text:
    Lippincott’s License.

      Liquor laws — Distiller’s license — Refusal of license — Review—Appeals —Record.

    1. The action of the court of quarter sessions in refusing a distiller’s license will not be reversed by the Superior Court where the record and decree of the lower court shows that petitions for and remonstrances against the license were filed, that oral testimony was offered in open court both for and against the application, that the matter was argued upon by co.unsel, and that the court after due consideration, refused the license.
    2. While the court’s discretion is not as broad in an application for a distiller’s license as for one at retail, because the reasons which may influence the discretion of the court are fewer in the former than in the latter case, nevertheless the same general principle applies that where a license has been refused after a hearing, the presumption is that the refusal was for a legal reason, unless the contrary affirmatively appear.
    3. On an appeal from an order refusing a liquor license, the appellate court cannot consider the case on the merits, inasmuch as the appeal does not bring up the evidence.
    Argued Oct. 4, 1910.
    Appeal, No. 16, April T., 1911, by Uriah, E. Lippincott, from order of Q. S. Greene Co., March T., 1910, No. 2, refusing appellant’s application for distiller’s ■ license.
    Before Rice, P. J., Henderson, Morrison, Orladt, Head, Beaver and Porter, JJ.
    Affirmed.,
    Petition for distiller’s license. Before Inghram, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court refusing the license.

      Franklin P. lams and James J. Purman, for appellant,
    cited: Donoghue’s License, 5 Pa. Superior Ct. 1; Doberneck’s App., 1 Pa. Superior Ct. 99; Gross’s License, 161 Pa. 344; Raudenbusch’s Petition, 120 Pa. 328; Prospect Brewing Co.’s Petition, 127 Pa. 523.

      November 21, 1910:

      J. B. Donley, with him H. J. Ross and Challem W. Waychoff, for appellees,
    cited: Black Diamond Distilling Co.’s License, 33 Pa. Superior Ct. 649.
   Opinion by

Morrison, J.,

The record proper and the order of the court show that the applicant’s petition and the evidence offered in favor of and against the same, were fully heard and considered in open court and the learned judge of the court of quarter sessions made the following order: “Now April 4, 1910, this matter came on to be heard on petitions for and remonstrances against said license, and on oral testimony offered in open court, both for and against said application, and was argued by counsel, and now, April 25, 1910, after due consideration thereof, license is refused. Per Curiam.”

We are not able to discover anything in this record to distinguish it from Black Diamond Distilling Company’s License, 33 Pa. Superior Ct. 649, where we affirmed the lower court in refusing the license. To the same effect is Reynoldsville Distilling Company’s License, 34 Pa. Superior Ct. 269. In the case first above cited we said: “Johnson’s License, 156 Pa. 322, as distinguished and explained in Gross’s License, 161 Pa. 344, is not authority for holding differently, and in the latter case it was distinctly declared that the presumption in all such cases— where the license was refused after hearing — is, that the judge performed his duty according to law. 'He is not bound to set out legal reasons for his action; he is only bound to have them.’ ”

The application in the present case was for a distiller’s license under the Act of June 9, 1891, P. L. 257, which is entitled, “An act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors or any admixture thereof, by wholesale.” Section 6 of the act requires the court to hear petitions from residents of the county, in addition to that of the applicant, in favor of and remonstrances against, the application for such license, and in all cases to refuse the same whenever in the opinion of the court, having due regard to the number and character of the petitioners for and against such application, the applicant is not a fit person to whom such license should be granted. The present case was regularly heard on the petitions and remonstrances and oral evidence, and after such hearing the application was refused. The evidence is not before us, for the appeal brings up nothing but the record: Berg’s Petition, 139 Pa. 354; Free’s License, 33 Pa. Superior Ct. 348; Beck’s Appeal, 164 Pa. 427. We are not at liberty, therefore, to consider the case on the merits. We can only decide whether it was disposed of according to law. While the court’s discretion is not as broad in an application for a distiller’s license as for one at retail, because the reasons which may influence the discretion of the court are fewer in the former than in the latter case, nevertheless, the same general principle applies that when a license has been refused after a hearing, the presumption is that the refusal was for a legal reason unless the contrary affirmatively appear. There is nothing on the record to show that the appellant’s application was refused for an illegal reason. The oral evidence before the court doubtless presented objections to the fitness of the applicant for a distiller’s license. And so far as we can discover from the record proper and looking at the order of the court, the license may have been refused entirely on the oral evidence bearing upon the fitness of the applicant. It was the duty of the court to hear the case in open court and to exercise a judicial discretion, and we cannot say that that was not done in this case.

The learned counsel for the appellant appear to attach much importance to Indian Brewing Company’s License, 226 Pa. 56. But in our opinion, the doctrine of that case, as declared by a majority of the members of the Supreme Court, does not control the present one. In the Indian Brewing Company’s appeal the order of the court below refusing the license, as construed by the Supreme Court places the judgment of the court squarely on the petitions favoring the application and remonstrances against the granting of the license by reason of the unfitness of the applicant. The applicant in that case was a corporation and the learned judge below found that the corporation was unfit to have a license. The Supreme Court appears to have considered the order of the court below and it is quoted in the opinion by Mr. Justice Elkin, who, inter alia, said: "An examination of the opinion shows that the question of fitness was determined at the hearing upon the record made up by the application, the additional petitions favoring the license and the remonstrances filed against the granting of it. The record thus made up forms the pleadings in the case and is now properly before this court for review: Prospect Brewing Co.’s Petition, 127 Pa. 523. There is thus presented for determination the narrow question, Does the weight of the evidence gathered from the petitions and remonstrances furnish a legal reason for refusing the license? The only averment contained in the remonstrances is that the applicant is not a 'fit corporation’ to be licensed, and upon this naked averment more numerously signed by persons who objected to the granting of the license than by those who favored it, the learned judge found that the unfitness of the applicant had been established by the weight of the evidence.” Again, further along in the opinion, Mr. Justice Elkin said:'"In the case of an individual the qualities of the man, such as moral character, temperate habits, business integrity, citizenship and other kindred matters, are the important and frequently the controlling consideration of the court. With corporations the inquiry is different. A corporation has no personal attributes and must be judged by its corporate acts. In the present case the only averment in the remonstrances upon which the court based its findings is that the applicant is not a 'fit corporation’ to be licensed. This is clearly not sufficient. This corporation was created by the commonwealth with the authority to do the business in which it is engaged. To hold upon the naked averment of an individual or a large number of individuals that a corporation is not fit to engage in the business for which it was created would be to challenge the power of the legislature to authorize its incorporation and such a contention could not be seriously made. Of course, a corporation made fit by the act of incorporation to engage in the manufacture and sale of liquor may become unfit within the meaning of the license laws by corporate acts committed in violation of law by its directors, officers and authorized agents. In this sense the fitness of a corporation presenting an application for a license may be inquired into.”

It thus clearly appears that the opinion representing a majority of the members of the Supreme Court in that case is based upon the conclusion that the court below found the corporation unfit to hold a license upon the petitions and remonstrances alone, and the finding of the corporation unfit was held not a sufficient reason for the refusal of the license.

In the present case the applicant is a natural person and under the Act of June 9, 1891, P. L. 257, his fitness to hold a license was at issue and as we have already said the court below doubtless ascertained his unfitness from all of the competent evidence submitted and received. But we are not prepared to say that if the court received the remonstrances in evidence and considered the same along with the oral testimony that there was error in so doing. But the record does not afiirmatively show that the court received the remonstrances in evidence and gave them weight in the determination of the fitness of the applicant. What the court said was, as the record shows, “We will take the remonstrances and examine them and determine for ourselves afterwards as to the weight of them.” This record shows that the court heard competent evidence and gave the applicant a full hearing in open court and then refused the license and this is in accordance with Gross’s License, 161 Pa. 344. It is stated in the argument of this case, and seems to be a conceded fact,, that the appellant was refused a license as a distiller some years ago and also in the years 1908 and 1909.

We discover nothing in the assignments of error requiring special discussion.

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


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Commonwealth v. Hamel, Appellant.

      Criminal law — Sentence—Suspension of sentence — Payment of costs— Further sentence.

    Where a woman pleads guilty to the charge of keeping a bawdy-house, and the court sentences her to pay the costs of prosecution, and suspends further sentence, she may after the expiration of the term be sentenced to pay a fine and undergo an imprisonment. In such a case the direction to pay the costs is not a sentence in the sense of being part of the penalty imposed by law, and therefore does not violate the rule that a court has no power to impose two sentences for a single offense by imposing a fine at one term and superadding imprisonment at a later term.
    Argued Oct. 4, 1910.
    Appeal, No. 35, April T., 1911, by defendants, from judgment of Q. S. Cambria Co., June T., 1909, No. 223, on plea of guilty in the case of Commonwealth v. Helen Hamel.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for keeping a bawdyhouse. Before O’Conner, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the sentence of the court imposed on June 14, 1910.

      E. Price Graffius, for appellant.

      J. W. Leech, with him D. P. Weimer, for appellee.

      November 21, 1910:
   Opinion by

Porter, J.,

The appellant, on June 8, 1909, entered the plea of guilty to an indictment charging her with keeping and maintaining a common bawdyhouse. The record discloses the following action upon this plea, viz.: “June 9th, 1909, defendant sentenced to pay the costs of prosecution, and further sentence suspended.” On June 8,1910, the court directed process to issue for the defendant, and the defendant having been brought in, the court on June 14, 1910, sentenced the defendant to pay a fine of 850.00 and undergo an imprisonment in the county jail for a term of one year less one day. The appellant contends that the court having sentenced her to pay the costs of prosecution and suspended further sentence, it had no authority after the expiration of the term to impose the sentence of June 14, 1910.

