author: Reibek, P. J.,

text:
    Keown v. Patten.

      Landlord and tenant — Distraint—Jurisdiction, J. P. — Act of March 20, 1810 — Certiorari.
    1. In a proceeding before a justice of the peace by a tenant under the Act of March 20, 1810, § 20, 5 Sm. Laws, 161, 170, to establish a set-off against rent after a distress, the justice has no jurisdiction to enter any judgment, or to issue any process to enforce his decision. In such a case the justice simply notes his determination, but enters no judgment.
    2. Where, in such a case, the justice enters judgment and issues execution, a certiorari will not be quashed because it was not sued out within twenty days after judgment, as the judgment was void for want of jurisdiction.
    NOTE. — See Hilke v. Eisenkeis, 104 Pa. 514, and Fowler v. Eddy, 43 Legal Intell. 17.

      Certiorari to justice of the peace. C. P. Butler Co., June T., 1921, No. 50.

      E. H. Negley, for plaintiff; no appearance for defendant.
    July 15, 1921.
   Reibek, P. J.,

The plaintiff below was indebted to the defendant for rent amounting to $24, for which sum the defendant distrained the goods of the plaintiff. The plaintiff thereupon instituted proceedings before the justice of the peace under the provisions of the 20th section of the Act of March 20, 1810, 5 Sm. Laws, 161, 170, alleging that the defendant was indebted to him, and asking that he be allowed a set-off against the rent thus owed. The justice, after hearing the proofs and argument of counsel, on Oct. 25, 1920, entered judgment as follows: “No rent due on lease. Costs to be paid by defendant, Mary Keown, she to put new pump in the well.” On May 4, 1921, execution issued.

Under the provisions of said act of assembly, the justice is without power to enter any judgment, nor does it authorize him to issue any process to enforce his decision. See Thomas v. Pyle, 2 Pa. C. C. Reps. 258, where the question is fully discussed and cases cited.

It follows, therefore, that the justice was without jurisdiction. It is contended by defendant in error that the writ of certiorari must be quashed, for the reason that it was not sued out within twenty days after judgment, but [it was sued out] within twenty days after the execution to enforce the payment of costs, and, in our opinion, was lawful, as the judgment of the justice was void for want of jurisdiction to enter it: Pantall v. Dickey, 123 Pa. 431; Edwards v. Jeremy, 2 Kulp, 489; Edwards v. Fonk, 6 Dist. R. 505.

And now, July 15, 1921, specifications of error sustained and judgment set aside, at costs of defendant in error.

From James E. Marshall, Butler, Pa.


source: Caselaw Access Project

author: Shoemaker, J.,

license: Public Domain

text:
    Fields v. Philadelphia Rapid Transit Company.

      Res judicata — Judgment in Municipal Court for property damages bars subsequent action in Common Pleas for personal injuries.

    1. Where by a single tortious act of the defendant the plaintiff has suffered injury to his property and person, he must include both claims in the same suit.
    2. In Pennsylvania the cause of action has no relationship to the items of damage; it is the negligent act or acts which occasioned the injury.
    3. Based on the doctrine of res judicata, the former recovery can be invoked at any time without pleading.
    4. A judgment in the Municipal Court for damages to plaintiff’s horse, wagon and harness by defendant’s negligence is a bar to a subsequent action in Common Pleas against the same defendant for personal injuries caused by the same collision, although the first action was brought exclusively for property damages.
    Motion to take1 off non-suit. C. P. No. 1, Phila. Co., March T., 1919, No. 865.

      Eugene Raymond, for plaintiff; Layton Martin Schoch, for defendant.
    Nov. 12, 1921.
   Shoemaker, J.,

The plaintiff was driving a horse and wagon, owned by himself, when his team was struck by one of defendant’s cars at Island Road and Lyons Avenue on Jan. 4, 1918. In the collision he sustained injuries to his person as well as damage to the horse and wagon. He brought suit against the defendant in the Municipal Court of Philadelphia, at April Term, 1918, No. 125. By the statement of claim filed therein only the property damages to the horse and wagon were claimed for. By the defendant’s answer to said statement liability was denied in response to the averments of the statement. Neither in the statement of claim nor in the answer was any reference made to the injuries to his person which the plaintiff had sustained.

Said suit came for trial on May 4, 1918, and after the taking of testimony produced by both parties, the trial judge submitted the case to the jury in a charge in which no reference whatever was made to any personal injury sustained by the plaintiff, and by which the only items of damage submitted to the jury were the horse, $75, harness, $15, and wagon, $50. The verdict of the jury was in favor of the plaintiff for $140, upon which judgment was subsequently entered in plaintiff’s favor, and the amount of the same paid to him by the defendant.

After the above-mentioned judgment had been entered and paid, the plaintiff consulted his present attorney, who, at plaintiff’s instructions, began the present suit to recover for the personal injuries. By the pleadings in the case at bar, and the testimony at the trial, no claim was made for any property damage.

At the trial of the present case, however, on Oct. 4, 1921, the defendant, during the course of the direct examination of the plaintiff, interposed the defence of res judicata as a bar to any recovery; whereupon the plaintiff made the following admission of record;

“Counsel for plaintiff admits that there was a case of Zack Fields against the Philadelphia Rapid Transit Company in the Municipal Court of Philadelphia, Civil Division, April Term, 1918, No. 125, Room 401, before the Honorable William Gray Knowles, which action was brought by the plaintiff, by his attorney, DeWitt C. Robinson, Esq., exclusively for the recovery of damages sustained by his horse and wagon on Jan. 4, 1918, in the accident which is the subjcet of the present suit in this court, and that this suggestion and admission are to be without prejudice to the plaintiff’s rights in the case now on trial; in that trial in the Municipal Court there was a recovery by the plaintiff.” A non-suit was accordingly entered, which plaintiff has moved to take off.

The question of law before the court is thus stated by the plaintiff:

“Where by a single tortious act of the defendant the plaintiff has suffered injury to his property and person, must he include both claims in the same suit, or may he bring separate suits; one for the personal injuries, and another for the property damage? And does the circumstance that the earlier suit is brought and judgment recovered in a court of limited jurisdiction affect the question?”

In 1 Corpus Juris, page 1058, § 192, the proposition is thus stated:

“Different Kinds of Injury from Same Act. While an infringement of separate rights, although of the same person and by the same wrongful act, has been held to give rise to separate causes of action, a distinction is to be observed between causes of action and elements of damage, and a complaint is not to be regarded as stating different causes of action merely because it states distinct items or elements of damage which result from the same wrongful act. In the application of this rule there is a conflict of authority as to whether an injury to both person and property from the same wrongful act gives rise to different causes of action, as infringing distinct rights, or to" only one cause of action, with different elements of damage.”

The principal case on the subject is Brunsden v. Humphrey, 14 Q. B. D. 141 (1884), which reversed the judgment in the same case, reported in 11 Q. B. D. 712 (1883). Coleridge, in his dissenting opinion in 14 Q. B. D. 152, said: “That the injury done to the plaintiff is injury done to him at one and the same moment by one and the same act in respect of different rights, i. e., his person and his goods, I do not in the least deny; but it seems to me a subtlety not warranted by law to hold that a man cannot bring two actions if he is injured in his arm and leg, but can bring two if, besides his arm and leg being injured, his trousers, which contain his leg, and his coat sleeve, which contains his arm, have been torn.”

The decisions in America, following the decision in Brunsden v. Humphrey, rely on the theory that the suit is not based on the cause of the injury, but the damage which flows from it, and separate actions can be maintained for separate damage; that two separate kinds of injury were in fact inflicted, and, therefore, two wrongs done; that while the right árises from the negligence, it must be connected with an injury in order to permit the plaintiff to recover, and if no injury, no action; therefore, the action is determined by the damage.

In Pennsylvania the cause of action has no relationship to the item of damage; it is “the negligent act or acts which occasioned the injury:” Martin v. Pittsburgh Rys. Co., 227 Pa. 18; and in this State the law that a suit upon a contract cannot be split so that an amount or item due at the time of suit brought can afterwards be sued for, is well settled: Stradley v. Bath Portland Cement Co., 228 Pa. 108. It has also been held that damages for personal injuries are fixed as of the time of verdict, and must include future losses: McGonnell v. Pittsburgh Rys. Co., 234 Pa. 396; Conover v. Blum, 269 Pa. 548; Goodhart v. Pennsylvania R. R. Co., 177 Pa. 1; Amos v. Ferry Co., 228 Pa. 362.

Based on the doctrine of res judicata,, the former recovery can be invoked at any time without pleading: State Hospital v. Consolidated Water Co., 267 Pa. 29.

Without citing the decisions of other states, which are in conflict, and in the absence of any decision in Pennsylvania, we are of the opinion that “the maxim which declares that no person shall be twice vexed for one and the same cause prohibits a person from splitting a single cause into several and suing his adversary piecemeal,” and applies to the case at bar. “If he does so, the first adjudication will bar all the other suits:” Van Fleet, in “The Law of Former Adjudications,” 204 [§ 59] (1895).

The motion to take off the non-suit is, therefore, refused.


author: Martin, P. J.,

text:
    Liever v. London Assurance Corporation.

      Affidavit of defence — Precision required in averments — Automobile theft insurance.

    1. In an action on an insurance policy indemnifying the plaintiff against loss by theft of an automobile, where the statement avers that the automobile was stolen from plaintiff "without any act or design or procurement on his part or in consequence of any fraud or evil practice done or suffered by him," an averment in the affidavit of defence is insufficient which denies that the automobile was stolen from him and suggests that, if stolen, the theft may have been accomplished through his own “act or design or procurement;" there must be a distinct specification of such act or procurement, if relied on.

      Affidavit of defence — Denial of averments of damage — Precision required.

