text:
    Johnston’s License.

      Liquor law — Revocation of license — Selling to minors — Petition.
    The allegation in a petition for the revocation of a retail liquor license that the respondent “grossly violated the laws of the commonwealth by selling yinous, spirituous, malt and brewed liquors to the following girls, all minors,” naming them, charges in sufficiently explicit» and precise terms a violation of sec. 17 of the Act of May 13, 1887, P. L. 108, which makes it unlawful to furnish by sale, gift or otherwise any spirituous, vinous, malt or brewed liquors to a minor. This section was not repealed, nor was the burden of proving that the respondent knew, or was negligent in not ascertaining, that the persons to whom he sold or furnished liquors were minors cast upon the petitioner of the Act of May 25, 1897, P. L. 93.
    Argued Oct. 20, 1908.
    Appeal, No. 62, April T., 1909, by Edna Johnston, from order of Q. S. Allegheny Co., June T., 1908, No. 44, revoking liquor license In re Edna Johnston’s License.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for revocation of retail liquor license.
    The facts appear by the opinion of the Superior Court.

      Error assigned was the order of the court revoking license.

      Ernest E.'Jones, for appellant.

      L. S. Levin, with him W. B. Rodgers, for appellee.
    November 9, 1908:
   Opinion by

Rice, P. J.,

It appears by the order from which this appeal was taken that after rule, answer and hearing in open court, the court adjudged that the appellant had violated the laws of. the commonwealth in relation to the sale of intoxicating liquors, by negligently permitting the selling and furnishing of such liquors to minors as charged in the petition upon which the rule was granted. Reading this recital of the facts and proceedings in connection with the averments of the petition, which are made part of the recital by reference, it is apparent that the order was based upon proof and a finding of facts, which, if the proceeding was properly instituted, warranted, indeed required, the revocation of the license: Section 8, Act of May 13, 1887, P. L. 108; Carlson’s License, 127 Pa. 330; Campbell’s License, 8 Pa. Superior Ct. 524; Arnold’s License, 30 Pa. Superior Ct. 93. This is not seriously questioned by the appellant’s counsel. He contends for but one proposition, and that is, that sufficient jurisdictional facts were not set forth in the petition to warrant the court in hearing any testimony as to the sale of liquors to minors. This proposition cannot be sustained. The statute does not prescribe that the only mode in which such proceeding can be instituted is by sworn petition specifying the facts upon which the revocation is asked. In Carlson’s License, 127 Pa. 330, the court entered the rule to show cause of its own motion upon information obtained in the trial of a criminal case, and after notice to the licensee of the rule, and a hearing at which testimony for and against the rule was given, revoked the license. See also Dolan’s Appeal, 108 Pa. 564. And where the application for the rule to show cause is based on an ex parte affidavit or petition, all that is required to .give the court jurisdiction to grant the rule, and to proceed to a hearing after notice to the respondent, is that the act alleged to be a violation of law be specified in the petition or affidavit with reasonable certainty: Revocation of Licenses of Meenan et al., 11 Pa. Superior Ct. 579. The same exactness is not required as in indictments: McGinley’s License, 32 Pa. Superior Ct. 324: The allegation of the petition in the present case, that the appellant “grossly violated the laws of. the commonwealth .... by selling vinous, spirituous, malt and brewed liquors to the following girls, all minors, ” naming them, charged in sufficiently explicit and precise terms a violation of law relating to the sale of liquors, namely, sec. 17 of the act of 1887, which makes it unlawful to furnish by sale, gift or otherwise any spirituous, vinous, malt or brewed liquors to a minor. This section was not repealed, nor was the burden of proving that the respondent knew, or was negligent in not ascertaining, that the persons to whom he 'sold or furnished liquors were minors, cast upon the petitioner by the Act of May 25, 1897, P, L. 93: Commonwealth v. Terry, 15 Pa. Superior Ct. 608. It follows that it was not necessary to aver such knowledge or negligence in the petition.

' The order is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Gross, Appellant, v. Ricchezza.

      Affidavit of defense — Goods sold and delivered — Practice, C. P. — Part of claim appearing to be due,
    In an action for foodstuffs sold and delivered, an affidavit of defense is sufficient which avers that the defendant never ordered the goods, and that they were so unsound, so- unfit for household consumption, so unmerchantable, so filled with sand or grit and so sour that they were wholly useless and worthless.
    Where' a plaintiff in his rule for judgment for want of a sufficient affidavit of defense, does not demand judgment for part of his claim appearing to be due, the court cannot be convicted of error in not making an order permitting the plaintiff to take judgment for such part of his claim.
    Argued Oct. 21, 1908.
    Appeal, No. 116, Oct. T., 1908, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1908, No. 2,340, discharging rule for judgment for want of a sufficient affidavit of defense in case of Ignatius Gross v. Antonio Ricchezza.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered,'
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Superior Court states the case.

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

      C. E. Blackburn, for appellant.

      T. J. Meagher, for appellee, filed no printed brief.
    November 9, 1908:
   Per Curiam,

, The plaintiff’s claim consists of two branches, first, for the price of foodstuff which he alleges and the defendant admits he ordered, second, for the.price of similar goods delivered to the defendant which the latter alleges he did not order. As to the second branch of the claim the defendant alleges, in addition to the fact that he did not order the goods, that they were so unsound, so unfit for household consumption, so unmerchantable, so filled with sand or grit and so sour that they were wholly useless- and worthless. This fairly puts in issue the question of the plaintiff’s right to recover the price he charged for the goods and entitles the defendant to a jury trial upon that question, if upon no other.

It is to be noticed that the plaintiff did- not in his rule or otherwise demand judgment for part of his claim in accordance with the practice recommended in Moore v. Eyre, 32 Pa. Superior Ct. 259. As was said in that case, so it may be said here: The rule taken was simply for judgment for want of a sufficient affidavit of defense, the exception was a general one to the discharge of this rule, the single assignment of error is to the same effect and there is nothing to indicate that the plaintiff demanded judgment for less than his whole claim or asked the court to consider the question' as to his right to judgment for part thereof. Having shown that he was not entitled to judgment for his whole claim, we think it clear that the court ought not to be convicted of error in not making an order permitting the plaintiff to take judgment for part of his claim, even if it be conceded, which we do not decide, that the affidavit of defense as to the goods admittedly ordered by the defendant was not sufficient.

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


author: Per Cxjriam,

text:
    Jones, Appellant, v. Jones.

      Divorce — Alimony pendente lite — Discretion of court — Review—Appeals.

    The appellate court will hot review the discretion of the court of common pleas in making an order in divorce on a husband for $10.00 a week alimony pendente lite, where the husband fails to show by the preponderance of evidence.that his wife had agreed to a sum of $5.00 per week, and also fails to support by adequate proof that she had sufficient resources of her own for her adequate support, and that his estate was not sufficient to justify the allowance made by the order.
    Argued Oct. 23, 1908.
    Appeal, No. 157, Oct. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1908, No. 256, awarding alimony pendente lite in case of Charles T. Jones v. Catherine C. B. C.' Jones.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Libel for divorce.
    Rule for alimony pendente lite.
    The facts appear by the opinion of the Superior Court.

      Error assigned was in making absolute rule for alimony pendente lite for $10 DO per week.

      John F. Gorman, for appellant.
    There was an agreement, when the parties separated, that $5.00 per week should be paid, and we submit that under the law the lower court was wrong in ordering the payment of $10.00 per week to appellee under the circumstances disclosed by the testimony: Bloom v. Bloom, 8 Pa. Dist. Rep. 563; Bennett v. Bennett, 28 Pa. C. C. Rep. 507; Powell v. Powell, L. R. 3 P. & D. 55.
    The law is well settled that under circumstances such as these a wife, having a separate estate of her own given her by the husband, is not entitled to an allowance for alimony: Shoemaker v. Shoemaker, 5 Pa. Dist. Rep. 449; Culbertson v. Culbertson, 13 Pa. Dist. Rep. 442; Garretson v. Garretson, 14 W. N. C. 566; Salsberg v. Salsberg, 10 Kulp, 378; Davis v. Davis, 12 Luz. L. Reg. Rep. 111.

