author: Pee Cubiam,

text:
    Leisenring v. Nanticoke Borough, Appellant.

      Negligence — Boroughs—Sidewalk—Icy condition of .street.

    In an action against a borough to recover damages for personal injuries by a fall on the ice in a street, there was evidence that ice had been allowed to form in a hollow or depression in the sidewalk where' it had been allowed to continue for a long time, and that the plaintiff slipped at this place. The court refused binding instructions for defendant. Defendant presented this point: “If the jury believes that plaintiff’s fall was caused by the general slippery condition of the sidewalk there can be no recovery against the defendant in this action.” The'court answered the point as follows: “Standing as it does there we will have to negative that point.” A verdict was found for plaintiff. The court subsequently denied a motion for judgment for defendant non obstante veredicto. On appeal the judges who heard the argument were equally divided in opinion, and the judgment was affirmed.
    Argued Feb. 26, 1907.
    Appeal, No. 45, Jan, T., 1907, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1904, No. 292, on verdict for plaintiff in case of William H. Leisenring and Phoebe Z. Leisenring v. Nanticoke Borough.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    . Trespass to recover damages for personal injuries. -Before Halsey, J. '
    The court charged in part as follows :
    It appears that on December 16, 1902, Phcebe Leisenring, this wife plaintiff, lived in Nanticoke, at No. 15, I think, Main street. She felt it incumbent, upon her that morning to go to see a relative at the corner of Arch and Walnut streets, who, it is alleged, was ill. She passed from her house on Main street to Broadway, on the corner of which was Meyers’s drug store, passed down Broadway on the left-hand side toward Arch street, some eighty feet or more, where there is a crossing that enters from Broadway into the stables on property that was formerly Gruver’s hotel. When she approached this crossing, between half-past eight o’clock in the morning and nine o’clock, she suddenly slipped, she said, her feet going out from under her forward ; she fell backward on the heel of her left hand, and one of the two bones of the left arm, as a consequence of that fall, was broken. The radius was broken, and the ulna, the other bone of the arm, was sprained or dislocated, it did not appear clearly as you will recollect; it was probably dislocated — the radius was broken and the wrist was dislocated. .... It is important for you to determine first just wliefe this lady fell. She alleges in her declaration that in the said borough of Nanticoke there is, and was, at the time complained of, a street called Broadway, extending from Main to Arch street in the said borough, on the westerly side of which said Broadway there was a sidewalk extending from said Main to said Arch street. At the point about midway between Main and Arch streets an alley intersects said Broadway. Noth withstanding its duty in the premises the said borough of Nanticoke, at the point where said alley intersects said Broadway, defectively constructed, or permitted to be defectively constructed and maintained, the said sidewalk so that a hollow or depression was created therein, and negligently allowed ice to form and remain in said hollow or depression, and that this ice was for a long time, to wit: for several weeks, negligently allowed to gather, and with snow and slush, so that said point appeared to be as safe as the other part of said'sidewalk.
    The vital, narrow edge of the issue here, so far as a conclusion as to recovery or no recovery is concerned, depends upon your finding as to where this accident occurred. Mrs. Leisenring says in her testimony that at this alley, which was a crossing, as I said before, from Broadway to the stable, made of cobblestones and paving stones, there was a depression, caused by the fact that there had not been exercised due care and caution on the part of this municipality in keeping it in proper repair and condition, which on this day was filled up with snow and ashes and ice ; that on top of this ice she fell; that it was on this crossing. The O’Brien girl did not see her fall — that is my recollection, but it is not a conclusion for you — but she heard the alarm and she looked around and saw a man — the man was Hopple — who was there to aid her to get up. She testifies she went over and assisted' her, and that where she found her was on the alley. The Butscavitch girl immediately followed the O’Brien girl, and .she says it-was not on the crossing.

      This, substantially, particularly as to where the accident occurred, is the testimony on the part of the plaintiffs. There is corroborative testimony, also, on the part of the plaintiffs given by the husband that he heard of the wife’s injury, started down to the locality, and saw evidence on the surface that someone had fallen at that point. On the other hand, there is the testimony of the Reilly girl, who was coming up Broadway to Main street, that she had just passed over on the crossing, passed Mrs. Leisenring and had occasion to turn around — she did not say she saw her fall — that she fell between the first and second posts in front of the hotel, the posts, as you will recollect, being the supports to the awning. The witness Hopple says he heard this lady give an outcry for relief and he saw her, and that she fell in front of the hotel. Kulp, the butcher, says he saw her, and that she fell in front of the hotel. Abbott, the hotel man, says he was looking from the window and saw her fall in front of the hotel.
    This is the issue for you to determine, first, as to where she fell, and this you must do from the credible testimony in the case. Looking over the witnesses, studying them and their manner upon the witness stand, you must determine where the truth lies as to just where this accident occurred that caused this lady this injury; because, undoubtedly, she was injured. If you find she was injured in front of the hotel and was not injured as alleged in the statement, you need proceed no further with the consideration of the case. If you find she was injured, as she alleges, then you have for further consideration the allegation of negligence on the part of the defendant borough.
    It has been held, and it is the law, that it is the duty of a municipal corporation having the exclusive control of its streets to see that they are kept in a condition that is ordinarily safe for the passage of persons and property; and if that plain duty is neglected and thereby injury results to anyone, the corporation is primarily liable to the injured party. A municipality is liable for negligence of its general duty to see that the streets and sidewalks thereof are kept in a reasonably good and safe condition. Another essential as to the applicability of this rule is as to notice. The municipality must have notice of the condition of a street that is alleged to be out of condition before there can be a recovery against it as a consequence of any injury sustained by reason of negligence of duty. There are two kinds of notice. There is actual notice and there is constructive or implied notice. Actual notice is notice that is given directly to some duly authorized representative of the municipality that a certain street at a certain point is out of repair. Constructive or implied notice is the notice which the borough is presumed to have when a defect in a public highway has existed so long that the borough should reasonably take notice of it and remedy it. If the defect complained of in this case — and you find that such defect was the cause of the injury to this lady — existed so long that in your opinion the borough should have known it, and the plaintiff was free from negligence that contributed to the injury, the plaintiffs might recover compensatory damages and no more. As to the legal duty of a municipality in a case of this kind, it has been held that persons are not necessarily prohibited from using a street of a borough because it is defective or may be partly obstructed. While such conditions may not of themselves prevent the use of a street, they, nevertheless, impose upon the persons using it a higher degree of care than if the street were free from obstructions. In such cases the party traveling the street must use that degree of care demanded by the 'circumstances of the particular case. When the testimony shows a defect 'of such character that the street can be used with safety by the exercise of reasonable care, notwithstanding its defective condition, it is for the jury to determine whether the injured party performed the duty required of him under the circumstances. It has been held that one is not precluded from recovery for an injury received from a defect in a road, though knowing it was defective, unless the danger was so apparent that in the use of ordinary care he ought not to have undertaken the passage. A person who uses a street or a highway that is thrown open for public travel, knowing at the time that there is a safer route which he may take to reach his destination, is not necessarily guilty of negligence because he does not take the safer route. It is only when the danger is so great and apparent that an ordinarily prudent person would regard it as dangerous and therefore avoid it, that a trial court can say as matter of law that the person using the more dangerous route is guilty of contributory negligence. It is nob necessary negligence to attempt to pass over even a noticeable accumulation of ice on the pavement. That may depend upon the size and shape of the accumulation, the obviousness and magnitude of the danger, the means .at hand of avoiding it and other circumstances. In the present case the plaintiff had passed over the obstruction the evening before, and whether it was prudent in her to try to do so again is for the jury.
    April 15, 1907:
    That is what the Supreme Court said in a case from which I have read. Therefore, it is for you, under these rules, as I have given them to you to- determine, whether this municipality was negligent in not maintaining in an ordinary and proper condition this street at the point where this lady alleges she was injured.
    The defendant presented the following point:
    If the jury believes that Mrs. Leisenring’s fall was caused by the general slippery condition of the sidewalk, there can be no recovery against the defendant in this case. Answer: Standing as it does there we will have to negative that point.
    Verdict and judgment for Phoebe A. Leisenring for $1,000, and for William H. Leisenring for $683.44. Defendant appealed.

      Errors assigned among others were (1) refusal of binding instructions for defendant; (2) refusal of defendant’s motion for judgment non obstante veredicto; (3) answer to defendant’s fourth point, quoting it.

      Richard B. Sheridan and James L. Lenahan, with them John T. Lenahan and T. B. Barman, for appellant.

      Edmund B. Butler and John M. Barman, for appellees.
   Pee Cubiam,

Apart from the questions involved in the first, second and third assignments, a majority of the judges who heard this case are of opinion that no reversible error appears in the record; but as to the question raised by the request for binding instructions and the motion for judgment for defendant nonobstante veredicto, and as to the question, whether, in view of the instructions given in the general charge, there was reversible error in not unqualified^ affirming the defendant’s fourth point, the judges are equally divided in opinion. Therefore the judgment is affirmed.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Hayes’s Election.
    April 15, 1907:

      Election law — Appeals—Record—Dismissal of appeal.

    An appeal to the Superior Court in an election contest will be dismissed where the record is not printed and there is nothing to show by whom, or upon whose petition, or on what grounds the election was contested.
    Argued Feb. 28, 1907.
    Appeal, No. 11, Jan. T., 1907, by A. Biancardi et al., from order of Q. S. Lackawanna Co., April T., 1903, No. 283, directing petitioners in election contest to pay costs In re Contested Election of John Hayes to the Office of Burgess of Old Forge.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Appeal dismissed.
    Rule on borough of Old Forge to show cause why it should not pay costs in ah election contest.
    The court discharged the rule.

