author: Morrison, J., Rice, P. J.,

text:
    Warner, Appellant, v. Berks County Poor Directors.

      Poor law — Poor directors — Employment of agent — Act of March 29, 1824, P. L. 200.
    1. Under the Act of March 29, 1824, P. L. 200, poor directors may-in the exercise of their discretion, and without an ordinance, rule or regulation approved by the court of quarter sessions, appoint an agent by the year with a fixed salary per month to investigate applications for relief, to remove paupers and children when necessary, to collect moneys for the poor district, and to do such other work as may be required of him by the directors.
    2. A corporation, municipal or private, has not only the power expressly conferred upon it by the act of incorporation, but also such implied powers as are reasonably necessary to effectuate the powers expressed. While it is true that public corporations are not to be charged unless authority exists in the law, yet the authority may be implied as ■ well as expressed.
    3. Public officers acting within the scope of their authority are not to be interfered with in the exercise of their discretion nor their judgment or decision in such matters dictated by the courts.
    Argued Nov. 9, 1908.
    Appeal, No. 226, Oct. T., 1907, by plaintiff, from judgment of C. P. Berks Co., March T., 1907, No. 34, for defendant on demurrer in case of L. Tyson Warner v. Berks County Poor Directors.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Demurrer to statement of claim.
    Plaintiff’s statement was as follows:
    The directors of the poor and of the house of employment for the county of Berks is a corporation created under an Act of assembly approved March 29, 1824, P. L. 200, to which reference is hereby made as a part hereof and in pursuance of the authority therein contained has charge to all intents and purposes whatever of all matters relating to the poor of the county of Berks.
    At a stated meeting of the said directors duly held on January 1, 1906, the following proceedings were duly had as appears by the minutes whereof a copy follows:

      “Jan. 1, 06, the directors were not all present, J. C. Kessler, and George G. Ritter being present, Jacob Hollenbach being absent on account of sickness.
    “The election of clerk, house agent and solicitor was taken up.
    “Director Geo. Ritter nominated: G. Howard Ritter for clerk, L. Tyson Warner for house agent; Director J. C. Kessler seconded: Jos. R. Dickinson for solicitor. ,
    “Moved by Kessler, seconded by Ritter, that the clerk, house agent and solicitor be elected by acclamation.
    “Resolution passed by Board of directors:
    “Whereas, the former employment of a house agent having been of great benefit and advantage to the poor district in the investigation of claims made upon us for pauper relief, the prevention of frauds upon the county, and general effectiveness of such agents, we deem it advisable and to the manifest pecuniary benefit of the county and poor district that such employment be continued, wherefore on motion of J. C. Kessler, seconded by. George G. Ritter, Mr. L. Tyson Warner is employed as such (house agent) for the year 1906 at the salary of $60 per month.
    “Mr. Warner appeared before the meeting and accepted such employment dating from to-day, Jan. 1, 1906.”
    The plaintiff, the said L. Tyson Warner, in pursuance of said contract, was continuously engaged during the year 1906 in the performance of the duties of said employment as a necessary attendant for the poor of said county under the direction of the said directors being required to investigate and inquire into all applications made to the said the directors of the poor and of the house of employment for the county of Berks for pauper relief and to ascertain the merits of such applications and make report thereof to said directors; to collect and gather all moneys or other property belonging to persons who are charges upon the said, the directors of the poor and of the house of employment for the county of Berks; to pay and deliver over such moneys and other property to the said the directors of the poor and of the house of employment for the county of Berks; to ascertain and investigate the settlement of persons applying to the said the directors of the poor and of the house of employment for the county of Berks for relief and to make reports thereof to the said directors; to assist in removing paupers to the house of employment in the county of Berks and to the poor authorities of other districts in which paupers might have a legal settlement; to look after and remove to the proper places children who have become charges upon the said poor district upon the orders of said directors and in general to do and perform all such work relating to the poor of the county of Berks who have become or are likely to become charges upon the poor authorities as may be required by the said the directors of the poor and of the house of employment for the county of Berks and in all respects he discharged the duties of the said employment to the best of his ability and to the satisfaction of the said directors and his said services were reasonably worth the said sum of $60.00 per month.
    The said directors in the month of January, 1906, as required by the act of March 29, 1824, sec. 12, made an estimate of the sum necessary for the support of the poor of the said county for the year ensuing the making of such estimate, to wit: the year 1906, and forwarded the sum to the county commissioners who provided sufficient sums for the payment of the said salary as well as for all other proper expenditures of the said directors to be paid by the county treasurer on orders, drawn by the said directors as the same might be found necessary and the said appropriations were sufficient for the payment of the said salary as well as for all other proper expenditures of the said directors.
    The said directors each month duly issued to the plaintiff in payment of said salary a warrant on the county treasurer for the sum of $60.00 duly signed by all of the said directors and attested by the clerk together with a proper voucher accompanying each warrant, but the county treasurer refused and still refuses to pay the said warrants unless they be countersigned by the county controller although then having and still having sufficient funds of the said appropriations in his hands therefor and accordingly the plaintiff duly submitted the said warrants and vouchers to the county controller and requested him to countersign the same, but he refused and still refuses so to do and has returned them to the plaintiff without his countersignature.
    The plaintiff has received in the course of the discharge of the duties of said employment sundry sums of money amounting to $437.49 which he has retained on account of said salary and he has tendered to the county controller credit for said amount on said warrants or payment thereout as might be preferred.
    Wherefore the plaintiff verily believes that there is justly due from the defendant to the plaintiff the said sum of $720, less the said credit of $437.49, or $282.51, with interest from January 1, 1907, which though often demanded the defendant has refused and still refuses to pay.

      Error assigned was in entering judgment for defendant on demurrer.

      Isaac Hiester, for appellant.
    The appellee had express as well as implied authority to employ the appellant to perform the duties required of him: Rosenthal v. Luzerne County, 11 Kulp, 183; Wyoming County Auditors, 14 Pa. Dist. Rep. 539; Com. v. Coyle, 185 Pa. 198; Jenkins’s Twp. Case, 1 Kulp, 111; Belcher v. Lynn, 65 U. S. 508; Dechert v. Com., 113 Pa. 229; Roth v. Marshall, 158 Pa. 272; Runkle v. Com., 97 Pa. 328.
    It was not necessary for the directors to enact an ordinance authorizing the employment of the appellant and to have such ordinance approved by the court of quarter sessions before employing him: McDade v. Chester, 117 Pa. 414; Cumru Twp. v. Directors of the Poor, 112 Pa. 264; Com. v. Bohan, 10 Kulp, 80; Howard v. Olyphant Boro., 181 Pa. 191; Shaub v. Lancaster, 156 Pa. 362; Paterson v. Barnet, 46 N. J. Law, 62; Kepner v. Com., 40 Pa. 124; Marshall v. Allegheny, 59 Pa. 455; Sallade v. Schuylkill County, 19 Pa. Superior Ct. 191; Field v. Girard College, 54 Pa. 233.

      Joseph R. Dickinson, for appellee,
    cited: Com. ex rel. Hollenbach v. County Treasurer, 16 Pa. Dist. Rep. 481; Kepner v. Com., 40 Pa. 124; Howard v. Olyphant Boro., 181 Pa. 191; Marshall v. Mayor, etc., of Allegheny, 59 Pa. 455.

      February 26, 1909:
   Opinion by

Morrison, J.,

The plaintiff sued in assumpsit for services rendered to the defendant corporation under employment by the action of a majority of the directors as shown by the minutes of the board of January 1, 1906, a stated meeting. The plaintiff was employed for one year at the salary of $60.00 per month; he appeared at the meeting and accepted the employment, dating from January 1, 1906. The plaintiff’s claim was $720 with credits admitted of $437.49, leaving a balance due of $282.51, with interest from January 1,1907. If the defendant’s directors had lawful power to employ the appellant, there can be and is no other question raised as to the validity of his claim on this record.

The declarations aver clearly all that is necessary to show a-good cause of action, if the law authorized the directors to so employ the plaintiff. The defendant demurred to the declaration, assigning five causes of demurrer. The learned counsel for defendant concedes that his grounds of demurrer Nos. 3,4 and 5 are not good, and he and the learned court below rely on the first and second grounds to sustain the judgment on the demurrer in favor of the defendant. The learned court below held that the poor directors were without authority to employ the plaintiff, unless they acted under the seventh section of the Act of March 29, 1824, P. L. 200. That section reads: “That a majority of the directors shall, in all cases, constitute a quorum or board for the transaction of business, and shall have full power to make and ordain all such ordinances, rules and regulations, as they shall think proper, convenient and necessary for the direction, government and support of the poor and house of employment aforesaid, and of the revenues thereunto belonging, and all such persons as shall come under their care or cognizance: .... And provided also, “That the same ordinances, rules and regulations, shall not have any force or effect until they shall have been submitted to the court of quarter sessions, for the time being, of the said county of Berks, and shall have received the approbation of the said court.”

It is conceded that the plaintiff was not employed under an ordinance, rule or regulation adopted in accordance with said section.' The sixth section of said act authorizes the directors “to provide all things necessary for the reception, lodging, maintenance and employment of the said poor; to employ steward or stewards, and to require from him or them, an oath or affirmation, and such security for the faithful performance of his or their duties, as the board of directors shall deem expedient; and the said directors shall have power at pleasure to remove the said steward or stewards, and to employ, and at pleasure remove, a matron or matrons, physician or physicians, surgeon or surgeons, and all other necessary attendants for the said poor respectively.”

It is contended by the counsel for plaintiff that this section of the act, with the implied power of the directors, to administer their office with discretion, confers ample power to sustain their contract of employment with the plaintiff. Under the act, they have general jurisdiction over the poor of the district, and their acts, done in good faith, and the exercise of that jurisdiction, unless prohibited by law are, generally speaking, binding.

