text:
    Long v. Hepps, Appellant.

      Appeals—Assignments of error—Rulings on evidence—Paper-books—■ Evidence.

    1. Assignments of error to the admission of evidence are insufficient if they do not set forth the rulings of the court to which the assignments refer.
    2. An appeal will be affirmed where the appellant fails to print in his paper-book essential parts of the record, making it impossible for the appellate court to pass upon the questions raised by the' assignments of error.

      Submitted May 5, 1910.
    Appeal, No. 182, April T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., May T., 1906, No. 427, on verdict for plaintiff in case of Patrick Long v. Adolph Hepps.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for rent. Before Evans, J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $1,000. Defendant appealed.

      Errors assigned were (4-6) instructions and rule, fully quoted in the opinion of the Superior Court; 1-3 were in the following form:
    1. The court erred in overruling the objection of defendant’s counsel as to items contained in clause of plaintiff’s declaration which reads as follows: “Plaintiff was compelled to pay out the sum of $241.39 for repairs which became necessary to be expended upon the premises during defendant’s occupancy, and which repairs are shown by statement hereto attached.” Said objection being based upon sec. 4, rule 8, of this court, which provides: “No evidence will be heard upon the trial of the cause, as to any facts not substantially alleged or referred to, as ground of action or matter of defense, in the statement then on file in the case.”
    2. The court erred in overruling objection of defendant’s counsel as to the admission of testimony regarding clause in plaintiff’s statement which provides: “The premises were left in such bad repair that to put them in such condition as they were at the time of making the lease, reasonable wear and tear excepted, will require the further expenditure for plastering of $260, and for carpenter work of $264.” Defendant’s counsel relied upon sec. 4 of rule 8, hereinbefore quoted at length.
    3. The court erred in sustaining the objection of plaintiff’s counsel to the following proposition of defendant’s counsel: “We propose to prove by the witness on the stand, that during the year 1903 and the beginning of 1904, the premises became in an untenable condition, by reason of the failure of plaintiff in this case to make the repairs which he agreed to make, and which were contemplated by the lease. This, for the purpose of justifying the defendant in surrendering the premises and rescinding the contract of lease.”

      John F. Cox, for appellant.

      W. B. Rodgers and W. I. King, for appellee.
    December 12, 1910:
   Opinion by

Beaver, J.,

Objection is made to the first, second,.third and fourth assignments of error, as being contrary to our rules XV and XVI. The objection is well taken. These assignments are insufficient in that they do not set forth the rulings of the court to which the assignments refer. They are, therefore, not considered.

The fifth and sixth assignments relate to different parts of the charge. The fifth assignment is to the portion of the charge of the court in which it is said: “So far as the facts of this case have been produced, there is no reason why the defendant should not have paid his rent during the whole term of his lease. The defendant having abandoned the premises, the landlord, the plaintiff in this case, had two courses, either of which he might pursue. He could have paid no attention to the premises, and held the defendant liable for the full amount of rent for the term; or he could take charge of the premises for the defendant, leasing them to the best advantage, and collecting the rent, and giving defendant, the tenant, credit with all the rent he received, and hold him liable for the remainder. And that is what he has done in this case.”

The sixth assignment also relates to that portion of the charge of the court which follows: “The defendant agreed to make all necessary repairs, with the exception of repairs to the roof, the sewers and the water pipes, and to make those repairs at his own cost, and he agreed to make those repairs during the whole term of his lease, not only for the year that he actually occupied and had possession of these premises, but for the whole term of three years. He agreed by that lease to make those repairs and pay for them and, if the landlord made any repairs which the tenant had covenanted to make by the terms of this lease, then he is entitled to be compensated for that, in this suit.”

We fail to see wherein there is error in either of these portions of the charge of the court, as assigned. The appellant in his argument alleges that “The lease provides that owner is to repair roofs, sewer and water pipes. Defendant alleges breach of these conditions, on account of which, premises became untenantable, and tenant, after due notice to owner, abandoned premises.” A reference to the lease fails to show any specific covenant on the part of the plaintiff to make repairs to roof, sewer and water pipes. The provisions of the lease in that respect are that the party of the second part (the defendant here) shall “make all necessary repairs at his (excepting the roofs, sewers and water pipes) own proper costs and charges, without abatement of the said rent,” etc.

Does the exception contained in this clause of the lease refer to the person who is to make the repairs to roofs, sewer and water pipes, or to the person at whose expense they are to be made? Observe, the provision is that the party of the second part shall make all necessary repairs, and the exception occurs in the subclause which relates to “his own proper costs and charges, without abatement of the said rent.” If we were called upon to construe this lease, this would be the serious question presented, but as the case is presented to us, we do not see that we are called upon to do this, for the reason that the testimony, relating to what the defendant alleges was an untenantable condition of the premises and due notice to the owner, is not printed, and we are, therefore, unable to determine whether or not the fact upon which the defendant predicates his right to abandon the premises existed.

The plaintiff, in answer to the defendant’s position in this behalf, alleges that this whole question was passed upon in a previous action in the court of common pleas No. 3 of Allegheny county, between the same parties, and on the same lease, in which there was a verdict and judgment for the plaintiff unappealed from, and quotes the charge of Judge McClung in that case and asserts that the record of the case was in evidence in the case which we are now considering, and that, therefore, this question was res judicata. Here again we are at a loss in regard to the facts. If the record of the case referred to was in evidence, no part of it is printed in the appellant’s paper-book and we are, therefore, at a loss to determine what was decided in the case. It is very evident, therefore, that these two important questions of fact are essential to an understanding of what was in issue in the case, and, as they are not presented in any way by the testimony, we are unable to determine.

The defendant cites Jackson v. Farrell, 6 Pa. Superior Ct. 31, as to the right of the defendant to abandon the premises, but that case is not in point, for the reason that the facts there were essentially different, the main one being a covenant on the part of the landlord to remove the leased premises to a more favorable site, which he failed to perform.

And so in Bittner v. Bangert, 35 Pa. Superior Ct. 448, which was a case relating to the sufficiency of an affidavit of defense made by the sureties of the tenant. The question was as to the right of the tenant to remove from the premises, because of a failure on the part of the landlord to make, in accordance with a specific covenant in the lease, such repairs to the heating plant as would make the building (a hotel) which was the subject of the lease, habitable for guests, which was alleged to be absolutely essential to the carrying on of the business in which the lessee, for the payment of whose rent the sureties were liable, was engaged.

No objection to the omission of the testimony is made by the appellee, and, inasmuch as the case was submitted without argument, we were unable to inform ourselves in regard to the reasons for omitting all except certain excerpts which relate to the questions in relation to the admission of evidence ruled upon by the court.

The appellant, in the fourth assignment of error, says: “The court erred in ruling that the questions raised in this case were res adjudicata, by reason of the trial of the case in which the lease was construed by his Honor, Judge MeClxjng, and followed by another case where a lease was similarly construed and treated by his Honor, Judge Evans.” We have not considered this assignment of error, for the reason that it is not in accord with our rule of court; but, upon examination of the charge of the court, we fail to find any allusion to a trial by either of the judges named, and, inasmuch as the records in those cases are not presented, nor even alluded to in the testimony as printed, and for the further reason that in the charge, as printed in the appellant’s paper-book, there is nothing upon which to base the assignment, it is clearly impossible for us, even if the alleged error was properly assigned, to deal with it in any way.

It seems to us quite apparent from what has been said that it is impossible, as the record stands, as contained in the appellant’s paper-book, for us-.to determine that the ■court was in any way in error, either as to the admission of evidence or in its charge to the jury.

Judgment affirmed.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Agnew, Appellant, v. Stroud.

      Trespass—Disputed boundaries—Cutting of timber—Destruction of fence—Adverse possession—Evidence—Case for jury.

    1. In an action of trespass to recover damages for the cutting of timber trees, and the destruction of a fence, the case is for the jury, and a verdict and judgment for defendantwill be sustained where the evidence as to the location of a particular line claimed to be a boundary line, is conflicting, and the evidence is also conflicting as to a claim by adverse possession of the plaintiff for more than twenty-one years.
    2. In a dispute over boundaries the distances in a deed must give way to the marks on the ground.
    Argued March 7, 1910.
    Appeal No. 15, March T., 1910, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 731, on verdict for defendant in case of Harper W. Agnew v. Frank L. Stroud.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for the cutting of timber trees and the destruction of a fence. Before Ferris, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were refusal of binding instructions and the instructions quoted in the opinion of the Superior Court.

      Quincy A. Gates, for appellant.

      M. J. Mulhall, for appellee.
    March 3, 1911.
   Opinion by

Beaver, J.,

The plaintiff and defendant are owners of separate parts of what was an original survey in the warrantee name of George Bump, surveyed August 26, 1795. This survey was sold for taxes and purchased by Jonah Rogers. Both of the parties through several mesne conveyances claimed under Rogers. The survey was returned as containing 450 acres and 133 perches and allowance. The return of survey calls for a white oak at the southwest corner and a pine at the southeast corner of the tract. Both of the northern corners call for a post and there do not seem to have been any lines run from the corners on the south. It is one of nineteen tracts surveyed at the same time, the interior lines of which do not seem to have been run at the time the survey was made. It is claimed by the surveyors of a later day that the George Bump survey is in width narrower and in length shorter than the return shows.