    2. In an action for loss of an automobile, where plaintiff avers that loss was in excess of $4000, an averment in the affidavit of defence that the automobile was not worth $4000 is insufficient, unless coupled with a statement of value to indicate whether or not a substantial difference exists between what defendant claims was the actual value and that averred in the statement.
    Rule for judgment for want of a sufficient affidavit of defence. C. P. No. 5, Phila. Co., Dec. T., 1921, No. 594.

      B. R. Cohn, for plaintiff; Swartz & Campbell, for defendant.
    Jan. 25, 1922.
   Martin, P. J.,

Suit was instituted to recover upon a policy of insurance indemnifying the plaintiff against loss occasioned by theft of an automobile. The statement of claim, to which a copy of the policy of insurance is attached, avers that the automobile “was stolen from plaintiff without any act or design or procurement on his part, or in consequence of any fraud or evil practice done or suffered by him,” and avers that he has suffered a loss in excess of $4000, the amount for which the automobile was insured.

An affidavit of defence and a supplemental affidavit were filed, in which the contract of insurance and ownership of the automobile is admitted, but that the automobile was stolen “from the plaintiff without any act or design or procurement on his part” is denied. There is also a denial that “plaintiff sustained loss in excess of the sum of $4000,” and an averment “that the automobile at the time of the alleged theft was not worth' $4000,” that the plaintiff falsely and fraudulently misrepresented to the defendants the cost of the automobile, “and informed defendant that this cost with equipment' was $4400, whereas the entire cost of the automobile with equipment was less than that amount.”

The allegations and denials are not made with the precision and detail required. The policy by its terms indemnified the insured against theft, and provided that the automobile should be valued at the sum insured.

The denial that the automobile was stolen from plaintiff is coupled with a limitation, suggesting that, if stolen, the theft may have been accomplished through the “act or .design or procurement upon the part of the plaintiff;” but there is no attempt to specify such “act or procurement.”

The denial that plaintiff sustained a loss in excess of $4000, and the averment that the automobile “at the time of the alleged theft was not worth $4000,” is not coupled with any statement of value to indicate whether or not a substantial difference exists between that which defendant claims was the actual value and that averred in the statement of claim.

The affidavits are evasive, not specific, and insufficient to prevent the entry of judgment. Rule absolute.


author: Stern, J.,

text:
    King v. Swartz Manufacturing Company.

      Trade-marks — Misdescription as affecting right to enjoin infringement— Similarity of marks without infringement.

    1. When the owner of a trade-mark applies for an injunction to restrain defendant from injuring his property by making false representations to the public, it is essential that the plaintiff should not, in his trade-mark or in his advertisements and business, be himself guilty of any false or misleading representation, and where any symbol or label claimed as a trade-mark is so constructed or worded as to make or contain a distinct material assertion which is false, no property can be claimed in it; or, in other words, the right to its exclusive use cannot be maintained.
    2. Whether or not an imitation which is not an exact copy constitutes an infringement depends upon whether the resemblance is sufficiently close to deceive purchasers and so pass off the goods of one man for those of another. Where one mark could not reasonably be mistaken for the other, and deception is improbable or impossible, there is no infringement.
    3. A invented a device for feeding air to furnaces, thereby facilitating combustion with an alleged saving of coal. He had the device recorded at Harrisburg under the Act of June 20, 1901, P. L. 582, the trade-mark being “Karburetor” or “Carburetor,” either by itself or associated with other terms, words, letters, devices or designations. He also recorded a picture of the device, and put the device on the market under the name of “King Koal Karburetor.” B put on the market a somewhat similar device, under the designation of “Master Coal Saving Carburetor,” and had this designation duly registered at Harrisburg under the same act, the trade-mark being “Master." B advertised his product as “Master Coal Saving Carburetor,” and attached his name to each of the devices sold in such a way as to indicate that he was the manufacturer and that the device was a “Master” and not a “King Koal” carburetor; no attempt was made to deceive purchasers, nor was there any evidence that any were so deceived by similarity in advertising matter. B’s picture of his device was substantially different from A’s picture of his. Neither device was a carburetor in the technical sense. On bill filed by A against B to enjoin him in the use of his trade-mark and picture on the ground of infringement: Held, 1. That as A’s device was not a carburetor, the mark was deceptive and he could not maintain the bill. 2. That there was no such similarity between the marks and pictures as would probably deceive the public, and that on either ground the bill should be dismissed.
    Bill, answer, replication and proofs. C. P. No. 2, Phila. Co., June T., 1921, No. 3488, in Equity.

      William M. Reese, for plaintiff.

      Edward H. Cushman and J. Quincy Hunsicker, Jr., for defendant.
    Jan. 24, 1922.
   Stern, J.,

This is a bill in equity to enjoin the use of words and pictures which are alleged to be infringements upon trade-marks previously appropriated by the complainant. On bill, answer, replication and proofs the court adopts as its findings of fact and conclusions of law the plaintiff’s and defendant’s requests for findings of fact and conclusions of law as affirmed or modified by the chancellor, and which are sufficiently complete to obviate the necessity of additional findings being made.

Eliminating the question of any contested patent rights as to the device itself, the facts concerning the trade-marks are comparatively simple. It appears that the plaintiff, having, as he claims, invented a device for feeding air to furnaces and thereby facilitating the combustion process with an alleged resultant saving of coal, put this device on the market under the name of “King Koal Karburetor.” He sought to protect this designation by recording at Harrisburg, under the Act of June 20, 1901, P. L. 582, the trade-mark “Karburetor” or “Carburetor,” either by itself or associated with other terms, words, letters, devices or designations, and he also recorded under the same act a trade-mark, consisting of the representation of an air-feeding device, embodying a stem or conduit with or without an air regulator and attaching means at one end and with a relatively large casing at the other end. This representation is, in substance, a picture of the device itself. The defendant company has put upon the market a somewhat similar device under the designation of “Master Coal Saving Carburetor,” and has sought to protect itself in the use of such designation by registering at Harrisburg under the same act the trade-mark “Master.” The Secretary of the Commonwealth issued certificates of registration of these several trade-marks as above described.

The plaintiff, having directly or indirectly spent large sums of money in the distribution and advertising of his air-feeding device, and having been prior to the defendant in the use of the two designations employed by him as above stated, seeks to enjoin the defendant from advertising the latter’s product as a “Carburetor” on the ground that the use of such designation is a violation of the plaintiff’s rights. He also seeks, for the same reason, to enjoin the use by the defendant of pictures or representations of the defendant’s device, which he claims are so similar in appearance and design to his own as to be likely to deceive the purchasing public.

The defendant contends that the plaintiff’s air-feeding device is in fact a carburetor, and, therefore, that the word, being descriptive of the product to which it is applied, cannot be exclusively appropriated by the plaintiff as a trade-mark. He further contends that the picture of the so-called “King Koal Karburetor” is likewise a graphic representation of the device itself, and, therefore, incapable of being established as a valid trade-mark. As an alternative proposition, the defendant argues that if the plaintiff’s device is not a carburetor, its designation as such is misleading and deceptive, and that, therefore, the plaintiff can assert no rights in regard to it. Finally, it is urged by the defendant that there is such a clear difference between the designations “King Koal Karburetor” and “Master Coal Saving Carburetor,” and between the pictures and representations used by the parties respectively, that there is no likelihood or probability of the public being deceived, and, therefore, that there is no element in the case of infringement or of unfair trade competition.

Practically the only disputed fact in the case is in regard to the question as to whether or not the devices sold by the parties are in reality carburetors. On this point the chancellor has found as a fact that they are not carburetors. The explanation of this finding is that a carburetor seems in scientific parlance to be a device or instrument in which air is mixed with the gas or vapor of a volatile fuel for the purpose of securing better combustion of the fuel by increasing its illuminating power. In order to constitute an appliance a carburetor, it is essential that the mixture of air and gas or vapor must occur within the device itself. Obviously, a mere tube or pipe through which air passes into a furnace is not a carburetor, but is merely a blowpipe or air-feeding device, and, as far as the so-called “King Koal Karburetor” is concerned, there is not even a contention that any such mixture is effected within the device. In the case of the “Master Coal Saving Carburetor,” it was vigorously urged that such a mixture was accomplished, in that there is in that instrument an aperture in the side of the pipe within the furnace which admits the volatile gases from the fuel, and that the gas and air so mixed pass out through the end of the device into the fire chamber. In regard to this contention, the chancellor has come to the conclusion that no inflammable gas enters through the aperture as claimed, but that, on the contrary, the only effect of such aperture is that some of the incoming air passes through it into the furnace instead of passing out of the terminal end of the pipe. It is thought that the physical laws • of pressure, as explained in the testimony, and which need not be further adverted to here, would prevent the making of any other finding. However, whether this be so or not, it seems entirely clear, as above stated, that at least the “King Koal Karburetor” is not in fact a carburetor, and that finding is sufficient for the purposes of this adjudication.

We are thus brought to the alternative question, namely, if the “King Koal Karburetor” is not in fact a carburetor, can the plaintiff, by designating it as a “carburetor,” maintain an exclusive right to the appropriation of such designation?

As a preliminary proposition, it may be pointed out that the certificates of registration of the Secretary of the Commonwealth issued to the plaintiff do not divest the jurisdiction of the courts to determine the validity of the act of appropriation or the character of the symbol as a lawful trade-mark, and, therefore, do not of themselves preclude the defendant from asserting the invalidity of the trade-mark and denying the right of the plaintiff to a monopoly in its use: E. T. Fraim Lock Co. v. Shimer, 43 Pa. Superior Ct. 221; Hub Clothing Co. v. Cohen, 270 Pa. 487.

Reverting now to the inquiry as to whether the plaintiff can lawfully acquire the legal and exclusive right to a trade-mark consisting of the word “Carburetor,” as applied to a device which in fact is not a carburetor, we are confronted at the outset with the general proposition that “if an alleged trade-mark involves any material untruth, misrepresentation, or bad faith, it will not be protected against infringement:” 38 Cyc., 700.

