text:
    Simpson’s Estate.

      Executors and administrators — Entering security — Act of March 29, 1832, P. L. 190.
    An executor who is also residuary legatee and devisee after the death of his mother under his father’s will, and who has under a power in the will leased coal lands belonging to the estate, will not be required to enter security after his mother’s death, for the payment of money legacies which were directed to be paid at intervals after the death of the life tenant, where it appears that the real estate apart from the unmined coal, was worth three times the amount of the legacies, that the executor had a considerable sum in cash in bank, and that he had not been guilty of any waste or mismanagement, although at an early date in the administration of the trust, when he had but little money in his hands, he had failed to keep a separate bank account of the trust funds.

      Will — Gift on personal property — Life tenant.

    Where a husband by his will gives to his wife all his estate real and personal for her natural life, the wife is entitled to all of the personalty absolutely.
    Argued March 1, 1907.
    Appeal, No. 41, Jan. T., 1907, by Frances E. Simpson et al., from decree of O. C. Lackawanna Co., No. 989, Series A., dismissing petition to enter security in Estate of George W. Simpson, deceased.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition to compel executors to enter security.
    Sando, P. J., filed the following opinion :
    This proceeding is upon a citation to Mark C. Simpson, executor of the will of George W. Simpson, deceased, to give security, under sec. 22 of the Act of March 29,1882, P. L. 190.
    The petitioners are here appealing to this court under a statutory proceeding, and it is a well-known principle of law that a statute must be strictly construed ; therefore, unless it can be shown that the executor has violated the authority given by the will or that he has mismanaged or is jeopardizing the estate, the petition of the legatees must be dismissed.
    In their petition they have alleged two grounds on which they ask this court to make the executor give security — first, that he has sold and conveyed to the Pennsylvania Coal Company a large and valuable tract of coal, being a large part of the value of the real estate belonging to the estate, without authority, and causing the coal to be mined and is using the proceeds thereof for his own purposes ; second, that for several years past, he has become intemperate in his habits and is using the personal property in his possession in a reckless and careless manner, and that the petitioners fear that at the expiration of the period of time when the legacies become payable, not enough money belonging to the estate may be found to pay the legacies.
    This proceeding, to a considerable extent, involves the construction of the will of the testator, from which it becomes necessary to give some pertinent extracts.
    By the will, the testator first bequeaths, by clause one, to his wife, all the furniture, chattels, effects, etc., in and about his dwelling house; and by clause two, bequeaths to his son William, all his right, title and interest in certain contracts made by the testator for the sale of various tracts of land in Dunmore.
    He next directs by clause three, that, “ All the rest, residue, and remainder of my estate, real and personal, wheresoever the same may be, I give and devise unto my said wife Mary Jane, during her natural life.”
    He then, by clause four, directs that, “ From and after the decease of my wife, I give and bequeath as follows: Unto my grand-daughter, Alice Vickers, I give and bequeath three thousand dollars, to be paid by my executor within three years from the death of my wife. I also bequeath to said Alice Vickers my horse, harness, buffalo robe, and best buggy. I give and bequeath unto the husband of said Alice Vickers, E. E. Vickers, five hundred dollars, to be paid by my executor within five years from the death of my wife. I give and bequeath to my great grand-daughter, Jeanne Vickers,' one thousand dollars, to be paid by my executor when said Jeanne shall reach the age of eighteen years. To Eugene Simpson, wife of my son William, I give and bequeath one thousand dollars, to be paid by my executor within five years from the death of my wife. To my grandchildren, May, Lois and Mary Jane, children of my son, Mark C. Simpson, I give and bequeath one thousand dollars each, to be paid by my executor to each one when she shall reach the age of eighteen years. To Milly, wife of my son, Mark C. Simpson, I give and bequeath one thousand dollars, to be paid by my executor within five years from the death of my wife.”
    He then, by clause six, gives, “ All the rest, residue, and remainder of my estate, real and personal .... unto my son, Mark C. Simpson, his- heirs and assigns forever.”

      ■He then, by clause seven, appoints Mark C. Simpson sole executor, and then continues as follows:
    “And I hereby give and grant unto my son Mark, my executor, full power and authority to grant, bargain, and sell any and all real estate of which I may die possessed, seized or in any manner entitled to, whenever it shall be necessary to carry out the provisions of my will. . . .”
    The testator, George W. Simpson, died May 10, 1895, and his widow, Mary Jane Simpson, died June 22,1905.
    It is to be noted that the executor had no right to use any of the personal property of the estate to carry out the provisions of the will for, under clause three, this was all left to the testator’s wife, the mother of the executor. All of the personal property belonged, therefore, to the wife absolutely, if she cared to use it, during her natural life, as will appear from the following cases: Markley’s Est., 132 Pa. 352; Gold’s Estate, 133 Pa. 495; Heppenstail’s Est., 144 Pa. 259.
    In 1897, after paying many of the expenses necessary and incidental to administering the estate, the executor had in his possession about $600 belonging to the estate. There was no income from the estate ; taxes, insurance and expenses of repairs had to met; the widow maintained; on January 20,1898, a legacy of $1,000 would be due the granddaughter, May; on April 6, 1900, a legacy of $1,000 would be due the granddaughter, Lois; on January 30, 1904, a legacy of $1,000 would be due the granddaughter, Mary Jane, and without money coming in that the executor could use, he proceeded under the clause in the will which authorized him to dispose of the real estate when needed to carry out the provisions of the will, .namely, clause seven, in which testator authorized his executor to sell any and all real estate “ whenever it shall be necessary.”
    In the absence of proof of error or mistake or willful disregard of duty, the court will not interfere. with the exercise by executors, in their discretion, of a power to sell real estate: Castor’s Estate, 16 Phila. 360.
    The testator in naming Mark C. Simpson as executor seemed to'have confidence in his good judgment and integrity, conferred upon him the widest discretion, and gave him “full power and authority to grant, bargain, and sell any and all real estate .... whenever it shall be necessary to carry out the provisions ” of the will.
    In the exercise of this discretion the executor deemed it advantageous and necessary to make the lease, dated November 9, 1897, recorded in Lackawanna county, December 9, 1897, in deed book No. 158, at page 160, with the Pennsylvania Coal Companjn There is no testimony to show that this was not without knowledge to all parties interested, nor to show that anyone took steps to interfere with or prevent the making of the lease.
    The widow dying on June 22, 1905, by the provisions of clause four of the will there will be due Alice Vicker}% $3,000, within three years, that is, in June, 1908; to E. E. Vickers, $500, within five years, that is, in June, 1910; to Jeanne Vickers, $1,000, when she shall reach the age of eighteen years, that is, on August 11, 1908; and to Eugene Simpson, wife of the testator’s son William, $1,000 within five years, that is, in June, 1910.
    It is contended by the learned connsel for the petitioners that the executor, under the testimony and the decisions in McKennan’s Appeal, 27 Pa. 237; Estate of Williamson, 18 Phila. 63, and Parker’s Estate, 64 Pa. 307, is brought within section 22 of the Act of March 29, 1832, P. L. 190, and should be required to give security.
    What has the executor done, not authorized by the will, and to sustain the allegations of mismanagement of the estate or the property under his charge? The mismanagement alleged is that the executor built a house and mingled his own funds with the funds of the estate.
    The Pennsylvania Coal Company has paid the executor in royalties for 35,163 tons of coal mined, since the making of the lease in 1897, the sum of $13,900. The executor has made disbursements up to March 25, 1905, a date prior to the death of the widow, for maintenance of the widow; legacies amount-ins to $3,000; necessary charges of taxes, insurance and repairs ; built a new house at the cost of $4,300 on land belonging to the estate; and has a balance in the bank of $2,723.83.
    Inasmuch as the new house was built in the j-ear 1900, during the lifetime of the widow, and a second partial account, taking credit for the payments for the new house, filed March 25, 1905, and no exceptions thereto being taken, it cannot be contended that the building of, and the payment for, the new house is mismanagement.
    There is no testimony whatever of the application by the executor of the funds of the testator to the payment of his own debts, as in McKennau’s Appeal, or that the moneys have been used in trade or business or gross dereliction of duty as in the estate of Williamson.
    This proceeding was begun November 13, 1905, and the first hearing was on, and testimony taken December 11, 1905. On December 20, 1905, the executor deposited in the bank to the credit of the estate of G. W. Simpson the sum of $3,015. At the hearing on January 22,1906, the respondent testified “ that I had no money in the bank in the estate’s account ” at the time of the former hearing, and that the money of the estate was included in his own account.
    Among the first duties of an executor or other trustee is to separate the moneys of the trust from his own, and deposit the same not in his own individual name, but in his name as an executor.
    It was improper and an unlawful act for the executor to mix the trust funds to any extent Avith his own. However clear it may be that it Avas Avithout any dishonest intention of making gain to himself, such a practice ought never come before a court without being in some way marked with its disapprobation. The mingling of the estate’s money with his own is an indefensible practice which has always been condemned by the courts.
    When the executor is authorized to sell the real estate at such time as he may deem necessary to carry out the provisions of the will and he does so, acting in good faith and under advice of counsel, and although depositing the money received from the royalties in his own personal account, does not use the same for his own purposes, and is always ready to make distribution when necessary and pay legacies Avhen due, we are not prepared to visit him with the penalty of compelling him to enter security.
    The money deposited in the bank since the commencement of this proceeding is noAV money of the estate, but it was not such till after the death of the Avidow, in June, 1905.