      William H. Peace, for appellee.
    The allowance or non-allowance of alimony, its amount and duration are entirely matters within the discretion of the court and not subject to review, except in cases of gross and palpable abuse of that discretion: Breinig v. Breinig, 26 Pa. 161; McClurg’s App., 66 Pa. 366; Waldron v. Waldron, 55 Pa. 231; Fernald v. Fernald, 5 Pa. Superior Ct. 629; Grifffn v. Griffin, 23 Howard’s Prac. 189; Moncrief v. Moncrief, 10 Abbott’s Prac. 315.

      November 16, 1908:
   Per Cxjriam,

The appellant’s contention that the appellee was precluded from applying for an order for alimony pendente lite by the fact that upon or after their separation an agreement was made between their respective attorneys, under which he was to pay her, and has paid her, $5.00 a week for her support, rests in the main upon his testimony alone, and- even he does not testify that he was present when such agreement was made. The attorneys were not called, nor was anyone who was present called, to testify to the fact of the agreement; it is not set up in the answer; its terms are not shown with any degree of certainty; and the testimony of the appellee tends to show that no such agreement was made by her authority. Inasmuch as the appellant on March 20, 1907, wrote to the appellee, Enclosed is my check for $20 allowance for two weeks from March 7, ’07; however this amount of $10 will be sent you weekly,” it was incumbent on him to show by the preponderance of competent testimony a subsequent valid agreement between them reducing the allowance to $5.00 a week, before he could even raise the legal question whether such subsequent agreement would, of itself and regardless of other circumstances, be conclusive either as to her right to ask for an order for alimony pendente lite or as to the amount. of alimony that should be allowed. This he has not done.

The remaining reasons assigned for objecting to the order are, in substance, that the appellee has a separate estate of her own which is ample for her support, and that she has two children capable of supporting her, whilst the appellant is insolvent and cannot afford to pay her any more money for that purpose. In answer to these contentions, it is shown that her income from her separate estate, after deducting interest on the incumbrances thereon, taxes, water rent and cost of repairs, would be utterly insufficient to maintain her properly; that her son, by reason of his illness, has been unable to contribute to her support for a considerable length of time; and that her daughter, seventeen years old, is'out of a position where she can earn money, and, besides, is needed by her mother, who is ill, to care for her. The appellee introduced ample testimony, if believed, to warrant a finding that the appellant’s income is sufficient to enable him to pay the small weekly allowance decreed by the court. This testimony, consisting in part of admissions alleged to have been made by him, was corroborated by the exhibition of his bank book showing deposits made to the credit of his account, during the first six months of the year 1908, amounting in number to thirty and in the aggregate to $2,696.82, and his testimony relative to the sources from which these deposits came is evasive and insufficient to warrant a finding that the money so deposited was not his own.

We have gone farther into the testimony than was required; for even if it be conceded that an appeal lies from an interlocutory order of this nature, it is clear that the appellate court will not reverse, except for plain abuse of discretion, and that nothing approaching that appears in this case.

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


author: Orlad y, J.,

text:
    Wisniewski v. Colonial Assurance Company, Appellant.

      Insurance — Fire insurance — Personal property — Change of possession and ownership — Case for jury.

    In an action on a policy of fire insurance a verdict and judgment for the plaintiff will be sustained where the policy provides that the insurance shall be void in case of any change of ownership or possession of the property, and the jury find from conflicting evidence that there was no change of ownership or possession after the date of the policy.
    Argued April 30, 1908.
    Appeal, No. 227, April T., 1908, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. Term, 1904, No. 142, on verdict for plaintiff in case of Tony Wisniewski v. Colonial Assurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Assumpsit on 'a policy of fire insurance. Before Kennedy, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $242. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      W. K. Jennings, with him D. C. Jennings, for appellant.

      J. 0. Petty, for appellee.
    October 12, 1908:
   Opinion by

Orlad y, J.,

This action of assumpsit was brought on a policy of insurance issued by the defendant company to recover the amount of damage sustained through a fire occurring in a bakery operated by the plaintiff. The property covered by the insurance was the tools and fixtures in the bakery, and the verdict returned by the jury was in favor of the plaintiff. It was contended by the defendant on the trial that the property changed ownership after the insurance was taken out, and this followed by a subsequent change of possession, and with the additional defense that the property destroyed was not of the value claimed by the plaintiff. The principal witness of the defendant was the insurance adjuster, who testified to a state of fact, which, if believed, would unquestionably have prevented a recovery, but in all material facts he was directly contradicted by several witnesses produced by the plaintiff. There was no controversy as to the issuance of the policy, or the payment of the premium. The points submitted by the defendant relating to the title to the property, and of its possession at the time of the fire, wrere affirmed by the trial judge, who at the request of the defendant said to the jury, If the jury believe from the evidence that the plaintiff was not the owner of the insured property at the time of the fire, then he cannot recover. And further, inasmuch as the policy provided that, ‘ This entire policy unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, if any change other than by the death of the insured takes place in the interest, title or possession of the subject of insurance,’ if the jury believe, from the evidence that such a change did take place in the possession of the insured property before the fire no agreement providing otherwise, being indorsed thereon or added thereto, the policy thereby became void and the plaintiff cannot recover.” So that the question narrowed down to those issues of fact which were resolved in the plaintiff’s favor. That this was appellant’s view of the case is apparent from its presentation of the question involved, to wit: Whether A can recover insurance on personal property leased to C and D and not in A’s possession at the time of the fire.” On this theory the case was tried, and the principal error assigned is that, under all the evidence, the verdict should be for the defendant. We cannot retry, in this court, matters of fact which have been fairly submitted and rightly decided by a jury in the court below, and therefore we must take for granted that the finding of the jury was true. ■

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


author: Orlady, J.,

text:
    Barto v. Beaver Traction Company, Appellant.

      Costs — Appeals—Printing paper-book — Statutes—Act of April 15,. 1907, P. L. 83.
    The Act of April 15, 1907, P. L. 83, allowing the successful party in the final decision of a case to tax, as part of the costs, the amount expended for the printing of the paper-book on appeals, is not so far retroactive as to apply to appeals determined before its passage.
    Argued May 12,1908.
    Appeal, No. 138, April T., 1908, by defendant, from decree of C. P. Beaver Co., Sept. T., 1905, No. 302; sustaining appeal from taxation of costs in case of J. A. Barto and Alice I. Barto, his wife, v. Beaver Valley Traction Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.

      Appeal from taxation of costs. Before Holt, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was order sustaining the appeal.

      James L. Hogan, with him John M. Buchanan, for appellant.

      A. P. Marshall, for appellee.
    October 12, 1908:
   Opinion by

Orlady, J.,

The only question involved in this case is whether the Act of assembly approved April 15, 1907, P. L. 83, allowing the successful party in the final decision of a case to tax, as part of the costs, the amount expended for the printing of the paper-book on appeal, is so far retroactive as to apply to appeals determined before its passage.

The plaintiffs brought suit September 7,1905; on March 30, 1906, a trial was had and a verdict for the defendant was rendered upon which judgment was entered April 9, 1906. On that day an appeal was taken to the Supreme Court and on January 7,1907, the judgment was reversed with a venire facias de novo. On March 20, 1907, on a retrial, a verdict for the plaintiffs was rendered in the sum of $1,655. On May 9,1907, a new trial was refused and judgment was entered on the verdict. On May 21, 1907, the plaintiffs filed an amendment to their bill of costs, by adding thereto a claim of $92.00, that being the amount expended for printing the paper-book on the appeal to the Supreme Court. To this the defendant filed exceptions and after hearing in the court below, the prothonotary was di-' rected to retax the plaintiffs’ bill of costs and allow the con-, tested item.

This same question has been recently decided by this court in Smith v. Railroad Company, 36 Pa. Superior Ct. 584, and for the reasons therein given this judgment is reversed.


author: Porter, J., Henderson, J.,

text:
    Erie, Appellant, v. Parade Street Market Company.

