text:
    Utley, Appellant, v. Cobb.

      Ejectment — Rule to bring action — Laches—Quashing writ of ejectment.

    Where a person is ruled to bring an ejectment, as provided by the Act of March 8, 1889, P. L. 10, 'as amended by the Act of April 16, 1903, P. L. 212, and he fails to do so until more than six months have expired from the time the rule was made absolute, and, then, without any permission of the court, he issues a writ of ejectment, such writ will be quashed.
    Submitted March 9, 1910.
    Appeal, No. 37, March T., 1910, by plaintiff, from order of C. P. Lackawanna Co., Sept. T., 1910, No. 1,464, quashing writ of ejectment in case of William Utley v. James A. Cobb.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule to quash writ of ejectment.
    Newcomb, J., filed the following opinion:
    The regularity of the writ is attacked because it was issued more than six months after plaintiff had been ruled to bring his action. That proceeding was had to No. 658 January Term, this year, and this should have been given the same number. The rule was taken under the Act of March 8, 1889, P. L. 10, as amended by that of April 16, 1903, P. L. 212. It was duly served on plaintiff January 4. After answer and hearing, it was made absolute January 28. The six months expired July 4, and' the action was brought August 25.

      The present motion is contested only on the ground that the time was extended by an informal order of court, not in writing nor founded on any application in writing. It is only alleged that within ten days after the time expired such order was made at plaintiff's request. It is to be noticed there is no claim that the extension was specific, or for any definite period. The reason for that will appear.
    We think this is no answer to the motion to quash. Yet it is true that an informal request was made as alleged, and at that time the court indicated a willingness to allow it. But this was followed by no application in form and, therefore, we had no occasion to examine the question involved until the present motion challenged the writ, which seems to have been issued by plaintiff at his own convenience without further ceremony or concern in the premises.
    Clearly his status is not that of a party to whom, on reasonable cause shown, an extension had been granted pending the six months. Had that been done, and, on the faith of the order he had suffered the statutory time to go by, a different question might be presented. But here no advantage has been lost by reason of the supposed order. Plaintiff was not thereby lulled into a false sense of security. For the time having then fully run he had no legal right to lose.
    The informality of the order may be waived. For the purpose of discussion it may be assumed .that an order in due form was made and filed extending the time, say, to September 1, and that the motion now is to vacate it. We are dealing then with an express limitation of a right of action as defined by statute. The question arises: By what authority may the court meddle with that, either by extending or shortening the period so limited? Certainly by none appearing on the face of the statute. True, what might happen if the six months should expire, without suit brought, while a rule is pending which should in the end be made absolute, is as yet an open question. It would seem quite unreasonable to deny a party the poor privilege of awaiting the disposition of the rule before going to law. It is possible a case might in that way arise where suit .would be considered well brought after the six months had run. , Where in such case suit was brought after the time had run, but before the rule was disposed of the Supreme Court sustained it by holding that the rule was properly discharged upon suit being entered: Herron v. Fetterman, 14 W. N. C. 480. But there is no analogy between the present case and the one supposed; and the case cited involved no attempt to enlarge the terms of the statute by mere order of court. Questions springing from the exigencies of procedure over which the party has no control can be dealt with only when they arise. The rule here was disposed of within six months. No doubt the statute contemplates that, and, if made absolute, that plaintiff shall have whatever time remains in which to sue, after which he is concluded: Gabler v. Black, 210 Pa. 541. Had it been intended that the six months should be subject to extension by the court it would have been so provided, as in analogous instances. In the absence of such provision an attempt to extend the time would be a mere arbitrary assertion of judicial authority. Hence the order as assumed in this case was ultra vires and void.
    Let the writ and this motion be renumbered and filed as of No. 658 January Term, 1909; thereupon the motion is allowed and the writ quashed.

      Error assigned was order making absolute the rule to quash . the writ.

      A. A. Vosburg, with him Chas. W. Dawson, for appellant.

      L. P. Wedeman and I. H. Burns, for appellee.
    April 18, 1910:
   Per Curiam,

This is an appeal from an order making absolute a rule to show cause why a writ of ejectment should not be quashed. The appellant’s counsel raise no question as to the jurisdiction of the court to quash the writ, if the plaintiff was barred from maintaining the action by the proceeding under the Act of March 8, 1889, P. L. 10, as amended by the Act of April 16, 1903, P. L. 212, or as to the propriety of raising the question of conclusiveness in this way.

They state the question involved as follows: “Does the court of common pleas have jurisdiction to extend the time within which ejectment shall be brought upon a rule to bring ejectment, under the Acts of 1889 and 1903?” Their argument against the order appealed from is based on the contention that the court has the power to extend the time and that it was exercised in this case. 'We shall consider the case as they present it. It is apparent that in the proper consideration and disposition of the question argued, the record and proceedings upon the rule on plaintiff to bring his action of ejectment should have been printed in the appellant’s paper-book. But waiving this irregularity and considering the case upon the uncontradicted statement of facts contained in the opinion of the learned judge of the common pleas, which should be read in connection with this opinion, it is seen that there was ample time after the rule was made absolute for the plaintiff to bring his action within six months from the service of the rule upon him, as the act prescribes, and it is admitted by appellant’s counsel that the oral application to the court was not made until after the six months had expired. Not even then, nor at any time, was an order entered of record or orally made extending the time for any definite period. What was done, as stated by the learned judge, was that “an informal request was made and that the court indicated a willingness to allow it. But,” he goes on to say,“this was followed by no application in form and, therefore, we had no occasion to examine the question involved until the present motion challenged the writ, which seems to have been issued by plaintiff at his own convenience without further ceremony or concern in the premises.” Under these circumstances the court committed no error in holding that the facts alleged did not constitute a sufficient answer to the motion to quash. We therefore need not consider what would have been the effect of an order made upon cause shown before the six months had expired extending the time for a definite period.

The order is affirmed at the costs of the plaintiff.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Hade, Appellant, v. Cumberland Valley Railroad Company.

      Appeals — Interlocutory order — Granting new trial — Practice.
    An order granting a new trial upon the ground that the verdict was against the weight of the evidence is not a final judgment from which an appeal lies.
    Argued March 14, 1910.
    Appeal, No. 5, March T., 1910, by plaintiff, from order of C. P. Cumberland Co., May T., 1908, No. 28, setting aside verdict and granting a new trial in case of A. Z. Hade v. Cumberland Valley Railroad Company.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Appeal quashed.
    Trespass to recover damages alleged to have been suffered by the plaintiff through the breaking of his close. Before Sadler, P. J.
    At the trial the- jury returned a verdict for plaintiff for $30.58. Subsequently the court set aside.the verdict and granted a new trial on the ground that the verdict was against the weight of the evidence. Plaintiff appealed.

      Error assigned was the order setting aside the verdict and granting a new trial.

      E. M. Biddle, Jr., with him H. M. Zug, for appellant.

      S. B. Sadler, with him H. H. Mercer, for appellee.
    April 18, 1910:
   Per Curiam,

In Allen v. Sawyer, 2 P. & W. 325, the defendant appealed from an order setting aside a verdict in his favor and awarding a new trial. The Supreme Court reversed the order, reinstated the verdict and entered judgment on the same. Dougherty v. Andrews, 202 Pa. 633, and Stern v. Johnston, 38 Pa. Superior Ct. 1, are similar cases except that in each of them the appellate court affirmed the order. In neither of these cases was the question, whether an order granting a new trial is such a final judgment as may be appealed from, discussed in the opinion. On the other hand, the Supreme Court held in Lance v. Bonnell, 105 Pa. 46, that even after judgment the court- may, during the term at which it was entered, allow a rule for a new trial nunc pro tunc and make it absolute, and quashed the writ of error, because, as stated in the opinion of Mr. Justice Clark, as the verdict and judgment were both set aside, the cause was open for further proceedings therein. “ It follows therefore,” to quote the language of the opinion, “that this writ of error cannot be sustained; there is no judgment, decree or sentence of the court below, which can be the subject of review here.” See also Hambleton v. Yocum, 108 Pa. 304. In Com. v. Gabor, 209 Pa. 201, the Supreme Court, while refusing to quash the appeal because of the peculiar state of the record, expressly conceded that ordinarily an order for a new trial is not to be treated as a final judgment from which an appeal will lie. There is nothing in the case before us to take it out of the general rule. Whether, after a retrial of the case and a judgment on the verdict the action of the court complained of will be assignable for error on the appeal then taken, we do not now decide. What we decide is that the order granting a new trial upon the ground that the verdict was against the weight of the evidence is not a final judgment from which an appeal lies.

Appeal quashed.


text:
    Clever, Appellant, v. Clever.
    Argued March 14, 1910.
    Appeal, No. 16, March T., 1910, by plaintiff, from judgment of C. P. Cumberland Co., May T., 1907, No. 441, on verdict for defendant in case of Joseph Clever v. Conrad Clever.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Foreign attachment in assumpsit. Before Sadler, P. J.

      See Clever v. Clever, 38 Pa. Superior Ct. 66.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were various rulings on evidence and instructions.

      E. M. Biddle, Jr., with him F. B. Sellers, Jr., for appellant.

      S. B. Sadler, with him W. R. Johnston, for appellee,
    April 18, 1910:
   Per Curiam,

The six judges who heard this case being equally divided in opinion the judgment is affirmed.


text:
    Commonwealth v. Quinn, Appellant.

      Criminal law — Indictnient—Larceny—Larceny by bailee — Receiving stolen goods — Practice, Q. S.