      The undisputed testimony shows the value of the real estate to be from $15,000 to $17,000, exclusive of the coal; that there remains to be mined, including the 17,000 tons in the pillars, from 29,000 to 30,000 tons of coal, and that is deposited in the bank to the credit of the estate about $2,700. The security is therefore ample for the legacies, amounting to $5,500, which are not yet due. The testimony fails to show any neglect or mismanagement of the estate.
    With regard to the testimony as to the alleged intemperate habits, one witness testified that he saw the respondent intoxicated about eight years ago, a second witness that he saw him intoxicated about fourteen months ago, and a third witness that shortly after the death of the respondent’s wife in May, 1904, she saw him intoxicated.
    But with this insufficient testimony it is not shown that he is wasting or mismanaging the estate.
    It is contrary to the spirit of the law to ask an executor, in whom the testator had confidence, to give security, unless he is wasting or mismanaging the estate. This is very clearly and distinctly set forth in Parsons’ Estate, 82 Pa. 465, where the court, inter alia, saj’s : “ It must clearly appear that the executor is wasting or mismanaging the property or estate under his charge, or that for any reason the estate or property is likely to be jeopardized by the continuance of such executor before the court can interfere.”
    Now, April 7, 1906, the petition to show cause why Mark C. Simpson, executor, should not give security, is dismissed.

      Error assigned was the decree of the court.

      E. M. Hannah, for appellant.
    The application, by an executor, of the funds of the estate to the payment of his own debts,' is mismanagement, and the parties interested may demand security under the Act oE March 29, 1832, P. L. 190 : McKennan’s Appeal, 27 Pa. 237.
    The solvency of the executor is no. answer to an act of mismanagement: McKennan’s Appeal, 27 Pa. 237 ; Cryder’s Appeal, 11 Pa. 72.
    Among the first duties of an executor or other trustee is to separate the moneys of the trust from his own and deposit the same, not in his own individual name, but as executor, in a bank, saving fund or trust company: Estate of Caroline Williamson, 18 Phila. 63 ; Parker’s Estate, 64 Pa. 307.
    October 7, 1907 :

      Walter Briggs, for appellee.
   Opinion by

Head, J.,

George W.- Simpson died in 1895, testate. By his will he made the following provisions for his widow who survived him, viz.: “I give and bequeath to my wife Mary Jane Simpson, all the books, paintings, linen, china, household goods, furniture, chattels and effects (other than money or securities for money) which shall, at my death, be in and about my dwelling house at Dunmore, Pa.” After giving to his son William the moneys due the testator on a number of contracts for the sale of real estate made in his lifetime, aggregating about $5,000, he further provides as follows :

“All the rest, residue and remainder of my estate, real and personal, wheresoever the same may be, I give and devise-unto my said wife, Mary Jane during her natural life.” The testator then proceeded to bequeath to certain grandchildren, the appellants, specific money legacies payable at certain stated periods after the death of his wife, the earliest of these, in point of time, maturing three years after the date of that event. As the widow survived until June, 1905, no one of these legacies has yet become payable. In the aggregate they amount to $5,500, the first falling due in 1908, the last in 1910. The testator also bequeathed to each of three grandchildren, daughters of his son Mark, the appellee, the sum of $1,000, payable when each should reach the age of eighteen years. These three legacies matured in the lifetime of the widow.

The testator finally provided as follows : “All the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath unto my son Mark C. Simpson, his heirs and assigns forever.” He then appointed his son .Mark sole executor and gave to him “full power and authority' to grant, bargain and sell any and all real estate of which I may die possessed, etc., whenever it shall be necessary to carry out the provisions of my will,” etc.

When, therefore, the legacies in favor of the appellee’s children fell due, it became his duty to provide the necessary funds to pay them. There was no personal estate from 'which the money could he raised because it had all been previously appropriated by the bequests to the son William and the widow. The latter, as the court below properly held under the authority of Marldey’s Estate, 132 Pa. 352; Gold’s Estate, 133 Pa. 495; Heppenstall’s Estate, 144 Pa. 259, must be regarded as the first object of the testator’s bounty. She was entitled to the possession of the entire personal estate, save the money given to William, and to consume it if she chose to do so. The executor, therefore, did nothing more than he was fully authorized to do, both by the letter and spirit of the will, when in 1897, he executed a lease of the coal underlying the land of which testator died seized. This lease was so drawn that tire mining of the coal therein authorized would extend over a period of years producing annual payments to the estate proportioned to the amount of coal mined.

In November, 1905, the appellants filed a petition in the orphans’ court, under the Act of March 29, 1832, P. L. 190, praying for a decree requiring the executor to give security for the payment of their legacies as they would become due, and assigning as reasons therefor, (a) that the executor had made sale of said coal not for the purpose of carrying out the will of the testator, “ but for his own use, and is causing the coal to be mined and is using the proceeds thereof for his own uses and purposes; ” and (b) because “ for several years past the said respondent has become intemperate in his habits, and is using the personal property in his possession in a reckless and careless manner.”

The learned court below found the testimony offered in support of the latter allegation to be trivial and insufficient. He could not well have found otherwise. Indeed we do not understand that the appellants now press this as a ground for a reversal. As to the remaining averment in the petition of waste and mismanagement, based on an unnecessary sale or lease of the coal, the court finds that the executor had received in roj'alties down to the time of hearing, #13,900, and expended the same in large part as follows, viz.: “ The executor has made disbursements up to' March 25, 1905, a date prior to the death of the widow, for maintenance of the widow; legacies amounting to #3000 ; necessary charges of taxes, insurance and. repairs; built a new bouse, at a cost of $4,300, on land belonging to the estate; and lias a balance in bank of $2,723.83.”

The answer of the respondent sets forth the detailed expenditures under each of the several heads generalized by the court and we do not understand the correctness of these figures to be assailed. The court further finds that “the undisputed testimony shows the value of the real estate to be from $15,000 to $17,000 exclusive of the coal; that there remains to be mined, including the 17,000 tons in the pillars, from 29,000 to 30,000 tons of coal; and that there is deposited in bank to the credit of the estate about $2,700.” The testimony shows that the lessor not only reserved, from the operation of the lease, what is known as the “ upper vein,” but that he also reserved one-third of the three lower veins included in the lease, so that, as the engineer testifies, “ they are bound to leave the one-third of the coal in.” The conclusion therefore reached by the lower court, viz.: “the .security is ample for' the legacies, amounting to $5,500, which are not yet due; the testimony fails to show any neglect or mismanagement of the estate,” is almost irresistible.

It did appear in the testimony, although it was not averred in the petition, that at an earlier date, when there was but little money in his hands, the executor had failed to keep a separate bank account of the trust funds in his hands, thus permitting them to be mingled with his own. Inasmuch as the entire estate belonged to the executor in his own light as residuary legatee, subject only to a liability to pay the legacies of appellants when due; as the property yet undisposed of was ample to extinguish this liability and as the irregularity had been corrected by the opening of a proper account in which the trust funds were being regularly deposited, the learned court, whilst noting the impropriety of the past conduct of the appellee, did not feel warranted, under all the circumstances, in compelling the executor to give security. In this we see no abuse of the powers conferred by the statute. On every branch of the case the opinion filed so fully vindicates the decree entered that it ought to have convinced the appellants they had no substantial ground for complaint. The assignments of error are overruled.

Decree affirmed at the costs of appellants.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Brader v. Township of Lehman, Appellant.

      Negligence — Township—Defective road — Mountain road.

