text:
    Moyer v. Pennsylvania Railroad Company, Appellant.

      Carriers — Common earners — Railroads—Loss of trunk — Warehousing— Bailment.

    After goods have been delivered by a common carrier at its depot, the owner or consignee has a reasonable tirqe within which to remove them, during which the liability of the carrier as an insurer continues. But after the expiration of such reasonable time, the liability of the carrier becomes modified, and it is only bound to exercise ordinary care to secure the safety of the goods. The liability is that of a bailee for hire and grows out of the original contract.
    If, after the liability of a carrier as an insurer ceases, goods of a consignee in its possession are destroyed or damaged, the carrier is only liable in case the loss occurred by reason of its negligence, which is a question of fact which must be proven to the satisfaction of the jury, the burden of proof being upon the party seeking to recover.
    Where a trunk arrives' at a station early in the morning, and its owner fails to claim it during the day, and it is consequently stored by the railroad company in its baggage room during the night, the company will not be liable for loss caused by a burglar breaking into the station and robbing the trank, if it appears that the company exercised reasonable and ordinary care in the storage of the trunk.
    Argued May 8, 1906.
    Appeal, No. 121, April T., 1906, by defendant, from order of C. P. Cambria Co., March T., 1904, No. 234, making absolute rule for judgment for want of a sufficient affidavit of defense in case of T. J. Moyer v. Pennsylvania Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, J J.
    Reversed.
    Appeal from justice of the peace. Before O’Connor, P. J.
    The facts are stated in the opinion of the Superior Court.

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

      H. W. Storey, for appellant.
    — The affidavit of defense was sufficient: Holdridge v. R. R. Co., 56 Barb. (N. Y.) 191; Wald v. R. R. Co., 92 Ky. 645 (18 S. W. Repr. 850) ; Clark v. R. R. Co., 139 Mass. 423.
    The omission of a passenger to call for his baggage until the day following that of his arrival is under ordinary circumstances unreasonable, and the carrier ceases to be liable as such, and is liable only as a warehouseman : Wiegand v. R. R. Co., 75 Fed. Repr. 370; Laffrey v. Grummond, 74 Mich. 186 (41 N. W. Repr. 894); C., R. I. & P. R. R. Co. v. Boyce, 73 Ill. 510; Kansas City, Ft. S. & M. R. R. Co. v. Patten, 3 Kan. App. 338 (45 Pac. Repr. 108).

      Robert E. Gresswell, with him George E. Wolfe, for appellee!
    —Reasonable time under all the circumstances determines liability: National Line Steamship Co. v. Smart, 107 Pa. 492.
    October 5, 1906 :
   Opinion by

Beaver, J.,

The plaintiff averred in his statement that “ On the 5th day of August, 1902, the said plaintiff purchased from the agent of the defendant company, at its ticket office in Lilly, a ticket, known as a first-class passenger ticket, good for one round trip from their station at Lilly in said county to their station at Atlantic City, and good in return at any time within six months from the date of its issue; and that the ticket entitled the plaintiff to have carried for him by .the said railroad company, in cars provided for the purpose, baggage to the value of |100 over the entire route named in the ticket, and the ticket further permitted the holder thereof to stop over between the places named, and for which said ticket the plaintiff paid to the defendant company’s agent the full sum of its value.”

It is further averred that, on August 11, the plaintiff’s trunk, with its contents, was checked by the defendant’s baggage agent at Atlantic City to Lilly, Pennsylvania, and that, as “plaintiff is informed and verily believes, the said baggage arrived in good condition at Lilly on the morning of August 12.” On the evening of August 13, when he arrived home, he found his trunk at his room, certain of the contents thereof having been removed, and for these, which he -alleges were all articles of wearing apparel, he seeks to recover.

The defendant alleges, in its affidavit of defense, that the plaintiff violated one of the conditions upon which his ticket was sold, which did not include the transfer of baggage through the city of Philadelphia; that at the time his baggage was checked at Atlantic City he did not inform the agent there that it was his intention to stop off at Philadelphia and at Altoona, at which places he did stop off, and did not reach Lilly until about 8:45 p. m. on August 13, 1902.. Further, it is averred that: “ The said baggage was safely delivered to the agent at Lilly about 8: 30 A. M. on August 12, 1902, and it not being called for during the day it was carefully protected until late in the night, when the office was closed. The said' baggage was placed in the room for baggage and the doors carefully locked with a strong padlock; that, during the said night, the lock was broken by a burglar, the door opened and the trunk broken open and goods scattered around the room. The agent discovered it on the morning of the thirteenth, and forthwith delivered the said trunk and the contents to the family of the plaintiff, who did not reach Lilly until the late train that evening.”

The liability of a common carrier as to goods in general is well set forth in the National Line Steamship Co. v. Smart, 107 Pa. 492, the syllabus of which is:

“ After goods have been delivered by a common carrier at its depot, the owner or consignee has a reasonable time within which to remove them, during which the liability of the carrier as an insurer continues. But after the expiration of such reasonable time, the liability of the carrier becomes modified, and it is only bound to exercise ordinary care to secure the safety of the goods. The liability is that of a bailee for hire and grows out of the original contract.
“If, after the liability of a carriér as an insurer ceases, goods of a consignee in its possession are destroyed or damaged, the carrier is only liable in case the loss occurred by reason of its negligence, which is a question of fact which must be proven to the satisfaction of the jury, the burden of proof being upon the party seeking to recover.”

Assuming that the baggage of a passenger is subject to the same rules as goods transported by a common carrier, two questions arise in this case for adjudication : 1st, Did the plaintiff apply within a reasonable time for his baggage, and, if not, was the company liable as a carrier or simply as a warehouseman ? And 2d, if liable only as a warehouseman, did it exercise ordinary care in the protection of the baggage of the plaintiff ? The first question is for the court; the second, if it arises in this case, is for a jury.

Without considering the minor questions which are raised by the affidavit of defense, we are of opinion that the plaintiff did not apply within a reasonable time for his baggage, which was admittedly safely carried by the defendant company and delivered in good condition at its station at Lilly, which was the destination of the plaintiff. The baggage arrived at 8 : 30 in the morning. Not being sent for immediately, it was placed in the baggage room of the defendant, which in the absence of any allegation to the contrary, must be presumed to have been a proper place. The day passed, and late at night, according to the affidavit of defense, the door of the baggage room was secured by a strong padlock. At any time before the closing of the baggage room of the defendant, the plaintiff, or anyone in his behalf, could have claimed and received the said baggage upon tbe delivery of his check. It is not alleged that any claim or application was made for it. Up until at least ten o’clock at night the baggage was safe and in good condition. Did the duty of a common carrier continue beyond that time ? We think not. The failure to claim the baggage was in no sense due to any fault or negligence on the part of the defendant. If the plaintiff, by his stopping at Philadelphia and Altoona, where he might have had his baggage checked under his ticket and claimed it, by his own act made it impossible for him to have claimed his baggage at the time of its arrival, or during the daytime after its arrival, the fault, if there was any, was his, and it seems to us the responsibility therefor should rest upon him.

In Hutchinson on Carriers, 557, section 707, it is said: “In practice immediate delivery is the rule as to baggage. The carrier is always desirous to relieve himself of further responsibility by a speedy delivery, and the passenger is generally anxious to come at once into the possession of his baggage as soon as his journey is ended; and it has been said to be the duty of carriers by railways to have tbe baggage of their passengers ready for delivery to them immediately upon their arrival at the end of the route, or as soon thereafter as may be, and that there is a corresponding duty on the part of the passenger not to delay unreasonably its acceptance and removal, so as to relieve the carrier as soon as he conveniently can of the responsibility of its custody; and that ‘ in such cases reasonable time and immediate delivery go hand in hand, and reasonable time cannot extend the delivery to another day or another occasion.’ ”

The delay of the owner of the baggage to claim and remove it having been unreasonable, the liability of the carrier, as heretofore shown, was changed from that of an insurer to that of a warehouseman, which required of him simply ordinary care.

This gives rise to the second question, Did the defendant exercise reasonable and ordinary care in providing for the plaintiff’s baggage ? This, under the facts, is for the jury, and to that tribunal must be referred. It follows that judgment should not have been entered for want of a sufficient affidavit of defense.

Judgment reversed, and a procedendo awarded.


source: Caselaw Access Project

author: Beaveb, J.,

license: Public Domain

text:
    Hantman v. Hedden, Appellant.

      Malicious prosecution — Probable cause — Inception of the prosecution— Erroneous charge.

    In an action for malicious, prosecution the question of probable cause relates to the inception of the prosecution, and that is to be determined from the facts and circumstances which were then known to the prosecutor. It is therefore error, in such a case, to charge that if the defendants continued the prosecution after they had learned that the plaintiff “was not guilty of the charge, or that they had no reason to believe he was guilty of the charge, then the action was without probable cause.”
    Argued May 11, 1906.
    Appeal, No. 31, April .T., 1906, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1903, No. 73, on verdict for plaintiff in case of Joseph Hantman v. M. W. Hedden and the Pittsburg Cigar Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Reversed.
    Trespass for malicious prosecution.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $850. Defendant appealed.

      Error assigned was the portion of the charge quoted in the opinion of the Superior Court.

      John Marrón, of Marrón & McGrirr, with him H. G. Wasson, for appellant.
    — The inquiry as to probable cause goes back to the commencement of the prosecution and relates to the facts then known and as they then appeared: Grohmann v. Kirschman, 168 Pa. 189; Mitchell v. Logan, 172 Pa. 349; Brown v. Smith, 83 Ill. 291; Musgrove v. Newell, 1 M. & W. 582.