    1. Counts charging larceny by bailee, larceny, and receiving stolen goods, may all be joined in one indictment, and a conviction on a count charging larceny by bailee will be sustained although the jury rendered a verdict of acquittal on the other two counts.

      Appeals — Assignments of error — Paper-books.
    2. Where on an appeal in a criminal case the charge and the evidence are not printed in the appellant’s paper-book, assignments, of error relating to the charge of the court will not be considered if the appellate court cannot dispose of the case on the merits, without having the charge and the evidence before it.
    Argued March 17, 1910.
    Appeal, No. 8, Oct. T., 1910, by defendant, from judgment of Q. S. Bucks Co., Sept. Sessions, 1909, No. 31, on verdict of guilty in case of Commonwealth v. Mary Louisa Quinn.
    Before Rice, P. J., Henderson, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for larceny as bailee, etc. Before Stout, P. J.
    The opinion of the Superior Court states the case.

      Errors assigned were (1) in passing sentence under the conviction; (2, 3) in not instructing the jury as to certain matters deemed important by appellant’s counsel

      John L. Dubois, for appellant.
    fro. C. Ryan, district attorney, with him Yerkes, Ross & Ross, for appellee.
    April 18, 1910:
   Per Curiam,

The indictment contained three counts, the first drawn under sec. 108 of the act of March 31,1860,382, and charging the offense commonly called larceny by bailee, and the second and third charging larceny and receiving stolen goods. Each of the counts was well drawn, they all relate to the same property and were properly joined in the indictment: Henwood v. Com., 52 Pa. 424. The form of the verdict as set forth in the appellant’s paper-book was: “First pount, larceny by bailee, guilty; second count, larceny, not guilty; third count, receiving stolen goods, not guilty.” This leaves no room for doubt or quibble as to the crime of which the jury found the defendant guilty. It was the crime charged in the first count of the indictment and it needs no argument to show that there was no repugnancy between an acquittal of the larceny charged in the second count and a conviction of the crime charged in the first count. The first assignment is overruled. The other two assignments relate to the charge of the court and are of such a nature that they cannot be considered and disposed of on the merits without having the charge and the evidence before us. As these are not printed in the appellant’s paper-book, the assignments are dismissed.

The judgment is affirmed and the record is remitted to the court of quarter sessions of Bucks county, to the end that the sentence be fully carried into effect.


author: Porter, J.,

text:
    Jones v. Keesey, Appellant.

      Attachment execution — Trusts and trustees — Assignment. .

    Where a purchaser of a business agrees to pay the debts of the prior owner of the business, and subsequently executes a power of attorney, and addresses a letter of instructions to a firm of real estate brokers, authorizing the brokers to sell certain lands which were his private lands apart from the business, and to apply the proceeds thereof to the payment of the debts which he had assumed, no trust in the proceeds is created by the transaction in favor of the creditors, and the brokers cannot retain the proceeds when they are summoned as garnishees in an attachment execution issued under a judgment against the purchaser.
    Argued Dec. 17, 1909.
    Appeal, No. 257, Oct. T., 1909, by defendants, from order of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 5,235, making absoluté rule for judgment against garnishees in case of Saunders I. Jones and Lawrence Jones, copartners, trading as Paul Jones & Co. v. Joseph W. Keesey, defendant, and Schalcher & Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Attachment execution.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order making absolute rule for judgment against garnishees.

      Jay Rich Grier, with him Harry Schalcher, for appellants.—
    The facts clearly establish a trust in the appellants in the fund, for the benefit of certain assenting creditors of Ruley: Beans v. Bullitt, 57 Pa. 221; Burger v. Burger, 135 Pa. 499.
    The assenting creditors, have an equitable lien, are joint owners of the fund, and are entitled to retain their lien by attachment: Stewart v. McMinn, 5 W. & S. 100.

      Alfred T. Steinmetz, with him George Wentworth Carr and Robert A. Beggs, Jr., for appellees.'
    — The facts show that no trust for the benefit of creditors was created: Beans v. Bullitt, 57 Pa. 221; Wallace v. Wainwright, 87 Pa. 263; Johnson’s App., 103 Pa. 373; Chaffees v. Risk, 24 Pa. 432; Painter’s Est., 42 Pa. 156.
    The facts do not show that the attaching creditors are such parties to the alleged trust agreement as to estop them from issuing attachments against the fund.
    March 3, 1910:
   Opinion by

Porter, J.,

The plaintiffs recovered a judgment in an action of assumpsit against the defendant. Keesey, and an execution attachment upon that judgment was issued and served upon Schalcher & Co. as garnishees. The garnishees in answer to interrogatories admitted that there was in their hands the sum of $1,393.05, realized from the sale of a lot of ground belonging to the defendant Keesey, after deducting all charges for their services as his agents in the matter. The answer stated that the property was sold by the garnishees under a power of attorney executed by Keesey, authorizing the garnishees to act as his attorneys in fact in that behalf, and set forth at length the circumstances under which the power of attorney was' executed and certain contracts executed by Keesey. The answer averred that the garnishees were advised and believed that under the terms of the power of attorney and the circumstances under which they sold the property, the fund was “impressed with a trust, for all the .creditors of Samuel W. Ruley.” The court entered judgment against the garnishees on their answer, for the amount of the plaintiffs’ claim, and from that judgment the garnishees appeal.

The circumstances alleged in the answer which the garnishees argue constituted this a trust fund for all the creditors of Samuel W. Ruley may be thus stated. Ruley was engaged in the saloon business and having entered into an arrangement for the sale of the business to Keesey, an application was made to the proper court for an order transferring the license, which order was made on November 29, 1907. “It was then understood, agreed to, and acted upon, both by the counsel for the creditors of said Ruley, the said court, and your deponent individually, that upon the statements and stipulations contained in the annexed agreement attached hereto, marked exhibit 'A,’ that certain debts of said Ruley, as per schedule signed by said Ruley attached hereto and marked exhibit ‘B’ and made part hereof, would be assumed and paid in full by the said defendant Joseph W. Keesey.” The part of the answer above quoted is only material for the purpose of showing how Keesey became liable to pay the debts of Ruley, subsequently referred to in the answer. The plaintiffs in this proceeding having obtained a judgment against Keesey, it is not in the present proceeding material to inquire how the indebtedness upon which that judgment is founded arose. The part of the answer which is material to the present controversy follows. Keesey, in order to consummate his intention to pay the debts which he had thus assumed, executed a letter of attorney to these garnishees, authorizing and empowering them to sell, dispose of and convey all the real estate of which Keesey was then possessed, a copy of which power of attorney is to the answer attached and marked exhibit ‘C,’ which letter of attorney was executed by Keesey and his wife and duly acknowledged. Keesey and his wife, upon the same day the power of attorney was executed, signed a letter addressed to Schalcher & Co., the garnishees, directing the latter to make sale of three lots of ground therein described, upon terms therein stated, and to negotiate a second mortgage of $800, upon the fourth lot of ground therein described, a copy of which letter is attached to the answer and marked exhibit “ D. ” This letter is nothing more than the ordinary authorization which a real estate broker receives from his customer to secure for the latter a purchaser of real estate; it did not authorize the broker to convey the land. Keesey, upon the same day, signed’a letter which was addressed to Schalcher & Co., instructing the latter as follows: “From the moneys which you will derive from the sale of premises (here follow the street numbers of the houses, respectively) you will pay the indebtedness of Samuel W. Ruley in re saloon business at No. 108 North Sixth street, in the city of Philadelphia, per the schedule submitted to you by said Ruley;” with other directions which do not affect the consideration of the question presented; a copy of this letter is attached to the answer and marked exhibit “E.” There is attached to exhibit “A,” the agi’eement between Ruley and Keesey, a copy of the schedule “B” referred to in said agreement, containing a schedule of the debts of Ruley, which presumably is the schedule of such debts referred to in exhibit “E.” The garnishees acting under the power of attorney, which constituted them the attorneys in fact of Keesey, sold one of the pieces of real estate and received therefor the sum of $1,831.05, from which sum the answer claims the right to deduct the sum of $438 for their expenses and commissions in the transaction, leaving a balance of $1,393.05 now in their hands. Keesey on January 13, 1908, l-evoked the power of attorney and declined to permit the garnishees to proceed further. Neither the power of attorney constituting the garnishees the attorneys in fact of Keesey for the sale of-the property nor any of the other papers referred to in the answer were ever recorded.

The answer does not aver any express covenant between the creditors of Ruley, or of Keesey, which constituted these garnishees the agents for such creditors, nor does it aver facts from which such a covenant could be implied. There is no allegation of an agreement of the creditors that the property which was sold or any other property of Keesey should constitute a trust fund to be applied to the extinguishment of their several debts, pro rata dr otherwise. There is no averment that the creditors even knew of the execution by Keesey of the letter of attorney authorizing Schalcher & Co. to make sale of the property, or of the letter from Keesey to the garnishees to pay, as his agents, the fund realized from the sale to the creditors of Ruley. The only allegation of an agreement upon the part of the creditors is that they, accepted the terms of the agreement between Ruley and Keesey, that the latter should pay the debts of the former. This agreement gave to each creditor, respectively, the right to hold Keesey for the debt formerly due from Ruley, but the property of Keesey was not thereby impressed with any trust. Each creditor acquired the right to maintain an action against Keesey and nothing more. If, therefore, the fund in the hands of the garnishees is subject to any trust in favor of creditors generally, that trust could only have arisen out of the provisions of the letter of attorney of Keesey, which authorized the garnishees to make sale of the property, and the letter directing them to pay the proceeds of the sale to the creditors of Ruley. We may here observe that the garnishees were not creditors of either Ruley or Keesey, they had no interest in the property or the proceeds thereof, except the compensation to which they might be entitled for the execution of the power.