The action in the court below was in trespass for cutting and removing certain trees, and in removing a wire fence upon and over land which is claimed by the plaintiff. The entire tract of land is over 400 perches in length. About 126 rods from its southern boundary a public road crosses the entire width of the tract. It is very clear from the testimony of both sides that the trespass, if any was committed, was upon that portion of the tract lying south of the public road, and the declaration of the plaintiff is, in part, that the defendant “then and there tore down, removed and destroyed the wire fence of the plaintiff then and there standing and being upon the line between the plaintiff and the defendant, to the length of one hundred and twenty-five rods, of the value of one hundred dollars,” etc. There is no allegation in the plaintiff’s statement of claim, nor is there any evidence whatever that any act of trespass was complained of or shown to have been committed north of this public road. It is not shown that the plaintiff or defendant had cleared any of the land south of the road. Although the timber had been removed from it for the most part, it was still in forest and after the removal of the wire fence by the defendant, which he admits and of which the plaintiff complains, there was no division line maintained by either, nor was it used except possibly for pasturage.

The true division line separating the parts of the original survey claimed by each respectively was the main question in dispute, the plaintiff claiming that it was what was known as the Colt line and the defendant that it was what was known as the Lord line, these lines being named for the several surveyors who originally ran them, and which were about ten rods apart. The Lord line was the older of the two and was the one to which the defendant claimed. Surveyors upon both sides were equally positive that each of these lines was the correct one dividing the Bump survey, although neither side seems to have located, with any degree of certainty, the east line of the survey. The pine at the southeast corner, as we understand it, not having been found, and a post being called for at the northeast corner, it was probably impossible to locate this line with any degree of certainty. Whether or not the Lord line, which was the older of the two, was the proper line to divide the tract, or the Colt line, was the principal point in controversy. This depended entirely upon the testimony of the surveyors of the several sides respectively and was, of course, a question for the jury.

The plaintiff introduced certain evidence as to clearings north of the public road. He was allowed to show that such clearings did exist which had been made by the plaintiff, or those under whom he claimed, more than twenty-one years prior to the date of the suit. If such clearings were made and extended to the Colt line and were duly inclosed, they were evidence, if the possession thereunder was actual, open, hostile, exclusive and notorious, as well as continuous and peaceable, not only of title to what was. so inclosed, but that the Colt line was the true dividing line of the tract running throughout its entire length, and, if the jury had been satisfied of this latter fact by the evidence, the land upon which the alleged trespass was committed would have belonged to the plaintiff and not to the defendant.

It was denied by the defendant that he had cut any of the timber upon the disputed locality subsequently to the time of the purchase of his tract of land by the plaintiff. If this were true, the plaintiff, of course, was not entitled to recover. The defendant having admitted that he directed his men and assisted them in removing the wires which constituted the fence which had been erected by the plaintiff, the jury must have found, as their verdict was for the defendant, that the Lord line was the true line of division between the farms of the plaintiff and the defendant.

The plaintiff endeavored in the court below, and endeavors here, to maintain the proposition that the clearing above the road, which he claims was to the Colt line, having been occupied by him adversely and continuously more than twenty-one years prior to the suit, he, therefore, acquired title by such possession thereto, and that this carries with it the title to the land south of the road which was not cleared and as to which there was no evidence of a possession which had scarcely any of the elements necessary to acquire such a title. As to whether or not the plaintiff acquired title by adverse possession by the clearing north of the road was also a question for the jury, because it was stoutly denied by the defendant that such title had been acquired, or indeed that the clearing had been made to the Colt line.

It is not intended to imply by what has been said in reference to the road which was not laid out and opened until after both the Lord and Colt lines had been run, as the division lines of the Bump tract, that it has any practical effect in any way in determining the question involved. It is simply a convenient geographical boundary in separating the place where the clearing was made and that where the alleged trespass was committed.

In view of what has been said, it is very clear that the court could not have directed a verdict for the plaintiff, nor upon motion therefor could it have granted judgment for the plaintiff non obstante veredicto. The first, second, fourth, sixth and seventh assignments of error are therefore overruled.

The third assignment relates to the refusal of the court to confirm the plaintiff’s third point, which was: “If the jury believe the defendant cut timber upon the land in dispute and removed timber and converted it to his own use since the 29th of March, 1901, the plaintiff is entitled to recover a verdict for three times the value of said timber, in addition to the damages the plaintiff has sustained by reason of the removal of the fence by the defendant. ” The court gave proper instructions as to the measure of damages, but it could not, of course, affirm the point as put, unless the jury found also that the defendant cut the timber upon the land of the plaintiff, and the point was, for that reason, very properly refused.

The appellant also assigns the affirmation of the fifth point of defendant for error, which was: “The distances in the deed must give way to the marks on the ground; and, if the jury believe that the line claimed by Stroud constitutes the true division line in this case between his lands and lands of the plaintiff, their verdict must be for the defendant.” This was, it seems to us, entirely correct as a general proposition, and clearly so in view of the evidence.

The case was well tried, the charge of the court was full, clear and explicit. It does not seem to us that any point in the case was overlooked, and there is no good ground, as we view it, for the allegation in the plaintiff’s seventh assignment that: “The charge of the court was confusing and misleading in not specifically directing the attention of the jury to the real point in issue.” The real question was very properly left to the jury, and, if more was submitted to them than was properly in the case, it was in the appellant’s interest, namely, as to the plaintiff acquiring title by adverse possession to any of the land north of the road, and, although the appellant complains of the manner in which this was done, it seems to us that it covered the question clearly and very fully.

There is no just ground, as we view it, for any of the assignments of error, and they are all overruled.

Judgment affirmed.


author: Beavee, J.,

text:
    Skadra v. Plains Township, Appellant.

      Negligence — Joint liability—Bridge—City—Borough — Township—■ Contributory negligence—Act of April 16, 1870, P. L. 1199.

    1. In an action against a city, a borough and a township, in the county of Luzerne, as joint defendants, to recover damages for personal injuries resulting from a fall into a deep excavation made in reconstructing a county bridge at a point where the city, borough and township meet, there can be no joint judgment where the evidence shows that the accident happened at a point wholly within the limits of the borough, and that neither the city nor the township were guilty of any negligence in failing to erect barriers which would have prevented the accident.
    2. A municipality is under no obligation to erect a barrier across a sidewalk on the approach of a bridge under reconstruction, where the condition of things on the bridge make it plainly visible to every one that there was no footway open for the public.
    Argued March 8, 1910.
    Appeal, No. 34, Jan. T., 1910, by defendant, from judgment of C. P. Luzerne Co., Dec. Term, 1906, No. 569, on verdict for plaintiff in case of Joseph Skadra v. Plains Township, Parsons Borough and City of Wilkes-Barre.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Ferris, J.
    At the trial the following points were presented:
    2. Under all the evidence the verdict of the jury must be for the defendant. Answer: The points presented by the defendants practically call for the taking of the case away from the jury. We think the case is for you to decide and those points are not affirmed and therefore are not read. [1]
    Charles F. McHugh, attorney for Wilkes-Barre city, respectfully requests the court to charge the jury that under all the evidence in the case the verdict should be for the defendant city. Answer: The points presented by the defendants practically call for the taking’ of the case away from the jury. We think the case is for you to decide and those-points are not affirmed and therefore are not read. [2]
    Verdict and judgment for plaintiff for $1,200. Defendants appealed.

      Error assigned were (1, 2) above instructions, quoting them.

      D. A. Fell, with him A. P. Conniff, W. S. Casterline and C. F. Fell, for appellants.
    No joint judgment was possible in this case: Sheridan v. Palmyra Twp., 180 Pa. 439; Boyd v. Ins. Patrol, 113 Pa. 269.

      Andrew Hourigan, with him Jas. L. Lenahan, for appellee.
    There is no question but that there was a joint duty of the three municipalities under the statute to keep this bridge in repair. They failed in that duty, and must now answer for that failure and neglect: Pottsville Borough v. Norwegian Twp., 14 Pa. 543; Newlin Twp. v. Davis, 77 Pa. 317.
    At best the contributory negligence of the plaintiff was a question for the jury: Schum v. Penna. R. R. Co., 107 Pa. 8; Penna. R. R. Co. v. Coon, 111 Pa. 430.
    March 3, 1911:
   Opinion by

Beavee, J.,

Prior to the year 1905, a stream known as Mill creek, in the county of Luzerne, separated the city of Wilkes-Barre from the township of Plains, the center of the bridge parallel with the said stream being the dividing line between these two municipalities. During the year 1905, the borough of Parsons was extended, by proceedings in the court of quarter sessions, so as to cover and include a portion of the territory of the township of Plains, extending along Mill creek, the eastern half of the northern side of the bridge over Mill creek, which was theretofore in Plains township, becoming part of the borough. The final decree was made on November 20, 1905. Subsequently to that date, therefore, the southern half of the bridge was in the city of Wilkes-Barre and the northern half had its western end in the township of Plains and its eastern end in the borough of Parsons.

