appellee.—
    The assignment was valid : In re Van Orden, 96 Fed. Repr. 86 ; Linton v. Linton, L. R. 15 Q. B. Div. 239 ; Com. v. Keeper of Jail of Philadelphia, 4 S. & R. 505 ; Thackara v. Mintzer, 100 Pa. 151; Decker v. Directors of the Poor, 120 Pa. 272; Board of Charities, etc., v. Moore, 19 Phila. 540.
    May 23, 1906 :
   Opinion by

Beaver, J.,

The will of Maria Hartman, after directing all her property, real, personal and mixed, to be sold and converted into money by her executor or administrator, and authorizing him to execute and deliver good and sufficient deeds for real estate, and to receive the purchase money, etc., provides : “ It is my distinct will and desire, and an express condition of the gifts, bequests and devises hereinbefore contained, that none of the effects, real, personal, or mixed, above bequeathed to Julius Hartman and Mrs. Katharina Cartus, or any of my other children, shall be liable to be attached or seized, or in any manner pledged, appropriated, disposed of or parted with by anticipation, or before the same shall have accrued or become payable, but the whole amounts of their respective shares shall be for their respective, sole, separate and exclusive use and benefit, and shall be paid over ana distributed by my executor or administrator directly to them, as the parties entitled thereto, without diminution for the payment of any debts or liabilities whatever in transit from said executor or administrator to them.”

An active spendthrift trust was clearly thus created: Board of Charities, etc. v. Lockard, 198 Pa. 572; Minnich’s Estate, 206 Pa. 405; Holbrook’s Est., 213 Pa. 93; Rockhill’s Est., 29 Pa. Superior Ct. 28.

That this is the legal effect of the will of the testatrix is practically admitted by the appellee, but it is claimed and strenuously argued that, taking the trust clause as a whole, it is limited to debts and liabilities,” and that the assignment under which appellee claims, being for the support of herself and children, was made in the discharge of a duty imposed both by nature and legal enactment and- does not come within the scope or interpretation of either. Accepting the appellee’s definition of liability as given by Bouvier: -“ Responsibility; the state of one who is bound in law and justice to do something which may be enforced by action,” etc., the decree of the court of quarter sessions, enforcing the duty of providing support for his wife and children created a legal liability of the highest character, and this is shown by the fact that in the enforcement of that decree the appellant was in prison at the time the assignment, under which the appellee claims the fund awarded to her in the distribution of the decedent’s estate, was made.

We can see no difference and no valid distinction between this case and that of Board of Charities, etc. v. Lockard, 198 Pa. 572, which we think clearly rules it.

The court below. endeavors to distinguish the cases in the opinion overruling the exceptions to the decree of distribution, although conceding “ that the terms of the trusts in the two cases are substantially the same.” It is not a question as to the character of the claim to the fund, whether based upon an attachment or an assignment. It is not a question of the appellant’s good or bad faith in now disputing the validity of his assignment. Nor can we consider what testatrix might have done or probably would have done, could she have foreseen the circumstances under which the assignment was made by her son, or, as suggested by counsel, had known of the decision in the Loekard case. The question is, What did Maria Hartman mean' by what she said in her will as to the distribution of her estate, and does that require the share of her son, Julius, to be paid directly to him “ without diminution for the payment of any debts or liabilities whatever in transit from ” the executor to him ? On that question the Loekard case is clear and rules this. The share of Julius Hartman in the estate of his mother should, therefore, have been awarded to him, under her will, and not to Mrs. Kate Hartman, under the assignment of her husband.

The decree of the orphans’ court, as to the distributive share of Julius Hartman, is reversed, and the record remitted with directions to amend the distribution in accordance herewith. The costs of this appeal to be paid by the appellee.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Daniel’s Case.