The exhibits “A ” and “ B, ” the agreement for the sale of the saloon property by Ruley and the acceptance thereof by Keesey, with the schedules thereto attached, are simply the ordinary agreement of sale of property subject to the payment of certain debts of the vendor, with a list of those debts. There is nothing in these agreements which renders any property subject to any trust. The property which the garnishees sold was no part of the property which passed under the sale from Ruley to Keesey, it was property which the latter had owned prior to any of the transactions with which we áre now dealing. The power of attorney, exhibit “C, ” from Keesey and wife to the garnishees, which authorized the sale of the property, was in the form usual for the purpose contemplated; it conferred full power to sell and execute conveyances, but contained no provisions as to what should be done with the proceeds, made no mention of any right of a third party therein, and contained nothing which could give rise to a trust relation, save that between Keesey and his agents, the garnishees. The letter of instruction from Keesey to his agents, the garnishees, authorized the latter, as his agents, to pay the proceeds of the sale to the creditors of Ruley. The power of attorney did not vest the title to the real estate in the garnishees; the land until the sale and thereafter the proceeds thereof remained the property of Keesey. The letter of Keesey, exhibit “E, ” did not vest in the creditors of Ruley any title to the land, which was afterwards sold, nor to the proceeds after the sale. Keesey had the power to revoke this letter of instruction to his agents as to the disposition of the fund, just as he had the power to revoke and subsequently did revoke the power of attorney which authorized the agents to make a sale. The power of attorney authorizing Schalcher & Co., as the agents of Keesey, to sell the land, taken in connection with the letter of instruction to his agents authorizing a payment of the proceeds did not constitute an assignment for the benefit of creditors, and created no trust in favor of creditors as to the fund: Beans v. Bullitt, 57 Pa. 221; Burger v. Burger, 135 Pa. 499; Wallace v. Wainwright, 87 Pa. 263; Painter’s Est., 42 Pa. 156. Even if the power of attorney under which the garnishees acted and the letter, exhibit “ E, ” authorizing them to make payment of the proceeds were held to constitute an assignment for the benefit of creditors, within the provisions of the Act of March 24, 1818, 7 Sm. L. 131, the instruments were not recorded within thirty days, and under the provisions of that statute must be held null and void, as against attaching creditors: Watson v. Bagaley, 12 Pa. 164.

The answer having admitted that the garnishees had in their hands the fund derived from the sale of the property of Keesey, the allegation of the answer that Emma C. Bergdoll, a judgment creditor of Keesey, had given notice to the garnishees that she claimed the entire balance of the fund in their hands, is insufficient to prevent judgment, as it fails to allege anything which even remotely indicates that Emma C. Berg-doll had any lien upon the fund in the hands of the appellants.

The judgment is affirmed.


text:
    Forbes v. Keesey, Appellant.
    Argued Dec. 17, 1909.
    Appeal, No. 258, Oct. T., 1909, by defendants, from order of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 5,235, making absolute rule for judgment against garnishees in case of Andrew Forbes, trading as Andrew Forbes & Company, v. Joseph W. Keesey, defendant, and Schalcher & Company, garnishees.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.

      March 3, 1910:
   Opinion by

Porter, J.,

This appeal presents no question which has not been considered in the opinion this day filed in the case of Paul J ones & Co. against these same defendants, ante, p. 492, and it .is unnecessary to supplement what we there said.

The judgment is affirmed.


text:
    Hambright’s License.

      Liquor law — Appeals—Certiorari—Record—Selling to persons of known intemperate habits.

    1. On an appeal from an order of the Quarter Sessions refusing a liquor license, the appellate court can consider only the record. The conclusion of the court below as to facts cannot be reviewed.
    2. Where an order refusing a liquor license states that the grounds for refusal are set forth in an opinion filed with the order and made part thereof, and the opinion shows that the ground of the refusal was based on a finding after a hearing that the applicant had sold liquor to persons of known intemperate habits, the order of the lower court will be affirmed.
    Argued Nov. 16, 1909.
    Appeal, No. 76, Oct. T., 1909, by plaintiff, from order of Q. S. Chester Co., refusing a liquor license in case of George F. Hambright v. Charles Grimshaw et al.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Petition for a liquor license.
    The facts appear by the opinion of the Superior Court.

      Error assigned was order refusing license.

      A. M. Holding, with him John E. Malone, for appellant.

      George B. Johnson, for appellees.
    March 3, 1910:
   Opinion by

Porter, J.,

That an appeal in proceedings of this kind is to be considered as a certiorari, which brings up only the record, and that where there has been a hearing and testimony, the conclusion of the court below as to the facts cannot be reviewed, has been so frequently declared that it does not seem necessary to cite authorities in support of the proposition. The appellate courts, in cases of this character, are only authorized to examine and review the proceedings of the court of quarter sessions, so far as to inquire and determine the extent and limits of its power and the regularity of its exercise. The opinion filed by the court below is not in strictness a part of the record and is only to be considered for the purpose of ascertaining the grounds upon which the court bases its action. The record in the present case shows that there had been a hearing at which those who remonstrated against the granting of the license produced evidence and the appellant offered testimony in support of his application. The court, after the hearing, entered the following decree: “The above stated application is refused on the ground and for the reasons set forth in our opinion this day filed, which opinion is made a part of this decree.” Had the court merely entered a decree refusing the license, without stating the reason for its action, we would have been bound to assume that the decree was founded in a valid reason. The opinion to which the decree refers states the grounds upon which the application was refused, to be, that the applicant was unfit to be intrusted with a license and sets forth the facts upon which that conclusion was based, in substance, as follows. The applicant had been the holder of a license during the preceding year and he and his barkeepers admitted at the hearing that there were several persons in the community whom they had observed, with some frequency, to be under the influence of liquor, that when they were so under the influence of liquor they were refused drink at the bar; that when such persons were not under the influence of liquor the appellant and his barkeepers sold liquors to them at the bar, a limit being imposed, in respect to some of them because of their weakness, of two drinks at a single visit; and that the appellant had been in the habit of selling, to at least two of such persons, liquor by the bottle. The court further states in the opinion that the persons above referred to, to whom the appellant had sold liquors, were “men prone to become intoxicated, and the one or two drinks furnished them by the appellant are, to his certain knowledge, likely to be the foundation, the starting point of one of their not infrequent periods of intoxication.” The fact upon which the court below based its decree was that the appellant had sold liquors to persons whom he knew to be of intemperate habits. We do not feel warranted in holding that the court below was clearly wrong in finding that a person who indulges in frequent periods of intoxication, is a person of intemperate habits. Selling intoxicating liquors, at any time, to “a person of known intemperate habits,” is by the Act of May 13,1887, P. L. 108, sec. 17, made unlawful and declared to be a misdemeanor. It does not seem necessary to further supplement the opinion of the learned judge of the court below, which will appear in the report of this case. The record discloses no abuse of the discretion with which the court below was invested.

The decree of the court below is affirmed and the appeal dismissed at cost of the appellant.


author: Morrison, J.,

text:
    Eaby’s Estate.

      Decedents’ estates — Claim for nursing — Contract—Husband and wife.

    A claim by a married woman against a decedent’s estate for nursing the decedent, cannot be sustained where it appears that the claimant and her husband were tenants of decedent under a written contract by which in consideration for the use of the premises the claimant’s husband covenanted to board the decedent, “including washing, mending, cleaning his rooms, attending his stove and caring for him in time of sickness.”
    Argued Nov. 9, 1909.
    Appeal, No. 224, Oct. T., 1908, by plaintiff, from decree of O. C. Lancaster Co., May T., 1908, No. 10, dismissing exceptions to adjudication in Estate of Joseph Eaby, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.

      Exceptions to adjudication. Before Smith, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in dismissing exceptions to adjudication.

      B. F. Davis, for appellant.
    — The appellant was not a domestic servant, and no presumption of payment would rise: Winings v. Hearst, 17 Pa. Superior Ct. 314.
    This whole question has been decided by the Supreme Court and the Superior Court a number of times: Lewis’s Est., 156 Pa. 337; Frost v. Knapp, 10 Pa. Superior Ct. 296.

      Wm. N. Appel, of Appel & Appel, for appellee.
    — The case of Normile v. Osborne, 207 Pa. 367, is exactly on all fours with the case in hand.
    April 18, 1910:
   Opinion by

Morrison, J.,

The written contract entered into between Joseph Eaby and John Boose, husband of Sallie Boose, is a complete defense to the appellent’s claim for $300, extra compensation for taking care of Joseph Eaby. The contract reads as follows:

“This Indenture, Made the First day of March, Anno Domini, 1904, Between Joseph Eaby, of the village of Intercourse, Pa., of the one Part, and John Boose, now of Monterey, Pa., of the other part, Witnesseth that the said Joseph Eaby doth by these presents Lease and Let unto the said John Boose, for the term of one year, from the first day of March a. d. 1904, all that certain Dwelling House, stable, etc., and lot containing about one half acre of land, being the premises now occupied by himself, Joseph Eaby To have and hold the premises aforesaid unto the said lessee, from the first day of March, 1904, for the term of one year thence next ensuing; and yielding and paying for the same unto the said Lessor, his heirs or assigns, the rent or sum of Forty ($40) dollars. The Lessee agrees to keep all fences and out-buildings in good repair, the Lessor to furnish any material required for such repairs. The said Lessee to find the Feed, etc., for his cow, for the use of her, until he may see proper to sell her.