The seventh section of the act of 1824, which is supposed to preclude the plaintiff from maintaining his action, does not seem to us to have the force attached to it by the court. The “ ordinances, rules and regulations” therein referred to are evidently the standing laws controlling the administration of their office by the poor directors. They relate to a system of government to be employed in the administration of the important trust committed by the statute to the directors and are descriptive of different forms of legislation having the same practical significance. Very properly the judgment of the court of quarter sessions might be brought to bear as a safeguard against the indiscretion or incapacity of the board of directors. This judgment ought not, however, to be held to apply to all actions of the board relating to the discharge of their duties. The employment of an attorney to prosecute a suit or a contract with a milkman to supply milk for a given period or the employment of an agent to visit the infant children placed by the directors in family homes are not such acts as are governed by ordinance, nor such as need be, or can be, done by standing rules. The Act of June 13, 1883, P. L. Ill, forbids the detention in any poorhouse of children between two and sixteen years of age for a longer time than sixty days, with certain exceptions not here important, and the same act makes it the duty of those having such poor in charge to place them in respectable families in the state, or in some educational institution or home for children; and it is further made the duty of such officers to visit such children in person or by agent not less than once every six months and make needful inquiries as to their treatment and welfare and report thereon to the board of overseers or other officers charged with the care of such children. One of the important services rendered by the plaintiff, and for which he was specifically employed, was under this act, which gives express authority for the appointment of an agent. We can readily see, that there are many other instances where the services of a trusty “person, employed as was the plaintiff, might be advantageous to the poor district. The learned court seemed to attach importance to the fact that the plaintiff is designated in his employment as a house agent, but the name designating his employment is not important. The material question is, was his employment within the discretion of the poor directors? We think it was. He is not elected to an office any more than would be a scrubwoman-or janitor in the institution of which the directors have charge, unless the receipt of money on behalf of the directors might affect his employment in that particular. He is not holding any position created by law, but is rather an agent engaged for such services as may be developed during the course of the year, and he is at all times under the direction and control of the directors. Considerable is said in the opinion of the court in regard to the impropriety of permitting an agent, not under bond, to collect money belonging to the poor district. But the directors are responsible for all money received by him under their direction. Viewing the case in the light of the broad discretion vested in the poor directors and the character of the services rendered by the plaintiff, we think he is entitled to compensation on his contract.

The whole force of the argument of the court below and the counsel for the respective sides is directed toward the provisions of the act of 1824 which provides for the approval of ordinances, rules and regulations. There are doubtless numerous employees about the poorhouse — laborers, farmers, washwomen, janitors, etc. — and they are probably changed from time to time, but we cannot think it was the intention of the legislature to require that the employment of such persons must be done by an ordinance, rule or regulation approved by the court of quarter sessions. The very nature of their employment forbids such formality and delay. If, in the exercise of their discretion, the board might employ the plaintiff to make one trip to a remote part of the county to examine the condition of a pauper child and report to the board, we see no reason why they might not engage the same person for that and similar services for a fixed period and for a stated compensation, if in their discretion that seemed a proper thing to do.

The learned court below finds reason for denying plaintiff’s right to compensation in that the natural meaning of attendants for the poor is that of “such employees in and about the poorhouse as are needful to secure order, comfort, cleanliness and regular and adequate service to the inmates of the institution and an efficient and advantageous use of the property connected with it.” It would seem to us that the duties performed by the plaintiff were of that character although, in the nature of the case, they were not in every instance performed on the poorhouse grounds. That argument seems to lose sight of the fact that the board had to look after children and presumably other paupers who were not in the poorhouse. The board in its discretion deemed it necessary to employ the plaintiff and this necessity is expressly averred in the declaration. Of course, the demurrer admits all material sufficient averments in the declaration. Why is not a person who waits on the poor outside the grounds, who need legal relief or removal, as much a necessary attendant as one who waits upon the poor inside the institution?

It is familiar law that a corporation, municipal or private, has not only the power expressly conferred upon it by the act of incorporation, but also such implied powers as are reasonably necessary to effectuate the powers expressed. The powers of corporations in carrying out the purposes of the corporation do not differ from the powers of a natural person in accomplishing the same results under similar circumstances. This proposition is well sustained by Thompson’s Commentaries on Corporations upon the implied power of corporations, secs. 5640, 5641, 5642 and 5643. The latter section reads: “All corporations have the implied power to employ agents to perform services for them, • consistent with their general design.”

It is true, public corporations are not to be charged unless authority exists in the law, but the authority may be implied as well as expressed. Judge Endlich in Interpretation of Statutes states the rule thus (sec. 419): “Where an act confers jurisdiction, it impliedly grants also the power of doing all such acts, or employing such means as are essentially necessary to its execution.”

In Com. ex rel. v. Coyle, 185 Pa. 198, under the Act of March 11, 1837, P. L. 45, it is held that “the poor directors of Northampton county had the sole right to fix and determine the annual amount that will be required for the support and maintenance of the poor, and their action in the exercise of this power cannot be reviewed or controlled by the county commissioners.”

In the present case, the directors in the month of January, 1906, as required by the act of March 29,1824, made an estimate of the sum necessary for the support of the poor of Berks county for the year and forwarded the same to the county commissioners, who provided sufficient sums for the payment of the same and the salary of the plaintiff, etc. This is averred in the declaration, and it is further averred that the directors each month issued to the plaintiff a warrant on the county treasurer for the payment of his salary, but the county treasurer refused to pay the same unless they were countersigned by the county controller, and the latter officer refused to countersign the orders. The declaration states the plaintiff’s cause of action, not on the orders, but for the services performed. It has been often decided that public officers acting within the scope of their authority are not to be interfered with in the exercise of their discretion nor the judgment or decision in such matters dictated by the courts: Dechert v. Com., 113 Pa. 229; Roth v. Marshall, 158 Pa. 272; Runkle v. Com., 97 Pa. 328. “The general rule applicable to the decisions of courts or of special officers to whom the determination of any particular matter is committed by law- is that such determinations, when regularly made, are conclusive, and cannot be questioned or set aside, except in some mode specially provided by law:” 23 Am. & Eng. Ency. of Law (2d ed.), 372; citing in footnote many authorities.

The question of necessity need not be considered: Belcher v. Linn, 65 U. S. 508-526: “We hold .... that when power or jurisdiction is delegated to any public officer or tribunal over.a subject-matter, and its exercise is confided to his or their discretion, the acts so done are, in general, binding and valid as to the subject-matter. The only question which can arise between an individual and the public, or any person, denying their validity, are powers in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or officer, whether executive, legislative, judicial, or special, unless an appeal or other revision is provided for by some appellate or supervisory tribunal prescribed by law.” To assume in the present case that there was no necessity for the employment of the appellant, would impeach the honesty of the poor board. The presumption of law is that officials act honestly and perform their duties.

The learned court below seems to concede that it may have been necessary to employ a person in the capacity in which the plaintiff was employed. But he sustains the demurrer for want of lawful power in the poor directors to employ the plaintiff except by ordinance, rule or regulation approved by the court. But it is not made obligatory upon the directors to enact ordinances, rules or regulations under the act of 1824. The provision of the act is to ordain such ordinances as they shall think proper and submit the same to the court of quarter sessions for approval. In our opinion, the provision of the act does not make it compulsory upon the directors to pass ordinances, etc.: McDade v. Chester City, 117 Pa. 414. We think that case establishes that the provision in sec. 7 of the act of 1824 as to the ordinances, etc., is merely permissive. We are, therefore, of the opinion that the power so conferred is a discretionary one and it follows that the poor directors may exercise their official duties without such ordinances, rules or regulations.

The plaintiff was employed by a resolution of the board, but it was not such a resolution as required the approval of the court because it did not purport to regulate any of the affairs of the corporation. It was not in the meaning of the law an ordinance, rule or regulation requiring the approval of the court.

In Howard v. Borough of Olyphant et al., 181 Pa. 191, it was held: “A direction that enactments, regulations, ordinances and other general laws shall be recorded and advertised does not include resolutions which are not in their nature legislative and which do not take the place of ordinances.” In the light of this decision, it would be idle to argue that a simple resolution employing the plaintiff for a year at $60.00 per month is legislative. See also Shaub v. Lancaster, 156 Pa. 362.

Tiedeman on Municipal Corporations, sec. 145, in part reads: “When a charter prescribes that by-laws and ordinances were to be submitted to the Mayor for approval, resolutions need not be.” A simple resolution is sufficient if the action taken is merely declaratory of the will in a given matter and is in the nature of a ministerial act.

It has been held that the terms ordinances, rules, regulations and by-laws are all equivalent to the term ordinance, and that an ordinance means a local law prescribing a general and permanent rule.

In Sallade v. Schuylkill County, 19 Pa. Superior Ct. 191, we said “Without expressing a more decided opinion upon that question we may say this, that the mere name given to the place or position, unless public duties were attached to it, would not make it a public office.”

The able and fair counsel for the defendant concedes in his printed argument that there is no defense to the plaintiff’s claim on the merits. Not only does the demurrer admit the merits of the claim, but the learned counsel very candidly concedes that the defense is purely the legal one that the directors had no power to employ the plaintiff. There is not a hint in the argument that the plaintiff did not earn his wages nor that the sum stated in the declaration is not due and owing to him if the court is wrong in holding that his employment was illegal. We are of the opinion that the learned court erred in sustaining the demurrer and there being no question of fact in dispute, we conclude that the judgment ought to be reversed, the demurrer overruled and judgment here entered in favor of the plaintiff.

The judgment is reversed, the demurrer overruled, and judgment here entered in favor of the plaintiff and against the defendant for $282.51, with interest thereon from January 1,1907, and costs, including costs of this appeal.

Rice, P. J.,

Dissenting.