      Liquor law — License—Transfer—Revocation.
    Where a liquor license has been granted, but has been revoked by the clerk for nonpayment of the license fee within the fifteen days prescribed by the statute, and thereupon the licensee has abandoned the premises, there can be no transfer of the license to another person, inasmuch as there is nothing to which a petition for a transfer can attach.
    Argued May 15, 1906.
    Appeal, No. 168, April T., 1906, by ' William Daniel, from order of Q. S. Beaver Co., March T., 1906, No. 50, refusing to transfer liquor license in the matter of Petition of William Daniel for transfer of license.
    Before Rice, P. J., Porter, Henderson, Morrison, Orladv, Head and Beaver, JJ.
    Affirmed.
    Petition for transfer of liquor license.
    Holt, P. J., filed the following opinion:
    On February 10, 1906, August Shifler and Ferdinand J. Fournier presented their petition asking that a retail license be granted to them for what is known as the Grand Hotel in the Borough of Beaver Falls, in said county.
    . Before the filing of said petition the court fixed by standing-order March 7, 1906, for hearing in the above-mentioned application, and other similar applications, for liquor license, for the year beginning- April 1, 1906.
    On March 12, 1906, the evidence and the arguments of counsel having- been previously heard, the prayer of the petitioners was granted and the following- order made: “ March 12, 1906, after hearing the evidence, upon due consideration, bond approved and license granted.”
    The petitioners failed to pay the license fee to the- treasurer of Beaver county within the period of fifteen days next following the granting- of the said license and to produce the treasurer’s receipt therefor to the clerk of said court, and at the expiration of the said period of fifteen days the said clerk indorsed upon the original application the following order : “March 28, 1906, the within applicants not having filed the receipt of the treasurer of Beaver County as required by the Act of Assembly within fifteen days, the within application and grant revoked.”
    On March 28, 1906, after the above-mentioned order of the clerk had been made and entered, the applicants presented a petition in open court setting forth the fact of the grant of the license as aforesaid, and “ that owing to a mistake or a misunderstanding your petitioners failed to pay to the county treasurer the sum of money directed in Section 8 of said Act, within fifteen days after the granting of the same, believing that the present date, to-wit, the 28th day of the present month, the same could have been paid and received by the county treasurer; but on inquiry made this 28th day of March, your petitioners learned that no license would be issued, and that the license heretofore granted had been revoked, and praying for a rehearing in order that a license might be granted to them for the place described in the original petition.”
    After hearing the arguments of counsel upon the said application for a rehearing, we made the following order: “ And now, April 4, 1906, rehearing refused and petition dismissed.”
    On April 9,1906, the Grand Hotel Company, the owner of said hotel, presented its petition to the court, averring the fact of its ownership of said hotel; that said premises have been used for a hotel for the past seventeen years and that the same has been liberally patronized by strangers and travelers ; that on February — ,1906, the said hotel company leased the said premises to the said August Shifler and Ferdinand J. Fournier for hotel purposes, and that in accordance therewith the said August Shifler and Ferdinand J. Fournier presented their petition on February 10, 1906, to the above number and term, prajdng for a license' to sell liquors retail; the grant of the said license as above set forth: that the said August Shifler and Ferdinand J. Fournier neglected and refused to pay to the county treasurer the sum of money directed by law for said license within fifteen days after the granting of the same, and that they have closed said hotel and removed from the premises without any intention of returning and resuming the business, that by reason of said neglect and refusal to pay said license removal and closing of said hotel the public is left without any suitable and necessary accommodations, and extreme inconvenience will result to strangers and the traveling public, and that the petitioner would suffer great and irreparable loss of business; and praying the court to grant a license to William Daniel for the remainder of the year, and so forth.
    Accompanying the said petition of the Grand Hotel Company is the petition of William Daniel, setting forth the fact of the grant of a license to the said August Shifter and Ferdinand J. Fournier as above set forth, and praying that the court transfer and direct that said license issue to him, the said William Daniel, upon the showing of facts as set forth in the said petition of the Grand Hotel Company, and the payment of such sum of money as required by law.
    Upon the filing of the said petitions of the Grand Hotel Company and Willian Daniel, we made the following order: “ Filed April 9, 1906, and hearing fixed for 9 o’clock a. m., April 16, 1906.”
    At the hearing on April 16, 1906, counsel for the petitioners admitted that the said August Shifler and Ferdinand J. Fournier did not close said hotel and remove therefrom until April 5,1906.
    Under the facts above set forth we are called upon to make a transfer of the license granted March 12, 1906, or to grant a new license to the said William Daniel.
    The petition of the Grand Hotel Company avers that the said August Shiñer and Ferdinand J. Fournier “ neglected and refused to pay the sum of money required by law within the fifteen days after the granting of said license. This allegation is not according to the facts in the case. They neglected to pay the fee required by law, but did not refuse to make the payment.
    Section 9 of the Act of May 18, 1887, P. L. 108, ini relation to the matter of payment of fees for liquor licenses, reads as follows : “ If any person or persons shall neglect or refuse to pay the city or county treasurer the sum of money directed in Section 8 within fifteen days after his, her or their application for license has been granted by said court, then and in that case the said grant shall be deemed and held revoked and no license issued. It shall be the duty of the person or persons whose application has been granted by the said court to pay the said sum of money to the said treasurer within the said fifteen days, and forthwith produce to, and file with, the clerk of the court the receipt of the said treasurer therefor, and upon any default, the said clerk shall forthwith mark said application and grant ‘ Revoked.”
    The section of the act of 1887 above quoted, is imperative, and it seems to us that there is nothing before the court to transfer or upon which to act, under the facts alleged in the petitions for a rehearing and transfer of license. This case is ruled by the Appeal of D. C. Gibboney, reported in 6 Pa. Superior Ct. 323, wherein the following facts appeared: Lawrence Wacker filed an application for a bottler’s license. A remonstance was filed by the Law and Order Society. On May 14, 1897, a bottler’s license was granted. On May 30, 1897, in obedience to the Act of June 9, 1891, P. L. 257, the grant was revoked for nonpayment of license fee within fifteen days. On July 8,1897, Wacker presented a petition to extend the time of payment, which was granted. On July 9, 1897, a receipt of the city treasurer for the license fee was filed and the license issued. The opinion of the Superior Court was delivered by Oblady, J., who among other things, said: “ The applicant did not comply with the provisions of section 7 of the Act of June 9, 1891, P. L. 257 (the act in relation to wholesale licenses, which, so far as the payment of the fee and production of receipt are concerned, is the same as the act of 1887). The clerk of the court of quarter sessions noted of record the default of the applicant as follows: ‘ And now, to wit: May 30, 1897, the application and grant to Lawrence Wacker for bottler’s liquor license at 810 North Forty-eighth street, Thirty-fourth ward, is hereby revoked for nonpayment of license fee within fifteen days.’ On July 8, fifty-six days after the license had been revoked, Wacker presented his petition to the court, in which he gave reasons for the default, and said ‘ he had been disappointed in securing the necessary money to pay the license fee from an expected source, and had made a number of efforts to get the money elsewhere, but was unsuccessful.’ On this petition the court extended the time . within which to pay the license fee, and indorsed it ‘ License Granted.’ July 9, Wacker paid the county treasurer the license fee, filed in the office of the clerk of the court of quarter sessions a proper receipt therefor, and received from that official a bottler’s license for the year from January 1, 1897. . . . The applicant had, under the statute, fifteen days within which to decide whether he would accept or refuse. That time is definitely fixed by the statute and cannot be extended by the court. The subsequent action of the court was without statutory authority. The whole proceeding is founded upon the statute, and the right to this license ceased when the applicant made default in not paying within the prescribed time. . . . The license was properly revoked by the clerk.”
    The petitioner has cited the appeal of Jonathan A. Umholtz, 191 Pa. 177, as controlling the present case in his favor. In that case a license had been granted to one Hamburg, who, before the expiration of the fifteen days next following the grant of his license, removed from the premises and left the state without any intention of returning and taking charge of the business at the hotel. The license fee had not been paid within a period of fifteen days and the license was marked “ Revoked ” by the clerk. Umholtz, who was the owner of the hotel, presented his petition to the court of quarter sessions, setting forth the facts, and praying that the license granted. to Hamburg be transferred to him, according to section 7 of the Act of 1858, P. L. 365. The court of quarter sessions granted the prayer of the petitioner, and upon appeal to the Superior Court the order of the court below was reversed on two grounds : (a) That in contemplation of law a license is not deemed granted until the fee is paid and the receipt therefor produced to the clerk; (b) that the license having been revoked for nonpayment of fee there was no license to transfer to Umholtz. Upon appeal to the Supreme Court the order of the Superior Court was reversed and the decree of the court of quarter sessions was affirmed. Mr. Justice Green, in delivering the opinion of the Supreme Court, in that case, held that the 7th section of the above-mentioned act of Api’il 20, 1858, was not repealed by the act of 1887. Section 7 of the act of 1858 contains the following provision:
    - “ But if the party licensed shall die, remove or cease to keep such house, his, her or their license may be transferred by the authority granting the same, or a license may be granted to the successor of said party for the remainder of the year by the proper authority, on compliance with the requisitions of the law in all respects except publication, which shall not in such case be required.”
    As to the first point relied upon by the Superior Court, Mr. Justice Green-held that a license is in contemplation of law, granted from the time the court makes the order, and that the person to whom the license is granted, is, upon the making of the oi’der, a “ party licexxsed,” and that the party licensed havixxg removed froxn the hotel and the state with no intention of returning, the case was within the provisions of the above-xnentioned section of the act of 1858. The license, therefore, in that ease did not lapse, for the reason that the “ party licensed,” removed from the hotel while the license was in force, and the pro visions of the act of 1887 did not apply. This is the ground, as we gather it from the opinion, upon which Mr. Justice Green based his decision.
    In the case at bar, August Shifier and Ferdinaxxd J. Fournier neglected to pay the fee within the pexiod of fifteen clays, and subsequently asked a rehearing in order that they might be permitted to have a license granted to thexxx, and that they might be allowed to pay the fee; they continued to keep the hotel opexx until after the order of the court was xnade refusing to grant them a rehearing. The petitioners aver that the said Shifier and Fournier have closed the said hotel and rexnoved therefrom without any intention of returning thereto. We do not think that the case is ruled by Umholtz’s Appeal, 191 Pa. 177. Shifier and Fournier the “parties licensed ” did not rexnove from or cease to keep the hotel at a tixne when their license was in force. Their new license ceased to exist with the close of March 27, 1906, upon their neglect to pay the fee withiix the pexiod of -fifteen days next after the granting of the same. They did not close the hotel and rexnove therefrom until April 5, 1906, which was nine days after their new license ceased to exist and five days after their former license had expired. If Shifier and Fournier were not in a position to receive a license, we do not see how a case for a license could be made by the mere fact of their removal from the'hotel at a time when no license existed. We are therefore of the opinion that there is no license in being to be transferred to the petitioner, William Daniel, and we are also without any authority of law to grant him a license. Petition is dismissed.

      Error assigned was the order of the court.

      John A. Elliott, with him J. Rankin Martin, Weyand $• Moorehead and M. H. Patterson, for appellant.

      Frank E. Reeder, with him J. F. Reed, for appellee.
    May 23, 1906 :
   Opinion by

Beaver, J.,

The opinion of the court below fully covers all the questions involved in this case.' The statement of facts therein contained shows that at the time the former occupants of the hotel removed therefrom no license was in existence and there was, therefore, nothing to which the petition could attach. In this respect the case differs in its essential facts from Umholtz’s License, 191 Pa. 177.

We can profitably add nothing to what the court below has said in the very full opinion refusing the prayer of the petitioner and dismissing the petition. The order is, therefore, affirmed.


author: Rice, P. J.,

text:
    Shoup’s Estate.

      Trusts and trustees — Spendthrift trust — Parol evidence — Will.
    The mere fact that testator left a portion of his estate to a daughter absolutely, and another portion to a son in trust to receive the income only, raises no presumption that he intended to create a spendthrift trust for the son, nor in such a case will evidence be admitted, in order to establish a spendthrift trust, that the son was insolvent and incapable of making a living for himself.
    Argued April 10, 1906.
    Appeal, No. 36, April T., 1906, by
    Edward A. Young, trustee, from decree of O. C. Allegheny Co.r March T., 1905, No. 152, dismissing exceptions to adjudication in estate of John Shoup, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Exceptions to adjudication.
    Hawkins, P. J., filed the following opinion:
    The question involved in this case is the admissibility of parol evidence to show that this testator intended to create a spendthrift trust for his son.
    The facts are these :
    Testator gave one-third of his residuary estate to his executor “ in trust that' he shall put and place the same out at interest on good real security, or such other securities as he may see fit, and shall pay over the interest or dividends therefrom from, time to time when and as the same shall be got in and received by him unto my son Lewis Shoup for the term of five years from the date of my decease, at the end of which time I give, devise and bequeath unto my said son Lewis Shoup, his heirs and assigns, forever, the principal of the said one-third share of my residuary estate, with the exception of ten thousand dollars of said one-third share, which I .direct my said executor shall keep in trust and invest the same to the best advantage for and during the natural life of my said son Lewis Shoup; and from time to time as the same shall be got, to pay over to my said son for and during his natural life all the income, interest and dividends arising out of said trust; and upon the decease of my said son Lewis Shoup, I give, devise and bequeath unto the children of my said son Lewis, and my children, or their respective heirs and assigns, share and share alike, the aforesaid ten thousand dollars ($10,000).” The present account embraces this special fund of $10,000, and the interest of which was claimed under assignment made by the cestui que vie ; but the trastee objected that this interest was protected by a spendthrift trust, and in support of this construction proposed to show in connection with the above-quoted clause that “ at the time the will was made, and prior thereto, said Lewis E. Shoup was insolvent and utterly unsuccessful in business and entirely incapable of making a living for himself; /all of this to his father’s knowledge at the time the will was] made.” To this offer objection was made and the objection sustained by the auditing judge.
    It would have been of but little avail for the legislature to require that a will ab origine should be in writing, or fence the testator around with a guard of attesting witnesses, if, when the writing failed to make a full and explicit disclosure of his scheme of disposition, its deficiencies might be supplied or its inaccuracies be corrected from extrinsic sources : 1 Jarman on Wills, p. *409, ch. 13. In cases of doubtful construction, the circumstances in which a will was made are, it is true, admissible in aid of the ascertainment of intent; but the will itself must give rise to the question. Stambaugh’s Estate, 135 Pa. 585, upon which exceptant relies, carried this rule of extrinsic evidence to the verge ; and in view of the fact that there were, as the court finds, no creditors claiming, it is difficult to see how the question of spendthrift trust could have arisen; but even there the face of the will showed the improvident character of the donee and suggested the reason for the creation of the trust — the son ai^pearing as the testator’s debtor, and impliedly unable to pay, for his debt is deducted from his share of the estate and the residue placed beyond the hazard of his improvidence. The court did not undertake to inject a new condition of enjoyment into the gift, but said that the intent must be “ gathered from the will itself,” and “ the light of circumstances.” The will as the essential basis of construction was distinctly recognized. That case, then, is clearly distinguishable from the present. There is nothing on the face of this will importing an intent to create a spendthrift trust. It contains a simple direction to pay, without any suggestion of exclusive enjoyment, and therefore without any intent of exclusion. But it is said that the creation of every trust implies disability, and the proposed evidence of donee’s improvidence shows a necessity, and therefore an intent, to protect. It may be conceded that the creation of a trust does imply disability of some kind, but it does not necessarily imply disability of improvidence; it may mean lack of business experience in the\donee, and is entirely consistent with the absolute use of the benefit intended, as a multitude of similar cases in the books sho\V; or the purpose of the trust may have been to preserve the remainder and leave the cestui que vie free to use his bounty as he pleases —“ learning by his griefs.” Absolute, vesting is always favored; and when there are neither express nor implied restrictions on the use in the will itself, incidental liability for the donee’s debts follows, as of course. The statute of wills makes the wri ting the source of every testamentary right, and the courts have said again and again that wills must be construed by their four corners ; and where there is a gift absolute on its face the presumption is that it was intended to be absolute in its use. Why this particular trust was created the will fails to disclose, and there is consequently no occasion for construction and no reason for the aid of extrinsic evidence. There being then no suggestion of restriction in the use of the income on the face of the will, the presumption is that it was intended to be the subject of assignment or attachment as incidents of absolute ownership. ■
    The exceptions must therefore be dismissed.