A court may suspend the judgment over a criminal, in toto, until another term, but has no power to impose two sentences for a 'single offense by imposing a fine and at a later term superadding imprisonment: Commonwealth v. Mayloy, 57 Pa. 291; Commonwealth v. Nuber, 6 Pa. Superior Ct. 420. Was the order of the court, made June 9, 1909, directing the defendant to pay the costs of prosecution and suspending further sentence, a sentence within the meaning of the law? The Act of March 31, 1860, sec. 43, P. L. 382, provides that persons guilty of the crime of which the defendant was convicted shall be “sentenced to pay a fine, not exceeding one thousand dollars, and to undergo an imprisonment, not exceeding two years.” The offense was a misdemeanor at common laiv, but the statute which defined it and provided for its punishment makes no mention of costs as a part of the sentence to be imposed. The Criminal Procedure Act of March 31,1860, sec. 64, P. L. 427, deals with the matter of costs in criminal prosecutions and provides that “in all cases of conviction of any crime, all costs shall be paid by the party convicted; but where such party shall have been discharged, according to law, without payment of costs, the costs of prosecution shall be paid by the county.” The Act of May 19, 1887, sec. 1, P. L. 138, makes the county primarily liable, for the costs, in misdemeanors, upon termination of the prosecution by a verdict of the jury and sentence of the court thereon, and the second section of this statute makes provision for the collection of such costs by the county from the party liable therefor. The liability of a defendant, convicted of the misdemeanor with which this appellant was charged, for costs, is not a part of the penalty imposed by the statute which defines and provides for the punishment of the offense. Such liability is an incident of the judgment, arising out of our statutes providing for the payment of costs in criminal proceedings. The direction to pay the costs was, therefore, not a sentence in the sense of its being a part of the penalty imposed by law: Commonwealth v. Nuber, 6 Pa. Superior Ct. 420. The defendant may have paid the costs, but until there was a sentence upon the plea the conviction was incomplete, and she could not have been legally cofnpelled to pay the costs. The liability for costs after a sentence has been imposed, still remains a mere incident of the judgment; and while a pardon from the executive will relieve the defendant of all fines and forfeitures and entitle him to discharge from imprisonment, he will still remain liable for the costs: Commonwealth v. Denniston, 9 Watts, 142; Cope v. Commonwealth, 28 Pa. 297. These considerations led us to hold, in Commonwealth v. Dunleavy, 16 Pa. Superior Ct. 380, that a direction to pay the costs in a criminal proceeding is not a sentence in the sense of its being a part of the penalty imposed by law and that an order of the court suspending sentence on payment of costs is not such a final judgment as will prevent the court, after the expiration of the term, from calling the prisoner for sentence and imposing upon him the penalty affixed by law to the offense. We find nothing in the record to distinguish that case from this. In the present case, it is true, the learned judge of the court below used inaccurate and inapt language in the order which he made. He was without authority to sentence the defendant to pay costs without first imposing some part of the penalty provided by law for the punishment of the offense. The error was, however, one of form rather than substance and the order was, in effect, a suspension of sentence upon payment of the costs.

The imposition of sentence upon those charged with crime who enter pleas of guilty, or are so found by a jury, frequently demands careful and mature consideration, such as the multiplicity of the duties of a judge, during the holding of a term, will render impossible. The dictates of humanity, regard for the public welfare or the circumstances of the defendant may properly lead the court to postpone sentence until a future time, and the practice of so doing has long and generally prevailed in this state. The opinion of our Brother Beaver, in Commonwealth v. Dunleavy, 16 Pa. Superior Ct. 380, has cited authorities showing that this practice also prevails in other states and that the effect of a suspension of sentence “leaves it within the power of the court at any time upon the motion of either party to bring the case forward and pass any lawful order or judgment thereon.” We are aware that the Supreme Court held, in Wright v. Donaldson and others, 158 Pa. 88, “that the suspension of sentence and the discharge of a defendant from his recognizance and allowing him to go without day,” was such a final order as will render the county liable at once for costs under the Act of May 19, 1887, P. L. 138, and that decision was again referred to in Allen v. Delaware County, 161 Pa. 550. The only question' involved in that case was the liability of the county for the costs of prosecution, the defendant in the indictment was not even a party to the civil proceeding to recover the costs. That case was clearly distinguishable from this in that the defendant in the criminal prosecution there referred to had been discharged from his recognizance and allowed to go without day. In the present case the record discloses nothing of that kind; the sentence was suspended but the defendant was not discharged. There was in the present case a mere suspending of active proceedings in the case, which dispensed with the necessity of entering formal continuances and left it within the power of the court to enter upon the defendant’s plea of guilty the judgment authorized by law.

The judgment is affirmed and the record is remitted to the court below with direction that the sentence be carried into effect.


author: Per Curiam,

text:
    Frank v. Neill, Appellant.

      Ground rents — Failure to pay taxes — Suit for taxes — Set-off.
    1. Where the plaintiff in an action on a ground rent obtains a judgment, and on execution the property is sold for less than the amount of the judgment, but for more than sufficient to pay the arrearages of taxes, and such taxes are paid in cash by the plaintiff to the sheriff before he can secure his deed, the plaintiff is entitled to recover the amount so paid from the real owner of the land against whom he had recovered the judgment in the action on the ground rent.
    2. In such a case a claim of set-off arising out of an alleged distress for arrears of rent, set up in an affidavit of defense, cannot be considered where there is nothing to show the amount realized by the distress, and it is not averred that it was not within the power of the defendant to make the affidavit certain in this particular.
    Argued Oct. 11, 1910.
    Appeal, No. 276, Oct. T., 1909, by defendant, from order of C. P. No. 2, Phila Co., Dec. T., 1908, No. 414, making absolute rule for judgment, for want of a sufficient affidavit of defense, in case of Philip Frank v. Matilda Neill.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit to recover taxes paid by plaintiff.
    The opinion of the Superior Court states the case.

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

      November 21, 1910:

      M. J. O’Callaghan, for appellant.

      Stanley Folz, with him Leon H. Folz, for appellee.
   Per Curiam,

The plaintiff, being the owner of certain ground rents, brought suits and obtained judgments against the original covenantor and the defendant, the real owner of the land, for arrearages and for the principal thereof under a clause of the ground rent deeds, wherein the grantee of the land, covenanted for himself, his heirs and assigns, to pay the principal sum in redemption of the ground rent at the expiration of five years, and in default of said payment that the said sum should be forthwith recoverable with all the arrears of rent, “and be first payable out of the proceeds of the sale of said premises under any judgment for the said principal sum.” By virtue of executions issued on these judgments, the several premises were sold at sheriff's sale and bought by the plaintiff for a sum, in each instance, which was much less than the amount of the judgment relating to the particular property. At the time of the sheriff’s sale the arrears of taxes assessed upon the premises against the defendant, and for which she was personally liable, amounted to $528.95. In consequence of the defendant’s failure to pay the taxes that it was her duty to pay, the plaintiff was compelled, in order to obtain his deeds, to pay this sum to the sheriff, and the sheriff paid the same to the proper authorities, thereby discharging the city’s claim for the taxes. As was the case in Commonwealth National Bank v. Shoemaker, 13 W. N. C. 255; Republic Building & Loan Assn. v. Webb, 12 Pa. Superior Ct. 545; Theobald v. Sylvester, 27 Pa. Superior Ct. 362, the plaintiff did not pay the taxes in addition to the amount of his bid, and in that respect the case is distinguishable from those in which the amount realized at sheriff’s sale was insufficient to pay the taxes, and the purchaser afterwards paid them to protect his property. But as is shown by the cases cited, this distinction does not affect the right of the plaintiff to maintain an action of assumpsit against the defendant to recover the amount thus paid by him; for the fact remains that the amount distributable to the plaintiff’s judgment was reduced to the extent of the unpaid taxes, and, therefore, in complying with his bid as a lien creditor purchaser, he was compelled to pay that part, of his bid in cash, which he would not have been compelled to do if the defendant had discharged the duty that rested upon her. True, these were mortgage cases, but the principle upon which they and the case of Hogg v. Longstreth, 97 Pa. 255, were decided, has been recognized in later cases where the purchaser was the ground rent owner: Frank v. Mc-Crossin, 33 Pa. Superior Ct. 93; Presbyterian Ministers’ Fund v. Folz, 41 Pa. Superior Ct. 303, and we see no good reason why it should not be applied here. The taxes were paid, and the claim of the city was extinguished, but the circumstances under which they were paid gave the plaintiff a right to reimbursement from the defendant, which, under the authorities above cited, can be enforced in an action of assumpsit.

The claim of set-off, alleged to arise out of the plaintiff’s distress for arrears of rent levied about August 1, 1908, upon the goods of tenants of the premises, is wholly uncertain as to the amount realized thereby and in other particulars. It is not averred that it was not within the power of the defendant to make the affidavit certain in these matters. For these reasons, if for no other, it was insufficient to prevent judgment.

The judgment is affirmed.


text:
    Keefer v. Mellott, Appellant.