“It is agreed between the parties hereto, that the Lessor shall board with the Lessee, he paying the sum of Fifteen Dollars per Month for same, including his washing, mending, cleaning his rooms, attending his stove, and caring for him in time of sickness, the said Lessor reserves his sitting room and sleeping room in South side of Building, the Lessor furnishing his own rooms with furniture, stove, etc., necessary, and finding his, the coal to be used in his rooms.

“ It is understood, that the said premises shall not be under-let or rented, without the Lessor’s written consent to the transfer of this Lease or such underletting. On the expiration of this Lease, the property is to be given up in as good order, in all respects as it now is, reasonable wear and tear and damage from fire excepted.

“In Witness whereof, the parties have hereunto set their hands and seals.

“ Joseph Eaby (l. s.)

“John Boose (l. s.)

“Witness present:

“ Jason K. Eaby.”

The contract was for one year, and at the end of that year a settlement was made with Boose and the agreement was renewed on the same terms for another year. At the end of the second year, a settlement in full was again made and the agreement was renewed for another year on the same terms. On March 7, 1907, Joseph Eaby died, leaving a will appointing Jason K. Eaby the executor, and he made a final settlement with Mr. Boose which was in writing and dated March 27, 1907. At that settlement it was found that a balance was due Boose of $68.75 which was paid in full by a check.

It appears that John Boose and his wife, the appellant, moved into the premises mentioned in the above contract and continued therein and complied with its terms until the death of Joseph Eaby. It further appears that the terms of the contract were fully performed on the part of Joseph Eaby. It must be presumed that Sallie Boose knew of this contract and knew that she and her husband were occupying Eaby’s premises as tenants, paying rent, and that by the plain terms of the contract, Boose and wife were bound to take care of Eaby in sickness and in health and to board him.

It is quite apparent from the record that no thought could ever have entered the mind of Joseph Eaby that any claim by these people could arise outside of said contract. In our opinion, the appellant’s claim has, under the facts and in law and justice, no merit whatever. In view of the authorities below cited it is difficult for us to understand how anybody could have reached the conclusion that this appellant was entitled to extra compensation for the boarding and care of Joseph Eaby: Cummiskey’s Est., 224 Pa. 509; Rosencrance v. Johnson, 191 Pa. 520; Moore’s Est., 12 Pa. Superior Ct. 599; Howard v. Drexler, 14 Pa. Superior Ct. 59; Piersol’s Est., 27 Pa. Superior Ct. 204; Normile v. Osborne, 207 Pa. 367; Grossman v. Thunder, 212 Pa. 274.

In Lewis’ Est., Rhode’s App., 156 Pa. 337, relied upon by appellant, there was no contract with the husband and no claim made by him for washing, care and such personal services as the wife rendered in that case. Moreover, the real question decided in Rhode’s Appeal was that the earnings of the wife as shown by the facts in that case belonged to herself and not to her husband.

In Rosencrance v. Johnson, 191 Pa. 520, it was held in an opinion by Mitchell, J., that where a decedent in his lifetime agreed to pay plaintiff a certain amount per month for “board, washing and mending,” the plaintiff cannot recover for extra services incident to the illness of the decedent, and that “ prima facie the contract covers all such household attendance and attention as are usual in families in the same situation and circumstances of life, including the chances and changes of health and sickness.” In the present case the contract specifically provided for “caring for him in time of sickness.”

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


author: Beaver, J.,

text:
    Commonwealth v. McClellan, Appellant.

      Criminal law — Larceny—Improper charge.

    1. On the trial of an indictment for larceny it is reversible error for the court to say in its charge that the defendant had taken advantage of a technicality when he claimed that he had not received the property into his actual possession, and this statement is repeated several times.
    2. On the trial of an indictment for larceny and for receiving stolen goods where it is charged that the defendant asked another man to steal the goods and bring them to his store, it is reversible error for the court to say to the jury that, if the-defendant and certain other merchants indicted for the same offense, had been purchasing goods of the kind in question at a low price from the person who actually stole them, they ought to be punished.

      Evidence — Reputation—Larceny.
    3. On the trial of an indictment for larceny where the defendant introduces witnesses as to his good reputation, such witnesses may be asked on cross-examination whether they had not heard that the defendant had burned his store to collect the insurance.

      Practice, Q. S. — Trial—Remark of district attorney — Record.

      4. The appellate court cannot take into consideration an alleged improper remark of the district attorney to the jury, where there is nothing on the record to show what words were used.
    Argued Oct. 18, 1909.
    Appeal, No. 27, Oct. T., 1909, by defendant, from judgment of Q. S. Blair Co., Oct. T., 1908, No. 35, on verdict of guilty in case of Commonwealth v. George McClellan.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Indictment for larceny and for receiving stolen goods. Before Bell, 'P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1-13) various rulings on evidence and instructions set forth at length in the opinion of the Superior Court.

      Thomas H. Greevy, with, him E. G. Brotherlin, for appellant.
    No appearance nor printed brief for appellee.
    April 18, 1910:
   Opinion by

Beaver, J.,

Upon the argument of this case, we heard only the appel-. lant’s presentation of it. There was neither appearance nor paper-book for the appellee. We were impressed by the argument of the appellant’s counsel and approached the consideration of the case with a strong predisposition toward reversal. A careful reading of the entire testimony, however, and rather prolonged consideration thereof and of the legal questions involved has led the opinion writer to the final conclusion that the conviction of the defendant was justified, and that the question of his guilt was properly left to the jury under fair and full instructions, except as hereinafter stated.

The appellant states, as the question involved: “ Can there be a conviction for larceny, where the district attorney stated in his opening that the commonwealth would not ask for such conviction and tries the case upon that theory?” We are not ready to say that, even if such a statement had been made by the district attorney, it would bind the court and the jury, if the testimony showed that the defendant beyond a reasonable doubt had committed larceny. There is nothing, however, upon the record which in our opinion raises the question, and we are not, therefore, called upon to consider it. The words alleged to have been used by the district attorney are not brought upon the record in any regular or recognized way, and the trial judge had no recollection of their having been used. See Holden v. Penna. R. R. Co., 169 Pa. 1.

The second question, as stated by the appellant, is: “The court stated in his charge that the defendant had taken advantage of a technicality when he claimed that he was not in possession of the stolen goods. This he repeated several times. Was not this error? ” What was said by the court in reference to a technicality was, it seems to us, entirely justified under the facts and was fair to the defendant. What was said is contained in the seventh assignment of error and was in answer to the defendant’s fourth point, which was that “Under all the evidence and the law governing this case, there can be no conviction of McClellan of the charge of larceny,” to which the court said: “As I said at the outset, there are two counts in the indictment against McClellan. First, count charges him with larceny. Second,' with receiving stolen goods. As I have said to you, in answering the second and third points, McClellan cannot be convicted of receiving stolen goods, because he did not actually get them into his possession. Even assuming that the commonwealth’s evidence is all correct, but if he did ask Frank Furry to go and steal some more lard from Sherman Furry that night and bring it back and put it in his stable, then he clearly would be guilty of larceny. It seems to me that that proposition is too plain to require elaboration; that every lawyer would agree to that proposition, because anybody who aids or abets in the commission of a larceny is equally guilty with the thief who actually goes to the building and steals the goods. The only answer I have heard to that proposition is from Mr. Greevy, when he says the district attorney, in his opening, stated that there could be no conviction of McClellan for larceny. Be that as it may, at that time I do not suppose the district attorney had heard that the defense were going to rely on a technicality; or if he did say it, it was on the theory that he was going to be fair with the defense and the defense ought to be fair with him. If the defense relies on a technicality, to wit, that McClellan did not receive the property into his actual possession, it does seem to me that the district attorney would have a right to press for a conviction for larceny, because the very act of assembly which allowed the district attorney to embody in the same indictment a count for larceny and a count for receiving stolen goods was to avoid the escape of a defendant by a technicality. What I have said about this technicality, do not misunderstand me as intimating that if I was on the jury I would convict McClellan because his attorneys have resorted to a technicality. They have a perfect right to resort to a technicality, if they desire, and I am not saying this to prejudice McClellan in the least, but I am simply stating my position in this matter.”

The court merely states what was an undoubted fact — that the defendant claimed that he could not be convicted of receiving stolen goods for the reason that the lard which had been stolen never came into his actual, manual possession, notwithstanding the fact, practically admitted, that the cans which contained it had been taken from his stable and returned there.

The defendant’s third point was: “Under all the evidence in this case, George B. McClellan, one of the defendants, cannot be convicted of the crime of receiving stolen goods,” in answer to which the court said, including also the second point, which was practically of like character: “I affirm both of these points. They are both founded on an authority stated in Trickett on Crimes, and they are founded on this idea — that before a man can be convicted of receiving stolen goods he must have them actually in his possession. That, even if they are placed somewhere for him to get, if he does not actually get them in his possession, he cannot be convicted of receiving stolen goods, because the law allows him a locus penitentige, that is, a time for changing his mind or repenting.”