      J. S. Ferguson, with him A. C. Stein, for appellee.
    — The question whether or not there was probable cause does not depend on the actual state of the case in point of fact. The test is the prosecutor’s belief of its existence, based, however, upon reasonable grounds: Fry v. Wolf, 8 Pa. Superior Ct. 468; Sharpe v. Johnston, 76 Mo. 660; Christian v. Hanna, 58 Mo. App. 37.

      October 5, 1906:
   Opinion by

Beaveb, J.,

The action here is for trespass, based upon a malicious prosecution. The trial was fairly conducted in the main, and a verdict rendered in favor of the plaintiff.

The assignment of error raises a single question which is found in the charge of the court, which in general is clear and satisfactory. The clause to which exception is taken is as follows :

“ Now that is the situation with reference to the first question for you to consider, namely, whether this" criminal charge was brought and prosecuted by these defendants with probable cause. Then you are to further consider, even if they brought it innocently, or if they thought and were justified in believing that he was guilty, did they continue to prosecute the case after they had been convinced of the man’s innocence of the charge? If so, they were not justified in keeping up the prosecution, if they learned that he was not intending to steal them (2,000 cigars) or to commit a crime. If they learned that afterwards, as the case progressed, then it was their duty to cease the prosecution. So that, if they brought this action without any probable cause, that is, without having any reason to believe, or any circumstances or facts in the case that would lead a reasonably prudent man to believe, that he was guilty, or if they continued to prosecute it after they had learned that he was not guilty of the charge, or that they had no reason to believe he was guilty of the charge, then the action was without probable cause.”

In Grohmann v. Kirschman, 168 Pa. 189, Mr. Justice Fell, in delivering the opinion of the court, said: “ The inquiry as to the probable cause goes back to the commencement of the prosecution, and it relates to the facts then known and as they then appeared. It is not confined to the truth of matters which led to the prosecution, but extends to their appearance as indicating the guilt or innocence of the accused. The jury in the ci'iminal court deals with the question of actual guilt as it appears at the trial, not with the indications of guilt as they appeared at the time of the arrest. •

“The plaintiff in this case went a step further,'and under objection offered testimony pf what the judge said at the trial in the quarter sessions. The remarks of the trial judge were directed to the question of actual guilt as it appeared after a full investigation and after hearing the testimony of both sides. They were based upon a state of facts different from those which led to the arrest, and related to the grounds for conviction or acquittal. We are of opinion that this testimpny should have been excluded.”

This authority seems to us conclusive of the question raised by this assignment of error. The inquiry as to probable cause must be confined to the facts and circumstances which were apparent at the ‘time the prosecution was commenced. If they indicated guilt, there was probable cause for the prosecution. Anything which appeared subsequently touching the guilt or innocence of the defendant in the prosecution could not, in the very nature of the case, have been considered at the time the prosecution was commenced.

So in Mitchell v. Logan, 172 Pa. 349 : “Probable cause is a reasonable ground for belief, or, as defined by Judge Washington in Munns v. Dupont, 3 Washington’s C. C. 31, it is ‘a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.’ The test is the prosecutor’s belief of the existence of probable cause at the time, based upon reasonable grounds.”

The testimony adduced at the trial of the defendant in the criminal case could throw no additional light upon what appeared to the prosecutor at the time the prosecution was commenced, and that must necessarily be the time .which the law contemplates as governing the question of probable cause. We think, therefore, that the appellant has good reason to complain of the instruction to the jury that, “ If they continued to prosecute it after they had learned that he was not guilty of the' charge, or that they had no reason to believe he Was guilty of the charge, then the action was without probable cause.” If there was probable cause in beginning the prosecution, the prosecutor (the defendant here) had a right to carry it to its legitimate conclusion and could not be held in damages here, provided there was no malice.

The offense with which the plaintiff here was chai’ged in the criminal prosecution was a felonjn To what extent the prosecutor in the criminal prosecution could control its conduct is an additional consideration in determining the character of the instruction complained of.

The Act of May 3, 1850, P. L. 654, relating to the election of district attorneys, provides : “ The officer so elected shall sign all bills .of indictment and conduct in court all criminal or other prosecutions in the name of the commonwealth, or when the state is a party, which arise in the county for which he is elected, and perform all the duties which now by law are to be performed by deputy attorney generals, and receive the same fees or emoluments of office : Provided, said district attorneys shall in no case whatever have authority to enter a nolle prosequi in any criminal case either before or after bill found, or to discharge a prisoner from custody, without first having obtained the approbation of the court, in writing.”

It is not clear, therefore, how a prosecutor, even if he became convinced of the innocence of the defendant in a prosecution for a felony, could “ cease the prosecution.” Even if the prosecutor were called as a witness, his attention would be. called only to the facts, and he would, doubtless, not be allowed to express an opinion as to the guilt or innocence of the defendant.

It is not necessary to enlarge upon this question, inasmuch as our Pennsylvania authorities are very clear that the question of probable cause relates to the inception of the prosecution, and that it is to be determined from the facts and circumstances which are then known to the prosecutor.

For these reasons, we think the assignment of error should be sustained.

Judgment reversed and a new venire awarded.


author: Beaver, J.,

text:
    Donaldson v. Pettit, Appellant.

      Will — Devise—Condition—Will speaking from death.

      . Where a widow devises land to her son with a limitation that if he should endeavor to collect any claim from the estate of his deceased father, the devise should fail, and the son in his mother’s lifetime does make a claim against his father’s estate, but without knowledge of the provision in his mother’s will, and the testatrix with knowledge that such claim was made makes no change in her will, the son takes his devise, notwithstanding the limitation.
    Submitted May 14, 1906.
    Appeal, No. 164, April T., 1906, by defendant, from judgment of C. P. Mercer Co., April T., 1906, No. 22, for plaintiff on case stated in suit of James A. Donaldson v. William C. Pettit.
    Before Rice, P. J., Poetes., Henderson, Moreison, Orlady, Head and Beavee, JJ.
    Affirmed.
    The case stated was as follows :
    Dr. F. Donaldson, late of the borough of Greenville, said county, died intestate on February 8, 1902, leaving to survive him a widow, Margaret C. Donaldson, and other heirs, among whom was the plaintiff In the case; letters of administration on the estate of the said Dr. F. Donaldson were duly issued by the proper officer of said county to the said Margaret C. Donaldson, and she filed her final account as administratrix of said estate at No. 12, June Term, 1902; an auditor was duly appointed to report a distribution of the funds in the hands of the said administratrix; and James A. Donaldson, the plaintiff in this case, on July 29, 1902, presented a claim before said auditor, for services rendered to the said Dr. F. Donaldson during his lifetime, and offered testimony concerning same, which claim was disallowed by the auditor, by report filed in the orphans’ court of Mercer county, Pa., on September 15, 1902, at No 12, June Term, 1902, which report was confirmed absolutely by said court -on September 25, 1902, all of which will appear by the report and records above referred to, which are hereby made a part of this statement.
    That said Margaret C. Donaldson died on December 17, 1904, leaving her last will and testament, which has been duly probated in said county, wherein W. C. Pettit was appointed executor of her estate, and wherein she directed that all of her real estate should be sold as soon as was considered best by her executor, as will appear by a copy of said will hereto attached dated February 12, 1902, and marked exhibit “ A,” and made a part of this statement; that by the terms of a codicil to said will dated March 13, 1902, a copy of which is hereto attached, made a' part of this statement, and marked exhibit “B,” the said James A. Donaldson is given the use of the following real estate for the term of his natural life, viz.: “All that certain lot of land, being a small three cornered piece situated in borough of Greenville, Mercer county, Pa., hounded north by an alley; east by lot of A. D. Gillespie; west by Water Street, on which is erected a two story brick building,” which said real estate is valued at and worth $500. That in said codicil there is also the following clause, viz.: “ Provided, however, if my said son, James A. Donaldson, shall involve my estate in litigation in any manner whatever, or shall endeavor to collect any bills or claims against my estate or that of my deceased husband, Dr. F. Donaldson, then the bequests made in this codicil are entirely revoked and my will shall be and remain as if this codicil had never been written.”
    If the court he of the opinion that the said James A. Donaldson, under the terms of the will of the said Margaret 0. Donaldson, is entitled to the use of said real estate for the term of his natural life, then judgment is to be entered for the plaintiff the same as if a suit in ejectment had been instituted by the plaintiff in this case against W. C. Pettit, executor, etc., and a verdict rendered by a jury in favor of the plaintiff; but if not, then judgment to be entered for defendant, etc.
    The court, in an opinion by Williams, P. J., entered judgment for plaintiff on the case stated, citing: Clarke’s Est., 82 Pa. 528; Hutchins’s Est., 9 Phila. 800; Stover’s App., 77 Pa. 282; Mickey’s App., 46 Pa. 337, and Chew’s App., 45 Pa. 228.

      Error assigned was the judgment of the court.

      J. M. llittle, for appellant.

      H. L. Keoh and S. 11. Miller, for appellee.
    October 5, 1906 :
   Opinion by

Beaver, J.,

The' question involved is thus stated by the appellant:

“ A made a will disposing of all her property, and subsequently executed a codicil giving a life estate in certain land to B, but provided that if B should endeavor to collect any claims against the estate of A’s deceased husband, then the bequest should be entirely revoked and her will should remain as if the codicil had never been written. B endeavored to collect some such, claims in the lifetime of A, but they were reiected by an auditor. Is B entitled to a life estate in the land?”

If the presentation of a claim against B’s father and evidence in support of such a claim be regarded as an “endeavor to collect,” and if it be further stated that the codicil in question was made on March 13, 1902, that the claim upon the estate of his father Avas presented by the appellee on July 29,1902, and that the testatrix died on December 17, 1904, we will have fairly before us the essential and pertinent facts contained in the case stated.