    A township is not an insurer against all defects in its highways, but is answerable for negligence in the performance of its duties in the construction and care of them. For a defect arising in them without its fault or negligence, it is not liable, unless it has express notice, or the defect is so notorious as to be evident to all observers. The authorities are bound to keep a reasonable supervision over the condition of the roads, but they are not liable for negligence unless they have actual notice or knowledge of the defect complained of, or it was so plain to observation and existed so long a time that officers exercising a reasonable supervision ought to have observed it.
    The authorities of the mountain townships of Pennsylvania are not, under the law, required to constantly keep the infrequently used lateral roads in such a condition that no one riding in a vehicle, suitable only for a race track, or a city speedway, can possibly meet with an accident.
    The presence of a large flat stone lying “right level, just like going over a floor,” and firmly fixed in the bed of a mountain road, is not a fact from which, standing alone, a jury should be permitted .to infer negligence upon the part of township authorities; and this is especially so where it appears that the stone had been in the road for years, and that no person had ever thought it a source of danger.
    Argued Feb. 25, 1907.
    Appeal, No. 13, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1904, No. 16, on verdict for plaintiff in case of Samuel Brader V.- Lehman Township.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Halsey, J.
    The facts relating to the accident are set forth in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $848. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Granville J. Clark, for appellant.

      Mush Treseott, for appellee.

      October 7, 1907 :
   Opinion by

Porter, J.,

The accident which resulted in the injury to plaintiff occurred on a little used lateral road, leading from one more traveled road to another, in- a mountainous region. • The part of the road where the accident occurred is for some distance located over a very stony piece of ground, or, as the .plaintiff described it, a “fearfully stony piece of ground,” the. ground on each side of the road being about at the same level with the highway. One of the witnesses of the plaintiff thus described the region through which the road was located: “ it is all rocks pounded up; you cannot get no dirt there, it is just a rock quarry, a regular stone-bed; ain’t no dirt there at all, all been .... off, hammered off with hammers for the last twenty-five years, and is the same old thing. Of course could haul in, and the first big rain would wash it away, sure. ” The plaintiff was driving along this road in a light two-wheeled road-cart, which was of a gauge narrower than that of ordinary vehicles ; the right wheel of the cart was in the track or indentation which had been made upon that side of the road by the wheels of passing-wagons, thus causing the left wheel to run along upon the space between the ordinary wagon tracks; when the vehicle came to a large flat stone firmly imbedded in the road, the wheels, for some cause, spread or sprung outward and the wheel on the left-hand side dropped into a rut, which had been made by the wheels of passing wagons or flowing water, and then sprung in again and caught on the end of the stone. This retarded the motion of the cart and, as the horse went ahead, the whiffletree broke, the horse went out of the shafts and the plaintiff fell over the dashboard and was injured. There was evidence that the large flat stone had been firmly imbedded in the road for a long time. This stone is described by the plaintiff as a large flat stone firmly imbedded or “fast ” in the road. “ The top of the stone laid right there just like going over a floor, laid right level.” The presence of a large flat stone, which lies “ right level, just like going over a floor, ” and firmly fixed in the bed of a mountain road is not a fact from which, standing alone, a jury should be permitted to infer negligence upon the part of township authorities. The stone had been in the road for years and no person ever seems to have thought it a source of danger. This plaintiff testified that he had driven over the stone an hour before and did not then consider it dangerous. The danger in the condition, if any there was, to vehicles of reasonably substantial construction, arose from the fact that the water had washed the earth away from the end of the stone and had at that end undermined the stone slightly, about an inch or an inch and a half. It was found upon examination after the accident, that the wheels of the flimsy vehicle in which the plaintiff was riding had spread suftieiently to permit the left-hand wheel to drop down over the end of the stone and that wheel had then sprung back into this small space under the stone and there caught. There was no evidence whatever as to how long the rut at the end of the stone had been in this condition ; so far as the evidence discloses the small amount of earth might have been washed from under the end of the stone the night before this accident. The defendant asked for binding instructions, which the court refused, and subsequently made a motion for judgment non obstante veredicto, which the court below overruled.

A township is notan insurer against all defects in its highways, but is answerable for negligence in the performance of its duties in the construction and care of them. For a defect arising in them without its fault or negligence, it is not liable, unless it has express notice, or the defect is so notorious as to be evident to all observers. The authorities are bound to keep a reasonable supervision over the condition of the roads, but they are not liable for negligence unless they have actual notice or knowledge of the defect complained of, or it was so plain to observation and existed so long a time that officers exercising a reasonable supervision ought to have observed it: Burns v. Bradford City, 137 Pa. 361; Lohr v. Philipsburg, 156 Pa. 246; Garland v. Wilkes-Barre, 212 Pa. 151. The evidence introduced by the plaintiff which went to show that the road was previously rough and rocky was entirely insufficient to warrant a recovery in this case. The authorities of the mountain townships of Pennsylvania are not, under the law, required to constantly keep the infrequently used lateral roads in such a condition that no driver of an automobile or rider of a bicycle can possibly suffer the inconvenience of puncturing a tire, or that no one riding in a vehicle suitable only for a race track or a city speed-way can possibly' meet with an accident. Townships are not to be held to the duty of keeping such roads perfectly smooth and free from ruts, it is only when such defects become dangerous and the authorities have express or implied notice of that fact that the failure to repair them becomes negligence. “ The same degree of smoothness is not to be expected upon a dirt road, as is to be looked for on an asphalt street. It would hardly occur to a highway commissioner that a rut worn by wagon wheels in soft ground could be in any way dangerous to the public: ” Clifton v. Philadelphia, 217 Pa. 102. There was nothing in the evidence in this case to warrant a finding that the township authorities had notice, either express or implied, that the condition of the highway at the point where the plaintiff was injured involved danger to travelers. The defendant was entitled to a binding instruction, and such instruction having been refused, the motion for judgment non obstante veredicto should have prevailed.

The judgment is reversed and judgment is here entered for the defendant.


text:
    Scranton City v. Clarke, Appellant.

      Road law — Paving—Lien—Assessment—Acts of May 23, 1889, P. L. 277 and May 16, 1891, P. L. 69 — Statutes—Repeal.
    A lien for paving assessed according to the foot-front rule in proceedings under the Act of May 23,1889, P. L. 277, entitled “An Act providing for the incorporation and government of cities of the third class,” is good, if a specification of lien has been filed within six months after the completion of the work. The Act of May 16,1891, P. L. 69, providing for the filing of a lien within six months from the date of final assessment, has no application to proceedings under the Act of May 23, 1889, P. L. 277, and the Act of May 16,1891, P. L. 69, does not in this particular repeal the act of 1889.
    Argued Feb. 28, 1907.
    Appeal, No. 25, Jan. T., 1907, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1902, No. 301, for plaintiff on demurrer in case of City of Scranton v. E. M. Clarke.
    Before Rice, P. J., Porter, Henderson, Orlad y, PIead and Beaver, JJ.
    Affirmed.

      October 7, 1907:
    Demurrer to scire facias sur municipal lien. Before Edwards, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was in sustaining the demurrer.

      Thomas P. Duffy, for appellant.
    The Act of May 16,1891, P. L. 69, governs in the mode of procedure in the filing and collection of municipal claims: McKeesport Boro. v. Busch, 166 Pa. 46 ; Scranton v. Davidson, 3 Lackawanna Jurist, 141; Beltzhoover Boro. v. Beltzhoover’s Heirs, 173 Pa. 213.

      David J. Davis, city solicitor, with him 3. R. Van Deusen, assistant city solicitor, for appellee.
   Opinion by

Porter, J.,

The city of Scranton, upon the petition of the appellant and others, being a majority in number of owners of abutting property, paved West Lackawanna avenue and assessed the cost of the improvement against abutting property according to the foot-front rule. There is no suggestion of any irregularity in the proceedings under which the improvement was made, nor that the property was not of a character properly assessable according to frontage. The city filed a lien against the property of the defendant and issued a scire facias thereon, to which the defendant demurred, upon the ground that the claim had not been filed within six months from the date of the assessment. The court below overruled the demurrer and the defendant appeals.