In the year 1904, a number of citizens in Plains township petitioned the grand jury to erect a county bridge over Mill creek under the provisions of the Act of assembly of April 16, 1870, P. L. 1199, entitled, “An act providing the manner in which county bridges shall be built by the County of Luzerne.” In pursuance of the proceedings had under this special act of assembly, a county bridge was authorized to be built, and in the year 1905 a contract was awarded by the county of Luzerne to P. A. Snyder for the construction of this bridge, including the filling of the roadway, as appears by the specifications. In the execution of his contract, Snyder made an excavation beginning at the northern abutment of the old bridge and extending northwardly, in which he erected an arched culvert or waterway. The old bridge was allowed to remain, but as we understand the testimony was closed to public travel by substantial barriers in the roadway on both sides, at least to such an extent as to prevent teams from entering thereon. The testimony is conflicting as to whether or not there was any barrier across the sidewalk on the Wilkes-Barre side of the bridge. There were no sidewalks at the other end. Where the excavation for the extension of the bridge was made, there was an abrupt descent from what was the northern abutment of the old bridge, of ten or, eleven feet, to the top of the new arch or culvert. At the time of the accident complained of, the masonry or stonework of the contractor had been finished, but the approach to the bridge and the new archway or culvert had not been filled up so as to complete the roadway. The contractor, in order to descend from the level of the old bridge to the top of the arch which he had built, had placed planks or boards which rested upon a barrel and a superstructure of boards at the bottom of the excavation. The descent was very steep and, in order to make it possible to use these boards in descending, cleats were nailed across them at convenient distances to prevent persons who used them from slipping.

On July 4, 1906, whilst the extension of the bridge was in this unfinished condition, the plaintiff attempted to cross from the southern to the northern side of the stream, in order to attend a public picnic held there. In making the descent from the top of the old bridge to the top of the arch or culvert which had been erected as the extension on the northern side, he was seriously injured by falling from the boards or planks by which the descent was made, and recovered, in an action of trespass for such injuries, against the city of Wilkes-Barre, the borough of Parsons and the township of Plains, as joint defendants. A verdict of $1,200 was rendered by the jury, upon which a joint judgment was subsequently entered.

From that judgment, this appeal was taken, and the assignments of error are but three: the first, that the defendants’ point “Under all the evidence, the verdict of the jury must be for the defendant” was refused; second, “Charles F. McHugh, attorney for Wilkes-Barre City, respectfully requests the court to charge the jury that, under all the evidence in the case, the verdict should be for the defendant city,” which was also refused, and the third: “The learned court erred in denying the motion for judgment non obstante veredicto in favor of the defendants.”

The questions involved, as stated by the appellants, make clear the points which are raised in the case:

“A. Are the defendants hable for injuries sustained by the plaintiff on a bridge being built by the County, before the filling of the approaches of the bridge, and its acceptance by the municipalities?

“B. Was the plaintiff guilty'of contributory negligence?

“C. Is the city of Wilkes-Barre liable for defects in the highway in Plains Township and Parsons Borough?

“D. Is the city of Wilkes-Barre liable for the negligence of Plains Township and Parsons Borough for their failure to guard an excavation at an approach to the northern end of a bridge where, under an agreement, Wilkes-Barre City maintained the southern end and Parsons Borough and Plains Township the northern end?”

In Sheridan v. Palmyra Twp., 180 Pa. 439, under facts practically similar to those in the present case, except that the separated municipalities there were counties instead of city, borough and township as here, Mr. Justice Williams delivered the opinion of the court, and, in order to show the similarity of the facts as well as the law which governs them, we cite the entire opinion: “The bridge, by the failure of which the plaintiff lost her husband, was over a stream that had been designated by law as the line between the counties of Wayne and Pike. The road running over it connected the township of Palmyra, Pike county, with the borough of Hawley in Wayne county. A Pier near the middle of the stream was recognized as the boundary between them and each district built and maintained the bridge from its shore to this pier, under an agreement with each other. The accident happened at the Palmyra end of the bridge. The township denies its liability on the ground that the act of June 13, 1836, P. L. 551, sec. 46, provides a mode for building bridges over streams upon the line between two counties, which must be pursued. This is true if the bridge is to be built at the expense of the adjoining counties as a county bridge, but not otherwise. It is competent for the people of the respective townships to build the bridge themselves, and when they divide the bridge at a fixed point, each may build and keep in repair so much of the structure as lies within the township, as any other township road or bridge is built and repaired. Where this is done, as in the case before us, each township would be liable for the negligence of its own authorities in the care of its own end of the bridge. If this was not so, it might be important for every traveler when approaching such a bridge to leave his team and make a journey to the county seat to examine into the legality of the proceedings under which the bridge had been erected, before venturing himself upon it. The question of negligence was for the jury, and was properly submitted to them, so also was the question of contributory negligence on the part of the deceased. The case was well tried by the learned judge of the court below, and the judgment is affirmed.”

■Leaving out of view for the present the question as to whether or not any of the municipalities defendant are liable by reason of the fact that this bridge was being built by an independent contractor, under, an agreement with the county of Luzerne, can a joint judgment against these three municipalities be sustained?

As to the locality in which the accident occurred, there can be no doubt but that it was in the borough of Parsons. It was clearly beyond the center of the bridge, which was the boundary between the city of Wilkes-Barre and the borough of Parsons and township of Plains, and, as the testimony clearly shows, it was at the eastern end of the bridge, which was in the borough of Parsons.

The court left it to the jury to say whether or not there was a rail across the sidewalk in the city of Wilkes-Barre, which prevented persons who were walking from crossing the bridge, and that, if there'was none, it was evidence of negligence on the part of the city. To this, under the circumstances, we cannot agree. There was an impassable barrier in the roadway which was notice to all concerned that the bridge was not open for public travel. The plaintiff and all pedestrians, admitting that the lack of a barrier across the footway was an invitation to enter thereon, after crossing the line which divided the city from the borough, came upon a condition of things plainly visible which was of itself notice that there was no footway open for the public. The plaintiff saw this. He could not fail to see it. There was an abrupt descent of from eight to twelve feet directly in front of him. He saw, also, a makeshift of boards with cleats nailed across them descending at an acute angle which had been erected by the contractor for the use of his workmen. There was neither roadway nor sidewalk for travel, but a deep excavation terminating in and upon a rough archway upon which there was no filling. He assumed the risk of descending by this makeshift, without in any way testing its character. He was precipitated, when stepping upon the second or third cleat, to the masonry of the archway below and sustained a fracture of the neck of the femur, by reason of which in the joining of the fractured bone the one leg was made about one inch shorter than the other.

■As to the conduct of the plaintiff at the bridge there is no dispute. We are of opinion, that, confronting a condition which clearly indicated that there was no roadway across the part of the bridge in the course of erection, and assuming the risk of descending by the unusual mode provided by the contractor for his workmen, he was guilty of contributory negligence and was, therefore, not entitled to recover.

We can find nowhere in any of the testimony anything which would convict Plains township of negligence of any kind. It did not contribute in any possible way to this injury. Even if it be admitted that it was their duty to erect barriers so as to prevent persons from pursuing the public road, it appears that barriers across the road had been erected and that there were no sidewalks on that side of the bridge, but even if there had been, the plaintiff did not approach from that side of the bridge, and any failure on the part of the township to erect and maintain such barriers could not in any possible way have contributed to the accident from the results of which he seeks to recover jointly against the three defendant municipalities.

In Magee v. Railroad Co., 13 Pa. Superior Ct. 187, we held that “In general, where two or more persons act independently in producing an injury, they are hot jointly liable for the combined results of their act, and the fact that it is difficult to determine the relative proportion of injury caused by each is not a sufficient reason for holding them jointly liable.” President Judge Rice, who wrote the opinion in this case, says: “The principle is well illustrated in Little Schuylkill Nav. R. R. & C. Co. v. Richards, 57 Pa. 142. Suit was brought for damages to a dam filled by deposits of coal dirt from different mines on the stream, some of which were worked by the defendants and their tenants, and some by persons not connected with the defendants. It was held that the defendants were not liable for the whole damage caused by the deposits, nor for the acts of their tenants so far as these were done without their sanction. Mr. Justice Agnew said: ‘Without concert of action, no joint suit could be brought against the owners of all the collieries, and clearly this must be the test.’ This principle has been recognized in many similar cases in Pennsylvania, amongst which may be mentioned, Seely v. Alden, 61 Pa. 302; Little Schuylkill Nav. R. R. & C. Co. v. French, 81* Pa. 366; Gallagher v. Kemmerer, 144 Pa. 509. It has also been recognized and applied in cases brought to recover damages for the pollution of a stream by sewage discharged into it by different riparian owners: Chipman v. Palmer, 77 N. Y. 51; Sellick v. Hall, 47 Conn. 260. In the New York case, Miller, J., said: ‘The right of action arises from the discharge into the stream, and the nuisance is only a consequence of the act. The liability commences with the act of the defendant upon his own premises, and this act was separate and independent of and without any regard to the act of others. The defendants’ act, being several when it was committed, cannot be made joint because of the consequence which followed in connection with others who had done the same or a similar act.’ See further Weakly v. Royer, 3 Watts, 460; Bard v. Yohn, 26 Pa. 482; Simpson v. Seavey, 8 Maine, 138; and Gould on Waters, sec. 222 (3d ed.). We think the principle applicable here. If there were any evidence that the drain was constructed as a common drain or sewer, or that the turnpike company either expressly or impliedly assented to the use that Shibe made of it, the case would be different. But, in view of the undisputed facts to which we have alluded at the outset of the discussion of this branch of the case, it is impossible to see how the turnpike company can be held liable for the pollution of the plaintiff’s well resulting from the independent act of Shibe in turning his kitchen sewage into the drain.” In this case a joint judgment against the defendants was reversed.