In contemplation of laAV, so far as the inheritance is concerned and for general purposes, a will takes effect only upon the death of the testator. “ The very nature of the testamentary act, which is expected to take effect only at the time of the decease of the testator, presupposes that, so far as facts and circumstances are susceptible of anticipation by him, so as to enable him to place himself in the position he will then be, relatively to his property and his obligations to his family, that he will have used the language of his Avill, with reference more particularly to that period: ” 1 Redfield on Wills, 379.

The Act of June 4,1879, P. L. 88, provides: “That every Avill shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.”

The testatrix in this case had knowledge of what her son had done. He, presumably, had no knowledge of what was contained in his mother’s will; at least there is no allegation in the case stated that notice of the limitations contained in his mother’s will had been in any way conveyed to him until its publication. The testatrix lived for more than two years after her son presented the claim against his father’s estate before the auditor. If she regarded Avhat he did as a violation of the terms of her will, it Avas perfectly competent for her to have changed or destroyed her will and made a different disposition of her property. That she did not do so is evidence that she either did not regard the presentation of the claim of the son against the estate of his father as a violation of the conditions which she had imposed upon the devise to him contained in the codicil of her will, or that she had determined to allow her disposition of her estate to remain notwithstanding. The unreasonableness of holding the devisee to the performance of conditions of which he had no knowledge, and in the nature of the case no means of knowledge, is apparent, and, if the testatrix did not hold her son to the observance of the conditions which she had placed in her will, presumably without his knowledge, the law should not undertake to do so, except upon legal grounds which would compel it. We do not think there are such grounds.

The question has been very fully and ably discussed in the opinion of the court below, which seems to us to cover the ground and render further discussion unnecessary.

Judgment affirmed.


text:
    Follett, Appellant, v. Butler County.

      Taxation — Land—Mansion house — Township—Borough—Acts of July 11, 1842, P. L. 321, and April 25, 1850, P. L. 569.
    Where a farm is divided by a township and borough line, and the mansion house is in the borough, the land in the township is to be assessed in the township and the land in the borough is to be assessed in the borough.
    Argued May 15,1906.
    Appeal, No. 229, April T., 1905, by plaintiff, from decree of C. P. Butler Co., June T., 1904, No. 3, dismissing bill in equity in case of James Follett v. Butler County et ah
    Before Rice, P. J., Porter, PIenderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction.
    For the facts see 30 Pa. Superior Ct. 21.

      Error assigned was the decree of the court.

      Lev. McQuistion, with him W L>. Brandon and J. C. Vanderlin, for appellant.

      E. H. Q-oucher, with him F. J. Forquer and Everett L. Ralston, for appellees.

      October 5, 1906 :
   Opinion by

Beaver, J.,

Upon the reargument and after a careful reconsideration of this case, 30 Pa. Superior Ct. 21, we are of the opinion that the effect of the 15th section of the Act of April 25, 1850, P. L. 569, was not as fully considered as its importance demands.

The general rule governing the imposition of taxes upon lands by the municipality, within whose territorial limits the same are situate, has for convenience been made subject to several legislative exceptions. One of these is contained in the 59th section of the Act of July 11, 1842, P. L. 321, by which it' is enacted that assessments of seated lands shall be made in the township in which the mansion house is situate, where township lines divide a tract of land. The application of this section is expressly limited by the 15th section of the act of April 25, 1850, P. L. 569, which provides:

“ Section 15. That the fifty-ninth section of the act of July 11, 1842, entitled, ‘An act regulating election districts, and for other purposes,’ shall not be construed to extend to lands lying in different townships, the mansion house of which is in an incorporated borough or city.”

Both of these enactments have been considered and in a measure construed in Bausman v. Lancaster County, 50 Pa. 208. The syllabus of this case is misleading. The case does not decide that “ A farm divided by a township, borough or city line is taxable where the mansion house is located.” What it does decide is that a farm divided by a township line, part-of which, with the mansion house, is in the township and the remainder in a city, is taxable wholly in the township. The converse of this proposition, however, is not only not held, but the reasoning of the case and its obvious leaning are that, if the conditions were reversed and the mansion house were in the city, the act of 1850 would apply and the entire farm would not be taxable in the city. The language of Mr. Justice Trunkey is:

“ Besides this, the 15th section of the act of April 25, 1850, shows plainly the understanding of the legislature, that the act of .1842 extended to cases where the line between a township and a borough or city may divide the mansion house of a farm from a portion of ;the land. That act enacted that the 59th section of the act of 1842 shall not be construed to extend to lands lying in different townships, the mansion house of ■which is in an incorporated borough or city. It obviously implies that the act does apply when the lands are divided by a township and city or borough line, if the mansion house be not in the city or borough.”

This may not be a controlling authority in this case, because the precise question here was not before the court, but it leaves us in little doubt as to the construction which the court placed upon the act of 1850, as applied to the facts of this case.

In 21 P. & L. Dig. of Dee. 36,342, after quoting from Bausman v. Lancaster County, 50 Pa. 208, and referring to a case in which the common pleas of Lancaster county had confirmed the assessment, in a case in which eighteen acres of a farm with mansion and necessary farm buildings laid in a borough and the remaining 120 acres in a township, in which the whole was assessed in the borough, it is said: “In Cassel’s Appeal, 8 Lanc. Law Rev. 260, the court holds that, where the mansion house is in the borough, the land lying in the township is to be assessed in the borough, and quotes the above language of the Supreme Court as authority for this proposition. It is difficult to see how the court arrived at this conclusion under the act of 1850, as construed by the Supreme Court. That construction seems to require that only in the case of the mansion house being situated in the township is the whole tract to be assessed together, and when it is situated in a borough or city the land in the township is to be assessed in the township and the land in the borough to be assessed in the borough.”

It is claimed by the appellant that the language of the act of 1850, which relates “ to lands lying in different townships ” the mansion house of which is in an incorporated borough or city, does not apply to this case, inasmuch as this is a farm lying partly in a township and partly in a borough; but this is, in our view, too technical. The greater includes the less, and the reasons which apply in the one case are quite as applicable to the other.

The judgment of this court, as reported in 30 Pa. Superior Ct. 21, which is as follows: “The decree of the court.below is reversed and the bill reinstated, and it is now ordered and decreed that the injunction be issued and made perpetual, in manner and effect, as prayed for ” — is hereby vacated and annulled, and upon reargument and reconsideration of the case, it is now ordered and decreed that the decree of the court below be, and is, hereby affirmed, and the appeal dismissed at the costs of the appellant.


text:
    Commonwealth v. Fell.

      Criminal law — Costs—Prosecution—Corporations.
    Upon the trial of a prosecution for burning a dwelling house to defraud an insurance company the verdict was “Not guilty, and the Standard Fire Insurance Company of Trenton, N. J., to pay the costs, represented by James F. D. Wilson as prosecutor.” It appeared that Wilson was the agent and adjuster of the insurance company. Held, that a judgment for costs of prosecution was properly entered against the insurance company.
    A judgment for costs in a criminal prosecution may be imposed upon a foreign corporation.
    Argued May 22, 1906.
    Appeal, No. 112, April T., 1906, by The Standard Fire Insurance Company, from judgment of Q. S. Crawford Co., for costs on verdict of not guilty in case of Commonwealth v. C. E. Fell.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for burning a dwelling house. Before Thomas, P. J.
    Rule to show cause why sentence imposing costs on the Standard Fire Insurance Company of Trenton, New Jersey, should not be vacated and annulled.
    Thomas, P. J., filed the following opinion:
    This case was tried and the verdict of the jury was returned September 26, 1905. Because of our enforced absence at the time the clerk took the verdict, as per our direction, and entered the same in the exact language as returned by the jury, which was as follows:
    “Not guilty, and The Standard Fire Insurance Company of Trenton, N. J., to pay the costs, represented by Adjuster James F. D. Wilson as prosecutor.”