When the defendant and other property owners joined in the petition to councils, praying that the street be paved, “ and that the cost of said improvement be assessed against abutting property owners according to the foot-front rule and be made payable in five annual installments,” they elected to have the work done under the provisions of the Act of May 23, 1889, P. L. 277, entitled “An act providing for the incorporation and government of cities of the third class.” This conferred upon the city jurisdiction to make the improvement as prayed for, and to assess the property and collect the* assessments in the manner provided by the statute which the appellant had invoked. The twenty-first section of the statute provides that such assessments “shall be and remain first liens on the respective pieces of land fronting on the streets in which the improvement is made, or on the land assessed for such improvement or benefits, as -the case may be, from the commencement of the improvement for which the assessments were made until six months after the completion of the work, and no longer, unless a specification of lien be filed in the prothonotary’s office of the county in which the city is located, in the city lien-docket, within said period.” Assessments for paving, under this statute and the ordinances of the city passed in pursuance thereof, are not made by a board of viewers appointed by the court whose report is confirmed or modified by the court, but are made by a city officer and merely involve the ascei'tainment of the total cost of the improvement and the distribution of it among the various properties in proportion to frontage. The lien in the present ease was filed under the provisions of the act of 1889 and having been filed within “ six months after the completion of the work,” was valid, unless the above quoted provision of the statute was repealed by the Act of May 16, 1891, P. L. 69. The appellant contends that the provision of the act of 1889 above quoted is repealed by the first section of the act of May 16, 1891, which is in these words: “ That whenever, hereafter, there shall be any final assessment made on any property to pay for the costs,expenses and damages, or either, of any municipal improvements, whether such improvement has been heretofore made or is now in progress, or 'Shall hereafter be made by any city, borough, township or other municipal division of the state, the property so assessed shall be subject to a lien for the amount of such assessment, said lien to date from the time of the final confirmation of the report under which said assessment may be made, or a final decree of the court fixing such assessment, and shall, if filed within six months from the date of said final assessment or confirmation, remain a lien upoii said properties, until fully paid and satisfied.” The act of 1889 gives to cities of the third class a lien for assessménts under the foot-front rule for paving from the date of the commencement of the improvement and continuing until six months after the completion of the work, and provides for the continuauce of that lien by the filing of a claim within six months from the completion of the work. The period of the limitation within which the lien must be filed begins to run from the completion of the work. The assessment may under that act be made before the work is commenced, but no lien attaches until the work is actually begun. If, under that statute the assessment is not made until after the work is completed, the delay in making the assessment cannot extend the period within which the municipality must file a lien; that must be done within six months after the work is completed.

The Act of May 16, 1891, P. L. 69, is a part of a system of general affirmative legislation, relating to municipal improvements, the ascertaiment of the damages resulting therefrom, the assessment of the cost thereof upon property benefited and the manner of collecting such assessments; conferring additional cumulative powers on municipalities of all grades, which was enacted during the legislative session of 1891. Mr. Justice Mitchell in referring to one of the Acts constituting a part of this system, that of May 16, 1891, P. L. 75, thus refers to the history and purpose of the legislation. In the task of steering through constitutional restrictions, .... the legislature had found difficulty in constructing statutes conferring powers and inodes of procedure suitable to all the diverse needs, situations and wishes of the multitude of municipal organizations in the state. In the effort some well intended acts had come to naught, and others had been shorn of sections that left inconvenient gaps here and there in the whole system. It was to fill these gaps, to supply the casus omissi, and to supplement powers doubtful or defective, that the act of 1891 was passed. It took away no power from any municipality that existed before, nor interfered with .any mode of its exercise, except as already said, where there is an. irreconcilable repugnancy: ” Hanover Borough’s Appeal, 150 Pa. 202. The Act of May 16, 1891, P. L. 75, conferred upon all municipalities the power to make many public improvements and provided for the assessment of the costs and expenses of such improvements upon property benefited by boards of viewers appointed by the court of common pleas of the county and for the supervision, confirmation or modification of the reports of such boards of viewers, by the court; the confirmation or decree of the court is, under that statute, the final assessment. That act did not make the assessments liens upon the property. The statute with which we are now dealing, Act of May 16, 1891, P. L. 69, is a companion piece of legislation, and completes the system; it makes the final assessments liens “from the time of the final confirmation of the report under which said assessments may be made, or final decree of the court fixing such assessments.” These statutes contained no express repeal of any prior statute, and it has been repeatedly held that they did not repeal any portion of any former statute by implication unless the system provided by the legislation of 1891 was so inconsistent with that previously existing as to make it impracticable to stand together: Hand v. Fellows, 148 Pa. 456; Hanover Borough’s Appeal, 105 Pa. 202; McKeesport Borough v. Busch, 166 Pa. 46 ; Seaman v. Borough of Washington, 172 Pa. 467; Bowers v. Braddock Borough, 172 Pa. 596 ; Beltzhoover Borough v. Beltzhoover’s Heirs, 178 Pa. 213. When a street is paved under the provisions of the act of 1889, the costs to be assessed upon abutting property under the foot-front rule, there is no “ final confirmation of the report under which said assessment may be made, or a final decree of the court fixing such- assessments,” nor does the law make provision for such confirmation or decree. If, therefore, the act of 1889 is repealed by the act of 1891 the municipality never could acquire a lien a,gainst property, under the provision of the latter act, for assessments made under the foot-front rule. The act of 1889 makes the property, where the owners have elected to have the improvement made and the cost thereof charged against the propertj1- according to frontage, subject to a lien from the time the work is commenced, and requires that the claim shall be filed within six months after the work is completed, in order that the lien may be continued; the lien in such a case is not dependent upon the assessment. The act of 1891 provides that the lien shall date from the time of the final confirmation of the report under which the assessment may have been made, but it does not invalidate assessments, nor vitiate liens made, or acquired, under earlier statutes, which do not require a report of viewers. McKeesport Borough v. Busch, supra. It is applicable to all such assessments as require a final confirmation of a report under which they may be made, or a final decree of the court fixing such assessments. The provisions of the act of 1889, so far as they relate to assessments under the foot-front rule, are not repealed by the act of 1891, and the lien in this case was valid under the former statute.

The judgment is affirmed and the record remitted with a procedendo.


text:
    Scranton City, Appellant, v. Ansley.

      Municipalities — Sewers—Liens—Foot front rule — Classification of cities — Constitutional law — Acts of May 23,1889, art. XIII, P. L. 277, and March 7,1901, art. XX, P. L. 20.
    The city of Scranton which was shown to be a city of the second class by the census of 1900, is not authorized to assess property according to the foot front rule for the construction of a sewer as provided by the Act of May 23, 1889, art. XIII, P. L. 277, entitled “ An Act providing for the incorporation and government of cities of the third class. ” Such authority is not found in the Act of March 7, 1901, art. XX, P. L. 20, entitled “An Act for the government of cities of the second class,” and providing that “from and after the passage of this act all laws relating to cities of the third class shall continue to apply to cities of that class which have passed, or may pass into a city of the second class by reason of increase in population, except so far as such laws are supplied by, or in conflict with laws relating to cities of the second class.” A construction of the act of 1901 which would authorize such an assessment, would bring the act into conflict with the constitutional restriction relating to local and special laws regulating the affairs of cities.
    The effect and consequence of a proposed construction of a statute as well as its reason and spirit, are to be considered in determining its validity.
    Argued Feb. 28, 1907.
    Appeal, No. 29, Jan. T., 1907, by plaintiff, from judgment of C. P. Lackawanna Co., Sept T., 1904, No. 337, for defendants non obstante veredicto in case of City of Scranton v. Mary C. Ansley and Joseph Ansley.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.

      October 7, 1907:
    Scire facias sur municipal lien for a sewer. Before New-comb, J.
    Tbe facts are stated in the opinion of the Superior Court.

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

      David J. Davis, city solicitor, with him II. 22. Van Deusen, assistant city solicitor, for appellant, cited:
    Hand v. Fellows, 148 Pa. 456; Com. v. • Moir, 199 Pa. 534; Scranton School District’s App., 113 Pa. 176.

      Edward W. Thayer, for appellees,
    cited: Scranton School District’s Appeal, 113 Pa. 176; Ayar’s App., 122 Pa. 266; Com. v.. Gilligan, 195 Pa. 504; Smith v. Railroad Company, 182 Pa. 139; Koontz v. Howsare, 100 Pa. 506; Whitmire v. Muncy Creek Twp., 17 Pa. Superior Ct. 399.
   Opinion by

Porter, J.,

The city of Scranton, by an ordinance approved by the city recorder on September 26, 1902, provided for the construction of a sewer in Meridian street, in said city, and directed the director of the department of public works to make an assessment against the owners of. abutting property in accordance with the foot-front rule. The assessment 'was made as directed by said ordinance and the city filed a lien against the abutting property owned by the defendants. A scire facias was issued ujion this lien and the appellees defended upon the ground that the city was without legal authority to authorize the director of the department of public works to make an assessment upon the property under the foot-front rule, and to file and enforce a lien for the collection of said assessment. The facts were undisputed at the trial, and the court reserved the question of law as to the right'of the city of Scranton, being a city of the second class, to make the assessment and file the lien under the provisions of the Act of May 23, 1889, article XIII, P. L. 277, entitled “ An act providing for the incorporation and government of cities of the third class.” The court subsequently entered judgment in favor of the defendants non obstante veredicto upon the question of law reserved and the city appeals. The sole question is whether the act of 1889, providing for the government of cities of the third class, is in force in the city of. Scranton, which is, and from a time considerably prior to Sep-, tember, 1902, had been, a city of the second class.