We are clearly of the opinion, therefore, independently of what we have said in regard to the question of contributory negligence, upon which we do not rest the judgment in this case exclusively, that a joint judgment against the three defendants here cannot be maintained, first, because there was no evidence whatever of any independent negligence on the part of Plains township and Parsons borough which contributed to the accident, second, there was no joint obligation on their part to maintain a barrier across the sidewalk on the part and within the limits of the city of Wilkes-Barre, even if there was such an obligation on the part of the city, and, third, a joint judgment cannot in any event be sustained.

The assignments of error are, therefore, sustained.

Judgment reversed.


author: Porter, J.,

text:
    Gordon v. Gordon, Appellant.

      Vendor and vendee—Title to growing crops—Lien of execution— Ejectment.

    1. Where a vendee under articles of sale of real estate goes into possession, pays a portion of the purchase money, plants crops, and thereafter a judgment is entered against him and an execution issues under which a levy is made upon the growing crops, such execution will maintain its priority of lien over a judgment in ejectment entered under an ejectment clause in the articles for nonpayment of an installment of the purchase money.
    2. When he who is in the lawful possession of land owns the growing crops, not the natural products of the soil but the annual fruits of industry and labor, those crops are personal property and may be seized and sold on execution, although in the absence of such constructive severance, they would pass with the realty in case of conveyance, unless reserved.
    Argued March 15, 1910.
    Appeal, No. 18, March T., 1910, by defendant, from order of C. P. Perry Co., Nov. Term, 1908, No. 107, distributing fund in case of Caroline Gordon et al. v. G. B. M. Gordon, defendant, and Chas. A. Barnett, executor of C. Roth, deceased, claimant.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Distribution of fund realized from sale of growing crops.
    The case was heard by Woods, P. J., specially presiding.
    The court ordered distribution among the execution creditors.

      Error assigned was the order of the court.

      James M. Barnett, of Barnett & Son, for appellant.—•
    The grantor had a right' to the growing crops against the grantee’s execution creditors: Hodgson v. Gascoigne, 7 E. C. L. 35; Anderson v. Radcliffe, 96 E. C. L. 806; Altes v. Hinckler, 36 Ill. 275; Gardner v. Kersey, 39 Ga. 664; Carlisle v. Killebrew, 6 L. R. A. 617.

      W. H. Sponsler, for appellees.
    There is no state in the Union in which growing crops, being fructus industriales, are regarded as personalty for more purposes than in Pennsylvania. They pass to the administrator or executor instead of the heir: Pattison’s App., 61 Pa. 294. They may be sold or reserved by parol agreement: Backenstoss v. Stahler, 33 Pa. 251, and they may be levied upon and sold as personalty by writ of execution: Stambaugh v. Yeates, 2 Rawle, 161.

      There was a constructive severance by the levy of the sheriff and the crops did not pass with the land: Bear v. Bitzer, 16 Pa. 175; Stambaugh v. Yeates, 2 Rawle, 161; Loose v. Scharff, 6 Pa. Superior Ct. 153.
    March 3, 1911:
   Opinion by

Porter, J.,

The appellant by articles of agreement, dated January 20, 1905, agreed to sell and convey a farm to G. B. M. Gordon, the defendant. This agreement provided that a part of the purchase money should be paid in cash and the balance in installments; that Gordon should be entitled to the possession, rents, issues and profits of the farm from and after April 1, 1905. It further provided that in case default be made in any installment of the purchase money the whole amount should become due and payable, "at the option of the party of the first part” and authorized the entry of a judgment for that amount; "Or the party of the first part may at his option, proceed by action of ejectment on this agreement for the balance of such purchase money, after default made as aforesaid; and in such case the said party of the second part authorize and empower any attorney. . . . to appear for him in an amicable action of ejectment for the premises above described .... and confess judgment therein in favor of the plaintiff and against the defendant for said premises, and authorize the immediate issuing of a writ of habere facias possessionem.” Gordon went into possession of the farm on April 1, 1905, under the terms of this agreement, and from time to time made payments on account of the purchase money, but not to the full amount of the installments which had become due. While thus in possession of the farm, in the fall of 1908, he sowed one of the fields with rye and another with wheat. While these crops were growing and the farm still in the possession of Gordon, on January 6, 1909, the plaintiff obtained a judgment against him and an execution issued thereon was levied, by the sheriff, upon these growing crops. Gordon not having paid the full amount of the installments of purchase money which had become due under the agreement, the appellant, on January 22, 1909, exercised the option, given him by the agreement, to proceed by amicable action of ejectment to obtain possession of the farm and under the warrant of attorney caused a judgment to be entered against Gordon for the premises and issued a writ of habere facias possessionem, which was executed, thereby putting him in possession of the land the same day. The question presented by this record is whether the entry of the judgment in ejectment and the execution of the writ which put the appellant into possession of the farm gave to the appellant title to the growing crops, as against the execution of the plaintiff which had already been levied upon such crops. The court below held that the appellee was entitled to sell the crops under her execution, and from that judgment we have this appeal.

The appellant contends that the effect of the entry of the judgment in ejectment, under the warrant of attorney, and the execution of the writ which put him into possession of the farm was to vest in him title to all the crops growing on the farm, without any regard whatever to what rights others might have acquired in such crops. There can be no question that growing crops, as between the successful plaintiff in an action of ejectment and the evicted defendant, pass as a part of the realty; and if the former is put into possession of the land, before the crops have been severed, he takes the crops with the land. Growing crops may be as between some parties a part of the realty, while as between others they may be personal property. When a mere trespasser obtains possession of land and sows grain thereon, he never has title to either the land or the growing crop, and when the owner, whether with or without judicial process, recovers possession his title to the growing crop is good against the trespasser and all who claim under him: Hellings v. Wright, 14 Pa. 373; Altes v. Hinckler, 36 Ill. 275. We are not in this case, however, dealing with the rights of an owner of land who had unlawfully been deprived of the possession. The written agreement for the sale of the farm left the legal title in the appellant, but vested an equitable estate in Gordon, which entitled him to the possession, rents, issues and profits; the beneficial ownership of the land. The provisions, in case of default in payment, for the entry of judgment for the whole amount of the purchase money, “or at the option of the party of the first part” the entry of judgment in an amicable action of ejectment, were incidental and secondary to the main purpose of securing the payment of purchase money. The appellant had power to take a judgment for the money, or a special power to confess judgment by which he could repossess himself of the land. The latter course was in the nature of a forfeiture: Jones v. Scott, 209 Pa. 177. The entry of this judgment did not judicially determine that the possession of Gordon had been unlawful; all that it did settle was that the appellant had elected to exercise his right to reclaim the land. The mere right of the appellant to assert the forfeiture did not give him the right to possession of the land until he exercised his option, in the manner provided by the agreement, and entered judgment in ejectment, on January 22, 1909. Until that time the possession of Gordon was lawful, he not only had actual possession but the right of possession. He had an equitable title to the land, of which he was in possession, and he owned the growing crops. This was the position of affairs when the execution of the appellee issued and the sheriff levied upon the crops. When he who is in the lawful possession of land owns the growing crops, not the natural products of the soil but the annual fruits of industry and labor, those crops are personal property and may be seized and sold on execution; although in the absence of such constructive severance, they would pass with the realty in case of conveyance, unless reserved: Backenstoss v. Stahler, 33 Pa. 251; Hershey v. Metzgar, 90 Pa. 217; Long v. Seavers, 103 Pa. 517; Loose v. Scharff, 6 Pa. Superior Ct. 153. When the growing crops involved in this case were levied upon, under the fi. fa. of the appellee, they were liable to be thus taken in execution for the debt of Gordon. The effect of this levy was to vest in the sheriff a special property in the growing crops, which he cotild sell before or after the return day in satisfaction of his writ: Sturges’s Appeal, 86 Pa. 413. The title of Gordon to these crops, to the extent necessary to satisfy the execution, thus became vested in the sheriff. This constituted a constructive severance of the growing crops; the title to the crops became distinct from the title to the land, and did not pass to the appellant when he took possession of the land under his judgment in ejectment subsequently entered.

The judgment,is affirmed and the appeal dismissed at cost of the appellant.


text:
    Commonwealth, Appellant, v. Spotts.

      Fish 'law—Summary conviction—Appeals—Discretion of court—Review.

    1. The allowance of an appeal from a summary conviction before a justice of the peace of a violation of the fish laws is within the discretion of the quarter sessions; and a judgment of the quarter sessions refusing such an appeal will not be reversed by the Superior Court, except where it clearly appears that there has been an abuse of the discretion by the quarter sessions.
    2. The action of the court of quarter sessions in refusing to allow an appeal from a justice of the peace in such a case will not be reversed, where it appears that the averments of the petitioner for the appeal amounted to nothing more than an assertion that the opinion of the petitioner differed from the justice’s findings of fact and conclusions of law without any statement as to what the evidence was, or what the law should have been; and equally immaterial is an averment that in the opinion of the petitioner and from what he had heard from others, and from what the justice had afterwards said to him, he believed the magistrate was under coercion or duress.
    Argued March 15, 1910.
    Appeal, No. 24, March T., 1910, by- plaintiff, from judgment of Q. S. Perry Co., Jan. Sess., 1910, No. 5, refusing an appeal in case of Commonwealth v. Charles A. Spo.tts.
    Before Rice, P. J., Henderson, Orlady, Head, Beayer and Porter, JJ.
    Affirmed.
    Petition for an appeal from a summary conviction under the fish laws.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was refusal of the appeal.