I cannot agree that the plaintiff was a necessary attendant for the poor” within the meaning of section 6 of the act of 1824. Some of the most important duties attached to his position neither related directly nor indirectly to attendance on the poor, e. g. collecting money, and investigating' merits of applications for relief. Poor directors may, under section 7, adopt ordinances, rules and regulations, relative to the affairs of the district, which undoubtedly may require for their proper execution the assistance of such a person, and in that case the power to employ or appoint him might be implied; but such an ordinance must be submitted to the quarter sessions for approval. The thought is well expressed by the learned judge below when he says: “We are accordingly led to the conclusion that the intention of the act of 1824 is (1) to leave the directors free to determine upon the employment of and enter into binding contracts with all such persons whose services may be deemed necessary as attendants in the primary sense above indicated; but (2) to permit them to make appointments additional to that of clerk and designed like it to serve the convenience of the directors, aid them in the discharge of duties and relieve them of labors which will otherwise have to be performed by themselves, only in so far as definite and formal ordinances, rules or regulations duly adopted by the directors and approved by the court, shall from time to time provide therefor..... But when it comes to the employment of agents charged with duties' originally devolving upon the director's themselves there is an unmistakable propriety in providing on the one hand for some check upon the not unnatural disposition of men to shift irksome burdens and responsibilities, and on the other hand for some supervision over the nature and wording of the terms and conditions to be prescribed in accordance with a broader experience and a more precise knowledge of settled forms and principles than can be justly expected from the directors.” The resolution so called, affected the affairs of the corporation and was, in effect, an ordinance and governed by the principles enunciated in Kepner v. Commonwealth, 40 Pa. 124, at page 130, and numerous cases following its lead. If not so, then each year a resolution regulating the affairs of the corporation in the most important degree may be adopted and the salutary provisions of the proviso to section 7 be evaded. Upon the whole I think the case was well decided by the learned judge below and his judgment should be affirmed.

Judge Porter authorizes me to say that he concurs in the foregoing dissent.


source: Caselaw Access Project

author: Orlady, J.,

license: Public Domain

text:
    Fry, Appellant, v. Berks County.

      Public officers — Compensation—Extra services — Office cum onere— County treasurer.

    1. Public officers who are paid a salary take and hold their offices cum onere. They can claim no compensation for any services not specified nor provided for in the fee bill established by statute.
    2. A county treasurer who is compelled to employ counsel and print a paper-book in mandamus proceedings against him as treasurer, cannot recover the expenses of such employment and printing.
    Argued Nov. 10, 1908.
    Appeal, No. 80, Oct. T., 1908, by plaintiff, from judgment of C. P. Berks Co., Sept. T., 1907, No. 57, for defendant on case stated in suit of Henry H. Fry v. Berks County.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine liability of county to county treasurer for expenses incurred in employing counsel and printing paper-book in mandamus proceedings to compel him to pay alleged illegal warrants.
    Endlich, J., filed the following opinion:
    This is an action of assumpsit, in which a case has been stated for the opinion of the Court. In December, 1905, the then county treasurer refused to pay a warrant in favor of Wm. B. Bechtel, Esq., for $2,200, signed by a majority of the county commissioners and countersigned by the deputy county controller, the claim having been approved as legal and valid by the then county solicitor. The payee thereupon obtained an alternative mandamus upon the treasurer. His term expiring on the first Monday of January, 1906, the plaintiff, his successor, employed counsel to defend the pending proceeding, filed an answer which was demurred to, and upon argument obtained the judgment of this court which was adverse to the relator. An appeal was taken to the Supreme Court, contested by plaintiff through his counsel and resulting in the affirmance of that judgment: Bechtel v. Fry, 217 Pa. 591. For counsel’s services in this matter and printing of paper-boqk plaintiff expended the sum of $266. In February, 1906, the plaintiff as county treasurer refused to pay two warrants drawn upon him by the poor directors, but not countersigned by the controller, aggregating $910.73. The payees in these warrants instituted proceedings by mandamus against plaintiff, which again through his counsel he successfully resisted in this court, its judgment upon demurrer to his return sustaining his action. His expenditure for counsel fees in the latter cases was $50.00. For these several expenditures he demanded and was refused reimbursement by the county commissioners, whereupon he brought this action. The question now to be decided is whether the county is liable to pay him, and that question is to be approached on the footing of the familiar rules that whatever is declared by way of fact in a case stated is to be accepted as verity, and whatever is not expressly declared in it is taken not to exist.
    When the decision in the Bechtel case was rendered in this court denying the relator’s right to compensation from the county for professional services which had been of substantial advantage to it, it was felt to be unfortunate that the law would permit no other judgment. It is with a like feeling of regret that upon careful consideration of the present case by both of the judges of the court, they find themselves constrained to hold a like ruling unavoidable here.
    The decision of the Supreme Court in the Bechtel case settles (1) that the county treasurer has no right to pay an illegal warrant which so Appears on its face or of whose illegality he has express notice or sufficient warning to put him upon inquiry; (2) that the Bechtel warrant was an illegal one, because in part it was in payment of services for the performance of which there was no antecedent contract of employment and as to the remainder it was in payment of services for the performance of which the county commissioners had no power to contract with him; (3) that of all this the treasurer was affected with notice; and (4) that therefore it was his duty tó refuse payment. Concerning the other warrants mentioned in the case stated it is enough to say that they could not lawfully have been honored by the treasurer because not countersigned by the county controller: Com. ex rel. Hollenhbach v. County Treasurer, 16 Pa. Dist. Rep. 481; Com. ex rel. Warner v. Fry, C. P. Berks Co., No. 18, March T., 1906. It follows that as to all of these warrants it was the duty of the treasurer to withhold payment and that a voluntary payment of them by him would have rendered him and his bondsmen liable.
    Next it admits of no question that in obedience to the alternative writs of mandamus it became necessary for the treasurer to take action insuring a return thereto. Section 9, Act June 8, 1893, P. L. 345, provides for the intervention of and return by a third party interested, upon his petition, and its allowance by the court. No. doubt, in all these cases the county was an interested party. It may very well be that the treasurer refusing to pay a warrant drawn upon him and required by process of mandamus to justify such refusal, is entitled to call upon the county commissioners, where the ground of refusal is one which the county can set up, to proceed under the enactment referred to with a view to assuming the burden of the contest. If he does so and the commissioners apply for leave and are admitted to make the return the matter is thenceforth in the charge of the county solicitor or in case of his inability or disqualification to act of such special counsel as the commissioners shall have lawfully employed; and it would seem that thereupon no further responsibility for its outcome can rest upon the county treasurer. If the commissioners fail to accede to his demand, it is evident that he is bound to proceed. Whether or not it is his duty to make the demand need not be here decided. Where, as is alleged in the case stated with respect to the Bechtel warrant, both a majority of the commissioners and the solicitor are committed to the legality of the payment, the principle Lex non cogit ad vana seu inutilia may excuse a demand whose fruitlessness might fairly be regarded as a foregone conclusion. This however does not apply to the other warrants. As to them the presumption must be that the commissioners would have done their duty. But it does not follow that even upon a refusal on their part the treasurer was bound at once to employ counsel. He might in the first instance have contented himself with making a return setting forth his position in such terms as he himself was able to formulate. Section 13 of the act 1893 expressly provides that certainty to a certain intent in general is all that is required in the return and that, if the same be defective, an opportunity for correction may be afforded; thus guarding against an adverse judgment by reason of informality. It is conceived that a treasurer who does as indicated, after demanding the intervention of the commissioners to protect the interests of the county, or under circumstances palpably such as to make a demand of that sort hopeless, will in the event of a demurrer to the return be protected by a judgment of the court in any payment thereafter made by him in obedience thereto. On the other hand, it is not intended to suggest that a treasurer ought to limit himself to the exigencies of mere self-protection in resisting a claim he believes unlawful. A larger sense of his obligations as a citizen and the promptings of public spirit may and perhaps ought to lead him to do just what this plaintiff did, that is to engage competent counsel and contest the claim to the finish. But in so doing, as is pointed out by Mr. Justice Brown, in Bechtel v. Fry, 217 Pa. 591, 598, he is asserting the right not of his office, but of any taxpayer interested in the payment of money out of the public treasury. He stands in the position of one coming into court with a taxpayer’s bill to restrain an unlawful expenditure of the county’s money. Of course no one will contend that such a plaintiff could upon a successful or unsuccessful issue of the litigation make any claim upon the county for reimbursement of his costs and counsel fees.
    The industry and research of the learned counsel for plaintiff have discovered no decision in Pennsylvania or elsewhere on all fours with this case. They have directed attention to a number more or less closely approximating it. As regards any superficial analogies between them and this case, it is well to remember that analogies amount to very little in law. They are, Judge Woodward says in Overman’s App., 88 Pa. 276, 286, just as likely to misguidé as to guide safely. Even a logical deduction from the proposition involved in one decision is not necessarily made the law by it: per Halsbury, L. C., in Quinn v. Leathern, L. R. (1901), A. C. 495, 506. But a careful examination of the decisions referred to shows them to be readily distinguishable by simply keeping in mind that the treasurer refusing to pay an unlawful warrant, in so far as he acts as an official, acts for his own protection against personal liability, and in so far as he acts for the protection of the county stands upon his right as and acts upon the footing of a taxpayer. A coroner employing the services of a surgeon at an inquest: see Allegheny County v. Watt, 3 Pa. 462; Northampton County v. Innes, 26 Pa. 156; Allegheny County v. Shaw, 34 Pa. 301; Re Coroner’s Inquest, 1 Pa. C. C. Rep. 14; Pickett v. Erie County, 3 Pa. C. C. Rep. 23; Marvin Shaft Inquest, 3 Pa. C. C. Rep. 10; a sheriff, keeper of the county prison, providing fuel to make it habitable: Richardson v. Clarion County, 14 Pa. 198; a trial judge in a capital case directing the boarding and lodging of the jury at a public house: Commissioners v. Hall, 7 Watts, 290; the court of common pleas, having the control and custody of a fund paid into the hands of the prothonoatry by its. order and therefore empowered to see to the protection and proper distribution of the money, directing an attorney to institute and conduct a suit in the name of the county against the prothonotary’s sureties for the recovery of the sum: Northampton County v. Steele, 1 Mona. 582; a judge for the purpose of expediting the public business ordering the transcription of opinions by a typewriter: Rosenthal v. Luzerne County, 11 Kulp, 183; a board of prison inspectors incurring reasonable expenses in examining the practical workings of a system expected to be introduced in the institution: Mogel v. Berks County, 154 Pa. 14; the governing body of a municipality employing an attorney for the safeguarding of its rights and interests in a suit to which it or one of its officers is a party: Powell v. Village Trustees, 19 Johns. (N. Y.) 284; Babbitt v. Savoy Selectmen, 57 Mass. 530; a county treasurer, required by statute to prosecute suits for the collection of taxes due the county and expressly allowed his expenses in the performance of official duties, employing an attorney to conduct such suits: State v. Hamilton County, 26 Ohio St. 364; all these were public officials exercising powers delegated to them and in the exercise of'them acting exclusively in their official capacities as the immediate representatives of the public and purely in its behalf, not for their own protection nor by virtue of their rights as private citizens. The rule that where the compensation of a public officer is fixed by statute he cannot recover additional compensation for expenses incurred incidentally to the performance of his official duties. Albright v. Bedford County, 106 Pa. 582, must not be understood either as derogating from or as displaced by the other that the express grant of a power carries with it by implication whatever is essential to make its exercise effectual: Com. v. Conyngham, 66 Pa. 99. Each of these rules has its own legitimate sphere of operation. Expenses incident to the performance of a duty enjoined and compensated are one thing; a power to bind the county implied in the'grant of another power, because the latter could not without the former be carried out, is a very different thing. In all the above cases, and it is safe to say in every other well-considered case reaching similar results, there was a distinct power which the officer .in question was bound in duty to exercise, but which could not have been effectually exercised except in connection with the additional power to impose upon the public treasury the expense arising therefrom, which additional power must for that reason be deemed to be implied in it. A very different proposition, and one much more pertinent to the question now before us, would be involved in a concession that, e. g., the county controller may make the county liable to an attorney employed by him to advise him upon the multifarious questions of law that constantly confront him in the discharge of his official duties. It has indeed been decided in Wyoming County Auditors, 14 Pa. Dist. Rep. 539, and Niles v. York County, 15 Pa. Dist. Rep. 717, that county auditors may, when necessary for the performance of their duties, do so without the sanction of the county commissioners. Possibly this is good law arising from an absolute need of such assistance to men inexperienced in functions which call them together but once in a year for a short period; from the impracticability of depending upon the county solicitor for it especially where the commissioners’ interests may be at stake; and from the disproportion any sum. adequately remunerative of the services of counsel would bear to the compensation received by the auditors. But it furnishes no ground for holding that the controller may employ counsel at the expense of the county. That, on the contrary, he cannot is clear from the fact that it needed the Act of March 28, 1907, P. L. 37, to enable him to do so in certain counties. And yet the reasons operating in favor of the existence of such a power on his part are vastly more obvious and cogent than any that can be urged in behalf of the recognition of a similar authority on the part of the treasurer or any other county official. Public officers are chosen at least in part in reliance upon their ability and disposition even at some personal sacrifice to perform the duties of their offices according to law. To them, as to all other persons, the principle applies that “every man must, in the first instance, interpret the law for himself in'endeavoring to obey it:” Boom Co. v. Dodge, 31 Pa. 285, 288. It cannot consistently with this principle and the doctrine enunciated by the Supreme Court in Bechtel v. Fry, 217 Pa. 591, be true that when such an officer finds himself face to face with a situation in which he must determine what course of action his legal duty to the county and the protection of his bondsmen require of him, or where for these purposes he is in his official capacity compelled to defend an action, he may regard himself as the agent of the county vested with a power superior to that of the commissioners to engage special counsel to advise and represent him, whose compensation will thereafter be a charge upon the county treasury. If under any conceivable state of facts such a rule could be justified, those here presented would furnish a meritorious occasion for its application at least so far as the larger item of plaintiff's claim is concerned. But in point of principle there is no warrant for it at all, and in point of practical bearing it is fraught with so many manifest dangers, inconveniences and temptations that is is not entitled to consideration as capable even under exceptional circumstances of consisting with sound public policy.
    February 26, 1909:
    For these reasons, whilst impressed with the plaintiff's view of his duty and with his promptness and efficiency in performing it, as well as with the value of the outcome to the county as compared with the moderate sum here sought to be recovered from it, we are clearly of the opinion that there is no tenable ground on which the action can be sustained, and therefore—
    It is ordered that judgment be entered upon the case stated in favor of the defendant.