      Error assigned was the order of the court.

      Edward W. Thayer and A. A. Vosburg, with them James E. WatJcins, for appellants.

      M. J. Martin, with him John J. Toohey, for appellee.
   Opinion by

Beaver, J.,

No portion of the record in this case is printed. We gather from the appellant’s history of the case that, at an election for municipal officers of Old Forge borough, in February, 1903, John Hayes was returned as elected as burgess. The opposing candidate was Antonio Biancardi. The election was apparently contested. By whom, or upon whose petition, or on what grounds, does not appear.

It appears from the abstract of proceedings, that, on March 11, 1903, an “ order directing filing of bond filed,” and that on March 14, 1903, bond was filed. This was probably the bond required by the Act of April 28,1899, P. L. 118, in which it is provided : “ Whenever a petition to contest an election in any of said cases (which include borough, township and municipal officers), shall be presented to the court, it shall be the duty of said petitioners, within ten days thereafter, to file a bond, signed by at least five of the said petitioners, in such sum as the said court, or any judge thereof during vacation, shall designate, with sureties to be approved by the said court or judge, conditioned for the payment of costs which may accrue in said contested election proceeding, in case the said petitioners, by decree of said court, shall be adjudged liable to pay said costs, and, if the said bond shall not be filed as herein provided, the said petition to contest the election shall be dismissed.” But this bond is not printed.

Was A. Biancardi, who is the only appellant whose name appears in the paper-book of the appellant, one of the petitioners for the contest ? Who were the other petitioners ? What were the grounds for contest upon which the petition was based ? Did the petitioners represent themselves as contestants of the legality of the election, or did they simply, as petitioners, put forward the opposing candidate for burgess as a contestant? Who signed the bond required by the act, if such a bond was given? Was the bond in proper form, as required by the act? In short, were all jurisdictional steps necessarj'- to give the court of quarter sessions cognizance of the contest properly taken? Who are the appellants here? Wo can answer none of these questions for the reason that the record, which would supply the answers, is not printed. It is, therefore, impossible for us to intelligently pass upon the question involved upon this appeal.

Assuming that the record is regular in all respects, and that the court’s jurisdiction was thereby properly established, considered as a purely academic question, basing our conclusion upon what we are able to gather from the appellant’s paper-book, we would say that the construction of the court below of the Act of April 28, 1899, P. L. 118, was the correct one, and that the costs were properly imposed upon the petitioners, as provided in the act. It is not necessary to discuss this question, however, inasmuch as the case is not presented to us in such a way as to enable us to reach a conclusion which would be of any value as an authoritative legal precedent.

The right to take such an appeal is recognized in Thomas’s Election, 198 Pa. 546, but it is not necessary for us to consider its scope and effect at this time. The only proper disposition, therefore, which can now be made is to dismiss the appeal.

Appeal dismissed at the costs of the appellants.


author: Rice P. J.,

text:
    Petri v. Carracciolo, Appellant.

      Appeals — Oral instructions — Exceptions—Quashing appeal.

    Ah appeal will be quashed where error is assigned to oral instructions, but no exception has been taken to such instructions.
    Argued March 1, 1907.
    Appeal, No. 51, Jan. T., 1907, by defendant, from judgment of C. P. Lackawanna Co., Jan. T., 1905, No. 554, on verdict for plaintiff in case of Petro Petri v. Dominick Carracciolo.
    Before Rige, P. J., Porter, Henderson, Orlad y, Head and Beaver, JJ.
    Appeal quashed.
    Motion to quash appeal.
    The fourth reason assigned in support of the motion was as follows:
    4. Because there was no exception in the court below to rulings on the points presented by plaintiff or to the charge, and no request by the counsel for appellant to the court, before verdict for an order directing the charge to be made a matter of record for purposes of enabling them to except thereto.
    1. There must be an exception noted to the charge before verdict, to enable a complaining party to successfully assign errors thereto afterwards.
    2. Counsel must request before verdict that the charge be reduced to writing from the stenographer’s notes, and filed of record, and that he does so request, must appear of record. If the record does not so show, his appeal will be quashed on motion of the opposite counsel: Curtis v. Winston, 186 Pa. 492.
    April 15, 1907 :
    The above case is cited as authority in quashing the appeal of Patterson v. Groetzinger, 10 Pa. Superior Ct. 327.
    Where no exception is taken, the book should be quashed: Finch v. Conrade’s Executor, 154 Pa. 326 ; Tasker v. Sheldon, 115 Pa. 107.

      A. A. Vbsbury, with him H. L. Taylor, for appellant.

      H. D. Carey, for appellee.
   Opinion by

Rice P. J.,

The single matter, which the appellant who was defendant below assigns for error, is the court’s answer to a certain point or request for instructions presented by the plaintiff. The docket entries do not show that any point in writing was presented to the judge before he charged the jury, and no such point is among the files sent up with the record. But it appears from the report of the charge, which was approved by the judge and filed by his direction, that the plaintiff “ submitted two points or requests for specific instructions,” and that in answer to the second the court gave the instructions complained of. The assignment of error, therefore, does not relate to a written answer to a point in writing, which was read to the jury and with the point then filed, but to oral instructions given in answer to a point or request, which, for aught this record shows, may have been submitted orally. The filing of the stenographer’s report of these instructions did not of itself bring the case within the literal terms of sec. 1 of the Act of March 24, 1877, P. L. 38. We do not wish to be understood as intimating that oral instructions to the jury given in the way thus described are not assignable for error merely because the provisions of the act of 1877 were not strictly followed; áll that we decide is that if the record does not bring the case within the provisions of the first section of the act of 1877 such instructions do not stand on a higher plane than other portions of the charge, and that the established prerequisites for bringing the charge upon the record for purpose of error cannot be dispensed with. The filing of the stenographer’s notes of a judge’s charge will not make it part of the record for the purpose of assigning error thereupon. It must affirmatively appear that the filing was the act of the judge himself, or by his express direction, evidenced by his signature either to the charge itself or to the bill of exceptions: Smith v. Times Publishing Co., 178 Pa. 481; Heyer v. Cunningham Piano Co., 6 Pa. Superior Ct. 504. This was all that was necessary to decide upon this subject in those cases, but in the later case of Curtis v. Winston, 186 Pa. 492, the question of the right to assign error to the charge arose upon a certificate of the judge “ that the foregoing is a full and accurate transcript of the stenographer’s notes of the trial and of the charge of the court in said case, as tried before me on May 11, 1897, which contains all that occurred during the trial, and I hereby direct the same to be filed in accordance with a request made to me on June 9, 1907.” This certificate as to the correctness of the stenographer’s transcript of the evidence and the charge, and as evidence that it was filed by express direction of the judge, was as broad as that attached to the stenographer’s transcript in the present case ; but it was held that where the record shows no exception to the charge before the verdict and no request to the court before verdict to order it to be filed it is not subject to assignment of error. This, ruling, which has been consistently followed from that time to this, is a complete answer to the suggestion of the appellant’s counsel that if the stenographer’s transcript be certified in the form prescribed by rule 6, no exception to the charge and no request to file it need be made before verdict. As was said by Justice Dean in Curtis v. Winston it is asking but little of the party complaining that, if he then have any reason to dissent from the law as announced by the judge, he have his exception noted of record. “ He is no longer bound to tender a bill of exceptions, Specifying particularly the errors he complains of, and praying that bills be sealed. Of this, the legislation since 1856 has relieved him; but he has not been relieved either by statute or decision, if he has any objection to the law announced in his hearing by the court, of then making it known of record.” These remarks are equally pertinent when the matter complained of consists of oral instructions given in answer to a request of counsel, and, as we understand the very recent case of Sibley v. Robertson, 212 Pa. 24, there is necessity for excepting in order to assign them for error. It follows that the fourth reason assigned in support of the motion to quash the appeal must be sustained.

The appeal is quashed.


author: Per Curiam,

text:
    Crane Marks Company v. Gordon, Appellant.
    April 15, 1907:

      Appeals — Paper-books—-Evidence—Quashing appeal.

    Where the assignments of error depend for their correct determination upon a consideration of the evidence rule XXIV will be strictly enforced.
    Where a considerable part of the oral evidence as taken by the official reporter is not printed, a certificate of the appellant’s counsel that the part printed is all of the evidence pertinent to the questions raised by the assignments of error, cannot take the place of the certificate of the judge required by rule VI, and prevent enforcement of the rules where it is insisted on by appellee’s counsel.
    Argued March 1, 1907.
    Appeal, No. 52, Jan. T., 1907, by defendant, from judgment of C. P. Lackawanna Co., Jan. T., 1905, No. 453, on verdict for plaintiff in case of The Crane Marks Company v. A. A. Gordon.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Motion to quash appeal.

      Thomas P. Puffy, for appellant.

      R. J. Murray, for appellee, filed no printed brief.
   Per Curiam,

The assignments of error in this case depend for their correct determination upon a consideration of the evidence; there is reason, therefore, for strict enforcement of rule XXIV : Bradley v. Vernon, 166 Pa. 603; Pittenger v. Kennedy, 148 Pa. 198. Where a considerable part of the oral evidence as taken by the official reporter is not printed, a certificate of the appellant’s counsel that the part printed is all of the evidence pertinent to the questions raised by the assignments of error, cannot take the place of the certificate of the judge required by rule VI, and prevent enforcement of the rules where it is insisted on by appellee’s counsel.

The appellee’s motion is allowed, the appeal is non prossed and the record remitted to the court below.


author: 'Per Curiam,

text:
    Ingram, Appellant, v. Orangers.
    April 15, 1907:

      Appeals — Attachment under Act of March 17, 1869, P. L. 8 — Records —Evidence—Discretion of court — Quashing appeal.