      William M. Hargest, assistant deputy attorney general, Seibert & Seibert, J. E. B. Cunningham, deputy attorney general, and M. Hampton Todd, attorney general, for appellant,
    cited: Com. v. Kenney, 32 Pa. Superior Ct. 544; Com. v. Rosenthal, 3 Pa. C. C. Rep. 26; Com. v. Massinger, 13 Pa. Dist. Rep. 621; Com. v. Jolly, 15 Pa. Dist. Rep. 305.

      Luke Baker, for appellee,
    filed no printed brief.
    March 3, 1911:
   Opinion by

Porter, J.,

The record as printed in the paper-book of the appellant is incomplete, in that it entirely fails to show the transcript of the proceedings before the magistrate, which resulted in the judgment from which the commonwealth sought to appeal. The only parts of the record which are printed, are the information and the petition to the court below for the allowance of an appeal from the judgment of the magistrate; from which we gather the following facts: the defendant was charged before a magistrate in a summary proceeding with a violation of the Act of May 1, 1909, P. L. 353, entitled “An act to classify the fish in. the waters within this Commonwealth .... and to regulate the catch and sale and encourage the propagation of the same &c.” The defendant appeared before the magistrate and was, after a hearing, discharged. The prosecutor, on behalf of the commonwealth, then presented a petition to the court below praying for the allowance of an appeal to the court of quarter sessions. That court made an order refusing to allow the appeal, which order is here assigned for error.

The nature and limits of our jurisdiction to review the action of the court below in refusing to allow an appeal from the judgment of a magistrate, in a proceeding for the summary conviction of a defendant, have been well defined by both this and the Supreme Court. Neither art. V, sec. 14 of the constitution nor the Act of April 17, 1876, P. L. 29, which was passed to carry it into effect, contemplates that an appeal should be allowed merely because the party praying for it is dissatisfied with the result of the trial before the magistrate, as is the case with most defeated litigants. The purpose of the constitutional provision and of the statute was to vest in the court to which the petition for the allowance of an appeal from the judgment of the magistrate must be presented, a discretion to determine whether the appeal should or should not be allowed. The court of quarter sessions being thus vested with discretion in this matter, its action should only be reversed where an abuse of discretion clearly appears. The appeal to this court in these statutory proceedings is in the nature of a certiorari, and in considering it we cannot go outside of the record. An appeal from the judgment of a magistrate in a summary conviction should not be allowed save for cause shown, and the cause should be stated in the petition: McGuire v. Shenandoah Borough, 109 Pa. 613; Commonwealth v. Eichenberg, 140 Pa. 158; Commonwealth v. Menjou, 174 Pa. 25. Judge Wickham who spoke for this court in Thompson v. Preston, 5 Pa. Superior Ct. 154, and Commonwealth v. Hendley, 7 Pa. Superior Ct. 356, said, referring to the allowance of appeals by the courts of quarter sessions: “Ordinarily an appeal should not be permitted, if the party desiring it has had an opportunity to fully and fairly present his case before the magistrate, unless a doubtful legal question is involved,.or there is something to indicate oppression, corruption or disregard of law on the part of the magistrate, or after discovered evidence which would justify a new trial, under the well known rules relating to new trials for that cause.”

We must, therefore, turn to the petition, which the appellant presented to the court below, to ascertain whether the reasons there set forth for the allowance of an appeal were of such a character as to make it evident that the refusal of the appeal involved an abuse of discretion upon the part of the court. The petition alleged three reasons for the allowance of the appeal: (1) That the magistrate grossly and wantonly disregarded the evidence adduced on the part of the commonwealth; (2) that the magistrate grossly and wantonly disregarded the provisions of the said act of assembly; and (3) that from statements made by said magistrate "to others before the time fixed for the hearing and to your petitioner and others after said hearing, it appeared to your petitioner that the said justice of the peace was under coercion or duress by some person or persons, to your petitioner unknown and in favor of the said Charles A. Spotts.” We are unable to say that these allegations were of such a character as to render the refusal of the appeal an abuse of discretion upon the part of the court below. The first reason amounts to no more than an assertion that the opinion of the petitioner, as to the facts established by the evidence, differed from that of the magistrate, the petitioner made no attempt to fortify his opinion by stating what evidence had been produced, or whether any evidence had been produced which would have warranted the magistrate in convicting the defendant. The second reason was no more than an assertion that the opinion of the petitioner, as to the law, differed from that of the magistrate. He made no attempt to aver what the law was or what the magistrate had held it to be. The third reason was simply an averment that, in the opinion of the petitioner, from what he had heard from others and from what the magistrate had afterwards said to him, he believed the magistrate was under coercion or duress. Here again he utterly failed to set forth the ground upon which his opinion was based. Reduced to its legal value, the petition simply asserted that in the opinion of the' petitioner the magistrate had made a mistake as to the facts and as to the law and that he had been under some sort of duress. This petitioner was not the person in whom the law had vested the discretion to determine whether an appeal should be allowed in this case, his opinion was not that which was to govern. He ought to have set forth the facts upon which his opinion was founded, and the court would then have been in possession of the information which would enable it to act in the manner contemplated by law. The specification of error must be dismissed.

■ We deem it proper to say that this disposition of the case is not to be construed as an adoption of the views expressed in the opinion of the learned judge of the court below, which is not a part of the record proper, as to whether the court of quarter sessions has jurisdiction to allow an appeal, upon the petition of the commonwealth, when in a proceeding for summary conviction the defendant is discharged by the magistrate. Whether the court of quarter sessions has jurisdiction, under the constitutional provision and the statute, to allow an appeal by the commonwealth, can be determined when a defendant is convicted in the court of quarter sessions after having been discharged by a magistrate. It is not in this case necessary to express an opinion upon that question.

The order appealed from is afiirmed; the costs to be paid by the-appellant.


text:
    Sechrist, Appellant, v. Dallastown Borough.

      Road law—Private lane—Dedication—Fence—Evidence.

    1. When a farmer maintains upon his own land a lane fenced on both sides leading from a highway back to his farm buildings, for the convenience of himself, his family, tenants, and all persons who may lawfully visit him, no intention to dedicate such lane to the public as a highway, can be inferred either from the existence of the lane or the fact that the owner had not maintained a gate or bars across it.
    2. When an easement or other right is not expressed in the grant, and is sought to be implied as attached to the grant of the fee in other lands, the same must clearly appear to be the intention of the parties as shown by the terms of the grant, the surroundings of the property, and the other res gestee of the transaction. Such an intention cannot be inferred as to a private right of way on other land of the grantor not referred to in the deed, not abutting upon the property conveyed, and not essential to the enjoyment of such property, as “a way of necessity.”
    Argued March 16, 1910.
    Appeal, No. 8, March T., 1910, by plaintiff, from judgment of C. P. York Co., Oct. T., 1908, No. 28, on verdict for defendant in case of Jacob H. Sechrist v. Dallastown Borough.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Appeal from an award of a jury of view. Refore Bittinger, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the court gave binding instructions for defendant.
    Verdict and judgment for defendants Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      John A. Hoober, with him Lee S. Fake, for appellant.—
    When the appellant opened the lane in question from his farm buildings, over his land, to the public road, having but the one outlet, he decisively indicated that the lane was not a thoroughfare: Gowen v. Philadelphia Exchange Co., 5 W. & S. 141.
    Where a street called for as a boundary is not a public street and not dedicated to public use, then the grantee acquires simply a right of way over the property or street: Spackman v. Steidel, 88 Pa. 453; Whitaker v. Borough, 141 Pa. 327; Gamble v. Philadelphia, 162 Pa. 413; Cole v. Philadelphia, 199 Pa. 464; Fitzell v. Philadelphia, 211 Pa. 1.
    The intention to dedicate must be clearly manifested before the owner can be deprived of his property on that ground: Bellefield Avenue, 2 Pa. Superior Ct. 148.

      M. S. Niles and Henry C. Niles, with them K. W. Alt-land, for appellee.
    March 3, 1911:
   Opinion by

Porter, J.,

The plaintiff having appealed from the report of viewers, appointed to assess damages for the opening of an alley by the defendant borough, the court, at the trial, peremptorily instructed the jury to find a verdict in favor of the defendant. The point submitted by counsel for the borough does not specifically disclose the grounds upon which this instruction was based, but the reason is thus broadly stated, “the plaintiff has not shown any facts legally entitling him to recover damages from the Borough of Dallastown.” We gather from the remarks of the court, as printed in the record, that the ruling must have been based on either one of two grounds, viz.: that the plaintiff had dedicated the land taken to public use, or that he had by deed parted with his title before the borough opened the alley. We must, therefore, consider the bearing of the facts disclosed by the evidence upon both of these questions.