      Error assigned was the judgment of the court.

      George W. Wagner, of Wagner & Leidy, for appellant.

      Adam B. Rieser, county solicitor, for appellee.
   Opinion by

Orlady, J.,

A case stated was filed in an action of assumpsit, to determine a question of the liability of the defendant county to pay certain counsel fees and expenses incurred by the plaintiff, the county treasurer, in defending certain proceedings instituted against him as such treasurer. The court below entered judgment upon the case stated in favor of the defendant.

Practically the same question was disposed of in Bechtel v. Fry, 217 Pa. 591, and the reasoning of that case applies with equal force to the one now before us. No fair-minded person can dispute the fact that the plaintiff here has rendered services to the county which were valuable and advantageous to it. Nor in this proceeding is the reasonableness of the compensation allowed him in dispute, if he is entitled to be compensated for his services, but if they were rendered as the return avers, and as for present purposes the court must believe, without a distinct and binding antecedent employment with reference to the specific matters in which they were rendered, they must be treated as having been to that extent voluntarily rendered for the public good, without right to claim or authority to accord compensation therefor out of the county treasury. When he accepted his office, he assumed all its burdens; public officers who are paid solely by fees, take and hold their offices cum onere. They can claim no compensation for any services not specified or provided for in the fee bill.' It is well settled that they cannot be paid out of the public treasury without statutory warrant therefor, and as such a statute cannot be shown, there is no right of recovery, however meritorious a service may be; no compensation for such service is provided by the statute, none can be recovered: Lehigh County v. Semmel, 124 Pa. 358; Rothrock v. School District, 133 Pa. 487; Schuylkill County v. Pepper, 182 Pa. 13.

The judgment is affirmed.


author: Per Curiam,

text:
    Fisher, Appellant, v. Reading Realty Company.

      Vendar and vendee — Articles of sale — Real estate — Covenants—“Good and complete” title — Assessment for sewer — Municipal claims.

    Where articles for the sale of real estate provide that taxes for the year preceding and years prior to that, shall be paid by the vendor, but no mention is made of an assessment for a sewer under construction, the amount of which could not be ascertained until long after the date of the agreement, the vendor is not liable under a covenant in the agreement providing for the title “to be good and complete,” to repay to the vendee the amount of such assessment paid by the latter after it was levied.
    Argued Nov. 10, 1908.
    Appeal, No. 83, Oct. T., 1908, by plaintiff, from order of C. P. Berks Co., Feb. T., 1908, No. 31, discharging rule for judgment for want of a sufficient affidavit of defense in case of William E. Fisher v. Reading Realty Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.

    Affirmed.
    Assumpsit on a covenant in articles for sale of real estate.
    Rule for judgment for want of a sufficient affidavit of defense.
    Endlich, J., filed an opinion which was in part as follows:
    By articles dated March 21, 1907, the defendant sold to plaintiff real estate therein described, the stipulated consideration being the payment of $1.00 in cash, the conveyance of a certain property as the equivalent of $2,450, and the execution of a first and second mortgage to secure the balance of the price agreed, — “ settlement to be made within 5 days from the date hereof,” — “taxes in full for the year 1906 and previous to be paid by present owners,” — and “title to be good and complete.” At the date of the agreement a house sewer was in process of construction by the city of Reading along the street upon which the land sold to plaintiff fronts. The ordinance authorizing the work and directing the assessment of the cost upon abutting properties had been passed August 7, 1905. The amount chargeable against this particular property was not ascertained or ascertainable until long after the date of the transaction, and was finally paid by plaintiff,— namely on November 9, 1907, $542.55, and on December 5, 1907, $95.21. .This suit is brought upon the articles of sale to recover these amounts, with interest, from defendant on the ground that the cost of the sewer construction along the property was a lien upon it at the time of the sale; that in covenanting to convey a “good” title defendant covenanted against all incumbrances: Doebler v. Rank, 3 Pa. Dist. Rep. 494, per McPherson, J., including this lien; and that plaintiff’s payment of it in order to clear the property entitles him to reimbursement by defendant, on the principle recognized in Funk v. Voneida, 11 S. & R. 109, and similar cases.
    The plaintiff’s contention seems to be untenable on two grounds. (1) Assuming that the city’s lien for the cost of the sewer attached to the property at the time of the sale, a fair construction of the entire agreement leads to the conclusion that the covenant for a good title' was not designed to apply to such lien. (2) At the time of the sale there was no lien in favor of the city upon the property for the cost of the sewer, to which the covenant could apply.
    Every contract must be understood with reference to its subject-matter: Blakely v. Sousa, 197 Pa. 305; and every contract whose meaning is not so positively fixed by its language taken as a whole: Dame, Seymour & Co.’s App., 62 Pa. 417, as to exclude the office of interpretation under the maxim absoluta sententia expositore non eget, is to be construed in the light of the situation of the parties and the circumstances and relations of the property in regard to which they have negotiated: Wilson v. Wernwag, 217 Pa. 82. The subject-matter of the contract involved in this case was a tract of land in a city fronting upon a street, in which, visibly to all concerned and in pursuance of an ordinance known to all concerned, a municipal improvement was going on, the cost of which would eventually have to be borne by the property, to an amount not presently ascertainable. From this incomplete improvement neither the property nor its owner, the defendant, had at the time derived any advantage; nor, at least under the then existing law, with reference to which the parties must have dealt: Snyder v. Leibengood, 4 Pa. 305; Western Nat. Bank’s App., 102 Pa. 1731; Burnett v. R. R. Co., 176 Pa. 45; Silk Mfg. Co. v. Reilly, 187 Pa. 526, was there then or could there at any time be any personal liability by reason of it upon the defendant: Theobald v. Sylvester, 27 Pa. Superior Ct. 362, the charge being against the property itself: Wolf v. Philadelphia, 105 Pa. 25; Gimber’s Est., 15 Pa. Dist. Rep. 59, the benefit to which from the improvement would accrue only upon its completion and be enjoyed by the plaintiff. When in these circumstances the parties agreed that “settlement” of the transaction contemplated by their articles should be made within five days from their date including of course the transfer of a “good and complete title” to plaintiff, it appears not only unreasonable to suppose but highly improbable that any covenant against incumbrances was understood or intended to relate to the liability of the property for the cost of the sewer in process of construction. If it was, then this transaction must be regarded as unique in that one party to it undertook to pay for something in respect to which there was no personal liability upon him and the whole benefit of which inured to the other party, and that both parties deliberately agreed upon something which both knew to be impossible. The likelihood that they did not understand the covenant against incumbrances to apply to the sewer charge is, however, converted into a legal certainty by the express provision for the payment of the taxes of 1906 and previous years. The unpaid city taxes for those years were liens upon the property quite as much as the cost of the sewer, and were liens of the same character; for charges for municipal improvements are a species of taxes: Park Ave. Sewers, 169 Pa. 433. The express provision for the discharge of the property from a specific -incumbrance belonging to the general class to which the one in question equally belongs makes it very clear that the covenant for a good title, broad enough to cover both, was not understood or intended to cover either. Otherwise the express provision would have to be regarded as meaningless surplusage, which on familiar principles of interpretation is not allowable. On the contrary, seeing that the parties did not look upon the general covenant against incumbrances as embracing municipal claims arising from the exercise of the power of taxation, the rule applies that the language of a covenant, no matter how broad or comprehensive, is to be treated as restricted to that which the parties had and as excluding that which they had not in view: Case v. Cushman, 3 W. & S. 544; Smith’s Est.; 210 Pa. 604.
    February 26, 1909:

      Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

      John B. Stevens, with him C. H. Ruhl, for appellant.

      Cyrus G. Derr, with him Paul H. Price, for appellee.
   Per Curiam,

This is an appeal by plaintiff from the discharge of the rule for judgment for want of a sufficient affidavit of defense. The legal questions are clearly stated in the opinion filed by the learned judge below. As we view the case it is not necessary to decide at this time whether the city’s claim was or was not an incumbrance upon the property at the time of the agreement and settlement thereunder. For even if it was, we think the learned judge has shown quite clearly that a fair construction of the entire agreement leads to the conclusion that the covenant upon which the plaintiff relies was not intended to apply to such a claim. We deem it unnecessary to add anything to what he has said in support of that conclusion.

The appeal is dismissed at the costs of the plaintiff, without prejudice to his right to a jury trial and a second appeal after final judgment.


text:
    Wernersville Borough.

      Boroughs — Incorporation—Appeals—Certiorari—Review—Record— Evidence.

    An appeal from an order dismissing a petition for the incorporation of a borough, is in the nature of a certiorari, and the appellate court has power to review only the record as brought up without the evidence. If in such a case the lower court’s decision is based upon evidence that the petition was not signed by the required number of resident freeholders, the appellate court has no power to review the order.
    Argued Nov. 11, 1908.
    Appeal, No. 128, Oct. T., 1908, by George W. Wertz, from order of Q. S. Berks Co., Miscellaneous Docket, 1907, No. 923, dismissing petition for the incorporation of a borough in the Matter of Incorporation of the Village of Wernersville into a Borough.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for the incorporation of a borough.
    The opinion of the Superior Court states the case.

      Error assigned was order dismissing the petition.

      Leonard G. Yoder, with him C. II. Ruhl, for appellants.

      Isaac Hiester, for appellees.
    The court is without jurisdiction to consider the questions raised by the appellants because the appeal is a substitute for a certiorari which brings up only the record and not the testimony nor the opinion of the court: Quakertown Borough, 3 Grant, 203; Osborne Borough, 101 Pa. 284; Darby v. Sharon Hill, 112 Pa. 66; Camp Hill Borough, 142 Pa. 511; Swissvale Borough, 9 Pa. Superior Ct. 212; Rouseville Borough, 12 Pa. Superior Ct. 126; Swoyerville Borough, 12 Pa. Superior Ct. 118; Moosic Borough, 12 Pa. Superior Ct. 353; Old Forge Borough, 12 Pa. Superior Ct. 359; Mill Creek Borough, 32 Pa. Superior Ct. 465.

      February 26, 1909:
   Per Curiam,

After the petition for incorporation had been presented and filed, certain resident freeholders filed exceptions to the application and proceedings, which were to the effect (1) that the petition was defective in its averments; (2) that it was not signed by a majority of the freeholders residing within the limits of the proposed borough; (3) that it was not expedient to grant the prayer of the petitioners. The court, after hearing upon depositions, dismissed the petition for want of jurisdiction, and from that decree we have this appeal. The decree does not show on its face whether the decision that there was lack of jurisdiction was based on the alleged defects in the petition or on the matters of fact established by the depositions. But if we look into the opinion for the purpose of ascertaining the grounds of the decision, we find that it was based on the court’s conclusion from the evidence that the petition was not signed by a majority of the freeholders residing within the limits of the proposed borough. Whether the question thus decided against the appellants’ contention be regarded as a pure question of fact or a mixed question of law and fact, it is apparent that there can be no proper review of the court’s decision of it without an examination of the evidence. But it is as well settled as anything can be that under the law as it stood prior to the two Acts of May 9, 1889, P. L. 158-174, the appellate proceeding then called certiorari did not bring up the evidence heard in the court below, and that the law was not changed in that particular by those acts. The name of the proceeding was changed to appeal; but the jurisdiction of the appellate court was not enlarged. Viewing ‘ the appeal as in the nature of a certiorari, we are compelled by principle and authority to hold that the court’s conclusion from the evidence that the petition was not signed by the required number of resident freeholders is not open to review: Borough of Quakertown, 3 Grant, 203; Darby v. Sharon Hill Borough, 112 Pa. 66; Camp Hill Borough, 142 Pa. 511; Swoyerville Borough, 12 Pa. Superior Ct. 118; Rouseville Borough, 12 Pa. Superior Ct. 126; Moosic Borough, 12 Pa. Superior Ct. 353; Old Forge Borough, 12 Pa. Superior Ct. 359; Mill Creek Borough, 32 Pa. Superior Ct. 465. If it appeared by the opinion of the court that its decision was based on the ground that the petition was defective on its face a different question would be presented.

Finding no error in the record, and no abuse of discretion being alleged or shown, all of the assignments of error must be overruled for the reasons above suggested.

The order is affirmed.


author: Pee Curiam,

text:
    Yost, Appellant v. Yost.

      Appeals — Justice of the peace — Trespass.
    No appeal lies from a judgment of the common pleas, reversing on certiorari a judgment of a justice of the peace in favor of the plaintiff in an action of trespass.
    Argued Nov. 11, 1908.
    Appeal, No. 221, Oct. T., 1907,' by plaintiff, from judgment of C. P. Lancaster Co., June T., 1906, No. 10, reversing judgment of a justice of the peace in case of David C. Yost v. William Yost.
    Before Rice, P. J., Porter, PIenderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Certiorari to judgment of a justice of the peace. Before Hassler, J.

      Error assigned was order reversing judgment of a justice of the peace in favor of the plaintiff in an action of trespass.

      B. D. Davis, for appellant.-
    The judgment of the court below in a certiorari from proceedings of a justice of the peace is final when those proceedings are under the Act of March 20, 1810, 5 Sm. L. 161, where the process is executed in the same manner. The case in hand, however, does not come within the act of 1810. It is an action of trespass, and is under the Act of March 22, 1814, sec. 1, 6 Sm. L. 182 The service of the summons is not in accordance with the act of 1810, but in accordance with the Act of July 9, 1901, P. L. 614, which has superseded the act of 1810. Therefore, as the act holding the judgment of the court below to be final is only under the act of 1810, and as the case in hand is not under that act in any respect, the appellate court has jurisdiction: Com. v. Burkhart, 23 Pa. 521; Strouse v. Lawrence, 160 Pa. 421; Com. v. Davison, 11 Pa. Superior Ct. 130; Com. v. Betts, 76 Pa. 465.
    February 26, 1909:

      W. C. Rehm, with him W. U. Hensel, for appellees.
    It is moved to quash the appeal because no appeal lies in such cases as the one brought here.
    The judgment of the court of common pleas is final on all proceedings reversing the judgment of a justice of the peace in an action of trespass under the Act of 1814, P. L. 182: Cozens v. Dewees, 2 S. & R. 112; Diehm v. Parkes, 1 Mona. 174; Carroll v. Barnes & Erb Co., 11 Pa. Superior Ct. 590; Crumley v. Coal Co., 13 Pa. Superior Ct. 231; Alexander v. Goldstein, 13 Pa. Superior Ct. 518; Johnson v. Hibbard, 3 Whart. 12; Castor v. Cloud, 2 W. N. C. 252; Jacobs v. Ellis, 156 Pa. 253.
   Pee Curiam,

This is an appeal from a judgment of the common pleas, reversing on certiorari a judgment of a justice of the peace in favor of the plaintiff, in an action of trespass. As early as 1815 it was decided that a writ of error did not lie to such a judgment: Cozens v. Dewees, 2 S. & R. 112. And the same was held by us in the recent case of Minogue v. Ashland Boro., 27 Pa. Superior Ct. 506. The reason for the conclusion is that the provisions of the act of 1810, that the judgment of the common pleas shall be final in all proceedings under that act removed on certiorari by said court, and that no writ of error shall issue thereon, were extended by the act of 1814, to actions of trespass and trover brought before a justice of the peace. It is contended that the rule is not applicable because later legislation has changed the mode of service of summons. Without expressing any opinion upon the question whether the mode of service has been changed, it is sufficient to say that even if it were so, this would not affect the law making the judgment of the common pleas final in the classes of cases mentioned in the Acts of March 20, 1810, 5 Sm. L. 161, and March 22, 1814, 6 Sm. L. 182: Phœnix Iron Works Co. v. Mullen, 25 Pa. Superior Ct. 547 The appellee’s- motion is allowed and the appeal is quashed at the costs of the appellant.


text:
    West Pikeland Township Private Road.
    February 26, 1909:

      Appeals — Certiorari—Road law.