      ■ An appeal from an order dissolving an attachment under the fraudulent debtors Act of March 17, 1869, P. L. 8, takes up nothing but the record proper, which does not include the evidence. If there is no error in the record the appeal will be quashed; and in such a case a motion to quash will be entertained before the return day.
    Submitted Feb. 28, 1907.
    Appeal, No. 257, Oct. T., 1906, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1906, No. 1,891, dissolving attachment under act of 1869,’ in case of Charles Ingram and Alfred Armitage, trading as Armitage Brothers, v. Charles C. Orangers.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Be ayer, JJ.
    Appeal quashed.
    Motion fo quash appeal.

      Charles II. Roberts and Hugh Roberts, for appellants.
    6r. Douglas Bartlett and George Wentworth Carr, for appellee.
   'Per Curiam,

This is a rule to sho,w cause why the plaintiff’s appeal from an order dissolving their attachment issued under the Act of March 17,1869, P. L. 8, should not be quashed. It is apparent from the appellants’ answer to this rule that the matter complained of is, not that the court did not have jurisdiction to dissolve the attachment, nor that there is any irregularity in the proceedings, but that the court erred in not talcing a different view of the evidence. But the appeal in such a case brings up nothing but the record proper, which does not include the evidence on which the court acted in dissolving the attachment. Hence, if the proceedings are regular, the action of the court is not reviewable on appeal: Wetherald v. Shupe, 109 Pa. 389; Black v. Oblender, 2 Mona. 339 ; Hoppes v. Houtz, 133 Pa. 34; Hall v. Oyster, 168 Pa. 399 ; Werner v. Gross, 174 Pa. 622 ; Lafferty v. Corcoran, 175 Pa. 5. Ordinarily, an appeal will not be quashed before the return day, but it has been done in cases of appeals from interlocutory judgments ; also where the record showed a waiver of appeal, and in other exceptional instances. As the object of this appeal is not to correct any error of record, but to bring up for review the discretionary action of the court on the evidence — a matter not reviewable — it seems to be a proper case to entertain a motion to quash before the return day.

The rule to show cause why the appeal should not be quashed is made absolute.


author: Hendekson, J.,

text:
    Corbe, Appellant, v. Burkert.

      Equity — Equity jurisdiction — Remedy at law — Multifariousness — Fraud.

    Jurisdiction in equity depends not so much in the want of a common-law remedy as upon its inadequacy, and its exercise is a matter which often rests in the discretion of the court.
    Equity seeks to prevent a multiplicity of actions by disposing in one proceeding of all the questions which will arise affecting many persons. To oust jurisdiction the remedy at law must be full, adequate, complete and reasonably convenient.
    Where a complainant in a bill in equity shows in his bill that four of the defendants had received either by sale or hypothecation five county bonds from a person to whom the plaintiff had delivered the bonds solely for the purpose of exchange into a bond of a borough, and it also appears that the county is made a party to the bill to prevent a redemption of the bonds or a payment of interest thereon, it is reversible error for the court to dismiss the bill either on the ground that there was an adequate remedy at law or because the bill was multifarious.
    Argued Dec. 4, 1906.
    Appeal, No. 16, Oct. T., 1906, by-plaintiff, from decree of O. P. Schuylkill Co., July T., 1905, No. 10, dismissing bill in equity in case of Joseph Corbe v. E. P. Burkert, Citizens’ National Bank of Ashland, Charles A. Weidmah, Richard Price, Anthony Dougherty an'd Schuylkill County.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Reversed.
    Bill in equity for an injunction.
    The opinion of the Superior Court states the case.

      Frror assigned was decree dismissing the bill.

      J. F. Minogue, for appellant.
    — Equity will maintain a bill to enforce the return of a specific chattel where the remedy at law is not as complete and adequate as the remedy in equity: Steinmeyer v. Siebert, 190 Pa. 471; Clauer v. Clauer, 22 Pa. Superior Ct. 395; Penna. Co. v. Franklin Fire Ins. Co., 181 Pa. 40; Brush Electric Co.’s App., 114 Pa. 574; Boyd v. American Carbon Black Co., 182 Pa. 206 ; Bierbower’s Appeal, 107 Pa. 14; Penna. R. R. Co. v. Bogert, 209 Pa. 589 ; Shaw v. Bank, 8 W. N. C. 221; Westinghouse v. German Nat. Bank, 188 Pa. 630; Northern Central Ry. Co. v. Walworth, 193 Pa. 207.
    The bill is not multifarious: Wetherill v. Gallagher, 211 Pa. 306 ; Walsh v. Stille, 2 Parsons’ Select Equity Cases, 17; Dastervignes v. U. S., 122 Fed. Repr. 30; Ressler v. Witmer, 1 Pearson, 174; Conemaugh Gas Co. v. Gas Co., 186 Pa. 443; Johnston v. Price, 172 Pa. 427; Wagner v. Fehr, 211 Pa. 435; Shattuck v. American Cement Co., 205 Pa. 197; Wood’s App., 92 Pa. 379; Prall v. Hamil, 28 N. J. Eq. 66; M’Elrath v. Pittsburg, etc., R. R. Co., 11 W. N. C. 401.

      W. C. Devitt, with him Walter G. Treilly, for appellees.—
    The plaintiff had a full, adequate and convenient remedy at law: Roland v. National Bank, 135 Pa. 598; Ralston v. Ihmsen, 204 Pa. 588; Mundy v. Brooks, 204 Pa. 232; Hyde v. Baker, 212 Pa. 224; Holland v. Hallahan, 211 Pa. 223; Clarke’s Appeal, 107 Pa. 436; Squires v. Howell, 12 Pa. Superior Ct. 8; Kaul v. Henke, 2 Pa. Dist. Rep. 236; Goodwin Gas Stove, etc., Co.’s App., 117 Pa. 514.
    April 15, 1907:
    The bill was multifarious: Quin v. Power, 18 W. N..C. 285; Keppel v. Lehigh Coal & Nav. Co., 21 Pa. C. C. Rep. 101; Price v. Hurley, 201 Pa. 606; Elk Brewing Co. v. Neubert, 213 Pa. 171; Artman v. Giles, 155 Pa. 409.
   Opinion by

Hendekson, J.,

The plaintiff’s bill sets forth that he was the owner of five bonds of the denomination of $100 each, issued by the county of Schuylkill; that on May 1, 1905, he manually delivered these bonds to C. O. Burkert for the purpose of making preliminary arrangements to have them exchanged for one bond issued or to be issued by the borough of Pottsville for $500; that Burkert afterwards fraudulently attempted to sell the bonds and delivered one of them to the defendant, Weidman, another to the defendant, Price, another to the defendant, Dougherty, and two of them to the Citizens’ National Bank as security for a loan; that the bonds delivered to the bank were subsequently delivered by it to E. P. Burkert who is attempting to sell them; that the bonds were not transferred or assigned to C. O. Burkert, nor did he have any power of attorney or blank certificate or any other indicia of ownership thereto or any authority to sell, pledge or assign them. The prayers of the bill are (1) for an injunction against the county of Schuylkill restraining it from redeeming the bonds or paying interest thereon to other persons than the plaintiff; (2) for discovery from the other defendants as to the possession of the bonds and a decree for the delivery of the bonds to the plaintiff against the defendants in whose possession they may be. The court sustained the demurrer of the defendants on two grounds: (a) that the plaintiff has an adequate remedy at law; (h) that the bill is multifarious. The bill exhibits a case of the fraudulent disposal of the plaintiff’s property and an injunction is sought to prevent the consummation of the fraud by receiving the proceeds of the securities. Of some of the defendants, discover is sought in aid of the prayer of the bill for restitution of the property. Different defendants are supposed to have different interests in. the property, but it is charged that they derived the several bonds from the same fraudulent source and they are, therefore, joined in the same bill. It was said in Bierbower’s Appeal, 107 Pa'. 14, that jurisdiction in equity depends not so much on the want of a common-law remedy as upon its inadequacy, and its exercise is a matter which often rests in the discretion of the court, and this statement of the law has been repeated in other words but to the same effect in Appeal of Brush Electric Co., 114 Pa. 574; Mortland v. Mortland, 151 Pa. 593; Houseman v. Grossman, 177 Pa. 453; Penna. Co. v. Franklin Ins. Co., 181 Pa. 40; Bank of Pittsburg v. Loeffert, 184 Pa. 164; Orr v. Peters, 197 Pa. 606; Wetherill v. Gallagher, 211 Pa. 306; Story’s Equity Juris, sec. 33, and Bispham’s Equity, sec. 200. A common-law remedy exists in many cases where it would be so inadequate to meet all the requirements in order to afford complete justice to the injured party that equity takes jurisdiction to accomplish this result. The facts alleged in the complainant’s bill present a case to which the rule indicated applies. He seeks, first, to prevent the redemption of the bonds or the payment of interest thereon when presented by any other person than himself, and next a decree for the return of the embezzled property. At least five of the defendants are charged to have parts of this property in their possession. They do not stand as innocent purchasers, for, as is averred, Burkert was not invested with evidence of ownership by the plaintiff nor given authority.to dispose of the bonds. A common ground of complaint is presented, the possession of the defendants having arisen out of the fraudulent act of Burkert. The defendants claim through the same source and have a common interest in regard to the matters alleged. It is evident, under such circumstances, that a court of equity affords the most convenient and adequate remedy for a determination of the plaintiff’s rights. Equity seeks to prevent a multiplicity of actions by disposing in one proceeding of all the questions which arise affecting many persons. To oust equitable jurisdiction the remedy at law must be full, adequate, complete' and reasonably convenient: Kirkpatrick v. McDonald, 11 Pa. 387; Warner v. McMullin, 131 Pa. 370. In Wetherill v. Gallagher, 211 Pa. 306, it was said that the large number of claimants to the property and the different rights by which they claimed, render the plastic procedure of equity a convenient as well as an effective remedy for determining its ownership. The charge being that the bonds were fraudulently transferred, there being several defendants who derived the property from the same source, numerous actions of law being necessary and their progress tedious, the plaintiff therein being dependent upon the personal responsibility of the defendants in the event that he obtained judgments and the averment being that the delivery was without authority and without any color of authority, we think the complainant has presented a case of which equity has jurisdiction and that the bill is not demurrable for multiplicity.