      Errors assigned were in dismissing exceptions to adjudication.

      It. T. M. Me Oready, for appellant.
    — Sufficient doubt appears on the face of the will to require the admission of extrinsic evidence to throw light upon its meaning.
    Assuming that the bare language of the trust itself raises a presumption that the use of the income was to be unrestricted, such presumption is rebuttable, not conclusive, and is to be considered in the light of (1) the other provisions of the will; (2) the facts and circumstances surrounding the making of the will: Stambaugh’s Estate, 135 Pa. 585 ; Winthrop Co. v. Clinton, 196 Pa. 472; Allshouse’s Estate, 23 Pa. Superior Ct. 146 ; Rouser’s Est., 8 Pa. Superior Ct. 188 ; Sharp v. Wightman, 205 Pa. 285 ; Zeigler v. Eckert, 6 Pa. 13 ; Postlethwaite’s App., 68 Pa. 477 ; MacConnell v. Wright, 150 Pa. 275 ; Keyser v. Mitchell, 67 Pa. 473.

      Jos. Ilowley, with him W. A '. Hudson, for appellee,
    cited: Bremer v. Mohn, 169 Pa. 91; Park v. Matthews, 36 Pa. 28 ; Girard Life Ins. & Trust Co. v. Chambers, 46 Pa. 485.
    May 14, 1906 :
   Opinion by

Rice, P. J.,

It was said in Mehaffey’s Estate, 139 Pa. 276, that it is well settled by an unbroken line of cases, commencing with Fisher v. Taylor, 2 Rawle, 33, that, “ by using apt words ” a parent may create a special trust for the benefit of an unfortunate or a spendthrift child, without exposing his bounty to liability for any debts, contracts, or engagements of the beneficiary. No “ apt words ” for the creation of such special trust appear in the will; but it has been declared that a specific provision -that the income shall not be subject to the debts or liabilities of the beneficiary is not absolutely essential to the accomplishment of this object, but that the trust will be construed to be a spendthrift trust, if the terms of the instrument creating it show that the donor’s intention would be frustrated by the subjection of the income to the claims of creditors: Winthrop Co. v. Clinton, 196 Pa. 472. But while under the law of this commonwealth spendthrift trusts are not regarded with disfavor, yet they are not looked upon with such special favor as warrants the courts in construing a trust to pay the income of a fund to the testator’s son for life, without more, to be a spendthrift trust, or, in case of such a gift, departing from the general rule that when the language of a will is clear and unambiguous a doubt 'suggested by extrinsic evidence cannot be permitted to affect the construction of the instrument. But it is argued that, the mere creation of the trust for a son, while reposing confidence in others “ contrary to the usual order of things,” is enough in itself -to raise a doubt as to the intention of the testator, thus taking such a case out of the general rule last stated. This argument, as applied to this case, is based largely on the distinction which the testator made between his only son and his married daughter. But assuming for a moment, as the learned counsel contends, that this indicates that the testator had less confidence in the former than in the latter, it seems to us a non sequitur to say that it also gives rise to doubt whether the language of the gift of $10,000 in trust to pay the income to the son for life fully expresses the testator’s intention as to the right of the son to subject the same to liability for his debts and engagements. The language of the gift to the son being clear and unambiguous is not rendered doubtful in meaning by the mere fact that the gift to the daughter was not restricted to the income. Why the testator made this difference is matter of speculation; but inability to discover from a perusal of the will the reasons which influenced him to make the distinction is one thing, while to doubt whether the will fully expresses his intention is another and quite different thing. The former, standing alone, is no ground for resorting to extrinsic evidence. Presumably, withholding the principal from the son, and giving him the income only, constituted the full measure of restriction upon the son’s possession and enjoyment of that part of the estate which the testator deemed wise under the circumstances. If parol evidence was admissible in this case to sustain a construction whereby the trust as to the fund in question would be converted into a spendthrift trust, it is difficult to see why such evidence should not be admitted in -every case, no matter how clear and unambiguous the terms of the will, where a testator has given a share of his estate to one child absolutely, and has restricted his gift to another child to the income of another share which he has put in trust. This would be in plain contravention of the general rule that extrinsic evidence will not be admitted to create a doubt, and thus affect the construction of a will which on its face is clear and free from doubt and needs no construction. We all concur in the conclusion reached by the court below, and in the reasons assigned therefor in the opinion filed by its learned president. His discussion of the questions involved, and of the distinctions between Stambaugh’s Estate, 135 Pa. 585 (which in Winthrop Co. v. Clinton, 196 Pa. 472, was conceded to be an extreme case) and the case at bar, renders further elaboration by us unnecessary.

The decree is affirmed, the appellant to pay the costs.


author: Per Curiam,

text:
    Avalon Borough.

      Boroughs — Division into wards — Petition—Act of May 14, 1874, P. L. 159.
    A petition for the division of a borough into wards, filed under the provisions of the Act of May 14, 1874, P. L. 159, represented that the petitioners’ “interests and that of the citizens and taxpayers of said borough would be promoted by a division of the borough into wards.” The act gave the quarter' sessions authority to divide boroughs into wards “so as to suit the convenience of the inhabitants thereof.” Held, that the petition was sufficient to give the court jurisdiction to appoint commissioners.
    A petition- for a borough into wards set forth that the petitioners “do respectfully pray the court to appoint three impartial men to inquire into the propriety and expediency of granting the prayer of the petitioners, and to report their opinion on such propriety and expediency .... and to retain a plot of the borough with lines and boundaries of the wards, if they recommend." Held, that the petition was not open to the objection that it did- not pray for a division of the borough into wards.
    Where commissioners appointed to divide a borough into wards report that “ it is desirable and proper that the prayer of the petitioners should be granted, and that the interest of the citizens and inhabitants of the borough" will be best subserved by the division thereof into wa-rds, according to the boundaries set forth in the report, the commissioners cannot be charged with a failure to find that the division recommended will “suit the convenience of the inhabitants."
    Argued April 10, 1906.
    Appeal, No. 78, April T., 1906, by A. W. McCormick et al., from order of Q. S. Allegheny Co., Sept. T., 1904, No. 32, confirming report of commissioners in the matter of the division of the Borough of Avalon into wards.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Petition for the division of the Borough of Avalon into wards.
    The opinion of the Superior Court states the case.

      Error assigned was the order confirming the report of the commissioners.

      Charles P. Lang, of Jackson Lang, for appellant.
    — In cases of this character, directed by statute, the requirements of the statute ought to be strictly complied with. The court will assume that they are exacted for proper purposes: Brown v. Fowzer, 114 Pa. 446; In re Division of Gettysburg, 90 Pa. 355; Lansford Borough, 141 Pa. 134; Lancaster County’s App., 163 Pa. 259.

