author: Beaver, J.,

text:
    J. M. Tompkins v. The Scranton Traction Company, Appellant.

      Negligence — Contributory negligence — Question for jury.
    Where the facts, as to whether defendant’s car was properly lighted ; whether the gong was sounded; whether the speed was unusual and unsafe at the point and time of accident; and whether plaintiff’s conduct contributed to the accident, were all important and all disputed, the case was for the jury.

      Trial — Charge of court — Practice, C. P.

    The question of defendant’s negligence and plaintiff’s contributory negligence being proper to s.ubmit to the jury they were properly submitted when the defendant had the benefit of a full, clear, unbiased and satisfactory charge in which all the weaknesses of the plaintiff’s case were pointed out and dwelt upon and where the trial judge to avoid mere guessing or loose and uncertain methods of reaching a conclusion on the part of the jury, submitted certain questions for their finding which compelled a careful analysis of the evidence and elicited answers which manifested care in the weighing of the evidence and deliberation in reaching a conclusion.
    Argued Jan. 13, 1897.
    Appeal, No. 34, Jan. T., 1897, by defendant, from judgment of C. P. Lackawanna Co., March T., 1894, No. 753, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Trespass for injuries resulting from a collision. Before Arch-bald, P. J.
    The facts appear from the following extract from the charge . of the court below.
    The plaintiff, Mr. Tompkins, about half past six on the evening of the 12th of January, 1894, was driving to his home on Capouse avenue in this city. He had a team with a lumber wagon, and was going home after finishing his day’s work. The evening was dark and was cold and blustering, according to the statement that he makes. He says he turned from Larch street into Capouse avenue, crossing the Delaware & Hudson tracks at that point, then drove up Capouse avenue till he got opposite his own house and then crossed over, and just as he was in the act of crossing, a street car belonging to the defendant company, crashed into his wagon, breaking the front wheels and injuring the body of it in some respects, and he says that he himself was thrown off his seat and was injured, his elbow being bruised, his head cut, and his hip wounded by a piece of glass from the window of the car through which he was forced. He says that by reason of this accident he has not been able to do work for a considerable time, and has experienced pain as the result of it. He claims that this was inflicted by the negligence of the defendant company, and he, therefore, claims a verdict at your hands that will compensate him for what he has experienced.
    The defendant company denies that there was any negligence on their part, at that time, and claims that the whole accident resulted because of want of sufficient precaution and judgment on the part of the plaintiff himself in crossing right in front of a street car, which was plainly observable, as they say, and which he ought to have seen. Those few words present the issue or issues that are involved in this case, and which you, by your verdict, are to dispose of.
    The court left the question of negligence and contributory negligence to the jury, submitting to them the following questions, which with the answers thereto made by the jury are as follows:
    (1) In what respect were those in charge of the street car negligent ? As you will have to find that the defendant company or those in charge of the car were negligent upon that occasion, if you should find in favor of the plaintiff, this ques-1ion calls from you in that event, to indicate in what respect they were negligent.
    (2) Why couldn’t the plaintiff have seen or observed the street car before it struck him ? As I have already said to you, you will have to find that the plaintiff was not negligent, and 'this question calls upon you to indicate why he could not have seen or observed the car.
    Ón the other hand, if your verdict should be in favor of the defendant, then you will answer these two questions :
    (1) Were those in charge of the street car negligent?
    (2) Was the accident caused by the plaintiffs own negligence ? That is to say, if you should find in favor of the defendant, by answering these questions, it will enable us to know whether you base that finding upon the fact that the plaintiff himself was negligent, or that the defendant was free from negligence.
    With these instructions I submit the case into your hands.
    Verdict for plaintiff for $200. Defendant appealed.

      Errors assigned were (1-4) refusing defendant’s points which involved taking the case to the jury on the question of negligence ; (5) in overruling defendant’s objection and allowing the test to be made of the eyesight of a witness; (6-8) in charging the jury as follows:
    “ If it was the duty, as you judge it, of the defendant com-, pany to have their car lighted with a headlight, and they failed to have one, or to have one which was sufficient, then they would be negligent in not having it, or not having one that was sufficient.”
    * * ******
    “But between these two extremes (20 miles-an hour and six miles an hour) is a question that either we have got to have direct evidence of experts upon, or you gentlemen are to bring your common judgment to bear and determine accordingly.”
    * * * * * * * *
    “ It is for you to say, however, on all this testimony, whether the car was going so fast as to amount to negligence.”

      Horace E. Hand, for appellant.
    That a street car has the superior right of' way at a point not a street crossing, will not,' it is believed, be controverted: Warner v. Street Railway Co., 141 Pa. 615; Ehrisman v. Railway Co., 150 Pa. 180.
    It is the duty of a traveler about to drive across a street railway to look and listen for an approaching car, and to stop if necessary, at the edge of the track, and his neglect to do so is negligence per se: Elirisman v. Ry. Co., 150 Pa. 180; Whelalian v. Traction Co., 150 Pa. 187; Thomas v. Citizens Pass. Ry., 132 Pa. 504; Carson v. Railway Co., 147 Pa. 219; Railroad Co. v. Bell, 122 Pa. 58; Moore v. Railroad Co., 108 Pa. 349.
    Where the evidence shows that one must have seen if he had used his eyes, a nonsuit may be entered: Marland v. R. R., 123 Pa. 486 : Moore v. R. R., 108 Pa. 349 ; R. R. v. Mooney, 126 Pa. 244; Myers v. R. R., 150 Pa. 386; Lee v. R. R., 154 Pa. 46.
    The defendant was entitled to binding instructions : Holden v. Railroad, 169 Pa. 1.
    The 'testimony of one witness who hears is worth more than dozens who do not: Urias v. Railroad Co., 152 Pa. 326.
    On the question of unusual .rate of speed, cited: Yingst v. Railway Co., 167 Pa. 438; Goshorn v. Smith, 92 Pa. 435.
    A driver or motorman has the right to suppose that a person when duly warned will not attempt to cross the street immediately in front of a car: Booth’s Street Railway Law, p. 414, sec. 305.
    S. B. Price, with him J. W. Browning, for appellee.
    February 16, 1897:
   Opinion by

Beaver, J.,

Was the defendant negligent? Was the plaintiff guilty of contributory negligence ? These were the practical and principal questions involved in this case. Was it necessary to submit them to the jury for their finding ? A careful examination of all the testimony convinces us that it was. Was the defendant’s car properly lighted? This was important. The night was dark, the wind was high, the street was dusty. The fact was disputed. Was the gong sounded? If the car was not sufficiently lighted, this was important. It-was disputed. Was the speed of the car unusual and unsafe at the point at which the accident occurred ? If light was insufficient and the gong was not sounded, this was important. It was disputed. In the defendant’s testimony, there is the difference between a minimum rate of six miles and a maximum rate of ten miles per hour. The plaintiff’s testimony makes the rate considerably greater. The testimony was of such a character as to this point that it could not be properly taken from the jury. The question of the defendant’s negligence as to all of these points was, therefore, for the jury. Was the plaintiff guilty of contributory negligence ? He had a right to be upon the street. He had no right to cross defendant’s track, without observing the usual precautions. These he swears positively were observed — that, before attempting to cross the track toward his stable, as he testifies, “ I stopped my team and listened for a car — at least I always do before crossing any track. I saw no car or heard no alarm or nothing, pulled my team to the left and turned them and went to drive in my yard and the car struck me — struck my wagon at least.” The motorman contradicts this, and there is also some contradiction as to his having crossed other- tracks that day, without observing the necessary precautions. The horses were across the track, before the wagon was struck. From the character of the injury, the wagon must have been struck about or a little in front of its centre. The defendant argues that, because the collision occurred almost immediately after the attempt to cross was made, the car being lighted, the plaintiff must have seen it, if he had looked and, because he did not see it, therefore he did not look. If the night were “very dark,” the wind were high and the street dusty, the plaintiff being confessedly in the white glare of an arc lamp which hung at the intersection of Larch street and Capouse avenue upon the latter of which he was traveling, it is altogether possible that the yellow light of a sixteen-candle power incandescent lamp might have failed to attract and fix his attention.

The question of the plaintiff’s contributory negligence was also one for the jury. The trial judge could not have properly declared as a matter of law that the plaintiff was guilty of contributory negligence. The facts upon which Ehrisman v. Harrisburg Ry. Co., 150 Pa. 180, and Holden v. R. R., 169 Pa. 1, were ruled are not similar to those in the case under consideration.

If the questions of defendant’s negligence and of plaintiff’s contributory negligence were necessarily submitted to the jury, were they properly so submitted? The defendant had the benefit of a full, clear, unbiased, satisfactory charge. The weakness of the plaintiff’s evidence as to the speed at which the car was running was pointed out and dwelt upon. The trial judge, in order to avoid mere guessing or loose and uncertain methods of reaching a conclusion on the part of the jury, submitted certain questions for their finding which compelled a careful analysis of the evidence and elicited answers which manifested care in the weighing of the evidence, and deliberation in reaching a conclusion. The negligence of the defendant is found “in not sounding a gong and running too fast.” The inability of the plaintiff to have seen or observed the street car, before it struck him, was declared to be “ because of the high wind and dust and insufficient light on car and high rate of speed.” To the question “Were those in charge of the street car negligent? ” the jury said “ Yes,” and to the other principal question in the case, “Was the accident caused by the plaintiff’s own negligence?” the answer was “No.” The rights of the plaintiff were as carefully guarded as they well could be in a case which was necessarily one for the jury. The refusal of the court to affirm the defendant’s third, fifth, sixth and seventh points was entirely justified by the evidence. The fifth assignment of error, which relates to the overruling of defendant’s objection and allowing the test to be made of the eyesight of the witness Edwards is not sustained. It was a practical test better than any description of his eyesight which the witness could give, and the defendant had the full benefit of a careful cross-examination as to the difference between the eyesight of the witness at the time of the trial and of the accident. We cannot see that the defendant was in any way injured. The language of the court in the charge to the jury,.as specified in the sixth, seventh and eighth assignments of error, is unobjectionable and consists of parts of a charge which, clearly and carefully submitted to the jury, what were necessarily questions for their consideration and finding. We see nothing to condemn and much to commend in the manner in which the case was tried and submitted to the jury. The judgment is affirmed.


source: Caselaw Access Project

author: Smith, J.,

license: Public Domain

text:
    Levi Hess v. Victoria R. Heft, Appellant, and Jacob D. Heft.