      Municipalities — Cities of the third class — Ordinance—Disapproval by mayor.

    Under see. 7 of art. 6 of the Act of May 23, 1889, P. L. 277, regulating the legislative power of cities of the third class, an ordinance is not effective, if it is returned by the mayor to the branch of the council in which it originated, within fifteen days, without his approval, and no further act is taken on the ordinance by councils. In such a case it is immaterial that the mayor does not state his objections.
    Argued April 13, 1908.
    Appeal, No. 166, April T., 1908, by plaintiff, from judgment of C. P. Erie Co., May T., 1905, No. 134, on case tried by court without a jury in suit of City of Erie v. Parade Street Market Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover a license tax.
    The opinion of the Superior Court states the case.
    The case was tried by Walling, P. J., without a jury, and judgment was entered for defendant.

      Error assigned was in entering judgment for defendant.

      Charles P. Hewes, for appellant.
    We contend that the mayor could only prevent the ordinance becoming a law by returning it to councils with his objections. Any other action on his part would not prevent the ordinance becoming effective: Penna. Globe Gaslight Co. v. Scranton, 97 Pa. 538; Erie v. Bier, 10 Pa. Superior Ct. 381; Com. v. Fitler, 136 Pa. 129; Kittinger v. Buffalo Traction Co., 160 N. Y. 377 (54 N. E. Repr. 1081); Harpending v. Haight, 39 Cal. 189; United Tel. & Tel. Co. v. Collegeville Boro., 11 Pa. Dist. Rep. 755; Booth v. Mayor, etc., of Bayonne, 28 Atl. Repr. 381; McGraw v. Whitson, 69 Iowa, 348; Brown v. Lutz, 54 N. W. Repr. 860.

      Henry E. Fish, with him Frank Gunnison and John 8. Billing, for appellee.
    The mayor is an integral part of the law making power of the city. In acting upon an ordinance, his power is legislative, not executive, and the questions presented to his mind are precisely the same as those which the two branches of the council must determine in passing the ordinance. He becomes a third branch of the council, whose approval is ordinarily requisite to the success of any measure proposed by the other two: Commonwealth v. Barnett, 199 Pa. 161.
    It has been held that the requirement that the ordinance must be returned to the branch of councils in which it originated, is merely directory, and that a return to either branch of the council in session is good: Commonwealth v. Fitler, 136 Pa. 129.
    August 00, 1908:
   Opinion by

Porter, J.,

The city of Erie brought this action of assumpsit to recover the sum of $600, being license taxes covering a period of six years, under an alleged ordinance of" the city imposing an annual license tax, of $100, on market companies doing business in the city. The ordinance in question was passed by the select council of the city on March 26, 1896, by the common council on March 30, 1896, and was duly certified and submitted to the mayor of the city for approval on March 31, 1896. The term of office of the mayor expired at noon on April 6,1896, and about ten o’clock A. m. of that day he returned the ordinance, without having approved it, to the branch of said council in which it had originated, which was in session at the time the ordinance was so returned. When the ordinance was thus returned to councils by the mayor without his approval, it was not accompanied by any statement of his objections to the same. No further action was taken on said ordinance by councils, nor did the city attempt to collect any tax under it until April, 1905, when this action was brought against the defendant company. The defendant resisted payment upon the ground that the mayor had returned the ordinance to city councils without his approval, within fifteen days after it had been submitted for his approval, and that the councils had failed to take such action as would make the ordinance effectual without the approval of the mayor. The parties agreed to submit the case to the judge of the court below without the intervention of a jury, and the learned judge entered judgment in favor of the defendant. The city appeals.

The Act of May 23, 1889, section 7 of article 6, P. L. 277, regulating the legislative power of cities of the third class, is as follows: “ Every legislative act of the councils shall be by resolution or ordinance, and every ordinance or resolution which shall have passed both branches shall be presented, duly certified, to the mayor for his approval. If he approves, he shall sign the same, but if he shall not approve, he shall return it, with his objections, to the branch of councils wherein it originated, which shall thereupon proceed to reconsider it. If, upon such reconsideration two-thirds of the members elected to each branch shall pass the said ordinance or resolution it shall become effective as though the mayor had signed the same. . . . Every ordinance or resolution which the mayor shall not return within fifteen days from the date of its presentation to him, as aforesaid, shall become a law as fully and effectively as if he had approved the same.” This statute makes the mayor an integral part of the law-making power of the city. No ordinance can become a law without first being submitted to him for his approval: Commonwealth v. Barnett, 199 Pa. 161. His approval of an ordinance must be indicated by his signing it. When an ordinance is not so approved by the mayor there are but two ways in which it can become effective as a law without that approval. (1) When an ordinance which has not been approved by the mayor is by him, within fifteen days, returned to the branch of councils in which it originated and councils upon reconsideration thereof pass it by a two-third vote of the members elected to each branch; and (2) When the mayor does not return the ordinance within fifteen days from the date of its presentation to him, duly certified, to the branch of councils wherein it originated. When the mayor fails to return the ordinance to councils, within the fifteen days fixed by the statute, it shall have the same force as if approved: Pennsylvania Globe Gas Light Company v. City of Scranton, 97 Pa. 538; City of Allentown v. Grim, 109 Pa. 113; Morrellville Borough’s Annexation, 7 Pa. Superior Ct. 532; Erie v. Bier, 10 Pa. Superior Ct. 381. The pertinent inquiries with regard to the validity of an ordinance, so far as the action of the mayor is concerned, are, did he approve the ordinance, or did' he fail to return it to councils within fifteen days after it was submitted for his approval. When the mayor does not approve an ordinance, the one matter in which the public are concerned, and' the neglect of which might impair the public interest, is the return of the ordinance to councils within the fifteen days; all the rest is unimportant detail: Commonwealth ex rel. v. Fitler, 136 Pa. 129. We find in the second sentence of the section of the statute above quoted, referring to the return of an ordinance by the mayor without his approval, this language, “he shall return it, with his objections, to the branch of councils wherein it originated, which shall thereupon proceed to reconsider it.” The clause, “with his objections,” is merely permissive and contemplates giving the mayor an opportunity to state his reasons for his official action. The vital thing is the return of the ordinance, by the mayor, to the councils, without his approval, in the manner required by the statute. When the mayor returns an ordinance to councils without his approval, his failure to state his reasons for so doing does not nullify his official action in returning the ordinance. The words “with his objections” do not appear in that sentence of the statute which makes an ordinance effective because of the failure of the mayor to return it within fifteen days. That sentence is in these words, viz.: “Every ordinance or resolution which the mayor shall not return within fifteen days from the date of its presentation to him, as aforesaid, shall become a law as fully and effectively as if he had approved the same.” This sentence means that if the mayor shall not within fifteen days from the date of its presentation to him, as aforesaid, that is when passed by both branches of councils and duly certified, return the ordinance to the branch of councils wherein it originated, the ordinance shall become a law. In view of these provisions we are convinced that there was no error in the conclusion at which the learned judge of the court below arrived. The ordinance was not approved by the mayor, it was by him returned to the branch of councils wherein it originated, without his approval, on the sixth day after it had been presented to him; and the councils did not upon the return of the ordinance by the mayor, without his approval, proceed to reconsider it and pass it by a vote of two-thirds of the members elected to each branch. There is no necessity for the return to councils of an ordinance which the mayer has approved, the section of the statute following that herein above quoted provides that: “All ordinances shall, unless otherwise provided therein, take effect immediately upon their approval by the mayor.”

The judgment is affirmed.

Henderson, J.,

concurring:

I concur in the judgment in this case for the reason that the ordinance was neither approved by the mayor nor returned to the branch of councils in which it originated with his objections thereto, nor was it retained by him for more than fifteen days without action.

I do not find anything in the facts presented, however, which leads me to conclude that the return of the ordinance by the mayor was intended to be or was in fact a veto of it. The act implies, if it does not expressly state, that the mayor shall notify the council when he returns an ordinance without his signature that he disapproves it. It may be that the requirement that he state his objections thereto is directory and that he need not set forth his reasons, but it is reasonable that he be required to indicate his action and this the statute seems to demand.