      Noah W. Shafer, for appellee,
    cited : Lansford Borough, 141 Pa. 134.
    May 14, 1906:
   Per Curiam,

1. It is objected that the petition did not set forth that the division of the borough into wards was necessary “ to.suit the convenience of the inhabitants thereof,” but only represented that the petitioners’ “ interests and that of the citizens and taxpayers of the said borough would be promoted by a division of the borough into wards.” This objection was not raised until after the commissioners made their report,, and' at the worst is not a substantial or a jurisdictional defect. The Act of May 14, 1874, P. L. 159, under which the proceedings were had, does not declare what the petition shall contain. It simply provides,, in the first section, that the several courts of quarter sessions shall have authority to divide boroughs into wards, “ so as to suit the convenience of the inhabitants thereof,” and in the second section, that “ upon application by petition of at least twenty freeholders resident in the borough .... for the purpose of dividing any borough into wards, .... the said court shall appoint three impartial men to inquire into the propriety of granting the prayer of the petition,” etc. The petition in the present case was signed by the required number of petitioners and averred substantial reasons for the division. It was sufficient to give the court jurisdiction to appoint commissioners, and to divide the borough into wards “so as to suit the convenience of the inhabitants thereof,” if the subsequent proceedings were in conformity to law, and the court was convinced that the convenience of the inhabitants would be promoted thereby. The petition in In re Gettysburg, 90 Pa. 855, was in the form objected to here, and while this feature of it was not discussed, the fair inference from the decision is that such a petition was deemed sufficient to give jurisdiction.

2. After setting forth the reasons for the division into wards the petition proceeds, “ and to that end they do respectfully pray the court to appoint three impartial men to inquire into the propriety and expediency of granting the prayer of the petitioners and to report their opinion on such propriety and expediency, .... and to return a plot of the borough with, lines and boundaries of the wards if they recommend any,” etc. This quotation from the petition is a conclusive answer to the objection that a division of 'the borough into vfards was not prayed for. The petition could not be construed otherwise without resorting to hypercriticism. /

3. The remaining objection urged by the appellants is that there is no finding by the commissioners that)' the division recommended will-“ suit the convenience of the inhabitants.” But that this was the opinion of the commissioners, and that they were governed in the performance of their duties by the principles declared in Brown v. Fowzer, 114 Pa. 446, we think is necessarily implied in their report, that after inquiring into the propriety and expediency of dividing the borough into wards, and fully considering the testimony offered on both sides and the arguments of counsel, they were of opinion “ that it is desirable and proper that the prayer of the petitioners should be granted, and that the interests of the citizens and inhabitants of the borough ” will be best subserved by the division thereof into wards, according to the boundaries set forth in the report.

All the assignments of error are overruled and the proceedings are affirmed.


text:
    Everson Borough.

      School law — Agreement between school districts — Decree of court — Apportionment of property and debt — Acts of April 11, 1862, P. L. 471, and J une 24, . 1895, P. L. 259.
    Where a borough is formed out of a portion of a township and a new sdhool district thereby created, the two school districts may agree that in consideration of the new district having within its limits most of the property, all of the bonded indebtedness of the old district shall be assumed by the new district, and upon such an agreement being submitted to the court, a decree in accordance therewith will be entered without the necessity of hearing any testimony.
    The Act of April 11, 1862, P. L. 471, has not been repealed or suspended by the Act of June 24, 1895, P. L. 259.
    Argued April 16, 1906.
    Appeal, No. 47, April T., 1906, by the School District of Upper Tyrone Township, from order of Q. S. Fayetté, Go., March T., 1903, No. 191, discharging rule to set aside decree in matter of the incorporation of Everson Borough.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Rule to set aside decree.

      Umbel, J., stated the facts as follows :
    December 7, 1903, a portion of Upper Tyrone township was incorporated into a borough under the name and style of the borough of Everson.
    Before the incorporation of the borough the school district of Upper Tyrone township had incurred an indebtedness of several thousand dollars, a large portion of which was then unpaid, lienee after the incorporation an adjustment of the indebtedness and the' property rights between the two school districts became an imperative necessity, and it seems to have been conceded by all parties that an undue proportion of the school property of the township was within the borough limits, and as a legal consequence it should pay to the township the value of such undue proportion.
    On or about January 28, 1904, an amicable adjustment was affected by an agreement between the two school boards, providing that the school district of the borough of Everson should assume and pay the balance of the bonded indebtedness of the said township, and that said assumption and payment should be a full and complete settlement for the undue proportion of school property within the borough limits ; and on January 28, 1904, aforesaid, proper resolutions were adopted by the school board of each of the said districts regarding the matter, setting forth therein and in preambles thereto the material facts, authorizing, directing and empowering the president and secretary of the respective boards to execute and deliver in the name of their respective districts such deed, deeds, acquittances or agreements as might be required to carry out the same.
    Soon thereafter a petition, on behalf of the boards of directors of the two school districts embodying, inter alia, the facts aforesaid, was presented to the court, praying the “ court to make a decree directing the school district of the borough of Everson to assume and pay the aforesaid bonded indebtedness yet remaining unpaid as the said bonds shall, from time to. time, become due and payable, principal and interest, and that such assumption and payment shall be a settlement in full for the undue proportion of school property located within the limits of the said borough of Everson at the time of its incorporation and a settlement in full of all the rights accruing to either or both of said districts by reason of the incorporation of the said borough.”
    Whereupon the court ordered and decreed as follows, viz:
    “ Now, March 8, 1904, petition presented in open court and after consideration, in pursuance of agreement of said boards of directors, the court orders and decrees that the said school district of the borough of Everson assume and pay the bonded indebtedness in said petition mentioned as the said bonds shall from time to time become due and payable, principal and interest, and that such assumption and payment shall be full settlement for the undue proportion of school property within the borough of Everson at the time of its incorporation and a settlement of all the rights accruing to either or both of said districts by reason of said incorporation.”

      Error assigned was the order discharging the rule.

      James R. Cray, with him J). W. McDonald, for appellant.

      H. S. Dumbauld, of Sterling, Higbee, Dumbauld $ Rroim, for appellee.
    May 14, 1906 :
   Opinion by

Rice, P. J.,

By the incorporation of a portion of a township as a borough a new school district is formed within the meaning of the eleventh section of the Act of April 11, 1862, P. L. 471: In re Abington School District, 84 Pa. 179. The section provides as follows : “ When a new school district is formed, the court establishing the same shall determine, on hearing, whether an undue proportion of the real estate and schoolhouses, belonging to the old district or districts, are within the bounds of the new district, and if so, how much money shall be paid therefor by the new to the old district or districts, and if any money be on hand, or debt unpaid, or any tax, or other claims, be uncollected, after the settlement of all accounts of the current year, the proper court shall divide said money, or debt, among the districts, in such proportions, and shall make such order as to uncollected tax, or other claims, as shall be just.”

The order in the present case was made upon the joint petition of the two school districts formed by the incorporation of part of the township of Upper Tyrone as the borough of Ever-son. Eight months after it was made a rule was granted, upon the petition of the newly elected school board of Upper Tyrone, to show cause why it should not be set aside. An answer was filed b3r the school district of Everson denying the allegation of the petition affecting the qualifications and disinterestedness of three of the township directors who participated in the agreement upon which the order was founded, and the further allegation that the agreement was inequitable and injurious to the township school district. No testimony was taken in support of either of these allegations ; therefore in the disposition of this appeal from the order discharging the rule to show cause they will be left out of consideration.

1. The appellant’s counsel question the original order upon the ground that imposing the bonded indebtedness of the former district upon the new district was not an authorized mode of adjustment. This might be true, if it had not been assented to b3rthe two parties interested in the adjustment, and the only matter to be determined was, whether an undue proportion of the real estate and schoolhouses belonging to the old district were within the bounds of the new district. But in addition to the latter matter, the act provides that if any money be on hand or debt unpaid, the court shall divide said money, or debt, among the districts in such proportion, and shall make such order as to uncollected tax, or other claims as shall be just. We can conceive of conditions where a just and equitable apportionment of the rights and liabilities of the former district, as well as- a proper adjustment of the compensation the new district ought to make for the undue proportion of the real estate and schoolhouse which are within its bounds, would both be attained by the simple imposition of the entire bonded indebtedness of the former district upon the new district, and where such method of adjustment would be advantageous to both districts. Where such conditions exist, and such method of adjustment is agreed to and prayed for by both districts, we see no reason to doubt the power of the court to adopt it.