The principle is well established that when the owner of a trade-mark applies for an injunction to restrain the defendant from injuring his property by making false representations to the public, it is essential that the plaintiff should not in his trade-mark or in his advertisements and business be himself guilty of any false or misleading representation, and if he makes any material false statement in connection with the property which he seeks to protect, he loses his right to claim the assistance of a court of equity; and where any symbol or label claimed as a trade-mark is so constructed or worded as to make or contain a distinct material assertion which is false, no property can be claimed in it, or, in other words, the right to the exclusive use of it cannot be maintained: Worden v. California Fig Syrup Co., 187 U. S. 516 (citing numerous cases from state and English reports). In that case the defendant sold a medicinal preparation in packages prepared, marked and packed in imitation of the plaintiff’s medicine, for the purpose and with the design and intent of deceiving purchasers and inducing them to buy defendant’s preparation instead of the plaintiff’s. The Supreme Court held, however, that since the medicine advertised by the plaintiff as syrup of figs contained no juice of the fig whatever, or only a negligible quantity of it, the designation was deceptive, and accordingly the Supreme Court instructed the lower court to dismiss the bill.

The most vivid, effective and concise presentation of the doctrine involved is that presented by Judge Duer in Fetridge v. Wells, 13 How. Pr. 385. He says in that case: “Those who come into a court of equity seeking equity must come with pure hands and a pure conscience. If they claim relief against the fraud of others, they must he free themselves from the imputation. If the sales made by the plaintiff .and his firm are effected, or sought to be, by misrepresentation and falsehood, they cannot be listened to when they complain that by the fraudulent rivalry of others their own fraudulent profits are diminished. An exclusive privilege for deceiving the public is assuredly not one that a court of equity can be required to aid or sanction. To do so would be to forfeit its name and character.”

In Palmer v. Harris, 60 Pa. 156, a bill in equity was filed in an attempt to restrain the actual counterfeiting of a trade-mark used by the plaintiff in connection with the manufacture and sale of cigars. The plaintiff’s trademark indicated in Spanish that the cigars were made in Havana, whereas in fact they were made in the City of New York. The defendant was a printer, who counterfeited the labels used by the plaintiff and sold them to persons who were engaged in the manufacturing and sale of cigars, by whom they were used and the plaintiff thereby damaged. The court, in an opinion by Mr. Justice Sharswood, refused to grant an injunction, and dismissed the bill.

In Wrisley v. Iowa Soap Co., 104 Fed. Repr. 548, the court refused to grant relief where the trade-mark “Old Country Soap” was used for soap made in the United States, the court holding that such an alleged trade-mark tended to induce people coming from Europe to believe that the soap was made in their home country, and that, therefore, the said mark was deceptive.

Numerous other cases might be cited along the same line.

Applying the principle to the present case, what do we find? The plaintiff seeks to protect himself in the right to sell an air-feeding device as a “Carburetor” or “Karburetor,” when in fact, as the chancellor has pointed out, the instrument in question is not a carburetor. There is, therefore, a clear mis-description, and the public is deceived into buying an appliance under the mistaken assumption that it is something which it is not. This deception is not trivial, technical nor negligible, for if the device really were a carburetor and performed the function of one in mixing within itself air and gas or inflammable vapor so as to effect a combustible mixture, the result would, no doubt, have a beneficial effect in saving coal and in other aspects far greater than if the instrument in question consisted merely of a blowpipe scattering air upon the fire-bank.

In this connection, it is important to bear in mind the distinction between a designation used in an adjectival sense and one used as the very name of the object or generic group of objects to which it is sought to be applied. This distinction is perhaps not conclusive, but it is is an important factor for consideration. If the plaintiff used his trade-mark as an adjective and advertised his product as the “Carburetor Air-Feeding Device,” there might still be an element of deception, but the designation could perhaps be justified as a fanciful one, similar to such designations as “Ivory Soap,” “Arrow Collars,” “Eagle Shirts,” and the like. But the plaintiff greatly intensifies the degree of misdescription by applying the word carburetor as a noun; in other words, he calls the device a “Carburetor,” with the resulting effect still further heightened by prefixing adjectival words so as to make the entire combination read “King Koal Karburetor.” The case, therefore, is as if a dealer were to call a pencil a “Fountain Pen,” and trade-mark and advertise it as, let us say, the “Eagle Fountain Pen,” and then seek to prevent other vendors of pencils designating and selling them as, let us say, “Arrow Fountain Pens.” In short, a carburetor is scientifically and popularly known to be a device of a certain type and accomplishing certain purposes, and the plaintiff, by calling an instrument a carburetor when in fact it is not one, certainly cannot hope in equity to restrain other persons from calling similar devices carburetors, even though such other persons’ products are likewise not entitled to such designation.

This brings us to another phase of the case, and that is, that even if the plaintiff has a standing to protect the word “Carburetor” as a trade-mark, his application for relief in the present case should be denied, because of the fact that there is such a difference between the trade-mark as used by the plaintiff and that used by the defendant that no infringement nor unfair competition can be said to exist.

“Whether or not an imitation which is not an exact copy constitutes an infringement depends upon whether the resemblance is sufficiently close to deceive purchasers and so pass off the goods of one man as being those of another. Where one mark could not reasonably be mistaken for the other, and deception is improbable or impossible, there is no infringement:” 38 Cyc., 745.

“To entitle a party to relief for an alleged infringement of a trade-mark, the resemblance of the simulated to the genuine trade-mark must be such as to amount to a false representation, which is liable to deceive the public and enable the imitator to pass off his goods as those of the person whose trademark is imitated. When ordinary attention on the part of customers will enable them to discriminate between the trade-marks of different parties, the court will not interfere:” Popham v. Cole, 66 N. Y. 69.

In Wrisley v. Iowa Soap Co., 104 Fed. Repr. 548, the plaintiff for many years had manufactured and sold soap under the trade-mark “Old Country Soap.” Then the defendant began to market a soap which he called “Our Country Soap.” Boxes and wrappers were dissimilar in print and color of lettering. The bars of soap of each party, while similar in color and general appearance, had stamped on one side the name of the soap and on the other the name of the maker. It was held that the mere similarity in name, in view of the other facts, was not sufficient to constitute a violation of the plaintiff’s rights, it not appearing to be1 such as to deceive a buyer of ordinary intelligence and observation into buying defendant’s soap for that of the plaintiff.

In Desmond’s Appeal, 103 Pa. 126, the plaintiff sold certain medicines under the trade-mark “Samaritan’s Gift.” The defendant sold and advertised medicine under the trade-mark “Samaritan Nervine.” The court held that the plaintiff was not entitled to relief, saying: “It (the bill) does not aver an imitation or similarity in the appearance of the labels and wrappers. An examination of the two shows they are quite dissimilar in names and appearance. It is true each has the word 'Samaritan,’ but in such different form and combination of words as to preclude one medicine being taken for the other. . . . The appropriation of the word ‘Samaritan’ in one combination of words does not prevent its being used in all other, combinations.”

In Heinz v. Lutz Bros., 146 Pa. 592, the court said, by way of quotation from an opinion rendered in the Common Pleas of Philadelphia: “A similarity between the two trade-marks used by different manufacturers for their goods, although of such a character as to induce a belief in the mind of the public that they belong to and designate the goods of the same manufacturer or trader, is not of itself sufficient ground for the prohibition of the use of such trade-mark by him who did not first adopt it. That similarity, to entitle the originator to the protection of the law, must be such as to amount to a false representation, not alone that the two articles have the same origin, but that the goods to which the simulated mark is attached- are the manufacture of him who first appropriated the trade-mark.” The court then proceeds to say: “A court of equity will not restrain a person from using a device on the ground that it infringes plaintiff’s trade-mark, unless it is so similar in appearance that any person using such reasonable care and observation as the public generally are capable of using, and may be expected to exercise, would mistake the one for the other. ... In trade-marks, in order to entitle the plaintiffs to relief by injunction, the resemblance must be such that ordinary purchasers, dealing with ordinary caution, are likely to be misled.”

To the same effect is Brown v. Seidel, 153 Pa. 60. So, also, Kann v. Diamond Steel Co., 89 Fed. Repr. 706.

In the present case the plaintiff advertises his product as the “King Koal Karburetor;” the defendant advertises its product as “Master Coal Saving Carburetor.” The defendant attaches its name to each of the devices which it sells, and clearly indicates that it is the manufacturer thereof and that the device is a “Master” and not a “King Koal” carburetor. There is no attempt to deceive purchasers, nor was any evidence offered that any purchasers have been deceived. There is no similarity in advertising matter. Indeed, all that the plaintiff complains of in this connection is the defendant’s use of the word “carburetor,” but, as clearly ruled in Desmond’s Appeal, 103 Pa. 126, the use of this word by the plaintiff in the combination “King Koal Karburetor” does not disentitle the defendant to its use in another combination, namely, “Master Coal Saving Carburetor.” In short, even if the word “Carburetor,” as used by the plaintiff, could constitute a lawful trade-mark (although the chancellor has found to the contrary), there is nothing in the evidence in this case to warrant an injunction against the defendant to prevent it from using the same word in another combination which clearly differentiates its product from that of the plaintiff.

As far as the picture of the “King Koal Karburetor” is concerned, for which the plaintiff also has a trade-mark, it is sufficient to say that “where the subject of a picture is so related to the article in connection with which it is used as to be merely descriptive thereof, it cannot be exclusively appropriated for that class of goods:” 38 Cyc., 730 (also pages 716-717).

The cut or representation which the plaintiff has registered as a trade-mark is substantially a picture of the device sold by him and in connection with which it is used. It is obvious that such a trade-mark cannot be monopolized so as to prevent another person lawfully selling an article of commerce from advertising his own product by the use of pictures representing that product. To this it may be added that the pictures of the two devices are sufficiently different to obviate the likelihood of any confusion on the part of intending purchasers.