      No motion to set aside the verdict or in arrest of judgment was made within the required time, and upon October 4,1905, we imposed the sentence of costs upon the said insurance company. In just a month thereafter, to wit, November 4, 1905, the petition upon which this rule is based was presented to us and the rule granted, without notice thereof or the serving of a copy of the same on any interested parties or their attorneys, and without in any way establishing the facts averred in the petition, excepting by said ex parte affidavit.
    Had we been present when the verdict was rendered, we should have molded the same into proper form according to the intent of the jury. We are not persuaded, however, that it is insufficient in the form rendered to support a judgment.
    We instructed the jury as to what disposition they might make of the costs, and that in case they placed costs upon a prosecutor, they must mention whom they found, from the evidence, the prosecutor to be.
    It is urged that they have not found the insurance company to be the prosecutor, but we think that, under our instructions, that is just what they did find. They found that the company acted by a representative and that said agent represented them in the capacity of a prosecutor, and, because thereof, directed that the company pay the costs.
    We are persuaded that the verdict will support the judgment, especially in view of the fact of delay in asking for relief.
    It is urged that we are without power to sentence a foreign corporation, doing business in this commonwealth, to pay costs in a criminal case, and also that not it, but its agent, was the prosecutor, and that said company has not had its day in court to be heard upon the question.
    We have no doubt whatever about the power of the jury to inquire from the evidence as to who is the real prosecutor in a case, and having determined the same and imposed the costs thereon, the court may properly sentence said party, even though not indorsed as prosecutor, or even though said party is a foreign corporation doing business in this commonwealth.
    Certainly it cannot be claimed with any show of justice that a foreign insurance company may in due form come into this commonwealth and insure the property of our citizens and accept their money therefor, and when a loss occurs, prosecute, without any just cause or reason, said unfortunate citizen at the expense of said citizen, as well as the commonwealth, without rendering themselves liable for the payment of said costs so incurred, simply because they are a corporation and not an individual.
    It is certainly true that the jury should not be permitted to find someone to be the prosecutor and impose the costs upon him where he has not made the information, is not indorsed as prosecutor and has not had his day in court. We could not permit a verdict to stand without giving an opportunity to the person affected thereby to have his day in court.
    But was not this insurance company in court in this prosecution to the full extent of its power so to be ? The evidence disclosed the fact that after the loss occurred, the defendant communicated with the agent of the company, who sent said communication to the company; that such was then sent by the company to its adjuster, James F. D. Wilson, who appears upon the scene of the fire. He makes several visits and conducts himself in such a manner as would persuade any reasonable man, sitting as a juror, that his sole object was to relieve his company from the payment of this loss by convicting this defendant, whether guilty or innocent, of the offense with which he was here charged, even to the extent of paying a sum to secure such conviction. His entire conduct seemed to show that he was not trying so much to determine the cause of the fire as to fix it upon this particular individual, as that would relieve the company from the payment of the claim.
    He procures an extraordinary and unusual method of inquiry into the cause of the fire to be instituted; takes advantage of, if indeed he does not promote, a family quarrel to aid in his purpose; procures the evidence and conducts the proceedings before the justice; and prepares the case for court and sits at the counsel table with private counsel, who is now representing the company in this rule, during the trial of the case.
    Certainly Wilson was the agent of this company and was attempting to adjust this claim, and this was one of the means (and had it succeeded it would certainly have been a most effective one) adopted to relieve his principal. The jury evidently believed not only that defendant was not guilty, but that Wilson had acted -without cause, and possibly with malice, in bringing and pursuing the prosecution, and if so, why should they not put the costs on the party he represented ? Certainly,he was not prosecuting as an individual, and if he acted in a represehtative capacity and with authority, there is ■ no reason why the party for whom he was acting and which expected to reap a benefit therefrom should not pay the costs made by such unwarranted action.
    It seems to-us that the insurance company has had its day in court. It would have to act by a representative in such a matter. It did act by a representative, who was undoubtedly acting for it and within his authority, and now the company cannot be heard to say that it has not had a day in court. It was in court by its legal representative all the time, and but therefor no one would have been in court and no costs would have been incurred.
    It is urged that the affidavit filed sets forth the fact -that the ' prosecution of defendant was not done or carried on at the instance or with the knowledge of the insurance company. In our opinion this fact is not properly established, but for the purposes of this rule we shall assume it is, and yet petitioner is not entitled to relief. In the first place, there is no pretense that it was not done by and under the authority of said company. It would seem very reasonable that the prosecution must have originated at the instance of an individual and not the corporation, but it was at the instance of one having authority to do just what was done, and this is not denied. Just what is meant as to the company having a knowledge of the prosecutor is not quite clear, but we apprehend that a company or corporation has little knowledge of many of the acts of its agents at the time they are being performed; but they are bound by those acts’when within the scope of the agent’s authority, nevertheless. We believe that this prosecution was within the scope of the authority of the agent sent by this company to adjust this claim, and that by law what he did was binding upon the company. But, besides this, it is not claimed by the company that he did not have authority from it so to do.
    It seems to us that there was a proper finding-by the jury that the petitioner was the prosecutor, in addition to which' they find the agency through which it acted; that said petitioner, because of being the real prosecutor, should pay the
      costs; that the petitioner has actually and legally had its day in court; and that the judgment and sentence should not be disturbed.
    The- rule is discharged.

      Error assigned was the order of the court.

      Geo. E. Davenport, for appellant,
    cited: Clemens v. Com., 7 Watts, 485; Guffy v. Com., 2 Grant, 66 ; Com. v. Doyle, 16 Pa. Superior Ct. 171.

      Thomas J. Prather, for appellee.
    October 5, 1906:
   Opinion by

Beaver, J.,

The Standard Fire Insurance Company, of Trenton, N. J., appeals from the sentence of the court of quarter sessions, in and by which it was sentenced to pay the costs of a prosecution against the defendant, upon a charge of “burning dwelling house to defraud insurance company,” in accordance with the verdict of a jury, which was: “Not guilty, and the Standard Fire Insurance Company of Trenton, N. J., to pay the costs, represented by James F. D. Wilson as prosecutor.”

The sixty-second section of the Criminal Procedure Act of March 31, 1860, P. L. 427, provides:

“ In all prosecutions, cases of felony excepted, if the bill of indictment shall be returned ignoramus, the grand jury returning the same shall decide and certify on such bill whether the county or the prosecutor shall pay the costs of prosecution; and in all cases of acquittals by the petit jury on indictments for the offenses aforesaid, the jury trying the same shall determine by their verdict, whether the county, or the prosecutor, or the defendant, shall pay the costs, or whether, the same shall be apportioned between the prosecutor and the defendant, and in what proportions; and the jury, grand or petit, so determining, in case they direct the prosecutor to pay the costs or any portion thereof, shall name him in their return or verdict; and whenever the jury shall determine as aforesaid, that the prosecutor or defendant shall pay the costs, the court in which the said determination shall be made shall forthwith pass sentence -to that effect, and order him to be committed to the jail of the comity until the costs are paid, unless' he give security to pay the same within ten days.”

It is claimed by the appellant .that, inasmuch as it is not named as prosecutor in the verdict of the jurjq it was unlawful for the court to impose the sentence above referred to.

After sentence, Irvin W. Rogers, secretary of the Standard Fire Insurance Company of New Jersey, presented a petition to the court to annul' and vacate the sentence of court, imposing the costs upon said insurance company, as in the petition recited, which petition was supported by an affidavit made by the said secretary. A motion, based upon this petition, was presented to the court, which was disposed of in an opinion fully covering the question involved. This opinion practically covers the entire question and needs neither explanation nor addition.

The indictment names James F. D. Wilson among the witnesses as prosecutor. It is .claimed by the appellant that he is named in the verdict as the prosecutor and that, therefore, the sentence directing the appellant to pay the costs is not supported by the verdict.. It is admitted in the appellant’s argument that, if the verdict had taken this form, “Not guilty, and the prosecutor, the Standard Fire Insurance Co., to pay the costs, represented by adjuster James F. D. Wilson,” it would have supported the sentence. Does not the verdict practically mean that? Suppose it had read, Not guilty, and the Standard Fire Insurance Co. of Trenton, N. J., to pay costs, as prosecutor, represented by James F. D. Wilson; it would mean the same thing. Placing a comma after Wilson and making the part of the verdict “represented by James F. D. Wilson” as parenthetical, does it not mean precisely that ? As is set forth by the court, no motion to set aside the verdict, or in arrest of judgment, was made within the required time. The verdict appears to have been rendered in the absence of the court and was, therefore, recorded just as it was returned by the jury, without any effort to ascertain exactly what the intent of the jury was. We are quite in harmony with the opinion of the court, however, that, whether we view the part of the verdict relating to Wilson, as the representative of the compamy, as parenthetical, or whether we take the verdict just as it stands, “We are not persuaded that it (the verdict) is insufficient in the form rendered to support a. judgment.”

A corporation, which is an artificial person, necessarily acts by and through natural persons. The corporation, as such, cannot make an information. • It cannot, as such, appear as a witness. This is shown by the petition which it presented to vacate and annul the sentence. That petition was made and supported by the affidavit of its secretary, and yet no one will say that it was not the petition of the corporation; so in the matter of the indictment for the destruction of his property by fire, in order to secure the insurance represented in the policy of the appellant. Wilson, who is named as the prosecutor upon the indictment, as clearly appears by the charge of the court, which is not assigned for error, was the adjuster and agent of the company. He represented the company for its benefit. A conviction of the defendant would have been a practical defense against the payment of the policy. The interests of the corporation were involved,, if not directly, at least indirectly. It was, therefore, very natural that the jury should depart, as they had a right to do, from the indorsement upon the indictment which named Wilson as the prosecutor, and name, as the real prosecutor, the appellant, the Standard Fire Insurance Company of Trenton, N. J.

Judgment affirmed and record remitted, in order that the sentence may be carried into effect.


text:
    Williams v. Meadville and Cambridge Springs Street Railway Company, Appellant.

      'Negligence — Statement of claim — Evidence—Allegata and probata— Variance.

    In an action of trespass for negligence, the fact that the testimony does not bring out every detail alleged in the statement, cannot be regarded as any violation of the rule that the proofs and the allegations must agree. The proof and allegation must not differ or contradict each other. If the testimony sustains all the material allegations of the statement, that is sufficient.

      Negligence — Damages—Charge of court.

    In an action of trespass for negligence the court cannot be convicted of error because it mentions in the charge the amount claimed in the statement, if it appears that the court also charges that the jury are not obliged to find that amount, but can find no more than that, and can find any amount near to or less than that which they may deem proper under the circumstances of the case.
    Argued May 22,1906.
    Appeals, Nos. 165 and 166, April T., 1906, by defendant, from judgment of C. P. Crawford Co., Feb. T., 1905, No. 96, on verdict for plaintiff in cáse of Stanley Williams, by his next friend and father, Amos C. Williams, v. The Meadville and Cambridge Springs Street Railway Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries to a minor. Before Thomas, P. J.
    The defendant presented the following point:
    1. There being no proof of any negligence on the part of the defendant as alleged in the declaration filed by the plaintiff, such negligence on the part of the defendant cannot be presumed and there can be no recovery by the plaintiff in this case, and the verdict should be for the defendant. Answer: Refused. [1]
    Verdict and judgment for Amos C. Williams for $200 and for Stanley Williams for $1,000. Defendant appealed.