In the view entertained by the majority of the court the councils might have passed the ordinance as if returned with objections, but the evidence does not in my opinion warrant such a conclusion. It shows, rather, that the mayor omitted to approve or disapprove and returned the ordinance in six days because his term had expired.

Rice, P. J., also concurs.


author: Head, J.,

text:
    McGurn v. Grubnau, Appellant
    (No. 1).

      Negligence — Animals—Vicious dog — Ownership of Premises.

    A person, who continues to maintain, or permit to be maintained, upon his premises, an animal, such as a dog, after notice that the dog has become vicious and dangerous to his neighbors, is liable in damages for injuries sustained by a bite of the dog.
    Where a person keeps several dogs of the same strain of blood and family, and strongly resembling each other in size, color and general appearance, such person cannot relieve himself from liability for injuries caused by the bite of one of the dogs, because the person injured cannot identify the particular dog that attacked him, and cannot prove that previous attacks upon other people, of which, the defendant had notice, were made by the same dog that assaulted him.
    In an action to recover damages for injuries sustained by the bite of a vicious dog, the defendant cannot relieve himself from liability by evidence to the effect that long before the injury to the plaintiff, he had presented the dog to his sister-in-law, who lived with him, and that at the time of the injury the title to the premises in which the defendant lives was in his wife.
    Argued Dec. 4, 1907.
    Appeal, No. 102, Oct. T., 1907, by defendant, from judgment of C. P. Montgomery Co., Oct. T., 1905, No. 148, on verdict for plaintiff in case of James McGurn, as the next friend of Thomas Champion, v. Carl Grubnau.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries caused by the bite of a dog. Before Weand, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [Amongst the persons bitten was a Miss Ball, whose father, when he saw that she had been bitten, or was told of the fact, called upon Mr. Grubnau and told him of this fact. Mr: Grubnau then asked him what should be done with the dog, and the answer was, “Either shoot him or erect a fence to keep him in.” That testimony is not disputed, therefore you have direct knowledge brought to the attention of the defendant by the father of one of the injured persons that this dog had bitten his child. Therefore, if you believe that testimony, and it is not disputed, notice was given to the defendant.] [1]
    [Now, in this case it has also been shown to you that, aside from this direct notice to Mr. Grubnau, that upon at least three occasions when the dog bit the different persons who were lawfully upon the premises, that the persons in charge of the house or in the service of the family, saw the occurrence and drove the dog away. Now, it is for you to say, under all this evidence, as to whether Mr. Grubnau did not have notice of the bad habits of this dog.] [2]
    [Now, the defense in this case claim that this dog was not owned by Mr. Grubnau, but owned by his sister-in-law. That defense will not avail if the jury shall find that the dog was kept on the property occupied by the defendant in this case with his knowledge and consent.] [3]
    [We all know the affection which people have for dogs. But when we have animals of the kind that are given to biting people there is but one thing for us to do, either to part with the dog or else to suffer the consequences of the dog’s misconduct, and that is precisely this case.] [4]
    Verdict and judgment for plaintiff for $350. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them, and (5) in refusing binding instructions for defendant.

      H. B. Patton, of Staake & Patton, with him Frederic L. Clark, for appellant.
    If a man owns neither the dog nor the premises on which the dog is kept, there is no rule of law, or justice, or common sense, by which he can be held responsible for what the dog does: Snyder v. Patterson, 161 Pa. 98; Fitzgerald v. Brophy, 1 Pa. C. C. Rep. 142.

      N. H. Larzelere, with whom M. M. Gibson, for appellee,
    cited: Snyder v. Patterson, 161 Pa. 98; Larkin v. McMullin, 49 Pa. 29; Darlington’s App., 86 Pa. 512.

      December 7, 1908:
   Opinion by

Head, J.,

The plaintiff's action was to recover damages for injuries sustained from the bite of a dog. There was ample evidence that the plaintiff, a young boy, having been called to the grounds of- the defendant by the brother-in-law of the latter, to attend a party playing bowls, was attacked and severely bitten by a dog kept on the premises. As a result of his injuries he was confined to the house under the care of a physician for a number of weeks. That he suffered physical pain from his wounds and mental distress from the sh.ock and fright incident to such an attack cannot be doubted. Indeed, it is not alleged that the damages awarded were, in any degree, excessive.

That the dog was in fact a vicious animal the testimony abundantly establishes. During a period of some months prior to the injury to the plaintiff it had indiscriminately attacked quite a number of persons, adults and children, some while calling at the house of the defendant on business, others while passing along the public highway. Some of these attacks were made under the eye of the wife or servants of the defendant. He had bred this dog and owned and kept on the premises its sire and dam,- one of which he had himself imported from Europe. Under such circumstances it docs not seem a rule of law could be deemed unreasonable or harsh that would permit a jury to infer some knowledge by the defendant of the disposition of. the dog so plainly manifested during a considerable period of time. But the plaintiff was not compelled to rely on such inference. Some time before the plaintiff was injured the dog had attacked on the public highway and bitten the daughter of James W. Ball, who was a witness. He had not seen the attack, but it was seen by another witness who .beat the dog off. Mr. Ball, having heard of the assault, went to the defendant, when, according to his testimony, the following transpired: “Q. Tell us what you told him about your daughter being bitten? A. I told Mr. Grubnau that my daughter had been bitten with one of his dogs, and, of course, he said he was sorry to hear it. We had quite a little argument about it, and Mr. Grubnau wanted to pay the damages, but I told him I did not want any of his money, but that all I asked him to do was to keep the dogs inside. He said he was perfectly willing to do anything within his power to do so, he wanted to do what he could. I told him to go shoot the dogs, or put up a fence high enough to keep them inside. Q. What did he say to that? A. He said, ‘You might as well shoot the man as shoot the dogs.’ Q. Did he put up a fence afterwards? A. Yes, he did, within a very few weeks.” The defendant made no denial of this. This testimony, in connection with all of the other circumstances, in our opinion furnishes sufficient basis for the conclusion reached by the jury.

The first assignment complains of the fact that when the learned trial court, in his charge to the jury, referred to this testimony, he misstated or misquoted it. The court said: ‘‘Mr. Grubnau then asked him [Ball] what should be done with the dog, and the answer was, ‘Either shoot him or erect a fence to keep him in,’ etc.” This, and the language im-’| mediately following, would indicate that, in the mind of the j court, the conversation between the witness and the defendant S referred to the particular dog which had bitten Miss Ball;! whereas in fact the witness did not know which one of the | three dogs had made the attack, and spoke of them collect-1 ively. Of course, this was an inadvertence on the part of the ( trial judge. If noticed .by counsel at the time and deemed \ material, it was their plain duty to direct the attention of the judge to the error and give him an opportunity to correct it. If it escaped the notice of counsel it is not unreasonable to suppose it also passed unnoticed by the jury. But was it a material misstatement?

"There were'maintained, on the premises of the defendant, three dogs, not only of the same strain of blood but of the same family. Naturally there would be, in size, color'and general appearance, a strong resemblance between them. If repeated attacks had been made on.different persons by one or more of these dogs and this fact had been brought to the knowledge of the defendant, could he escape liability in an action like the present one, because the plaintiff (a) could not identify the particular dog that attacked him; and (b) could | not prove that previous attacks upon other people, of which ! defendant had notice, were made by the same dog that as- \ saulted him? If so, the immunity of a defendant would grow 1 as he multiplied the number of vicious animals he kept. The mere statement of such a proposition ought to be a sufficient j, refutation of its soundness.

“""The responsibility of a defendant in such a case rests upon the fact that he continues to maintain, or permits to be maintained, upon his premises, an animal, after notice that such animal has become vicious and dangerous to his neighbors. With the advent of such knowledge comes the legal obligation to so restrain the animal that it does no mischief, or failing that, to assume liability for any injury it may do. If, therefore, the trial court had quoted, with literal accuracy, the testimony of the witness Ball, every element necessary to establish the legal liability of the defendant would have appeared, and, the evidence being uncontradicted, there is no visible reason for assuming that the verdict could have been affected, to the injury of the defendant, by the inadvertent error of the court. The first assignment is dismissed.