      Practice, C. P. — Trial—Improper remark of counsel — Withdrawal of juror.

    The action of a trial judge in refusing to withdraw a juror and continue a case on the ground of improper remarks of counsel will not be reversed by the appellate court where it appears that as soon as objection was made, counsel apologized for the remarks, and stated in the presence of the jury that they should not have been made, and the court at once cautioned the jury not to consider the remarks.
    Argued Oct. 17, 1910.
    Appeal, No. 19, Oct. T., 1910, by defendant, from judgment of C. P. Fulton Co., June Term, 1909, No. 49, on verdict for plaintiff in case of George F. Keefer v. Rowe Mellott.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for injuries to the water power of a mill. Before Swope, P. J.
    At the trial Mr. Sipes, in addressing the jury on behalf of the plaintiff, used the following language:
    “When Ahab, the weakest and perhaps the worst king that ever sat on the throne of Israel, coveted Naboth’s vineyard, he went to his wife about it. She said to him in substance, ‘Well, don’t whimper or whine about it; go and take it.’ And he did. And so when O. J. Gunning, the lessee of the defendant’s mill, had made repairs and put in his machinery preparatory to beginning work of making handles, etc., he wanted, or thought he wanted more power, and cast around how it might be had, and went to Rowe Mellott, the defendant, about it. And they decided to raise the dam and take George Keefer’s power: Gentlemen of the jury, is the result of this case to be an illustration of the saying ‘To him that hath shall be given and to him that hath not shall be taken even that he hath? ’ Is the little that poor George Keefer has to be given to Rowe Mellott, a man of means?”

      November 21, 1910:
    Mr. Walter takes exception to these remarks of Mr. Sipes.
    The court admonishes Mr. Sipes not to mention anything not. in the evidence.
    Mr. Walter: And now 1 move, your honor, that a juror be withdrawn and the case be continued at the costs of the plaintiff.
    The Court: After the statement of the court we do not deem it necessary. Gentlemen of the jury, you will not be influenced by sympathy or consideration as between the men at all. Let him argue on the testimony of the case. That is an error. You will not consider that at all. Exception by the defendant: bill sealed.
    Verdict and judgment for plaintiff for <$35.00. Defendant appealed.

      Error assigned was the above ruling of the court.

      Charles Walter, with him Frank P. Lynch and S. W. Kirk, for appellant,
    cited: Holden v. Penna. R. R. Co., 169 Pa. 1; Guckavan v. Traction Co., 203 Pa. 521; Wagner v. Hazle Twp., 215 Pa. 219; Com. v. Weber, 167 Pa. 153; Hollis v. United States Glass Co., 220 Pa. 49; Quinn v. Rapid Transit Co., 224 Pa. 162; Fisher v. Railroad Co., 227 Pa. 635.

      John P. Sipes, for appellee,
    cited: Henry v. Huff, 143 Pa. 548; Cook v. Erie Electric Motor Co., 225 Pa. 91; Moore v. Neubert, 21 Pa. Superior Ct. 144; Shaffer v. Coleman, 35 Pa. Superior Ct. 386.
   Per Curiam,

In the late case of Cook v. Electric Motor Co., 225 Pa. 91, the court said: “It has been frequently held that in this class of cases no irregularities should be permitted which tend to inflame the prejudices of the jury against the defendant, and in a flagrant -ease this court will reverse for such error. But so much depends on the immediate circumstances and what may be called the atmosphere of the trial that a large discretion must be allowed to the trial judge. In the present case the action of the judge in cautioning the jury was so prompt and the withdrawal of the improper remark by counsel was so frank and unreserved that we cannot say that the judge did not use wise discretion in refusing to withdraw a juror.” These remarks are peculiarly applicable to the present case when all that occurred at the time the exception was taken is considered. It was admitted at bar that immediately upon objection being made, counsel for the appellee promptly apologized and stated in the presence of the jury that he ought not to have made the remarks objected to. It appears also in the bill of exceptions, as noted in the official report of the trial, that the court at once admonished counsel not to mention what was not in the evidence, and at the same time cautioned the jury in the following explicit language: “Gentlemen of the jury, you will not be influenced by sympathy or consideration as between the men at all. Let him argue on the testimony of the case. That is an error. You will not consider that at all.” The verdict was small, and upon consideration of those matters which do not appear in the assignment ofi error in connection with what does appear, and having due regard to the consideration that in the determination of such questions something must be left to the sound discretion of the trial judge, we are unable to say that reversible error was committed in overruling the defendant’s motion.

The judgment is affirmed.


text:
    Farrell’s Estate.

      Statute of limitations — Acknowledgment of debt — Promise to pay.

    The acknowledgment of a debt must be clear, distinct and unequivocal in order to take it out of the operation of the statute of limitations. Mere failure to dispute the account, mere protestation of inability to pay in the past and in the present, the mere expression of willingness to receive the visit of the agent of the alleged creditor at some future date, neither singly nor combined amounts to an acknowledgment of the debt sufficient to toll the statute.
    Argued Oct. 20, 1910.
    Appeal, No. 145, Oct. T., 1910, by Mary T. Walsh et al., trustees of Philip J. Walsh, deceased, from decree of O. C. Phila. Co., Oct. T., 1909, No. 584, dismissing exceptions to adjudication in Estate of Margaret Farrell, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to adjudication of Dallett, J.
    Lamorelle, J., filed the following opinion:
    When one purchases merchandise, the law implies a promise to pay the debt thus contracted. If the account be not settled nor suit brought within the statutory period, the remedy is gone, although the debt remains. It follows logically that, if after the period of six years, the debtor acknowledges the existence of the debt and specifically identifies it, no additional promise is required. The original implied promise is either revived or the law assumes a new promise because of the unqualified acknowledgment. That this is the law of this state is shown by an abundance of authorities. For instance, the thought is thus well expressed in Palmer v. Gillespie, 95 Pa. 340:
    “A clear, distinct and unequivocal acknowledgment of a debt is sufficient to take a case out of operation of the statute. It must be an admission consistent with a promise to pay.”

      An acknowledgment consistent with a promise to pay-does not mean that the debtor in terms agrees to pay, or even that he is then able to pay, but the right to bring suit at any time within the six years results solely because of such acknowledgment.
    The acknowledgment of the debt may or may not be accompanied with an express promise to pay at a future time. If no time be mentioned,- then the acknowledgment must be consistent with a promise to pay on demand. But the acknowledgment must be clear, precise and affirmative. Mere failure to dispute the account, mere protestation of inability to pay, in the past and in the present, the mere expression of willingness to receive the visit of the agent of the alleged creditor at some future date, neither singly nor combined, amount to an acknowledgment of the debt sufficient to toll the statute.
    The evidence in this case when critically considered does not appear to go beyond this point.
    The testimony of the single witness for the claimant persuaded the auditing judge that the alleged acknowledgment was merely the witness’s conclusion from the circumstances that the decedent did not in his presence actually deny the claim. The exceptant contends that the testimony shows not only an acknowledgment but also an express promise to pay. Clearly the promise was not to pay on demand because the agent of the alleged creditor of his own motion suggested that the matter should lie over for another month, which he said the decedent agreed to; that is, it was understood that a collector should call next month. There was therefore no promise of any sort to pay the whole or any part of this claim next month or at any other time. Apparently all that decedent did was to refrain from actually denying the account but earnestly protested inability to -pay, though willing to receive visits of the collector later on. At best, according to the testimony of the witness, the express promise if made, was only a promise to pay something on account next month. Such express promise would exclude an implied promise, and does not recover the whole of the claim: Senseman v. Hershman & Houser, 82 Pa. 83.
    November 21, 1910:
    Taking the testimony in its entirety, we fail to see that the auditing judge committed error in his finding and conclusions based thereon.
    The exceptions are dismissed and the adjudication confirmed absolutely.

      Errors assigned were in dismissing exceptions to adjudication.

      John F. Gorman, for appellants.

      William I. Stanton, for appellee.
   Per Curiam,

It is the judgment of the majority of the court that the case was correctly decided by the orphans’ court, and that the decree be affirmed for the reasons given in the opinion of that court overruling the exceptions to the adjudication.

The decree is affirmed at the costs of the appellant.


text:
    Black, Appellant, v. Isaacman.

      Pleading — Statement of claim — Affidavit of defense — Insufficient statement — Anticipatory replication.

    1. A statement of claim which simply alleges that the defendant was on a certain day “indebted to the plaintiff for money loaned and for work and labor done and materials furnished by the plaintiff to the defendant,” in a sum stated, is, without more, insufficient; nor is such a statement of claim helped out by an averment that in his deposition filed in another suit between the same parties, the defendant admitted that he was indebted to the plaintiff in such sum. Such admission is evidence, but does not in itself constitute a cause of action.
    2. Anticipatory matter in a statement of claim is not in itself fatal, but it does not constitute a cause of action where the statement is otherwise insufficient.

      November 21, 1910:
    Argued Oct. 20, 1910.
    Appeal, No. 148, Oct. T., 1910, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1909, No. 3,639, discharging rule for judgment for want of a sufficient affidavit of defense in case of Morris Black v. Louis Isaacman.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for money loaned.
    Rule for judgment for want of a sufficient affidavit of defense.

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

      Samuel Galt Birnie, with him Louis Strousse, for appellant.