The appellant, the city, asserts the right to make the assessment and proceed for the collection thereof in this manner by virtue of article XX of the Act of March 7, 1901,- P. L. 20, entitled “ An act for the. government of cities of the second class.” The provision of the statute thus relied upon is in. these words, viz.: “From and after the passage of this act, all laws relating to cities of the third class shall continue to apply to cities of that class which have passed or may pass into a city of the second class by reason of increase in population, except so far as such laws are supplied by, or in conflict with, laws relating to cities of the second class.” The defendants contend that the provision of the act of 1889 empowering councils to direct the city engineer to levy an assessment for the construction of a lateral sewer against abutting property according to the front-rule is, within the meaning of the provision of the act of March 7, 1901, above quoted, “ supplied by ” the Act of May 16, 1891, P. L. 75, authorizing the construction of sewers and the assessment of the cost thereof upon abutting property, according to benefits; which applies to cities of the second class as well as all other cities of the commonwealth, and that, therefore, the act of 1901 did not revive and extend the provisions of the act of 1889 to the city of Scranton. Thejfurther contend that if this provision of the act of 1901 is to be construed as reviving and extending to the city of Scranton, a city of the second class, all the powers conferred upon cities of the third class b}r the act of 1889, then this provision of the statute produces local results and is obnoxious to the seventh section of the third article of the constitution, which prohibits the general assembly from passing any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts.

“ It may be taken as settled law that in cases of this character the courts will look beyond the mere form of the act, and examine its true intent and effect, in the light of the purpose of the constitutional restrictions: ” Commonwealth v. Gilligan, 195 Pa. 504. The effect and consequence of a proposed construction of a statute, as well as its reason and spirit, are to be considered in determining its validity: Whitmire v. Muncy Creek Twp., 17 Pa. Superior Ct. 399; Appeal of City of Scranton School District, 113 Pa. 176. Classification is the grouping together for the purposes of legislation of municipalities which, by reason of similar situation, circumstances, requirements and convenience, will have their public interests best subserved by similar regulations. The basis of the classification to which the statutes with which we are now dealing refer is population, the number of the inhabitants of the various cities of the commonwealth. The division of the cities of the state, for purposes of legislation, into three classes, determined by the number of their inhabitants, under the provisions of the act of 1874, was sustained by the Supreme Court, but a clear warning was given in Ayars’ Appeal, 122 Pa. 266, that an increase in the number of classes would not be sustained. The act of 1874 designated cities of the third class as those containing less than 100,000 and exceeding 10,000 inhabitants, and cities of the second"class as those containing less than 300,000 and exceeding 100,000 population. The city of Pittsburg was, at the time of the passage of that act, the only city of the second class. The census of 1890 disclosed that the city of Allegheny had a population exceeding 100,000 and that city passed from the third class into the second class. The census of 1900 established that the city of Scranton had over 100,000 inhabitants and it ceased to be a city of the third class and entered the second. There were at the time of the approval of the act of 1901 three cities of the second class, to no one of which at that date did the provision of the act of 1889, relating to cities of the third class and authorizing an assessment for the construction of a sewer according to the foot-front rule, apply. The city of Pittsburg never had been subject to the provisions of any of the statutes providing for the government of cities of the third class; the city of Allegheny had been a city of the third class prior to 1890, and Scranton had been a city of the third class prior to the year 1901, but both of the latter cities had passed out of the third class and were no longer subject to the provisions of the legislation which invested cities of the third class with power to levy an assessment for the construction of a sewer according to the foot-front rule. The effect, therefore, of the above quoted provision of the act of 1901, if it is to be construed as now contended for by the city of Scranton, was to revive and extend to that city all the powers and rights conferred by the act of 1889 upon cities of the third- class, while withholding such powers and rights from the city of Pittsburg, although both cities were unquestionably within the same class. Whether such rights and powers were also denied to the city of Allegheny it is not necessary to inquire; they certainly were not granted to all the members of the class. A statute relating to the government of cities of a given class is a general act, although it applies only to a city while it is in the class. We are not dealing with the question of whether a local or special law is repealed by a later general law with which it comes into conflict, nor are we dealing with the form of the municipal government, the number and character of its officers; this is a question of a power to tax in a particular manner. The act of 1901 is a statute for the government of cities of the second class, and, while dealing with them as a class, the article above quoted attempts to confer, upon some member's of the class, powers and privileges which it withholds from other members of the same class. That statute made no change in the classification of cities as fixed by the act of 1874 and the Act of 1889, P. L. 133, but the provisions in question certainly discriminated between members of the same class. If such a discrimination is valid then we would have in addition to the three classes of cities established by the Act of May 8, 1889, P. L. 133, an additional class composed of those cities of the second class which have at some time since the year 1874 been members of the third class. “ Instead of one form of municipal government for all cities of the commonwealth we have now three forms, one for each class, and to the form so provided every member of each class must conform. A reason for this is found in the fact that since 1874 local legislation regulating the affairs of a city is forbidden by the constitution, so that legislation for that purpose can be had only for a class, and must be applicable to every member of the class Commonwealth ex rel. McKirdy v. Macferron, 152 Pa. 244; Commonwealth v. Wyman, 137 Pa. 508. We are of opinion that the provision of the act of 1901, above quoted, cannot, without bringing it into conflict with the constitutional restriction, be given the construction contended for by the appellant, and made to clothe the city of Scranton with power to assess the cost of a sewer upon abutting property according to the foot-front rule.

The judgment is affirmed.


author: Orlady, J.,

text:
    Commonwealth to use v. Osler, Appellant.

      Sheriffs — Wrongful return — Judgment on* bond — Liquor law — Appeals — Supersedeas.
    Where the district attorney enters up the bond of a liquor dealer after the latter has been convicted of violating the liquor laws, and issues execution under which levy is made upon the property of the principal of the bond, and thereafter the sheriff on being informed by the attorney for the principal, who is also county solicitor, that an appeal had been taken, and on the advice of such attorney, returns the writ without further execution, and subsequently the property of the principal is either sold under another writ, or eloigned from the county, the sheriff will be liable to the bondsmen of the liquor dealer, after the affirmance of the conviction, and after they have been compelled to pay the fine by reason of the failure to find assets of the principal.
    In such a case the sheriff was bound to look to his writ and follow its direction. If he desired protection, he should have gone into the court of common pleas from whence the writ issued, and asked for a proper order under the circumstances. The order of supersedeas in the quarter sessions had no effect on the execution issued out of the common pleas.
    The fact that the county had a beneficial interest in the fund when ultimately secured, did not give the solicitor of the county control over the writ in opposition to the district attorney who issued it, and whose name was indorsed on it as counsel for the plaintiff.
    The sheriff's wrongful withdrawal from a levy embracing all the defendant's goods, is prima facie evidence that such goods were of value sufficient to pay plaintiff's debt.
    Argued March 5, 1907.
    Appeal, No. 11, March T., 1907, by defendant, from judgment of C. P. Sullivan Co., Sept. T., 1902, No. 78, on verdict for plaintiff in case of Commonwealth to use of George E. Brown and J. G. Cott v. Hiram W. Osier et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Oready, Head and Beaver, JVf.
    Affirmed.