The third question involved, as stated by the appellant, is, “Was it not error to permit commonwealth’s counsel to cross-examine defendant’s character witnesses concerning other alleged offenses?” The first four assignments of error relate to this phase of the case. Defendant raised the question as to his honesty and introduced a number of neighbors to testify that they had never heard anything derogatory to his character for honesty. Upon cross-examination, the commonwealth asked whether or not the several witnesses had not heard that he had burned his store to collect the insurance. As none of the witnesses had heard it and all denied that they had, the defendant was not in any way injured thereby. It was, it seems to us, however, an entirely legitimate subject of inquiry, because it went to' the very essence of the question under investigation, namely, What was the defendant’s reputation for honesty in the community in which he lived? The witnesses were not examined as to other offenses. The ex-animation was concerning the speech of the people as to particular facts which affected defendant's reputation for honesty, which was the specific subject of inquiry. It was not as to the defendant’s having committed the offense spoken of.

The fifth specification of error relates to the charge of the court in which the question of the corroboration of the evidence of Frank Furry is discussed. It seems to us that the court very fully states the contention of both the commonwealth and the defendant in this behalf and leaves it to the jury to determine whether or not Furry, who was undoubtedly guilty of larceny of the lard, was corroborated in his testimony.

The sixth assignment relates to the answer of the court to a point concerning the same subject. The court denies it, because, as he alleges, there was corroborative proof in the circumstances attending the case as well as by the alleged accomplices of Furry.

The seventh assignment is that, “The learned court erred in answering defendant’s fourth point as follows: Under all the evidence and the law governing this case, there can be no conviction of McClellan of the charge of larceny.” This goes to the root of the case and has been already considered in reference to the allegation in regard to a technicality. We have already quoted the answer to this point, and, if the jury found the facts as put by the trial judge therein, we can see no error in his conclusion that they could find the defendant guilty of larceny.

The eighth assignment alleges that “The charge of the court was inadequate and erroneous in instructing the jury as follows : ‘ In this McClellan case you will consider all the evidence and, if you have a reasonable doubt as to his guilt, he is entitled to the benefit of that doubt and to an acquittal. As I have said before, your verdict as to him will be not guilty of receiving stolen goods.’ ” It is difficult for us to understand just what is charged as erroneous in this part of the charge. Surely the defendant was entitled to an acquittal, if the jury had a reasonable doubt as to his guilt, and there can be no fault found from' the defendant’s standpoint with the instructions of the court that he could not be found guilty of receiving stolen goods, inasmuch as that was one of the principal grounds of contention.

We are likewise at a loss to know what objection the defendant can find to the answer of the court to his fifth point, which was, “The evidence of Furry, the thief, as to the alleged agreement between him and McClellan not having been corroborated, the jury should be advised to weigh his evidence severely and that the defendant cannot be convicted on Furry’s uncorroborated testimony.” The point was affirmed, the court saying: “I think I have put that about as strong as the point. I do not see why that point should be handed up to me; I have told the jury that repeatedly. The point is affirmed.”

The tenth assignment is as to the testimony adduced by the defendant as to good character, in which the court says to the jury: “You are to take up this matter of testimony as to good character and give it the weight to which in your judgment it is entitled. The Supreme Court have said that evidence of good character in itself is sufficient to raise a doubt,” and the court having previously stated that a reasonable doubt must work an acquittal, it seems to us that this was proper and sufficient instruction upon the subject.

We see nothing in the eleventh and twelfth assignments of error, requiring special notice, the latter referring to the alleged remark of the district attorney as to a conviction for larceny, but failing to bring it upon the record in such a way as to require a direct and distinct answer from the court, in the absence of the recollection of the court itself, as stated elsewhere,' that it had been made. We cannot see that defendant can legitimately complain.

The thirteenth assignment is not in accordance with our rules, the charge not being printed as part of the assignment, as required, and our attention not being called to any specific parts of it of which the appellant complains. We assume, therefore, that it is merely a summing up of the other specific assignments which we have already discussed.

The views so far herein expressed as to the seventh and eleventh assignments of error are those of the opinion writer only, and, as they clearly indicate, justify, in his view, the manner in which the case was tried and of its submission to the jury. The majority of the court, however, is of the opinion that the seventh assignment of error, based upon the answer of the court to the defendant’s fourth point, particularly the part of it which relates to the defense relying upon a technicality, and the eleventh assignment, relating to a sentence in the charge of the court, “It is important to the commonwealth, because if these merchants out there about Millville and South Altoona have been purchasing at a low price lard from Frank Furry, they ought to be punished,” should be sustained and the judgment reversed, which is accordingly done.

Judgment reversed and a new venire awarded.


text:
    Blew v. Ryan Township, Appellant.

      Road law — Supervisors—Repair of road — Contract.
    1. A person cannot recover the cost of'removing a tree which had fallen across a highway, or for the removal of snow from the same, unless he shows an express contract with the supervisors. The mere fact that one of the supervisors had told him that when he saw anything wrong with the highway in his neighborhood to repair or remedy it, and he would be paid, is not a sufficient basis for a claim against the township for compensation for the work in question.
    2. The duties and powers of township supervisors in making and repairing the public highways are discretionary or quasi judicial. It is for them to decide what materials are to be used, and how and when, and where they are to be used. These powers cannot be delegated to others.
    3. In an action against a township where the plaintiff is claiming compensation for removing a tree which had fallen across a highway, and has named a sum which is apparently excessive, the township may show by a witness who had experience in such work how much it would be worth to cut a section out of the fallen tree and remove it from the road.
    Argued Dec. 7, 1909.
    Appeal, No. 53, Oct. T., 1909, by de fendant, from judgment of C. P. Schuylkill Co., July T., 1908, No. 116, on verdict for plaintiff in case of William Blew v. Ryan Township.
    Before Rice, P. J., Henderson, Morrison, Orlad y, Head, Beaver and Porter, JJ.
    Reversed.
    Assumpsit for removing a tree and shoveling snow from a highway. Before Bechtel, J.
    The facts are stated in the opinion of the Superior Court.
    Carl Winkle, a witness for defendant, was asked this question: “Q. How long, in your judgment, would it take to make two cuts in that tree, one at the stump as it now appears, and another eight or ten feet away, the tree being a chestnut tree and having a hollow of ten or twelve inehes, the tree having fallen down across the road, which you know the location; taking all those things into consideration, about how long do you think it would take to make the two cuts? ”
    Objection.

      “ Q. Let me add to it. What would it be worth, taking it as I have described it, to make two cuts in a tree of that kind, as I have already described it, you having seen the location on the ground, seen the stump, it being a chestnut tree with a hollow, and falling across the road — how much would it be worth to make the two cuts, taking out a log seven or eight or ten feet long, and rolling it out of the way, to the side of the road?”
    Objected to. Objection sustained. [5]
    Verdict and judgment for plaintiff for $14.96. Defendant appealed.

      Errors assigned were (4) refusal of binding instructions for defendant and (5) rulings on evidence, quoting the bill of exceptions.

      T. H. B. Lyon, for appellant.

      George W. Ryan, for appellee.
    April 18, 1910:
   Opinion by

Morrison, J.,

This case was commenced before a justice of the peace and it came into the common pleas by appeal of defendant and was tried on the transcript standing as a declaration. The plaintiff claimed $18.20 for labor performed for defendant, with interest thereon for five years and nine months, and obtained judgment before the justice for $24.50. Such a stale claim as this one, with the very loose and unsatisfactory evidence offered in its support, makes it look suspicious.

In the common pleas the plaintiff’s testimony was offered to support the claim of $10.00 for the wages of four men for one day in removing a chestnut tree which had fallen across a highway in Ryan township; also the boarding of these men one day each; also $1.20 for labor performed by plaintiff’s minor son for the township, and another sum of $2.00 for shoveling snow by the same son. The son was dead before this suit was commenced. The evidence shows that the plaintiff knew that the supervisors allowed.only $1.20 per day for working on the road, yet he undertook to collect $2.50 per day and boarding.

The court below submitted the case to the jury and a verdict was found for $14.96 which the jury itemized as follows: $4.80 for the labor of men removing the tree from the road; also $3.00 for the men’s boarding; also $3.20 for the labor of the minor son, with $3.96 interest.

The plaintiff alleged that four men were engaged a full day in cutting a green chestnut tree into logs and removing the portion of it that obstructed the highway. It is highly probable that a good axman could have cut said tree off on each side of the traveled highway and have rolled the log out of the road in not to exceed two hours. The plaintiff utterly failed to prove that he was employed by the supervisors, or either of them, to do said work. He offered some loose testimony that somebody made a report to him that one of the supervisors desired that he should remove the tree from the highway, but he signally failed to sustain that averment by sufficient evidence to carry it to the jury, and both supervisors specifically testified that they did not know the tree was in the road and gave no authority to anyone to remove it. The theory on which he was permitted to recover was that one of the supervisors two or three years prior to the obstruction of the road by the tree had told him that when he saw anything wrong with the highway in that portion of the township to repair or remedy it and bring in his bill and it would be paid. His claim as to the $2.00 for shoveling snow rested on the same kind of authority. In neither instance did the supervisors employ him nor did even one supervisor designate the work he was to do and direct him to do it. As to the $1.20 for one day’s work for the boy, the defendant contended that it was paid by an order drawn in favor of the plaintiff. The order was produced and offered in evidence by the defendant, and one of the township auditors testified that it was paid and canceled and the record of the trial shows that plaintiff’s counsel admitted in open court that said order was paid, yet the jury allowed it in making up their verdict.