      Joseph S. Goodbread, for appellee.
   Per Curiam,

To entitle a plaintiff to judgment for want of an affidavit of defense, or for want of a sufficient affidavit of defense, the statement of his demand, under the Act of May 25, 1887, P. L. 271, must set forth in clear and concise terms a good cause of action, by which is meant such averments of fact as, if not controverted, would entitle him to a verdict for the amount of his claim: Chestnut Street Nat. Bank v. Ellis, 161 Pa. 241; Bill Posting Sign Co. v. Jermon, 27 Pa. Superior Ct. 171; Tourison v. Engard, 30 Pa. Superior Ct. 179; Rosenblum v. Stolzenberg, 36 Pa. Superior Ct. 644. Therefore, upon the hearing of the rule for judgment in the present case, the sufficiency of the statement of claim was open to inquiry; particularly, as its insufficiency was distinctly asserted in the affidavit of defense. This is abundantly shown by the cases above cited and many others to the same effect. A statement of claim which simply alleges that the defendant was on a certain day "indebted to the plaintiff for money loaned and for work and labor done and materials furnished by the plaintiff to the defendant in the sum of $470,” would, without more, be insufficient. It is not such a clear and concise statement of the plaintiff’s demand as the act of 1887 contempates. Nor is such a statement helped out by an averment that in his deposition, filed in another suit between the same parties, the defendant admitted that he was indebted to the plaintiff in that sum. Such admission would be evidence, but it did not in itself constitute a cause of action. The remainder of the statement of claim under consideration is evidently anticipatory of the defense, and for that reason is objectionable pleading. In general, it is safe in pleading in actions at law to go upon the principle that it is enough for each party to make out his own case or defense. If the statement of claim had otherwise been sufficient, the introduction of this anticipatory matter would not have been fatal. We refer to it simply as not constituting a cause of action and as not helping out the insufficient averment heretofore quoted. Even if it be conceded that the affidavit of defense is defective, the court was right in refusing judgment upon the ground of the insufficiency of the statement.

The appeal is dismissed at the costs of the appellant.


text:
    Heralds of Liberty v. Hurd, Appellant.

      Banks and banking — Checks—Presentation—Delay—Partnership.
    1. Where a check is issued by a partnership consisting of two members, and before the check is presented for payment one of the partners draws out the whole of the firm’s deposit, and the other subsequently settles with his partner without ascertaining whether the check had been paid, the latter cannot in a suit against him on the check, defend on the ground that there had been an undue delay in the presentation of the check.
    2. Such a delay is not that contemplated by the Act of May 16,1901, sec. 186, P. L. 194, which reads: “A check must be presented for payment within a reasonable time after its issue, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay."
    Argued Oct. 21, 1910.
    Appeal, No. 168, Oct. T., 1910, by George M. Hurd, from order of C. P. No. 3, Phila. Co., Dec. T., 1909, No. 3,533, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Heralds of Liberty v. George M. Hurd et al., trading as Hurd, Baker & Company.
    Before Rice, P. J., Henderson, Morrison, Orlad y, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit on a check.
    George M. Hurd filed the following affidavit of defense:
    “Deponent acknowledges that on or about the Eleventh day of April, a. d. 1908, he was in partnership with one George I. Baker, trading under the name or style of Hurd, Baker & Company, and that on or about that date a check was drawn by their firm to the order of the plain-, tiff, as set forth in plaintiff’s statement of demand.
    “Deponent, however, avers and says that instead of depositing said check, as was- its obligation, the plaintiff held the same until some date unknown to your deponent, but subsequent to the thirty-first day of July, a. d. 1908 upon which latter date George I. Baker, deponent’s partner withdrew from the Colonial Trust Company, upon-which said check was drawn, the sum of Three Hundred and Seventy-one Dollars and fifty eight cents ($371.58), belonging to the said co-partnership, and its entire balance therein.
    “That deponent believing said check had been paid, subsequently dissolved the partnership existing between himself and the said Baker, and made and concluded a final settlement with the said Baker, based upon the understanding and assumption that said check had been paid.
    “That your deponent is advised that on account of the neglect of the plaintiff in presenting said check for payment within a reasonable time after it had been made and delivered, that he is relieved from any liability thereon, especially in view of the fact that he has already paid his proportion thereof in an adjustment of the partnership accounts between himself and the said Baker, after the said thirty-first day of July, A. d. 1908.”
    November 21, 1910:
    The court made absolute a rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Chas. S. Wood, for appellant.

      George J. Edwards, Jr., for appellee.
   Per Curiam,

This was an action upon a check, given by the firm of which the appellant was a partner, for money loaned by the plaintiff to the firm. The appellant relies for his defense upon sec. 186 of the negotiable instruments law (Act of May 16, 1901, P. L. 194), which reads: “A check must be presented for payment within a reasonable time after its issue, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.” This is declaratory of the existing law. The difficulty in the way of its application to the case in hand, is that the efficient cause of the plaintiff’s loss (if it can be said that he suffered any) was not the delay in presenting the check, but the drawing of the money out of the bank by his copartner, and the appellant’s joining in the dissolution of the partnership and settling with his partner without ascertaining whether the check had been paid. In these circumstances the delay would not have constituted a defense prior to the act of 1901 (see Fleming v. Denny, 2 Phila. Ill), and does not constitute a defense since that act. This conclusion is well supported by the opinion of the learned judge below, and we need not add anything further to what he has said.

The judgment is affirmed.


author: Rice, P. J.,

text:
    Haller’s Case.
    November 21, 1910:

      Appeals — Quashing appeals — Auditor’s report — Exceptions—Petition for rehearing.

    1. Where exceptions to an auditor’s report are dismissed, and the losing party, without taking an appeal, petitions for a rehearing a decree dismissing such petition is not reviewable on appeal. The pending of such a petition for rehearing does not extend the time for appeal.
    2. Even though the petition for a rehearing should be treated as a petition for a bill of review, the party losing has no standing to appeal unless he shows that his application was founded either on error in law apparent on the record without the aid of extrinsic evidence, or on matters of fact dehors the record, which had arisen or been newly discovered since the decree, and could not, by the exercise of reasonable diligence have been discovered before.
    Argued Oct. 25, 1910.
    Appeal, No. 60, Oct. T., 1910, by E. H. Flick, assignee of Fred Haller, from decree of C. P. Blair Co., June T., 1897, No. 51, dismissing petition for a rehearing, In re Assignment of Fred Haller.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Appeal quashed.
    Petition for rehearing. Before Shull, P. J., specially presiding.
    The petition of the Superior Court states the case.

      Error assigned was decree dismissing the petition for a rehearing.

      W. C. Fletcher, with him E. H. Flick, for appellant.

      R. A. Henderson, with him Thos. H. Greevy and E. G. Brotherlin, for appellees.
   Opinion by

Rice, P. J.,

The appellant, as assignee for the benefit of creditors, filed his first and partial account on November 22, 1893, and on January 10, 1894, an auditor was appointed to pass on the exceptions thereto and make distribution. His report was filed on August 9, 1897, exceptions were filed thereto, and on January 10,1898, the court overruled the exceptions and confirmed the report. On January 26 of the same year, upon the petition of the accountant, the court granted a rule to show cause why a rehearing should not be had, which rule, the docket entries show, was argued on May 5, 1898, and marked c. a. v. The rule remained undisposed of at the death of Judge Bell, before whom it was argued, and in 1910 was re-argued before Judge Shull, specially presiding, who, on March 11 of the same year, made an order accompanied by an opinion denying a rehearing and reducing the surcharge from $1,000 to $912.40. This appeal was taken a few days later. The exceptions to the account, the exceptions to the auditor’s report and the petition for rehearing are not printed in the appellant’s paper-book, but we gather from the argument of his counsel, and the informal assignments of error, that the chief matter in respect of which he complains, is that the auditor surcharged him with the value of certain personal property which the auditor found was lost by his negligence in selling and delivering possession of the same, without receiving the consideration or taking security therefor, and in not taking prompt measures to recover the same when the vendee failed to comply with the terms of sale. The facts found by, the auditor are supported by evidence which fairly warranted the surcharge upon the principle of McKesson’s Est., 142 Pa. 538; Swoyer’s App., 5 Pa. 377, and other cases. And if the case were properly before us for review, as if an appeal had been taken in due season from the original decree, the familiar rule would be applicable and controlling that an auditor’s findings of fact, which have been approved by the court, will not be disturbed on appeal except for manifest error. But we think the case is not properly before us for review upon its merits. Treating the appellant’s application below as an application for rehearing only, it was addressed to the sound discretion of the court below, and the action of the court in refusing it is not reviewable on appeal: Roddy’s App., 99 Pa. 9. His remedy was by appeal from the original decree confirming the auditor’s report, and he could not extend the time for taking such appeal by applying for and obtaining a rule to show cause why a rehearing should not be had: Keim’s App., 27 Pa. 42; Miller’s Est., 159 Pa. 575; Barlott v. Forney, 187 Pa. 301; Frazier’s Est., 7 Pa. Superior Ct. 473; s. c., 188 Pa. 415; Sherwood’s Est., 206 Pa. 465; Winter Avenue, 23 Pa. Superior Ct. 353; Groff v. City Saving Fund & Trust Co., 38 Pa. Superior Ct. 567. It is only by treating the petition as a bill of review, that the assignee could have any standing in this court. As a general rule a bill of review must be founded either on error in law apparent on the record, without the aid of extrinsic evidence, or on matters of fact dehors the record, which have arisen or been newly discovered since the decree, and could not, by the exercise of reasonable diligence, have been discovered before: Roddy’s App., 99 Pa. 9. And it is well to notice that in Sherwood’s Est., 206 Pa. 465, it was held that the statutory period for appeal cannot be enlarged by a bill of review to correct an error of law which might have been the subject of appeal from the decree on the original account. But here there was no error upon the face of the record, unless it was the clerical mistake of the auditor, and that has been corrected. There was no suggestion, so far as we are informed, that the accountant desired a rehearing for the purpose of presenting newly discovered evidence. The purpose of the application was evidently to obtain a reconsideration of the case upon the evidence already in, and as the authorities above cited abundantly show the pendency of such an application, does not en-tend the time for appeal. For the reasons above suggested, without adverting to others assigned in the appellee’s motion, the appeal must be quashed.