      Errors assigned were (1) refusal of point as above; and (2) portion of charge quoted in the opinion of the Superior Court.

      Alfred Gr. Church,'for appellant,
    cited: Missouri, etc., Ry. Co. v. Nesbitt, 88 S. W. Repr. 891.

      Thomas J. Prather, for appellee.
    October 5, 1906:
   Opinion by

Beaver, J.,

The first question involved, as stated by the appellant, is:

“ Plaintiffs’ statement set forth in detail alleged acts of negligence on part of defendant. The evidence failed to prove the allegations. Can the variance between the allegations and proofs sustain the verdicts rendered and judgment entered thereon ? ”

The evidence, as we read it, sustained the general allegation upon which the negligence of the defendant was based. Some of the details could have been omitted from the statement, without in any way weakening it. It is not a question, however, as to whether the proofs sustain all the allegations of the declaration. The proof was in harmony throughout with the statement of the cause of the accident, upon which the negligence of the defendant was based. The jury was justified in inferring negligence from the facts as proved. Of this there can be no doubt. The fact that the testimony did not bring out every detail alleged in the statement cannot be regarded as any violation of the rule that the proofs and the allegations must agree. As we interpret it, that means that they must not differ; they must not contradict each other; they must be in harmony. In this respect the proofs and -the declaration so far agree as to be in harmony with the rule. The testimony sustains all the material allegations of the statement, and this, as we understand it, is all the rule requires.

The other question is based upon the second assignment of error, which is : “ The court erred in charging the jury as follows : ‘ Under the declaration, they are not claiming more than $1,000 for permanent injury, that is, for the injury he will sustain subsequent to the present time or after he becomes twenty-one years of age, and subsequent to the time of bringing this suit. So far as Stanley is concerned, that is what they claim for permanent injury, but they have declared for $2,000 for injury up to the present time. It is not for j-ou to say they shall have that much, but for you to say how much under the evidence they shall have; but what we say is, you cannot go beyond those amounts; that is, the father has declared for $1,000, and you cannot go beyond that amount, however much less- you may find. You may find anything less or nothing at all,— whatever you think the evidence will warrant. But Stanley’s claim is for $1,000 for permanent injury and $2,000 for the injury up to the time of filing this declaration. You are not obliged to find that amount, but can find no more than that on the separate items, but can find any amount near to or less than that you may deem proper under the circumstances of the case.’ ”

The court having previously explained to the jury what the measure of damages was in the case of both father and son, for whom separate verdicts were to he rendered, and having practically limited a recovery to compensation under instructions, which are not complained of, we can see no error in this. The amount to be recovered having been limited by the court to the amount stated in the declaration, the instructions were not only correct, but were in the interest of the defendant.

The testimony of Dr. Taylor, which was very full and detailed, as to the character of the accident, the result of the operation which necessarily followed, the condition of the lad’s foot and the suffering and other inconveniences which resulted, gave the jury an excellent basis for the exercise of their discretion as to the amount of damages to be awarded under the rule laid down by the court. The jury having awarded the father the sum of $200, and the son $1,000 which in the verdict was divided into “ $250 for injuries and pain sustained up to the present time, and for permanent injuries $750,” we cannot see that there was any failure on their part to exercise a sound discretion.

The verdict cannot be deemed excessive, and the question of negligence having been determined upon proper evidence, the admission of which is not here questioned, we see no reason to interfere with the judgment.

It is, therefore, affirmed.


author: Rice, P. J.,

text:
    Ketcham, Appellant, v. Davis.

      Bailment — Lease of personal property — Remedies—Cumulative remedies.

    Where a lease of personal property gives to the lessor the right, on default by the lessee, to take immediate possession of the leased property, and also gives him the right to enter judgment for the whole amount unpaid under the lease, the lessor is not entitled to enforce both remedies, unless such right is plainly expressed in the lease, or is a necessary implication from its terms.
    Argued March 7, 1906.
    Appeal, No. 10, March T., 1906, by plaintiff, from judgment of C. P. Tioga Co., Sept. T., 1905, No. 286, for defendant non obstante veredicto in case of R. M. Ketcham v. Pranlc M. Davis.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Issue to determine validity of a judgment. Before Cameron, P. J.
    The facts are stated in the opinion of the Superior Court. ■

      Error assigned was in entering judgment for defendant non obstante veredicto.

      S. F. Channell, with him F. E. Watrous and II. F. Marsh, for appellant.
    No appearance nor printed brief for appellee.
    October 5, 1906 :
   Opinion by

Rice, P. J.,

The plaintiff having a team of horses which the defendant desired to purchase, they agreed upon $250 as the price, and the defendant delivered to the plaintiff a horse in payment to the extent of $75.00. Thereupon the plaintiff delivered the team to the defendant under a written agreement called a lease, for the term of six months, in which the defendant agreed to pay for the use of the team $101.50 on July 1, 1905, and $77.25 on October 1,1905. These two sums together with the price of the horse given in exchange constituted the agreed price of the team, with interest on the deferred payments, and it was stipulated that upon payment of said installments the defendant should have the right to purchase the team and apply the payments upon the purchase price. The defendant could not pay the July installment, and by his permission the plaintiff, on August 28, 1905, took the team back. Before doing so he caused judgment to be entered on the lease for $178.75, the unpaid balance, and afterwards, on the trial of the issue awarded to determine the amount due on the judgment, demanded $124.97, which he claimed as the amount due for the use of the team up to August 28,1905. It is not disputed that this claim would have to be sustained if the plaintiff had not retaken possession of the team, nor is it disputed that the plaintiff had a right under the lease to rescind the contract, retain the horse that he had received in exchange, and retake possession of the team. The question is, whether he could pursue both remedies. ' The established rule of law governing the enforcement of such contracts is that the so-called lessor, on default, can adopt either remedy, but they are not to be deemed cumulative; in other words, he could not take both “ unless it was plainly expressed in the contract or a necessary implication from its terms:” Seanor v. McLaughlin, 165 Pa. 150; Campbell Printing-Press, etc., Co. v. Hickok, 140 Pa. 290 ; Scott v. Hough, 151 Pa. 630; Jacob v. Groff, 19 Pa. Superior Ct. 144. The portion of the lease pertinent to the question reads as follows: “ And it is further provided that in case said party of the second part shall fail to pay rent as herein set forth, or shall fail to surrender up said leased property at the expiration of this lease, or shall fail-to perform any of the covenants herein specified for him to perform, then in either case said first party shall have the right to declare this lease void so far as the rights of said second party are concerned, and said first party shall have the right to take immediate possession of said leased property wherever it may find the same; and in any .proceeding with or without recourse to law, to obtain possession of said leased property as aforesaid, said second party hereby waive any and all rights to bring any action or actions of tort whatever against said first party or his duly constituted agent or agents; and said first party shall have the right to procure judgment to be entered upon this lease for the whole amount of rent unpaid, and to proceed by execution for the whole amount of rent due, and for that purpose said second party hereby authorize the prothonotary or any attorney of any court of record to appear for and confess judgment against Frank M. Davis in favor of said first party for the whole amount of rent unpaid and costs, whether the same shall have become due and payable under the conditions of.this lease or not.” Unquestionably the lease reserves to the lessor the right to pursue either remedy in the event of the lessee’s default, but the fact that both remedies are mentioned, and connected bjr the copulative “ and ” instead of the disjunctive “.or” is not conclusive of the question of his right to pursue both. No necessary implication arises from this mode of enumerating the remedies that upon default at the expiration of the six months the lessor could both retake possession of the team and recover the full price. We do not say that the words used would be inconsistent with the conclusion that such was the intention of the parties. What we intend to say is that they do not clearly, necessarily and beyond question imply the right claimed, and it is apparent from the decisions cited that to sustain such a claim no implication will be made that does not necessarily and conclusively arise from the language used. We conclude, therefore, that the court was right in entering judgment for the defendant notwithstanding the verdict.

Judgment affirmed.


author: Porter, J.,

text:
    Commonwealth v. Keenan, Appellant.

      Auditors — Reports—Form.
    When reports of auditors of townships and boroughs distinctly and unequivocally find all the facts necessary to charge the collector and the bondsmen, that is sufficient without regard to the form in which the findings are made.
    A report to borough auditors is as to all matters which it passes upon conclusive upon all parties, and it is not within the jurisdiction of the auditors at another time to re-examine what had been by the report decided.
    Argued April 24, 1906.
    Appeal, No. 159, April T., 1906, by defendants, from judgment of C. P. No. 2, Allegheny Co., April T., 1904, No. 248, on verdict for plaintiff in case of Commonwealth to use of Oakdale Borough v. James Keenan et al.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Assumpsit on a bond. Before Shafer, J.
    The court charged as follows:
    The action which you have been sworn to try is one brought by the commonwealth of Pennsylvania for the use of the borough of Oakdale, in this county, against James Keenan and others, upon a bond which, it is admitted by the defendants, was given by them to the commonwealth of Pennsylvania in the sum of $12,000. The condition of it was that James Keenan, having been appointed collector of taxes for the borough of Oakdale for a term which began on the first Monday of April, 1897, and ended three years after that date, as such collector should well and truly collect and pay over according to law the whole amount of taxes charged and assessed in the duplicates which should be delivered to him, in which case the obligation should be void.
    The breach assigned of this bond is that he did not pay certain sums, $145.45 plus the taxes of the year 1898, uncollected, and a like uncollected balance of $53.63 of special taxes levied in the year 1898; and that he actually collected and did not pay over to the borough the sum of $29.30, making in all $228.38.
    [It appears by the evidence that the borough auditors in the year 1903 charged this defendant with these amounts, and that no appeal was taken by the collector from the finding of the auditor to that effect. That being the case, the commonwealth has made out a case to recover on this bond the sum of $228.38, with interest from the time it should have been paid, which is March 13, 1899.
    You will find a verdict, therefore, gentlemen, for $12,000, to be released upon the payment of $228.38, with interest from March 13, 1899. That interest amounts to $90.07, and the whole amount upon the payment of which the verdict is to be released is $318.45.] [2]
    Verdict and judgment for plaintiff for $318.45. Defendants appealed.