      Scire facias sur recognizance on sheriff’s bond. Before Teeky, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [Subsequently Terry took an appeal to the Superior Court from his conviction in the court of quarter sessions. The Superior Court issued an order making that appeal a supersedeas. The sheriff then returned the aforesaid execution to the court of common pleas, whence it issued, stating his levy and concluding as follows: “This case being appealed to the Superior Court, I respectfully return this writ.”
    This, gentlemen, the sheriff had no right to do,.unless so ordered by the court of common pleas or. directed to do so by the plaintiff in the execution, or by the attorney of that plaintiff. The sheriff could not legally return his writ without executing it, or endeavoring to do so, as therein commanded. The plaintiff in the execution can control it by directing the sheriff to refrain from following that command; but when neither the plaintiff, nor the court issuing it interferes, it is the duty of the sheriff to make the money the writ calls for if the defendant in it has sufficient property. It is the sheriff’s duty to sell that property and bring the money arising from such sale into court for the plaintiff in the execution.] [9]
    [ The appeal taken to the Superior Court by Terry was not a supersedeas of the execution ; that is, it did not suspend the operation of that writ. Terry’s conviction was obtained in tlm court of quarter sessions. His appeal was from the sentence of that court. The judgment on his license bond was entered in a different court, the common pleas, and the execution issued from the court of common pleas, and the appeal to the Superior Court from the quarter sessions did not affect or disturb that judgment, or the execution issued on it; nor did the supersedeas granted by the Superior Court. Something more than this was necessary to have such a result.] [10]
    [Later another execution was issued on the judgment against Terry, Brown and Cott and a levy was made on the property of Cott. To save that property Brown and Cott paid the amount of the execution and took an assignment of the judgment. The sum they paid was 1389.35. Then they issued still another execution on the judgment. This writ came out against Terry, and the coroner, to whom it was directed, made a return thereto, that no property of Terry’s could be found in the county. This established the fact that the judgment could not be collected from Terry, and, if no other question were presented, would make out a case against the sheriff. We say this because it haying been shown that a levy was made by the sheriff on property which was not sold, but which was, owing to his neglect to sell, removed from the county, and subsequent writs having been issued and returned without avail, it is evident that these plaintiffs, who were Terry’s sureties and paid his debt, have lost whatever that property would have brought had the sheriff sold it by virtue of the first execution.] [11]
    The defendant presented these points :
    1. The appeal to the Superior Court taken by Terry in the criminal case, and the subsequent supersedeas entered in said case, ousted the right of the use plaintiff to have execution till this appeal was disposed of. It was then the duty of the sheriff to return his writ, and he was guilty of no negligence in so doing. Answer : This point is refused. [13]
    2. The county of Sullivan was the only party that had the right to enforce the collection of this fine and costs at the time the writ was placed in the hands of the sheriff, notwithstanding the writ had been issued by order of the district attorney, the solicitor for the county had the right to control said writ and to order the same returned. Answer: This point is also refused. [14]
    3. The subsequent issue of a fi. fa. by the county to collect the amount of fine and costs due upon the sentence imposed upon Terry in the court of quarter sessions was an abandonment of the levy upon the former writ, and a voluntary surrender of any rights that use plaintiff might have in same. The present use plaintiffs, who derive their title by assignment from the county of Sullivan, can rise no higher than their assignors and have no right now to complain that the sheriff was guilty of negligence in not disposing of the property embraced in the levy on the former writ. Answer: This too is refused. [15]
    4. The sheriff owed no duty to the present use plaintiffs at the time this writ was in his hands, hence he cannot be guilty of negligence in the discharge of his duty to their injury. Answer : This point is refused. [16]
    Yerdict and judgment for plaintiffs for $374.73. Defendant appealed.

      Errors assigned among others were (9-11, 13, 16) above instructions, quoting them.

      E. J. Mullen, for appellants.
    If the sheriff withdrew from the goods after levy and they were eloigned by Terry, the other two defendants could avail themselves of this fact as a defense against a subsequent levy and sale of their property by plaintiff in satisfaction of this debt. They could compel the plaintiff to resort to the sheriff for his money. They could not, however, voluntarily pay the debt nearly two years afterward, and bring an action against the sheriff and his sureties for official misconduct which worked them no injury.
    It has been held repeatedly that in an action upon the sheriff ’s recognizance the plaintiff must prove actual damage; it is not enough to prove an act of official misconduct: Com. v. McCoy, 8 Watts, 153; Withrow v. Com., 10 S. & R. 231.
    The sheriff acted under the advice of the county solicitor : Lancaster County v. Fulton, 128 Pa. 48.
    The directions of an attorney to the sheriff as to the mode and time of sale are binding and a full authority, if obeyed in good faith: Lynch v. Com., 16 S. & R. 368.

      Wm. Maxwell, with him Alphonsus Walsh, for appellees.—
    A plaintiff having a judgment ripe for execution, has a vested right to execution process, with all the legal incidents of such process, of which he cannot be deprived, by the order of a judge at chambers, made without notice or a hearing.
    We contend, that under the conditions of the warrant contained in the license bond of Charles A. Terry, and under the authority of the act of March 31, 1856, a proper party to enter the judgment on the bond of Terry, was A. J. Bradley, district attorney of Sullivan county, and that the proper plaintiff in that judgment, was the commonwealth of Pennsylvania: Shryock v. Jones, 22 Pa. 303; 17 Cyc. of Law and Procedure, p. 1076; McLaughlin v. McLaughlin, 85 Pa. 317; Lewis v. Phillips, 17 Indiana, 108; Murfee on Sheriffs, sec. 537; Wallop v. Searburgh, 5 Grat. (Va.) 1.
    October 7, 1907 :
   Opinion by

Orlady, J.,

Charles A. Terry obtained a license to sell liquor in Sullivan county in 1900, and filed his bond required by the statute, with George E. Brown and J. G. Cobb as his sureties, which was approved by the court, one of its stipulations being as follows : — “ And further, we do, by these presents empower the district attorney of Sullivan county, Pa., .and any other attorney of any court of record in the commonwealth of Pennsylvania to appear for us therein and confess judgment against us for the said penal sum, with costs of suit, and release of all errors ; and we do hereby waive the right of inquisition on real estate, and all laws exempting real and personal property from levy and sale on execution.”

On September 26 of that year Terry was convicted of selling liquor to minors, etc.; was sentenced to pay a fine of $300 and costs, and to undergo imprisonment in the county jail for sixty days. On September 28 the district attorney caused a judgment to be entered on the bond, in favor of the commonwealth and against Terry and his two sureties ; the confession of judgment reciting the default of Terry, his subsequent conviction, and the resultant sentence. On this judgment a writ of fieri facias was issued on the prsecipe of the district attorney, whose name was regularly indorsed on the writ as the attorney for the plaintiff, and he personally delivered the writ to H. W. Osier, the sheriff of the county, who the next day made a levy on the personal property of Terry. On September 29 Terry appealed to this court from his conviction in the quarter sessions, which appeal, on October 2, was directed to “ operate as a supersedeas upon the defendant giving bail in the sum of $1,000, to be approved by one of the judges of the court below, on due notice to the district attorney.” Pursuant to this order, which was filed in the quarter sessions on October 3, 1900, a bond in proper form was filed in the quarter sessions, approved by the president judge thereof, and Terry was released'from custody. Subsequent to all this, the county solicitor, who was also the attorney of Terry, gave notice to the sheriff of the order made by this court, whereupon the sheriff made a return of his writ with the indorsement, viz.: “ This case being appealed to the Superior Court, I respectfully return this writ.” On November 2 a testatum fieri facias was received from Bradford county against Terry, by virtue of which the sheriff seized and sold certain personal property of the defendant, and applied all of the proceeds to that writ. The unsold personal property was eloigned and carried out of Sullivan county by Terry, who also left the county, of which facts a return was made on a vend. ex. issued on the original execution.

The conviction of Terry in the quarter sessions was affirmed by this court on January 22, 1901 (15 Pa. Superior Ct. 608). He then served out his term of imprisonment and was discharged under the insolvent laws without payment of the fine or costs. On December, 13, 1901, the county of Sullivan, by its solicitor, caused an execution to be issued on the judgment against Terry, Brown and Cobb, to collect the fine and costs imposed on Terry. A levy was made on the personal property of the sureties, who, after an ineffectual attempt to have the judgment opened, paid the debt, interest and costs thereof, and on July 1, 1902 the judgment was assigned to their use by the county. ' Brown and Cobb then brought this action in the name of the commonwealth to their use, upon the official recognizance of H. W. Osier, sheriff, against him and his sureties, which,, after three trials in the court below, resulted in a verdict for the plaintiffs.

Section 78 of the Act of March 31, 1860, P. L. 427, provides that “ all fines imposed upon any party by any court of criminal jurisdiction shall be decreed to be paid to the commonwealth ; but the same shall be collected and received for the. use of the respective counties in which such fines shall have been imposed as aforesaid as is now directed by law.” By the 10th section of the Act of March 81, 1856, P. L. 200, regulating the sale of intoxicating liquors, it is provided, “ Whenever a judgment for any forfeiture, or conviction had for any violation of the provisions of this act, or of any other law for the observance of which said bond shall be conditioned, it shall be the duty of the district attorney of the proper county to enter up judgment and institute suit thereon.” The Act of May 22, 1895, P. L. 101, defining the duties of a county solicitor, does not conflict with the special statutory duty of the district attorney under the prior statute, and we have not found any direct repeal of section 10 of the act of 1856. Had the solicitor for the county desired to raise the question, it should have been done in a proper manner at the time its decision was most important to the sheriff. In so advising that officer he acted as counsel for Terry, and his other client, the county, was not interested in having the writ stayed. The sheriff’s return shows that it was based on the fact that an appeal had been taken and not that the appeal was made to operate as a supersedeas. Moreover, the advice given was erroneous, as hereinafter shown. The form of the liquor license bond had the approval of the court which granted the license, and the entry of the judgment was in strict conformity with its terms; the attorney designated in it caused the execution to be issued thereon and he was the only attorney, so far as shown by the record, who had control of the writ then in the sheriff’s hands. The county solictor, as the record then stood, was a stranger to it. The order of supersedeas in the case of Commonwealth v. Terry, had no effect on the execution issued out of the court of common pleas. The order made in the criminal case would stay proceedings only on the judgment in that case. To affect the execution from the common pleas (an entirely different court and in which the order of this court making the appeal taken by Terry operate as a supersedeas was not filed) required an order made by the court from which the execution issued. The first fieri facias was in the hands of the sheriff six days before the order was made effective in the quarter sessions, and was merely an auxilliary process to supersede the enforcement of the judgment of the court of quarter sessions, which was brought up for review, and was not effective to stay any proceedings collateral to it, and, there being no order made in the common pleas concerning the fieri facias, that writ was unaffected by the supersedeas awarded in the criminal case. The sheriff was bound to look to his writ and follow its directions, and he or the county could have presented the matter to the court of common pleas for its order. This was not done, and the action of the sheriff in abandoning his levy and returning the writ was without warrant of law: 20 Ency. of Pl. & Pr. 1241, 1251, 1257; Ewing v. Thompson, 43 Pa. 372; Goddard v. Ordway,101 U. S. 745; 1 P. & L. Dig. of Dec. 843; Knox County v. Harshman, 132 U. S. 14 (10 Sup. Ct. Repr. 8).