It is further contended that the defendant is not liable because he did not personally own the dog, having, long before the injury to the plaintiff, presented it to his sister-in-law, who lived with him. That this position is untenable, under the circumstances of this case, is squarely ruled in Snyder v. Patterson, 161 Pa. 98. An application, to the facts before us, of the legal principle there enunciated, disposes of the appellant’s remaining contention, that he could not be held responsible because the title to the premises, in which he lived and on which the dog was maintained, was in his wife and not in himself. He was, nevertheless, the lawful occupant of the premises, the legally recognized head and master of his own household, and, as such, was responsible for the maintenance, not only of his wife, his servants and all who composed his family, but as well of the domestic animals kept there by his direction or with his knowledge and consent.

Judgment affirmed.


text:
    McGurn v. Grubnau, Appellant
    December 7, 1908:
    (No. 2).
   Opinion by

Head, J.,

The questions raised by this appeal are precisely those disposed of in an opinion this day filed in the case of McGurn as the next friend, etc., v. Grubnau, ante, p. 454.

For the reasons there stated., the assignments of error are overruled and the judgment is affirmed.


author: Rice, P. J.,

text:
    Hoopes & Townsend Company v. Ebel, Appellant.

      Attachment under the act of 1869 — Fraudulent debtor’s act — Execution.

    A carter, without criminal knowledge or intent and without fraud or such gross negligence as amounted to fraud, but with such knowledge and failure to exercise due care as would debar him from setting up the special and exceptional privilege of a carter in defense to a civil action brought against him by the party injured, assisted a thief in the felonious conversion of the goods of another by hauling them from the premises of the owner to places designated by the thief, and storing some of them upon his own premises. For the value of the services thus rendered, he issued an attachment under the act of 1869 and obtained a judgment against the thief not collusively, but by adverse, regular and legal proceedings. Subsequently the owner by an attachment under the act of 1869 seized the goods stolen, and also a machine the property of the thief, which had never been the property of the owner of the goods stolen, and which had not been acquired by the thief in exchange for the stolen goods or the proceeds thereof, but which was covered by the carter’s attachment. The carter under his judgment levied on the machine, and in an interpleader between himself and the owner of the stolen goods he recovered a judgment against such owner for the value of the machine. Subsequently the owner of the stolen goods filed a bill in equity against the carter to restrain him from bringing any action to recover the machine or its value. Held, that the complainant was without equity, had an adequate remedy at law, and that the bill should be dismissed.

      The jurisdiction given to a court of equity for the prevention or restraint of the commission of acts contrary to law and prejudicial to the rights of individuals, was never intended to be used to' obstruct the collection of debts. It is only where the creditor is clearly and undeniably proceeding against right and justice, to use the process of the law to the injury of another, that equity intervenes to stay his hand.
    Argued Dec. 11, 1907.
    Appeal, No. 182, Oct. T., 1907, by defendant, from decree of C. P. No. 2, Phila. Co., March T., 1905, No. 1,296, on bill in equity in case of Hoopes & Townsend Company v. Charles A. Ebel.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Bill in equity to restrain proceedings at law. Before Sulzberger, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court entered a final decree as follows:
    And now, to wit: April 3, 1907, the above case having been fully heard on bill, answer and proof, it is ordered and decreed that the defendant, Charles A. Ebel, be permanently restrained from proceeding upon the judgment obtained by him for $557.12 against the plaintiffs, Hoopes & Townsend Company, upon the interpleader proceedings in court of common pleas, No. 2, September Term, 1902, No. 483, and from hereafter bringing any action or suits at law to recover the machinery or the value thereof, or any other estate of Gabriel E. Corwin, known as Eugene Corwin, seized under attachment proceedings issued out of court of common pleas, No. 4, September Term, 1902, or any other property or estate of the said Gabriel E. Corwin, which came into the possession of the said Hoopes & Townsend Company and was received by them in payment or part payment of the stolen goods from them by the said Gabriel E. Corwin and his accomplices.

      Error assigned amongst others was the decree of the court.

      Alex. Simpson, Jr., with him John S. Hershey, for appellant.—
    It is not knowledge, even supposing that Ebel had it, that renders him liable in this action. Even supposing Ebel had lost his carter’s exemption .(we think the court in finding this fact is in error), that could, at most, only be the basis of an action at law in trover; it cannot form the basis of a judgment in this court restraining the defendant from proceeding on his judgment at law.
    The right to be enforced in equity must be one which municipal law can take cognizance of and not one which falls merely within the scope of moral law. Equity will not set aside a transaction simply because it is opposed to that delicate sense of right which every conscientious man ought to have: Rees v. Watertown, 86 U. S. 107; Heine v. Levee Commissioners, 86 U. S. 655; Lacombe v. Forstall’s Sons, 123 U. S. 562 (8 Sup. Ct. Repr. 247); Lewis v. Cocks, 90 U. S. 466; Heilman v. Union Canal Company, 37 Pa. 100; Carlton v. Salem, 103 Mass. 141; Dowell v. Mitchell, 105 U. S. 430.

      John H. Fow, for appellee.
    Any one who assists in the wrongful taking of the property of another is liable, although he merely acted as an agent, for agency cannot be advanced as a protection where a wrong or a crime has been committed: Miller v. Browarsky, 130 Pa. 372; Shaw v. Levy, 17 S. & R. 99; Sinclair v. Healy, 40 Pa. 417; Lecky v. McDermott, 8 S. & R. 500; Rapp v. Palmer, 3 Watts, 178.
    Equity will declare a trust in favor of the owner whose property has been stolen as to the property purchased by the thief, with the proceeds of his larceny; though no fiduciary relations existed: Bank v. Johnson, 71 N. W. Repr. 294; Beulah Marble Co. v. Mattice, 22 Colo. 547 (45 Pac. Repr. 432); Griswold v. Griswold, 111 Ala. 572 (20 So. Repr. 437).
    The court below held that it had jurisdiction to restrain the appellant from proceeding to collect from the appellees the amount of a judgment because of the peculiar, and suspicious, circumstances, surrounding the relationship between the appellant and his alleged creditor and especially when the amount to be collected represented the value of a machine bought with goods stolen from the appellees, and where the judgment creditor was more than a mere carter and who possessed a knowledge that should have put him on his guard that he was not dealing with or associating with honest men: Winch’s Appeal, 61 Pa. 424; Taylor’s Appeal, 93 Pa. 21; Davis v. Michener, 106 Pa. 395.
    December 7, 1908:
   Opinion by

Rice, P. J.,

Charles A. Ebel, the defendant, commenced an action of assumpsit by attachment under the act of 1869 against one Corwin, and by virtue of the writ the sheriff attached as Cor-win’s certain goods that he and his confederates had stolen from Hoopes & Townsend Company, Corwin’s employer, and in addition to these a bolt head machine, which is the sole subject of the present controversy. On the following day, Hoopes & Townsend Company issued a similar writ against Corwin by virtue of which, the sheriff returned, the same goods were attached, subject to the Ebel attachment. A short time later, Corwin confessed judgment to Hoopes & Townsend Company for $1,857.05, and in the paper confessing judgment authorized the sheriff to deliver to the company the goods attached, and declared that he had defrauded the company of them. After this, Ebel obtained judgment for want of an affidavit of defense for $508.86 in his action against Corwin, and issued a fi. fa. thereon. A sheriff’s interpleader issue was awarded between Hoopes & Townsend Company and Ebel in which the former filed a statement claiming title to all the goods seized, including the bolt head machine, by delivery to it by the sheriff by virtue of the above-recited paper, and also averring that the bolt head machine was never the property of Corwin. Upon the trial of the issue the court gave binding instructions for Ebel as to the bolt head machine, on the ground that the claimant, Hoopes & Townsend Company, had not shown a valid title to the machine. As to the other goods, verdict was rendered for Hoopes & Townsend Company. After judgment on the verdict, from which no appeal was taken, this bill in equity was filed, and after hearing on bill, answer and proof, it was decreed that Ebel be permanently restrained from proceeding upon the judgment obtained by him for $557.12 against Hoopes & Townsend Company upon the interpleader, and from hereafter bringing any action or suits at law to recover the machinery or value thereof, or any other estate of Corwin seized under the attachment proceedings, or any -other property or estate-of Corwin which came into possession of Hoopes & Townsend Company, and was received by them in payment or part payment of the goods stolen from the company by Corwin and his accomplices. From this decree we have the present appeal.