      Husband and wife — Tort—Wife not liable when sub potestale viri.

    The common law liability of the husband for the tort of the wife remains without statutory modifications. For a tort committed by his direction, he alone is liable.

      Husband and wife — Tort of wife the tort of the husband.

    Where the uncontradicted evidence in an action for false arrest shows that the husband and wife together made the complaint on which the plaintiff was arrested, and that at every point at which the wife acted in the prosecution the husband was present, it presumably follows that the tort in which the wife was engaged was in law the tort of the husband, for which he alone is liable.

      Actions — Malicious prosecution — False imprisonment.

    In practice, the distinction between the torts, malicious prosecution and false imprisonment, is abolished by the procedure act of 1887.
    Argued Nov. 20, 1896.
    Appeal, No. 152, Nov. T., 1896, by Victoria R. Heft, defendant, from judgment of C. P. Chester Co., Jan. Term, 1896, No. 86, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Trespass for malicious prosecution. Before Waddell, P. J.
    This and the following cases were actions of trespass in the court below to recover damages for alleged malicious prosecutions. Jacob D. Heft and Victoria R. Heft caused Levi Hess to be arrested for stealing chickens and Samuel and Ambrose Slichter for béing accessories after the fact. The evidence was uncontradicted that every step taken in the proceedings by the wife, Victoria R. Heft, was so taken by her in the presence of her husband. The jury rendered a verdict in favor of the plaintiff, Levi Hess for $300; in favor of Ambrose Slichter for $300, and in favor of Samuel Slichter for $600 against both the defendants. The defendants’ first and second points and the answers of the court thereto were as follows:
    1. The court is respectfully requested to charge the jury that the complaints made in the prosecution against Samuel Slichter, and Ambrose Slichter and Levi Hess were each one and the same act, that the act was the act of the husband. Jacob D. Heft, and not the act of the wife, Victoria Heft; therefore there can be no recovery against Victoria R. Heft. Answer: I cannot, say that, gentlemen. I have left that for you to determine, whether or not it was the act of Jacob D. Heft alone; in other words, whether his wife acted of her own free will and accord, or whether she acted under compulsion. In connection with what I have said I will have to refuse to affirm that point. I cannot say that it was his act alone, and therefore they are not entitled to recover. To which answer the defendant’s counsel excepted and prayed the court to seal a bill of exceptions thereto, which was done accordingly.
    2. The court is respectfully asked to charge the jury that the presence of and participation of the husband, Jacob D. Heft, in signing the complaints with his wife, Victoria R. Heft, raises the presumption that the complaints were signed by the wife by the direction and coercion of her husband, and that therefore their verdict must be for the defendant, Victoria R. Heft.
    Answer of the court: I may say to you, gentlemen, that the law holds, as I recollect it, that the presence of Jacob D. Heft at the time these affidavits were made, raises the presumption that it was signed by the wife under the coercion of the husband, but I. cannot say to you that they were, because that presumption is liable to be rebutted by all the facts and circumstances in the case, and if rebutted, then it would not be, the presumption would be swept aside, and I therefore cannot say that upon his really being present, and that presumption arising in that way, that therefore the verdict must be for Victoria R. Heft. Whether it is for her or not will depend upon what I have said to you heretofore. To which answer the defendant’s counsel excepted and prayed the court to seal a bill of exceptions thereto, which was done accordingly.
    Verdict for plaintiff $300. Defendant appealed.

      Frrors assigned among others were to answers to defendant’s first and second points, reciting same.

      F. S. Groff, D. Smith Talbot and R. Jones Monaghan, for appellant.
    The appellant, Victoria R. Heft, was a married woman, and in making the complaint shed upon acted in the presence and under the direction of her husband, and was entitled to instruction that she was not liable in these suits: Com. v. Burk, 77 Mass. 438; Com. v. Gannon, 97 Mass., 547; Com. v. Eagan, 103 Mass. 71; Cassin v. Delany, 38 N. Y. 179 ; Hildreth v. Camp, 41 N. J. L. 307; Franklin’s App., 115 Pa. 534.

      Thomas W. Pierce, for appellee.
    The instruction upon the point is in accordance with authority. The presence of the husband furnishes evidence and raises a presumption of his direction, but the presumption may be rebutted, and each of the two may be held to be the doer of the wrong: Wheeler & Wilson Co. v. Heil, 115 Pa. 487; Franklin’s Appeal, 115 Pa. 534.
    Under the procedure act of 1887, an action for false imprisonment, and malicious prosecution, are alike trespass. The distinction between case and trespass is abolished by that statute. Even before its passage, a verdict on the merits would cure a defect in the form of action: Williams v. Hay, 120 Pa. 485; Bennet v. Bullock, 35 Pa. 364.
    February 16, 1897 :
   Opinion by

Smith, J.,

It is not material whether the injury set forth in this action was a malicious prosecution or a false imprisonment. In practice, the distinction between these torts has related to the form of the action, and this distinction is abolished by the procedure act of 1887.

The liability of the defendant for the wrong here complained of is to be tested by certain well settled principles. At common law, the husband was liable for the torts of his wife, whether committed before or during coverture. For a tort in which the' wife took an independent part, the husband and wife were jointly liable. For a tort which she committed hy his direction, he alone was liable. The wife being sub pot-estate viri, if she committed a tort in the husband’s presence it was presumptively in obedience to his direction; and unless it appeared that she acted wholly of her own will he alone was liable: 2 Kent, 149 ; Quick v. Miller, 103 Pa. 67; Franklin’s Appeal, 115 Pa. 534 ; Mfg. Co. v. Hiel, 115 Pa. 487.

These principles remain without statutory modification. The Act of April 11, 1848, sec. 6, P. L. 536, preserved to the wife the ownership of her property as fully after marriage as before, but did not protect it “ from levy and execution on any judg-, ment recovered against tbe husband for the torts of the wife: ” provided that “ in such cases execution shall be first had against the property of the wife.” Except, however, for this recourse to the wife’s property in the first instance, the husband’s liability remained as before : Quick v. Miller, 103 Pa. 67. Such recourse, indeed, was a change in form rather than substance. Prior to this act the wife’s personalty upon marriage vested in the husband, and thus became subject to execution against him. The statute preserved this liability as to execution for her torts, while securing her separate ownership. The married persons’ property act of June 3, 1887, P. L. 332, provided that a married woman might sue and be sued “ for torts done to or committed by her, in all respects as if she were a feme sole,” and that damages recovered against her “ shall be payable out of her separate property and not otherwise. ” The married persons’ act of June 8, 1893, P. L. 344, which repealed the act of 1887, gives a married woman capacity with certain exceptions, “ to sue and be sued civilly in all respects and in any form of action and with the same effect and results and consequences as an unmarried person; ” but it neither modifies in any manner her husband’s liability for her torts, nor contains any provision limiting recourse to her separate property for damages recovered against her; much less does it attempt to extend her liability to torts which before its passage were, in fact or by legal presumption, the torts of her husband. Its only specific provision as to her torts is that she may not be arrested or imprisoned for them. This, however, is but declaratory of the law as it had long stood. For the torts'of the wife, the husband only was liable to arrest on mesne process, or to execution against the person : Com. v. Keeper, 11 W. N. C. 341; Whalen v. Gabell, 120 Pa. 284; 3 Bl. Com., 414; 2 Kent, 149; Vocht v. Kuklence, 119 Pa. 365.

Thus there has been no statutory change in the common law liability of husband and wife for the torts of the wife, and no change in the common law remedy except the provision of the act of 1848 directing execution first against the property of the wife. The case before us is therefore to be governed by the common law principles respecting liability for the torts of a married woman.

The evidence shows without contradiction, that the husband and wife together made the complaint on which the plaintiff was arrested, and that at every point at which the wife acted in the prosecution the husband was present. Prima facie, therefore, the husband alone was liable: Quick v. Miller, 103 Pa. 67. Presumptively, the wife’s participation in the proceeding was by the husband’s direction; and not only was there a total absence of evidence to rebut this presumption, but it clearly appears that the husband was the active and real prosecutor. He was apparently moved by the feeling that, having recommended Hess as an honest man, he had incurred a responsibility in the premises that made it his duty to seek redress for the wrong charged in the complaint against the plaintiff, and he insisted on making his wife a party because she was owner of the property involved. It is quite evident that in the part taken by the wife, she acted in subordination to her husband. The tort in which she was engaged was in law the tort of the husband, for which he alone is answerable. Under the uncontradicted evidence, the first and second points of the defendant should have been affirmed. This view makes it unnecessary to consider the other matters assigned for error.

