author: Biddle, P. J.,

text:
    Pyles, Executrix, v. Bosler, Executrix.

      T. E. Vale and H. T. Ames, for plaintiff; J. P. McKeehan, for defendant.
    Dec. 31, 1927.
   Biddle, P. J.,

The question raised by the record in this case is not one of legal liability, but rather one as to the remedy through which such a liability is to be enforced. The plaintiff is the owner of a number of bonds, the payment of which is alleged to have been guaranteed by Frank C. Bosler, the defendant’s testator, during his lifetime, which bonds did not, according to their terms, mature until March 1, 1927. Frank C. Bosler, the decedent, died on Nov. 25, 1918, testate, and letters testamentary on his estate were issued to his widow, Hannah Elizabeth Bosler, to whom the bulk of his real estate was devised. On Nov. 10, 1919, the plaintiff filed in the office of the prothonotary of this county, to No. 109, December Term, 1919, her claim based on the alleged guaranty of the decedent of the bonds referred to, and had her claim indexed in accordance with the provisions of the Fiduciaries Act of June 7, 1917, P. L. 447, as amended by the Act of June 7, 1919, P. L. 412. On Oct. 22, 1923, the entry of her claim was renewed in said office in accordance with the provisions of the act of assembly referred to, said renewal being given the number and term No. 143, December Term, 1923. On July 21, 1927, the plaintiff caused a writ of scire facias based on the entries to No. 109, December Term, 1919, and No. 143, December Term, 1923, to be issued to determine the liability of the said decedent on the alleged guaranty; to continue the lien of the said claim as it was alleged to have been preserved by the entries on Nov. 10, 1919, and Oct. 22, 1923, and to. show cause why the said liened premises with the appurtenances ought not to be taken in execution and sold to satisfy the debt and interest. No other basis for the writ of scire facias, except the two entries above referred to, was averred or appears. On Aug. 9, 1927, the defendant presented her petition, averring said facts, and that no action has ever been commenced to establish liability against her on said claim other than said writ of scire facias; averring that that form of action was irregular and improper, and that there was no authority for the issuance of a writ of scire facias against her before there had been a judgment determining the liability of the decedent’s estate and the amount thereof; and on said date the court granted a rule upon the plaintiff to show cause why the said writ of scire facias should not be quashed. To this rule an answer was filed, which, while not denying any of the averments of fact of the defendant’s petition, averred that the proceeding by writ of scire facias was legal and proper, and that the rule to show cause should be discharged. The matter comes before us for determination in this form.

One of the grounds urged on behalf of the defendant, as we understood it, is that Hannah Elizabeth Bosler, as devisee and owner of the land against which it is sought to sustain a lien, could not be joined in the original proceeding with the personal representative of the decedent. Prior to the passage of the Act of 1917, above referred to, this contention was unquestionably correct: Wetmore v. Dobbins, 2 Sup. Ct. 110.

But the express language of that act, as amended, provides that: “The plaintiff may, at his election, join such surviving spouse and heirs, and the devisee, alienee, or owner of the land, in such original action.” No reason has been advanced to justify the court in holding this provision invalid, and as it affects merely the remedy, we see no reason why it is invalid or why the plaintiff in the present case might not avail herself thereof; and this ground of objection cannot, therefore, be sustained.

The substantial objection in support of the rule to quash is that there is no authority for using a writ of scire facias as the original action to determine the liability of the estate of a decedent growing out of a contract entered ' into by the decedent during his lifetime. The determination of that question involves the consideration of paragraphs (a) and (b) of section 15 of the Act of June 7, 1917, P. L. 447, as amended by the Act of June 7, 1919, P. L. 412, those two paragraphs providing as follows:

“(a) No debts of a decedent . . . shall remain a lien on the real estate of such decedent longer than one year after the decease of such debtor, unless within said period an action for the recovery thereof be brought against the executor or administrator of such decedent . . . and be duly prosecuted to judgment.”

“(b) No bond, covenant, debt, or demand, which is not payable within the said period of one year after the decease of the debtor, shall remain a lien upon the real estate of such decedent longer than one year after his death, unless, within said period after his decease, a copy or particular written statement thereof be filed in the office of the prothonotary of the county where the real estate to be charged is situate, and be indexed against the decedent and the executor or administrator in the judgment index in the county where the executor or administrator resides, and also in the county in which the real estate sought to be charged is situate; and then to be a lien only for the period of one year after the said bond, covenant, debt or demand becomes due, unless, within said period of one year, an action for the recovery thereof be brought, indexed and duly prosecuted to judgment, as provided in clause (a) of this section: Provided, that when such bond, covenant, debt or demand does not become due within five years from the date of the death of such decedent, a renewal of the entry of such action upon the judgment index as aforesaid shall, upon the order of the plaintiff or his attorney, duly filed in said prothonotary’s office, be noted on said index within every recurring period of five years, otherwise the same shall cease to be a lien.”