It is easy to anticipate that the defendants may show in their answers that they acquired title in an entirely justifiable manner, but with that we have nothing to do at present. We are considering the complainant’s bill on the demurrer as if the allegations therein set forth were correct. The decree is reversed at the cost of the appellees, the bill is reinstated and the record remitted to the court below for further proceedings according to equity.


author: Henderson, J.,

text:
    Riebe v. Mauch Chunk Water Company, Appellant.

      Contract — Construction contract — Efficiency of plan — Evidence—Conflicting evidence — Case for jury.

    The contractor in a construction contract is bound to construct according to the directions given him, and his obligation does not bind him for the efficiency of the plan adopted.
    In an action by a contractor against a water company to recover a balance alleged to be due for the construction of a tunnel and ditch for a water pipe, where the defense set up is that the plaintiff had failed in material particulars to perform the work according to the plans, and that there had been a long delay for which the contract stipulated liquidated damages, and the evidence on both subjects is conflicting, the case is for the jury, and a verdict and judgment for plaintiff will be sustained.
    Argued Feb. 25, 1907.
    Appeal, No. 38, Jan. T., 1907, by defendant, from judgment of C. P. Carbon Co., Jan. T., 1905, No. 26, on verdict for plaintiff in case of Herman Riebe v. Mauch Chunk Water Company.
    April 15, 1907:
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, J J.

    Affirmed.
    Assumpsit to recover balance alleged to be due on a contract. Before Heydt,P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned amongst others was (21) refusal of binding instructions for defendant.

      Laird H. Barber and Frederick Bertolette, for appellant.

      E. 0. Nothstein, with him Wm. Gr. Freyman, for appellee.
   Opinion by

Henderson, J.,

The plaintiff entered into a contract to perform the work and to furnish part of the material used in the construction of an improvement to the water system of the defendant. The plan involved the excavation of a tunnel about 1,000 feet in length, a ditch in connection therewith and the placing in the ditch and tunnel of pipes to be used by the company. The specifications furnished to the plaintiff set forth in detail the extent and character of the work to be done, the manner of its execution and the time within which it was to be completed. The contract provided that a delay in the completion of the work beyond the time limited would subject the plaintiff to the forfeiture of |5.00 a day during such delay as liquidated damages. The plaintiff alleged performance according to the contract except as to the time of the completion of the work, and for that delay a flood, strikes of laborers and the permission of the defendant were presented as excuses. Two payments of $800 and $500, respectively, were acknowledged and this action was brought to recover the remainder. The defense set up was that the plaintiff had failed in material particulars to perform the work according to the plans; that the tunnel was not as wide or as high as required and was not timbered in accordance with the specifications; that the work was abandoned by the plaintiff before it was completed; that at one point the terra cotta pipe laid in the tunnel was broken; that the earth excavated from the tunnel was not distributed over the surface as should have been done and that an inexcusable delay of several months was permitted by the plaintiff. The issue thus presented was one of fact, necessarily referable to the jury. If the testimony of the plaintiff and his witnesses is believed the work was performed as required by the contract except as to the time of its completion, and the defects of which the defendant complains were attributable to the inadequacy of the plans ; the defects were developed mainly after the work was completed and the plaintiff was in no way responsible for any miscarriage resulting from defective designs. Testimony was also offered of an explosion of dynamite by an agent of the defendant after the plaintiff had left the work, to which the jury might have attributed the break in the terra cotta pipe which the defendant charged to the plaintiff’s negligence. The defendant contended and offered evidence to show that the work was not finished, that what was done was not in accordance with the contract and that the plaintiff had failed to complete the undertaking to the satisfaction and acceptance of the engineers of the defendant as in the contract provided. There is also a denial that permission had been given by the defendant to delay the work or that flood or strike had prevented the plaintiff from finishing his work at the time agreed upon. The defendant asked the court to charge that the plaintiff having failed to complete the work covered by the contract to the satisfaction and acceptance of the engineers of the water company cannot recover, and much of the discussion in the case bears upon that question. It was not alleged by the defendant that it had an engineer in charge or that an engineer had inspected the work from time to time as it progressed until the plaintiff quit work. The evidence is that no engineer ever had any supervision after the tunnel was begun. It is abundantly shown, however, and not denied, that Mr. Enbody was the active representative of the defendant, not only in procuring the execution of the' contract, but of supervising its performance. Whether he was considered by the defendant its engineer or not he was so recognized by the plaintiff and was the only person who gave direction or had supervision on behalf of the defendant. The work was done according to his orders and direction. There was evidence that Mr. Enbody was notified that the work was completed, and he was invited to go through the tunnel and examine it or get someone to do so, and that he said it was all right. There was no evidence that the engineers who prepared the plans were ever on the ground or that the defendant ever attempted to have the work inspected by any engineers. The contract does not contain a provision for the submission to the company’s engineer as a referee of disputed questions and the plaintiff was not, therefore, required to resort to such a tribunal rather than to an action at law: Lauman v. Young, 31 Pa. 306. The evidence was contradictory on the question whether the plaintiff had performed the work in the tunnel in accordance with the specifications. In reply to the defendant’s allegation that the tunnel was not high enough and was partly filled with mud or soft earth, the plaintiff alleged that this was owing to a faulty design in the plans; that mudsills should have been used and that additional lagging should have been provided for. If the defects complained of resulted from a failure of the engineers who designed the plans to anticipate the condition of the soil and to provide for it the plaintiff is not responsible for the consequences. He was bound to construct according to the directions given him, and his obligation did not bind him for the efficiency of the plan adopted: Filbert v. Philadelphia, 181 Pa. 530. How the terra cotta pipe was broken was a matter of dispute. The plaintiff alleged that it was properly laid and in good condition, and asked the jury to infer that the break in the section was caused by an explosion of djmamite when the defendant’s agent, Riehl, sunk a shaft down to the pipe. The defendant alleged that the break was due to faulty construction chargeable to the plaintiff. If the plaintiff left the pipe in good condition and the break occurred for reasons not attributable to his neglect he, of course, was not responsible. The evidence on the question of performance by the plaintiff was fairly submitted to the jury by the trial judge. It was not improper for the court to instruct the jury on the subject of substantial performance, and that portion of the charge is as favorable to the defendant as the evidence warranted.

The provision in the contract for the completion of the work at the time stipulated provides a redress to the defendant in case of the plaintiff’s failure and does not relieve the defendant from payment according to the contract if the plaintiff fulfilled his undertaking in other respects. The defendant might set off against the balance due on the contract any sum for which the plaintiff was liable as liquidated damages because of his delay. Whether the delay was the plaintiff’s fault was’ a question for the jury. The evidence of the flood which interfered with the prosecution of the work, of the strike of the laborers because of the character of the work and the consent of the company’s representative, Mr. Enbody, that the plaintiff might set the men employed on the tunnel at work in the city of Mauch Chunk at the time an extraordinary flood occurred, was submitted to the jury under proper instructions. The jury awarded to the plaintiff considerably less than the amount of his claim, from which it may be inferred that credit was given to the defendant for the delay.

We do not find sufficient warrant in the record to sustain the assignments of error. They are, therefore, overruled and the judgment affirmed.


author: Rice, P. J.,

text:
    Schulze v. Schulze, Appellant.

      Divorce — Cruel and barbarous treatment — Libel by husband.

    Whatever directly tends to show a course of treatment which rendered the condition of the husband intolerable and his life burdensome, is admissible in evidence, and in determining whether there was cruel and barbarous treatment within the meaning of the statute, the whole conduct of the wife towards her husband during the period of the alleged ill treatment should be considered.
    Bad temper alone is not ground for divorce, nor is mere drunkenness, or indolence, or thriftlessness, or willful neglect of household duties. The acts or conduct of the wife towards her husband that will entitle the latter to a divorce for cruel and barbarous treatment, must be not only such as render his condition intolerable or life burdensome, but such as amount to cruel and barbarous treatment. Both of these statutory elements must concur. If by other means, which do not constitute legal cruelty, his condition is rendered intolerable, the statute does not apply.
    A husband will not be allowed a divorce on the ground of cruel and barbarous treatment by his wife merely because the wife was peevish, fault-finding, ill-tempered, and neglectful of the tidiness of her children and household, occasionally intoxicated, and at times neglectful of the preparation of meals.
    April 15, 1907:

      Divorce — Practice, C. P. — Appeals—Review of evidence.

    Although the report of an examiner in favor of a divorce is approved by the lower court, this will not relieve the appellate court of the duty of reviewing the testimony, and adjudging whether it sustains the complaint of the libelant.
    Argued Dec. 5, 1906.
    Appeal, No. 155, Oct. T., 1906, by defendant, from decree of C. P. Schuylkill Co., March T., 1906, No. 193, awarding a divorce in case of Otto H. Schulze v. Katie Schulze.
    Before Rice, P. J., Porter, Henderson, Morrison, I-Ibad and Beaver, JJ.
    Reversed.
    Libel for divorce.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree awarding divorce.