The only ground on which the plaintiff’s claims for labor on the tree and for the $2.00 for shoveling snow rested, was the attempted delegation of the discretion of the supervisors to this private citizen, the plaintiff. We think the law is well settled that this gives the plaintiff no cause of action: The learned counsel for the defendant clearly states in his argument his position as follows: “The duties and powers of township supervisors in making and repairing the public highways are discretionary or quasi judicial. It is for them to decide what materials are to be used, and how, and when, and where they are to be used. These powers cannot be delegated to others: ” 1 Dillon on Mun. Corporations (4th ed.), sec. 96, and note 1 on p. 155; 2 Dillon on Mun. Corporations (4th ed.), secs. 716 and 779.

In the present case there was no express contract and if not originally authorized to do the work, no liability can attach for services rendered on any ground of implied contract: 1 Dillon on Mun. Corporations (4th ed.), secs. 459, 460 and 464.

The principle that one cannot make another liable to him by voluntarily discharging a duty which belongs to the other person is recognized in Salsbury v. City of Phila. 44 Pa. 303.

' In Anderson v. Hamilton Twp., 25 Pa. 75, our Supreme Court said: “The work which the defendant proposed to set off against the claim of the township, was done without authority from the commissioners, or either of them, and could not therefore be charged against the township.

“A voluntary act, although beneficial to another, performed without request, affords no legal action for compensation. That the work was necessary to be done can make no difference. The road commissioners were proper persons to determine the necessity for the repairs, and to direct the manner in which they should be made. It will not do to permit the unauthorized expenditure of labor or money to be recovered from the township.”

In the present case the plaintiff utterly failed to prove that he was employed to shovel the snow or to remove the tree from the highway. The best showing he could make was loose testimony of an attempt to vest in him discretionary power to make such repairs as in his judgment were necessary. This will not entitle him to recover.

At the trial, the defendant’s fourth point (fourth assignment of error) was as follows: “Under all the evidence the verdict should be for the defendant.” This point was refused and an exception granted to the defendant. The fifth assignment complains of the exclusion of the testimony of Carl Winkle, a witness for defendant. This witness was called to prove how much it would be worth to cut a section out of the fallen tree and remove it from the road. He testified that he had been cutting and hauling timber considerably for the last fifteen years. This evidence was objected to by the plaintiff’s counsel and the court excluded it and sealed a bill. We are entirely unable to understand why this evidence was excluded. The plaintiff had no contract fixing any price for the work he alleged he had performed. He was seeking to collect more than $3.00 per day for four men for removing this obstruction from the highway. It was probably apparent to any woodsman that the charge was unreasonable and exorbitant. If he had a case for the jury at all, and the court seemed to think he had, the important question was how much was it worth to remove this obstruction from the highway. Surely the ruling of the court gave the plaintiff an undue advantage by permitting his proofs to go to the jury and excluding all testimony offered for the purpose of showing the defendant’s theory of how much it was worth to do the work. If the record were otherwise free from error, we would feel eompelled to sustain the fifth assignment and send the case back for a new trial. But, we think, the plaintiff failed to make out a prima facie case for the jury under the rules of law as plainly laid down by the court below in answer to the defendant’s first, second and third points, and also in the general charge. The court plainly instructed the jury that the plaintiff could not recover on a delegation of power, by the supervisors, to determine what should or what should not be done on the public road. In other words, the jury was instructed that the plaintiff could only recover on a contract with the township for the performance of the work. The learned judge said: “But before he can be allowed anything for any of the claims in this case it is necessary for you to be convinced by the preponderance of the testimony that he had a binding contract on the township for the performance of that work for which he seeks to recover. In other words, he could not authorize himself to do work for the township and recover himself on a contract.” If there had been sufficient evidence from which the jury could have found in favor of the plaintiff, in accordance with said instruction, then no fault could be found therewith. But, in our opinion, the jury could not find for the plaintiff, under the evidence, without going in the very teeth of said instructions. We fail to find in the record evidence of a contract, nor do we find that even one supervisor directed the plaintiff to perform any of the work for which he claims, except possibly the $1.20 alleged to have been earned by his boy. But, as we have seen, that was paid for.

The learned court, in the opinion refusing a new trial, says that the jury was instructed that there could only be a recovery on a precedent contract; that the whole case was submitted to the jury on that question and that they have found that there was a precedent contract of employment, “and we fail to find anything in the evidence which would lead us to disturb this finding.” But the learned judge does not point out any evidence; and we have not found any, ' sufficient to support a verdict for the plaintiff in accordance with the instruction above referred to. The court having-affirmed the first, second and third points of defendant, we are of opinion that the case logically and legally required the affirmance of defendant’s fourth point (fourth assignment) and this would have withdrawn the case from the jury.

The fourth and fifth assignments of error are sustained and the judgment is reversed.


author: Henderson, J.,

text:
    Gorman v. McDermott, Appellant.

      Equity — Injunction—Nuisance—Alley.
    The complainant in a bill in equity is not entitled to an injunction to restrain the defendant from interfering with him in the use of an alley wholly on defendant’s land, where the plaintiff’s right is not based upon any writing, and where the evidence as to adverse use for the statutory period is conflicting, and the evidence is also conflicting as to an alleged parol contract by which the defendant granted the use of the alley for an executed valid consideration.
    Argued Dec. 10, 1909.
    Appeal, No. 202, Oct. T., 1909, by defendant, from decree 'of C. P. Schuylkill Co., Jan. T., 1907, No. 4, on bill in equity in case of Alexander A. Gorman and Mollie M. Gorman v. Catherine McDermott.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Bill in equity for an injunction.
    The case was heard on bill and answer. Before Bechtel, J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was decree awarding an injunction.

      James J. Bell, with him John F. Whalen, for appellant,
    cited: Bennett, v. Biddle, 140 Pa. 396; s. c., 150 Pa. 420; Jeffries v. Mayberry, 3 Phila. 143.

      M. M. Burke, with, him P. H. Burke, for appellee,-
    cited: Rhea v. Forsyth, 37 Pa. 503; Manbeck v. Jones, 190 Pa. 171; Wilson v. Cather, 214 Pa. 3; Hacke’s App., 101 Pa. 245; Miller v. Lynch, 149 Pa. 460.
    March 3, 1910:
   Opinion by

Henderson, J.,

The complainants claim a right of way over land of the defendant. The parties own adjoining lots and the way in dispute is between the houses on these lots. The right is said to exist by reason of a parol grant and also by adverse use continued more than twenty-one years. The answer denies the existence of the easement on either of the grounds alleged and a direct issue of fact is thus raised by the pleadings. The evidence was not taken before the court nor before a master and we have not, therefore, the benefit of an opinion reached by the court below after a personal observation of the witnesses and an estimate of the value of their testimony. The evidence is voluminous and exhibits a sharp contradiction on material parts of the case and much of it is obscure without a greater familiarity with the premises than can be obtained from the record brought up on the appeal. The complainants depend largely on the testimony of Elizabeth Lathem, predecessor in their title, to establish the parol agreement for a joint passageway between her and John W. Thomas who at the time owned the defendant’s lot. According to her testimony when she and her husband were about to build a Louse on her lot Mr. Thomas proposed that they erect it about a foot away from the line thereby leaving a sufficient space between his house and theirs for a passageway about three and one-half feet wide. This proposition she says was accepted and the house placed about a foot away from the line of the lot and a gate constructed from the corner of their house to permit an entrance into the passage. Mr. Thomas when called for the defense admitted that he had a talk with Mr. Lathem about locating the house the latter was about to build and proposed that he leave a space a foot wide along his (Thomas’) alleyway to give plenty of room, but he says this arrangement was not carried out for the Lathems built a part of the house up to the line and Thomas, therefore, refused to consent to a joint use of the alley. On the question of a prescriptive use from' which a grant might be inferred the evidence is very contradictory, the complainants offering evidence to show a continued use of the way and the defendant introducing a large number of witnesses to show that the alley had not been used by the predecessors of the complainants for many years and there was some evidence that Mrs. Lathem while the owner and occupant of the premises said that she had given up the use of the alley. We are unable to say after a careful examination of the evidence that it clearly establishes the right of the complainants and that the court therefore had jurisdiction in equity to enter the decree complained of. There is evidence tending to show that the way is wholly on the lot of the defendant and that the'house of the complainants is built up to the line at the rear part of the building. If the proposition of Thomas to Lathem was conditioned on the putting of one foot along the side of the Lathem lot into the alley and Lathem disregarded that arrangement and built the house up to the Thomas line no right was acquired by Lathem, for the consideration failed rand if the use of the alley by the occupants of the Lathem lot was not maintained for the requisite period to establish an easement the plaintiff’s case is without foundation in fact on that ground. Under such circumstances a court of equity cannot take cognizance of the controversy until the rights of the parties have been established at law. The doctrine in Rhea v. Forsyth, 37 Pa. 503, that a plaintiff is not entitled to remedy by injunction to restrain the continuance of a nuisance where his right has not been established at law or is not clear has been steadily maintained in this state as is shown in New Castle v. Raney, 130 Pa. 546; Mowday v. Moore, 133 Pa. 598; Washburn’s App., 105 Pa. 480; O’Neil v. McKeesport, 201 Pa. 386; Scanlin v. Conshohocken Borough, 209 Pa. 48; Godino v. Kane, 26 Pa. Superior Ct. 596, and other cases. It is proposed to subject the land of which the appellant is the unquestioned owner to a use by the occupant of the adjoining premises. It is not pretended that this right exists pursuant to any deed or other writing and the testimony is conflicting on the very propositions for which the complainants contend. The exception to the rule stated in the authorities above cited only exists where the right is conceded or is so clearly established as to make the contradictions inconsiderable. Hacke’s App., 101 Pa. 245; Ferguson’s App., 117 Pa. 426; Piro v. Shipley, 211 Pa. 36, and Wilson v. Cather, 214 Pa. 3, are illustrations of this class of cases. In each of them there was a written gz-ant or the evidence was so conclusive that there was practically no dispute. We do not consider this case so clear either as to the grant or the use as to give jurisdiction in equity.