The appeal is quashed at the costs of the appellant.


text:
    McTamany’s Estate.

      Decedent’s estates — Claims for services — Boarding and nursing — Declarations — Evidence.
    A claim for board and nursing a decedent will be sustained against such decedent’s estate where competent witnesses testify positively and without contradiction to declarations made by the decedent that such services were to be paid for, although the rate of compensation was not fixed.
    Argued Oct. 25, 1910.
    Appeal, No. 80, Oct. T., 1910, by Catharine McCool, from decree of O. C. Blair Co., No. 78, 1910, sustaining exceptions to auditor’s report in Estate of Sarah McTamany, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to report of C. J. McCullough, Esq., rejecting claims of William J. Maher and wife and Thomas Monahan and wife for services rendered in boarding and nursing decedent.
    Shull, P. J., specially presiding filed an opinion, the material portion of which was as follows:
    1. That decedent was about seventy years of age; that her left hand had been crippled for years; that she was afflicted with heart disease, and that she' suffered from a superficial or supperating cancer in her left side, incapacitating her from employment, and rendering her unpleasant to attend, by reason of the obnoxious disease.
    2. That there was washing done, care,’ nursing and attention rendered and boarding furnished by claimants to decedent for several years immediately preceding her decease, and for which she said she would pay, and had at the time means with which to pay.
    3. That the claimants were not related to her by blood or marriage.

      These facts are established by disinterested witnesses, whose testimony stood before the auditor unquestioned, unimpeached and uncontradicted. Let us refer briefly to this testimony. Miss Monahan testifies that about a year before decedent left, when she came there the last time, she stated to her mother that.“the money that she had laid away, she wanted to pay Mamma for her trouble, as she was a great deal of trouble.” Paul testifies that in presence of his father and mother decedent said: “She wanted the money she put away to pay mother.” Mrs. Anthony McNellis testifies that in her presence and that of Mrs. Maher, the last time she came to the home, decedent said “she would come there and intended to pay for all her trouble.” These are in part corroborated by Mrs. Cook and the physician. The latter said he expected nothing when he attended decedent, but his claim was allowed without objection on less tenable grounds than that of these claimants. He further testifies to the obnoxious character of the disease with which decedent was afflicted, and that the services were actually rendered by these claimants, and that it was fully worth the amount sought to be recovered. He is also corroborated by other witnesses on the matter of the actual services rendered and the character of such attendance. But it is urged by the zealous counsel who is objecting to the claims, in face of this testimony, that it is not positive evidence, and that conceding the service rendered, it was done through a spirit of friendship and charity and not under a contract, which seems likewise to be the conclusion which moved the mind of the auditor. Admitting that both of these elements may have inspired these Samaritans to take her in and to care for her, it is not in contravention of their right to compensation. Assuredly one not moved with compassion, who possessed neither friendship nor the spirit of charity, would take into their home an invalid afflicted with such a loathsome disease. It would require more than the savings of a servant to allure one to take upon themselves such a charge. They would necessarily feel that all she had would be a miserable recompense or afford a paltry compensation for such service. If she had but little, they should be entitled to receive; if she had much, they should receive from it fair remuneration. The mere fact that she did not say how much she would pay, only that she would pay, and that they may have had no knowledge whether she had much, little or nothing should not deprive them of their rights to entire or partial recompense when she said she would pay.
    “The laborer is worthy of his hire,” and the performance of services which have been accepted raises an implied promise on the part of one who receives such service to compensate: Griffith’s Est., 147 Pa. 274. “Implied contracts are such as reason and justice dictate, and which the law presumes from the relations and circumstances of the parties. Nothing is better settled than that the performance and receipt of services or the furnishing of board, raises an implied assumpsit by the one who receives to compensate the other.” The exception to this rule is where members of a family render services to each other, and no action will lie in the absence of an express contract: Douglas’s App., 82 Pa. 169. “A contract to pay for services or boarding may be express and binding without all of the terms being defined. The gist is an actual agreement to pay, and if the sum be not expressed it will be implied to be the value: ” Miller’s App., 100 Pa. 568.
    The case at bar is not one of the class of cases where boarding was furnished and services rendered in expectation of a legacy by a nephew, and, upon the failure of the legacy, an attempt to recover on a quantum meruit, as in Weaver’s Est., 182 Pa. 349; or, where the presumption of payment periodically from the custom in domestic services arises, as, under the English cases, and now en-grafted upon our laws in a long line of decisions: Coulston’s Est., 161 Pa. 151. In this latter case the claimant was a servant, “a maid of all work,” and it was held to be entirely incredible that, having no other means of support than her wages, and the person amply able to pay, that such wages would remain unpaid for three and one-half years.
    The trend of authorities are to the effect that stale claims are viewed by the courts with suspicion and scrutinized with care: Mueller’s Est., 159 Pa. 590; and that the burden of proof is upon the claimant to legally establish the claim: Heffner's Est., 134 Pa. 436;-and that in the absence of sufficient evidence there is a presumption of payment: McConnell’s App., 97 Pa. 31. But, while the door is closed against such claims, it is not barred against the entry of such as are here designated by the auditor as “meritorious and as a matter of equity and common decency the same should be allowed; that the services rendered are of such a character as to merit praise and compensation.” “A meritorious claim ought not to be defeated by application of any principle found necessary for the protection of estates of decedents from false demands:” Miller’s App., 100 Pa. 568. The facts here show that the decedent was ancient, infirm, decrepit and crabbed, lame in one hand, afflicted with what in the testimony is called a “superfluous cancer” (evidently meaning a superficial or perhaps a suppurating cancer), a most loathsome and obnoxious disease. Realizing evidently that her earthly career was almost ended, she seeks The home of her friends of bygone days, not as an object of charity entirely, for she had laid by from her meager earning against the evil hour. She said to Mrs. Cook that “she had the money to see her out and pay in her last days, whoever took care of her.” She goes to Mrs. Monahan, saying, I have laid away money to pay you for my trouble; and subsequently to Mrs. Maher says, I come intending to stay and pay for my trouble. Often she had shared their hospitality and been the recipient of kindnesses at their beneficent hands. Now she seeks them again when the shadows of night are falling. Realizing her needs, she goes to these tried and true friends, whom she knew would amply provide for her, minister to her wants and tenderly care for her in the last days, while her life was being sapped away with the dreaded disease, and says, “Take me in, I will pay for the trouble.” She does not seek the relative who is now seeking the estate. True, she did not say how much per day, week or month, nor whether at the end of week, month or year she would pay; nor that payment would be made in gold, silver, check, draft or by legacy. The implied contract says all this when death has sealed her lips and the law closes the mouths of the other party. The express contract established by evidence that is clear, full, fair, satisfactory and positive, uncontradicted and unimpeached, seems to warrant the court’s intervention, because it creates a contract under the law. There was an agreement to pay and in consideration thereof the services were performed and boarding furnished. It would seem to us a monstrous rule to require claimants to show constant demands, frequent promises and that payments were not made at the end of. each day, week or month.
    And, while it is true, there is no evidence of any demand having been made upon decedent in her lifetime, and the failure to make a demand is always a circumstance to which much importance attaches, nevertheless, “a failure to make a demand will not always have the effect of negativing the idea of contract:” Cummiskey’s Est., 18 Pa. Dist. Rep. 43.
    And now, March 11, 1910, exceptions to the report of the auditor are sustained, and the conclusions of law are reversed. The claims are allowed to participate pro rata in the fund distributed by the auditor to the heir of decedent. To which ruling exception is noted and bill sealed.

      Error assigned was decree sustaining exceptions to auditor’s report.

      J. F. Sullivan, for appellant.

      Thos. C. Hare, with him Thos. H. Greevy and E. G. Brotherlin, for appellees.

      November 21, 1910:
   Per Curiam,

The claims of the appellees did not rest only on the fact that the claimants had rendered valuable services, and a bare inference therefrom that these were not intended to be gratuitous, or upon mere declarations of the decedent made in their absence, but they have the support of evidence of declarations made in their presence and to them, which fairly implied the expression on her part of an intention that they should be compensated. Viewing the testimony as a whole, it was amply sufficient to sustain the conclusion reached by the learned judge specially presiding, that the services were rendered on the basis of an express contract, although the rate of. compensation was not fixed. This is well shown in his opinion, which, after full consideration of the evidence, we think adequately discusses and correctly disposes of the questions of fact and law involved.

The decree is affirmed at the costs of the appellant.


author: Henderson, J.,

text:
    Spencer v. Conrad, Appellant.

      Appeals — Assignments of error — Nonsuit.
    1. The refusal of a compulsory nonsuit is not assignable for error.