      E. P. Leusohner, for appellant.
    — The evidence does not justify a decree: Richards v. Richards, 37 Pa. 225; Gordon v. Gordon, 48 Pa. 226 ; May v. May, 62 Pa. 206 ; Roth v. Roth, 15 Pa. Superior Ct. 192; Mendenhall v. Mendenhall, 12 Pa. Superior Ct. 290 ; Harris’s App., 2 W. N. C. 331; Eshbach v. Eshbach, 23 Pa. 343 ; Mason v. Mason, 131 Pa. 161; Van Dyke v. Van Dyke, 135 Pa. 459 ; Nye’s App., 126 Pa. 341; Rochelle v. Rochelle, 28 Pa. C. C. Rep. 458 ; Ottenberg v. Ottenberg, 32 Pa. C. C. Rep. 208; Riester v. Riester, 11 Pa. Dist. Rep. 99; Hampson v. Hampson, 15 Pa. Dist. Rep. 348.

      A. D. Knittle, with him I. A. Reed, for appellee.
    — The cruel and barbarous treatment mentioned in the statute include acts which endanger life, but it is not restricted to them : Fay v. Fay, 27 Pa. Superior Ct. 328; Butler v. Butler, 1 Parsons’ Select Eq. Cases, 329; Gordon v. Gordon, 48 Pa. 226 ; Barnsdall v. Barnsdall, 171 Pa. 625 ; Heilbron v. Heilbron, 158 Pa. 297 ; McMahen v. McMahen, 186 Pa. 485.
   Opinion by

Rice, P. J.,

This is an appeal from a decree of divorce a vinculo matrimonii. The cause alleged in the libel is cruel and barbarous treatment. The general averment thereof is in the words of the Act of May 8,1854, P. L. 644, and is followed by specific allegations which the master correctly summarizes as follows : “ This treatment, it is alleged in the libel, consisted of threats of personal violence, hurling missiles at the libelant, demolition of household goods, refusal to prepare meals, neglect of the children and household duties, calling him vile and opprobrious names, refusal of admission to the house, and frequent intoxication.” It is clear, both upon principle and authority, that whatever directly tends to show a course of treatment which rendered the condition of libelant intolerable and his life burdensome, is admissible in evidence, and that in determining whether there was cruel and barbarous treatment within the meaning of the statute the whole conduct of the wife toward her husband during the period of the alleged illtreatment should be considered: Barnsdall v. Barnsdall, 171 Pa. 625; Fay v. Fay, 27 Pa. Superior Ct. 328. It is important, therefore, to determine how far these several allegations of the libel are established by the testimony, even though proof of neither one of them, taken by itself, would be sufficient to support the general charge. Before doing so, it is appropriate to refer briefly to the general principles governing an application for divorce based upon the allegation of cruel and barbarous treatment, in which the husband is libelant. It is. true that the charge may be made out without proof of actual violence inflicted upon his person, either endangering life or of a less serious character. But it is equally well settled that, while proof of these acts is admissible in support of the charge, bad temper alone is not ground for divorce, nor is mere drunkenness, or indolence, or thriftlessness, or willful neglect of household duties. The acts or conduct of the wife towards her husband, that will entitle the latter to a divorce under the clause of the statute now being considered, must be not only such as render his condition intolerable or life burdensome, but- such as amount to cruel and barbarous treatment. Both of these statutory elements must concur. If by other means, which do not constitute legal cruelty, his condition is rendered intolerable, this clause of the statute does not apply. In Butler v. Butler, 1 Parsons’ Select Equity Cases, 329, Judge King, after an elaborate review of many decisions, arrived at this construction of the words cruel and barbarous treatment in the acts of 1815 and 1817: “ That the cruelty within our statute which entitles a wife to a divorce from her husband; is actual personal violence or the reasonable- apprehension of it; or such a course of treatment as endangers her life or health, and renders cohabitation unsafe.” This definition has been accepted in numerous cases, many of which are cited in McMahen v. McMahen, 186 Pa. 485, and has been held to apply to the same words in the act of 1854: Gordon v. Gordon, 48 Pa. 226; Jones v. Jones, 66 Pa. 494; Harris’s Appeal, 2 W. N. C. 331; Fay v. Fay, 27 Pa. Superior Ct. 328. In determining whether the evidence warrants a finding of facts which would bring the case within the well-settled rule above stated, we are at the disadvantage of not having the witnesses before us so that we can observe their manner of testifying and apply the tests of credibility which such opportunity affords. But the learned court below was under the same disadvantage, and it is well settled by the authorities, that although the report of an examiner in favor of the divorce is approved by the court, this will not relieve the appellate court of the duty of reviewing the testimony and adjudging whether it sustains the complaint of the libelant: Middleton v. Middleton, 187 Pa. 612.

The preponderance of testimony supports the allegation that for a period of two years, or thereabouts, prior to the institution of this proceeding, the respondent was addicted to the use of intoxicating liquors; that upon several occasions she carried it to excess, and upon two or three occasions became grossly intoxicated.

The allegation that she was neglectful of her children (a boy aged about three years and a girl aged about sixteen months, at the institution of this proceeding) is sustained by the preponderance of testimony so far as the allegation relates to their bodily cleanliness and the cleanliness of their apparel; but a finding that she illtreated them otherwise, or was lacking in affection for them, is not warranted upon a fair consideration of all the evidence. Indeed, some of the testimony as to her peevish and quarrelsome acts shows that some of the conduct of which complaint is made grew out of the respondent’s over-solicitude about the health of her infant child.

The fact that for a year, perhaps two years, before the institution of the suit she was neglectful of some of her household duties, in consequence of which the home presented an untidy appearance, seems also to be established; but in the consideration of this fact it must be borne in mind that during a considerable part of the period she was not in good health, that at times she was without a servant, and at times required the attendance of a physician and the care of a nurse.

As to refusal to prepare meals for the libelant, the testimony of the parties is conflicting, he alleging it and she denying it; but the testimony of a servant, who lived with them for about seven weeks immediately preceding the institution of the suit, is so far corroborative of the libelant’s testimony as to warrant a finding that during the latter half of the period, in reply to his inquiries at breakfast whether she would have dinner for. him when he came home, she would answer no, and that he did not need to come home for his supper, for there would not be any.” It does not clearly appear in the testimony of this witness how often this occurred during the short period above referred to, and it is worthy of note .that neither the nurse, who on two or three occasions had attended upon the respondent, nor any of the former servants, testified to her refusal to prepare meals or to have them prepared during the time they were employed. The testimony, taken as a whole, while sustaining the allegation that she did so refuse on occasion, does not clearly and satisfactorily show persistent and continued neglect of marital duty in this particular.

The testimony of disinterested witnesses fairly warrants the conclusion that the respondent scolded and found fault with the libelant frequently; that her language was quarrelsome and nagging,” as one of the witnesses described it; that at times she had fits of temper in which she addressed him in violent and abusive language, and applied to him opprobrious epithets. It is to be observed, however, that in some of the instances referred to by these witnesses her scolding and quarrelsome conduct is explained, if not wholly excused, by the fact that she was suffering from a nervous disorder attendant upon menstrual sickness, and in other instances by the nervous condition she was in about the time of her confinement. In other instances it is explained, but not excused, by the fact that she was under the influence of intoxicating liquor. It is to be observed further that the testimony of some of these witnesses tends to show that the angry and abusive conduct was not all on one side. One of the neighbors, called as a witness by the libelant, admitted that he heard the libelant’s voice too in an angry tone, sometimes in reply to her and sometimes not. Another witness, a servant whose other testimony shows that she was not biased in favor of the respondent, when asked whether she had ever seen the libelant strike the repondent, testified as follows: “ I won’t say strike her, but they had a quarreling match there one night, when he pushed her and she went up pretty hard against the back door, and the panel of the door broke by her coming up against it. Q. Did you see any marks on her face ? A. Yes, both her eyes were black.” Being questioned further about this occurrence the witness testified : “ A. No, I cannot say I saw him strike her, because when they started to fight they went in the dining room ; I got excited and I left. Q. Immediately after you came out you saw Mrs. Schulze with two black eyes ? A. No, not until the day after her eyes got black. Q. They got black the day after? A. Yes, sir. Q. Did you see anything wrong with her eyes after; did you take notice to anything being wrong with her eyes after the quarrel? A. No, I did not, only that they were black, that is all.” It will not be out of place to refer also in this connection to the testimony of the libelant himself as to this subject of personal violence inflicted upon her. Being asked whether he ever struck or beat his wife, he testified : “ No, I did not strike her; I have pushed her out of my road, when she would get in my road; when I would come downstairs, she would follow me and I would go upstairs, and she would be this close at my heels, perhaps a foot, and I would push her out of the road, and if she would strike on the couch.'she would lie there and scream at the top of her voice for five minutes. I held her mouth shut so that she could not make so much noise.” There is a manifest and very substantial difference between a course of conduct consisting of false, malicious, abusive, humiliating and insulting accusations persistently, continuously, and without provocation addressed by the respondent to the libelant, and the scoldingrand fault-finding attributable to irritability caused by disease or nervous disorder, and between conduct of the former kind and' angry altercations in which both participate. Upon a full view of all of the evidence we are unable to conclude that it clearly and satisfactorily shows such a continued course of conduct as we at first described, although we think it does show, that at times, the respondent was peevish, inexcusably fault-finding and ill-tempered.