We therefore reverse the decree and dismiss the bill without prejudice to the complainants at law.


text:
    Little v. Jeffers, Appellant.

      Judgment — Judgment note — Opening judgment — Payment—Application of payments.

    A judgment entered on a judgment note will not be opened on the ground that it had been paid by the delivery to the plaintiff of two checks and the assignment of certificates of stock for the balance, where the evidence shows that the plaintiff had applied without objection the checks to a prior indebtedness, and the plaintiff denies that he received the stock, although if he had received it on general account, the balance of the defendant’s indebtedness to him would be greater than the amount of the judgment.
    Argued March 7, 1910.
    Appeal, No. 40, March T., 1910, by defendants, from order of C. P. Susquehanna Co., April T., 1904, No. 43, discharging rule to open judgment in case of George P. Little v. J. M. Jeffers and W. B. Jeffers, trading as J. M. Jeffers & Son, and W. B. Jeffers.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule to open judgment.
    Fuller, J., specially presiding, filed the following opinion:
    The judgment note in this case bears date March 24, 1903, is signed by “J. M. Jeffers & Son, W. B. Jeffers,” and was entered February 9,1904, upon prascipe against “ J. M. Jeffers and W. B. Jeffers as the firm of J. M. Jeffers & Son,” and also against W. B. Jeffers.
    The regularity of the judgment thus entered is sanctioned by authority: Miller v. Royal Flint Glass Works, 172 Pa. 70; Myers v. Sprinkle, 20 Pa. Superior Ct. 549, and has not been questioned.
    Upon the scire facias to revive the same, J. M. Jeffers, one of the partners defendant, on April 10,1909, filed for himself and his copartner an affidavit of defense, averring that said note was made and given, by W. B. Jeffers, son of deponent, without deponent’s knowledge, but deponent learned of the fact soon after; that deponent did not give said W. B. Jeffers authority to make said note or sign the same in any manner; that on May 4, 1903, deponent drew two checks in favor of plaintiff, one for $150 and the other for $200; the first check was the individual check of deponent, the other a check drawn on the account of J. M. Jeffers & Son; that these checks were given to apply as payments on said note and were received and used by said plaintiff as being paid by the bank; that about May 4, 1903, deponent assigned to plaintiff his interest in five shares of the Farmers’ National Bank of Montrose, Pa., of the value of $250, to apply as payment on said note; and that at the time deponent considered the three aforesaid payments paid and canceled said note.
    On August 19, 1909, on motion of counsel for defendants ’ and with consent of counsel for plaintiff, a rule was granted to show cause why the original judgment should be not opened and the defendants let into a defense upon the grounds disclosed in the same affidavit. This rule was made returnable in September, afterwards continued to October and finally submitted on December 3, 1909.
    The affidavit, while denying the authority of W. B. Jeffers to bind J. M. Jeffers by the judgment note when given, nevertheless -discloses later assent, whose binding effect Miller v. Glass Works, supra, has not been challenged.
    The only question in the case is whether the evidence of payment should lead the court in the exercise of a sound discretion to open the judgment.
    Defendants claim that payment was made by check of J. M. Jeffers & Son for $200, by check of J. M. Jeffers for $150, and by transfer of certain stock worth $250.
    Plaintiff. a'dmits the receipt of the two checks but claims application thereof upon prior indebtedness and denies the transfer of stock.
    The depositions clearly sustain the application of checks as claimed by plaintiff, and do not sustain the transfer of stock as claimed by defendants.
    These depositions show:
    1. J. M. Jeffers and W. B. Jeffers, father and son, were partners doing business in the firm name of J. M. Jeffers & Son, said W. B. Jeffers being the active, managing partner.
    2. The plaintiff on March 24, 1903, loaned to the firm for use in its business the sum of $600 and took for the same the judgment note in question, which was given by the son and afterwards recognized by the father.
    3. The plaintiff had previously made other loans to the firm for the use in its business, amounting to about $600 which was then unpaid.
    4. The said checks, dated May 4, 1903, one for $200 and one for $150, were delivered by the son without application, to the plaintiff, who made application thereof at once upon the older indebtedness. The father was not present when the checks were delivered and did not notify the plaintiff of any application. The son was not produced as a witness to deny plaintiff’s testimony on this point, and the father’s testimony is not reinforced. In the absence of any testimony upon the subject the law would make application as the plaintiff did, to the older and least secure indebtedness.
    5. No transfer of stock to the plaintiff, nor application thereof upon this note was established against the plaintiff’s denial thereof, and even if plaintiff had received on general account, stock as alleged, there would still remain an owed balance equal to the amount of the note.
    6. This claim of payment was not set up until the affidavit of defense was filed in the action of scire facias, about five years after entry of the judgment.
    7. The defendants owe the plaintiff the amount of the note for money loaned to carry on the business of the partnership.
    The defendants have not furnished a legal sufficiency of proof to open this judgment; and on the contrary we are satisfied of plaintiff's right to the same in law and in equity.
    Upon argument of the rule we were asked to postpone decision until the testimony of the son could be procured, but no good reason for such indulgence has been suggested.
    It is not shown that his testimony would contradict the plaintiff.
    Being himself one of the defendants, he does not stand upon the footing of an absent witness.
    Between August 19, 1909, when the rule was granted, and December 3,1909, when it was submitted, his testimony could have been easily taken if desired.
    Plaintiff now insists upon disposition of the case without further delay.
    Under all circumstances, we must refuse the request for postponement, and decide the case upon the evidence already adduced, by which we are compelled for reasons above suggested, to discharge the rule.

      Error assigned was the order of the court.

      Miller A. Allen, for appellants.

      A. B. Smith, for appellee.
    April 18, 1910:
   Per Curiam,

The order is affirmed and the appeal dismissed at the costs of the appellant upon the opinion of the learned judge of the common pleas specially presiding.


text:
    Eastside Borough Overseers v. Denison Township Overseers, Appellants.

      Poor law — Order of removal — Costs—Act of June 13, 1836, P. L. 539.
    Under the poor law Act of June 13, 1836, P. L. 539, an order of removal may be made where any pauper is likely to become chargeable to a district which is not liable for the support of the pauper, and it is not necessary to justify such order that a previous order of relief should have been granted. In such a case the costs may be imposed upon the district of the pauper’s last settlement and to which he has been removed.
    Argued March 8, 1910.
    Appeal, No. 35, March T., 1910, by defendant, from order of Q. S. Luzerne Co., Sept. T., 1909, No. 657, sustaining petition for mandamus in case of Eastside Borough Overseers of the Poor v. Denison Township Overseers of the Poor.
    Before Henderson, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Petition for writ of mandamus. Before O’Connor, P. J.
    The facts are stated in the opinion.of the Superior Court.

      Error assigned was order overruling rule to quash writ of mandamus.

      Charles F. Wharen, for appellants.
    — The appellants contend that the absence of an order of relief in this case, prevented the jurisdiction of either the justice or the overseers from attaching, and that the question is properly raised: Reinach v. R. R. Co., 58 Fed. Repr. 33; Pantall v. Dickey, 123 Pa. 431; Brunner’s App., 47 Pa. 67; Schumate v. McGarity, 83 Pa. 38; Fowler v. Eddy, 110 Pa. 117; Lacock v. White, 19 Pa. 495; Poor Dist. of Edenburg v. Stattonville, 5 Pa. Superior Ct. 516.

      Laird H. Barber, for appellee.
    — An order for the payment of costs and damages may be enforced by mandamus; and, on the mandamus, the court will not consider either the regularity of the prior proceeding or the correctness of the bill: Moreland Township Poor Dist. v. Uniontown Poor Dist., 4 Kulp, 91; Com. v. Uniontown Overseers, 4 Kulp, 95.

      April 18, 1910:
   Opinion by

Beaver, J.,

The overseers of the poor of East Side borough, Carbon county, made complaint that Elizabeth Oakes and some minor children were likely to become chargeable to said borough, and asked for an order of removal to remove her to Denison township, Luzerne county, her last place of settlement. An order of removal was awarded by the justice, and the overseers of Denison township appealed therefrom to the court of quarter sessions of Carbon county, which affirmed it.

A petition was presented to the quarter sessions of Luzerne county for a writ of mandamus to issue to the overseers of Denison towqship to pay the costs awarded in the quarter sessions of Carbon county, upon the appeal from the order of removal made by the justice. Upon argument, the court made the following decree: “And now, December 15, 1909, the motion to quash writ is overruled, the rule heretofore granted is made absolute, and the overseers of the poor of Denison township are directed to pay the costs and charges of this proceeding within thirty days from the date upon which this decree is filed; otherwise mandamus to issue in accordance with the petitioner’s prayer.” This decree is assigned for error and constitutes the only assignment.

Under sec. 16 of the Act of June 13, 1836, P. L. 539, it is provided: “On complaint made by the overseers of any district to one of the magistrates of the same county, it shall be lawful for the said magistrate, with any other magistrate of the county, where any person has or is likely to become chargeable to such district into which he shall come, by their warrant or order, directed to such overseers, to remove such person at the expense of the district, to the city, district or place where he was last legally settled, whether in or out of Pennsylvania, unless such person shall give sufficient security to indemnify such district, to which he is likely to become chargeable as aforesaid.”