We must regard the judgment in the interpleader as conclusively determining that, in law, Hoopes & Townsend Company have no title to the bolt head machine -which it could maintain as against Ebel’s attachment, judgment and execution. And even if the company’s claim of ownership, or the source or character of Corwin’s title, could be made the subjects of investigation in the subsequent equity suit, the court’s findings in the latter suit, that the machine was at no time the property of Hoopes & Townsend Company, and that there is no competent evidence that it was purchased or received by Corwin in exchange for goods, or the proceeds of goods, stolen from the company, leave the question of ownership precisely where it was left by the judgment in the interpleader. In short, the machine never belonged to Hoopes & Townsend Company, and Corwin’s title was impressed with no trust in Hoopes & Townsend Company’s favor growing out of the source of the money or the property which Corwin used to acquire it; neither Hoopes & Townsend Company’s money nor property is traced into this machine. Upon what equitable principle, then, can Ebel be restrained, not only from proceeding on his judgment against Corwin to recover his debt out of this property, but also from proceeding on his judgment for the value of it obtained against Hoopes & Townsend Company in the interpleader? The answer to this question is supposed to be found upon a consideration of the nature of the debt for the recovery of which the former judgment was obtained, the circumstances under which it was incurred and the nature of Hoopes & Townsend Company’s claim against Corwin. We are justified in speaking of it as Corwin’s debt to Ebel, because the learned judge has found from the evidence, properly we think, that, as between them, there was a valid and an enforceable obligation on Corwin’s part to pay to Ebel the money for which the judgment was recovered. Upon this subject the learned judge says: “When, therefore, it was attached by Ebel, on September 10, 1902, it was, as between Ebel and Corwin, the property of Ebel under such attachment. Ebel had rendered service to Corwin, and Corwin owed him the value thereof, and the mere fact that Corwin had no title to the goods stored and hauled was no defense to Ebel’s claim for storing and hauling, them. As the goods were stolen, Ebel, had he been a party to. the theft, could not have maintained an action against Corwin or anybody else for services or outlays in the perpetration of a crime. But in. a proceeding like this, without any evidence that Ebel was directly chargeable with the perpetration of the crime or that he had been convicted or even arrested for it, participation in the crime cannot be seriously charged against him, and hence, so far as the case has been disclosed to us, there is no evidence that will warrant 'an attack on the validity of Ebel’s judgment as against Cor-win.” This conclusion, in which we concur after a full consideration of the ■ evidence, relieves the case of the question that might arise, if the evidence had satisfactorily shown that in hauling and storing the stolen goods, for which services he recovered in the action against Corwin, Ebel was a guilty participant in the theft. It is nevertheless an uncontroverted fact that by these acts Ebel assisted Corwin in his felonious conversion of the goods; and assuming for present purposes that the court had jurisdiction to inquire into the question, we do not disagree with the learned trial judge in his conclusion, that, although Ebel was a carter and under some circumstances might have been exempt from civil liability to Hoopes & Townsend Company, he is not exempt under the facts developed on the trial of this case. The learned judge clearly states the conclusion as follows: “The defendant (Ebel) having entered into relations with Corwin and having in consequence of such relations acquired knowledge beyond that ordinarily possessed by a carter, has lost the special and exceptional privilege of a carter, and is liable under the general rule to the owner of stolen goods with which he has meddled, even if he be innocent of criminal knowledge or intent.” It is important to notice that this finding was made in answer to a point declined by the court, that the “defendant, having by his participating in the acts of the conspirators, shown himself guilty, either of fraud or such gross negligence as amounts to it, it would be inequitable if he be allowed to profit thereby at the expense of the plaintiff.” We are of opinion that the court’s qualification of the point was proper under the evidence. Another point to be noticed is that there is no finding, and no evidence to sustain the appellee’s contention, that there was collusion between Ebel and Corwin in the attachment proceeding.

We have, then, a case which may be stated as follows: A carter, without criminal knowledge or intent, and without fraud or such gross negligence as amounted to fraud, but with such knowledge and failure to exercise due care as would debar him from setting up the special and exceptional privilege of a carter in defense to a civil action brought against him by the party injured, assisted a thief in the felonious conversion of the goods of another by hauling them from the premises of the owner to places designated by the thief and storing some of them upon his own premises; for the value of the services thus rendered, he has obtained a judgment against the thief, not collusively, but by adverse, regular and legal proceedings; and is attempting to obtain satisfaction of his judgment out of property of the thief which never was the property of the party injured, and was not acquired by its owner in exchange for the stolen goods or the proceeds thereof. It is apparent, as already stated, that such property is impressed with no trust in favor of the owner of the stolen goods growing out of the source of the money or property with which it was acquired. We now advance a step further, and state what seems equally self-evident, that it is impressed with no trust, lien or charge in favor of the owner of the stolen goods by reason merely of his right to recover damages from the thief personally for the conversion thereof, or growing out of any moral obligation resting on him to repair the loss to the person whose goods he has stolen before discharging his mere debts to other persons. But in the case we are considering, there is the additional element that the claim of the carter is founded on acts which made him civilly liable in damages to the owner of the stolen goods. Does this fact give a court of equity jurisdiction, at the instance of the latter, to restrain the former from collecting his debt by regular legal process? In Winch’s Appeal, 61 Pa. 424, it was declared: “The jurisdiction given to a court of equity for the prevention or restraint of the commission of acts contrary to law and prejudicial to the rights of individuals, was never intended to be used to obstruct the collection of debts. It is only where the creditor is clearly and undeniably proceeding against right and justice, to use the process of the law to the injury of another, that equity intervenes to stay his hand.” This statement of the rule or principle has been recognized in numerous later cases, including Natalie Anthracite Coal Company v. Ryon, 188 Pa. 138, cited in the opinion of the learned judge below, where the converse of the proposition is stated thus: “But where the process of the law is being used, against right and justice, to the injury of another, the right of the latter to invoke the intervention of a court of equity cannot be doubted.” We conceive that nothing more is meant by this than that as equity is part of the law of Pennsylvania the jurisdiction conferred by the statute extends to the prevention of acts contrary to equity. But it is a familiar and elementary doctrine that equity, when used in this connection, is not to be taken in its popular sense, nor as comprehending everything which natural justice comprehends. Equity, as administered by the courts, has rules and principles which limit its scope as well as has law, and when the jurisdiction of a court of equity is invoked by a third person to restrain a creditor from collecting his debt by regular legal process out of the property of his debtor, it is incumbent on the complainant to point to some recognized rule or principle of equity jurisprudence that will be contravened if the creditor is not restrained. For example, in the absence of fraudulent intent and of a statute regulating the subject, a debtor may transfer his entire property to a single creditor in discharge of the latter’s claim, and neither law nor equity will interfere, although looking from the standpoint of moral obligation only, it may seem quite clear to a chancellor that he ought to have assigned it for the benefit of all his creditors, or have applied it in discharge of some more meritorious claim. A fortiori, the creditor, who obtains priority by mesne or final process, stands in a position quite as unassailable as if he had acquired his advantage over other creditors by the act of the debtor. He commits no wrong cognizable in law or equity in not yielding the preference he has obtained. We are quite clear that the equitable principles relating to frauds, to trusts, to subrogation and to marshaling securities do not apply, and a diligent investigation with the aid of the able opinion of the learned judge below has not made it clear that any other equitable principle distinguishes the case from the case we have just cited by way of illustration. We conclude, therefore, that if in the case we are'considering there was any obligation resting on the carter to defer resort to legal process to collect his debt until after the complainant had obtained satisfaction of its claim out of Corwin’s property, or to yield the precedence he had obtained by his attachment and execution, it belongs to that large class called imperfect obligations, resting upon conscience and moral duty only, of which, it has been said, equity does not assume control: Rees v. Watertown, 86 U. S. 107; Bispham’s Equity (4th ed.), p. 54. Eor the civil wrong, which, without criminal knowledge and intent, he committed against the owner of the stolen goods, the latter has a remedy by action against him, and it has not been made to appear that it is inadequate.