There is no evidence that she ever inflicted physical violence upon the libelant, while the evidence does show that he inflicted such violence upon her upon the occasions above referred to; and if the respondent is to be believed, these were not the only instances. No witness other than the libelant testifies that she ever threatened him by word or act with personal violence, except as about to be stated. The nurse, who attended upon her at and after her confinement in the fall of 1894, testified that she saw nothing particularly wrong during the period of nineteen days that she was there until the day before she left. A dispute then arose between them as to the treatment of their boy, then less than two years old. The child cried because he wanted to sleep with his mother, and the father — property, no doubt — would not permit it. This angered her, and in the course of the dispute she picked a cup to throw at her husband, but was prevented by the nurse. The testimony as to her subsequent conduct the same night bears out what we have said with regard to her nervous disorder rather than aggravates the act charged against her. The respondent testified as to another occasion as follows: “ I fired two small cups down the steps at him one night; he made me so angry for the way, the names he called me, and accusing me of going around with men, which I have never done, and he was coming up after me and I fired them down.”

With these two exceptions, the allegation that the respondent made threats of personal violence against the libelant depends entirety upon his testimony, that on one occasion she said “ if she was a man she would kill me and hang for me; ” that on another occasion, evidently after these proceedings were instituted, she said “ if I would not stop them she would get George Stephenson to lick me; ” that when the libelant threatened her with this suit she answered that before she would get through with him he would not have any store or anything else; and that once, after a quarrel, she called after him, “You scoundrel, I will fix you.” The foregoing is a fair summary of the libelant’s testimony as to threats uttered by the respondent. We have no disposition to belittle these allegations, but the comment that is obviously suggested is that the first was not a positive threat; that the second was after the libel was filed; that the third does not fairly bear the construction that she intended to break up his business ; and the fourth does not necessarily imply a threat to do bodily harm. But before the question whether the alleged utterances were such as to create a reasonable apprehension of personal violence, and constitute legal cruelty, need be considered, it must be found as a fact that the respondent made them. She not only denies having made them, or any other threat to do him bodily harm, but makes the counter charge that he threatened to kill her and brought home a revolver for that purpose. Applying all the tests of credibility which may be applied in the consideration of the conflicting testimony of two witnesses, who are equally interested in the result, we cannot say that the testimony of the libelant as to this particular allegation of the libel is entitled to greater credit than that of the respondent. We are therefore compelled to conclude that the allegation of threats of personal violence is not established by the preponderance of testimony, except as stated in the immediately preceding paragraph of this opinion.

The libelant testifies that in consequence of her conduct he is. a “ physical wreck.” This assertion depends upon his testimony alone ; no physician was called to testify as to his condition of health or to express an opinion as to his nervous condition. It is to be noticed further that the parties lived in the same house, and more or less frequently slept in the same bed, down to the time of the filing of the libel, and continued to live in the same house for some time afterward. This tends, in some degree at least, to dispel belief that he had a reasonable apprehension of personal violence or was subjected to such treatment as endangered his life or health and rendered cohabitation unsafe.

Without discussing the evidence as to the specific allegations of the libel in greater detail, we remark generally, in conclusion, that if all of the testimony of the libelant is to be accepted as verity, and all of the testimony of the respondent in conflict therewith is to be rejected as unworthy of belief, it would be stating the case mildly to say that her course of conduct was such as to render his condition intolerable and life burdensome. On the other hand, if her testimony (very little of which has been specifically referred to in the foregoing discussion) is to be credited as a whole and his rejected, she is the aggrieved party and he by far the more culpable of the two. It is impossible to determine on which side of the unhappy controversy the whole truth lies; probably on neither. But upon a view of all the relevant facts that are established by the preponderance of the credible testimony, we are constrained to hold that, while the respondent is not by any means free from blame for the deplorable condition that exists between these parties, the charge of cruel and barbarous treatment is not satisfactorily proved. Therefore the first two assignments of error are sustained. This conclusion renders it unnecessary to discuss the other assignments.

The decree is reversed and the libel dismissed at the costs of the appellee.


author: Beavek, J.,

text:
    Mervine, Appellant, v. Arndt.

      Contracts — Sale—Delivery—Auction.
    Where a piece of personal property is put up at auction and knocked down to a bidder, and the terms of the sale are cash or a note with approved security, and it appears that no cash or note was given, and that no actual delivery or tender of the article was made, the contract is executory, and not a sale, and no action can be maintained against the bidder for the price.
    Argued Feb. 25, 1907.
    Appeal, No. 9, Jan. T., 1907, by plaintiff, from judgment of C. P. Monroe Co., Feb. T., 1905, No. 9, on verdict for defendant in case of Wade H. Mervine v. Thomas Arndt.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for price of goods sold at auction. Before Staples, P. J.
    At the trial plaintiff presented this point:
    If the jury believe from all the evidence that the sale of the potato digger to Thomas Arndt, the defendant, was at a public sale or vendue; that the said defendant bid the price or sum of $45.25 on said digger, and that was the highest bid on the same; that after the digger was knocked down to the defendant, in his presence and hearing, the defendant made no objection to the sale, and further, that the plaintiff, nor anyone lawfully acting for him, prevented the defendant from taking possession of and removing the digger, then the said sale was executed upon the digger being so knocked down to the defendant, the only thing that remained was payment for the same, and the plaintiff is entitled to recover the price so bid for the same. Answer: Refused.
    April 15, 1907:
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) in giving binding instructions for defendant, and (6) answer to point as above.

      Rogers L. Burnett, for appellant.
    — The fall of the hammer constitutes an acceptance : Fisher v. Seltzer, 23 Pa. 308.
    As between the parties, delivery is not absolutely essential: Winslow, Lanier & Co. v. Leonard, 24 Pa. 14 ; Gonser v. Smith, 117 Pa. 452; Com. v. Fleming, 130 Pa. 138.
    The question of delivery should have been submitted to the jury : Brown v. Reber, 30 Pa. Superior Ct. 114.
    In this case the measure of damages is the contract price: Girard v. Taggart, 5 S. & R. 19; Rinehart v. Olwine, 5 W. & S. 157; Benjamin v. Zell, 100 Pa. 33; Field v. Schuster, 26 Pa. Superior Ct. 82; Ballentine v. Robinson, 46 Pa. 177 ; Unexcelled Fireworks Co. v. Polites, 130 Pa. 536 ; Reynolds vCallender, 19 Pa. Superior Ct. 610 ; R. R. Co. v. Seager, 7 Pa. Superior Ct. 268 ; Com. v. Fleming, 130 Pa. 138.

      Cicero Gearhart, for appellee,
    cited : Mitchell v. Zimmerman, 109 Pa. 183 ; Hand v. Matthews, 208 Pa. 149; Woolsey v. Axton, 192 Pa. 526.
   Opinion by

Beavek, J.,

The court below having directed a verdict for the defendant, the case is to be considered upon the testimony of the plaintiff alone. Several issues of fact, including an important one, as to whether or not the defendant had actually made the bid, upon which the personal property, for the recovery of the purchase price of which this- action of assumpsit was brought, was knocked, down, which was stoutly denied by him, and in which he was strongly corroborated, need not be considered. Whether the sale was for cash or upon credit, upon the condition that a note with approved security be given, is, in our view of the case, immaterial. No cash was paid and no note given or tendered.

The law of the case is sufficiently and succinctly stated in Hand v. Matthews, £08 Pa. 149: “ ‘ An absolute payment in cash .... is always implied when nothing is said: ’ Benjamin on Sales, sec. 706. In Welsh v. Bell, 32 Pa. 12, Mr. Justice Strong said (p. 17) : ‘ No agreement having been made for a credit, it was of course a contract for a cash sale, and without actual delivery the property would not pass to the vendee until payment of the consideration.’ In Mitchell v. Zimmerman, 109 Pa. 183, it was held that the above rule that the title to goods sold does not pass to the purchaser until the price is paid, unless payment is waived, applies to auction sales.”

There is no allegation of an actual delivery to the defendant. He did not assume possession, nor did he claim title; nor is there any evidence of the waiver of payment by the plaintiff. Did title vest in him, so as to entitle him to the possession, when the hammer fell ? If it did, the present action of assumpsit would lie. If it did not, it would not lie and the court was entirety right in holding that the contract was executory and that the action should have been not for the purchase price of a sale, which is an executed contract, but for the difference between the bid of the defendant — in which case the fact as to whether or not he made a bid would have been the important question — and the price at a resale.

This subject bas been lately fully considered by us in Brown v. Reber, 30 Pa. Superior Ct. 114, in which we held, in accordance with all the authorities, that, upon the sale of a horse at auction, upon the condition that the purchase money should be paid in cash or by a note with sufficient security, and the seller retains possession of the horse pending the production of the note with security, and the horse dies in the meantime, the seller and not the purchaser must sustain the loss. Until the note is produced, the title does not pass.

The precise question which we have here was not involved in that case, but the controlling principle was fully considered and the authorities quoted in Hand v. Matthews, 208 Pa. 149, separately discussed.

Although the terms of the sale were not shown in this case, it is clear, from all the authorities, that the title did not pass until the machine was paid for or the purchase price secured, unless actual delivery was made or payment was expressly waived. So far as the testimony in the case shows, the transaction ended with the declaration of the auctioneer that the property was sold to the defendant. There was no tender of possession on the one hand, nor of payment of money or tender of security on the other. The contract was, therefore, executory and not a sale, which, as already said, is an executed contract. If the plaintiff had refused to deliver possession, it is very clear that the defendant could not have maintained replevin ; or, if a creditor of the defendant had levied upon the potato digger, which was the article the sale of which was in question, he could not have maintained a levy or justified a sale. On the other hand, if the defendant had removed the machine without payment of, or security for, the amount of his alleged bid, the plaintiff undoubtedly could have maintained replevin. The court below was clearly right in holding that title had not passed to the defendant and that, therefore, the plaintiff was not entitled to recover under the pleadings.