The question of the regularity of the order of removal by the justice in Carbon county, was determined upon the appeal to the court of quarter sessions of that county, and the raising of the question in the appeal under consideration is met by the appellant by the allegation that the justice was without jurisdiction, for the reason that no order of relief had been granted in the case before the application for an order of removal. This, however, was not necessary, because by the very terms of the act, application can be made by the overseers and the magistrates can grant an order of removal “where any person has or is likely to become chargeable to such district into which he shall come.” In this case the terms of the petition were in accordance with the act that the person was likely to become chargeable.

By sec. 22 of the act above referred to, provision was made for the collection of the costs of such a proceeding, as follows: “If any overseer be ordered to pay costs or charges as aforesaid, and the township liable therefor be out of the jurisdiction of such court, it shall be the duty of the court of quarter sessions of the county in which such township is situate, on request to them made, and on the production of a copy of such order, certified under the seal of the court making the same, to compel payment of such costs and charges, according to law.” Here then was express authority for the order of the court from which this appeal is taken.

There is, therefore, neither reason for nor merit in the appeal upon any of the grounds presented by the appellant.

That the petition to the court of quarter sessions of Luzerne county, to enforce the payment of the costs incurred and created by the appeal in the court of quarter sessions of Carbon county was authorized by the act of June 13, 1836, in the manner pursued in this case is directly ruled in Directors of the Poor of Blair County v. Overseers of the Poor of Clarion Borough, 91 Pa. 431.

The case is entirely free from difficulty. The record is regular on its face, which is all we can consider upon certiorari; and, even if an appeal to this court was allowable, there are no merits in such an appeal under the facts of this case.

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


author: Orlady, J.,

text:
    McCarthy, Appellant, v. Rapid Transit Company.

      Negligence — Damages—Disease—St. Vitus’s dance — Street railways.

    In an action against a street railway company to recover damages for personal injuries to a child two years old, the question whether the plaintiff was suffering at the time of the trial from St. Vitus’s dance is properly withdrawn from the jury, where the evidence shows that the child had substantially recovered from the results of the accident in less than three months thereafter, and that symptoms of St. Vitus’s dance were not noticed until eighteen months thereafter and no expert testified that the disease was the result of the accident although it might result from a physical injury.
    Argued Dec. 16, 1909.
    Appeal, No. 206, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 2, Phila. Co., March. Term, 1907,'No. 2,764, on verdict for plaintiff in case of John McCarthy v. Philadelphia Rapid Transit Company.
    Before Rice, P. J., Henderscn, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before WlLTBANK, J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for John McCarthy for $50.00 and for Joseph McCarthy for $52.00. Plaintiff appealed.

      Error assigned was instructions to disregard the testimony relating to St. Vitus’s dance.

      Augustus T. Ashton, with him Victor Frey, for appellants.

      Thomas Learning, with him David J. Smyth, for appellee..
    April 18, 1910:
   Opinion by

Orlady, J.,

The question involved is fairly stated by the appellant, whether the trial court was justified in withdrawing from the consideration of the jury, the expert testimony which had been offered to prove that the plaintiff was suffering from St. Vitus’s dance as a result of an injury received.

The plaintiff was a child two years of age, when in a collision between two cars belonging to the defendant company, April 7, 1907, he received a cut on the left cheek, was severely shocked and frightened, and was nervous for quite a period after the accident, during which time he had medical care in a hospital and from the family physician. On the trial of the case an expert was called who testified that this could be the result of the injuries received in the accident, and the trial judge directed the jury to disregard the question of St. Vitus’s dance as one of the results of the accident, stating that there was not sufficient testimony to justify the jury in concluding that this disease was the result of that accident. In this we fully concur. A careful examination of the testimony shows that there was a substantial recovery from the injury of April 7, 1907, in less than three months thereafter: The chorea or St. Vitus’s dance was not noticed until about a year and a half subsequent to the accident. No witness pretended to testify that he believed, that the chorea or St. Vitus’s dance which affected the child at the time of the trial could be traced to the injury. The testimony shows that chorea in children is frequently induced by a number of causes, fright, injury, infectious diseases and others, and that the connection between the conditions developed in this testimony was at most conjectural. The principal expert when asked directly, “You do not attempt to say what caused this particular St. Vitus’s dance? ” answered, “I do not.” The alleged cause was so remote that it could not be considered by the jury, as stated by the learned trial judge in refusing a new trial. See Blasband v. Traction Company, ante, p. 325, and Moss v. Traction Company, ante, p. 466.

The only assignment of error alleged was the direction to the jury, to disregard this expert medical testimony, and in this the court was clearly right.

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


text:
    Dolphin v. Olyphant Borough, Appellant.

      Public officers — Secretary of borough council — Compensation—Scope of duties.

    Where a secretary of a borough councii receiving a salary of $125 per year is required by resolution of the council to marshal the borough accounts, and to ascertain the financial condition of the borough, he is entitled to special compensation for such work inasmuch as it is not within the scope of his duties as secretary.
    Argued March 9, 1910.
    Appeal, No. 23, March T., 1910, by defendant, from order of C. P. Lackawanna Co., Sept. T., 1900, No. 1,603, overruling exceptions to referee’s report in case of Joseph A. Dolphin v. Olyphant Borough.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to report of R. L. Levy, Esq., referee.
    The referee’s findings of fact and conclusions of law were as follows:
    1. On May 10, 1898, the plaintiff was by occupation a bookkeeper, and was employed as secretary for the town council for the borough of Olyphant, county of Lackawanna, - at a yearly salary of $125.
    2. On May 10, 1898, at a’meeting held by the town council of the borough of Olyphant, the following motion was passed:
    “On motion the secretary was appointed to marshal the accounts of the borough to ascertain the exact financial standing of the borough,, that the court may make suitable provision for the same, and also to advertise in one of its home papers the time when he will meet all claimants at the council room by virtue of his appointment.”
    3. At the time this motion was passed the borough of Olyphant had a large floating indebtedness on outstanding orders and unpaid bills; said indebtedness being in the neighborhood of $14,000.
    4. In pursuance of his appointment by the town council of the borough of Olyphant, the plaintiff advertised in one of the home newspapers and sat for ten days in the council room of said borough and received claims against the said borough. The plaintiff subsequently investigated these various claims and was occupied partially during the year 1898, and down' to March 27, 1899, in ascertaining the exact financial standing of the borough.
    5. The plaintiff as a result of the work performed by him ascertained the financial standing of the borough, all of which was embodied in a report which was submitted by him to the town council of the borough of Olyphant on March 27, 1899.
    6. The plaintiff rendered a bill to the town council of the borough of Olyphant-for $300 for services performed by him; this bill being rendered on or about April 1, 1899, and the services performed by the plaintiff were reasonably worth the sum of $300.
    CONCLUSIONS OF LAW.
    The referee finds the following conclusions of law:
    1. The services referred to in the motion of the town council of the borough of Olyphant on May 10, 1898, were not such services as were incidental to the duties of the plaintiff in his capacity as secretary of the town council.
    2. The motion of May 10, 1898, as shown by the evidence and the minute book of Olyphant borough, the acceptance of the plaintiff thereunder; and his services rendered in pursuance thereof constituted a contract binding the said borough of Olyphant to pay to the plaintiff a reasonable remuneration for such services.
    On exceptions, Edward, P. J., filed the following opinion:
    Plaintiff was secretary of the town council of the borough of Olyphant at a yearly salary of $125. His duties as secretary are defined by law. These duties are specific and are fully set forth in the legislative provisions quoted by the referee in his report.
    On May 10, 1898, while the plaintiff occupied the office of secretary, the town council of the borough passed the following motion or resolution:

      “On motion the secretary was appointed to marshal the accounts of the borough to ascertain the exact financial standing of the borough, that the court may make suitable provision for the same, and also to advertise in one of its home papers the time when he will meet all claimants at the council room by virtue of his appointment.”
    The referee finds that at the time this motion was passed the borough had a large floating indebtedness on outstanding orders and unpaid bills amounting to about $14,000, and that the plaintiff was occupied in the investigation of these claims and in ascertaining the financial standing of the borough, during a part of 1898 and down to March 27, 1899. The plaintiff embodied the results of a somewhat extensive inquiry in his report to the council. The referee also finds that the sum of $300 was a reasonable compensation for the work done by the plaintiff.
    The learned referee concludes that the services performed by the plaintiff were entirely outside of his duties as secretary. He is correct in this conclusion. It therefore follows, that the authorities cited by defendant’s counsel and which are considered and discussed by the referee do not apply to the facts of the present case.
    We overrule the exceptions and direct that judgment be entered in accordance with the recommendation of the referee.

      Errors assigned were in overruling exceptions to referee’s report.

      P. L. Walsh, borough solicitor, for appellant.
    — When a public officer claims a salary, fees, or compensation for services rendered to the public, he must show an act of assembly giving it. If he cannot show such act, he cannot recover: Rothrock v. School Dist., 133 Pa. 487; Hays v. Oil City, 11 Atl. Repr. (Pa.) 63; Albright v. Bedford County, 106 Pa. 582; Wayne County v. Waller, 90 Pa. 99; Lancaster v. Fulton, 128 Pa. 48; City v. Waterman, 86 Iowa, 688 (53 N. W. Repr. 289).

      W. L. Houck, of Houck & Benjamin, for appellee.

      April 18, 1910:
   Per Curiam,

The judgment is affirmed upon the findings of fact and conclusions of law of the referee and the opinion of the learned president judge of the common pleas overruling the exceptions thereto.