To sum up, therefore, the chancellor has concluded that neither the word “Carburetor” (however spelled) nor the picture of the plaintiff’s device constitutes a valid trade-mark in the sense of conferring upon the plaintiff the exclusive right to a monopoly in their use, the reason for this conclusion being that the device to which the trade-mark is applied is not in fact a carburetor, and, therefore, that the use of that name in connection with the device amounts to a deceptive misnomer, while the pictorial representation is nothing more than a graphic representation of the device itself. Even, however, if such trade-marks were valid, the employment by the defendant of its trademarks and designations is so substantially and clearly different from the ones used by the plaintiff that it is not possible, or at least likely, that any confusion can be created thereby.

NOTE. — The findings of fact and law submitted by the parties are omitted as being unnecessary to an understanding of the decision.

For the reasons set forth in the foregoing discussion and upon the basis of the findings of fact and conclusions of law embodied herein, as above stated, the chancellor is of opinion that' the plaintiff is not entitled to equitable relief, and, therefore, enters the following

Decree.

And now, to wit, Jan. 24, 1922, it is ordered, adjudged and decreed as follows: 1. That the bill be dismissed. 2. That the plaintiff pay the costs of these proceedings.

The prothonotary will enter this decree nisi, and give notice of the same to the parties or their counsel, and if no exceptions are filed within ten days thereafter, either party may present to the court a form of final decree then to be entered.


author: McPherson, P. J.,

text:
    Commonwealth v. Robinson.

      Jurisdiction, Q. S. — Venue of crime must be established.

    1. To sustain a conviction of crime, the locality of the crime must be proved to have been within the jurisdiction of the court, i. e., within the county.
    2. Where the evidence fails to show that the crime was committed within the county, and merely shows the location of certain streets and houses, without indicating in what county such streets and houses are, the court will grant a new trial after conviction, but will not arrest the judgment.
    Charge: Receiving stolen goods on conspiracy. Motions in arrest of judgment and for a new trial. Q. S. Phila. Co., Feb. Sess., 1921, Nos. 18-20.

      James G. Gordon, Jr., for plaintiff; Weinberg & Weinberg, for defendant.
    June 24, 1921
   McPherson, P. J.,

51st judicial district, specially presiding,

After a verdict of guilty rendered by the jury, motions in arrest of judgment and for a new trial were filed, and in support thereof the following reasons were filed: 1. The court did not have jurisdiction. 2. That the verdict was against the law. 3. The verdict was against the evidence. 4. The verdict was against the weight of the evidence.

In support of the first reason it is alleged that the evidence given at the trial was insufficient to show that the crime alleged to have been committed was committed within the City and County of Philadelphia.

From the notes of testimony it appears that the evidence of all the witnesses which bore upon the location of this crime, or had any reference to locality, merely referred to names of streets or certain particular houses on certain particular streets, but in no part of the evidence is it shown specifically or by inference that the streets mentioned as the locality of the crime, of the place of business of the defendant, or of the delivery of the goods alleged to be stolen, were within the City or County of Philadelphia.

To sustain a verdict, the jurisdiction of the court over the crime alleged to have been committed must be shown, and if the jurisdiction depends upon a question of fact, this fact must be proven by competent and sufficient evidence. The locality of the crime within the jurisdiction of the court, namely, the County of Philadelphia, must, therefore, have been established in this case by competent and sufficient evidence. This was not done. From the evidence of locality presented at the time of the trial, the crime may have been committed in any city wherein there are streets with the names such as were used by the witnesses in describing the locality. We are of the opinion, therefore, that a new trial should be granted. In this conclusion we are sustained by an opinion filed in the Court of Quarter Sessions of Philadelphia County, in the case of Com. v. Julia, No. 530, March Sessions, 1920, by Judge Bell, of Clearfield County, specially presiding, in which case a precisely similar question was raised under an identical condition of the evidence, and wherein the court held that the evidence was insufficient to establish the jurisdiction of the court over the crime, and that a new trial should be granted.

NOTE. — The essential part of the opinion of Judge Bell, in Com. v. Julia, Q. S. Phila. Co., March Sess., 1920, No. 530, was as follows:

“Concededly what occurred took place at these two points, and there is nothing in the evidence which indicates that this was in the County of Philadelphia, or City of Philadelphia, and there are’no other references in the testimony which indicate where these things occurred. Prom the reading of the testimony alone it would not he possible for anybody to know in what county these houses were. The other references to places are consistent with it happening in almost any city. 'While George L. Potter is referred to as an officer in the title, there is nothing to that effect in his testimony, and we are wholly unable to find any evidence here which shows that the offence was committed within the City or County of Philadelphia, or that the places mentioned are within that city or county, nor can we discover any circumstantial evidence that will sustain the conclusion. In the press of the trial, and, doubtless, everybody taking it for granted that the matter occurred within Philadelphia, there is neither direct or circumstantial evidence of the fact, unless it is to be found in the designation of those two places, 823 Pernon Street and 2064 Wharton Street. That this is insufficient has been held in various cases: State v. Schuerman, 70 Mo. App. 518; Kolman v. State, 124 Ga. 63 (52 S. E. Repr. 82); People v. 0:Gara, 271 Ill. 138 (110 N. E. Repr. 878); Brunson v. State, 4 Okla., Crim. App. (115 Pac. Repr. 606); Simpson p. City of Macon, 8 Ga. App. 535 (69 S. E. Repr. 1084.). '

“We do not find any decision in Pennsylvania directly upon this Question, but we think to sustain this conviction would be going further than any authority in Pennsylvania has ever authorized. It follows, therefore, that the evidence was not sufficient, and that a new trial must be granted. The court cannot arrest the judgment because of insufficiency of evidence: Com. v. Gurley, 45 Pa. 392.”

While we have found no appellate court decision in Pennsylvania which passes upon this question, yet the conclusion of Judge Bell in the case above referred to and our conclusion in this case are sustained by the decisions of the appellate courts in various other jurisdictions, as follows: State v. Schuerman, 70 Mo. App. 518; Kolman v. State, 124 Ga. 63 (52 S. E. Repr. 82); People v. O’Gara, 271 Ill. 138 (110 N. E. Repr. 878); Brunson v. State, 4 Okla, Crim. App. 13 (115 Pac. Repr. 606); Simpson v. City of Macon, 8 Ga. App. 535 (69 S. E. Repr. 1084).

In view of our conclusion as to the insufficiency of the evidence to prove the jurisdiction, we deem it unnecessary to pass upon the other reasons urged for a new trial and make no further reference thereto.

In relation to the motion of the defendant in arrest of judgment, we can find nothing in the record which would warrant us in sustaining it.

And now, June 24, 1921, the motion in arrest of judgment in this case is refused and exception noted and bill sealed to the defendant. Motion for new trial is allowed and a new trial is hereby granted.


author: Hassler, J.,

text:
    Steffero v. Martin.

      Damages for death of child struck by automobile in city street — Negligence — Evidence—Speed of car — Failure to blow horn — Non-suit.
    1. In an action to recover damages for the death of the plaintiff's seven-year old daughter, who was struck by the defendant’s automobile on a city street, a non-suit was properly entered where it appeared that the child stepped from the sidewalk quickly, about fifteen feet in front of the automobile, and there was no testimony to show that the defendant could have stopped' his car in time to avoid striking her, but it appeared that he had slowed up before reaching the intersection of two streets just before the accident happened.
    2. under these circumstances, there being other evidence as to the speed of the car, it was proper to refuse to allow the jury to take into consideration the distance the automobile ran after it struck the child from measurements of its tracks after it had gone away.
    3. The failure of the defendant to blow his horn at a crossing is not negligence in regard to an accident which occurred not at the crossing, but beyond it.
    Lorah v. Rinehart, 243 Pa. 231, distinguished.
    Rule to strike off judgment of non-suit. C. P. Lancaster Co., Jan. T., 1919, No. 71.

      Charles G. Baker, for rule.

      Amos E. Burkholder and John E. Malone, contra.
    July 2, 1921.
   Hassler, J.,

In this action the plaintiff seeks to recover damages for the death of his seven-year old daughter, Felicia Steffero. It appeared in the testimony at the trial that on Dec. 31, 1918, she, with a companion of the same age, named Usa Kittle, was at the intersection of Marshall and Chestnut Streets, in this city. Usa Kittle walked across Chestnut Street on the west crossing, but Felicia continued west on the north side of Chestnut Street until she was about twenty feet beyond the crossing. Then she went out into the street for the purpose of crossing it, and was hit and killed by an automobile driven by the defendant.

In his statement the plaintiff charges that the defendant was unlawfully driving and operating the said automobile in a reckless, dangerous, careless and negligent manner, without regard to the traffic in said highway and the requirements of the State of Pennsylvania and the traffic regulations of the City of Lancaster. At the trial, the plaintiff tried to show that the defendant was operating his automobile at a. too high rate of speed, and that he failed to sound his horn when approaching the crossing.

The only witness, called at the trial, who saw the accident is Isaac Evans. He testified that he was 100 feet east of the intersection of Marshall and Chestnut Streets, looking westward; that he saw the automobile driven by the defendant going “at a pretty good clip” past him, but that, in order to avoid a horse and buggy that was approaching the intersection of the two streets, he slowed up at the crossing and continued across the west crossing about twenty feet. At this point Felicia Steffero stepped from the pavement to the street. He testified: “A. Yes, sir; sure I saw the child run out; I seen the child go off the sidewalk. Q. Where was the automobile when the child went off the sidewalk? A. When the child went off the sidewalk, his automobile was across the crossing. Q. Then it was within ten feet of the child when the child started? A. No; it was about the length of the house. . . . Q. Fourteen or fifteen feet away? A. Something like that, from the crossing. Q. The child suddenly broke out? A. Yes, sir. Q. Did it start to run? A. Not just exactly run.” Adam Dommel testified that the child was struck twenty-one feet west of the west crossing, as he saw her there after she was struck. Usa Kittle testified that, after she heard the crash, she looked around and the automobile had stopped close to where the child was lying. Isaac Evans also testified that the automobile stopped close to where it struck the child, it being at the house next to the barber shop. Adam Dommel and Isaac Evans both testified that, after the machine had gone away, they measured the distance from where it appeared from the tracks that it commenced skidding to the place where it stopped, and that it was a distance of from forty-five to fifty feet.