There can be no doubt that the plaintiff did at one time have title to the land over which the alley was located. The land was part of a farm, of considerable size, to which the plaintiff had acquired title in 1880, by deed from John Miller. This farm abutted directly upon the turnpike road, now called Main street. The farm buildings stood back a considerable distance from the road and for the purpose of convenient access to them a lane was maintained along one side of the farm, wholly upon the land to which plaintiff acquired title, extending back in a northeasterly direction, from Main street to the farm buildings; this lane being fenced on each side. The plaintiff some time later sold and conveyed to other parties the southern portion of the land, retaining title to the strip of land covered by the lane and about sixty acres of the northwestern portion of the farm upon which the buildings were located. There is no evidence in this case which would warrant the court in holding, or from which a jury should be permitted to infer, that the plaintiff had made a plan dividing the property which he thus sold into lots and streets, or that any of the deeds which he then made called for the lane in question either as a public or private street or road, or that the grantees of that portion of the land acquired any title to or right in the land covered by the lane. The lane remained fenced on both sides and continued to be used as a means of access to the farm buildings. There was for many years a gate maintained across this lane, at a point some distance north from Main street, and between that street and the point at which a new highway called West Maple street, subsequently opened by the borough, crossed the lane. The only fact from which there could be any pretense of a reason to infer the intention, upon the part of the plaintiff, to dedicate this lane to public use as a highway is that he thus maintained the lane, upon his own land, as a means of access to his own buildings, from Main street. Dedication is a question of intention, and intention, it is true, may be inferred from circumstances, but the circumstances to warrant it must be proved. The learned judge of the court below and counsel representing the borough were disposed to give undue weight to the fact that for some years in the recent past the plaintiff had not maintained the gate across this lane, as had been done during an earlier period. When a farmer maintains, upon his own land, a lane leading from a highway back to his farm buildings, for the convenience of himself, his family, tenants, and all persons who may lawfully visit him, his purpose and intention are so self-evident that it is not necessary for him to take absurd precautions to guard against an implication of an intention to dedicate the strip of land, which he thus uses for his own convenience, to the public as a highway. No such implication can be founded upon such facts, and an owner is not required to maintain gates or bars across his own private lane. The evidence presented in the court below was not sufficient to warrant a finding that this plaintiff had dedicated this lane to public use.

Did the evidence warrant the conclusion, as matter of law, that the plaintiff parted with his title to this strip of land? The only evidence relied upon in the court below, or of which there is any indication in the record, was that contained in a deed, dated April 3, 1905, executed and delivered by the plaintiff to Abram L. McClellan. This deed did not include the strip of land in question. The borough had, some time previous to the execution of this conveyance, ordained and opened a new street, called West Maple street, parallel to Main street. This street crossed the piece of land occupied by the lane in question and separated that part of it between West Maple street and Main street from the other part of plaintiff’s land. The only land which plaintiff then owned south of West Maple street was the strip covered by the fragment of the lane between Main street and West Maple street, but he then owned, also, the tract of land containing about sixty acres and abutting on the north side of West Maple street. This was the condition when, in April, 1905, the plaintiff executed the deed to McClellan conveying, by metes and bounds, the tract of land abutting on the north side of Maple street. That deed did not include, in its description of the land conveyed, the strip on which the lane had been located between Main street and West Maple street or any other land south of the street last named. This deed did not call for the lane in question, nor did it directly refer to it in any manner. It is contended, however, on behalf of the appellee that a right of way over this strip ©f ground passed to the grantee in this deed as an appurtenance of the land conveyed. When an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee in other lands, the same must clearly appear to be the intention of the parties as shown by the terms of the grant, the surroundings of the property and the other res gestae of the transaction: Fitzell v. Philadelphia, 211 Pa. 1. Whether McClellan did acquire a right of way, appurtenant to the tract which he took under the grant, was to be determined by ascertaining the intent of the parties, as expressed in the descriptive parts of the deed, explained and illustrated by all the other parts of the conveyance, and by the locality and subject-matter to which the grant applied: Cox v. Freedley, 33 Pa. 124; Scholl v. Emerich, 36 Pa. Superior Ct. 404. The lane had been essential to the use of the tract of land, in order to obtain access to Main street at the time the plaintiff had parted with the title to his other land abutting on Main street. The opening of Maple street, by the borough, entirely changed the situation, and the tract of land to which McClellan subsequently acquired title directly abutted upon a public street. The land conveyed to McClellan did not abut upon the lane, nor was the lane essential to the enjoyment of his property as "a way of necessity.” The rights of the parties and the construction to be given the grant must be determined from the conditions existing at the time of the conveyance, and the circumstances under which it was made. The land to which McClellan acquired title abutted directly upon the public highway, it was by that highway separated from the strip of land over which the lane had been located, there was nothing in the evidence which tended to indicate that the use of this strip of ground as a way was essential to the full enjoyment of the land which he took under his deed, and there is no ground for holding that he acquired title to a right of way over the property in question: Francies’s Appeal, 96 Pa. 200. Even if McClellan had, under his deed, acquired a right of way over this strip of ground, between Main street and West Maple street, the fee still remained in the plaintiff and he would have been entitled to have the case go to the jury, and the fact that the land was subject to the right of way in McClellan would have gone only to the amount of the damages: Gamble v. Philadelphia, 162 Pa. 413; Cole v. Philadelphia, 199 Pa. 464. The assignments or error are sustained.

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


text:
    New Kensington Distilling Company’s License.

      Liquor laws—Distiller’s license—New license—Act of July 80, 1897, p. l. m-

    Where a distilling company is granted a license upon going into business, and during its first year of business distils a large quantity of whisky, and at the end of the first year is granted a new license, but during the second year, although it continues its business by selling its products theretofore made, distils no whisky, it will not, in taking out a license for the third year, be required to pay a license fee of $1,000, as a new applicant within the meaning of that term in the Act of July 30,1897, P. L. 464, but it will only be required to pay a fee of $100 as having distilled, as an old applicant, less than fifty barrels during the preceding year.
    Argued April 19, 1910.
    Appeal, No. 5, April T., 1910, by the New Kensington Distilling Company, from order of Q. S. Westmoreland Co., Feb. T., 1909, No. 30, requiring appellant to pay a license fee of $1,000 in case of Application of New Kensington Distilling Company for a distiller’s license.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Order modified.
    Petition for distiller’s license. Before Doty, P. J.', and McConnell, J.
    The facts of the case are stated in the opinion of the Superior Court.

      Error assigned was portion of order requiring the applicant to pay a license fee of $1,000.

      David E. Mitchell, with him William A. Griffith, for appellant,
    cited: Doolittle v. Luzerne County, 6 Kulp, 495; Davis v. Patterson, 12 Pa. Superior Ct. 479; Altenburg v. Com., 126 Pa. 602.

      Joseph A. McCurdy, county solicitor, with him J. E. B. Cunningham, for appellee.
    March 3, 1911:
   Opinion by

Porter, J.,

The appellant company was granted a distiller’s license, at February sessions, 1907, of the court of quarter sessions of Westmoreland county, for a distillery located in the borough of New Kensington and, being a new applicant, paid a license fee of $1,000. During the year it operated under this license it distilled 671 barrels of whiskey and at February sessions, 1908, was granted a license for the following year, for which it paid a license fee of $1,000, based upon the amount manufactured. The distilling company presented, at February sessions 1909, a petition for a license for the ensuing year, which petition was accompanied by an affidavit as to the amount of liquor distilled during the preceding year, as required by sec. 1 of the act of July 30, 1897. This affidavit stated that no liquor had been manufactured at the distillery during the preceding year, and that statement is conceded to be true. The court below made án order granting the license prayed for, but being of opinion that, because the distiller had manufactured no liquor during the preceding year, the licensee must be treated as a new applicant, fixed the license fee to be paid at $1,000. The court subsequently amended its order and directed that “said company is permitted and directed to pay said fee under protest to the county treasurer, without prejudice, however, to the right of petitioner to appeal from said order setting said fee at $1,000; and further, without prejudice to the petitioner, in the event that said order should be reversed or amended by the appellate court, to take the necessary steps to secure from the county the said license fee or the proportion thereof which may be declared excessive by the appellate court; and at the same time granted an exception to the applicant and sealed a bill. The appellant assigns for error that part of the final order of the court below fixing the license fee at $1,000.