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


author: Morrison, J.,

text:
    Schoenberg v. Provident Beneficial Association, Appellant.

      Insurance — Life insurance — Attaching application to policy — Act of May 11, 1881, P. L. 20.
    Where an association is sued as a corporation duly incorporated under the laws of the state of Pennsylvania, for the purpose of carrying on an insurance business, and this is not .denied, the defendant cannot claim that it is merely a beneficial association, and as such not subject to the provision of the Act of May 11,1881, P. L. 20, requiring the application to be attached to the policy in order to sustain proof of a misrepresentation of a material fact contained in the application.
    Argued Oct. 8, 1908.
    Appeal, No. 73, Oct. T., 1908, by defendant, from order of C. P. No. 2, Phila. Co., March T., 1908, No. 339, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Margaret K. Schoenberg v. Provident Beneficial Association.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for death benefits.
    The opinion of the Superior Court states the. case.

      Error assigned was the order of the court.

      Theodore J. Grayson, for appellant.

      Alfred Aarons, with him Henry N. Wessel, for appellee.
    December 7, 1908:
   Opinion by

Morrison, J.,

In this case there was a recovery against the defendant on an insurance policy, issued by it, on the life of Augustus P. Schoenberg; the loss to be paid to Margaret K. Schoenberg, plaintiff.

The learned counsel for appellant states the question involved, “Whether under the provisions of the Act of May 11, 1881, sec. 1, P. L. 20, a beneficial association operated for the mutual benefit of its members is obliged to attach the application for membership to its certificate of membership in order to avail itself of a misrepresentation of a material fact contained in said application as a defense to a death claim based upon the certificate in question.”

The case depends entirely upon the construction given to the Act of May 11, 1881, P. L. 20, in relation to the present case as disclosed by the pleadings and affidavit of defense.

The assignment of error is: “The Court erred in entering judgment for the plaintiff for want of a sufficient affidavit of defense.” The defense averred in the affidavit is that the insured made a false and fraudulent representation in his application in pursuance of which the policy declared upon by the plaintiff was issued. This application was not contained in nor attached to the policy as required by the act of 1881. To avoid this difficulty, the learned counsel for defendant contends that the defendant company is not a life or fire insurance company within the meaning of the act of 1881, but that it is a beneficial association operated for thé mutual benefit of its members and that it is not required to attach the application for membership to its certificate or policy

But the plaintiff’s declaration distinctly avers that the defendant association is a corporation duly incorporated under the laws of the state of Pennsylvania, for the purpose of carrying on an insurance business. The policy or certificate attached to the declaration and made part thereof, in plain terms, insured the fife of Augustus P. Schoenberg, and on due notice and proof of his death promises to pay $250 to Margaret K. Schoenberg, wife of the insured, his executors, administrators or assigns. Thus it appears that the defendant association is sued as an insurance company and this is not denied in the affidavit of defense. It is practically admitted that the insurance was on the fife of the plaintiff’s husband and that it was payable to her on notice and proof of his death. Upon this record, we think the act of 1881 prohibits the defense being made which is set up in the affidavit of defense for the reasons already stated. ■

This view of the case renders it unnecessary to consider and decide the question discussed as to whether the act of 1881 applies to a purely beneficial association. We hold that on the record before the court there was no error in excluding the averments -of false and fraudulent representations contained in the application for insurance on the life of;the husband of the plaintiff.

The assignment of error is dismissed and the judgment is affirmed.


text:
    Birge, Appellant, v. Armour.

      Guaranty — Payment for goods — Delivery of goods — Consideration.
    In an action on a written guaranty for the payment of a bill of goods sold by the plaintiffs to another person on a date prior to the date of the guaranty, the plaintiffs must show not only a delivery of the goods in the manner stipulated for by the guarantors, but also some consideration moving to the guarantors.
    In such a case an affidavit of defense is sufficient which avers that the defendants at first refused to sign the guaranty, and only did so upon the express stipulation that the goods should be delivered to themselves to be used in a particular building operation, and that the plaintiffs had not performed this stipulation, but had delivered the goods to the' person for whom the guaranty had been made, and that the goods had been used by such person in another and entirely different building operation.
    Argued Oct. 9, 1908.
    Appeal, No. 87, Oct. T., 1908, by plaintiffs, from order of C. P. No. 3, Phila. Co., June T., 1907, No. 1,321, discharging rule for judgment for want of a sufficient affidavit of defense in case of M. H. Birge & Son Company v. Harry M. Armour and George Clark.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Assumpsit on a guaranty.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

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

      II. B. Patton, of Staake & Patton, for appellant.

      H. R. Kneass, for appellees.
    November 00, 1908:
   Opinion by

Morrison, J.,

The plaintiff bases its right to recover for goods sold and delivered to W. J. Barrett on a writing signed by defendants of which the following is a copy:

“Phila. Pa.
“May 21,1906.
“We the undersigned hereby agree and guarantee to The M. H. Birge & Sons Có., Buffalo, N. Y., the payment of their bill against W. J. Barrett, 1492 N. 52nd St., for goods bought May 18th, 1906, on regular wall paper terms, namely four months from the date of shipment, net, to the amount of One thousand and fifty dollars. $1050.
“George Clark,
“Harry M. Armour.
“Witness:
“W. F. Keleher,
“W. J. Barrett.”

This paper, on its face, purports to be a guarantee by the defendants of the payment of a bill of wall paper amounting toll,050, bought by W. J. Barrett from the plaintiff, May 18,-1906. This writing is not under seal, states no consideration and imports none. As it was made and delivered on May 21, 1906, to secure the payment of a debt contracted by Barrett three days prior to that date, it seems very clear that the plaintiff must, to recover against the defendants, aver and prove a delivery of the goods to Barrett and also some consideration or benefit moving to the defendants, and failing in this, the action against the defendants would fall.

The appellant’s declaration contains a copy of the paper of May 21, 1906, and an averment that “ the plaintiff would not make a sale and delivery of the goods unless it had surety for the payment of the purchase price of the said goods, and that, thereupon, the said Barrett brought the defendants, Harry M. Armour and George Clark, to the plaintiff, and that the said defendants signed the following suretyship agreement:” Here follows in the declaration a copy of. the paper of May 21, 1906.

To support a summary judgment, for want of a sufficient affidavit of defense, it must, in our opinion, clearly appear that the affidavit of defense does not sufficiently deny the above averments. In our opinion, the following, quoted from the affidavit of defense, is sufficient to carry the case to a jury:

“The deponents admit the signing of the said agreement of May 21,1906, but aver that the same was signed by them under the following circumstances:
“That deponents were, on the 21st day of May, 1906, at the signing of said agreement, engaged in a building operation consisting of the erection and construction of a number of houses at 52d and Chester Avenue, in the City of Philadelphia, and in pursuance of such operation, had entered in a contract with one the said William J, Barrett to do the paper hanging in said houses, the said paper to be furnished to him by the said plaintiffs, the same having been secured and required by deponents of the said Barrett as supplied by the said plaintiffs.
“That the said plaintiffs asked deponents to become guarantee or responsible for the payment of the said merchandise to be furnished by the said plaintiffs, to the said Barrett, for the paper hanging of the said houses of the said defendants, and plaintiffs requested them to sign the said guarantee mentioned in plaintiffs statement of claim, but deponents refused to do so. Thereupon the said plaintiffs assumed, agreed, promised and stipulated to and with deponents, that if they would sign the said guarantee they the said plaintiffs would make it their business and duty to see that the said merchandise aforesaid was delivered to and for the deponents, and placed in their actual possession, for their use only, in paper hanging the houses on their operation at 52d and Chester Avenue, in said City of Philadelphia.
“ Deponents further aver that in consequence of said agreement, promise and stipulation of the said plaintiffs made with deponents at the time of signing said agreement, deponents agreed to and did sign said agreement as set forth in plaintiffs statement filed in this case.
“ Deponents further aver, that after the signing of said agreement the plaintiffs in violation of their contract, agreement, promise, and stipulation made with deponents, and in fraud of deponents rights in the premises, did not deliver said paper to and for the deponents, and place in their actual possession for their use only, in paper-hanging the houses on their operation at 52d and Chester Avenue in said City of Philadelphia, and same was never, at any time delivered there, to or for said operation, in consequence whereof, deponents submit that they are not liable to pay the said plaintiffs anything upon said agreement of May 21, 1906.
“ Deponents further aver, that the said plaintiffs in fraud of deponents rights in the premises, delivered the said merchandise, aforesaid, at 52d and Lancaster Avenue, to the said Barrett, in the county aforesaid, and. the same was used exclusively upon another building operation, by the said Barrett, without deponents knowledge or consent, and wherein deponents had no interest whatsoever.”