2. But the point most strenuously insisted upon by the appellant’s counsel is, that the court had no authority to make any final order or decree in the matter except on hearing ” and that the record shows there was no such hearing in the present case as the statute contemplates. This argument is based on the assumption that a decree “ on hearing ” necessarily implies a decree based on testimony. But if in the present case the proceeding had been instituted by the petition of one of the districts and the other had appeared pursuant to citation or other legal process, it certainly cannot be successfully claimed that, although there was no dispute between them as to the facts, they must nevertheless go to the expense of establishing them by the depositions of witnesses, or by the production and examination of witnesses in open court. As in ordinary litigation, so here, the parties to it are entitled to a hearing upon the issues of law and fact involved in the proceeding, but no rule of procedure debars the court from taking cognizance of the facts agreed to by them (this is precisely what was done in Munhall Boro. School Dist. v. Mifflin Twp. School Dist., 207 Pa. 638), or from approving an adjustment of their affairs which the law permits, and which they agree is justified or required by the undisputed facts. Whatever may be the power of the court, upon the ground of fraud or other equitable consideration, to set aside an order, which the law permits and the two school districts have agreed to and prayed for, it is quite clear that such order cannot be declared void merely because at the hearing no evidence was produced by either party outside of their agreement. As to the validity of agreements between the school boards of the two districts we refer to our recent decision in Rouseville Boro School District v. Cornplanter Twp. School District, 29 Pa. Superior Ct. 214. The argument based on the supposed dangers incident to the sanctioning by the court of such an agreement as was made by these school boards might be made with equal force against the general legislative policy relative to the management of the affairs of school districts. It will be time enough to consider the effect of proof of fraud and collusion upon the validity of an order of court founded on such an agreement when a case .arises where such proof is presented. No proof of that kind, nor any evidence that the adjustment agreed to was inequitable or unjust, was submitted to the court below; therefore the court was right in concluding, that as the order was not void for want of jurisdiction it ought not to be set aside.

3. The third question presented is, whether the act of 1862 was repealed or superseded by the Act of June 24, 1895, P. L. 259. The provisions of the latter act are much broader in their scope than the act of 1862. But as we view the case it is unnecessary to discuss them or the general subject of the repeal of the statute by implication. The concluding section expressly declares that “nothing in this act contained shall be construed to supersede or repeal the provisions of any existing act of assembly applicable to the same subject-matter.” The act of 1862 is such an act.

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


author: Orlady, J.,

text:
    Commonwealth v. Nagle, Appellant.

      Appeals — Interlocutory order — Desertion—Issue.
    An order refusing a petition for an issue to determine the paternity of a child, in proceedings under the Act of April 13, 1867, P. L. 78, by the mother of the child, for an order on the father for support of the child, is an interlocutory order from which no appeal lies.
    Argued April 23, 1905.
    Appeal, No. 45, Oct. T., 1905, by defendant, from order of Q. S. Piula. Co., Jan. T., 1904, refusing an issue in case of Commonwealth v. Theodore M. Nagle.
    Before Rice, P. J., Orlady, Smith, Porter, Morrison and Henderson, JJ. ■
    Appeal quashed.
    Petition for an issue to determine the paternity of a child.
    The opinion of the Superior Court states the case.

      jError assigned was the order of the court.

      Dwight M. Loiurey, with him George S. Graham, for appellant.'

      William T. Conner, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellee.
    May 14, 1906:
   Opinion by

Orlady, J.,

This is a proceeding instituted, under the Act of April 13, 1867, P. L. 78, by a mother of a minor child, for an order on the father for fhe support of the child. A warrant was issued by a magistrate in Philadelphia, on September 23,1903, on the oath of Agnes G. Nagle. On December 2,1903, the defendant was arrested and gave bail before an alderman of Erie, Pa., for his appearance at the succeeding January Term of the court of quarter sessions for Philadelphia county.

So far as the record discloses the case rested until December 20, 1905, when the defendant presented his petition praying that an issue be framed, between the commonwealth and the petitioner, to try, before the jury the disputed question of the paternity of said child. To this petition an answer was filed the same day by Agnes D. Nagle, in Avhich all of the material facts, on Avhich the defendant relied, Avere substantially denied, and no additional evidence was presented to the court. After argument on December 27, the prayer of the petition was refused and an exception allowed, from which decree this appeal is taken.

Under the statutes limiting the right of appeal to final decrees only, it is necessary to preserve the distinction between decrees Avhich are merely interlocutory and those AA'hich are final, and while the distinction is sometimes exceedingly nice, it is clear that the order of which this defendant complains is merely auxiliary to the final determination of his case; affecting merely the mode of procedure and not involving a strict legal right of the parties.

The defendant pressed his motion for an issue while his petition was challenged in every important statement, without supporting it by any additional evidence, and if, for no other reason, the court was justified in refusing the prayer. There is no appeal from a judgment rendered in the exercise of discretionary power, unless it is specifically given by statute. It •is .not the use but the abuse of such a power that gives this court its supervisory control in such cases: Felts v. D., L. & W. Railroad Co., 160 Pa. 503.

The defendant’s right to appeal at this stage of the case is so fully and clearly considered in Commonwealth v. Mills, 26 Pa. Superior Ct. 549, that it is not necessary to add further authorities.

No question of right to a trial by a jury arises in this record; there is nothing in the constitution which prohibits the legislature from declaring, by its Act of March 13, 1.903, P. L. 26, that the misdemeanor of a - husband or father who deserts or neglects to support his wife or child may be punished, by his being sentenced to pay a fine and be imprisoned, or either or both at the discretion of the court, without interfering with the remedies provided by the act of May 13, 1867, in securing an order for maintenance against a father who has deserted and failed to support his minor child.

The act of 1903 created a new offense defined as a misdemeanor, on conviction of which, imprisonment and fine may follow but in no way does it supersede a proceeding under the prior act.

The appeal is quashed.


author: Rice, P. J., Mokrison, J.,

text:
    Marks v. Willenski, Appellant.

      Insolvency — Bond—Surrender of principal — Act of June 4,1901, P. L. 404.
    The surety on the bond of an insolvent debtor is not relieved from liability by the fact that the insolvent surrendered himself for imprisonment eight days after the order against him was made, although no time was fixed in the order for the surrender and the insolvent had no knowledge that the order had been made until his counsel informed him of the fact, and he then immediately surrendered himself.
    Argued Oct. 12, 1905.
    Appeal, No. 161, Oct. T.,/1905, by defendant, from order of O.'P. No. 4, Phila. Co., Jnne/T., 1904, No. 5,335, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Israel J. Marks v. Charles Willenski and Adolph Mark.
    Before Rice, P. J1, Beaver, Orlady, Porter, Morrison and Henderson, ,JJ.
    Affirmed.
    Assumpsit upon a bond.
    Rule for judgment for want of a sufficient jaffi davit of defense. /
    The facts appear by the opinion of the Superior Court.

      Error assigned was the order of the court, making absolute rule for judgment for want of a sufficient affidavit of defense.

      Charles S. Wood, for appellant.
    — The defendant, Willenski, complied with the terms of the insolvent bond and the order of court: Crissy v. Vogt, 9 Pa. Superior Ct. 418; Saunders v. Quigg, 112 Pa. 546; Keim v. Saunders, 120 Pa. 121; Saunders v. Smith, 132 Pa. 180; Saunders v. Perkins, 140 Pa. 102; Marks v. Drovers’ Nat. Bank, 114 Pa. 490; Greenwaldt v. Kraus, 148 Pa. 517; Mullen v. Wallace, 2 Grant’s Cases, 389.

      Louis Goodfriend, for appellee.
    — The defendant cannot relieve his surety by doing subsequently that which he should have done in the first instance: Taylor’s Case, 1 Pears. 191; Bartholomew v. Bartholomew, 50 Pa. 194; Com. v. Grimes, 116 Pa. 450; Fry v. Com., 1 Lanc. L. Rev. 14; Hunter v. Keller, 1 Pa. C. C. Rep. 617; Frick v. Kitchen, 4 W. & S. 30 ; Smith v. Barker, 6 Watts, 508 : Detwiler v. Casselberry, 5 W. & S. 179 ; Wolfram v. Strichouser, 1 W. & S. 379; Kelly v. Stepney, 4 Watts, 69; Gallagher v. Kenedy, 2 Rawle, 163; Palethorpe v. Lesher, 2 Rawle, 272; Claxton’s Case, 1 Ashmead, 192.
    June 30, 1906:
   Opinion by

Rice, P. J.,

This is an appeal from a judgment for want of a sufficient affidavit of defense in an action upon an insolvent bond, in which the appellant, Adolph Mark, was surety, brought by IsraéNJ. Marks, the obligee in the bond. It appears that a judgment in an action of crim. con. was obtained against one Willenslai upon which a ca. sa. was issued by virtue of which Willenski was arrested. Thereupon he presented a petition and obtained a rule to show cause why he should not be discharged fro^n arrest upon his giving the bond in question. The petition and^proceedings were under sec. 5 of the act of 1901. The condition of the bond so far as material here was that he should appea'f on April 17,1905, and comply with all the requisitions of law, P and abide all the orders of the said court, in that behalf, or in default thereof, if he fail in obtaining his discharge as an insolvent debtor that he shall surrender himself to the jail of the sai^. county.” No formal order was made on April 17th, but it is not denied that the petitioner appeared on that day and that a hearing was had. On April 19, 1905, the court made the following order: “ And now, April 19, 1905, the rule to show cause why the defendant should not be discharged from arrest heretofore granted, having been duly heard at the bar of the court upon the return day thereof, to wit: April 17, 1905, it is ordered that the said defendant surrender to the custody of the sheriff under the writ of capias ad satisfaciendum by virtue whereof he was arrested, and that he be held by the said sheriff in the jail of the county of Philadelphia for the term of thirty days from the date of his surrender, unless he shall before the expiration thereof pay to the plaintiff, Israel J. Marks, the amount of the j udgment obtained against him in this cause, together with interest thereon and the costs of suit; and it is further ordered that upon payment of the said judgment, together with the interest and costs as aforesaid to the said plaintiff, if said payment shall be made before the end of the said period of thirty days, or if not, then upon the termination of said period of thirty days, reckoned from the date of the surrender of the said defendant to the sheriff, the said defendant shall be discharged from custody and imprisonment.” Nothing further appears to have been done until April 25th, when this action was brought and the summons was served upon Mark the surety and returned nihil as to Willenski. It is alleged in the affidavit of defense that on April 27, 1905, Willenski immediately, upon being informed by his counsel of the foregoing order, surrendered himself to the sheriff and served an imprisonment of thirty days and has since been discharged by the keeper of the jail.