    Where the record of a road case brought up by certiorari from the quarter sessions, shows that the court had jurisdiction, and that the proceedings were regular on their face, and there is no allegation or proof of abuse of discretion, the order of the lower court will be affirmed. In such a case the appellate court cannot look outside the record for the facts.
    Argued Nov. 17, 1908.
    Appeal, No. 3, Oct. T., 1908, by-Henry Seabold, from order of Q. S. Chester Co., dismissing exceptions to report of jury of review in re private road in West Pikeland Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of jury of review.

      Error assigned was in dismissing the exceptions.

      J. Frank E. Pause, with him Thomas W. Baldwin, for appellant.

      Alfred P. Reid, for appellee.
   Per Curiam,

This is an appeal from an order of the quarter sessions confirming absolutely a report of rereviewers laying out a private road. The question the appellant asks us to decide is, whether a private road can be laid out, under the acts of assembly relating to that subject, over a private right of way theretofore granted to another person by the owner of the fee. On the part of the appellee it is contended that the appeal cannot be sustained, because the record does not show any right of way in the appellant; that there is nothing thereinto show directly or inferentially the origin, nature or extent of the easement said to be vested in the appellant, or, indeed, that he has any easement in the land over which this private road was laid by the rereviewers. The condition of the record as printed in the appellant’s paper-book being as thus stated by appellee’s counsel, and as in the determination of this appeal from the order complained of we cannot look outside the record for the facts, it is apparent that the question raised by the appellant is not before us for decision: Keller’s Private Road, 154 Pa. 547; Rearick’s Private Road, 7 Pa. Superior Ct. 548. If it be said that it is not a question of fact but of law, and, therefore, those cases, which hold that the decisions of the quarter sessions of questions of fact in road proceedings are not reviewable on appeal, do not apply, the answer is that it is not a question of law which arises out of facts appearing of record. In Hamilton Street, 148 Pa. 640, the question the appellant sought to have decided was a question of title said to arise out of undisputed facts. In disposing of the contention the present chief justice said: “But examination of the record discloses nothing to bring this question before us. The matters were within the jurisdiction of the court, and the proceedings are regular on their face. Beyond these points we are not entitled to look. Certiorari brings up only the record, and we cannot look outside of it, at the facts, even though they be set forth in the opinion of the court.” This is the settled rule in road cases brought up from the quarter sessions, and it controls the present case. It appearing by the record that the court had jurisdiction and that the proceedings were regular, and no abuse of discretion being shown or alleged, the order must be affirmed.

We will add, since the question was fully discussed by counsel, that the appellant has little to complain of or fear, if the appellee adheres in the future to the position taken by his counsel here. He says: “The use of the same” (the private road laid out in this proceeding) “by the owner for passage to and from his property, is not inconsistent with the enjoyment of the easement over the same by the owner of such easement. Both can exist together.”

The order is affirmed.


author: Beaver, J.,

text:
    Mitcheson v. Barth, Appellant.

      Landlord, and tenant — Notice to quit — Holding over — New lease.

    Where a lease contains a clause for thirty days notice of removal, provided, however, that if the lessor gives thirty days notice previous to the expiration of the term, of his intention to change the terms and conditions of the lease and the lessor shall hold over after such notice, “ho shall be considered lessee under the terms and conditions mentioned in such notice, for such further period as he may remain in possession of said premises, and until this lease is terminated by notice as herein-before provided,” and the landlord gives the tenant the thirty days' notice of a change in the rent and the term of the lease, the tenant cannot remain in possession and defend an action for the increased rent on the ground that the notice is void.
    Argued Dec. 15, 1908.
    Appeal, No. 160, Oct. T., 1908, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1907, No. 1,607, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Joseph MacGregor Mitcheson, for himself and as attorney for Mary Frances Mitcheson (now Mary Frances Nunns), v. Philip Barth.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady. Head and Beaver, JJ.
    Affirmed.
    Assumpsit for rent.
    The opinion of the Superior Court states the facts.

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

      February 26, 1909:

      Eugene C. Bonniwell, with him John J. Green, for appellant.
    The landlord plaintiff having withdrawn his notice of an intention to terminate the lease and having failed to exercise the power of change of terms and conditions in accordance with the provisions of the contract of lease, the tenant defendant held over and continued as tenant for another year at the old rental of $930 per annum payable $77.50 per month, and the plaintiff was not entitled to sue for or to recover any other rental.
    As a general rule, in construing provisions of a lease relating to renewals, where there is any uncertainty, the tenant is favored, and not the landlord, because the latter having the power of stipulating in his own favor, has neglected to do so, and also upon the principle that every man’s grant is to be taken most strongly against himself: Kaufmann v. Liggett, 209 Pa. 87; Gillion v. Finley, 22 W. N. C. 124; Com. v. McNeile, 8 Phila. 438.

      William H. Lloyd, for appellee.
    If the landlord notifies the lessee before the beginning of the new tenancy that the terms of the original tenancy will be changed in a certain respect, such as that an increased rent will be required, to the extent of such change the terms of the original lease do not apply, as it will be held that the tenant assented to the change; but the original lease is applicable in all other respects: Phœnixville Borough v. Walters, 184 Pa. 615.
    A lease containing a covenant to renew at its expiration with similar covenants, terms and conditions contained in the original lease is fully carried out by one renewal without the insertion of another covenant to renew. Otherwise a perpetuity is provided for: Winslow v. Baltimore and Ohio Railroad Co., 188 U. S. 646 (23 Sup. Ct. Repr. 433); Swigert v. Hartzell, 20 Pa. Superior Ct. 56.
   Opinion by

Beaver, J.,

A lease, of which the plaintiffs and defendant were lessors and lessee respectively, contained the following clause as to the termination of the lease by notice:

“And it is hereby mutually agreed, that either party hereto may determine this lease at the end of said term, by giving the other notice thereof, at least thirty days prior thereto, but in default of such notice, this lease shall continue upon the same terms and conditions as are herein contained, for a further period of one year, and so on from year to year, unless or until terminated by either party hereto giving to the other thirty days’ notice for removal previous to the expiration of the then current term. Provided, however, that, if the lessor shall have given thirty days’ notice previous to the expiration of said term, or any extension or renewal thereof as above, of his intention to change the terms and conditions of this lease, and the lessee shall hold over after such notice, he shall be considered lessee under the terms and conditions mentioned in such notice for such further period as he may remain in possession of said premises, and until this lease is terminated by notice, as hereinbefore provided.”

It seems, from a subsequent notice, a notice to quit dated September 19, 1907, had been served upon the defendant. On October 8, 1907, another notice, addressed to the defendant, was served upon him, in which the notice dated September 19, 1907, was revoked and withdrawn, and it was stated that: “In substitution for that notice you are hereby notified, in accordance with the provisions of your present lease, of the lessor’s intention to change the terms and conditions of the lease as follows, to wit: That, if you hold over after November 8th, 1907, you will do so upon the same terms and conditions as those contained in, and as if you and the lessor therein named had duly signed, sealed and executed, the draft of a lease enclosed herewith and attached hereto and made a part hereof.” The lease referred to in, and attached to and made part of this notice differs in several material respects from the terms and conditions under which the lessee held in the original lease. It was for a term of 205 days from November 9, 1907, until May 31, 1908, the rental for the said period of 205 days being $600, which was equivalent to $90.00 per month instead of $77.50 per month.

The clause in reference to the termination of the lease by notice was as follows: “And it is hereby mutually agreed, that either party hereto may determine this lease at the end of said term, by giving the other notice thereof, at least on or before January 15 prior thereto, but in default of such notice, this lease shall continue upon the same terms and conditions as are herein contained, for a further period of one year and so on from year to year at the rate of $1,140.00, payable in equal installments of $95.00 each, monthly in advance, on the first day in each month, unless or until terminated by either party hereto giving to the other on or before January 15 written notice for removal previous to the expiration of the then current term. Provided, however, that, if the lessor shall have given on or before January 15 written notice previous to the expiration of said term, or any extension or renewal thereof as above, of his intention to change the terms and conditions of this lease, and the lessee shall hold over after such notice, he shall be considered lessee under the terms and conditions mentioned in such notice, for such further period as he may remain in possession of said premises, and until this lease is terminated by notice, as hereinbefore provided.”

The plaintiffs claim that the defendant subsequent to the service upon him of the first notice, in accordance with the terms of the original lease, continued to remain in possession of the said premises subsequently to November 8, 1907, when his lease terminated according to the notice, and has remained in possession of the same up until the present time.

The claim of the plaintiffs was for the sum of $60.00 due on November 9, 1907, and a further sum of $90.00 due on December 1, 1907. These facts are expressly admitted by the defendant in his affidavit of defense, but he avers that he is not liable to the plaintiffs in any sum other than the sum of $77.50 per month.

“ 1. Because several writings, purporting to be the notice or notices given by plaintiffs of plaintiffs’ intention to change the terms and conditions of the lease were not such notice or notices as are required by said lease.

“2. Because the said writings purporting to be the notice or notices are void and of no binding effect or force, as they do not set forth the changes in the terms and conditions of the lease.