      Contract — Sale—Delivery—Evidence—Question for jury.

    2. Where 3,000 mine ties have been seized and sold in execution, and an action is brought against the constable for a wrongful seizure and sale, and in such action the plaintiff claims that he had purchased the ties from the defendant in the execution, and shows that at the time of the levy he was in actual possession of them at a railroad siding, and was engaged in loading them on to cars, the question whether there had been such a delivery of the ties in pursuance of the sale as the nature and circumstances of the case admitted, is a question for the jury.
    Argued Oct. 26, 1910.
    Appeal, No. 106, Oct. T., 1910, by defendant, from judgment of C. P. Huntingdon Co., Sept. T., 1909, No. 9, on verdict for plaintiff in case of E. F. Spencer v. W. S. Conrad.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass for an alleged wrongful levy and sale of mine ties. Before Woods, P. J.
    The court charged in part as follows:
    This is an action of trespass brought by E. F. Spencer against W. S. Conrad, to recover the value of a certain lot of mine ties, which the plaintiff alleges belong to him, and which the defendant, being a constable, sold by reason of an attachment and execution which came into his hands sometime during the month of October, 1908.
    The evidence on the part of the plaintiff is to the effect that as Mr. Spencer testified, he purchased about 2,860 ties from one Mr. Frank Fritchey, and that he started, shortly after purchasing them to load these ties and ship them away. That at that time, or about the time he was loading the ties, the constable, this defendant, came with the attachment and attached these ties. That he about that time paid this attachment to one Mr. White. That subsequent to this another attachment was issued by Mr. Hetrick and that the constable upon that attachment proceeded and sold the ties and obtained the money for the value of the ties.
    The defendant testified that the plaintiff did not buy these ties, that it was simply an arrangement between Mr. Fritchey and the plaintiff, to keep the laborers of Fritchey who were on this job from being paid their proper wages and that he took possession of this property for the purpose of getting the money and applying it to his debt and then the balance to Fritchey. This is the contention on the part of the defendant. You will remember the evidence on this, as on all branches of the case.
    Mr. Spencer testified that he had in the ties $86.30 for his labor, that he paid the attachment of Mr. White, $25.00, and that he then accepted an order of Mr. Robinson’s of $40.00, and therefore he had $151 and some cents in it.
    November 21, 1910:
    [Gentlemen of the jury, if you believe there was a bona fide sale, a sale without any fraud on the part of Mr. Spencer, then he would be entitled to recover the value of the ties, which according to the evidence is six cents apiece, and would be $171.60. If you believe the evidence on the part of the plaintiff, that this plaintiff purchased the ties and took possession of them before this attachment of Hetrick’s had been issued upon which the ties were sold by the constable, then the plaintiff would be entitled to recover the value of these ties, which would be as I have said, $171.60 with interest from October 1, 1908. That would be your verdict if you believe, as I said that the sale was made and possession of the ties was taken by the plaintiff] [2], then your verdict would be, we find for the plaintiff in the sum of blank money, whatever it would be, $171.60, and then upon that you would calculate interest from October 1, 1908, up to this time, and that would be your verdict. Calculate the interest from October 21, if you find the contention of the plaintiff to be correct.
    [If on the other hand, you find there was no sale made, no good sale made, then your verdict should be, we find for the defendant.] [3]

      Errors assigned were (1) refusal of compulsory nonsuit; (2, 3) above instructions, quoting them.

      Harry W. Petrikin, for appellant.

      Thos. F. Bailey, for appellee.
   Opinion by

Henderson, J.,

This action involved the title to a lot of mine ties. The ties were manufactured by Frank Fritchey who became indebted to numerous persons, among whom were John Hetrick and the plaintiff. Hetrick obtained a judgment against Fritchey from a justice of the peace pursuant to an attachment and issued an execution which was placed in the hands of the defendant, a constable. A levy was made on the ties by virtue of that execution and immediately thereafter the plaintiff gave notice to the constable that the property belonged to him; whereupon, the constable, having been indemnified, sold the ties in due time. This action was brought to recover damages for the alleged trespass. The first assignment is to the refusal of the court to grant a compulsory nonsuit and the second and third are to portions of the charge of the court. No requests were made for special instructions. The refusal of the compulsory nonsuit is not assignable for error: Crawford et al. v. McKinney, 165 Pa. 605; Morgan v. Duquesne Boro., 29 Pa. Superior Ct. 100; and that assignment need not be considered. The portions of the charge, covered by the second and third assignments, submitted to the jury the question of the bona fides of the sale of the property by Fritchey to the plaintiff and clearly and properly presented the issue of fact which the evidence disclosed. The property seized by the constable was at a railroad siding and the plaintiff was there in charge of it at the time of the seizure. Fritchey was not there. The plaintiff served notice that the property belonged to him and as he was in apparent possession and asserting title the question of delivery was one of fact to be considered and determined by the jury. The character and location of the property, the relation of the plaintiff to it at the time of the levy and the circumstances attending the alleged sale could not have been disposed of by the court. There were nearly 3,000 ties. They could not be conveniently removed. They were at a place suitable for transfer to cars and the plaintiff was there actually loading them into a car when they were attached. Whether there was such a change of possession as the nature and circumstances of the case admitted of was properly submitted by the court to the jury and this was done in a clear and impartial charge. If the defendant desired more specific instructions on the subject the court should have been requested to charge the jury more fully on the point. The evidence supports the verdict and we do not see anything in the case which would justify a reversal of the judgment.

The judgment is affirmed.


text:
    Lytle v. Rupert, Appellant.

      Appeals — Quashing appeal — Auditor’s report — General exceptions— Evidence — Rulings on evidence.

    1. Where the court of common pleas overrules exceptions to the report of an auditor appointed to pass upon the accounts of a township auditor, a general exception to such order of the court is not sufficient to bring up the whole case for review upon the evidence; nor is it sufficient to bring upon the record for purposes of review on appeal the rulings of the auditor rejecting offers of evidence.
    2. It is incumbent on a party making an offer of evidence to make it sufficiently broad and sufficiently explicit to enable the appellate court in case of its rejection to determine whether the ruling injured him or not.
    Argued Oct. 27, 1910.
    Appeal, No. 227, Oct. T., 1910, by defendant, from order of C. P. Huntingdon Co., May T., 1907, No. 27, overruling exceptions to auditor’s report in case of W. S. Lytle v. John H. Rupert.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Appeal quashed.
    Exceptions to auditor’s report.
    The record showed the following decree:
    And now, September 3, 1910, the exceptions to the auditor’s report are overruled and the report is confirmed.
    And now September 20, 1910, on motion of Samuel I. Spyker, Esq., attorney for supervisors and Rupert, tax collector, an exception is granted to the foregoing decree and bill sealed. •

      Errors assigned were in the following form:
    1. The auditor erred in refusing to admit the testimony of John H. Rupert, together with his road tax duplicate for 1906.
    2. The auditor erred in refusing to admit the testimony of John H. Rupert, together with his road tax duplicate for 1907.
    3. The auditor erred in refusing to admit the testimony of John H. Rupert, together with his road tax duplicate for 1908.
    4. The auditor erred in refusing the following offer: “By Mr. Spyker. We offer petition in evidence for the purpose of informing the master of the wishes and desire of a great majority of the citizens and taxpayers of Henderson township, showing that the appeal, as before the auditors, was taken for personal reasons rather than for the good of the township. That the controversy which arose and out of which No. 10, September Sessions, 1908, resulted, was a personal controversy, and not for the benefit of .the township of Henderson, and that the auditors and supervisors of the township of Henderson had, in a settlement as of March 6, 1909, exercised proper discretion under the law, in.allowing the order for $51.00 for the purpose of paying the costs and expenses incident to No. 10, September Sessions, 1908. All of this going to the question of discretion as exercised by officials of Henderson township.”
    5. The auditor erred in surcharging John H. Rupert, collector of road taxes of Henderson township, with the sum of $188.43.
    6. The court erred in overruling the exceptions to and affirming the auditor’s report by its decree of September 3,1910.

      Samuel I. Spyker, with him H. W. Petrikin, for appellant.

      ■Thos. F. Bailey, for appellee.

      November 21, 1910:
   Per Curiam,

This case came into the court below by appeal of a resident taxpayer from the audit of the accounts of township auditors for the year ending March 6, 1909. Upon application of counsel for both parties, the court framed an issue for the determination of several questions, and amongst them, whether John H. Rupert, tax collector, should be surcharged with the sum of about $160, or any part thereof, and directed the case to be tried without further pleadings. Subsequently, the court referred the case to an auditor "to determine the matters involved and make a report to the court.” This mode of procedure seems to have been acquiesced in without objection by either party, and as its regularity is not now questioned, we need pass no opinion on it. After hearing, the auditor made a report in which he restated the account, found a balance due the township from this appellant of $160.89, and surcharged him with this amount together with $27.54, one-half the costs of the proceeding before the auditor. After hearing, the court overruled the exceptions and confirmed the report, and to that decree the court, at the request of the appellant, granted an exception and sealed a bill. This was the only exception taken or asked for to the action of the court, and under the authority of Dun-more Borough School District v. Wahlers, 28 Pa. Superior Ct. 35; Berks County v. Linderman, 30 Pa. Superior Ct. 119, and Devlin's Case, 39 Pa. Superior Ct. 311, a general exception to the decree of the court is not sufficient to bring up the whole case for review upon the evidence. See also Mifflin Township Poor District v. Schuylkill County Poor District, 37 Pa. Superior Ct. 611. It follows that the fifth and sixth assignments of error need not be considered. We are of opinion also that the exception was not sufficient to bring upon the record, for purposes of review here, the rulings of the auditor rejecting certain offers of evidence alluded to in the other assignments of error. But even if it were, the fourth assignment must be overruled, because it was clearly incompetent and improper to introduce the petition of certain citizens and taxpayers to show their wishes regarding the matter then under judicial investigation. As to the other three assignments, it is sufficient to say that, if the tax duplicates of preceding years had any relevancy in the determination of the balance due from the collector upon an audit of his account for the year of 1909, it does not appear by the assignments of error or by the offers themselves as printed elsewhere in the paper-book. It is incumbent on the party making an offer to make it sufficiently broad and sufficiently explicit to enable the appellate court, in case of its rejection, to determine whether the ruling injured him or not: Feingold v. Katz, 43 Pa. Superior Ct. 333.