It is argued that it was unreasonable to hold that the petitioner was. in default before he received actual notice of the order of April 19th. We can find nothing in the bond or in the order or in any statute relating to the proceeding to sustain this claim either as to the petitioner or the surety. It fails to give due weight to the fact that the petitioner for discharge under the insolvent laws is the actor in the proceeding and it is incumbent on him to take such action as will bring it to the conclusion the statute contemplates. Hence it has been held, as stated by Thompson, J., that “ when the order fixes a day for final hearing, the petitioner must ask for his discharge, or if unable, from some mistake or omission, to have this, he must make his peace with the court, and get a continuance, or if not, and he would save his bond, surrender himself to jail. Either a discharge, or continuance, or surrender must appear to save the bond: ” McDonough’s Case, 37 Pa. 275. The same principle has been applied or recognized in Bartholomew’s Administrator v. Bartholomew, 50 Pa. 194 ; Rowand v. Smiley, 96 Pa. 165; Commonwealth v. Grimes, 116 Pa. 450, and other cases. The principle is applicable here. The petitioner did not obtain his discharge on the day of the hearing and did not surrender hiniself. If he had asked the court to designate a day for termination of the proceeding by formal order, and to continue the matter until that day, doubtless the court would have granted the request. But he had no right to assume that actual notice of the order would be served upon him. Not having moved for a continuance to a day certain he was bound to take notice of the order, as other litigants are bound to take notice of the entry of judgment and like matters.

The order of April 19th, is criticised because it did not fix a day for the petitioner to surrender himself, and it is suggested that in the absence of that the condition of tire bond would be satisfied by a surrender within a reasonable time. The answer to this objection and claim is twofold: First, the validity of the order' cannot be brought in question in this collateral proceeding; second, the statute fixes forty-eight hours as the time and tins must be taken as if expressly included in the order.

We are referred to Saunders v. Quigg, 112 Pa. 546, and other cases of the same class in which it is held that where an insolvent fails to obtain his discharge and voluntarily surrenders himself to the warden of the jail he complies with the condition of the bond and, though the warden refuses to receive him, his sureties are discharged. But in these cases there was a surrender or offer to surrender on the day the discharge was infused. They do not decide that the petitioner may relieve his surety by surrender at any time. In a case where the petitioner went to prison the following day it was held too late. Huston, J., who delivered the opinion of the court, said: “ I would not, for myself, divide a day, and say he must set out to jail the instant the opinion of the court was delivered; but it must be on that day. If we allow surrender at any time after, at what point are we to stop; a weelt, a month or a year ? His return .to jail, then, was a useless, and, for all legal effect, a void act: ” Frick v. Kitchen, 4 W. & S. 30. The act of 1901, has modified this strict rule, but there are no grounds set forth in the affidavit of defense which relieved the petitioner from the duty to surrender himself within forty-eight hours after the order of April 19th was made, if he desired to relieve his surety. We find no error in the order entering judgment for want of a sufficient affidavit of defense.

The judgment is affirmed.

Mokrison, J.,

dissenting:

I find myself unable to agree with the opinion of the majority of this court in this case.

It is an action on an insolvent bond executed by the defendants conditioned “that if the said Charles Willenski shall appear at the next term of the common pleas of said county, on April 17, 1905, and then and there present his petition for the benefit of the insolvent laws of this commonwealth, and comply with all the requisitions of the said law, and abide all the orders of the said court, in that behalf, or in default thereof, if he fail in obtaining his discharge as an insolvent debtor that he shall surrender himself to the jail of the said county,” etc.

On March 27, 1905, on petition of defendant, the court granted a rule upon the plaintiff to show cause why the defendant should not be discharged from arrest, returnable April 3, 1905, and it is ordered that the defendant be now discharged from arrest upon his paying the sheriff’s costs and entering security for his compliance with the decrees of the court and the requirements of the act of assembly in such ease made and provided, in the sum of $1,000. On March 28,1905, the court ordered that the return day of the above rule shall be on April 17, 1905, instead of April 3, and on that day the bond above referred to was given.

It seems to be conceded that on the day following his arrest on a capias ad satisfaciendum, the defendant made a general assignment for the benefit of his creditors, and made said petition to the court for leave to take advantage of the benefit of the insolvent laws and for a rule discharging him from arrest, pending a hearing upon his petition.

It appears from the record that the application was made under the provisions of the Act of assembly of June 4, 1901, P. L. 404, and this must necessarily be so because that act expressly repeals so much of the acts of March 24, 1818, of June 14, 1836, and of June 16, 1836, as applies to proceedings of this character. It further appears from the record that the defendant, Willenski, appeared in court in person and by counsel, on April 17, 1905, in accordance with the condition of the bond and the rule for his discharge was argued and held under advisement by the court, without fixing any definite time for its disposal. But on April 19, 1905, the court filed the order quoted in the opinion of the majority of this court. It is to be observed that this order does not provide for any notice to the defendant; it does not say when he- shall surrender himself and by its plain wording it implies that the defendant, Willenski, could relieve his surety on his bond by surrendering within a reasonable time, or so soon as he had notice of the order, by undergoing imprisonment in the jail for the period of thirty days. The affidavit of defense avers that Willenski did surrender himself to the jail of the county on April 27, 1905, immediately upon being informed of the entering of the order of April 19, 1905, and that he was imprisoned for the full period of thirty days.

The order of April 19, 1905, does not require the defendant to surrender himself forthwith, but on its face implies that the court did not intend the surrender to be on that day, because if such was the intention, the order would probably have reckoned the thirty days from its date. A fair construction of the order only required the defendant to surrender on notice or knowledge of it, or at most within a reasonable time. When the order was made the defendant was lawfully at large under bail, and the order was made at a time suiting the convenience of the court, without notice to anybody.

I am not willing to agree that the court could hold the matter under advisement and file an order at some future, uncertain time, and that the defendant must surrender within forty-eight hours of thé filing of such order, without notice or knowledge that it had been filed. To hold that the defendant’s bond was forfeited and sustain the judgment in this ease would be much like what was said in Greenwaldt v. Kraus, 148 Pa. 517. In that case Chief Justice Paxson (p. 527) said: “The only default which the insolvent appears to have made was •his nonappearance on the day. fixed for the hearing, and this would not seem to deprive the surety of the benefit of the condition of the bond, under the authority of Mullen v. Wallace, 2 Grant, 389; Saunders v. Quigg, 112 Pa. 546; and Marks v. The Bank, 114 Pa. 490. It may be that a comparison of the earlier with the later cases upon this subject may show a mellowing of the law, and that the latter pay less heed to technicalities than the former. This change runs all' through our law, civil and criminal. The law does not now wholly disregard technicalities, but it shrinks from impaling a man upon sharp points, which have no relation to the justice of the cause. Under the circumstances of this case, to hold this surety liable, would be to impale him upon the sharpest technicality ever recognized by a court of justice.” It is true the above language was used in regard to a case not precisely like the present one, but I think the principle applies. In the present case we have an order made, not at the time of argument, nor at any future, fixed time, and the court below has, in view of the facts and terms of the order, impaled the surety on the bond on too sharp a technicality.

By section 5 of the act of June 4, 1901, the defendant, who was arrested in a civil action, had the right to make an assignment of his property and ask to be discharged, and to be discharged on compliance with the law. I do not know whether or not he did comply with the law. There is no appeal from the order of April 19, 1905, and we must in this collateral attack, presume its legality, and-the rights of the defendant and the surety on his bond depend upon the facts averred in the pleadings, and the affidavit of defense, and the legal construction of the said order. In my opinion, a proper construction of said order is that Willenski had the option of making payment or of going to jail, and that the thirty days’ imprisonment should be computed from the date of his surrender, if he surrendered as soon as he had. knowledge or ought to have had knowledge of it.