“3. Because the said several writings purported to notify defendant of changes in the terms and conditions of the lease contradictory with each other.

“4. Because the several writings provided for changes in the terms and conditions of the lease of which the said lease does not permit, that is, the said alleged notices provide that, if the lessee shall hold over after such notice, he shall be considered lessee 'after November 8, 1907, and until May 31, 1908, at the rent of $600., and thereafter at the rent of $1,140. per year/ whereas the said lease provides that, if the lessee shall hold over after such notice, he shall be considered lessee under the terms and conditions mentioned in such notice for such further period as he may remain in possession of said premises, and until this lease is terminated by notice, as hereinbefore provided.”

Motion was made for judgment for want of a sufficient affidavit of defense which, on argument, was made absolute. No opinion was filed in the court below, but the plaintiffs' statement of claim and the defendant's affidavit of defense raise such a clearly defined question of law that we are not in doubt as to the grounds which led the court below to enter judgment for want of a sufficient affidavit of defense. The notice of the termination of the original lease was accompanied by the draft of a new lease which was, in fact, as much a part of the notice to quit as if it had been copied therein instead of being attached thereto, and the defendant, having held over after the termination of his lease, as he confessedly did, he became under the terms of his original lease a lessee under the terms of the proposed lease which was attached to the notice to quit and made part thereof. There is no limitation in the original lease as to the terms and conditions which the lessors might change in the notice to quit, so that the termination of the tenancy under the notice or new lease and of the time for notice to quit to be given were as much terms and conditions as the increased rental, and any other terms and conditions of the old lease which might be changed by the notice or the new lease which was attached to the notice and made part thereof.

The part of the original lease, upon which the defendant seems to rely, is, that, if, “the lessee shall hold over after such notice, he shall be considered lessee under the terms and conditions mentioned in such notice for such further period as he may remain in possession of said premises and until this lease is terminated by notice as hereinbefore provided.” This provision was inserted, evidently, so that, if no change in the time of notice were given in the new lease, the old terms or conditions in regard to notice should remain effective, but, inasmuch as the form of the new lease provided for a different notice and the defendant held over under the terms of that notice, he is bound thereby.

There is no uncertainty or ambiguity in regard to the terms of the new lease, as provided in the notice of October 8, which was within the period required by the original lease, was accompanied by a letter addressed to the defendant, the receipt of which is not denied, in which the reasons for the withdrawal of the notice of September 19 are given, and in which it is stated: “On September 23rd, James H. Young, Esq., as your representative, called upon me, and on your behalf offered to lease, at the rate of $90.00 per month for a period of five years: this offer was declined. On September 25th, however, Mr. Young, on your behalf and I, on behalf of the owners, agreed orally for a lease at $90.00 per month until May 31, 1909, and a lease in the terms agreed upon was delivered to Mr. Young on September 28, to be signed by you. He informs me this morning that you refused to carry out the agreement and sign the lease. I am, therefore, notifying you by the notice enclosed herewith that the notice to vacate is withdrawn and that your rent after November 8, 1907, until May 31, 1908, will be at the rent of $900 and thereafter at the rent of $1,140.00 per year.”

We are of the opinion that the plaintiffs had a right in their notice to change the terms or conditions of the lease as to the time at which notice of the termination of the new lease was to be given, as well as to other terms and conditions of the new lease, as set forth in the notice. It was the defendant’s duty, therefore, if he was not satisfied with the terms of the new lease, as contained in the notice to quit, to vacate the premises on November 8 and, having failed to do this, he became liable, under the terms of the new lease, for the rent fixed therein, namely, $60.00 for the portion of the month from November 8 until December 1, and $90.00 for the month beginning December 1. For this amount — $150—we think the court below entered a good judgment, which is affirmed.


author: Orlady, J,,

text:
    Stokes, Appellant v. John Crompton Company.
    February 26, 1909:

      Equity — Accounting—Findings of fact.

    On a bill in equity for an accounting against a corporation where the question involved is purely a question of fact growing out of the disputed testimony of the plaintiff, and a person with whom he alleges he made his contract to bind the defendant, the appellate court will not review the findings of fact of the trial judge where there has been no manifest error.
    Argued Dec. 19, 1908.
    Appeal, No. 234, Oct. T., 1908, by plaintiff, from decree of C. P. No. 4, Phila. Co., Dec. T., 1907, No. 4,309, dismissing bill in equity in case of George E. Stokes v. The John Crompton Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an account.

      Error assigned was decree dismissing the bill.

      E. Spencer Miller, for appellant:

      Archibald T. Johnson, for appellee.
   Opinion by

Orlady, J,,

After a careful review of the testimony taken in the court below, we feel that the trial judge was fully warranted in dismissing the plaintiff's bill.

The real question involved in the case is purely a question of fact growing out of the disputed testimony of the plaintiff arid the person with whom he alleges he made his contract to bind the defendant company.

No good purpose would be served by reviewing the testimony, there being in our judgment sufficient competent testimony to warrant the conclusion that the plaintiff's right to an accounting is against Alonzo W. Platt, and to him he must look.

The judgment is affirmed.


author: Morrison, J.,

text:
    Stouffer v. Kelchner, Appellant.

      Bills of exchange — Negotiable paper — Fraud—Prima facie case — Burden of proof.

    In a suit against an acceptor of bills of exchange, where the evidence shows that the acceptor signed his name on the notes knowing that’ they were some sort of an obligation for payment, and there is no evidence of fraud so as to impeach the title of an innocent holder for value before maturity, the offering of the bills with indorsements makes out a prima facie case, and the plaintiff is not required to show that he is an innocent holder for value before maturity.
    Argued Dec. 19, 1908.
    Appeal, No. 122, Oct. T., 1908, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1905, No. 592, on verdict for plaintiff in case of J. C. Stouffer v. Charles E. Kelchner.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for bills of exchange. Before Willson, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for 1146.36. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      W. L. Sheppard and W. W. Porter, of Porter, Foulkrod & McCiillagh, with them Edgar Barnes, for appellant.

      Clifton Maloney, for appellee.

      February 26, 1909:
   Opinion by

Morrison, J.,

This action of assumpsit is upon two bills of exchange, by the indorsee against the acceptor. The bills were drawn by the Puritan Manufacturing Company to its own order, and on November 7, 1904, accepted across the face thereof as follows: “Accepted, Charles E. Kelchner.” On December 30, 1904, both of‘said bills were indorsed to J. C. Stouffer or order by the Puritain Manufacturing Company and delivered to the indorsee. Neither of the bills were due at that time. The transaction in the present case is so similar to that between the same company and Christopher Koch, in which we have this day filed an opinion in Johnson County Savings Bank v. Koch, post, p. 553, that it will not be necessary for us to discuss the present case at length. The two cases on their facts are ruled by the same legal principles.

A striking fact in the present case is that the appellant testified at the trial that he knew he was signing what looked to him like notes. It is true he says that he was told “we simply use them as acceptances of the goods and we file away in pigeonholes, and when your first payment becomes due we notify you.” But this is of little consequence, except in showing that the appellant knew he was signing obligations for payment. What he here avers would not be sufficient in an affidavit of defense, to prevent summary judgment: Clarke v. Allen, 132 Pa. 40.

We find nothing in the evidence, admitted or offered, showing that his signatures to the bills were obtained by any such trick, artifice or fraud as to impeach the title of an innocent holder of the bills for value before maturity and without notice. The appellee made a prima facie case by offering the bills and the indorsements. It is contended, however, that this did not relieve him from the necessity of showing that he was an innocent holder for value, etc. We do not so understand the law. We assume that under the rules of practice in the court below the papers put in evidence made a sufficient prima facie case for the appellee, and, therefore, cast the burden on the appellant of showing that he was not liable to pay his written acceptances to an innocent holder.

In our opinion, all of the evidence admitted and such offers as were made and rejected did not present a'valid defense in the present case. And, therefore, the learned court did not err in directing a verdict for the plaintiff.

The assignments of error do not call for any special discussion, and they are all dismissed and the judgment is affirmed.


text:
    Miller v. Jackson, Appellant.

      Practice, C. P. — Writ of inquiry — Sheriff.
    1. The practice of directing a writ of inquiry to the sheriff for the purpose of having damages assessed by a jury to be summoned by him, was not abrogated by the Act of May 22, 1722, sec. 27, 1 Sm. L. 131.
    2. Where a deputy sheriff summons a jury under a writ of inquiry, the sheriff may for a good reason revoke the appointment and choose another jury; and it is no reason for setting aside the verdict of such jury because some of the jurors were selected from among the clerks and employees of the courthouse; and this is especially so where the defendant makes no objection to the jury until after he has had a hearing before them, and a verdict has been reached.
    3. A defendant cannot appeal from a verdict of a jury of inquiry to the court of common pleas.

      Appeals — Costs—Paper-hooks—Printing paper-books.

    4. The Act of April 15,1907, P. L. 83, imposing the cost of the printing of paper-books upon a losing party, relates only to such cases as arose after its passage. It does not apply to pending cases which are determined after the passage of the act.
    Argued Nov. 12, 1908.
    Appeal, No. 12, Oct. T., 1908, by defendant, from orders of C. P. Lancaster Co., Dec. T., 1905, No. 37, discharging certain rules and exceptions and sustaining an appeal from taxation of costs in case of John B. Miller, assignee for creditors of William P. Chubbs and wife, v. Joseph Jackson.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to show cause why writ of inquiry, etc., should not be set aside.