The judgment against the defendant Victoria R. Heft is reversed.


text:
    Ambrose Slichter, a minor, by his father and next friend, Samuel Slichter, v. Victoria R. Heft, Appellant, and Jacob D. Heft.
    Argued Nov. 20, 1896.
    Appeal, No. 153, Nov. T., 1896, by Victoria R. Heft, defendant, from judgment of C. P. Chester Co., Jan. T., 1896, No. 37, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    February 16, 1897 :
   Opinion by

Smith, J.,

This case is ruled by the principles laid down in the case of Levi Hess against the same defendants, and therefore must be disposed of in like manner.

The judgment against Victoria R. Heft is reversed.


text:
    Samuel Slichter v. Victoria R. Heft, Appellant, and Jacob D. Heft.
    Argued Nov. 20, 1896.
    Appeal, No. 151, Nov. T., 1896, by Victoria R. Heft, defendant, from judgment of C. P. Chester Co., Jan. T., 1896, No. 35, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    February 16, 1897 :
   Opinion by

Smith, J.,

This case, like that of Ambrose Slichter against the same defendants, is ruled by the principles laid down in No. 152, November term, 1896, just decided.

The testimony of one witness as to an alleged prompting of the husband by the wife, during his examination as a witness before the magistrate, is too vague to afford a scintilla of evidence to establish liability on her part. The witness relates nothing that she said, and that she said anything to the prejudice of the defendant is only surmised. It was shown that the husband was quite hard of hearing, and for aught that appears the alleged prompting may have consisted only of efforts on the part of the wife to aid him in understanding the questions put to him, and to enable the magistrate to obtain responsive answers. The argument on this question involves the imputation of fraud on the part of the wife, but there is no evidence to sustain it, and the law wisely forbids its presumption.' The presumption in her favor cannot be thus overcome.

The judgment against Victoria R. Heft is reversed.


text:
    Commonwealth of Pennsylvania, Appellant, v. F. V. Rockafellow.

      Pleading — Pleas of autrefois acquit and convict.

    A verdict and judgment, whether of conviction or acquittal, under an indictment, is a final adjudication of the question at issue — -the guilt or innocence of the defendant. This question, being thus res judicata, cannot again be tried. It is this principle that gives effect to the pleas of autrefois convict and autrefois acquit. To sustain either plea, to a subsequent indictment, the identity of the offenses charged in the two indictments must be shown, and it must appear that the evidence necessary to a conviction on the latter would be sufficient to convict of the offense charged in the former.
    Where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea of autrefois acquit is generally good, but not otherwise. Whether the former acquittal was for the same offense depends on the record pleaded, and not on the argument or inference deduced therefrom. If that record shows that the evidence necessary to support a conviction on the present indictment would have been insufficient to procure a legal conviction on the former, the plea of autrefois dequit is not sustained. The same principles apply to the plea of autrefois convict.

      Banks and banking — Fraudulent receipts by insolvent banker — Act of 1889.
    The design of the Act of May 9, 1889, P. L. 145, manifestly is to protect all depositors from loss through the fraudulent receipt of their moneys by insolvent bankers, and its punitive provisions must be held to extend to all transactions within its purview.
    There is no reason in law or morals for permitting a banker to fraudulently procure the moneys of A, B and C, with impunity, because he also succeeded in fraudulently obtaining the money of D, and has been punished therefor, and none is to be found in the statute under consideration. The law will make no such discrimination in favor of those who persist in its violation.
    Argued Jan. 11, 1897.
    Appeal, No. 43, Jan. T., 1897, by the commonwealth, from judgment of Q. S. Luzerne Co., Sept. Sess., 1893, No. 183, sustaining defendant’s plea of autrefois convict.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Oready and Smith, JJ.
    Reversed.
    Indictment for receiving money as a banker, with knowledge of insolvency. Before Edwards, J.

      Defendant pleaded antrefois convict. Plaintiff demurred to the plea and the court entered judgment for defendant on the demurrer.

      Error assigned was entry of judgment for defendant on the plea.

      D. A. Fell, district attorney, and Gustav Hahn, with them James L. Lenahan, for appellant.
    If under this act but one penalty can be imposed, the act does not prevent — it licenses bankers to violate the law.
    The true test to ascertain whether a plea of autrefois convict is a good bar, is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first: Heikes v. Com., 26 Pa. 513; Com. v. Trimmer, 84 Pa. 65.

      J. T. Lenahan, with him F. W. Wheaton, for appellee.
    February 16, 1897:
   Opinion by

Smith, J.,

The defendant in the present case, a banker, carrying on a private bank in the city of Wilkes-Barre, was indicted, September 5, 1893, for having, on the 7th day of February, 1893, received from Anna Maria Meier, a depositor, $700, with knowledge “that he and the said bank were then and there insolvent.” On the trial November 19, 1896, he pleaded autrefois convict. As to the facts on which this plea was based, it was agreed by the district attorney and the defendant that on the 2d of June, 1893, the defendant was indicted for having, under the same circumstances and with the same knowledge of insolvency as in the present case and a little more than an hour earlier on the same day, received from Isaac Long, a depositor, $4,600; that the defendant was tried on said indictment and found guilty November 25, 1893 ; that January 12, 1894, he was sentenced to pay a fine of $1,250 and undergo an imprisonment in the state penitentiary for the eastern district for the period of two years and two months ; and that this sentence has been complied with. On demurrer by the district attorney, the trial judge held that the plea was sustained by these facts, and entered judgment for the defendant. Thereupon an appeal was entered on the part of the commonwealth. Both indictments were based on the Act of May 9, 1889, P. L. 145, the provisions of which are as follows: “ That any banker, broker or officer of any trust or savings institution, national, state, or private bank, who shall take and receive money from a depositor with the knowledge that he, they or the bank is at the time insolvent, shall be guilty of embezzlement, and shall be punished by a fine in double the amount so received, and imprisoned from one to three years in the penitentiary.”

While prior to this act there was no statute in Pennsylvania making it a crime for a banker to receive deposits when knowing himself to be insolvent, and the general depositor became a mere creditor, such conduct has always been regarded as fraudulent. As was said by Chief Justice Fuller in Railway Company v. Johnston, 133 U. S. 566 (quoting from another case) : “ A banker who is, to his own knowledge, hopelessly insolvent, cannot honestly continue his business and receive the money of his customers; and although having no actual intent to cheat and defraud a particular customer, he will be held to have intended the inevitable consequences of his act, i. e., to cheat and defraud all persons whose money he receives, and whom he fails to pay before he is compelled to stop business.” That the legislature had the power to declare it a crime for a banker to take a deposit when he knows that his bank is insolvent, cannot be doubted; and by the act of May 9, 1889, this has been done. That statute defines the offense, and classifies it as an act of embezzlement. And while, as has been said, this classification may not have been well chosen, it indicates the legislative intent to group the offense with that class of crimes against the right of property which are akin to larceny. Embezzlement consists of “ the fraudulent appropriation by one of the money entrusted to his care by another: ” Clark, J., 114 Pa. 558. It is in substance, and in its moral aspect essentially a larceny, aggravated rather than palliated by the violation of a trust, and embracing all the elements of larceny except the felonious taking: 6 Am. & Eng. Ency. of Law, 456. The offense with which the defendant is here charged involves also a breach of trust, necessarily committed upon the receipt of each and every deposit which he accepted with knowledge of his insolvency. A general deposit is but a loan, and its receipt by a banker who knows himself to be insolvent is a fraudulent appropriation of the money received. In Com. v. Junkin, 170 Pa. 194, Mr. Justice Dean, in discussing this statute says: “ Its aim is to punish dishonesty; the moral guilt which prompts to falsehood and deception; for there is necessarily moral guilt on the part of a banker, who, with knowledge of insolvency, receives as a bank deposit the money of a customer; by necessary implication, when he so receives it, he says to the depositor, My bank is solvent, and is able to repay this amount when called for; ’ if such were not the implied representation, relied on, too, by the depositor, he would not leave his money. To constitute the criminal intent, it is not, however, necessary that the banker at the time intended to defraud the depositor; his intention to repay may have existed; it is the concealment of his present, to him known, inability to pay, and in that condition, receiving, as part of the funds of the bank, the depositor’s money, which he knew, without the false representation, he would not receive, that constitutes the criminal intent.”

But whether considered as an act of embezzlement, from the legislative point of view, or as a fraudulent appropriation of á depositor’s money with criminal intent, from the judicial point of view, it is difficult to perceive how the taking of the money of A, at one time, can be regarded as an integral part of the separate act of taking the money of B, in the absence of A, and at another time. It is not, in fact or in effect, and there is no principle of law to sustain such a proposition. That the receipt of a single deposit, under the circumstances described in the statute constitutes a complete offense, cannot be doubted. Notwithstanding certain features in common, there is no relation or interdependence between such an act and the receipt of a different deposit, from a different person, at a different time. One cannot be included in the other, merely by reason of the knowledge of insolvency common to both. Neither the insolvency of the banker, nor his knowledge of it, is criminal; they are but the conditions under which the receipt of a deposit is declared a crime. As logically demonstrated by Mr. Justice Dean, the receipt of a deposit, under the circumstances described, is through an implied false representation. Yet it cannot be said that the obtaining of money from A by a false pretense includes the obtaining of money from B, by the same false pretense, by reason of the fraudulent purpose common to both. As well might it be held that a larceny of the goods of A includes a larceny of the goods of JB by reason of the felonious purpose common to both.