      Errors assigned were (1) in refusing binding instructions for defendants, and (2) the portion of the charge above quoted.

      E. E. Fulmer, for appellants,
    cited: Godshalk v. Northampton County, 71 Pa. 324 ; Blackmore v. Allegheny County, 51 Pa. 160; Com. v. Gruver, 13 Pa. Superior Ct. 553; Com. v. Piroth, 17 Pa. Superior Ct. 587.

      Thomas Patterson, of Patterson, Sterrett $ Acheson, with him J. F. Wallace, for appellee,
    cited: Com. ex rel. v. Scanlan, 202 Pa. 250.
    October 5, 1906:
   Opinion by

Porter, J.,

The report of the auditors of the borough in the year 1899, which covered the accounts of the tax collector for the duplicate of the general taxes of 1898' and the duplicate for the special tax of the same year, was as to all matters which it passed upon conclusive upon all parties, and it was not within the jurisdiction of the auditors at another time to re-examine what had been by the report decided : Richter v. Penn Township, 9 Pa. 79 ; Godshalk v. Northampton County, 71 Pa. 324; Blackmore v. Allegheny County, 51 Pa. 160; Commonwealth v. Gruver, 13 Pa. Superior Ct. 553 ; Commonwealth v. Piroth, 17 Pa. Superior Ct. 587 ; Commonwealth v. Scanlan, 202 Pa. 250. The settlement of the accounts of a tax collector by the auditors of a borough or township is but one step in fixing the liability of the collector and his bondsmen, but when no appeal is taken from the decision of the auditors to the court of common pleas, as provided by law, the report of the auditors becomes final as to the facts therein passed upon. The auditors of townships and boroughs are not usually either lawyers or skillful bookkeepers, and the contents of their reports are to have a reasonable and common-sense construction. When they distinctly and unequivocally find all the facts necessary to charge the collector and his bondsmen, that is sufficient, without regard to the form in which the findings are made.

The report of the audit of 1899, covering the duplicates for the general and special taxes for the year 1898, clearly and distinctly found that, after allowing the collector credit for all exonerations, abatements and commissions to which he was entitled, there remained in his hands $129.29 in cash of the taxes which he had collected, and that he had failed to collect taxes for which he had not been exonerated to the amount of $1,029.89 on the duplicate of the general taxes for the year 1898, and the amount of $375.70 on the duplicate for the special tax for the year 1898. This was a distinct finding of all the facts necessary to charge the collector and his bondsmen, under the condition of the bond, with the $129.29 which he had failed to pay over, and the amount of the tax, viz., $1,029.89, on the general duplicate for 1898, and $375.70 on the special duplicate of the same year, which he had failed to collect and for which he had not been exonerated; making an aggregate of $1,534.88. The condition of the bond of the collector of taxes is by law required to be, “ that the said collector shall well and truly collect and pay over or account for, according to law, the whole amount of taxes charged and assessed in the duplicates, which shall be delivered to him.” The collector and his bondsmen are liable for the whole amount of the duplicate, unless they pay over the same or are exonerated according to law.

The plaintiff might have offered in evidence the bond, the report of the auditors of 1899, above recited, and rested. The burden would then have been on the defendants to account for the shortage of $1,534.88. The plaintiff went further, however, and offered the auditors’ reports for the four following years. The effect of this evidence was wholly in favor of the defendants. The report of the auditors for each subsequent year reduced the amount for which the appellants were liable under the audit of' 1899. No one of the subsequent audits charged the collector with any item not adjudged against him by the report of 1899. The auditors’ reports for the years subsequent to 1899 each accepted the balance as found in the year 1899, and credited the collector by the amounts paid in by him subsequently to 1899, and the exonerations duly allowed him subsequently to the previous audit. Each one of the later audits was merely an admission by the plaintiff that the appellants were entitled to a credit upon the amount adjudicated against them by the audit of-1899, because of something which had been done subsequently to that audit. The admission of these latex-reports in evidexice certainly did the cause of the defendants no harm. The assignments of error are overruled.

The judgment is affirmed.


author: Henderson, J.,

text:
    Pittock v. Central District & Printing Telegraph Company, Appellant.

      Railroads — Right of way — Easement—Telephone companies — Act of February 19, 1849, P. L. 79 — Action.

      A right which a railroad company acquires in land by condemnation proceedings under the Act of February 19, 1849, P. L. 79, is a right which it enjoys for the purpose of its business only, and is limited to railroad uses. A railroad company cannot, therefore, grant to a telephone company the right to erect poles and wires on its right of way, where the use of the property by the telephone company is a private one for its own profit, having only a slight connection with the railroad business. The owner of the land may maintain an action of trespass against the telephone company for its unlawful entry on its land.
    When the law gives the right to a person to enter on the land of another for a particular purpose, and the person so authorized enters for another purpose not authorized by law, such entry constitutes him a trespasser, and an action for trespass will lie.
    Argued May 10, 1906.
    Appeal, No. 144, April T., 1906, by defendant, from judgment of C. P. No. 2, Allegheny Co'., October T., 1902, No. 872, on verdict for plaintiff in case of Thomas R. Pittock v. The Central District & Printing Telegraph Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Trespass 'to recover damages for the alleged unlawful entry on plaintiffs’ land
    Frazer, P. J., charged, inter alia, as follows:
    It appears from the testimony that some time ago the Pitts-burg, Chartiers & Youghiogheny Railway Company, a corporation created under the laws of this state, built a portion of its road through Mr. Pittock’s farm on Neville Island, consisting of about eighty acres of land. As I understand his testimony, the farm fronts on the main channel of the Ohio river and runs across the island to the back channel on the south side, and is about 1,275 feet in width. The railroad company has taken a right of way through his property, for which it must pay him.
    As you gentlemen are no doubt aware, certain corporations are invested with what is known as the right of eminent domain, that is, the right to take private property for public use; but such corporations must, under the constitution and laws of this state, compensate the owner for any property taken, injured or destroyed in the erection of their works. The railroad company took a strip of land through Mr. Pittock’s farm, and under the law the width of that strip of ground is sixty-six feet. When a railroad company takes property of a citizen it may take sixty-six feet. That is what the law allows a railroad company to take for the purpose of its roadbed.
    [After the railroad company had taken the ground of plaintiff that company entered into a contract with the defendant company, allowing the defendant to erect ten poles upon the right of way taken by the railroad company; .and in accordance with that contract the defendant company erected ten poles upon what is the right of way of the railroad company through Mr. Pittock’s ground. Those ten poles, I believe, extend across the entire 1,275 feet.
    It is for the erection of those poles that Mr. Pittock claims damages, and you have heard what has been said by counsel in arguing the question of law; that is, whether Mr. Pittock had any right to recover or not, or to what extent he might recover. As we understand the law, it makes no difference so far as this case is concerned, whether those poles are one foot inside the right of way of the railroad company or ten feet, or whether the cross arms extend outside of the right of way of the railroad company or not. As we understand the law, the railroad company had the right to contract with the defendant company to put its poles .there, but in so doing that contract would not prevent Mr. Pittock from recovering any damage he might sustain by the erection of the poles. If the railroad company had seen fit to build a telephone or telegraph line for its own use along their right of way it could have done so without incurring any additional obligation to Mr. Pittock, or, fts we say in law, without placing any additional burden upon the ground; but when they entered into the contract with the telephone company permitting it to erect its poles there, by reason of that contract and by reason of erecting the poles on that right of way, an additional burden was imposed upon the land of Mr. Pittock, and, as we understand the law, he is entitled to receive compensation for that additional burden. A railroad company is chartered for a particular purpose ; that is, constructing a railroad for transporting freight and passengers. A telephone company is chartered for an entirely different purpose and has no right to erect its poles upon the land of another without the consent of the person owning the land; and while it is on the right of way of the railroad company, that, as I said a moment ago, does not confer upon it the right to take the land without Mr. Pittock’s consent, and having taken it without his consent, whatever injury he sustained by reason of that taking he is entitled to recover for in these proceedings.] [3]
    [In determining the case you will remember the testimony of the different witnesses in regard to the damage sustained. You will first take into consideration that the railroad has the right to use that land for railroad purposes. That- is the only •burden upon the land by its condemnation proceedings. Upon that servitude the defendant places an additional burden. To the extent that that additional burden damages Mr. Pittock he is entitled to recover. Any damage resulting to him by reason of the railroad company constructing its railroad there we have nothing to do with in this case. That is a matter that must be determined in some other shape. We have to do only with the additional damage sustained by Mr. Pittock by reason of the erection of defendant’s poles upon the right of way of the railroad company.] [4]
    [Mr. Pittock places his damage as the whole amount — I don’t know just what he means by that — as $2,000, and then he says the damage for the guy wire which extends beyond the right of way of the railroad company, and for which he would be undoubtedly entitled to recover, even if the railroad company had authority to authorize the erection of the poles by the telephone company, would be $100 for the ten months from the time the wires were placed until the time this suit was brought. He would have a right to recover for that guy wire and for what other additional damage the poles had done to his property. He says his damage was $2,000 for all, or $500, I believe, for the ten months. His son says that $500 would be the amount of all the damage suffered by his father by reason of the erecting of these poles. You will remember that the guy wire extends from about the top of one pole onto plaintiff’s land some twenty or .twenty-five feet and is anchored near a hot-house; and then defendant’s witnesses say that a fair compensation for it would be from $3.00 to $5.00, based upon the pole life of the line, and that would be all the damage suffered by plaintiff. I believe one of the witnesses said that the pole life, or the life of a line, is about twelve years; that is, that at the end of every twelve years a line must be rebuilt.
    You gentlemen should consider all the evidence in this case and determine what amount would be a fair and reasonable compensation for Mr. Pittock for the use of his land by the telephone company for ten months.] [5]
    Verdict and judgment for plaintiff for $354. Defendant appealed.