As to the surrender within forty-eight hours as provided in the act of 1901, I think it should be computed from the time when Willenski had notice of the order or when he ought to have known that it had been made. If the debt, interest and costs had been paid on April 27, 1905, by Willenski, it will hardly be contended that the bond would not have been satisfied and it is not plain to me why the exercise of his alternative privilege of going to jail on that date, and serving the thirty days imprisonment, did not have the same effect.

I would reverse the judgment, and send the case to a jury, and if it shall be found that the facts, as to the knowledge of said order, by Marks and Willenski, are as stated in the affidavit of defense, and the surrender and imprisonment of Willenski is as there stated, the jury should be directed to find a verdict for the defendant.

Beaver, J., joined in the dissent.


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    Morris Run Coal Mining Company, Appellant, v. Chrzan.

      Exemption — Debtor’s exemption — Ejectment—Landlord and tenant.

    Where a judgment is entered against a tenant under an ejectment clause in a lease which provides for the termination of the lease at the election of the landlord, the tenant is entitled to the benefit of debtor’s exemption Act of April 9, 1849, P. L. .533.
    Argued March 6, 1906.
    Appeal, No. 4, March T., 1906, by plaintiff, from order of C. P. Tioga Co., May T., 1905, No. 52, discharging rule to set aside appraisement in case of Morris Run Coal Mining Company v. John Chrzan.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Rule to set aside appraisement for debtor’s exemption. Before Ormerod, P. J.
    From the record it appeared that on January 24, 1905, plaintiff served notice upon the defendant of a desire to terminate the lease, and demanded surrender of possession within ten days, in accordance with the terms of the lease. On February 13, 1905, plaintiff entered judgment under the ejectment clause in the lease, and a fi. fa. was issued, and the sheriff levied upon the chattels of the defendant. The latter claimed the exemption, and an appraisement was made. The court, relying upon Lang v. Finch, 166 Pa. 255, discharged the rule to set aside the appraisement.

      Error assigned was the order of the court.

      ¡S. E. Ohannell, with him F. E. Watrous and H. F. Marsh, for appellant.
    — The defendant had no right to exemption: National Oil Refining Co. v. Bush, 88 Pa. 335; Grove v. Barclay, 106 Pa. 155; Bradley v. Ry. Co., 160 Pa. 72; Neubert v. McCulloch, 27 Pitts. L. J. 177; Danner v. Fritz, 2 North. Co. 67; Smith v. Carter, 17 Phila. 344; Edwards v. Mahon, 5 Phila. 531; Morgan v. Noud, 5 Clark, 93 ; Lauck’s App., 24 Pa. 426; Pierce v. Lewis, 9 Pa. C. C. Rep. 250 ; Emerson v. Smith, 51 Pa. 90; McCarthy’s App., 68 Pa. 217; Eberhart’s App., 39 Pa. 509 ; McKee v. Christman, 103 Pa. 431; Woods’s Estate, 7 W. N. C. 84.

      James A. Gleason, with him I). W. Baldwin, for appellee,
    cited: Lang v. Finch, 166 Pa. 255.
    June 30, 1906 :
   Opinion by

Rice, P. J.,

The lease from the plaintiff to the defendant for a term commencing on a certain date, “ and ending whenever the party of the first part shall desire to terminate the same ” provided, that at the expiration of ten days’ notice to the lessee to quit and surrender the premises the lease should absolutely determine as to the rights of the lessee, and also contained an- agreement on the part of the lessee to surrender the possession to the lessor within ten days after the service of said notice. The lease further provided that upon its termination any attorney of any court of record might immediately thereafter, as attorney for the lessee, sign an agreement for entering an amicable action and judgment in ejectment, without stay of execution, against the lessee, for the recovery by the lessor of the possession of the demised premises. The hab. fa., with clause of fi. fa. for costs under which the defendant’s household goods were levied Upon, was issued upon a judgment by confession in an amicable action of ejectment, entered pursuant to and in accordance with the foregoing provisions. The question is whether the defendant was entitled to claim the benefit of the provisions of the Act of April 9, 1849, P. L. 533, exempting property to the value of $300 from levy and sale on execution issued upon any judgment obtained upon contract. •

A judgment in ejectment for plaintiff, even though no damages are recovered, carries costs; and, in general, costs partake of the nature of the judgment of which they are an incident. “ At common law it (the action of ejectment) is founded upon either an actual or supposed tort or trespass, committed by the defendant in expelling the plaintiff from his possession of the land, and being grounded upon a violation of the right of possession merely, has therefore ever been regarded as a possessory action:” Seitzinger v. Ridgway, 9 Watts, 496. If this is the view which must be taken of every action of ejectment, it would logically follow that no judgment against the defendant in such action is within the purview of the act of 1849. But in the very case from which the foregoing quotation is taken the court went on to show that, in Pennsylvania where equity is administered under common-law forms, there may be an action of ejectment, which cannot, with strict propriety, be regarded as founded upon the same basis as at common law, and that the ejectment under consideration had “ for its basis the violation of a contract .... for the purchase of land,” and was “brought to obtain possession in fulfillment of a personal obligation arising therefrom.” Whether in such a case the defendant can claim the benefit of the exemption law is not before us to decide and we express no opinion upon the question. We refer to the case for the single purpose of showing that in Pennsylvania the action of ejectment is not invariably and for all purposes to be regarded as an action ex delicto, but for some purposes and under some circumstances may be regarded as founded on contract. The case' relied on by the learned judge below, Lang v. Finch, 166 Pa. 255, is directly in point. There, as in this case, the amicable action and confession of judgment therein were entered pursuant to the provisions of the lease. In each case the tenant’s right of possession under the lease was terminated, and the right of the landlord to the immediate possession restored; in the case before us, by the election of the landlord to end the tenancy, and in the case cited, by the tenant’s breach of the covenant against subletting and the landlord’s election to re-enter'. We deem it important to call particular attention to the last mentioned point of similarity in the two cases. In this case, as in that, the judgment contains no element of damages in the nature of mesne profits. Thus far the cases are parallel in their essential facts. But in the case cited it appeared that the lessee had removed from the premises and taken his goods with him, and this fact is thought to differentiate the case in a substantial particular from the one before us. If the lessee had abandoned the premises and left them vacant, this might give rise to a valid distinction; but to remove from the premises leaving a subtenant in possession is quite a different thing. This was not equivalent to vacating the premises, or surrendering possession to the landlord, as the lessee was bound to do at the termination of his right of possession under the lease, and did not affect the landlord’s right to avail himself of the remedy provided for in the lease, nor relieve him from the necessity of so doing. We cannot see any substantial ground upon which to base a conclusion that the judgment in the case cited was grounded upon contract, and therefore the defendant was not liable to arrest upon ca. sa., and that the judgment in this case was, in a strict sense, founded upon tort, and therefore the defendant was not entitled to the benefit of the exemption law. We think the court below was right in following the case cited and holding that the defendant was entitled to claim the exemption.

Order affirmed and appeal dismissed at the costs of the appellant.


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    Wingert, Appellant, v. Teitrick.

      Practice, C. P. — Trial by court without a jury — Exceptions—Act o} April 22, 1874, P. L. 109.
    A party who has not filed exceptions within thirty days after úotice of the decision of the court in a case tried by the court without a jury, cannot thereafter file exceptions. Where, on appeal, the record shows that no such exceptions were filed, the appeal will be quashed.

      Argued May 8, 1906.
    Appeal, No. 105, April T., 1906, by plaintiff, from judgment of C. P. Jefferson Co., Aug. T., 1904, No. 14, for defendant on case tried by the court without a jury in suit of William Wingert v. Reed B. Teitrick.
    Before Rtce,.P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Motion to quash appeal.
    The opinion of the Superior Court states the case.

      A. L. Cole, with him F. Blalce Muntz, for appellant.

      B. M. Clark, with him W. M. Conrad, E. Meath Clark and Andrew B. Stewart, for appellee.
    June 30, 1906 :
   Per Curiam,

The first reason assigned in support of the motion to quash this appeal is : “ Because the record shows that the appellant, who was the plaintiff below, did not file exceptions to the decision of the court below within thirty days after- notice to him that said decision had been filed in the office of the prothonotary where the case was pending, as is required by section 2 of the Act of Assembly entitled ‘ An act to provide for the submission of civil cases to the decision of the court, and to dispense with trial by jury,’ approved April 22, 1874, P. L. 109.” In Harris v. Mercur, 202 Pa. 313, it was held that a party who has not filed exceptions within thirty dajrs after notice of the decision of the court, cannot thereafter file exceptions, although permitted to do so by the trial court, and this is the case although the other party has filed exceptions within the thirty days. Accordingly the certiorari was quashed. The practice under the act was considered, and thus outlined in the opinion of Mr. Justice Mestrezat : “On the trial of a-cause under the act, the parties may except to any ruling of the court in like manner as if it were being tried before the court and a jury. The court is required to file its decision in the prothonotary’s office of which notice shall be given the parties-or their attorney, 1 and if no exceptions thereto are filed in the proper office within thirty days after service of such notice, judgment shall be entered thereon by the prothonotary or clerk.’ Both parties are thus given an opportunity to call the attention of the court to any finding of fact or conclusion of law which may be adverse to them and which they may regard as erroneous. That they will except to any alleged error is clearly contemplated by the act. The court is then required to reconsider its findings and can correct any errors before the entry of final judgment. If either party is dissatisfied with the rulings on the exceptions filed, he should request that an exception be noted. If he neglects to do so he should be considered as having acquiesced in the decision.” This is a much plainer case for enforcing strictly this provision of the act, because the appellant did not file exceptions in the court below at any time, nor did he make application to that court for leave to do so. In view of this conclusion the other reasons assigned in support of the motion need not be considered.