The sureties on the license bond of Terry being compelled to pay the debt of their principal by reason of the neglect of the sheriff to collect it from the principal debtor, may maintain an action against that officer on his official bond. It is highly important for the sheriff’s protection and that of his sureties, as well as for the interest and security of the commonwealth and of suitors, that sheriffs should, in all cases, strictly comply with their duty: Commonwealth v. McCoy, 8 Watts, 153. The judgment on which the writ was founded clearly showed the relation of the defendants to each other, and to say that he owes no duty to his sureties would be the same as to say that he owes no duty to anyone. An action may be maintained on his official bond, immediately after he refuses to make a levy pointed out to him by the plaintiff in the writ, without waiting for the return day of the writ: Shannon v. Commonwealth, 8 S. & R. 444, and his sureties are bound to pay for the default of their principal: Ricketson v. Commonwealth, 51 Pa. 155. There are numerous cases showing that the liability of the sureties of the sheriff is direct, and suit may be brought whenever a breach occurs: Smith v. Commonwealth, 59 Pa. 320; Carmack v. Commonwealth, 5 Binney, 184; Karch v. Commonwealth, 3 Pa. 269. The return of the sheriff, in the case before us, was an improper one and his wrongful withdrawal from a levy on the only writ then in his hands, and embracing all the defendant’s goods “ is prima facie evidence that they were of value sufficient to pay the plaintiff’s debt: Beale v. Commonwealth, 7 Watts, 183.” His mistake or misconduct entitles these plaintiffs to recover for that injury from him or his sureties: Bank v. Potius, 10 Watts, 148; Wright v. Darlington Runk & Co., 108 Pa. 372. The 41st section of the Act of June 16, 1836, P. L. 729, defines his duty, and if from any cause he is in doubt as to his duty, or counsel for plaintiff and the defendant do not agree in regard to his duty, he has recourse to the court from which the writ issued to require the use plaintiffs in the writ to appear and indemnif}^ him. However, he elected to be governed by the counsel of Terry, the defendant. Nor did the fact alone, that the county had a beneficial interest in the fund when ultimately secured, give the solicitor for the county control over the writ in opposition to the district attorney who issued it and whose name was indorsed on it as counsel for the plaintiff. It is clear that the sureties on Terry’s license bond were injured and aggrieved by the misconduct of the sheriff, and that, having made good his wrong, they are entitled to recover from him on his official recognizance and his sureties. See also Rowe v. Williams, 7 B. Monroe (Ky.) 202; Commonwealth v. Straton, 7 J. J. Marshall’s Reports (Ky.), 90.

The judgment is affirmed.


text:
    Geiser Manufacturing Company, Appellant, v. Frankford Township.

      Townships — Supervisors—Contract—Consultation and meeting of supervisors — Ratification.
    Where two supervisors of a township meet together with a person claiming damages from the township for the destruction of a traction engine which had broken through a defective township bridge, and the supervisors, in order to avoid litigation, agree to purchase another engine in place of the one destroyed, and they both subsequently sign an order for the new engine, but not at the same time or in the presence of each other, and thereafter they meet and prepare a minute as to the claim and appropriate money for payment of the claim, the order after it has been executed, and the engine delivered, will be deemed to have been based upon sufficient consultation and consideration on the part of the supervisors, and will constitute a valid contract of the township.
    Argued March 11, 1907.
    Appeal, No. 1, March T., 1907, by plaintiff, from judgment of C. P. Cumberland Co., Feb. T., 1905, No. 175, on verdict for defendant in case of the Geiser Manufacturing Company v. Frankford Township.
    Before Rice, P. J., Pouter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Assumpsit to recover on a contract for the sale of a traction engine. Before Sadler, P. J.
    The facts are stated in the opinion of the Superior Court.
    The trial judge gave binding instructions for defendant.

      Error assigned was in giving binding instructions for defendant.

      E. M. Biddle, Jr., with him O. 0. Bashore, for appellant.—
    There was sufficient evidence of ratification of the original contract to carry the case to the jury: McKnight v. City of Pittsburg, 91 Pa. 273 ; Phila. v. Hays, 93 Pa. 72; Silsby Mfg. Co. v. Allentown, 153 Pa. 319; Shiloh Street, 165 Pa. 386; 1 Dillon on Munc. Corp., sec. 463; Austin Mfg. Co. v. Ayr, 31 Pa. Superior Ct. 356.
    The minutes in question were the official record of the governing body of the township, and as such the best evidence of its action, and not subject to impeachment by parol testimony: School Dist. v. Atherton, 53 Mass. 105 ; Taylor v. Henry, 19 Mass. 397; Roland v. School Dist., 161 Pa. 2; McCrea v. School Dist., 145 Pa. 550.
    The contract of August 23, 1904, was sustainable, apart from its subsequent ratification : Dull v. Ridgway, 9 Pa. 272; Hopewell Twp. v. Putt, 2 W. N. C. 46 ; Pottsville v. Norwegian Twp., 14 Pa. 543 ; Wheeled Scraper Co. v. Butler Twp., 24 Pa. Superior Ct. 477.

      S. B. Sadler, with him Herman Berg, Jr., for appellee.—
    Where a township has but two supervisors they must honestly confer with each other, and fairly deliberate in the interest of the taxpayei'S before they attempt to bind the township by their action: Somerset Twp. v. Parson, 105 Pa. 360 ; Logan v. Rochester Twp., 21 Pa. Superior Ct. 113; Climax Road Machine Co. v. Allegheny Twp., 10 Pa. Superior Ct. 437; Austin Mfg. Co. v. Ayr Twp., 17 Pa. Superior Ct. 419 ; s. c. 24 Pa. Superior Ct. 91; 31 Pa. Superior Ct. 356; American Road Machine Co. v. Washington Twp., 9 Pa. Superior Ct. 105 ; Western Wheeled Scraper Co. v. Butler Twp., 24 Pa. Superior Ct. 477; Union Twp. v. Gibboney, 94 Pa. 534; Cooper v. Lampeter Twp., 8 Watts, 125; Penna. R. R. Co. v. Ry. Co., 167 Pa. 62.
    There was no sufficient evidence of a ratification of the void contract: Cooper v. Lampeter Twp., 8 Watts, 125; Addis v. Pittsburg, 85 Pa. 379 ; Philadelphia v. P. & R. R. R. Co., 88 Pa. 314; Phila. v. Hays, 93 Pa. 72; Shiloh Street, 165 Pa. 386; Silsby Mfg. Co. v. Allentown, 153 Pa. 319.
    October 7, 1907:
    The mere meeting of supervisors for the purpose of paying for a purchase improperly made is not a- ratification of such a contract: Austin Mfg. Co. v. Ayr, 31 Pa. Superior Ct. 356 ; American Road Machine Co. v. Washington Twp., 9 Pa. Superior Ct. 105; Jenkins v. Cotton Mfg. Co., 115 N. C. 535 (20 S. E. Repr. 724) ; Kavanaugh v. City of Wausau, 98 N. W. Repr. 550 ; Caxton Co. v. School Dist., 98 N. W. Repr. 231; Murphy v. Clinton, 182 Mass. 198 (65 N. E. Repr. 34) ; Harrison Twp.’s App., 20 Pa. C. C. Rep. 54.
    The plaintiff may prove by parol that no resolution was ever legally passed: Altoona City v. Bowman, 171 Pa. 307 ; Gearhart v. Dixon, 1 Pa. 224; Sidney School Furniture Co. v. School Dist., 158 Pa. 35 ; Thompson v. Chase, 2 Grant, 367 ; Poindexter v. McDowell, 84 S. W. Repr. 1133 ; Hopkins v. Danby School Dist., 27 Vt. 281; Sherman v. Buick, 93 U. S. 209 ; Miller v. Fichthorn, 31 Pa. 252.
   Opinion by