The motion of the appellee is allowed, and the appeal is quashed at the costs of the appellant.


author: Morrison, J.,

text:
    Commonwealth v. Edgar, Appellant.

      Husband and wife — Proceedings for nonsupport — Act of April IS, 18n7, P. L. 78 — Appeals—Evidence.
    1. On an appeal from the final order of the quarter sessions in a nonsupport proceeding against a husband and father under the Act of April 13, 1867, P. L. 78, the appellate court has no jurisdiction to review the merits of the case or the discretion of the court below. It can only consider the regularity of the proceedings as shown by the record proper.
    2. A proceeding under the Act of April 13, 1867, P. L. 78, may be instituted by a mother to secure an order for the support of her minor daughter, although the wife had previously secured a decree of divorce a mensa et thoro by which she received a weekly payment of alimony for her own support and maintenance without reference to the child.
    Argued Oct. 27, 1910.
    Appeal, No. 70, April T., 1911, by defendant, from order of Q. S. Allegheny Co., May T., 1910, No. 316, awarding a weekly payment in nonsupport proceedings in case of Commonwealth v. George S. Edgar.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.

      November 21, 1910:
    Petition by Lottie E. Edgar, wife of defendant, to compel him to contribute to the support of his daughter, Lottie Edgar, twelve years old. Before Haymaker, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of support.

      E. L. Kearns, for appellant.
    It is my contention that the court of common pleas No. 2 of Allegheny county is the proper place to have the alimony increased and the allowance of the wife and child adjudicated: Heilbron v. Heilbron, 158 Pa. 297; Nogic v. Nogic, 25 Pa. C. C. Rep. 397.
    Under the acts of 1812 and 1836, the complaint must be by the guardians of the poor, and not by a private individual, or by the wife, to enforce support on desertion proceedings: Com. v. Nathans, 2 Pa. 138; Worrell’s Case, 61 Pa. 105; Com. v. Hill, 2 Browne, 212.
    A formal deed of separation is a bar to a proceeding' under the Act of April 13, 1867, P. L. 78: Com. v. Richards, 131 Pa. 209.

      John Marrón, of Marrón & McGirr, for appellee.
    The appellate court can reconsider no question of fact passed upon by the court below: Com. v. Smith, 13 Pa. Superior Ct. 558; Barnes’s App., 2 Penny. 506; Com. v. James, 142 Pa. 32; Com. v. Tragle, 4 Pa. Superior Ct. 159; Com. v. Hart, 12 Pa. Superior Ct. 605; Com. v. Rogers, 15 Pa Superior Ct. 461; Com. v. Mills, 26 Pa. Superior Ct. 549.
   Opinion by

Morrison, J.,

On an appeal from the final order of the quarter sessions in a case under the Act of April 13, 1867, P. L. 78, this court has no jurisdiction to review the merits of the case or the' discretion of the court below. We can only consider the regularity of the proceedings as shown by the record proper. This has been decided so often that it ought no longer to be necessary to repeat it: Com. v. Smith, 200 Pa. 363; Com. v. Mills, 26 Pa. Superior Ct. 549. In such a case the appellate court can reconsider no question of fact passed upon by the court below: Com. v. Smith, 13 Pa. Superior Ct. 358. An appeal under the Act of May 9, 1889, P. L. 158, operates only as a common law certiorari, whereon the regularity of the proceedings alone, may be examined: Com. v. James, 142 Pa. 32.

The assignments of error and the argument of the learned counsel for the appellant indicate that he overlooked the principles of law enunciated in the cases above cited. In the present case the complaint was made by the wife against the defendant, her husband, on May 5,1910, charging that he had refused to contribute to the support of his daughter, Lottie Edgar, aged about twelve years, and that she had no visible means of support. The defendant was arrested and held to answer at the next term of the court of quarter sessions and on May 28, 1910, at a session of said court in Allegheny county, a hearing was had on the complaint aforesaid by one of the judges of said court, and subsequently, on August 23, 1910, defendant was ordered to pay $3.50 per week and give bond with surety in the sum of $300, conditioned that he comply with this order, and the defendant gave this bond, and then appealed to this court. The record shows a regular and orderly hearing according to the statute giving jurisdiction to the court in this character of complaints. The act of 1867 is entitled, “An Act for the relief of wives and children deserted by their husbands and fathers within this commonwealth.” Approved April 13, 1867, P. L. 78. Assuming it to be necessary for the court below to find that the defendant had in the language of the act, “separated himself from his wife, or from his children, or from wife and children, without reasonable cause, or shall neglect to maintain his wife or children,” etc., we are bound to assume that the court below found the necessary facts in that respect because the evidence is not before us, and as we have seen we are not at liberty to review the facts. In the present case it is conceded that the defendant is the father of the child and that he had separated himself from his wife and child and has not been supporting the latter, unless her support was provided for in a decree made in the common pleas of Allegheny county at No. 293, July Term, 1900, in the case of Lottie P. Edgar against the defendant for a divorce a mensa et thoro, where a decree was made requiring the husband to pay his wife $25.00 per week alimony. If we look at the opinion of the court in the present case we find that the counsel contended below that said decree included the maintenance of this child. The counsel also contended that the quarter sessions had no jurisdiction of the present case on account of said proceeding in the common pleas. This contention overlooks the fact that the decree in the common pleas only provided alimony for the wife and nothing is said therein in regard to the maintenance of the child. We quote from that decree: "And it is further ordered, adjudged and decreed that the respondent pay to the libelant the annual sum of $1,300 from the date of this decree and until the further order of this court, in weekly payments of $25, for her support and maintenance. ...” It appears that no reference is made to the daughter in the decree, and the court below felt bound to presume that it was made in the interest of the libelant alone, as it says, "for her support and maintenance.” The court held that the burden was on the defendant to establish that the decree included support of the daughter, and that the defendant failed to establish that fact. It cannot be doubted if this were a proceeding in the quarter sessions by the wife to obtain an order for her support, in view of the common pleas case above referred to, the jurisdiction would be in the latter court: Heilbron v. Heilbron, 158 Pa. 297. But the case in hand is for the support of the child alone and it makes no difference that the complaint was made by the wife and mother who had obtained a divorce a mensa et thoro with alimony as that proceeding in no way ousts the jurisdiction of the quarter sessions, to compel a father to support his child. This child was not a party and she could not be legally affected by the divorce proceeding between the parents in the common pleas. We think the appellant has entirely failed to sustain his assignment of error that the court of quarter sessions of the peace had no jurisdiction.

It is unnecessary to discuss the other assignments of error, because they would require us to review the evidence, the findings of fact and the discretion of the court below; this, as we have seen, the appeal, which is a substitute for a common-law certiorari, gives us no power to do.

No irregularity, error or want of jurisdiction appears in the record, and the order of the court below is affirmed at the costs of the appellant.


text:
    Chambersburg Borough School District, Appellant, v. Guilford Township School District.

      School law — Division of districts — Taxes—Acts of April 11, 1862, P. L. 471, and April 8, 1908, P. L. 148.