In reference to an affidavit of defense, we said in El Dorado Jewelry Co. v. Hopkins, 34 Pa. Superior Ct. 446: “At this stage of the case all of these averments of fact must be regarded as having been conclusively established by abundant and satisfactory testimony.” And this is only the statement of a well settled rule of law as to affidavits of defense.

The elaborate and able argument of the learned counsel for appellant has not convinced us that the learned court below erred in discharging plaintiff’s rule for judgment for want of a sufficient affidavit of defense.

Appeal dismissed at the costs of the plaintiff, but without prejudice, etc.


text:
    Brendlinger, Appellant, v. Riegel.

      Appeals — Interlocutory order — Attachment execution — Interrogatories.
    An order discharging a rule for judgment against a garnishee on answers to interrogatories is an interlocutory order from which no independent appeal lies.
    Argued Nov. 18, 1908.
    Appeal, No. 138, Oct. T., 1908, by plaintiff, from order of C. P. Chester Co., Jan. T., 1908, No. 90, discharging rule for judgment against garnishee on answers to interrogatories in case of Brendlinger v. Riegel.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ:
    Appeal quashed.
    Rule against garnishee for judgment.

      Error assigned was order discharging rule for judgment against garnishee on answers to interrogatories.

      L. J. Palmer, with him William P. Young, for appellant.

      G. G. Cornwell, for appellee, filed no printed brief.
    December 7, 1908:
   Per Curiam,

This is an appeal by plaintiff from an order dismissing his rule for judgment against the garnishee on his answers to interrogatories. The appellee’s, counsel move to quash the appeal upon the ground that the order is in no sense a- definitive decree and no judgment was entered upon it. It is a mere interlocutory order from which an independent appeal will not lie. The motion is well taken, and for the reason suggested, the appeal is quashed at the costs of the appellant.


text:
    Strodick v. Pennington, Appellant.

      Landlord and tenant — Recovery of possession — Rent in arrears — Act of April 3,1830, P. L. 187.
    In a proceeding by a landlord under the Act of April 3, 1830, P. L. 187, before a justice of the peace or magistrate, to recover possession of demised premises, no judgment can be entered against the defendant for rent in arrears. The amount certified by the justice and indorsed on the writ of possession, is not a judgment, but such certificate is merely to enable the tenant by paying the amount named with the costs, to supersede the writ of possession.
    Argued Oct. 13, 1908.
    Appeal, No. 20, Oct. T., 1908, by defendant, from order of C. P. No. 5, Phila. Co., Sept. T., 1907, No. 4,229, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Pauline Strodick et al. v. Elijah S. Pennington.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for rent in arrears.
    Rule for judgment for want of a sufficient affidavit of defense.
    The affidavit of defense was as follows:
    Defendant is advised and believes, that plaintiffs ought not to maintain the present action for the reasons, that on October 31, 1907, these plaintiffs instituted-proceedings against defendant under the provisions of the Act of April 3, 1830 (entitled: “An Act Relative to Landlord and Tenant,” P. L. 187), before William J. Harris, Magistrate of Court No. 24, for the city and county of Philadelphia, which said magistrate on November 7, 1907, rendered judgment against defendant, from which judgment defendant appealed and filed a transcript from said magistrate’s docket of said proceedings in the court of common pleas No. 1, of the county of Philadelphia, as of December Term, 1907, No. 509, and in said appeal defendant executed a bond with surety (owning real estate in Philadelphia of the value of more than $5,000) in the penal sum of $500, conditioned for the payment of all costs that have accrued or may accrue in case such judgment be affirmed, and also for all rent that has accrued and. may accrue up to the times of final judgment; the same action or suit aforesaid is founded upon the same writing obligatory in the said statement of claim in this present suit mentioned.
    And deponent further says, that the parties in this and the said former suit are the same and not other or different persons; and that said former suit was brought and prosecuted against the said defendant by the said plaintiffs as aforesaid, is still pending in the said court, as by the record and proceedings thereof more fully appear;

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

      W. H. Redheffer, with him W. H. Redheffer, Jr., for appellant.
    —A plaintiff having elected to take a certain action and having recovered judgment therein, is barred from recovering judgment in the other. He cannot subject the defendant to double costs: Garvin v. Dawson, 13 S. & R. 246; Wilson v. Hamilton, 9 S. & R. 424; Brenner v. Moyer, 98 Pa. 274.

      Henry Spalding, with him David N. Fell, Jr., for appellees.—
    This statute does not authorize the entry by the magistrate of a judgment for the rent found to be in arrear: Evans v. Radford, 2 Phila. 370; Clark v. Everly, 8 W. & S. 226; Trimbath v. Patterson, 76 Pa. 277; Robinson v. White, 39 Pa. 255; King v. Blackmore, 72 Pa. 347; Pennsylvania Co., etc., v. Shanahan, 10 Pa. Superior Ct. 267.
    December 7, 1908:
   Opinion by

Morrison, J.,

In taking his appeal and printing his paper-book the appellant has reversed the parties, making himself plaintiff, and the plaintiffs, defendants. For this- error we might quash the appeal, but have concluded to state the case correctly and consider it on its merits.

This was an action of assumpsit to recover rent alleged to be due and unpaid under a written contract. The plaintiff’s declaration stated a good cause of action and the defendant was properly required to file an affidavit of defense. The defense set up is that the plaintiff, on October 31, 1907, instituted an action under the provisions of the Act of assembly of April 3, 1830, P. L. 187, before a magistrate, to recover possession of the demised premises, and on November 7,1907, the magistrate rendered judgment against the defendant, which judgment he appealed to the court of common pleas No. 1 of Philadelphia county to No. 509, December Term, 1907, and gave bail in accordance with the provisions of said act of assembly. The learned court below considered the affidavit insufficient and granted judgment against the defendant for the amount of plaintiff’s claim, and from that judgment we have this appeal.

Under the act of April 3, 1830, the justice or magistrate has no power to enter judgment in such a proceeding for the amount of the rent in arrear. The act only authorizes judgment for possession of the demised premises, and empowers the magistrate to certify the amount of rent in arrear, but this certificate is in no sense a judgment. In Hazen v. Culbertson, 10 Watts, 393, our Supreme Court, by Sergeant, J., said: "The object of the act of April 3, 1830, is to enable landlords to recover possession of the premises demised, in cases where the rent is.not paid, and there is no sufficient distress on. the .premises. The only judgment which it directs to be rendered by the justices is a judgment that the premises shall be delivered up to the lessor, and the writ of possession is for that purpose, and to levy the costs. No judgment is rendered by the justices for the rent in arrears; nor does it authorize it to be levied; although the amount is indorsed on the writ of possession, it is merely to enable the tenant, by paying it with the costs, to supersede the writ of possession.” See also Hickey v. Conley, 24 Pa. Superior Ct. 388; Ballou v. Mehring, 28 Pa. Superior Ct. 156.

The affidavit of defense sets up nothing which is a bar to the action in assumpsit for the recovery of the rent in arrear.

, The assignments of error are dismissed and the judgment is affirmed.