      Rule to show, cause why an appeal from the verdict of the jury of inquiry should not be allowed.
    Exceptions to inquisition.
    Appeal from taxation of costs.
    Landis, P. J., filed the following opinion:
    Judgment having been entered against the defendant in an action of replevin for want of a sufficient affidavit of defense, a writ of inquiry was issued, to ascertain the value of the goods. A jury, summoned by the sheriff, having met and duly considered the case, found their value to be $332.50. The defendant now contends that the writ of inquiry was improvidently issued, and that the sheriff improperly performed his duty. These objections are the basis of the first and third rules;
    The replevin Act of April 19, 1901, P. L. 88, sec. 5¡ provides that “.... in the event of judgment being rendered in favor of the plaintiff for a portion of such goods and chattels replevied, he may proceed to recover such goods and chattels by writ of retorno habendo, or the value thereof, after assessment of damages on a writ of inquiry of damages issued. . . .” Therefore, as we find in the act an express authority to thus assess the damages, the only other question that arises is, whether the inquiry was conducted under proper forms.
    Section 6 of rule XV of the rules of this court, page 33, directs that: “The Prothonotary shall ascertain the damages in all cases of judgment by default, v/here the suit is brought on a promissory note, bill of exchange or book account. He shall also ascertain the damages in all other cases founded on contract, and sounding in damages where the defendant does not object; but if the defendant object in these last mentioned cases, or if the action be founded on a tort, the damages shall be ascertained by a jury of inquiry. Notice shall always be given at least four days before the execution of a writ of inquiry of damages.” This rule is a verbatim copy of the rule of the old court of common pleas of Philadelphia. See 1 Brewster’s Practice, sec. 690. Under it, notice was given on November 1, 1907, to defendant’s counsel that a writ of inquiry would issue on November 5, 1907. On November 5, 1907, a prsecipe was filed, directing such a writ to issue, and this was done. The sheriff, in pursuance thereof, summoned a jury of inquest, and this jury ascertained the damages as above stated. The defendant now claims that the proceedings, under the rule of court, were irregular, and that the Act of May 22, 1722, sec. 27, 1 Sm. L. 131, applied. This act provides that, “The justices who give any interlocutory judgment shall, at the motion of the plaintiff or his attorney in the action where such judgment is given, make an order in the nature of a writ of inquiry, to charge the jury attending at the same or next court after such judgment is given to inquire of the damages and costs sustained by the plaintiff in such action, which inquiry shall be made and evidence given in open court, and after the inquest consider thereof, they shall forthwith return their inquisition under their hands and seals, whereupon the court may proceed to judgment as upon inquisitions of that kind returned by the Sheriff.” In Wright v. Crane, 13 S. & R. 447, it was decided that the act of 1722 was not obsolete. See, also, Tuttle v. Mechanics’ & Tradesmen’s Loan Co., 6 Whart. 216. But in Kohler v. Luckenbaugh, 84 Pa. 258, the Supreme Court held that, “The practice of directing the writ of inquiry to the sheriff for the purpose of having damages assessed by a jury to be summoned by him is orderly and regular, notwithstanding the act of 1722;” that “that Act but gives the plaintiff the power, if he so chooses, to have the court make an order for such assessment, but it does not abrogate the ordinary practice.” Mr. Justice Gordon, in delivering the opinion, said: “Indeed, the only doubt which seems ever to have occurred on this subject was whether the Act above recited was not obsolete.” In Bradley v. Potts, 2 Pa. Dist. Rep. 797, Arnold, J., held that, “If liability is admitted, but the amount of damages is unliquidated, a writ of inquiry may be issued, or the damages may be assessed by a jury in court under the Act of May 22, 1722.” It is, therefore, settled that the method of relief here pursued by the plaintiff was in accordance with the law. The practice upon this subject is fully set out in chap. XIV, Brightly’s Troubat & Haly’s Practice, p. 247, and 1 Brewster’s Practice, chap. XV, p. 379, etc.

      It seems that, about an hour before the jury of inquest met, counsel for defendant applied to one of the judges of the court to set aside the writ and stay all proceedings. This application was refused, though a rule to show cause without stay was granted. Amongst other things, it was alleged that the sheriff had first selected a-jury from persons residing in Little Britain township, where the defendant lived, and afterwards had revoked the appointment and chosen another jury. The deposition taken showed that, while the sheriff was absent at a fire insurance meeting, his deputy, without his orders, had selected a jury of inquisition from the neighborhood in Little Britain township; but, when the sheriff learned of this, he wrote tox these parties that they were excused. The reason given by him was, that counsel for plaintiff informed him he wanted to try this case at the courthouse in Lancaster. The sheriff then saw defendant's attorney, and service of the writ was accepted by him. Afterwards, defendant and his counsel appeared before the jury and made a defense. The sheriff had no interest in this controversy. If his deputy, without his knowledge, attempted to summon a jury in the case, he had a right to correct the mistake and proceed with his writ. There is no evidence that any of the members of the jury were guilty of improper conduct. Even though many of them were selected from among the clerks and employees of the courthouse, that of itself is no reason for the setting aside of the verdict. No objection was made to the personnel of the jury before the hearing, and the defendant, after having taken his chances, is too late to complain. His appearance also waived all informality, if there was any, occurring prior to that time.
    It was shown that some irrelevant testimony on the part of the plaintiff was offered and admitted before the jury. Had nothing else been there produced, and had the finding been based entirely upon this testimony, we might sustain the objection raised. This, however, was not the real situation. Other competent witnesses to value were called and testified on both sides. In Leib v. Bolton, 1 Dal. 82, two jurors deposed that Leib’s book, supported by his own oath, had been admitted as evidence of the delivery of a quantity of leather. A motion was made to set aside the return of the jury on this account. The court, however, discharged the rule, saying: “We will not set aside the verdicts of juries of inquiry, nor the reports of referees, upon frivolous grounds. Nor will we examine into the effect of any particular piece of evidence upon the minds of the jury; for unless it appears that there was no proper evidence before them, we must presume that they had sufficient grounds for their inquest.”
    The objection to the valuation of the goods is a matter beyond our province. The sole purpose of the jury is to ascertain the value. This is the only question that can arise before them, and for this purpose they were appointed. There should be no interference with their finding, except in cases of gross misconduct or oppression; and certainly no evidence appeared in this case that would impel us to set aside the verdict on this account.
    The next question, covered by the third rule, is, whether the defendant can appeal from the verdict of the jury of inquiry to the court of common pleas. I have no knowledge of any such question ever having been raised. No authority has been cited and I have found none. I do not think any appeal can be allowed. The case, so far as the common pleas is concerned, ends with the judgment. The amount, not having been ascertained by the court, is referred to by the jury of inquest for a finding, and the decision thus ascertained is final. The verdict has the same effect as a verdict of a jury in court, and can in the same manner be enforced.
    The last item to consider is the exception filed by the plaintiff to the defendant’s bill of costs. The Act of April 15, 1907, P. L. 83, declares, “That, in all cases, either inlaw or equity, wherein an appeal is taken from any judgment, decree, or order to the Supreme or Superior Court, the party in whose favor the final decision is rendered shall be entitled to'charge and collect from the losing party as part of the costs such amount as shall have been expended for printing paper-books upon said appeal. Said amount to be taxed and collected in the same manner as costs are now taxed and collected by law.” Judgment was entered in this case in 1906. An appeal was taken to the Superior Court, and it was heard by that court in November, 1906. On October 7, 1907, the opinion of the court was delivered, whereby the judgment, except as to a bay horse, was affirmed, and, as to the horse, reversed with a procedendo, the costs of the appeal to be paid by the appellee. The cost of the paper-book is now claimed by the defendant and was taxed in his bill of costs. I am of opinion that the act of assembly related only to such cases as arose after its passage. At the time the paper-book was printed and the argument was made in the Superior Court, no such liability attached. If the case had been decided any time- before April 15, 1907, there would have been no pretense for such a claim. Because, then, the Superior Court, in its proper deliberations, was obliged to delay the decision until after the passage of the act, would seem to me no reason for the introduction of a different rule. The charge is, therefore, disallowed, the appeal is sustained, and the bill is referred back to the prothonotary for retaxation in accordance with this opinion.
    February 26, 1909:
    The rules granted are, therefore, discharged, the exceptions to the inquisition are overruled, and the appeal from the taxation of costs sustained as above stated.

      Error assigned was the order of the court.

      B. F. Davis, for appellant.
    The act of May 22, 1722, is still in force: Wright v. Crane, 13 S. & R. 447; Ridgley v. Dobson, 3 W. & S. 118; McHenry v. Union Pass. Ry. Co., 14 W. N. C. 404; Tuttle v. Loan Co., 6 Whart. 216; Beltzhoover Boro. v. Gollings, 101 Pa. 293; White v. McKeesport Boro., 101 Pa. 394.
    An appeal should be allowed in a case like this: Watkins v. Phillips, 2 Whart. 209.

      Edwin M. Gilbert, for appellee.
   Per Curiam,

We are of opinion that all of the questions arising upon this appeal were correctly decided by the learned judge below. All that we feel called upon to add to the clear and satisfactory opinion filed by him is a brief discussion of the case of Spring Run Coal Co. v. Tosier, 102 Pa. 342, upon which counsel for appellant principally relies to sustain his contention that the common-law practice of directing the writ of inquiry to the sheriff for the purpose of having damages assessed by a jury to be summoned by him was abrogated by the Act of May 22, 1722. Sm L. 131. A careful examination of that case has convinced us that such conclusion cannot be extracted from it. In the consideration of the direct question involved Justice Trtjnkey had occasion to discuss the mode of assessing damages after judgment by default in a case where a writ of inquiry, or proceeding in the nature thereof, is necessary. The conclusions expressed in his opinion are that in such a case (1) the mode of inquiry prescribed by the statute, is, if demanded by the plaintiff a matter of right; (2) that “the inquiry determines the amount of damages, when in open court, with precisely the same result as a sheriff’s inquisition.” But this was far from deciding that the plaintiff is bound to proceed in the statutory mode. Neither the decision nor the opinion is at all inconsistent with the previous ruling of the Supreme Court in Kohler v. Luckenbaugh, 84 Pa. 258, where it was distinctly declared that the mode pursued in the present case is orderly and regular, notwithstanding the act of 1722.

The order is affirmed at the costs of the appellant.