Judgment affirmed.


author: Morrison, J.,

text:
    Wheeler’s License.
    April 15, 1907 :
    Argued March 5, 1907.
    Appeal, No. 17, March T., 1907, by Cyrus S. Wheeler, from order of Q. S. Clinton Co., Jan. T.', 1907, No. 11, refusing a liquor license.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y. Head and Beaver, J J.
    Affirmed.
   Opinion by

Morrison, J.,

This appeal raises substantially the same questions raised in the appeal of Richard J. Free at No. 19, March Term, 1907, in this court, in which an opinion has this day been filed, post, p. 348, and on the authorities cited and the reasons given in that opinion, the order of the court below is affirmed, and the appeal dismissed, at the costs of the appellant.


text:
    Hevner’s License.
    April 15, 1907:
    Argued March 5, 1907.
    Appeal, No. 18, March T., 1907, by T. H. Hevner, from order of Q. S. Clinton Co., Jan. T., 1907, No. 39, refusing a liquor license.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, -JJ.
    Affirmed.
   Opinion by

Morrison, J.,

This appeal raises substantially the same questions raised in the appeal of Richard J. Free at No. 19, March Term, 1907, in this court, in which an opinion has this day been filed, post, p. 348, and on the authorities cited and the reasons given in that opinion, the order of the court'below is affirmed, and the appeal dismissed, at the costs of the appellant.


text:
    Seasholtz’s License.
    April 15, 1907 :
    Argued March 5, 1907.
    Appeal, No. 20, March T., 1907, by Charles W. Seasholtz, from order of Q. S. Clinton Co., Jan. T. 1907, No. 62, refusing a liquor license.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
   Opinion by

Morrison, J.,

This appeal raises substantially tbe same questions raised in the appeal of Richard J. Free at No. 19,’ March Term, 1907, in this court, in which an opinion has this day been filed, post, p. 348, and on the authorities cited and the reasons given in that opinion, the order of the court below is affirmed, and the appeal dismissed, at the costs of the appellant.


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    Crawford’s License.
    April 15, 1907 :

      Liquor law — Petition for license — Time of filing — Act of May 13, 1887, P. L. 108.

    The requirement of the Act of May 13, 1887, P. L. 108, that every application for a liquor license shall be filed three weeks before the first day of the session at which the same is to be heard is mandatory; and the court has no authority to grant a license where the application has been on file for only nineteen days before the first day of the session.
    Argued March 5, 1907.
    Appeal, No. 21, March T., 1907, by L. E. Geary et al., from order of Q. S. Clinton Co., Jan. Term, 1907, No. 76, granting a liquor license In re Application of J. A. Crawford for a retail liquor license.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Petition for a retail liquor license. Before Green, P. J.
    The opinion of the Superior Court states the case.

      Errors assigned was order of the court granting a license.

      W. C. Kress, for appellant.
    — The provisions of the third section of the act of May 13, 1887, providing for the adoption of rules by the court, are mandatory, and the rules adopted in pursuance thereof are as binding on the court as the provisions of the act itself: Kahrer’s License, 12 Pa. C. C. Rep. 12; Keiper’s License, 21 Pa. Superior Ct. 512.

      George A. Brown, for appellee.
   Opinion by

Morrison, J.,

By rule or standing order of the court, in pursuance of the Act of May 13, 1887, P. L. 108, the license court of Clinton county was fixed for the fourth Monday of November in each and every year. In 1906 the fourth Monday in November was the twenty-sixth day of the month. J. A. Crawford, appellee, filed his petition for a hotel license on November 7, 1906, only nineteen days before the sitting of the license court. At and before the date of the sitting of the court, exceptions were filed and objections presented to the court on the ground that the applicant was not entitled to a license because his petition had only been on file for the period of nineteen days.

The fourth section of the act of May 13, 1887, reads: “ Every person intending to apply for a license as aforesaid in any city or county of this commonwealth, from and after the passage of this act, shall file with the clerk of the court of quarter sessions of the proper county, his, her or their petition at least three weeks before the first day of the sessions of the court at which the same is to be heard,” etc.

The standing rule and order of the court, known as rule No. 3, plainly provided that the petition must be filed with' the clerk of the court of quarter sessions at least three weeks before the day herein fixed for the beginning of the license court, etc.

The record of the court shows that the license court sat on November 26, 1906, and on that day adjourned sine die. It further appears that on December 18, 1906, the court made an order granting the license of the appellee.

The assignments of error squarely raise the question of the power of the court to disregard the provisions of sec. 4 of the act of May 13, 1887, and its own rule, and grant a license on a petition which had only been filed nineteen days before the sitting of the license court. It ought not to be necessary to decide such a question. The legislature plainly provided, as a condition precedent to the granting of a license, that the petition therefor shall be on file with the clerk of the court of quarter sessions at least three weeks before the first day of the sessions of the court at which the same is to be heard. It is the duty of courts to enforce the laws and also to obey them. If the learned court below had the power to grant the license in question on a petition which had only been on file nineteen days, it must have had the power to grant the license on a petition filed a much shorter length of time. It is difficult for us to understand how the learned court reached the conclusion that it had power to grant this license.

In Harris, Appellant, v. Mercur, 202 Pa. 313, our Supreme Court (p. 318) said: “ The commands of a statute cannot be waived or dispensed with by a court. They require implicit obedience as well from the court as from its suitors.: Bleecker v. Wiseburn, 5 Wend. 136. ‘ It has been repeatedly held,’ says Mr. Sedgwick (Construction of. Statutory and Constitutional Law, p. 277), ‘ that courts have- no dispensing power, even in matters of practice, when the legislature has spoken. Thus, where a statute declares that a judge at chambers may direct a new trial if application is made within ten days after judgment, it has been said that he can no more'enlarge the time than he can legislate in any other matter.’ When a statute fixes the time within which an act must he done, the courts have no power to enlarge it, although it relates to a mere question of practice.”

But we are not without authority on the precise question raised in this appeal. In Keiper’s License, 21 Pa. Superior Ct. 512, p. 517, we said: “ The court must fix the day of hearing, every application must be filed three weeks before the first day of the session of the court at which the same is to be heard, and the clerk must publish the list during the period prescribed -by the statute, prior to the time of hearing. These provisions are for the purpose of making certain that the public shall have notice of the time when these matters of public concern are to be heard and disposed of by the court. The requirement that every application for the grant of a license shall be filed three weeks before the first day of the session at which the same is to be heard, is mandatory. . . . The source from which the court below derived any power which it had in the premises was the act of 1887 ; the appellee had not complied with the provisions of that statute ; he had no right to be heard upon his application, and the court had no authority to grant him a license as upon an original application.”

So Ave say in the present case. The applicant had not caused his petition to be filed with the clerk of the court of quarter sessions for the statutory period, and the learned court below erred in not following the plain terms of the statute and dismissing his petition.

The assignments of error are sustained, and the order of the court granting a license to the appellee is reversed at the costs of the appellee.


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    Bastian v. Paulhamus, Appellant.

      Judgment — Opening judgment — Evidence—Physician—Malpractice.
    A judge to whom an application is made to open a judgment sits as a chancellor, and the appellate court will examine the record only to determine whether the discretion vested in him has been properly exercised, and will review the action of the court below only when it clearly appears that it has been abused.
    A rule to open a judgment entered on a judgment note is properly discharged where it appears that the note was given for medical services, and that the defense set up, alleging malpractice on the part of the plaintiff, was not supported by the testimony of the only medical witness examined.
    Argued March 6, 1907.
    Appeal, No. 20, March T., 1906, by defendant, from order of C. P., Lycoming Co., Sept. T., 1900, No. 165, refusing to open judgment in case of C. B. Bastían v. G. H. Paulhamus.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beater, JJ.
    Affirmed.
    Rule to open judgment.
    Hart, P. J., filed the following opinion.
    This is an application to open a judgment entered on a judgment note given by the defendant to the plaintiff for medical attendance and medicine, and to let the defendant into a defense.
    The evidence shows that the plaintiff, a practicing physician, attended different members of the family of the defendant professionally, and more particularly the wife of the defendant, from 1897 to 1900.
    In 1897 defendant’s wife gave birth to her sixteenth child. The plaintiff attended her in that confinement. The patient did not get along well thereafter and plaintiff was frequently called in to attend her and treat her. The patient did not improve under the treatment, had much pain and distress, and her mind more or less affected, and was finally taken to the Williamsport- Hospital, where an examination made by Dr. Glosser and Dr. Nutt showed a diseased uterus — “the womb much injured and out of place,” the uterus much inflamed and showing what the physicians “supposed might be the beginning of cancer.” An operation was performed and the uterus removed, after which the patient regained her health and increased in weight from ninety pounds to 140 pounds.
    The plaintiff treated the patient for womb disease, as is plainly shown by the testimony of the defendant. He says, “ Pie came and visited her and gave her local treatment occasionally. Q. What were the treatments ? A. I do not know, really. Some local treatment that he inserted on the womb. Q. Did he tell you at any time what was the trouble? A. No, he never told of the condition she was in.
    Dr. W. E. Glosser, who assisted at the operation, is called as a witness for the defendant, who gives it as his opinion that the condition of the uterus was due to a tear of the cervix at childbirth, but cannot say' at which birth, might have been at any one of the sixteen, most likely at first or second, and which he says is of frequent occurrence ; and says, “sometimes these tears heal up themselves, they heal up to such an extent that they never give any trouble afterwards, but where a woman bears children frequently they are usually kept irritated instead of getting better of their own accord. - Sometimes they treat them locally, sometimes with very good effect, sometimes with practically no effect.” “ Q. From the examination that you made before the operation, state whether or not, in your opinion, the attending physician had used proper care and skill in treating this womb? A. This is a question you can’t tell; because a case may look one way one day, and may look entirely different to another physician who is equally skilled.”
    The witness did not say that the plaintiff’s treatment was unskillful or negligent, and says the operation was performed in time to effect a cure. That operations are' not performed in over ten per cent of cases of uterine tears, and again says there was no evidence of negligence on the part of the plaintiff in his treatment of the case.
    April 15, 1907:
    Negligence is not presumed in any case, and before the defendant can avail himself of such defense to this judgment, he must prove negligence by the testimony of witnesses competent to judge of such negligence.
    The only witness called competent to testify upon the question of the plaintiff’s negligence is Dr. Glosser, rvho does not testify that the plaintiff was either negligent or unskillful, but on the other hand positively testiñés that he discovered no evidence that would justify a conclusion from a medical standpoint that the treatment followed by the plaintiff was not proper and such as might have been followed by a skilled physician.
    DeLong v. Delaney, 206 Pa. 226; Wurdemann v. Barnes, .92 Wis. 206 (66 N. W. Repr. Ill) ; Wood v. Barker, 49 Mich. 295 (13 N. W. Repr. 597) ; Spaulding v. Bliss, 83 Mich. 311 (47 N. W. Repr. 210), and kindred cases, establish the rule that medical testimony is necessary to establish the fact as to whether or not a certain treatment was negligent or not; and that without the aid of such testimony no recovery can be had for negligence, and for the same reason could not be made available as a defense in resisting a claim for payment of medical services rendered.
    And now, February 12, 1906, rule discharged.