It is argued by plaintiff’s attorney that it is proper to permit a jury to take into consideration the distance the automobile ran after it struck the child, so that they may arrive at the rate of speed that it was going. In support of this contention he cites the case of Lorah v. Rinehart, 243 Pa. 231. We can understand that this should be done, as that case decides, where there is no other evidence as to the speed at which the car was going, but where, as here, the plaintiff has proven positively that the ear had slowed up prior to the time of the accident, and by at least two witnesses who saw it that it stopped close to where the accident occurred, it would be manifestly improper to have permitted the jury to find that it was going at a high rate of speed, from measurements made after the automobile had gone away. We are satisfied that the testimony showed that the defendant was not operating his automobile at an improper rate of speed, and that the accident was no fault of his.

The case which justified us in entering the non-suit is that of Stahl v. Sollenberger, 246 Pa. 525. In it the facts are as follows: Two boys were walking on a footway for pedestrians over a bridge, and which was along one of the sides of it. The driveway was in the centre, and the defendant was operating his automobile on the driveway. For some cause the plaintiff’s son, who was a small boy, stepped off of the footway on to the driveway and was injured. The court entered a non-suit, which it refused to strike off. In affirming this action of the court, Justice Potter says: “A careful examination of the testimony as submitted to us fails to disclose any indication of the length of time the boy was in the roadway in front of the car before he was struck. Manifestly, he had left the footway provided for pedestrians and was, at the time of the collision, in the place provided for vehicles. But how long he had been there was not shown. Yet this was the important matter in the case. The defendant cannot fairly or reasonably be charged with negligence in failing to stop his automobile and avoid the accident, unless it appeared that the boy entered the roadway at a sufficient distance from the automobile to permit of its being stopped before the collision occurred. If the boy suddenly left the footway at a place where the driver had no reason to expect him to do so, and ran directly in front of the automobile, the result could hardly have been other than disastrous, even though the machine had been moving at a very reasonable rate. The court below felt that the only reasonable inference to be drawn from the testimony in this case is that the boy did leave a place of safety and unexpectedly dashed into danger. We find nothing in the evidence to warrant us in holding that this conclusion was wrong, or that any other inference could be legitimately drawn from the testimony. Cases are not uncommon where it is shown that a child leaves a sidewalk and runs upon the street, a certain distance in front of an approaching car. Under such circumstances, there may be disputed questions of fact as to whether the driver should have seen the child, or whether the distance was sufficient to enable him, having his car under proper control, to bring it to a stop in time to avoid the accident. But in the present case, with no evidence that the child appeared upon the roadway in front of the car at any appreciable distance ahead of it, and with no circumstance shown that would tend to suggest to the driver, prior to the happening of the accident, the probability of the boy leaving the footway or getting into danger upon the driveway, we think the trial court was right in holding that there was not sufficient proof of any negligence causing the accident, on the part of the defendant, to justify the submission of the question to the jury.”

. The testimony here showed that the girl stepped from the sidewalk to the street quickly, about fourteen or fifteen feet in front of the automobile, and there was no testimony to show that, even if going slowly, the defendant could have stopped his car in time to avoid striking her. The plaintiff proved that the defendant had slowed up his automobile before reaching the intersection of the two streets, east of the place of the accident. We are satisfied from all this that the accident was not the fault of the defendant, as there was no proof that he was negligently operating his machine, by doing it too rapidly.

That the defendant failed to blow his horn when approaching the crossing is not negligence. The law requires him to give notice of his approach to a crossing by blowing his horn. If the accident had occurred at the crossing, his failure to have done so would have been an act of negligence, and entitled the plaintiff to recover if such failure was the proximate cause of the injury, but this accident did not occur at the crossing; He was not required to blow his horn to indicate that he was coming along the street at any point other than at the crossing.

We are satisfied that the judgment of non-suit was properly entered, and discharge the rule to show cause why it should not be stricken off.

From George Ross Eshleman, Lancaster, Pa.


author: Prather, P. J.,

text:
    Tutino v. New Castle.

      Eminent domain — Condemnation of land for municipal purposes — Measure of damages — Owner improving land after commencement of condemnation proceedings — Widening and straightening creeks — Act of April 28, 1899.

    1. The principle that the liability of a municipality for damages to property taken by condemnation is limited to the condition of the property at the time the proceedings in condemnation were instituted, and that the owner cannot, in the meantime, make improvements except at his own hazard, applies to proceedings to straighten and widen a creek under the Act of April 28, 1899, P. L. 74, notwithstanding the fact that the language of that act is in large measure taken from the Act of May 16, 1891, P. L. 75, relating to the opening and widening of streets, and omits the 12th section of the earlier act, which expressly provides that the property owner shall not be entitled thereafter to recover damages for improvements placed within the lines of any located street or alley after the same shall have been located or ordained by councils.
    2. Not decided, whether he may protect himself by applying to the court for a writ of mandamus upon the city to proceed with its condemnation or repeal its ordinance, or whether he may give notice of his intention to abandon the land and proceed to have his damages ascertained and paid.
    Motion for judgment for plaintiff. C. P. Lawrence Co., Sept. T., 1918, No. 42.

      Charles Mathews, Jr. (with him Martin & Martin and Cunningham & Graham), for plaintiff.

      James A. Gardner, City Solicitor, and Robert White, Assistant City Solicitor, for defendant.
    July 12, 1921.
   Prather, P. J.,

30th judicial district, specially presiding,

This case originated in condemnation proceedings, instituted by a city ordinance passed pursuant to the provisions of the Act of April 28, 1899, P. L. 74, for the purpose of straightening and widening Neshannock Creek in the City of New Castle.

The improvement was proceeded with by an actual taking of a certain part of plaintiff’s land after the report of viewers filed. Prom the award of damages plaintiff appealed, and the case was tried before a jury.

Considering plaintiff’s property as it existed at the time of the passage of said ordinance, and as affected by the actual taking of his land, the jury assessed plaintiff’s damages at $3800. This assessment excluded the item of damage claimed for the loss of a certain building valued at $3000, which plaintiff erected on the condemned property after the passage of said ordinance, and which the city compelled him to remove.

The legal controversy is whether this item of $3000 is an element of damage for which the city is liable.

The special finding of the jury relative thereto, and agreed to by counsel, is: “That the ordinance appropriating and condemning plaintiff’s property was duly passed and approved Dec. 17, 1915. That thereafter, about the year 1918, and prior to the actual taking and excavating by the city, and after notice to plaintiff that the city had passed such ordinance, plaintiff constructed on his property, and upon the ground so appropriated, a two-story frame building of the value of $4500, and which he was required to remove by direction of the city. For said building plaintiff received as salvage $1500, leaving the net damage or loss suffered by said removal of $3000.”

The regularity of the proceedings under the statute is not questioned. The 2nd section of said act provides for the appointment of viewers by the court upon the presentation of a petition by the municipal authorities. It is, therefore, clear that the property owner cannot be heard in this part of the proceeding.

The viewers are appointed for and sworn to “estimate and determine the costs and expenses and the damages for property taken, injured or destroyed.”

The 8th section of the act provides: “In case any borough or city shall repeal any ordinance passed, or discontinue any proceedings taken, providing for any of the changes or alterations provided for in the preceding sections of this act, prior to the entry upon, taking, appropriation or injury to any property or materials, and within thirty days after the filing of the report of the viewers assessing damages and benefits, the said municipality shall not thereafter be liable to pay any damages which have been or might have been assessed, but all costs upon any proceeding had thereon shall be paid by said municipal corporation, together with any actual damage, loss or injury sustained by reason of such proceedings.”

The trend of all decisions upon' statutes granting the power of condemnation to municipalities is to limit the liability of the municipality for damages to the condition of the property at the time the proceedings in condemnation were instituted. Therefore, while the damages to the owner were to be ascertained at the time of the actual entry and disseizure, he could not, in the meantime, make improvements thereon, except at his own hazard.

Our attention is called to the fact that the Act of 1899, relating to the widening of streams, is in a large measure a copy of the language of the Act of May 16, 1891, P. L. 75, relating to the widening and opening of streets, and that section 12 of the Act of 1891 contains the following provision, omitted from the Act of 1899: “No person shall hereafter be entitled to recover any damages for any buildings or improvements of any kind which shall, or may be, placed or constructed upon or within the lines of any located street or alley after the same shall have been located or ordained by councils.”

It is urged that the omission of this clause from the latter act is significant of the legislative intent that, under the Statute of 1899, the owner of land appropriated by ordinance can, at the financial peril of the municipality, improve it ad libitum,.

We are not only without authority to support this contention, but the trend of our decisions is decidedly opposed to it.

In the first place, as to streets projected merely upon paper, the decisions are uniform that the municipality incurs no liability to the land owner until they are actually opened, and that the land owner is not entitled to compensation for the destruction of buildings erected on the site of such a street after the proper filing of a plot or survey establishing such streets: District of City of Pittsburgh, 2 W. & S. 320, 326; Forbes Street, 70 Pa. 125, 137.

“When, therefore, an individual erects a pottery or any other improvement on Forbes Street, and the street is ordered to be opened, he cannot claim damages for its removal, nor for any injury caused to the remaining works by such necessary removal or destruction. His damages will be limited to the value of the ground taken for the street:” Forbes Street, 70 Pa. 125, 137.

In the Schuylkill Navigation Co. v. Farr, 4 W. & S. 362, 372, wherein said company under their charter possessed powers of eminent domain, the Supreme Court held that, where the owners of land affected by raising the dam of said company, after notice of an intention to raise said dam, build a furnace within an area affected thereby, “they would be entitled to little, if any, damages” for its destruction. The Supreme Court, on the facts recited, held that: “It would be their own folly to proceed with their work when put upon their guard by a notice that the company intended to improve the navigation in the manner stated. ... If the knowledge of this fact was brought home to them, they, as prudent persons, would be bound to ascertain the intentions of the company as to the proposed alteration in' the height of the dam.”