The motion of the appellee to quash the appeal is allowed, and the appeal is quashed.


author: Pee Curiam,

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    Alexander v. Hamilton, Appellant.

      Arbitration — Referee’s findings of fact — Review.
    The findings of fact of a referee appointed under the Act of May 14, 1874, P. L. 166, will not be reversed where there is no fraud or manifest error, and the findings are based upon the consideration and the weighing of conflicting oral testimony, and have been approved by the court below. 1
    Argued May 16, 1906.
    Appeal, No. 157, April T., 1906, by defendant, from order of C. P. Lawrence Co., March T., 1902, No. 60, dismissing exceptions to report of referee in case of Charles G. Alexander v. E. M. Hamilton.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of referee.
    The opinion of the Superior Court states the case.

      Error assigned was order of the court dismissing exceptions to referee’s report.

      H. K. Gregory, of Gregory Sg HLelcey, for appellant.

      B. A. Winternitz, for appellee.
    June 30, 1906 :
   Pee Curiam,

This is an appeal from a judgment based on the report of a referee appointed under the Act of May 14, 1874, P. L. 166,. exceptions to which report were filed by both parties and overruled by the court.

It appears from the-pleadings'that the case involved the settlement and adjustment of mutual accounts of continuous business dealings between plaintiff and defendant, for a period of nearly three years, and including numerous transactions more or less complicated. And it is apparent from the evidence that the case was tried upon the theory that it was to be a final accounting between them. Indeed, it was, by mutual agreement, withdrawn from the jury, after being partly tried, and submitted to a referee, because it was considered by court and counsel that this was the best way to reach a just decision. These preliminary remarks are pertinent to the objection raised by the second assignment of error to the allowance to the plaintiff of a credit of $28.50 for a well drilled by him on lot number five. There was evidence sufficient to support a finding that the plaintiff was entitled to a credit of that amount for drilling a well, and the evidence was received without objection to its relevancy. In the plaintiff’s statement a credit of the same amount for drilling a well was claimed, but not on lot number five. It is argued that this credit thus claimed was allowed in another part of the report. It does not clearly and satisfactorily appear, however, from our examination of the evidence and comparison of the same with the report, that the plaintiff was allowed by the referee credit for drilling two wells; therefore, we are unable to say that there is such substantial variance between the pleadings and the referee’s findings as'would be ground for sustaining the assignment, especially in view of the manner in which the case was tried, and of the considerations suggested in our preliminary remarks. See Lehman v. Lehman, 29 Pa. Superior Ct. 60, at p. 65, and cases there cited.

The remaining assignments of error, excepting the first which was withdrawn at bar, relate to the defendant’s claim that the' plaintiff should be charged with the $140 referred to in a due-bill given by plaintiff to J. L. Hamilton & Son. The reasons for rejecting this claim are very clearly stated by the referee and need not be repeated here. It is a rather complicated matter and no good purpose would be served by attempting to recite all the details of the transaction. It is enough for present purposes to say, that the appellant contends that the interest of J. H. Hamilton in the account alleged to be represented by this due bill passed to him under the assignment made by the administrator of the estate of J. L. Hamilton, deceased, and that this account was adjusted in a settlement made between the appellant and appellee. The counsel for the appellant then .undertake to show how it was adjusted, and in doing so make it quite apparent that their allegation depends to a considerable extent upon oral testimony and not alone upon documentary evidence. It is also clear that this allegation of an adjustment of this matter in the manner claimed by the appellant was disputed by the appellee; in other words, the testimony was to a considerable extent conflicting. After a thorough examination of all the testimony, oral and documentary, bearing upon the question, which has been brought up and printed, we are all of' opinion that the referee’s finding should not be disturbed. The rule upon the subject of the conclusiveness of the findings of a referee upon questions of fact, especially where they have been approved by the court below, has been stated in many ways but generally to the same effect. In Bradlee v. Whitney, 108 Pa. 362, it was said by Clarke, J.: “It has'been frequently held in this court that a writ of error in such case brings up only questions of law. The court cannot go behind the findings of fact by the referee, except where the assignment of error is such as could be heard and determined if the trial had been according to the course of the common-law before a jury. ... If the evidence is relevant and proper, and the findings of fact are reasonably inferable therefrom, we must, in the absence of fraud, accept the report as correct. We cannot consider the weight or the conflict of the evidence, or the veracity of the witnesses ; this is the proper office of the referee, who performs the double function of court and jury.” This' statement of the rule has been approved in many cases. True, it has been suggested that when the findings of the referee are mere deductions from undisputed facts the rule above stated does not apply. We need not discuss this exception to the general rule, if there be such exception, because the referee’s findings of fact, upon which his final conclusion as to the last item is based, are not merely deductions from other facts, but involve the consideration and weighing of oral testimony which was not free from conflict. Upon a full review of the whole case we find no substantial and meritorious ground upon which a reversal could be based.

All the assignments of error are overruled and the judgment affirmed.


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    McCrory’s License.

      Liquor law — License—Discretion of court — Review.
    Where the proceedings on an application for a liquor license are regular, and no abuse of discretion is apparent, the appellate court will not reverse an order of the quarter sessions refusing a license.
    Where more licenses are applied for than under all the facts and circumstances are necessary, the quarter sessions must necessarily determine between them.
    Argued May 22, 1906.
    Appeal, No. 13, April T., 1906, by defendant, from order of Q. S. Beaver Co., March T., 1906, No. 4, refusing a liquor license In re Petition of James Mc-Crory for a tavern license.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for liquor license.
    Holt, P. J., gave as his grounds for refusing the license the following:
    The Old Economy Hotel is a three-story frame structure, erected probably more than fifty years ago by the Harmony Society, and the same- has been used as a hotel, so far as we have been able to learn, continuously since that time, and was until the year 1905 the only licensed hotel within the present limits of the borough of Ambridge, and was licensed for a number of years prior to the present year, the present applicant having enjoyed the privilege of a license for said hotel for the years 1904 and 1905. During the year 1905 two large modern brick hotels were completed and equipped for hotel purposes within the said borough, and to these two hotels licenses were granted in 1905 by the said court, and licenses have been granted to the last mentioned two hotels for the present year; and in addition to these hotels there are a number of good restaurants within the limits of the said borough. By a covenant running with the land upon which the town of Ambridge proper is located, the keeping and sale of liquors is prohibited, and all three of said hotels are located in a part of the said borough where the population does not exceed 2,000 people, and the evidence taken at the hearing in hehalf of the applicant is not very strong on the question of the necessity for the said Old Economy Hotel.
    In granting licenses to hotels, we think the court should steadily keep in view the interests of the traveling public, and to grant no more licenses than are necessary for their accommodation, and to grant the licenses to the hotels which afford the best accommodation in the shape of modern structures and equipment. In passing upon the applications in the borough of Ambridge, we were 'clearly satisfied from the evidence before us (having due regard to -the number and character of those for and against the granting of the same), that two hotels were all that were necessary to meet the demands of the public. Having found this fact, we then granted the licenses to the new modern hotels, which, in our judgment, would afford better accommodations to the public than one new house and the old one could afford.

      Jno. Marron of Marron McGirr, for appellant.
    — The fact that a house has been heretofore licensed is prima facie evidence of its necessity until the contrary is established by proof: Howell’s Application, 10 Pa. District Rep. 504; Arnold’s Application, 1 North. Co. 93; O’Brien’s License, 1 Pa. C. C. Rep. 363; Erie Licenses, 4 Pa. Dist. Rep. 167.

      June 30, 1906 :
   Per Curiam,

We find nothing in this record to distinguish the case from the many in which it has been held both by the Supreme Court and by this court, that where the proceedings are regular, and no abuse of discretion is apparant, the appellate court will not reverse the_ order of the quarter sessions refusing an application for a liquor license. Where more licenses are applied for than under all of the facts and circumstances are necessary for the accommodation of the public, the quarter sessions must necessarily determine between them. This is as much and as plainly within the discretion of that court as the determination of the question whether any license is necessary in the township, borough or city. The presumption, as .has been repeatedly said, that the action of the court was judicial and not arbitrary cannot be rebutted by an argument from evidence that the court ought to have reached a different conclusion.

The order is affirmed.