      Errors' assigned among others were (3, 4, 5) above instructions, quoting them.

      M. W. Acheson, Jr., of Patterson, Sterrett & Acheson, for appellant.
    — A railroad right of way is not a right of way or easement, but is an estate in the land itself: Pittsburg, etc., Ry. Co. v. Peet, 152 Pa. 488; Western Pennsylvania R. R. Co. v. Johnston, 59 Pa. 290.
    It was from the time of the approval of the railroad company’s bond that the title of Pittock was divested: Fries v. Southern Pa. R. R. & Mining Co., 85 Pa. 73; Wallace v. New Castle, etc., Ry. Co., 138 Pa. 168 ; Keller v. Harrisburg & Potomac R. R. Co., 151 Pa. 67.
    This pole line not being on a common highway, the telephone company had no right of eminent domain, either as against Pittock or the railroad company : Penna. Tel. Co. v. Hoover, 24 Pa. Superior Ct. 96 ; s. c., 209 Pa. 555.
    No trespass was committed: Sparhawk v. Bagg, 82 Mass. 583; Walden v. Com., 84 Ky. 312; Little v. Palister, 3 Me. 6.

      Ed. G. Hartje, for appellee.
    — The use here complained of, is a trespass to appellee’s estate: Western Union Telegraph Co. v. Rich, 19 Kan. 517 ; American Tel. & Tel. Co. v. Pearce, 71 Maryland, 535 (18 Atl. Repr. 910) ; Pittsburg & Lake Erie R. R. Co. v. Bruce, 102 Pa. 23; Newton v. Manufacturers’ Railway Co., 115 Fed. Repr. 781; Lewis et al. v. Jones, 1 Pa. 336; Sanderson v. Haverstick, 8 Pa. 294; Ridge Turnpike Company v. Stoever, 6 W. & S. 378; Pittsburg, etc., Ry. Co. v. Peet, 152 Pa. 488; Lance’s App., 55 Pa. 16.
    October 5, 1906:
   Opinion by

Henderson, J.,

The Act of February 19, 1849, P. L. 79, authorizes any railroad company incorporated thereunder “to enter upon and into and occupy all land on which the said railroad .... may be located.” Provision is made for the compensation proper “ for the damage done or likely to be done to or sustained by any owner” of land which such company “may enter upon,” and the viewers appointed to estimate the damage are. directed to determine the value of land so “ taken or occupied; ” in doing which, they are to make allowance for advantages which may result or seem likely to result to the owner of the land in consequence of the making or opening of the railroad. The interest so acquired is more easily described than named. It was called an “easement” in Western Pennsylvania R. R. Co. v. Johnston, 59 Pa. 290, and in other cases there referred .to, but in Pa. Schuylkill Valley R. R. Co. v. Reading Paper Mills, 30 W. N. C. 148, Judge Mitchell said, “it may well be doubted if it is not a misnomer to extend to this newly invented interest in land the name of easement; ” and in the same opinion it was suggested that the right acquired partook of the nature of a conditional fee. In Pittsburg, etc., Railway Co. v. Peet, 152 Pa. 488, it was held that the interest acquired by condemnation proceedings is a great deal more than a right of way, and that the term “ easement ” in connection therewith was used in a loose way for the purpose of distinguishing it from a fee. Chief Justice Sterrett in referring to the same subject in Northern Central Railway Co. v. Electric Ry. Co., 177 Pa. 142, used this language : “ While that interest cannot be called a fee it is a species of title that has some of the incidents of an estate in land.” The use is a public one and the right to condemn only exists at all because of that fact. It is evident from the provisions of the statute that the right which the company acquires is for the purposes of its business only and that its exclusive and absolute control of the property condemned is limited to railroad uses. Having acquired title for a particular public use the property is held for the purposes which alone made the taking lawful: Ridge Turnpike Co. v. Stoever, 6 W. & S. 378; Lance’s Appeal, 55 Pa. 16; Pittsburg & Lake Erie R. R. Co. v. Bruce, 102 Pa. 23; Proprietors of Merrimac River Locks, etc., v. Nashua, etc., R. R. Co., 104 Mass. 1. This limitation is expressly recognized in Railway Co. v. Peet, 152 Pa. 488. The use being a public one it necessarily follows that property cannot be taken under the guise of a public use and applied to one which is merely private. The owner is only called upon to part with the possession and control of his property for a particular purpose, and when he presents his claim for damage the amount is fixed by a comparison of the injury resulting from the taking and the advantages resulting to him from the construction of the railroad. To subject the land taken to other uses would not only be without warrant in the statute, but would deprive the owner of his property without compensation. All that was taken from the appellee when the railroad was located across his farm was the use and possession of his land for railroad purposes. His estate in and control over his property has only been diminished to that extent. The absolute, exclusive and uncontrolled occupancy of the railroad company goes no further. The defendant is not invested with the right of eminent domain; it only justifies its occupancy of the plaintiff’s land through the contract between it and the Pittsburg, Chartiers & Youghiogheny Ry. Co., by which company the plaintiff’s land was condemned. It may be admitted that the latter company has the right to construct a telegraph or telephone line along its right of way for its own use, and it is equally clear that it may employ another company to perform this service for it. It cannot be seriously contended, however, that the telephone line constructed by the defendant was in any considerable degree for the use of the railroad company. The poles and wires erected constitute a trunk line of the telephone system of the defendant extending to “ Rochester and the towns down the river.” The poles carry thirty-four wires. As a consideration for the right of way the railroad company was to be supplied by the defendant with one wire for its use and had the privilege of attaching at its own expense two telegraph wires on the poles used by the defendant. Clearly the use of the property by the defendant was a private one for its own profit, having no reference to the convenience or necessities of the railroad company except the comparatively insignificant, use of one telephone wire and the right to attach two telegraph wires to the pole. In granting to the defendant the right to maintain its line within, the right of way over the plaintiff’s farm the railroad company subjected the land to a use not contemplated ’in the condemnation proceeding, nor authorized by the law under which it took possession of the plaintiff’s land. If it may authorize the construction of a telephone line it may in like manner permit an oil or gas or water company to lay its pipes within the right of way without the consent of the owner of the fee, or transfer the right to use the soil for other purposes. The owner has not consented to this use of his land; nor does any law to which our attention has been called authorize such occupancy. As the railroad company had no authority to grant the right which the defendant claims, and the defendant’s use of the soil is practically independent of the railroad’s use, the occupancy by the defendant is in violation of the plaintiff’s right. The defendant could not have secured a right of way from the plaintiff adversely and we think this cannot be done indirectly by acquiring from the railroad company a right which it had no authority to grant. The case of American Telegraph & Telephone Co. v. Pearce, 71 Md. 535 (18 Atl. Repr. 910) is directly in point and adverse to the defendant’s contention.

We think the plaintiff’s right may be asserted in an action of trespass. The interference is with his estate and not with that of the railroad company. The plaintiff is still the owner of the soil except as to the uses to which it was subjected when taken possession of by the railroad company. The defendant is using the land for a purpose not included in the uses of the railroad company, and is in no better situation than if there had been a conversion of the whole right of way by the railroad company to some other than railroad purposes. When the law gives the right to a person to enter on the land of another for a particular purpose, and the person so authorized enters for another purpose not authorized by law, such entry constitutes him a trespasser and an action of trespass will lie: Ridge Turnpike Co. v. Stoever, 6 W. & S. 378; Proprietors of Merrimac River Locks, etc., v. Nashua, etc., R. R. Co., 104 Mass. 1.

It was conceded at the trial and is made manifest by the evidence that the defendant trespassed upon the plaintiff’s land outside of the lines of the right of way. A guy line attached to one of the poles extended eighteen or twenty feet into the plaintiff’s field and the arms of the poles also projected over the line. Estimates of the amount of damage varied and we are not convinced that the amount of the verdict is' excessive. That subject was carefully considered by the court below and it does not clearly appear that the discretion of the trial judge was exceeded.

The assignments of error are all overruled and the judgment affirmed.


text:
    Commonwealth to use v. Singer, Appellant.

      Bonds — Tax collector — Public officers — Act oj June 25,' 1885, P. L. 187.
    Where a tax collector’s bond is taken in the name of the commissioners of the county, and not in the name of the commonwealth as required by statute, and a suit is brought in the name of the commonwealth as legal plaintiff, the sureties cannot, after a trial upon the merits and a judgment against them, complain of the variance between the obligee named in the bond, and the legal plaintiff in the suit. Such a defect may be cured by amendment, and such amendment will be allowed even in the appellate court.
    Argued May 14, 1906.'
    Appeal, No. 69, April, T., 1906,' by defendants, from judgment of G. P. Armstrong Co., June T., 1904, No. 153, on verdict for plaintiff incase of Commonwealth to use of School District of Freeport Borough v. W. A. Singer, F. A. Seitz and Frank Maxler.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ-.
    Affirmed.
    Assumpsit on a tax collector’s bond. Before Patton, P. J.
    At the trial plaintiff’s counsel offered in evidence the bond of W. A. Singer, with F. A. Seitz and Frank Maxler as sureties, dated July 8, 1902, and approved by the court on July 9, 1902, and filed as of the same date, for the purpose of substantiating the claim of the plaintiff as against the defendants in this case, and to show their liability.
    Defendants’ counsel object to the offer, under the plaintiff’s declaration and the pleadings in the case, for the following reasons:
    1. For the reason that the obligees in the bond are the commissioners of the county of Armstrong, Pennsylvania, and so set forth in the bond.
    2. It is objected to because it does not show any right of action in the commonwealth of Pennsylvania to maintain suit upon this bond offered in evidence, nor does it show any right in the use plaintiff, to wit, the school district of the borough of Freeport, to maintain this action in the present form, the present action being what is known as a proceeding on an official bond, under the act of 1836.