    Where a portion of a school district is detached from a township and added to a borough, and after the current tax year the township school district collects the school taxes from the detached district, the school district of the borough cannot in a proceeding in the Quarter Sessions under the Act of April 3, 1903, P. L. 142, collect from the school district of the township the taxes thus collected, although the township school district had in law no authority to collect them.
    Argued Oct. 18, 1910.
    Appeal, No. 219, Oct. T., 1910, by defendant, from order of Q. S. Franklin Co., Miscellaneous Record, page 78, dismissing petition for equalization in case of Chambersburg Borough School District v. Guilford Township School District.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Petition for equalization.
    Gillan, P. J., filed the following opinion:
    The school district of the borough of Chambersburg presented to the court a petition setting forth, among other things, that by a proper legal proceeding the school district of said borough was enlarged by attaching thereto a portion of the township of Guilford, and asking the court to determine, on hearing, whether an undue proportion of the real estate and schoolhouses belonging to the old district are within the bounds of the enlarged district, the borough of Chambersburg, and if so, how much money should be paid therefor by the school district of the borough of Chambersburg, the enlarged district, to the school district of the township of Guilford, the old district, and if any money be on hand or debts unpaid or any taxes or other claims uncollected, after the settlement of all such accounts.prior thereto, to divide the said money or debts between the said districts in such proportions, and to make such order as to uncollected taxes and other claims as shall be just, and to enter in the nature of a judgment any sum thus decreed to be due by the within named district to the other, or to any individual, in accordance with the Acts of assembly approved April 3, 1903, P. L. 142, and of April 11, 1862, sec. 10, P. L. 471. On this petition a rule was granted on Guilford township to show cause why an examiner should not be appointed, and the examiner finally was appointed; from the testimony taken we find the facts to be as follows:
    1. The school district of the borough of Chambersburg and that of the township of Guilford, both in the county of Franklin, adjoin.
    By an ordinance of the town council of the borough of Chambersburg, duly passed and approved November 6, 1907, a certain portion of the township of Guilford was transferred to and incorporated in the borough of Chambersburg. A certified copy of said ordinance was filed in the office of the clerk of the court of quarter sessions of Franklin county on November 11, 1907, to which was appended by leave of the court the certificate of the then clerk of the said town council on May 11, 1906.
    2. In the late fall of 1907 A. J. Heintzelman, the assessor for Guilford township, assessed the property and taxables subject to taxation in the said township, for the purpose of taxation for the year 1908, and returned such assessment to the office of the county commissioners.
    3. On or about June 1, 1908, the county commissioners delivered to the proper authorities of the township of Guilford school district a true and correct copy of such assessment so far as the property and taxables therein contained were subject to taxation for school purposes. Such copy, so delivered, contained the assessment of the property and taxables situate and resident in that portion of the township of Guilford transferred to the borough of Chambersburg pursuant to the ordinance of November 6,
    1907, without any separation or designation whereby such property and taxables could be distinguished from the property and taxables situate and resident in that portion of the township of Guilford not so transferred.
    4. Upon such copy of the assessment so delivered the board of school directors of the township of Guilford levied a tax of four mills for school purposes on June 1,
    1908, and upon the basis of such levy caused to be made out and delivered by the proper officer to E. S. Skelly, collector of taxes for the said township, a duplicate of such taxes so levied, with warrant attached, for the collection thereof.
    5. Pursuant to said duplicate and the warrant attached, E. S. Skelly demanded as school taxes and collected as school taxes from property situate and taxables resident in that portion of Guilford township transferred to the borough of Chambersburg,'pursuant to the ordinance of November 6,1907, the sum of $1,051.68, which amount the collector paid over to the treasurer of the school district of Guilford township as school taxes, and took his receipt therefor.
    6. In addition to the taxes so collected, there were upon the duplicate so delivered to the collector, collectible taxes payable by property situate and taxables resident in that portion of the township of Guilford transferred to the borough of Chambersburg, pursuant to the ordinance of November 6, 1907, to the amount of $11.20, which said collector neglected and failed to collect.
    7. For the school year commencing June 1, 1908, the school district of the borough of Chambersburg provided school facilities for such children as were then resident in that portion of the township of Guilford transferred to the borough of Chambersburg, as within stated, and the children so resident attended the schools of the said borough, except such as voluntarily attended the township schools.
    8. This proceeding was instituted by the school district of the borough of Chambersburg, by petition presented to the court of quarter sessions of the county of Franklin, on February 2, 1909, pursuant to the provisions of the Acts of assembly of the commonwealth of Pennsylvania, approved April 3, 1903, P. L. 142, and approved April 11, 1862, P. L. 471, 1 Stewart’s Pur. Dig. 662.
    9. It was agreed on the argument in this case, and is so stated on the written briefs submitted by counsel on both sides, that the ordinance attaching a part of Guilford township to the borough became final and conclusive May 11, 1908.
    10. There was not, on May 11, 1908, nor at the beginning of the school year, June 1, 1908, so far as the evidence discloses, any real estate or schoolhouses belonging to the old district of the township of Guilford within the bounds of the enlarged district of the borough of Chambersburg, nor was there any money on hand or debts unpaid, or any taxes or other claims uncollected; the taxes for the school year ending June 1, 1908, had all been collected. The taxes for the year beginning June 1, 1908, were laid on that day, that is to say, in the fall of 1907 the property of Guilford township had been valued by the assessor for the purposes of taxation by the school board for the year beginning June 1, 1908. This valuation of property was of all property in the township as then existing, and the same was certified to the school board by the county commissioners without regard to any division of the township, and on June 1, 1908, the school board of Guilford township, by resolution, fixed the mill rate which this property should pay.
    11. The evidence fails to show that any notice was given to the Guilford township school board that any part of the township had been detached therefrom.
    12. Although on June 1, 1908, and prior thereto, to wit, from May 11, 1908, the detached portion of Guilford township was a part of the school district of the borough of Chambersburg, thfe school district of Chambersburg did nothing whatever toward having the property in said portion placed on their tax lists; made no effort to assess or levy a tax on said property, or to collect a tax from the property holders.
    OPINION.
    This is a statutory proceeding; the statute gives us power and authority to do the things asked for by the petition. The petitioner has not, however, established any grievance provided for by the statute. The change in the territory took place, so far as it relates to the school district, on the first Monday of June, 1908, being the end of the school year next after the end of that in which the change had been decreed: Act of April 11, 1862, sec. 10, P. L. 471. On that day there was nothing to divide between the two districts; there was no money on hand, or debt unpaid, or taxes uncollected. The taxes which the Guilford township collector collected in the portion of the detached territory were not in existence until after the beginning of the school year of 1908, to wit, the first Monday of June, 1908. While the property had been valued for purposes of taxation before that time, that was the day the taxes came into being. The current year, that is, the year current with the changes in the lines of the district, had passed; nothing was left unsettled. The language of the act is:
    “If any money be on hand or debt unpaid or any taxes or other claims be uncollected after the settlement of all accounts for the Current year.” It is idle to say that this can refer to taxes which came into being after the year had closed and all accounts settled. It matters not that on the day this tax was levied the school authorities of Guilford township had no jurisdiction whatever in the premises. They had no more power to levy a tax against property in the detached territory than they had to levy a tax on property situate in a foreign land. It was the business of the school authorities of the borough of Charnbersburg to levy the tax on this property; to place the duplicate for the collection of it in the hands of their collector and collect it; the township of Guilford had no business with it.
    The statute under which this proceeding is had, however, gives us no power to order the township of Guilford to pay the money over to the petitioner, nor to enter a judgment against them for the amount; such a decree would be a mere nullity, wholly without authority. It is a most unfortunate condition of affairs. The petitioner having, however, sat supinely by and allowed the respondent to collect the money, cannot now invoke a statute wholly inapplicable. We do not say that the money cannot be collected; what we do say is, that the statute invoked has no application. The state might as well undertake to convict a man of murder in the court of common pleas as to invoke this statute to recover this money.
    It is contended by petitioner, and we quote from his written brief:
    “The only proposition of law in the case is that the respondents are now, by their acts and declarations at the time of the collection of these moneys, estopped from holding them to be other than ‘uncollected taxes.’ ” It is only necessary to say that there is not a single element of estoppel in the matter. It follows that we are wholly without jurisdiction.
    Petition dismissed.

      November 21, 1910:

      Error assigned was order dismissing the petition.

      William S. Hoerner, for appellant.

      Charles Walter and O. C. Bowers, with them Arthur W. Gillan, for appellee.
   Per Curiam,

The facts of this case are not in dispute, and are so clearly set forth in the findings and opinion of the learned judge of the quarter sessions as to render a restatement of them unnecessary. If that court had authority to compel the school district of the township of Guilford to pay the taxes in question to the school district of the borough of Chambersburg, it must be found in sec. 10 of the Act of April 11, 1862, P. L. 471, or the Act of April 3, 1903, P. L. 142. So far as the provisions of these statutes relate to the question presented on this appeal, they are identical, and the language of the particular provision, upon the construction of which the case turns, is as follows: “If any money be on hand or debt unpaid or any taxes or other claims be uncollected after the settlement of all account for the current year.” It may be that when the court has obtained jurisdiction under these acts, it is to proceed upon equitable principles in administering their provisions; but equitable principles cannot be invoked to extend the jurisdiction to matters not contemplated by the statute. Looking at the context, it is quite clear that the provisions, as to uncollected taxes, relate to taxes that were not collected at the end of the current year, that is, the school year in which, in the present case, the portion of the territory of the township was annexed to the borough. The legislature did not contemplate the possibility of directors of a school district levying taxes in the detached portion of the district in subsequent years, and made no provision for such case. And it is immaterial whether this was attempted the next year or a half dozen years after it ceased to be part of the district for every purpose. As pointed out in the opinion of the' learned judge, at that time “there was nothing to divide between the two districts; there was no money on hand, or debt unpaid, or taxes uncollected. The taxes which the Guilford township collector collected in the portion of the detached territory were not in existence until after the beginning of the school year of 1908, to wit, the first Monday of June, 1908. While the property had been valued for purposes of taxation before that time, that was the day ' the taxes came into being. The current year, that is, the year current with the changes in the lines of the district, had passed; nothing was left unsettled.” This, it seems to us, is a conclusive reason for holding that the court of quarter sessions had not jurisdiction under these statutes to enter judgment against the respondent district in favor of the petitioning district for the amount of taxes collected by the former in a subsequent year in territory not belonging to it. This is a statutory proceeding, and the ingenious argument of appellant's counsel has failed to convince us that the respondent district is estopped to deny that the taxes levied by it were “uncollected taxes” at the end of the current year in which the annexation of the territory in question to the borough of Chambers-burg became complete.

The decree is afiirmed at the costs of the appellant.