Orlady, J.,

On August 21, 1904, a traction engine owned by Anson Metzger broke through a bridge in the defendant township and was wrecked; the sole cause of the accident being the defective condition of the bridge, and without any contributory negligence on the part of Metzger. On the following day Metzger gave notice of his claim against the township supervisors, T. K. Warner and G. H. Fry, when, after several interviews between these parties it was admitted that the township was liable in damages for the loss sustained by Metzger, and the supervisors promised to purchase and pay for a similar engine from the plaintiff and deliver it to Metzger in settlement of this claim against the township. An order for such an engine was separately signed by the two supervisors, and subsequently another and more formal order was prepared, dated August 23, which was separately signed and sealed by the two supervisors in which the plaintiff was directed to “ ship for the undersigned on the terms and conditions named below to Carlisle Pa. by the C. V. R. R.,” a traction engine therein described in consideration for which they agreed to pay the sum of §954, on October 1, 1904, and to deliver to the plaintiff on August 25, 1904, the broken engine “ with the understanding that neither cash nor second hand machinery are to be considered any part of the rent, and the same shall be forfeited in case such leased machinery is repossessed.” The engine was shipped in accordance with the order, and arrived at Carlisle on August 26, prior to which time Fry and Warner separately paid to Metzger equally the amount necessary to pay the freight, charges on the engine, and a definite sum of money to buy the coal required to operate the engine. Metzger took possession of the engine with the knowledge, if not on the direct order, of the supervisors, and has since retained it without question from anyone as to his right thereto, and with like authority the old engine was delivered to the plaintiff through a local agent at Carlisle. This suit was brought to recover the purchase price of the engine ; the defense being that' no valid contract had ever been made by the supervisors. At the conclusion of the trial the jury was directed to render a verdict for the defendant, the court saying, “We are well satisfied, after considering the evidence in the case, that there was no such meeting of the board of supervisors, or such deliberation, consultation or action taken by them in reference to the order or purchase of the engine, for the use of Metzger, or in the order given August 28,1904, as renders the township of Frankford liable to the plaintiff in this action.”

A careful examination of all the testimony convinces us that this action of the court was erroneous. Instead of resorting to expensive and tedious litigation the supervisors adjusted the claim by furnishing a new engine. Warner testified, “ I didn’t want to get into a lawsuit, and I thought I would try to settle it. We didn’t want to pay $2,000, and we thought we could get an engine cheaper than standing a lawsuit, and I signed the contract because we were afraid of that lawsuit.” The other supervisor, Fry, testified, “the first I knew of this was that Metzger and Warner came up and told me what happened, and I wondered what I was going to do. I says it’s a bad thing, and I says of course we will have to do the best we can, but there was nothing said at all in relation to how it should be done.” It is quite apparent that they gave the question some consideration, singly and together, and after knowing all the facts of the case, Fry signed the first order when it was presented to him with Warner’s signature attached thereto, and a second order which was made in substitution of the first, and which Warner had signed without being present at the time when Fry’s signature was attached to it, and each knew that on this order the engine would be shipped. The signature of each supervisor was subsequent to oral consultations in regard to the subject and was the ratification of the conclusion reached by them at these conferences. Warner further testified that in order to keep properly on record their action he went to his attorney and stated the facts in the case about the engine, and “ I said that we had better get this on the minutes, and you had better try and give us a copy.” With this form prepared, which he states was not suggested by anyone, he wanted to have the matter right, he took the prepared minute to Mr. Minnick, the township clerk, with the direction that it should be recorded in the township book. The clerk testified that about September 1, the two supervisors met at his house and Warner said “ Here are some minutes to go on the book.” “ Q. While they were there did you hear them discuss the Metzger matter at all? A. Very little. Q. Did you hear them talk at all? A. Well, something about a broken engine, but I paid no attention to it. Q. Had you heard of Metzger’s broken engine before ? A. Yes. Q. Did you think they were talking of Metzger’s broken engine ? A. I knew they were talking about that. Q. Then when you read the minutes did you know that the minutes referred to Metzger’s engine of which the two supervisors had talked a day or two before when at your house? A. Yes. Q. You knew the minutes referred to that? A. Yes. Q. You heard them talk about that at your house together? A. Yes. Q. Did you make up the minutes yourself or get them from one of the supervisors ? A. The supervisors furnished me the minutes. Q. Is that the regular practice ? A. It was for me. Q. How long have you been a clerk? A. Twice, two years. Q. During that time you always got the minutes from the supervisors, or did you make them up yourself ? A. I always got the minutes from the supervisors. Q. Then what you did in this case was your regular practice of getting the minutes from the supervisors ? A. Yes.”

The minute in question which was offered in evidence recites that the meeting was called for the purpose of considering the claim of Metzger, and as the loss was due to the weakness of the bridge, the township was liable therefor, and further, having satisfactory proof that the lowest possible price at which such reparation can be made is the sum of $954, plus freight charges and coal, the sum of $954 and necessary freight charges was appropriated out of the township treasury toward the payment of the claim of Metzger. The following minute was one dated September 17 which recited the presence of the supervisors, and “ minutes of previous meeting read and approved,” and that the sum of $275 of township funds was appropriated at that meeting for the payment of a road grader. It appears that Warner cannot write, and Fry denied that he had ever read any minutes, or knew anything at all about them. His credibility is a proper subject for the consideration of a jury, in the light of his other testimony. The minute does not contain a fact not covered in the oral conversations between the supervisors and Metzger. It does not contradict any act of either and substantially corroborates both. Warner states that the day after the engine was broken he went with Metzger to see Fry, in order to see if they couldn’t satisfy Metzger; to see what terms he would agree on. “ Q. Didn’t Metzger say to you there that what he wanted was to be put back in as good position as before, that he wanted to have an engine such as would have as good a guarantee as the one that was broken ? Did you say anything to him about having the broken engine mended? A. I told him I thought we could get it repaired without much money, and he said he wouldn’t accept it, that he would lose his guarantee. Q. Afterwards you and he went to see Fry ? A. Yes. Q. Did you tell Fry that Metzger would not accept an engine without a guarantee? It was after this conversation with Fry that you signed any paper at all? A. Yes. Q. Then it was on the following day, the •23d, that you signed this paper? A. Yes. Q. Before you signed it, you say that Kutz told you that the Geiser Company "would not allow you more than $371 on the old engine? A. That’s all,he said they couldn’t allow more than old scrap.” Independent of the record made in the township book, a "jury would be clearly warranted in finding from the testimony 'that the question of the liability of the township to Metzger was carefully considered, by the two supervisors, and that liability was properly adjusted by their securing for him a new engine in payment of his claim for the injuries to the old one, and that in furtherance of this settlement of a claim against the township, they signed the order for the engine, directing that it should be consigned to themselves and delivered to Metzger, after they provided for payment of the freight. Until the time for the payment of the engine arrived they never made any complaint as to the fairness of the transaction, and never to the time of the trial, of the right of Metzger to hold the new engine in ratification of their contract. In the light of the authorities there was sufficient evidence of deliberation and consultation by the supervisors to require the submission of the case to the jury. One supervisor cannot bind the township for performance of a contract, the propriety of entering into which is a proper subject for deliberation, and the exercise of judgment, and when the business requires deliberation, consultation and judgment all should be convened because the advice and opinions of all may be useful though they do not unite in opinion; but no set form has ever been suggested as essential to bind the township. And while the order, standing alone, was given in an irregular manner, and was executory only, and in legal effect but a preliminary step in the transaction, yet, when the, supervisors met and conferred together with regard to its subject-matter and subsequently ratified their business conferences by accepting the fruits of their bargain through the adjustment and settlement of a large claim against the township, a jury might well conclude that the township for which they acted should be held to the same rules of good faith which obtain in business between individuals. There is sufficient in this record to warrant a jury in treating their order for the engine and the acceptance of it by delivering it to Metzger as a joint ratification of their former consultations and deliberation so as to make the township liable for their action. The debt due to Metzger by the township is paid, the only question now is who should be the paymaster, the plaintiff or the real debtor ? The whole question is so fully and thoroughly reviewed in Austin Manfacturing Company v. Ayr, 81 Pa. Superior Ct. 356, that we do not feel it necessary to again refer to it. The case should have been submitted to the jury under proper instructions. See Machinery Co. v. Union Township, post, p. 538.

The judgment is reversed, and a venire facias de novo awarded.