Considering the proviso in section 12 of the Act of 1891, limiting the land owner’s damages to existing improvements, and the absence of such a proviso in the Act of 1899, the legal effect of such a proviso is important in considering the significance of its absence.

The Supreme Court has uniformly held this proviso nugatory.

In Bush v. McKeesport, 166 Pa. 57, 59, the Supreme Court, considering the effect of this clause, said: “If the question intended to be raised by appellants were an open one, much might be said on both sides, but we think the underlying principle has been too long and firmly settled in this State, adversely to plaintiff’s contention, to justify us in holding that any new principle was introduced, or change in the law effected, by the clause above quoted. That clause is merely declaratory of the common law of the State, as recognized in Forbes Street, 70 Pa. 125, and other cases.”

In Harrison’s Estate, 250 Pa. 129, the Supreme Court, considering a similar clause in the Act of Dec. 27, 1871, P. L. (1872) 1390, reannounced the same rule, cited with approval Forbes Street, 70 Pa. 125, and Bush v. McKeesport, 166 Pa. 57, and said: “We see no escape from this conclusion, and must regard the question here raised as settled in our jurisdiction:” See, also, Dintaman v. Harrisburg, 265 Pa. 357, 360.

As the proviso in section 12 of the Act of May 16, 1891, P. L. 75, and the similar proviso in the Act of Dec. 27, 1871, P. L. (1872) 1390, are but declaratory of the common law, their incorporation in the statutes added nothing to the unwritten law. Hence, the absence of such a proviso cannot reflect a legislative intent to revoke a well-established rule of law by saying nothing concerning the subject-matter.

In Shoemaker v. United States, 147 U. S. 282, 321, the Supreme Court said: “It is true that by the institution of proceedings to condemn, the possession and enjoyment by the owner are to some extent interfered with. He can put no permanent improvements on the land, nor sell it, except subject to the condemnation proceedings.”

In Pattison v. Buffalo R. & P. Ry. Co., 268 Pa. 555, the Supreme Court, citing the foregoing from the Shoemaker case with approval, said: “Where land is appropriated under the power of eminent domain, the owner’s right to any use of the land ceases.” See Appeal of Philadelphia, 143 Pa. 414, 423; Volkmar Street, 124 Pa. 320.

Plaintiff not only had constructive but actual notice of the passage of the ordinance declaratory of the city’s intention to take his land for the purposes mentioned therein.

With this knowledge, he proceeded to construct a building on the land so appropriated at a cost of $4500. This he was required to remove at a loss of $3000 when the city made actual entry upon his land to straighten said creek.

The allowance of damage for the removal of this building under the admitted facts would be a standing invitation to every property owner opposed to the particular improvement affecting his property to begin his program of erecting costly edifices upon the property proposed to be appropriated in order to render the improvement financially impossible.

If one under such circumstances could with impunity build upon the condemned land, there would be ho limit to the damage he might entail upon the municipality by the doctrine invoked.

We are not unmindful that cases of this nature, when the proceedings are unduly delayed or prolonged, are often embarrassing to the land owner. In this particular proceeding the statute seems to have been framed in the interest of the municipality.

We are not called upon to decide whether he might not have protected himself by applying to the court for a writ of mandamus upon the city to proceed with its condemnation or repeal its ordinance; or, as said in the case of Volkmar Street, 124 Pa. 320: “Whether the owner might give notice of his intention to abandon the land (described in the ordinance) and proceed to have his damages ascertained and paid.” See Second Avenue Case, 7 Pa. Superior Ct. 55, 61.

We are of the opinion that plaintiff’s damages are limited to the effect the taking had upon his land, regardless of, and excluding, the house built thereon after the passage of said ordinance, and, therefore, he cannot recover for the house so built and lost by removal.

Consequently, plaintiff’s damages are limited to $3300.

Order.

Now, July 12, 1921, upon the special finding and upon the question reserved, judgment is directed to be entered for plaintiff and against defendant city for $3300, as of the date of the verdict, upon payment of the proper jury fee.


author: Fox, J.,

text:
    Moyer v. Moyer.

      Marriage — Bigamous marriage — Annulment—Counsel fees and alimony pendente lite — Inability to pay• — -Cruel and barbarous treatment — Act of April l4, 1859.

    1. Upon a petition tor counsel fees and alimony pendente Mte in an action under the Act of April 14, 1859, P. L. 647, to annul a marriage, alleged to have been bigamous, cruel and barbarous treatment of the libellant by the petitioner (respondent), even if established, would be of no merit as a reason for refusing such an allowance.
    2. The right of a wife to counsel fees and alimony pendente Mte is not statutory, but is an outgrowth of the relationship of husband and wife, and pertains as well to actions for annulment as to divorce.
    3. A wife who denies the averment of her husband as to the invalidity of their marriage, which he seeks to have annulled, is entitled, if she is without means to contest, to a reasonable allowance for the purpose.
    4. The court will not make a vain and useless order for the payment of alimony where the husband is out of employment and without means, but will suspend the rule relating thereto until such time as he may be earning sufficient to justify an order.
    Petition for counsel fees and alimony. C. P. Dauphin Co., March T., 1921, No. 59.

      John C. Nissley, for libellant.

      Beidleman & Hull and Paul G. Sherwood, of Wilkes-Barre, for respondent.
    Nov. 28, 1921.
   Fox, J.,

In this case a subpoena was awarded upon the petition or libel presented and filed on March 28, 1921, under the Act of April 14, 1859, P. L. 647. The prayer of the petitioner was to have the marriage which was entered into between him and Margaret Moyer, the respondent, declared null and void, on the ground that she had a husband living, from whom she was not divorced at the time the contract of marriage was entered into between libellant and respondent on Aug. 18, 1910. The subpoena was returned May 30, 1921, as served upon the respondent.

On June 6, 1921, upon the petition of the respondent, a rule was granted upon the libellant to show cause why he should not pay her for counsel fees and alimony pendente lite, to which rule the libellant made answer that this is not such a case as entitles respondent to counsel fees and alimony, for two reasons, viz.:

1. By reason of the cruel and barbarous treatment on the part of the respondent towards libellant, she has forfeited her right to counsel fees and alimony.

2. That this is not an action in divorce, but a proceeding for the annulment of a bigamous marriage, and in the latter case there is no authority to direct the payment of counsel fees and alimony pendente lite.

The respondent in her answer denies the allegation in the libel contained relating to the illegality of the marriage between them, and accuses the libellant of cruel and barbarous treatment, thereby compelling her to withdraw from his household.

Subsequent to the granting of the rule depositions were taken on behalf of the respondent and the libellant, and they show that the respondent is without a separate estate of her own, and is also without means with which to defend herself in the proceeding to have her marriage annulled, and is without means of subsistence. They also show that the libellant is not much more fortunate with respect to financial matters, and that he is without employment, and although having earnestly endeavored to secure the same, he met with failure, and that he has no income.

The first reason as laid down by the libellant why he should not be compelled to pay counsel fees and alimony pendente lite is without merit. There is nothing which we have before us from which we can conclude that she was guilty of cruel and barbarous treatment, and even if we could so find, we do not see how it could affect this application, because this is not a proceeding in divorce on the ground of cruel and barbarous treatment, but a proceeding for the annulment of a marriage contract, alleged to have been void a b initio because the respondent had a living husband at the time and not divorced, which the respondent denies and contests.

The Act of April 14, 1859, P. L. 647, provides as follows: “That in all cases where a supposed or alleged marriage shall have been contracted, which is absolutely void by reason of one of the parties thereto having a husband or wife living at the time, the Courts of Common Pleas shall have power to decree the said supposed or alleged marriage to be null and void upon the application of an innocent or injured party, and the jurisdiction shall be exercised and proceedings conducted according to the principles and forms which are or shall be prescribed by law for cases of divorce from the bond cf matrimony.”

This statute, under which this proceeding is instituted, was passed for the purpose of having a better and more definite method for judicially determining the legality or illegality of alleged bigamous marriages, and the proceedings are to be conducted in accordance with the principles and forms which the law prescribes for divorce.

We are, as the statute directs, to proceed according to the principles and forms as prescribed in divorce.

The statutes on divorce, as well as that of 1859, relating to annulment of bigamous marriages, are silent as to payment of counsel fees and alimony pendente lite. Yet in eases of divorce, when the wife is without means to employ counsel and defray the expenses necessary to her participation in the proceedings, and is without means of support, the husband must supply her with funds to meet such expenses and with means for her support to a reasonable extent. This is not statutory, but is an outgrowth of the relationship existing between husband and wife, and which has not been changed by our laws extending the rights and liabilities of married women, unless the wife has a separate estate of her own or an income sufficient to meet such expenses and to provide for her own maintenance.

In Brown on Divorce, 260, 261, it is laid down that if there is a marriage de facto, although a marriage de jure be denied, alimony will be allowed.

In the case of Smith v. Smith, 24 Dist. R. 527, a case in which the proceedings were similar to this case, it was held that alimony and counsel fees would be allowed.

The husband has started these proceedings; the wife denies the averment of the husband as to the invalidity of their marriage. She purposes to contest, and she is without means to do so, and we think for the proper administration of justice the husband, under the circumstances, should provide her, to a reasonable extent, with the means to contest. He, however, as we have said, is without employment or means at this time to pay her alimony, and, under the circumstances as shown by the depositions, it would be vain and useless at this time to order him to pay alimony. If, however, information shall be given at any time hereafter in a proper way to the court that he is again earning money in a sufficient amount, we will make an order for alimony pendente lite.