The design of the Act of May 9, 1889, P. L. 145, manifestly is to protect all depositors from loss through the fraudulent receipt of their moneys by insolvent bankers, and its punitive provisions must be held to extend to all transactions within its purview. This interpretation of the statute is not only in advancement of its purpose but is reasonably demanded by its language. There is no ambiguity in its - phraseology or meaning. It speaks of a depositor, his money and its receipt as one transaction. The assertion that it refers to depositors as a class only, is in contradiction of its express terms. This contention would substitute for what is plainly and accurately expressed, that which is not stated and is beyond the scope of its provisions. In Com. v. Rockafellow, 163 Pa. 139, the Supreme Court has said that this act refers to the receipt of money “ from a depositor,” and that “ the offense clearly and distinctly defined is the fraudulent receipt of the money of a depositor; ” thus defining the offense as consisting of a single fraudulent receipt from one person. That this is the judicial view is also evident from the discussion of the subject in Com. v. Junkin, supra. There is no reason in law or morals for permitting a banker 'to fraudulently procure the moneys of A, B, and C, with impunity, because he also succeeded in fraudulently obtaining the money of D, and had been punished therefor, and none is to be found in the statute under consideration. The law will make no such discrimination in favor of those who persist in its violation. The statute declares a single receipt of money by an insolvent banker to be an offense, and prescribes as part of the punishment a fine in double the amount so received. To hold that a conviction and sentence for the fraudulent receipt of one deposit is a bar to prosecution for subsequent violations would practically nullify this part of the statute.

The argument in support of the appellee’s contention assumes that the statutory offense consists chiefly in the banker’s knowledge of bis insolvency. His insolvency, however, is but a misfortune, nota crime. Neither this, nor his knowledge of it, can of itself work harm to the public. It is only when an insolvent banker receives money from a depositor, that the mischief arises against which the statute was designed to protect the public. The two elements — knowledge of the insolvency, and the receipt of a deposit — must coexist to constitute the offense.

The argument that a banker may, by receiving numerous deposits with knowledge of his insolvency, incur penalties far outrunning, in the aggregate, the natural term of human life, deserves little consideration. In the business of banking, properly conducted, the fact of insolvency cannot long remain undetected by those conducting it, and when this point is reached the purpose of the statute requires that the business be suspended. The banker who continues it, with this knowledge, deliberately invites the penalties prescribed by the statute, and cannot complain that by multiplying his offenses he has exposed himself to penalties of corresponding magnitude. In the abandonment of the forbidden acts lies the road to safety.

A verdict and judgment, whether of conviction or acquittal, upon an indictment, is a final adjudication of the question at issue — -the guilt or innocence of the defendant. This question, being thus res judicata, cannot again be tried. It is this principle that gives effect to the pleas of autrefois convict and autrefois acquit. To sustain either plea, to a subsequent indictment, the identity of the offenses charged in the two indictments must be shown, and it must appear that the evidence necessary to a conviction on the latter would be sufficient to convict of the offense charged in the former. As was said in Com. v. Trimmer, 84 Pa. 65: “ Where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea of autrefois acquit is generally good, but not otherwise. Whether the former acquittal was for the same offense depends on the record pleaded, and not on the argument or inference deduced therefrom. If that record shows that the evidence necessary to support a conviction on the present indictment would have been insufficient to procure a legal conviction on the former, the plea of autrefois acquit is not sustained.” The same principles apply to the plea of autrefois convict.

The effect to be given to a plea based on the judgment on a prior indictment is not due to the circumstance that such judgment was a conviction. It is because the judgment pleaded was a final adjudication of the question of the defendant’s guilt or innocence' of the offense charged in that indictment. The same effect would be given to the judgment had he been acquitted, and pleaded autrefois acquit. If a conviction on the first indictment may be pleaded in bar of the second, an acquittal may be pleaded with like effect. Had the' result of the former trial, therefore, been an acquittal, it would, on the principle contended for by the appellee, have been as fully a bar to conviction on the later indictment as the judgment now pleaded. The consequences of such a conclusion are obvious. Should any depositor commence a prosecution, and fail to prove the charge, no prosecution by any other depositor could be sustained. Whatever the cause, — whether a failure to prove that the defendant was a banker, or that he was insolvent, or that he knew of the insolvency, — an acquittal would protect him against any further attempt at punishment, however numerous his violations of the statute. Nor would such immunity necessarily rest on a bona fide attempt at conviction. Nothing would be easier than a collusive prosecution, brought for the purpose of placing an acquittal on record, to forestall a real effort to bring the offender to justice.

From an examination of the record in the two cases, it is manifest that the defendant could not have been convicted on the first indictment by the evidence necessary to conviction on the second. The offense consisting of his receipt of money from Isaac Long, with knowledge of his insolvency, could not be proved by evidence of his receipt of money from Anna Maria Meier, with like knowledge. Evidence of the latter, indeed, would not even be admissible except to show that the defendant was a banker, and it might not be necessary for this purpose, as the defendant’s business could be proved by other depositors. The receipt of the latter deposit could not be shown as a distinct violation of the statute, or as an integral part of the offense charged in the indictment, much less could it be held sufficient to convict of that offense. Under the test recognized and adopted in Com. v. Trimmer, supra, the defendant’s plea of autrefois convict cannot be sustained.

The case of the People ex rel. Tweed v. Liscomb, 60 N. Y. 559, is clearlynot authority for the appellee’s contention. The question presented here was not raised or involved in Tweed’s case. It was there one of practice, and, as stated by Judge Rapallo, was, “ whether several separate and distinct offenses, each amounting to a misdemeanor, upon which an indictment could be framed, may be charged in one indictment in separate counts, and the prisoner put upon his trial for all the alleged offenses at the same time, before the same jury; and, in case the jury render a general verdict of guilty on all the counts, whether the court has power to pronounce a separate sentence on each count upon which the prisoner is found guilty, and thus aggregate sentences on a single indictment and trial to an extent far in excess of the maximum punishment prescribed by statute for the grade of offense for which the prisoner has been indicted and tried.” It was held that under the laws of the state of New York but one judgment could be pronounced upon one indictment, no matter how many counts it contained, and that the punishment imposed could not exceed the maximum punishment prescribed for the highest offense charged in the indictment. Opinions were written by Judges Allen and Rapallo, in which the history and practice of uniting more than one offense in an indictment are exhaustively reviewed; and while they agree in the conclusion that but one sentence can be imposed, they do not pretend to pass upon the question whether the 220 counts in the Tweed indictment were for distinct offenses or not. The decision turned on the question whether the “ several separate and distinct offenses, each amounting to a misdemeanor upon which an indictment could be framed ” and set out in the indictment, could form the basis of separate cumulative sentences. That they were “ separate and distinct offenses ” was necessarily conceded in order to pass upon the main question. Judge Allen, in speaking of the character of the offense and the inadequacy of the statutory punishment upon a single conviction, said: “ The remedy was by several indictments, if the offenses were distinct;” and on the same point Judge-Rapallo said that “ separate and cumulative punishments can only be secured by separate indictments and trials for each offense.” From this it will be seen that both judges recognized the right to prosecute for similar offenses under separate indictments. The error in Tweed’s case lay in joining the offenses in one indictment, instead -of presenting them separately.

The offenses upon which the controversy arises in the present case are embraced in separate indictments, found at different terms of tbe court, and separately prosecuted. Therefore, the controlling principle of Tweed’s case can have no application. Furthermore, in Pennsylvania, (contrary to the law of New York) the joinder of distinct offenses in the same indictment, when not repugnant in their nature and legal incidents, is permitted, and separate sentences may be imposed under each count: Com. v. Sylvester, Brightly’s Reports, 331; Com. v. Birdsall, 69 Pa. 482; also Staeger v. Com., 103 Pa. 469, and cases there cited.

Cases in our own state growing out of police regulations, designed for the preservation of order, the observance of the Sabbath, the prevention of extortion, etc., throw little if any light on the question before us. The trend of decision, in the reported cases having any true analogy with the present, is fully consistent with the conclusions we have reached.

Judgment reversed, and judgment of respondeat ouster.


text:
    Mary Ann Wenger v. John Rohrer, Henry Biemesderfer, T. H. Hershey and E. K. Strickler, Appellants.

      Master and servant — Trespass—Respondeat superior.

    Where an action of trespass is brought against the servants of a turnpike company for work done in the service of the company, and there is nothing to indicate a wanton or malicious design to injure the plaintiff, the caséis one where the doctrine of respondeat superior applies, and the company for whose benefit the work was done should be included as a defendant.

      Highway — Long continued use — Presumption of right — Laches.
    As against a private person, a long continued occupancy of a public highway for a public use, or for a private use not inconsistent with the public use, will be presumed to have been of right.
    Ratification by municipal authorities as well as previous permission will be presumed as against a private citizen from long continued occupation of a public road by a turnpike company. Laches will be imputed to a citizen after nine years of such occupation.