      3. It is further objected to as incompetent and irrelevant, to show any liability on the part of the defendants in this case, either to the commonwealth of Pennsylvania, or to the use plaintiff.
    The Court: The objections are overruled, the bond is received, and a bill of exceptions is sealed to the defendants. [1]
    Plaintiff’s counsel reads the bond and the oath thereto, and the approval by the court thereof, to the jury.
    Plaintiff’s counsel offer in evidence specifically that portion of the auditors’ report relative to the settlement of the school tax with W. A. Singer, collector, for the purpose of showing the balance due from the collector to the school district.
    Defendants’ counsel object to the offer because already offered.
    Defendants’ counsel now renew their former objection to the auditors’ report, in relation to the school tax for the year 1902, and add the additional objection, that the plaintiff has already shown that the collector’s accounts, for the year 1902, were audited at the end of the school year, to wit, June, 1903, and these auditors’ reports cannot be both legally binding on the sureties in the collector’s bond.
    The Court: The objection is overruled, the offer admitted, and a bill of exceptions is sealed to the defendants. [2]
    • Under the above offer, the auditors’ settlement with W. A. Singer, collector of school taxes of Freeport borough for the year 1903, made February 23, 1904, was admitted in evidence.
    The court charged as follows :
    [In this case we will reserve the question, when a bond is-made out as this one is, in the name of the commissioners of Armstrong county, and a suit is brought in the name of the commonwealth of Pennsylvania, at the suggestion of, and to the use of, the school district of Freeport borough, whether or not the plaintiff is entitled to recover, reserving the question of law ; with the right to enter a verdict for the defendants, non obstante veredicto.] [3]
    Verdict and judgment for plaintiff for $1,349.19. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; and (3) portion of charge as above, quoting it.

      W. J. Christy, of McCain $ Christy, for appellants,
    cited: Wampler v. Shissler, 1 W, & S. 365; Com. v. Pray, 1 Phila. 58; Genesee Paper Co. v. Bogert, 23 Pa. Superior Ct. 23.

      Samuel II. McClain, with him Calvin Rayburn, George M. Sill, John M. Ralston and J. D. Daugherty, for appellee,
    cited: Clarke v. Potter County, 1 Pa. 159 ; Glover v. Wilson, 6 Pa. 290; Lehigh County v. Gossler, 24 Pa. Superior Ct. 406; Young v. Machamer, 1 Pearson, 303; Dyer v. Covington Twp., 28 Pa. 186; Com. v. Dauphin County Commissioners, 3 Pa. Dist. Rep. 584; McClure v. Com., 80 Pa. 167; McMicken v. Com., 58 Pa. 213; Com. v. Allen, 2 Pa. Superior Ct. 175; Berks County v. Levan, 86 Pa. 360 ; Little v. Fairchild, 195 Pa. 614; McGonnigle v. McGonnigie, 5 Pa. Superior Ct. 168; Com. v. Gruver, 13 Pa. Superior Ct. 553; Com. v. Scanlan, 202 Pa. 250; Shartzer v. School District, 90 Pa. 192; Luzerne County v. Rhoads, 1 Kulp, 437; Bank v. Schuylkill County, 190 Pa. 188; Com. v. Price, 15 Pa. Superior Ct. 342; Athens Car & Coach Co. v. Elsbree, 19 Pa. Superior Ct. 618; Schofield v. Lafferty, 17 Pa. Superior Ct. 8; Fisher v. Life Association, 188 Pa. 1; Eckert v. Schoch, 155 Pa. 530; Chapin v. Cambria Iron Co., 145 Pa. 478; Commonwealth v. Patterson, 13 Pa. Superior Ct. 136.
    October 5, 1906:
   Opinion by

Porter, J.,

The defendant, W. A. Singer, having been duly elected tax collector for the borough of Freeport, in the county of Armstrong, duly presented his official bond, with the other defendants as sureties, for the year 1902 to the court of quarter sessions for approval on July 9, 1902, as required by the Act of June 6,1893, P. L. 333. The bond was dated July 8,1902, and was approved by the court of quarter sessions of Armstrong county on July 9, 1902, as the official bond of W. A. Singer, as tax collector for the borough of Freeport, and was on said day filed, together with the oath of office of said Singer, as tax collector, in the office of the clerk of said court, as required by the Act of June 25, 1885, P. L. 187. The bond was conditioned in the exact language required by the act of June 25, 1885, and was in the exact form prescribed by that statute, except that instead of the commonwealth of Pennsylvania being made the obligee therein, as provided by the statute, “the Commissioners of Armstrong County, Pennsylvania,” without naming them, were the obligees. The collector failed to account according to law for the school taxes for the school district of' the borough of Freeport collected by him, and the school district authorities brought this action against him and his sureties upon the above-mentioned bond. The school taxes in question were within the express condition of the bond, and the only ground upon which the defendants allege exemption from liability is that the commonwealth of Pennsylvania should have been named as obligee in the bond, instead of the commissioners of Armstrong county. The liability of sureties in official bonds is not generally measured by the law requiring the surety, but by that imposing the duties on the officer; when the bond is given as an official bond and the condition imposes no liability not authorized by law, the mere fact that the obligee named is not the one provided by the statute does not vitiate the bond, nor relieve the officer or his sureties from liability: Dyer v. Covington Township, 28 Pa. 186. The tax collector and his sureties having executed the bond in question as his official bond, and the same having1 been approved by the proper court as such, and the collector having received the school taxes which were clearly within the express condition of the bond, the officer and his sureties are clearly estopped from denying liability for the money so collected: McClure v. Commonwealth, 80 Pa. 167. A variance between a statutory bond and the requisitions of the’law is fatal only when the condition would impose a greater burden on the obligor than the law allows, and in such case it is fatal only as to the excess of the obligation imposed: Commonwealth v. Laub, 1 W. & S. 261; McCaraher v. Commonwealth, 5 W. & S. 21. The bond in question was voluntarily given for a lawful purpose, and was nob against any statutory prohibition; it may therefore be enforced according to its terms, even though not in the form required by the statute: Franklin for use of the Commonwealth v. Hammond et al., 45 Pa. 507; Commonwealth v. Clipsham, 16 Pa. Superior Ct. 50. The liability of the defendants upon this bond for the school taxes in question is too clear for discussion ; the only question is as to the form of the action for their recovery.

The action was brought in the name of the commonwealth to the use of the school district of Freeport borough; the plaintiff filed a statement in the name of the commonwealth as the legal plaintiff, setting forth the election of Singer as tax collector, that he took the oath of office, filed the bond above recited and by virtue of his office collected the taxes which the school district now seeks to recover, and that after the exonerations' and commissions were deducted on said school tax duplicate, there was a balance for which said Singer failed to account to the amount of $1,269.82. Attached to and made part of this statement was a copy of the bond which showed that it named “ the Commissioners of Armstrong County, Pennsylvania ” as obligee, instead of the commonwealth of Pennsylvania. It thus clearly appeared from the statement filed that the use plaintiff was entitled to recover of the defendants, if the facts alleged were true, the amount which it claimed; but it also appeared upon the face of the statement that the commonwealth of Pennsylvania was not the obligee in the bond and should not have been made the legal plaintiff: Glover v. Wilson, 6 Pa. 292. The question was one which went not to the merits but to the form of the action, and the defendants might have raised it bjr a demurrer. The appellants entered the plea of the general issue and went to a trial upon the merits, which resulted in a judgment against them. The technical objection to the form of the action was one which could have been cured by amendment if the question had been raised in the court below by a demurrer. The form of the action worked no prejudice to the cause of the defendants at the trial upon the merits, and we will permit the amendment to be made in this court. The bond having been executed in favor of “ the Commissioners of Armstrong County, Pennsylvania,” an action might have been brought in tire irame of Armstrong county, as the legal plaintiff, to the use of the school district: Clarke v. Potter County, 1 Pa. 159; Dyer v. Covington Township, 28 Pa. 186; Lehigh County v. Gossler, 24 Pa. Superior Ct. 406; Commonwealth v. Snyder, 1 Pa. Superior Ct. 286 ; Commonwealth v. Allen, 2 Pa. Superior Ct. 175.

The settlement by the borough auditors of the account of Singer as collector of school taxes for the year 1902, made February 23, 1904, was properly admitted in evidence. There was no legal evidence that the borough auditors had previously made any settlement of the account of Singer as tax collector. Even if the statement, of the account of the treasurer of the school district, for the year ending May 31, 1903, had been in evidence, which it was not, and had been held to constitute an audit of the accounts of the collector, this would have been no advantage to the defendants, for the balance shown by that statement to be then due from the collector was $1,519.82, whereas when the accounts of the collector were actually audited in February, 1903-, the balance charged against him was only $1,269.82. The assignments of error are overruled.

The plaintiff is granted leave to amend the record by substituting Armstrong county instead of the commonwealth of Pennsylvania as the legal plaintiff, and the judgment is affirmed.