The question involves the construction of the Act of July 30, 1897, P. L. 464, entitled: “An act to provide revenue and regulate the sale of malt, brewed, vinous and spirituous liquors .... by requiring and authorizing licenses to be taken out by brewers, distillers, &c.” The first section of this statute fixes the amount to be paid for a license by distillers and, for this purpose, adopts a general system of classification based upon the amount manufactured at the distillery during the preceding year, in case the distillery has been licensed during that year. When a distillery is licensed through a continuous number of years, the only means provided by this statute, for fixing the license fee, when the distiller holds a license for the year which is about to expire and seeks to obtain a license for the following year, is to ascertain the amount of liquor which has been manufactured by the distillery during the year preceding the new application and, upon that alone, basing the charge to be made for the license for the year ensuing. The primary purpose of the statute was to make the amount of the license fee,for any year dependent upon the amount manufactured at a distillery which had held a license during the preceding year. The general system which the legislature thus adopted would not, however, provide any means of fixing the license fee to be paid by new distilleries, such as had never had a license. The legislature, in order to provide for these particular cases, adopted a specific provision, viz.: “All new distilleries and breweries established and located in any part of the Commonwealth shall pay a license fee of one thousand dollars for the first year. ’ ’ The word ‘‘ new ’' in this section is not to be construed as referring to the buildings in which the distilling is carried on, but manifestly means all distillers who have not been licensed during the preceding year. When thus construed the statute presents a complete schedule under which all distillers may be properly classified. The paragraph of the statute which it is necessary to consider, in connection with that above quoted, as directly bearing upon the question here involved is in the following words, “Each distiller, the 'annual production of whose distillery in the preceding year was less than fifty barrels, shall pay annually a license fee of one hundred dollars.” It is contended on the part of the appellee that the license fee to be fixed for this appellant cannot come within the paragraph last quoted, for the reason that no liquor had been distilled at this establishment during the preceding year. The argument is that this paragraph only applies where some liquor has been distilled, which can be measured in barrels, and that as the appellant had distilled no liquor it must pay the same license fee which would be required of a new applicant. This contention entirely loses sight of the fact that the license of a distillery authorizes it to do more than merely distill the liquor from grain. The license is necessary in order that the distiller may sell his own product whether distilled before or during the year in which the sale is made. The distiller must have license to sell his product. The product may accumulate during one or more years and there may come a time when the supply of the product on hand will be sufficient to meet the requirements of the business without continuing to manufacture. The license does not cease to be effective during the year merely because the process of distilling is for the time suspended. The legislature did not see fit to make special provision for the fixing of license fees in such cases. The system of fees is not based on the capacity of the distilleries but upon the actual product during the year preceding that for which the license is granted. Careful reading of this statute has convinced us that the words “the annual production of whose distillery in the preceding year was less than fifty barrels,” must be construed as meaning “not more than fifty barrels;” for the next paragraph fixes the rate for distilleries, the production of which in the preceding year “was more than fifty barrels and less than one hundred barrels,” at $200. Unless the paragraph with which we are dealing is construed to include all distilleries which do not produce more than fifty barrels, then the statute failed to fix any license fee for a distillery which produced exactly fifty barrels, and it likewise failed to fix a license fee for distilleries which produced 100 barrels, 200 barrels, 300 barrels and all the other numbers of barrels, up to 20,000 barrels mentioned as the various maximum amounts upon which the license fee depended. The appellant was not a new distiller, it had a license then in force, under which it had the lawful right to carry on the business, and it clearly did not come within the class of “new distilleries,” for which the legislature made special provision. The distillery had not manufactured more than fifty barrels of liquor during the preceding year, and the license fee which the law required it to pay was $100. We are not here dealing with a case where the court below, in the exercise of its lawful discretion, has refused to grant a license. The license having been granted the question is what amount did the law require the licensee to pay.

The order of the court below is modified, as to the amount of the license fee required to be paid, which is ■now fixed at $100.


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    Welsh’s Estate.

      Vendor and vendee—Statute of frauds—Memorandum in writing— Description of land—Evidence—Specific performance—Equity.

    1. Specific performance of a contract for the sale of real estate will be enforced, although the memorandum in writing merely refers to the property as a house and lot on a certain street, if it appears from extrinsic evidence that the vendee went into possession of a house on the street named, paid numerous installments of the purchase money, remained in possession until the proceedings for specific performance were begun, and was recognized by the vendor as owner in certain probate proceedings in the orphans’ court.
    2. In such a case the vendee will not be presumed to have abandoned the title merely because after a certain period he failed to pay taxes and the balance of purchase money. Forbearance on the part of the vendor is not, in such a case, the equivalent of legal assertion of title; nor is there any equity in the vendor from the fact that the property greatly enhanced in value during the long period of the vendee’s possession.
    Submitted April 28, 1910.
    Appeal, No. 110, April T., 1910, by Harriet J. Williams, administratrix, from decree of O. C. Allegheny Co., Feb. T., 1908, awarding specific performance in estate of Andy Welsh, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Petition for specific performance. Before Hawkins, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree awarding specific performance.

      R. B. Petty and John O. Petty, for appellants.
    The writing does not .designate the land and is therefore unenforceable as a written contract: Soles v. Hickman, 20 Pa. 180; Greenlee v. Greenlee, 22 Pa. 225; Ferguson v. Staver, 33 Pa. 411; Burns v. McCabe, 72 Pa. 309; Troup v. Troup, 87 Pa. 149; Walters v. McElroy, 151 Pa. 549; Rineer v. Collins, 156 Pa. 342.
    The writing does not designate the land and is therefore unenforceable as a written contract: Soles v. Hickman, 20 Pa. 180; Mellon v. Davison, 123 Pa. 298; Ranney v. Byers, 219 Pa. 332; Peart v. Brice, 152 Pa. 277.
    The purchase money was not paid within the time stipulated: Bodine v. Glading, 21 Pa. 50; Fidelity Ins., Tr. & Safe Dep. Co.’s App., 191 Pa. 500.

      Marrón & McGirr, for appellee.
    The description of the lot was not too indefinite to enforce specific performance: Phillips v. Swank, 120 Pa. 76.
    We claim that the delay of the plaintiff was not a bar to specific performance in this case: Miller v. Bear, 3 Paige Ch. 466; Scarlett v. Hunter, 3 Jones Eq. 84 (N. C.); Van Campen v. Knight, 63 Barb. 205; House v. Beatty, 7 Ohio, 417; Hatton v. Johnson, 83 Pa. 219; Remington v. Irwin, 14 Pa. 143; D’Arras v. Keyser, 26 Pa. 249; DuBois v. Baum, 46 Pa. 537; West Hickory Mining Assn. v. Reed 80 Pa. 38.
    March 3, 1911:
   Opinion by

Beaver, J.,

The questions involved in this appeal are raised by a petition for specific performance of a contract in writing for the sale of certain real estate therein partially described. The contract follows: “Pittsburgh, March 3rd, 1890. John E. Williams sold to Andy Welsh house and lot on Acorn Street for the sum of Five Hundred Dollars, to be paid Fifty Dollars down on getting possession; the balance to be paid Five Dollars per month, with interest of $2.00 per month for the first year. The interest to be readjusted one year from date.

“The deed to be given when the money and interest are paid in full.

“Balance in. full to be paid in five years. John E. Williams.”

Was the administrator of Welsh entitled to a decree of specific performance under the terms of this agreement and the facts as found by the court?

The court below found as facts that “in pursuance of this contract, Welsh made the cash payment of $50.00, went into possession of a house and lot on Acorn street and paid monthly installments of principal and interest until July, 1893. These payments are credited in Mr. Williams’ handwriting in the book immediately following the contract of sale and monthly balance struck, the last of which shows $138.00 due. It does not appear that the Welsh’s paid any taxes; but it was shown that the Williams’ paid them from 1901 onward. No action was taken to compel further payments. Welsh continued in possession until he died in 1904 or 1905; his widow succeeded him as his only heir and remained until her death in 1907, when she was succeeded by her nieces as next of kin. In the meantime, Mr. Williams died; and in February, 1906, a petition describing the location of the lot was presented on behalf of Mrs. Williams as administrator of the estate, requesting the execution of her husband’s contract of sale. At the court’s suggestion, action on this petition was suspended until letters should be taken , out on Mr. Welsh’s estate. Such letters were accordingly taken out; but when the administrator sought to have probate proceedings resumed and tendered the balance due, Mrs. Williams refused. She had discovered in the meantime that in municipal proceedings for opening a street through the lot damages amounting to $3,200.00 were awarded.”

An examination of the testimony indicates that these questions of fact are sufficiently established to justify their finding by the. court. There are some slight discrepancies in the testimony but not sufficient, in our judgment, to warrant us in raising any serious question as to the validity of the facts found. They justify, in our opinion, the opinion and decree of the court.

The question of the sufficiency of the description of the lot sold is not avoided by the court in its opinion. It is said: “It must be conceded that the description contained in the contract of sale is too indefinite, standing by itself,, to enable the court to enforce specific performance. It might apply to any one of the several houses owned by the vendor on Acorn Street. But the conduct of the parties themselves has left no doubt of the identity of the house and lot sold. The facts that the Welsh’s immediately on the execution of the contract moved on the premises now claimed and continued in uninterrupted occupancy until the institution of these proceedings shows their identification on the subject of sale: Troup v. Troup, 87 Pa. 149. The facts that the Williams’ not only received a long series of installments of purchase money and interest from the Welsh’s, the vendee in possession of this particular house and lot; Brown v. Bennett, 75 Pa. 420, and took no action of dispossession during a period of seventeen years, but endorsed proceedings for probate, are sufficient evidence of recognition of title.”

It was not urged in the court below or here that the children of Williams had not joined with their mother, as administratrix, in the petition for specific performance, and that the failure of the Welsh’s to pay taxes and the balance of purchase money was evidence of abandonment of title. As to these questions, it was said by the court below: “It was not necessary that the Williams’ children should join with their mother in the petition for probate. They were consulted and their approval was consistent with their father’s acts of recognition. The suggestion that failure to pay taxes and the balance of purchase money due is evidence of abandonment of title is answered by the fact of undisputed possession for fifteen years. Forbearance on the part of the Williams’ is not the equivalent of legal assertion of title. So the suggestion of an equity from change of circumstances arising fifteen years after the making of the contract of sale finds no support in reason or authority. The vendee had a presumptive right to the increase in the value of the land bought which could not be defeated by mere failure to pay the balance of unpaid purchase money. The vendor might have ousted him for non-payment and thus become entitled to subsequent increase, but his failure to do so was an implied waiver and the balance of the purchase money tendered was the measure of his interest.”