      Turnpikes — Authority over the road — Drainage.
    Where a turnpike road had been substituted for a township road, the turnpike company succeeded to the authority of the supervisors as to the manner of its maintenance, including the method of drainage. The pub-lie use is paramount, and any private use must be in strict subordination to it. It follows that a turnpike company has the right to construct and maintain such a gutter for drainage as it may determine on.
    While the abutting owner of the fee may construct a private drain, yet if such drain cannot be maintained without interference with the method of drainage adopted by the turnpike company, it may be abated.
    Argued, Nov. 13, 1896.
    Appeal, No. 142, Nov. T., 1896, by-defendants, from judgment of C. P. Lancaster Co., Dec. T., 1893, No. 12, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Trespass for injury to plaintiff’s drain. Before Livingston, P. J.
    It appeared from the evidence that plaintiff was the owner of a lot or piece of ground fronting on the Manheim & Sporting Hill Turnpike. For many years an artificial drain constructed by the plaintiff and located on the turnpike road has been used to conduct the drainage from plaintiff’s land. In 1883 the Manheim & Sporting Hill Turnpike Company laid out a turnpike, building same in part along a public road which ran in front of premises of the plaintiff. There was a question whether the turnpike company had authority from the township to construct its pike along said public road. The evidence, however, was that it had done so and had used the road from 1883 without objection either from the township or private individuals until the day that this suit was brought, November 21, 1893.
    It was alleged that defendants’ servants and employees of the turnpike company had unlawfully constructed an open gutter for the purpose of draining the turnpike on the top of the plaintiff’s culvert or drain, whereby the drainage of her lot had been interfered with and her culvert destroyed and choked up.
    The plaintiff submitted the following point:
    As the undisputed evidence shows that the Manheim and Sporting Hill Turnpike Company, under which the defendants justify their action, was incorporated under the act of April 29, 1874, P. L. 73, for the purpose, as shown by its application, of building a turnpike road from the corner of Charlotte and High streets, in the Borough of Manheim, to Erisman’s tenant house, on the road leading from Manheim to Mount Joy, and that from its beginning it is constructed and laid out eastward upon a public road long previously used as such, and is so constructed for more than a mile, the plaintiff’s lands being about the midi die of the turnpike so made, the said turnpike company had 'no authority to occupy the public road in front of the plaintiff’s premises, and the verdict must be for the plaintiff for such injury as she has sustained from the defendants. Answer: Affirmed.
    The defendants submitted the following point:
    Under the law and evidence in this case, the verdict must be in favor of the defendants. Answer: Refused.
    The court directed a verdict for the plaintiff, with nominal damages of $1.00. Defendants appealed.

      Errors assigned were (1) affirming plaintiff’s point, reciting same; (2) directing a verdict for the plaintiff; (3) refusal of defendants’ point.

      H. Franklin Hall, and J. Hay Brown, with them W. U. Hensel, for appellants.
    The court had no jurisdiction in this proceeding to test the turnpike’s right to the road. The private citizen had his day in court when the gates were about to be erected,, and could have applied for an injunction as was done in Groff’s Appeal, 128 Pa. 621.
    The turnpike company is protected in its occupation of the road by long acquiescence in user by them: Com. v. Turnpike Co., 153 Pa. 47.

      George Hauman, with him D. McMullen and Wm. R. Brinton, for appellee.
    A conveyance of land bounded by the side of a street or road, gives the grantee a title to the center of it, if the grantor had title to that extent: Firmstone v. Spaeter, 150 Pa. 616.
    The plaintiff had the right to lay his drain on the highway: Perley v. Chandler, 6 Mass. 453 ; Woodring v. Forks Twp., 28 Pa. 355; Turnpike v. Steam Co., 5 C. C. R. 344; Chestnut Hill Tpk. Co. v. Piper, 15 W. N. C. 55.
    February 16, 1897:
   Opinion by

Smith, J.,

The act which the plaintiff complains of was performed by the defendants as servants of a turnpike company, which., with color of title, held undisputed possession of the locus in quo, for a public use. Their act was by authority of the corporation, and within the apparent scope of its corporate powers. There was nothing to indicate a wanton or malicious design to injure'the plaintiff. We think, therefore, that the case is one to which the doctrine of respondeat superior applies, and that under the circumstances the corporation for whose benefit the work was done should also have been sued, if the act complained of was wrongful and injurious to the plaintiff.

But even were the action against the corporation as well as the defendants, it is clear that under the evidence it could not be sustained.

The basis of the plaintiff’s claim is the contention that a public road “has been wrongfully and illegally appropriated and converted into a toll road ” by the turnpike company; and the operations of the company on this road form the ground of action. This appropriation was commenced in 1883, and became complete November 1, 1884. It continued unquestioned until this suit was brought, November 21, 1893. As against a private person, a long continued occupancy of a public highway for a public use, or for a private use not inconsistent with the public use, will be presumed to have been of right: Canal Co. v. Goldstein, 125 Pa. 246; Potter v. Traction Co., 176 Pa. 271. In the latter case it was said by Mr. Justice Mitchell : “ Whether the consent of the borough was necessary or not, it must be presumed in this action by a private citizen. Consent may be by ratification as well as by previous permission, and it was held in Pa. Schuylkill Valley R. R. Co. v. Phila. & Reading R. R. Co., 160 Pa. 277, that at least as to private parties, 'if not as to the municipality itself, consent may be waived by acquiescence without objection, in a long continued act.” There is still further ground on which the right here claimed by the turnpike company may be maintained. Granting that the company was not authorized by its charter to occupy a public road, and that at the outset it might have been restrained from doing so (Groff’s Appeal, 128 Pa. 621), it has since acquired rights that cannot now be questioned. Laying its route on a public highway, it made the expenditure necessary for converting this into a turnpike road. The conversion was made, and the turnjóike road, approved .as required by the statute, with the acquiescence of the road authorities of the township, and of its citizens, including this plaintiff; and for nine years afterward the road was maintained by the turnpike company with the like acquieseence. These undisputed facts bring the case clearly within the principle laid down in Com. v. Turnpike Co., 153 Pa. 47. There, under a decree of the common ple&s amending its charter, a turnpike, company extended its road upon a public highway. Upon a writ of quo warranto, issued five years later, it was held that both private persons and the commonwealth were barred by laches from questioning the right of the company to maintain this extension of its road.

The turnpike road being thus substituted for the township road, the turnpike company succeeded to the authority of the supervisors as to the manner of its maintenance, including the method of drainage. If the company decided on a surface gutter, no private use of any part of the roadway can be allowed to interfere with it. The plaintiff’s use was a private use. We need not now consider the plaintiff’s rights as owner of the fee, for it does not appear in evidence that she owned the fee. In the declaration, the plaintiff’s land is described as “ fronting on the public road ” maintained by the turnpike company, and the appellee’s counter statement sets forth that it “ fronts for about one hundred feet on the road.” We cannot assume a point which is neither proved nor asserted. True, “a conveyance of lands bounded on a highway gives the grantee a title to the middle of the road, if the grantor himself had title to it, and did not expressly or by clear implication reserve it: ” Carver v. Paul, 24 Pa. 207; and a conveyance of land bounded on the side of a street has a like effect: Firmstone v. Spaeter, 150 Pa. 616. But as the conveyances under 'vyhich the plaintiff claims are not printed in either paper-book, we cannot determine their effect. Not unfrequently, roads along property lines are laid out wholly on the land of one owner to save the cost of moving-line fences. It does not appear on whose land this road was laid, and it is not shown that the plaintiff’s grantor had title to any part of it. Conceding, however, the plaintiff’s title to the fee, it gives her no right to interfere with the maintenance of the road and its accessories in the manner adopted by the turnpike company. The public use is paramount, and any private use must be in strict subordination to it: Turnpike Co. v. Piper, 15 W. N. C. 55. It follows that the turnpike company had the right to construct and maintain such a gutter for drainage as it might determine on. We do not say that the plaintiff, if owner of the fee, may not construct a private drain; but if this cannot be maintained without interference with the method of drainage adopted by the turnpike company, it must go. It is not necessary here to consider the liability that might arise from a wanton or malicious destruction, by the turnpike company or its agents, of a private construction that does not interfere with the proper maintenance of the road. It is sufficient for the purposes of this case to say that tire company is not bound to maintain its road in such a manner as to preserve the drain constructed by the plaintiff.

As no right of action has been shown the judgment is reversed.


author: Reeder, J.,

text:
    Jacob Wolf v. J. M. Krick. Maurer’s Appeal.

      Execution — Preferred claims for wages — Act of 1872 and supplements construed.

    The labor and services which are entitled to priority of lien by virtue of the Act of April 9, 1872, P. L. 47, or its amendments, the acts of 1888 and 1891 must be such, as in the course of a regular and permanent employment, contribute directly- or indirectly to the particular, permanent and continuous use of the particular works, mines, manufactory or other business. Labor or services contributed to the construction and equipment of such works, etc., are not within the purview of the acts.
    The construction of a manufactory is one thing, and the operation of it is another.
    Argued Nov. 11, 1896.
    Appeal, No. 56, Nov. T., 1895, by Casper Maurer, from decree of C. P. Lancaster Co. Nov. T., 1894, No. 47, in distribution.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Exceptions to auditor’s report. Before Livingston, P. J.
    The facts sufficiently appear in the opinion of the court below •which, as to the question raised by exception, was as follows:

      The exceptions filed by counsel for Jacob Wolf, the execution creditor, are:
    1. The auditor erred in awarding to Casper Maurer the sum of $90,
    2. The auditor erred in not awarding the whole fund in court to Jacob Wolf.
    With reference to the claim of Casper Maurer, the learned auditor finds, as a fact, and in his report says, that, “ J. M. Kriclc and Harry A. Hagelgans made up their minds to start a caramel factory in the now borough of Ephrata, Lancaster county. To this end a building, or more exactly speaking, a part of one, was leased from Mrs. McCaa. By the terms of the arrangement between Krick and Hagelgans, the first was to equip the building by putting in the necessary machinery. Casper Maurer is a millwright and skilled mechanic; he was employed in putting up the machinery, with general supervising power. He did so, commencing work on August 13, 1894, and finishing his work, as he calls it, on September 20, 1894. It seems he had an agreed price, which no one has called in question, and he claims a balance is due him of $87.79. That “the enterprise projected by Krick and Hagelgans ended in a failure. The caramel factory was never started, and, therefore, never ran or put in operation. That the thing seemed to have been dismantled — the machinery at which Maurer worked was sold by the sheriff of Lancaster county, on an execution issued by Jacob Wolf against J. M. Krick.
    “That $300 of the proceeds in selling out Krick were paid into court, and this is now for distribution and is, undoubtedly, the proceeds of personal property, and made so by Wolf himself, which prevents from holding that Maurer’s claim should have been on the real estate, and that the parties to this contention, after barring out Hagelgans, are Wolf, the execution plaintiff, and Maurer as a wage earner and preferred claimant.” After referring to the law cited, he allows the claim of Maurer, $90.00, and deducts it from the fund in court.
    To this allowancé, exception has been taken, as we have before stated.
    Is the exception well taken, and should it be sustained ?
    In this case the learned auditor has found as a fact, and we think correctly, that Krick was not er gaged in, or employed in, any occupation, or business, mining or manufacturing, or any business named or specified in the act of 1872, or its amendment of 1883 and 1891, at the time the labor of Maurer was done and performed, or in or about, or concerning which it was done or performed. But that he, in connection with another person, had made up their minds and proposed to go into business, the business of manufacturing caramels- — to start a caramel factory. That a part of a building was leased. That Kriclc was to prepare the building, purchase and put in the machinery, put it up in the building and make it ready to commence operations. It appears from the evidence, and the master so finds, that Maurer was engaged, employed to prepare the building and- put in, and put up the machinery furnished by Mr. Krick, and did so, or at least part of it, and the amount he charges for his labor has not been disputed, but the business never was commenced, the manufactory never finished or started, and no caramels were manufactured. The machinery which Maurer was hired to put in the building and set up, was sold by the sheriff as the property of Mr. Krick, under and by virtue of an execution issued upon a judgment held against him by one of his creditors, and the money in court, out of which Maurer claims he should be paid is, and so the auditor finds, part of the proceeds of that sale.
    There can be no doubt as to the right of any miner, mechanic or laborer of any class named in the act of 1872 and its amendments of 1883 and 1891, to be paid out of the sale or transfer of the real or personal property, works, mines, manufactories or business, or other property connected therewith in carrying on the same, of said person or persons, chartered company, joint stock company, limited partnership or other partnership, by «execution or otherwise. On account of the death or insolvency of such employer or employers, it shall be a lien upon said real estate or personal property, mine, manufactory, business or other property, in and about, or used in carrying on said business or in connection therewith, etc., etc., and their claims are to be preferred and first paid out of the proceeds of the sale of such real and personal property, mines, manufactory, business or other property used in and about or in carrying on said business, or in connection therewith.
    To give employees such right of preference under the act of 1872 and its supplements, the employer must be actually engaged in some business, some occupation, mining, manufacturing, carrying on the same, etc., and the employment must be in connection with such business, manufacturing, mining or other business, and the wages or claim therefor must arise from the performance of labor in and about such business and in connection with the same.
    . The legislature evidently intended to embrace any business in which the employers named in the act and its supplements maybe employed, but there must be a business, and the employment and labor must be in connection with that business.
    In White’s Appeal, 15 W. N. C. 313, the present chief justice of the Supreme Court said: “ It has been repeatedly held that the business contemplated by the act (1872) must be connected with works, mines or manufactories, business ejusdem generis ; that ex vi termini, the branches of business intended to be described by the words works, mines, manufactory,’ are in a certain sense complete and independent, and of a fixed and permanent character, as opposed to a temporary employment that is merely incidental to any particular branch of business.” In this case the principal business of the execution creditor was manufacturing lumber, and it was held that unless the wages claimed were earned in the prosecution of that business or in a pursuit connected with it and forming a part thereof, the claim was not covered by the act of 1872.
    The act of April 9, 1872, sec. 1, declares, that, all moneys that may be due, or hereafter become due, for labor and services rendered by any miner, mechanic, laborer or clerk, from any person or persons or chartered company employing clerks, miners, mechanics or laborers, either as owners, lessees, contractors or under-owners of any works, mines, manufactory or' other business where clerks, miners or mechanics are employed, whether at so much per diem or otherwise, for any period not exceeding six months immediately preceding the sale and transfer of such works, mines, manufactories or business, or other property connected therewith, in carrying on said business, by execution, etc. — shall be preferred and first paid out of the sale of such mine, manufactory, business or other property — not exceeding $200.
    On June 13,. 1883, P. L. 116, an act was passed entitled, “ An act to amend the first section of an act, entitled, ‘ An act for the better protection of the wages of mechanics, miners, laborers and others,’ approved the 9th day of April, A. D. 1872, amending said act, so that wages of servant girls, washerwomen, clerks and others shall be preferred and first paid out of the proceeds of sale of the property of insolvent debtors, owing wages to such servants or employees.”
    Which, in amending said first section, declares, “ That all money that may be due, or hereafter become due, for labor and services rendered by any miner, mechanic, laborer or clerk, servant girls at hotels, boarding houses, restaurants or in private families, or other servants and helpers in and about said houses of entertainment and private houses, porters, hostlers, all persons employed in and. about livery stables, laundrymen, and washerwomen, seamsters and seamstresses employed by merchant tailors, milliners, dressmakers, clothiers, shirt manufacturers, and clerks employed in stores, hands, laborers, mechanics, printers, apprentices, hired for wages or salary, from any person or persons or chartered company employing clerks, miners, mechanics or laborers, either as owners, lessees, contractors or under-owners of any works, mines, manufactory or other business where clerics, minéis or mechanics are employed at so much per diem or otherwise for any period not exceeding six months immediately preceding the sale and transfer of such works, mines, manufactory or business or other property connected therewith in carrying on said business by execution or otherwise, preceding the death or insolvency of such employer or employers, shall be a lien upon such mine, manufactory, business or other property in and about or used in carrying on said business or in connection therewith, to the extent of the interest of said owners or contractors, as the case may be, in said property, and shall be preferred and first paid out of the sale of such mine, manufactory, business or other property, as aforesaid — • not exceeding $200.”
    And the Act of May 12,1891, P. L. 54, entitled, “ An act to amend the first section of an act, entitled, ‘ An act for the better protection of the wages of mechanics, miners, laborers and others, approved the 9th day of April, A. D. 1872, amending said act so that wages of servant girls, washerwomen, clerks and others shall be preferred and first paid out of the proceeds of the sale of the property of insolvent debtors owing wages to such servants or employees, approved the 14th day of June, A. D. 1883, so that wages of farm laborers and all other laborers or clerks and tradesmen, whether employed by private individuals or corporations, joint stock companies or partnerships, shall be preferred and paid first out of the proceeds of the sale of the property of insolvent debtors.” Amends said act and amended act so as to declare, “ That all moneys that may be due or hereafter become due for labor and services rendered by any miner or mechanic, servant girl at hotels, boarding houses, restaurants or in private families, or any other servant and helper in and about said house of entertainment and private families, porter, hostler or any other person employed in and about livery stables or hotels, laundrymen or washerwomen, seamster or seamstress, employed by merchant tailors or by any other person, milliner, dressmakers, clothier, shirt maker or clerk employed in stores or elsewhere, hand labor, including farm labor or any other kind of labor, printer, apprentice and all other tradesmen, hired for wages or salary from any person or persons, chartered company, joint stock company, limited partnership or other partnership, either as' owner, lessee, contractor or under-owner, whether at so much per diem or otherwise, foi any period not exceeding six months preceding the sale or transfer of the real or pferspnal property, works, mines, manufactories or business, or other property connected therewith in carrying on the same, of said person or persons, chartered company', joint stock company, limited partnership or other partnership, by execution or otherwise, on account of the death or insolvency' of such employer or employrers, shall be a lien upon said real or personal property, mine, manufactory, business or other property in and about or used in carrying on said business or in connection therewith, to the extent of the interest of such employer or employers in said property, and shall be preferred and first paid out of the proceeds of the sale of such real and personal property, mines, manufactory, business or other property as aforesaid. The claim thus preferred not to exceed two hundred dollars.”
    In Pardee’s Appeal, 100 Pa. 408, the same learned judge in delivering the opinion of the court, held that the act (1872), contemplates a business, complete and independent, of a fixed and permanent character, as opposed to a temporary employment that is merely incidental to any particular branch of business. That cutting saw logs, for the owners, and driving them to the place of manufacture, is not a business which comes within the act.
    In Sanger v. Skinner, 16 W. N. C. 16, and Adamson’s App., 110 Pa. 459, the Supreme Court held, that under the acts of 1872 and 1883, to entitle a wage claimant to preference in the distribution of the proceeds of an execution, the notice to the sheriff should show in writing: the process by which the goods are under execution; the amount claimed to be due as a preference, which must not exceed $200; that such amount is claimed as a lien on the property under execution; the character of the labor or service rendered, which must be within the terms or meaning of the acts; that such labor or service was performed in and about a business carried on by the execution debtor, which business must be within the scope of the acts.
    In Wilson v. Gibson, 10 C. C. R. 191, it is said that farm laborers are entitled to a preference for wages under the act of 1872; but the employment must be continuous, not temporary, in its character. Hay packers and threshers, temporarily employed as contractors, are not within the act.
    In Llewellyn’s Appeal, 103 Pa. 458, it is held that labor and services which are entitled to priority of lien by virtue of the act of 1872 must be such, as in the course of a regular and permanent employment, contribute, directly or indirectly, to the particular, permanent and continuous use of “works, mines, manufactory or other business,” and it is immaterial whether such labor is skilled or unskilled in the particular art or craft. That labor or services contributed to the construction and equipment of such works, mines, manufactory or other business, being only temporary and preliminary to their operation, are not within the purview of the act. That in order to start the manufacture of iron it is requisite, first, to construct the buildings, supply the machinery and equip the works; the labor bestowed upon the construction and equipment is merely temporary and preliminary in its character to the general employment for which the works are designed. That the construction of a manufactory is one thing, and the operation of it is another; the price of the materials furnished and labor done in the former is preferred, under the mechanic’s lien law, whilst the wages of the labor performed, in the latter, is covered by the provisions of the act of 1872. This is the judicial construction of the language of the act of 1872, as to the character of the business contemplated by the act, and the language of the act of 1872, on this point is re-enacted in the amendatory acts of 1883 and 1891; and it is held by the courts, that “ when the legislature re-enacts language which has received judicial construction, it carries the same construction with it.”
    In Mulholland v. Brown & Co., 166 Pa. 486, it is held that a person employed by a firm, under a written agreement to sell goods for the firm, paying his own expenses and receiving road commissions, is a traveling salesman, and not a “ clerk employed in- a store or elsewhere,” within the meaning of the act of 1891, giving a preference for wages. Because “such a person is not an assistant in the store or business of his employer. He is' not employed to keep accounts, or to assist in the store or elsewhere in the management of the business.”
    The findings of fact by the learned auditor, as well as the decisions of the courts and their construction of the law, show clearly, that the claimant, Maurer, has not brought himself or his claim within any of the provisions of the act of April 9, 1872, or its amendments of June 13, 1883, and May 12, 1891, before mentioned, and is not, therefore, entitled to the protection which they are intended to, and do, afford to those who are shown to be within the range of their provisions.
    We are, therefore, of opinion that the exceptions taken to the allowance of the claim of Casper Maurer, are well taken, and must he sustained and the claim disallowed by the court.
    Exceptions sustained, the claim of Casper Maurer disallowed and the amount awarded to Maurer $90.00, is directed to be added to the sum of $147.11, awarded to Jacob Wolf, the execution creditor, and paid to him as execution creditor.