For the above reasons, the rule is made absolute to the extent that the libellant, Daniel W. Moyer, pay to the respondent, Margaret Moyer, counsel fees, and the amount thereof is fixed at $50; and with respect to alimony, the rule is suspended until the libellant is again earning money in such an amount as will justify an order. The cost of the rule to be paid by the libellant, Daniel W. Moyer.

Prom William Jenkins Wilcox, Harrisburg, Pa.


author: A. W. Johnson, P. J.,

text:
    Vanhorn v. Stroup.

      Justice of the peace — Appeals—Defective affidavit — Bond—Perfecting appeal — Practice, C. P.

    1. The affidavit for an appeal from a judgment of a justice of the peace, while properly averring that the appeal is not for delay, is defective if it avers that "deponent believes he will be compelled to pay more money than is justly due if the judgment be carried into effect.’’
    2. In such case deponent should aver that “he verily believes that injustice has been done.”
    3. A bond on appeal is defective which binds the obligors only in case of trial.
    4. The remedy for such defects is by rule to perfect the appeal and not by motion to strike it off.
    Appeal from justice of the peace. C. P. Snyder Co., Dec. T., 1920, No. 2.

      A. F. Gilbert, for plaintiff; H. H. Grimm, for defendant.
    Nov. 23, 1921.
   A. W. Johnson, P. J.,

The plaintiff has filed two exceptions to the defendant’s appeal from the judgment of the justice of the peace. The exceptions do not specify wherein the appeal is defective, but, in examining the affidavit and the bond filed, we find that neither the affidavit nor the bond complies in form with the requirements of the law. In the affidavit the defendant says: “That the appeal in the above case is not taken for the purpose of delay, but because deponent believes that he will be compelled to pay more money than is justly due if the judgment be carried into effect.” The affidavit should contain these words: “That the appeal is not for delay, but because he verily believes that injustice has been done.”

The bond is also defective. It binds the obligors only in case of trial. It should bind them to payment of debt, interest and costs that have and will accrue on affirmance of the judgment.

But the remedy is not to strike off the appeal, but to have the appeal perfected before any procedure in the case.

In Means v. Trout, 16 S. & R. 349, it was held that if the recognizance given on appeal from the award of arbitrators or a justice of the peace be defective, the party should be called on by a rule to perfect his bail within a given period or, in default thereof, to have his appeal dismissed; the court ought not to quash the appeal in the first instance.

The motion to strike off the appeal in this case will be dismissed, but the defendant may be called on by rule to perfect his affidavit and his bail within fifteen days from the filing of this opinion, or the defendant may perfect his affidavit and his bail within fifteen days from the filing of this opinion.

And now, Nov. 23, 1921, the motion to strike off the appeal is dismissed and the plaintiff is allowed fifteen days from the filing of this opinion to call on the appellant by a rule to perfect his affidavit and bail as herein specified, or the defendant may so perfect his affidavit and bail within the said time.

From M. I. Potter, Middleburg, Pa.


text:
    Oak Lane Baptist Church v. Brooks.

      Vendor and vendee — Executory contract — Defective title.

    1. In an action by vendor against vendee for purchase money, it is a good defence that part of the land which the vendor undertook to convey was reserved by his grantor for a burial lot.

      Cemetery companies — Sale of land — Rights of owners — Charters—Trusts —Act of June 7, 1917.

    2. Where a church holds title to land under restrictions, requiring it to use the ground for burial purposes, and the church has sold lots for burial purposes, it cannot sell the land thereafter without the consent of the lot owners; as to permit such a conveyance without the consent of the lot owners would be contrary to the trust imposed in the chain of title. Section 1 of the Revised Price Act of June 7, 1917, P. L. 388, has no application in such a case.
    Case stated. C. P. No. 1, Phila. Co., Dec. T., 1921, No. 4821.

      Harvey Gourley, for plaintiff; Thomas Stokes, for defendant.
    Feb. 7, 1922.
   Shoemaker, J.,

It was agreed by the parties hereto that a tender of a deed by the plaintiff to the defendant had been made for the premises described, and a demand of the purchase money made as per agreement for the sale of the land, and the defendant refused to pay the purchase money because the plaintiff was without power to convey a good and marketable title, and defendant was under no obligation to accept the deed and pay the purchase money.

That a religious society, grantee of the land, was granted -a charter of incorporation by the Commonwealth of Pennsylvania in 1836 under the name and style of “The Union Baptist Church, near Milestown.”

That the lay members of said corporation, upon petition to the Court of Common Pleas of Philadelphia County, were granted a charter on Sept. 13, 1909, as found in Charter Book No. 40, page 420, under the name and style of “Oak Lane Baptist Church,” the plaintiff herein.

That by due and legal proceedings the premises granted and devised by David Rorer to the said Union Baptist Church, near Milestown, were granted and conveyed by it to said Oak Lane Baptist Church by deed dated Dee. 5, 1912, in which deed the said Central Union Association of Independent Baptist Churches joined as grantor, thereby releasing to said grantee all of its contingent interest under the deed of David Rorer, dated June 17, 1833.

“An action for the purchase money of land is in legal effect a petition or bill for specific performance of the contract of purchase, and is governed by the same equitable principles:” Black v. American International Corp., 264 Pa. 260; Hoover v. Pontz, 271 Pa. 285. The plaintiff could not, therefore, in this action have compelled specific performance of the contract if the title were doubtful in a legal sense.

It appears by the case stated that the land was vested in the plaintiff’s predecessor by deeds dated June 17, 1833, June 5, 1837, and the will of David Rorer, dated May, 1853 (excepting a lot 8 feet by 20 feet reserved to the grantor and devisor, David Rorer, for a family, burial lot), to the only proper use and behoof of the plaintiff’s predecessor in title “as a place for holding their religious meetings and a burial ground, and for no other use forever,” and the part devised by the will of David Rorer “to be for the further good of the' church and to be laid out into burial lots.”

The plaintiff and its grantor complied with all the directions and conditions set forth in said deeds and will.

Deeds were given by the plaintiff and its grantor to purchasers of lots for burial grounds, among whom were David Rorer, grantor and devisor, and his family, which read as follows: “This is to certify that . . . has purchased of the corporation of the Union Baptist Church, near Milestown, in Lot No. —, a piece of ground, for a burial place (eight feet by ten), for the sum of . . . Dollars, which sum has been paid to the Trustees for said piece of ground, and which shall be held by said . . . his heirs and assigns, free forever.”

That the old church of plaintiff, erected in 1833, has since 1914 remained unoccupied and unused. A portion of land along Cheltenham Avenue, adjoining and to the north of the church, is not occupied or sold for burial purposes, although it can be so used. The land immediately west of the church is used for burial purposes, and the whole of the land, known as the old ground, is the land given by David Rorer by his deed of June 17, 1833, and by his deed restricted “for the holding of religious meetings and for a burial ground, and for no other use forever.” The new ground immediately west of the old ground is used entirely for burial purposes, and is the land given by David Rorer by his will dated May 7, 1853, “said lot to be for the further good of the church and to be laid out into burial lots.”

The only parties to these proceedings are the plaintiff and defendant, the purchasers of lots not appearing of record, some, however, appealing by counsel at the argument and protesting against the sale.

Chief Justice Moschzisker, in Schuldt v. Reading Trust Co., 270 Pa. 360, said “that a court should never undertake to declare title to real estate good and marketable unless all the parties in interest are present on the record; and where the controlling question for determination is the construction of a written instrument, the case stated should set forth the document in full, with all conceivable relevant facts,” which was repeated in Hoover v. Pontz, 271 Pa. 285, opinion by Justice Simpson.

A decision in this case could only be justified upon the ground that “the controlling question for decision is the construction of a written instrument and the case stated sets forth the document in full, with all conceivable relevant facts,” as it appears that all the parties in interest, namely, the lot owners, are not parties to the record.

In considering whether the deed vested title in plaintiff, we are met with the reservation of the grantor, David Rorer, of the lot 8 feet by 20 feet from the grant.

This in itself would seem to defeat the plaintiff’s action and render it unable to give title to all the ground it contracted to sell: Saler v. Lessy, 76 Pa. Superior Ct. 15.

It is suggested, however, that the Revised Price Act of June 7, 1917, P. L. 388, gives the court authority to confirm the sale made in this case. The proviso to section 1 of said act is that “the court shall be of the opinion that such decree shall be to the interest and advantage of all those interested therein, and without prejudice to any trust, charity or purposes for which the real estate or ground rent shall be held, and without the violation of any law which may confer an immunity or exemption from sale or alienation.”

It will hardly be contended, however, that the part reserved by David Rorer could be affected by action founded on the act, and as to the balance of the land, we think the conveyance would be contrary to the trust or purpose imposed upon it by the conveyances and devise.

It is admitted in the case stated, paragraph 6, that “the church now seeks to dispose of said land and improvements that they may be used for general purposes other than for religious meetings and burial purposes.” The fact that there is now pending in the Court of Quarter Sessions an application made by this church, asking for leave to remove the bodies from the burial ground, shows that its proceedings here are a step to divest the rights of the lot owners. It is true that the church requests leave to sell the land subject to the rights of sepulchre, but since it is admitted that the sale under the decree is to be followed by an attempt to do away with the rights of sepulchre, it will be seen that the real purpose is to divest the lot owners and members of the congregation of their rights under the purpose for which the land is deeded.

We are, therefore, of the opinion that the sale does not meet the proviso of section 1 of the act, for “when all the facts are considered together, it cannot be denied that the action of the church, if consummated, will take away from the lot owners the very right and title to the property which the church itself has granted them and for which it has been paid. This, it seems to us, is a clear case of prejudicing the rights of persons for whom the charitable trust was created:” Gumbert’s Appeal, 110 Pa. 496; Pitcairn v. Homewood Cemetery, 229 Pa. 18.

Judgment is accordingly entered for defendant and an exception allowed plaintiff.


author: Terry, P. J.,

text:
    Noxen Township Poor Dist. v. Monroe Township Poor Dist.