Phillips v. Swank, 120 Pa. 76, is a striking example of the cases in which it is held that contracts in writing may be supplemented or rendered certain as to persons or things which are to a certain extent uncertain in the writing itself. In that case the writing under consideration was as follows:

“August the 20, 1850:—i do herby agree tht Jonathan Phillips shall have the land wich he is posetion of now for the labor he don for me over age and this shall be his wrecept for all my writes and claims against the land.

“(Signed) David Phillips.”

In commenting upon this writing, Mr. Justice Clabk, who delivered the opinion of the Supreme Court, said: “Nor do we regard the case as coming within the statute of frauds. It is true, a written contract, in order to comply with the statute, must be in some sense self-sustaining. 'It would be mere folly,’ as was said in Morris v. Stephens, 46 Pa. 200, 'to make a conveyance to my next door neighbor, or to the person now sitting at the table with me, by this description, instead of by name; the law could hardly be expected to enforce such a conveyance in the face of the statute which requires conveyances to be in writing and to be self-sustaining, with the exception only of such necessary uncertainty as is involved in their application to persons named and things described.’ There is, as intimated in the language of the case referred to, a necessary uncertainty in writings, involved in their application, not only to persons but to things described therein. If there are two or more persons of the same name, it may be necessary by parol proof to fix the identity of the persons intended, or the thing concerning which the parties propose to contract may be described in such general terms as to require parol proof to identify the particular subject of the contract. It is quite impossible in most cases so to describe land as to avoid the necessity of parol proof for its identification; for, whether it be described by metes and bounds, by monuments erected upon the ground, or by adjoiners, its identification necessarily becomes the subject of parol proof. In this instance, the lands agreed to be conveyed were described as the land of which Jonathan was at the time in the actual occupancy and possession; this was no more open to the objection stated than if it had been described by its adjoiners, or by marks upon the ground.”

As to the question of the balance of the purchase money due, the court adopted the balance as struck by the vendor himself as the proper amount, and we can see no objection to this, inasmuch as it would seem to be an amount agreed upon between the parties.

Any discrepancy between the findings of the court, as to dates and the facts as they actually exist, is immaterial, even if there should be such discrepancy. It is not in any sense vital.

Decree affirmed and appeal dismissed at the costs of the appellant.


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    Jonasson, Appellant, v. Paul.

      Justice of the peace—Amendment of name—Judgment—Transcript— Scire facias—Fieri facias—Execution.

    Where a judgment is entered against a defendant by a justice of the peace, and subsequently a scire facias is issued to amend the name of the defendant so as to bring in the real party, but the writ is not served upon the real party, and thereafter without any judgment having been entered on the scire facias against the real defendant, a transcript of the justice’s record is filed in the common pleas and a fieri facias is issued thereon, the defendant named as the real party is entitled to have the execution stayed inasmuch as there was no judgment against him on the scire facias.

      Argued May 2, 1910.
    Appeal, No. 41, April T., 1910, by plaintiff, from order of C. P. Cambria Co., Sept. T., 1908, No. 77, staying execution and striking off judgment in case of O. F. Jonasson & Co. v; Joseph L. Paul.
    Before Rice, P. J., Henderson, Morrison, Orlady, Beaver and Porter, JJ.
    Affirmed.
    Motion to stay execution and strike off judgment.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court.

      J. F. McKendrick, for appellant,
    cited Lacock v. White, 19 Pa. 495; Boyd v. Miller, 52 Pa. 431; Dailey v. Gifford, 12 S. & R. 72; France v. Ruddiman, 126 Pa. 257; O’Hara v. Baum, 82 Pa. 416; O’Donnel v. Seybert, 13 S. & R. 54.

      W. A. McGuire, for appellee.
    March 3, 1911:
   Opinion by

Beaver, J.,

. The facts in this case are somewhat involved, and a clear understanding of them is necessary to a right conclusion. In order to this, it is necessary to resort to the books of both appellant and appellee, and particularly to the opinion of the court upon which the striking off of the judgment of the plaintiff against the defendant, entered upon an alleged transcript of the docket of the justice, was ordered.

On October 17, 1907, the plaintiffs, O. F. Jonasson & Co., incorporated, brought their action of assumpsit against Dr. J. A. Paul. A summons was regularly issued and placed in the hands of a constable, who returned it as having been served upon the within named Dr. J. A. Paul personally, in pursuance of which judgment was regularly entered by default against the defendant for $109.45.

On November 12, 1907, an execution was issued upon the said judgment, and upon the sixteenth of the same month the constable returned the execution unexecuted.

Upon November 25, 1907, the plaintiff directed a writ of scire facias to be issued, and suggested the amendment of Joseph L. Paul, alias Dr. J. A. Paul, as the defendant and same person. The amendment was allowed and writ of scire facias issued.

These facts all appear in the transcript of the justice of March 4, 1908, as entered in the court of common pleas of Cambria county upon the same day. This transcript, therefore, as entered, shows upon its face that no final judgment was entered by the justice of the peace in the case pending before him, a writ of scire facias, in order presumably to give notice to the real party defendant, whose name had been suggested by way of amendment, having been issued upon the judgment originally entered.

In this condition of the record before the justice, as appears by his transcript, we assume that it would have been entirely proper, upon application by the defendant, to have had the judgment stricken off for reasons appearing upon the transcript itself. No such application, however, was made, and later a writ of fieri facias in the common pleas was issued and a levy made upon property of Dr. Joseph L. Paul.

There is nothing in the record to show that the defendant, Dr. Joseph L. Paul, had notice of the amendment or was in any way regularly brought upon the record.

The first section of the Act of May 12, 1887, P. L. 96, authorizes justices of the peace “in all actions pending or hereafter to be brought before them, in any stage of the proceedings, before final judgment, on reasonable notice, to grant a hearing and permit amendments by changing or altering the Christian or surname of any party plaintiff or defendant, whenever it shall be made to appear, upon due proof, that a mistake or omission has been made in the Christian or surname of any party, plaintiff or defendant.” Here, however, the amendment was attempted to be made after judgment was entered and without notice, so far as the record shows, to the defendant. We assume, therefore, that the scire facias was issued for the purpose of giving notice to the defendant, but the record shows that judgment was entered against one Dr. J. A. Paul and not against Joseph L. Paul, the scire facias being, at the time of the transcript, pending against Joseph L. Paul. There was, therefore, no judgment against Joseph L. Paul upon which a fieri facias could issue.

In this condition of the record, the defendant, Joseph L. Paul, presented his petition to the court of common pleas, asking to have the writ of fieri facias stayed and the judgment upon which it was issued stricken off. Upon the hearing of this petition, to which an answer was duly filed, it appeared that the case was further complicated by a hearing before the justice upon the scire facias shown to be pending by the transcript and a judgment entered in favor of the defendant and against the plaintiff, for $64.50. The plaintiff obtained a writ of certiorari, which upon hearing was sustained and the judgment set aside. The certiorari was issued by the court of common pleas in which the transcript had been entered and the return thereto contained the record in full, including what was embraced in the transcript which had been entered and the subsequent proceedings therein. It is, therefore, apparent that no final judgment was actually in existence after this decree of the court of common pleas in the case pending before the justice.

The facts were fully set forth in the petition of the defendant, and are clearly shown by the transcript upon which judgment was entered in the common pleas and the return to the writ of certiorari, in which all the proceedings were set forth, as printed in the paper-book of the appellee.

The petition of the attorney of Dr. Paul to Judge Savidge, specially presiding in the court of common pleas of Cambria county, sets forth that on “December 3, 1907, the law bearing on the question as to the right of plaintiff to secure judgment against a defendant who had been so made a party to the record (by a suit against a defendant bearing a different name) in a scire facias proceeding, without according him an opportunity to make his defense, was discussed by and between opposing counsel, with the result that an agreement was entered into in writing between counsel to the effect that, if Dr. Joseph L. Paul, the real defendant (not J. A. Paul), would waive all questions of practice and appear personally, and satisfy the justice that he had a just and legal defense to said claim, and submit to a hearing of the case on its merits, that the justice may open the judgment and proceed to hear the case de novo.”

It also appeared that, in pursuance of said agreement, .after continuance and a rule to take testimony had been issued, the justice finally, on December 19, 1907, at the hearing of the case de novo, as fixed at the suggestion of counsel for plaintiff, entered judgment against the plaintiff and in favor of the defendant for $64.50 and costs.

It appears from the opinion of the court that, upon the hearing of the certiorari above referred to, the judgment was reversed, the decision therein being based “on the fact that the record did not show that the justice heard testimony to support the claim of the defendant.”

On December 7, 1908, the court below made the following order: “The order staying writ of execution heretofore entered is made permanent and judgment stricken off at the costs of the plaintiff.” From this, as also from an order of the court refusing to vacate the order above recited, the appeal is taken, and both of the orders are assigned for error.

It is clearly apparent from what has been already stated that no error was committed by the court below: First, because it appears by the transcript entered by the plaintiff that no judgment was then in force against the defendant, a scire facias having been issued which was then pending and undetermined; and, second, that in a writ of certiorari taken by the plaintiff, the final judgment in the case was reversed and set aside, because it did not appear in the record that the testimony upon which judgment was based was heard by the justice. This, of course, left the record in the same condition, without a final judgment. '

It would seem, therefore, from the entire record of which the court, of course, could take judicial notice, being before it in its entirety, that the conclusion of the court below is entirely correct and, as said by the judge, “If there be merit in the case of the plaintiff, he has his remedy before the justice, but not in this proceeding before this court.”

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