      Error assigned was the order of the court.

      J. E. Strieby, for appellant.

      i

      Emerson Collins, for appellee.
   Per Curiam,

This is an appeal from an order discharging a rule to- show 'cause why judgment entered by confession upon a promissory note in July, 1900, should not be opened. The note was given for medical services rendered by the plaintiff to the defendant’s wife and other members of his family. It is not alleged that any fraud was practiced upon the defendant to obtain the note, but that the plaintiff was negligent in the treatment of the defendant’s wife, and that this fact was not discovered by the defendant until later. The defendant’s delay in moving to open the judgment is a circumstance which would be entitled to consideration. But apart from that, the allegation of negligence was not sustained by the quantity and quality of proof which is required to move a chancellor to open a judgment for services admittedly rendered. First, it does not clearly and satisfactorily appear that the plaintiff did not make the examination which it is claimed ought to have been made in the exercise of due skill and care. Second, the medical witness who was called by the defendant to establish want of skill in this particular would go no further than to say that “ it was a little unfortunate that examination was not made,” but in the same connection he testified, “ I would not say that it reflected on the skill of the physician, even if he found that treating her upon the lines of his conception of the case and the trouble did not improve her.” This extract with others quoted in the opinion of the learned president judge shows the tenor of this witness’s testimony. To have opened the judgment in order that a jury might be permitted to guess first, that the plaintiff did not make the examination which it is claimed he ought to have made, and second, that he was negligent in not doing so, would not have been warranted in the exercise of a sound discretion. The learned judge below, in an opinion filed, has fairly reviewed the salient features of the testimony bearing upon the question, and has made it quite clear that a case was not made out for opening the judgment. We will add nothing further to what he has said upon the subject, but will only suggest what is so well settled as not to require citation of authority, that the judge to whom such application is made sits as a chancellor, and the appellate court will examine the record only to determine whether the discretion vested in him has been properly exercised, and will review the action of the court below only when it clearly appears that it has been abused. In our view the court wisely exercised the discretion vested in it. Therefore the order is affirmed and ap.peal dismissed at the cost of the appellant.


text:
    Commonwealth, Appellant, v. Mitchell.

      Costs — Criminal law — Taxation of costs — Appeals—Record—Evidence.

    An appellate court will not review a taxation of costs by the common pleas where the adjudication complained of relates to the number and materiality of the witnesses in attendance, length of time they were in attendance, the number of miles traveled by them, or by the officer or other person serving the subpcena, and similar matters of facts. These matters cannot be considered because the evidence upon which they are based is not brought up with the record. Errors of law, however, apparent on the face of the record will be reviewed. The same rule applies to an appeal from the taxation of costs by the quarter sessions.
    Where, in a criminal case, the commonwealth pays costs which are wholly unauthorized by law, and the prisoner has no opportunity to object until the costs are taxed against him at the end of his term of imprisonment, he is not estopped from objecting to the illegal costs taxed against him.
    Argued March 6, 1907.
    Appeal, No. 1, March T., 1907, by plaintiff, from order of Q. S. Lycoming Co., Dec. T., 1906, No. 67, sustaining exceptions to taxation of costs in case of Commonwealth v. Robert Mitchell.
    Before Riere, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Exceptions to taxation of costs.
    Hart, P. J., filed the following opinion :
    The questions here raised come before us on an appeal from the taxation of costs by the clerk of this court.
    We do not agree with the contention of the county solicitor, that a defendant is bound by bill of witness’ costs as certified by the district attorney, and that he is precluded from questioning the correctness of the same after the county has paid, the witness’ costs thus certified, in the absence of evidence that the defendant had a knowledge of the amount thereof or waived objections thereto before the same was paid by the county.
    The defendant in this case was sentenced to imprisonment in the county jail for a period of six months, and to pay a fine and the costs of prosecution, and was, as usual in such cases, immediately upon being sentenced, conducted by the sheriff to the county jail, and, therefore, had no opportunity of examining the bill of costs after sentence was pronounced.
    The costs when paid by a defendant ai*e usually, if not universally, paid at the end of the term of imprisonment, and then usually is the first opportunity a prisoner has of learning the amount of costs he is expected to pay.
    To sajq therefore, that a prisoner cannot, at his first opportunity, dispute a bill of costs which he is required to pay in order to secure his discharge from, imprisonment, would, it séems to us, be too manifestly unjust to be tolerated in a court of justice; and, whilst the certificate of the district attorney was a justification to" the county to pay the costs of .the witnesses, yet where manifest error is shown, this certificate cannot preclude inquiry into its correctness when otherwise manifest injustice and wrong would result to a defendant who has not had his opportunity to examine into its correctness until he is called upon to pay the same.
    We find from the facts as found by the cleric of court, George Gates, a witness, is credited with five days’ attendance at court at $1.00 per day, and was paid $5.00, when in fact he was in attendance but one day and is entitled to but $1.00.
    That H. C. 'Kellenbach, a witness, is credited, and was paid $5.00 for five days’ attendance at court, when he was in fact in attendance but four days and entitled to but $4.00.
    That George Steigleman, a witness, is credited with being in attendance at court six days and was paid $6.50, when in fact he was in attendance but three days and entitled to but $3.50;
    That Clarence Zechman, a witness, is credited with six days’ attendance at court and was paid $6.50, when he was in fact in attendance but three days and entitled to but $3.50.
    That Curt Weigand, a witness, is credited with being in attendance three days, and with 424 miles travel, and was paid $15.72, when in fact this witness was not in attendance at all and had been excused from attendance and was entitled to no part of said $15.72.
    This makes in all the sum of $26.72 paid for witness’ fees and mileage wholly unauthorized by law so far as this defendant is concerned. '

      April 15, 1907:
    We sustain tlie exceptions to the taxation of costs so far as the items above referred to are concerned, and direct that the same be deducted from the commonwealth’s bill of costs, as affecting the defendant, and that he be allowed a credit to that amount on the judgment entered against him.
    The other exceptions to the taxation of such costs are overruled.

      Error assigned was in sustaining exceptions to adjudication.

      J. F. Strieby, for appellant.
    . Otto 6r. Kaupp, for appellee, cited: McCauley’s App., 86 Pa. 187; Harger v. Commissioners of Washington County, 12 Pa. 251; Kunkle’s Est., 21 Pa. Superior Ct. 200; Webster v. Coal & Coke Co., 201 Pa. 278.
   Per Curiam,

An appellate court will not review a taxation of costs by the common pleas where the adjudication complained of relates to the number and materiality of tbe witnesses in attendance, length of time they were in attendance, the number of miles traveled by them, or by the officer or other person serving the subpoena, and similar matters of facts. These matters cannot be considered because the evidence upon which they are based is not brought up with the record. Errors of law, however, apparent on the face of the record will be reviewed : Hartley v. Weideman, 28 Pa. Superior Ct. 50. The same rule applies to an appeal from the taxation of costs by the quarter sessions. It is not claimed that as to these matters the ruling of the court below can be reviewed, but an elaborate argument is made to show that the court committed error of law, which is apparent upon the face of the adjudication, in not holding, in effect, that the defendant was estopped from questioning the bill of costs in the particulars referred to in the adjudication. This contention is based on the fact that the county began paying the witnesses on the third day after the defendant was sent to prison, and that the defendant had not excepted to the bill of costs prior to that time. If this contention of the county prevails it will be enabled to obtain reimbursement from the defendant of the amount of illegal costs that it paid. Thus, although the defendant was sentenced to pay, inter alia, legal costs only, he will be compelled to pay costs which are admittedly illegal. To state the question is to answer it, and we need add nothing further to what the learned president judge of the court below has said upon the subject. Even if it be conceded for the sake of the argument that the question is one of law arising upon the adjudication, the appeal is without merit.

The order is affirmed at the cost of the appellant.