      Poor law — Order of relief — Settlement—Order of removal — Act of April 6, 1905, sect. 1.

    1. Under the Act of April 6, 1906, P. L. 112, an order of relief need not precede an order of removal.
    2. A person who is chargeable as a pauper in one district, and is receiving aid, and is taken by the overseers of such district to another district, cannot acquire a settlement therein as long as such assistance continues. He does not come tona fide to inhabit therein.
    Citation for an order of removal. Q. S. Wyoming Co., Jan. Sess., 1921, No. 1.

      Asa S. Keeler, for citation; Joseph F. Ogden, for respondents.
    Aug. 1, 1921.
   Terry, P. J.,

This is a proceeding under the Act of April 6, 1905, P. L. 112, instituted by the Overseers of the Poor of Noxen Township to secure an order removing one William Long, his wife and their three minor children, poor persons, from that poor district to Monroe Township Poor District, where, it is alleged in the petition, they have a legal settlement.

From the pleadings and the depositions taken we find the following

Facts.

1. Said Long and his family lived in and became chargeable to Monroe Township, Wyoming County, in 1915, and it is undisputed that they then had a legal settlement there.

2. In 1915 said family moved to Kingston, and thence to Luzerne Borough, Luzerne County, where they were assisted by Monroe Township Poor District. In January, 1917, after notification from the poor law officers of Luzerne Borough, the Overseers of Monroe Township, unable to secure a habitation for the Longs in Monroe Township, rented a house for them in Noxen Township, Wyoming County, and moved them into it, where they have since lived. When they came into Noxen Township, their legal settlement was in Monroe Township.

3. In 1917, after the Longs were moved to Noxen Township, and until May 3, 1918, the Overseers of Monroe Township furnished them necessary fuel, provisions and medical attendance.

4. The Overseers of Monroe Township paid the rent for the house in Noxen Township, occupied by the Long family, from the time they were moved into it in 1917 until Nov. 22, 1919. On the date mentioned said overseers paid the owner of that house $87 as such rent to that time. Since then no rent has been paid by any one.

5. On or about May 3, 1918, the Monroe Overseers caused the arrest and prosecution of Long for neglect to support his family, and he was sent to jail, hut a month later was discharged by the court. At the time of his arrest and while before the justice who committed him, Long told the Monroe Overseers he didn’t or wouldn’t want any more help from them, and to take him off their books, which was immediately done. The day before such arrest, the Monroe Overseers furnished said family a small amount of provisions, and Long testified that one of said officials threatened to make him trouble the following day, at which time Long was taken to jail. It does not appear that the Noxen Overseers were notified of the aforesaid entry in the Monroe poor books.

6. Since going to Noxen, Mr. Long has been in poor health, frequently unable to work, his wife has required medical treatment and so have some of their children. During such period they have been in destitute circumstances much of the time, needing, but not always promptly'receiving, aid until in June, 1920, after refusal of the Monroe Overseers to furnish it at the instance of the Noxen Overseers, to whom Long then applied for relief, upon notice to the Longs and the Monroe Overseers, a hearing was had before two justices to obtain an adjudication and an order of relief, which was attended by all parties. Apparently such order was then made, though the original has not been produced and the copy offered was objected to. Considerable testimony was taken concerning the making of such order, but as it has been decided that an order of relief need not precede an application for an order of removal, under the Act of April 6, 1905, P. L. 112, Westmoreland County Poor District v. Kiskiminetas Township Poor District, 54 Pa. Superior Ct. 584, there is no occasion for our consideration of the question raised by the objection.

7. Immediately following such action by the two justices, the Overseers of Monroe Township were notified by the Noxen Overseers that application would be made to this court for an order of removal. While this was denied in the answer filed to the petition, it was conceded, upon the argument before the court, that such notice was given and it is not now a matter of dispute.

8. When that notice was given, the Long family were poor, indigent persons, and had been such periodically during their stay in Noxen Township, where they lived in a house rented for them by the Monroe Overseers, the rent for which was paid by the latter officials up to Nov. 22, 1919.

9. Since June, 1920, this family has been aided by Noxen Township Poor District, which has expended or incurred liability for them, up to the time of taking the depositions submitted to us, amounts for necessary aid as follows: To Dr. C. L. Boston, for professional services, $35.50; to Risley & Crosby, for coal, provisions, clothing, etc., $242.62; total, $278.12.

Conclusions of law.

1. That William Long, Mrs. William Long, his wife, and their three minor children, Madeline, Mervin and Florence Long, are poor, indigent persons, now living in Noxen Township Poor District, but whose legal settlement is and has been since 1915 in Monroe Township Poor District.

2. That in June, 1920, after refusal of relief by the Monroe Township Overseers, the said Longs applied to and became chargeable therefor upon said Noxen district; the officials of which thereupon gave notice to the Monroe Overseers of their intention to institute this proceeding, in which it appears that the settlement of said poor persons still remains in Monroe Poor District; and, in consequence, the order of removal prayed for should be granted, and the proper charges for the relief of said poor persons, furnished them by Noxen Poor District, together with the expense of removing them and the costs of this proceeding, should be paid by Monroe Poor District.

Discussion.

Admittedly the poor persons involved in this case had a settlement in Monroe Township in 1915, which was not lost, unless by their residence in Noxen a settlement was acquired there. The only manner in which, under the evidence in this case, they could have transferred their Monroe settlement to . Noxen was by going — using the language of the Act of 1905 — bona fide to inhabit therein and continuing to reside there for one year. That the Longs resided in Noxen for more than a year before this ease was begun is true, but they did not go there bona fide to inhabit. They were taken there by the Monroe Overseers because no house could be secured for them in Monroe Township, and the one obtained for them in Noxen was rented by the Monroe district officials. Other relief was subsequently furnished these poor persons by the latter district. Under such circumstances, the settlement in Monroe necessarily remained. While relief was being furnished these indigent ones by Monroe, Noxen could not become their settlement: Overseers v. Overseers, 18 W. N. C. 141; Destitute Home v. Fayette County Almshouse, 72 Pa. Superior Ct. 491. Nor could Monroe district terminate its liability by procuring Long’s authorization to its overseers to take his name from their books upon his declaration of no need for help at a time when their action, then being taken, belied such declaration. See Brady Overseers v. Clinton Overseers, 148 Pa. 311.

Monroe Township Poor District, within a year preceding the commencement of this proceeding, recognized its liability for the support of the Long family by paying their rent for the house in Noxen occupied by them, and the doubtful explanation thereof offered by the Monroe Overseers does not rebut the legitimate deduction therefrom that the settlement of the Longs was still in Monroe Township. As, therefore, the legal settlement of the poor persons named is in Monroe Poor District, the prayer of the petition for their removal thereto must be granted. If the costs and charges cannot be agreed upon, they will later be ascertained by the court when required so to do.

The requests submitted by Monroe district, with the answers thereto, are hereto appended. The motions to quash the proceedings for want of a proper order of relief are overruled.

Order.

Aug. 1, 1921, this case having been duly heard and determined upon its merits, as provided by law, it is adjudged that the said William Long, Mrs. William Long and their minor children, Madeline, Marvin and Florence Long, poor, indigent persons, now in and chargeable to Noxen Poor District, have a legal settlement in Monroe Township Poor District. Accordingly, the Overseers of the Poor of Noxen Township District are hereby authorized and directed to remove said poor persons to the Poor District of Monroe Township, and to deliver them, together with a certified copy of this order, to the Overseers of said Monroe district, who are hereby required to receive said poor persons as settled inhabitants of Monroe Township Poor District. The costs of this proceeding, the expense of such removal and the proper charges of the petitioners for the relief of said poor persons are directed to be paid by Monroe Poor District, which, if not agreed upon, will be ascertained by the court.


author: Newcomb, J.,

text:
    Hartman Construction Company v. Zehnder.

      Mechanic’s Ken — Demurrer—Averments in lien — Construction.
    A mechanic’s lien filed under the provisions of the Act of June 4, 1901, § 10, P. D. 431, 434, Silent as to the kind of construction for which a lien is claimed, whether new or fitting up or equipping an old structure, is void for uncertainty, and will be stricken from the record.
    Motion to strike off mechanic’s lien. C. P. Lackawanna Co., Mechanic’s Lien, No. 4711.

      J. E. Watkins, for plaintiff; R. W. Rymer and C. B. Comegys, for defendant.
    April 16, 1921.
   Newcomb, J.,

The claim—filed Dec. 20, 1920 — is for installing an electric wiring system in a house in this city at defendant’s instance and request, not in writing. The period during which the work was done extended from Feb. 17th to June 22, 1920. Whether the lien was filed in time, therefore, depends upon the character of the structure. If it was part and parcel of new construction, the claim was entered within the time prescribed by law. On the other hand, the right of lien had theretofore expired if it was a case either of alteration or of “fitting up or equipping old structures with . . . useful appliances:” Act of June 4, 1901, § 10, P. L. 434.

As to which of the two kinds of construction is intended in this instance the claim is silent. Hence, the demurrer.

It is objected that it is bad for the omission of a distinct averment in that particular; and it is believed the objection is well taken.

As the law stood prior to the Act of 1901, it had been so decided: Wharton et al. v. Investment Co., 180 Pa. 168. True, at that time the two classes of liens depended for their existence upon different acts of assembly, while at present both are included in the one statute. But that circumstance cannot vary the question involved nor affect the ground upon which the decision was based, which was simply this: The claim must show on its face to which class it belongs, because (1) that is demanded by the general rule governing the pleading of a cause of action of purely statutory origin; and (2) it is the owner’s right to know under which of the two his property is sought to be burdened.

No rational ground for supposing that right has been abridged can arise from the mere fact that both classes have in the meantime been provided for by appropriate sections of a single statute which amounts to a codification of its various predecessors.

This claim, therefore, must be deemed void for uncertainty. The rule to show cause is accordingly made absolute and the lien stricken from the record.

From M. E. McDonald, Scranton, Pa.