      Errors assigned were (1, 2) sustaining exceptions; (3) in making the decree.

      B. F. Davis, for appellant.

      J. Hay Brown, with him W. U. Hensel, for appellee.

      February 16, 1897 :
   Opinion by

Reeder, J.,

The learned judge of the court below so thoroughly and so ably discusses the questions involved, that it is unnecessary for us to say anything in addition to the reasons which he gives in support of this judgment and decree.

The decree is therefore affirmed upon the opinion of the learned court below.


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    The Commonwealth ex rel., etc., v. Peter Joyce et al., Appellants.

      Practice, Q. S. — Auditors' report — School district treasurer — Motion to strike off.

    The remedy of a school district treasurer for erroneous surehai’ge at an audit of his accounts is by appeal from the audit as provided by law; it is too late to raise the question upon a motion to strike off the report.

      Township auditors — School district treasurer's account — Gonclusiveness of settlement.

    Under the special act of February 17,1859, P. L. 51, relating to the settlement of the accounts of the school district treasurer by the township auditors in Schuylkill county, that tribunal is exclusive of all others, and its decision if not appealed from is final and conclusive, and cannot be opened for the correction of errors.
    The allegation that the treasurer was not notified of the audit will not prevail in support of a motion to strike off the report; it appearing that he had appointed a deputy treasurer who was in custody of the books and who was the acting treasurer and who appeared, with them, before the auditors, before whom also the treasurer himself appeared as a witness.

      Filing copy of settlement — When adequate under act of 1859.
    Under the Act of February 17, 1859, P. L. 51, the filing of a copy of the settlement for the inspection of the parties interested, complies as fully with the spirit and purpose of the act as filing the original itself, there being no allegation of mistake or variation in the copy as filed and the original settlement as made.
    Queried, whether this portion of the act of 1859 is not superseded by the Act of April 21, 1871, P. L. 112.
    Argued Dee. 10, 1896.
    Appeal No. 127, Nov. T., 1896, by defendants, from'order of Q. S. Schuylkill Co., discharging rule to show cause why the auditor’s report should not be stricken off.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.

      Motion of Margaret Joyce, executrix of Peter Joyce, deceased, and Iris sureties, to strike off report of auditors for matters appearing on the record. Before Pershing, P. J.
    Peter Joyce was the treasurer of the school district of Butler township, Schuylkill county, for the year ending June 5, 1893, and his bond was filed in the office of the clerk of the quarter sessions. By a settlement with the township auditors Joyce was found to be indebted to the school district in the sum of $484.48. He died on January 13, 1894.
    On May 9, 1894, on application of the school district the court directed that the bond of Joyce should be certified in the common pleas and judgment entered thereon against Joyce and his sureties for the above sum of $484.48. The application for leave to enter an appeal nunc pro tunc was refused. A motion was taken in the quarter sessions to strike off the report of the auditors for matters appearing on the record, which was discharged; said action forming the basis of the appeal in this case.
    On the same day a rule was taken in the common pleas to show cause why the judgment should not be stricken off and on May 18, this rule was amended by the addition of the words “ or the judgment opened and the defendants let into a defense.”
    Both rules were argued below and disposed of in one opinion by Pershing, P. J., who struck off the judgment as to Joyce the treasurer by reason of the intervention of his death, but dismissed the rule in the quarter sessions and the rule in the common pleas so far as it related ,to the sureties on the bond.

      Errors assigned were (1) the court erred in holding that the said alleged report does affirmatively show that the auditors of the school district did summon Peter Joyce, treasurer of said school district, and inform him that they were about to surcharge him and that they, also, gave him an opportunity to be heard before he was thus surcharged.
    (2) The court erred in holding that the settlement by said township auditors, unappealed from, was conclusive upon Peter Joyce and Iris sureties, inasmuch as there is-no evidence that the said Joyce was summoned to appear before the said auditors, or that he had notice that they were about to surcharge him.
    (3) The court erred in holding that the paper filed with the clerk of quarter sessions, which purported to be a printed copy of the advertisement of the township auditors’ report, authorized or empowered the said auditors to surcharge Peter Joyce, the said treasurer, with orders which they knew Avere paid by him, and which orders were legally and properly drawn by the legally authorized officers of the school district, and for purposes that are, on the face of said orders, entirely legal and lawful.
    (4) The court erred in holding that the paper filed December 30, 1893, in the office of the clerk of court of quarter sessions of Schuylkill county, purporting to be a report of the auditors of Butler township on the financial condition of the Butler toAvnship school district for the year ending June 5, 1893, is in compliance with the act of assembly approved February 17, 1859, P. L. 51, entitled, “An act to secure a stricter accountability of certain public officers in Schuylkill county.”
    (5) The court erred in refusing to make absolute the rule to strike off or set aside the auditors’ report filed in tills case.
    (6) The court erred in holding that the Act of 1874, P. L. 112, repealed or superseded the 2d section of the Act of February 17, 1859, P. L. 51.
    (7) The court erred in neither striking off nor opening the judgment which in this case was improvidently entered on the said bond, because there was no evidence before the court of any default by the said treasurer, and there is no evidence of any amount to be collected from the said treasurer and his sureties, or either of them.

      J. F. Monogur, with him J. W. Ryan, for appellants.
    The first and second assignments of error strike at the jurisdiction of the auditors of the school district of the township of Butler. The records of judgments, which have been entered by courts that have been created by statute, must affirmatively show or exhibit of record, every essential element necessary to give these courts jurisdiction: Allen v. Krips, 119 Pa. 1; Pantall v. Dickey, 123 Pa. 431; M’Kinney v. Brown, 130 Pa. 365; Schuylkill v. Minogue, 160 Pa. 164.
    If the auditors proceed to settle the account without giving notice to the treasurer, and their report be filed, no appeal entered and execution issued, the court on application will set the report aside: Brown v. Com., 2 R. 45.

      Where a person is in default to a county, he ought to be summoned before the auditors and have a hearing, unless he makes default after being duly summoned: Wilson v. Clarion Co., 2 Pa. 17.
    There is no„repeal of the act of 1859 by the act of 1874, the intendment of the later act being general, and not to supply the local: Bounty Accounts, 70 Pa. 92; Kilgore v. Com., 94 Pa. 495; Evans v. Phillipi, 117 Pa. 226; Bell v. Allegheny, 149 Pa. 381.

      Wm. A. Marr, for appellees.
    The settlement by the auditors unappealed fromis conclusive on Joyce and his sureties. This is settled by many authorities : Westmoreland Co. v. Fisher, 172 Pa. 317; Schuylkill Co. v. Boyer, 125 Pa. 226; Schartzer et al. v. School District, 90 Pa. 192; Porter v. School Directors, 18 Pa. 144.
    The object of filing the settlement is not for the officer who is a party to the settlement but for the taxpayer of the different school districts, and is in line with the legislation of April 14, 1851, P. L. 616. It follows therefore that the filing of a copy was abundant compliance with the statute, and in any event this provision of the act of 1859 is supplanted by the Act of April 24, 1874, P. L. 112: Keller v. Com., 71 Pa. 413 ; Martz’ Contested Election, 110 Pa. 502.
    February 16, 1897 :
   Opinion by

Reeder, J.,

The act of February 17, 1859 was a special act of assembly relating only to Schuylkill county, the first section of the act providing that, “ hereafter all supervisors, all township, borough and school district treasurers for both road and school purposes, and all collectors of borough, road and school taxes shall file in the office of the clerk of quarter sessions bonds with warrants of attorney to confess judgment, with sufficient sureties, there to remain subject to the order of the court, for the security of said townships, boroughs, school districts and all others interested in said bonds whenever legal proceedings shall be necessary thereon.”

The account of Peter Joyce as treasurer of the school district of Butler township was regularly filed in the office of the clerk of quarter' sessions. The auditors found by this settlement Peter Joyce to be indebted to the township in the sum of $484.48. Prior to this time, in conformity with the said act of assembly, the bond of Peter Joyce, with security, was filed in the court of quarter sessions, and upon the filing of the report of the auditors, that $484.48 was due from Peter Joyce as treasurer, under the warrant of attorney, judgment was entered in favor of the plaintiffs and against the defendants for that sum.

It is claimed by the appellants that the auditors had no jurisdiction in passing upon the account of the treasurer of the school district to surcharge him with any amount, for the reason that he did not have notice of the settlement by them of his account.

It appears as a fact from the statement of the auditors and which fact was not denied by the appellants in this case, that the books, papers and accounts of the school district were in the custody, possession and control of Owen Conroy, the son-in-law of Peter Joyce, who was a school director of this district. The auditors further find, that Peter Joyce was but the nominal treasurer and that Owen Conroy was in fact treasurer of the Butler school district in everything but name, and that Peter Joyce admitted, while testifying before them, that he was but the nominal treasurer. During the examination of the account* of Peter Joyce he was present before the board of auditors and testified. The auditors surcharged him with a number of orders, which were not drawn by the legal board of school directors, but by a board illegally constituted, of which Conroy was a member, upon Owen Conroy, who was then the acting treasurer of the district and which orders the auditors found were drawn in an illegal manner, and in some cases and instances for illegal purposes. The auditors also find as a fact, that Peter Joyce, the father-in-law of Conroy, had an agreement with Conroy that the latter was to act as treasurer, although a member of the school board, and was to draw the compensation.

It is difficult to understand how it can be successfully contended, that the auditors did not have jurisdiction for the purpose of investigating the accounts of Peter Joyce as treasurer, when before the investigation by the auditors took place, they demanded the books from Owen Conroy, who had the custody of them for Peter Joyce, and while the investigation was pending, Peter Joyce himself testified before the auditors, or that it can be successfully contended that the neglect of Peter Joyce to appeal from the report as filed by the auditors surcharging him, is not conclusive upon him in the absence of such appeal. Peter Joyce must certainly have had knowledge that his accounts were being passed upon by the auditors, he having been called as a witness to testify before the auditors in relation to them. Owen Conroy continuously acted for Joyce, as the auditors find, as treasurer, Joyce being but the treasurer in name, and Owen Conroy having been the actual custodian of all the books and having charge of the entire business, and the accounts having been obtained from Conroy with extreme difficulty prior to the beginning of the investigation, and the report of the auditors having been unappealed from, it is conclusive on Peter •Joyce and his sureties. This disposes of the first and second assignments of error.

The third assignment of error asserts that the court erred in deciding that the auditors were empowered or authorized to surcharge Peter Joyce with orders which they knew were paid by Joyee and “ which orders were legally and properly drawn by the legally authorized officers of the school district and for purposes that were on the face of said orders entirely legal and lawful.” The appellants claim that these orders or warrants were regular on.their face,- for purposes recognized by law and within the scope of the authority of those issuing them, and that, therefore, the disbursing officer was protected in their payment. If this position is correct, and the statement of fact upon which it is based is also correct in its description of the orders — the purposes for which they were drawn, and the authority by which they were directed to be issued — -it nevertheless was too late to raise the question upon a motion to strike off the auditors’ report at the time it was presented in the court below. The appellants’ only remedy was an appeal from the auditors’ report, and that not being taken they lost their remedy and have no right to raise the question in this way, and we have no power to consider it. But it appears from an examination of the auditors’ report and their finding of fact, which is the only evidence upon which we can determine any fact at issue, or which might be at issue in this controversy, that the orders were not legally drawn by a legally constituted board, but were drawn by an illegally constituted board, one of whom was Owen Conroy acting as treasurer of the district, and that they were paid by himself as the acting treasurer, and, as found by the auditors in some cases drawn for illegal purposes and known by him to be fraudulent. The appellants contend that the provisions of the act of 1859, providing for the filing of auditor’s settlements of the accounts in the office of the clerk of the court of quarter sessions for the inspection of those interested in said accounts was not complied with, for the reason that a copy of the settlement was filed instead of the original, and that therefore it ought to be stricken off or set aside by the court in accordance with their motion. It seems to us that the spirit and purpose of the act of 1859 is complied with just as fully by the filing of a copy of the settlement for the inspection of parties interested as by filing the original account itself, and as it stands of record in the court having competent jurisdiction under the act of assembly, all parties interested have the same opportunity for investigation and their interests are as fully protected in the one case as in the other, and that therefore the filing of a copy of the settlement by the auditors in the court of quarter sessions, while it may not be a strict compliance with the requirement of the law, and while the court could compel the auditors to file the original account upon proper application, yet, no person could complain of the filing of the copy of the account instead of the original, unless his material interests were in some way affected by the substitution, and as there is no allegation of mistake or variation in the copy as filed and the original settlement as made, and as no appeal was taken by Peter Joyce from the report of the auditors as filed by them in the court of quarter sessions in the shape of the copy of their settlement, he is not now in a position which entitles him. to relief here.

It is also a doubtful question whether this portion of the act of 1859 is not superseded by the act of April 21,1871. By the latter act, auditors are required to file a copy of their annual settlement with the clerk of the court of quarter sessions, which shall be at all times subject to the inspection of the citizen. It would seem as if this was intended as a substitute for the provisions of the act of 1859 relating to the filing of settlements by auditors in the court of quarter sessions and directly authorizing a copy of the settlement to be filed. For the purposes of this case, however, it is unnecessary to pass upon this question.

The discussion of the assignments of error upon which we have already passed, and what we have already said in regard thereto, disposes of all the questions raised by the several assignments of error in this ease, and they are therefore dismissed and the judgment is affirmed.


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    Commonwealth v. Joyce et al., Appellants.

      Practice, O. P. — Treasurer's bond — Refusal to open judgment thereon.

    A settlement having been made against a school district treasurer and Iris bond having been certiiied from the quarter sessions to the common pleas, and there entered up, such judgment is conclusive upon the sureties and the court has no power to open judgment except as to matters apparent on the face of the record.
    Argued December 10, 1896.
    Appeal, No. 128, Nov. T., 1896, by defendants, from order of Q. S. Schuylkill Co., July T., 1894, No. 27, refusing rule to show cause why the judgment should not be stricken off and the judgment opened and defendants let into a defense.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    This case was argued below and above with the preceding case, and the facts sufficiently appear by reference to the statement of the facts therein set forth.

      J. F. Monogur, with him J. W. Ryan, for appellants.

      Wm. A. Marr, for appellee.
    February 16, 1897:
   Opinion by

Reeder, J.,

This case is connected with and was argued, both in the court below and here, at the same time as that of the appeal we have just considered in the foregoing case, and the two cases were disposed of by the learned judge of the court below in a single opinion. A motion was made in the court below to strike off the judgment for matters apparent upon the face of the record, the rule was discharged, and the appeal was taken from the decision of the court below on the discharge of the rule.

The bond in this case was a bond given to the commonwealth of Pennsylvania by Peter Joyce as principal, with Theodore F. Barrow, Thomas Pepper, Geo. Fluchr, G. M. Hadesty, and Adam Waldner as sureties. The bond was originally entered in the court of quarter sessions and contained a warrant of attorney authorizing the confession of judgment in accordance with the provisions of the act of Feb. 17,1859. After the surcharge of Peter Joyce by the auditors with the sum of $484.48 the bond was certified from the court of quarter sessions into the court of common pleas and judgment entered on it by virtue of the warrant of attorney for the amount of $484.48. Peter Joyce was dead, at the time of the entry of the judgment upon tins bond in the court of common pleas, and because of his death, as to him, the court below struck off the judgment, permitting the judgment to stand, however, as against the sureties. The case of Croadsdell v. Tallant, 83 Pa. 193, cited by the court below in support of this position, fully sustains it. The bond was not printed in the paper-hooks, and the learned court below declares that it was not before him at the time of the consideration of the argument, but we infer that the obligation of the sureties in this bond is coextensive with that which the bond imposed upon the principal, (which is, or should be the obligation in all official bonds: Boehmer v. County of Schuylkill, 46 Pa. 455). The court could not open the judgment or strike it off for any of the reasons contained in the petition as we have already decided in the ease immediately preceding this, because the findings of fact by the auditors, unappealed from, were conclusive upon Peter Joyce and his sureties, except as to matters which were apparent upon the face of the record. There is nothing apparent upon the face of the record which would have justified the court in making this rule absolute. The court went as far as it was authorized to go in the application.of the proper principles of law to the facts of this case when they struck off the judgment so far as it affected Peter Joyce. There was no error in its refusing to do more. The exceptions are dismissed and the judgment is affirmed.