The contention of the plaintiff in this case is that the debt of the decedent did not become due until March 1, 1927, more than eight years after his death, and that, of course, no action for its recovery could be instituted prior thereto, except the filing of a copy or particular written statement of her claim with its renewal, a procedure that was followed in the present case; and the plaintiff further contends that the filing and renewal of this statement constituted such an action as will sustain a writ of sdre facias, and that this proceeding was, therefore, regular and valid. The plaintiff further contends that a motion to quash the writ cannot be availed of unless some irregularity in the proceeding appears on the face of the record. In the present case, however, if the contention of the defendant is correct, namely, that the proceeding to No. 263, September Term, 1927, is the original proceeding to determine the liability of the decedent and that sdre facias is of itself an improper form of action for such purpose, then the record itself does disclose such irregularity as is sufficient to justify and sustain a motion to quash. So that, as we view it, the sole question for determination is the latter one, namely, is a writ of scire fadas the proper proceeding under the conditions outlined above?

After a careful consideration of the able and exhaustive argument of the learned counsel for the plaintiff, together with the brief submitted by them, we are unable to agree with their contention. They have shown no statutory authority and no judicial recognition or power outside of a statute to bring an action in this form to determine original liability of a decedent. Indeed, no case has been cited or called to our attention where anything of the sort was even attempted; and, while this fact is not necessarily conclusive, it is very persuasive of the contention of the defendant that the plaintiff has adopted an erroneous form of procedure. The plaintiff contends that what has been done here is closely analogous to the proceeding for a recovery under a municipal or mechanic’s lien; and this, we think, must be admitted. But there is a material difference in regard to them. In both of those cases, the plaintiffs are able to point to statutes not merely permitting but directing such procedure; a condition that, as we view it, is lacking in the present case, unless it can be drawn from the language of the act of assembly quoted above. Our construction of that act is that, instead of authorizing the procedure adopted by the plaintiff here, it practically directs another form of procedure. Had Frank C. Bosler lived until after March 1, 1927, and had the present plaintiff proceeded to enforce the liability which she insists exists under his guaranty of the payment of the bonds in question, it can scarcely be contended that she would have adopted any form of action other than an action of assumpsit. Had the bonds in question matured on March 1, 1918, it would have been necessary, under the express provisions of the Fiduciaries Act, for her to have brought an action against his executrix within a year of his death. And, again, it will scarcely be contended that any other form of action than one of assumpsit would have been instituted. At least, it was not so argued before us, or in the brief submitted; and we have not been referred to any instance in which anything but an action of assumpsit would have been brought. This would constitute the “original action” in which the owner of the land liened might be joined. If that was the proper form of action in case the debt had been demandable at the death of the decedent, no convincing reason has been advanced for adopting a different procedure in an action to be brought where, in order to preserve the lien against the decedent’s real estate, it has become necessary to file a copy of the bond, contract or particular statement of his claim, as was done in this case. And, again, we are unable to see that any different form of procedure is called for where, as here, it is alleged that the demand against the decedent did not become due within five years from the date of his death. The only difference in these various cases is the time at which the “original action” may be commenced. There is nothing to indicate that the different times require different forms of such “original action.” The filing of the statement by the plaintiff within one year of the death of Frank C. Bosler, and its renewal in 1923, did not, as we understand it, constitute such an action as is mentioned in the act in question, but merely constituted a notice to all the parties in interest of the possibility of bringing such an action after the demand became due: Com. v. Cooper, 192 Pa. 424.

It is pointed out by the learned counsel for the plaintiff that, in the amendment of 1919, the filing of the statement is spoken of as “the entry of such action,” but the mere fact that the legislature used that word would not make the filing in question an action within the technical legal meaning of the term; and this is recognized in the act itself, because, in speaking of the procedure against the personal representatives and devisees, the proceeding is spoken of as one that shall “be duly prosecuted to judgment;” and it is not pretended that the statement filed in 1919 and in 1923 could itself, by any known procedure, be prosecuted to judgment. In substance, if not in form, we cannot help feeling that the learned counsel for the plaintiff felt about this very much as the court does; for an examination of the pleadings filed by them in the present case shows that in their prsedpe for the writ of scire fados, and in the writ itself, they approached much nearer to the procedure in an action of assumpsit in most respects than they did to the procedure in an ordinary writ of scire fadas to “revive and continue the lien of a judgment et quare executionem non.” About the only changes that would be required in the priecipe for the present writ in order to make it answer as a plaintiff’s statement of claim in an action of assumpsit on the alleged guaranty would be to so divide its various paragraphs that no one would contain more than a single averment and to number the paragraphs when so divided. It was not contended on behalf of the plaintiffs that the action of assumpsit would not lie to enforce the plaintiff’s claim against the decedent’s personal representative; but it was contended, under the authority of Com. v. Cooper, supra, that to bring such an action would be to lose the lien against the real estate devised to Hannah Elizabeth Bosler individually. We cannot see that this loss of lien would follow, nor do we so construe the decision in Com. v. Cooper. The conditions there are so radically and essentially different from the ones set out in the present case that we feel that the conclusion reached in that case would not apply as the learned counsel for the plaintiff feared that it would apply here. We think that the provisions in the Act of 1917, as amended in 1919, permitting the joinder of the owner of the land in the original proceeding, would wholly obviate the risk feared by the learned counsel for the plaintiff; and we feel that their procedure in this case should have been by an action of assumpsit, with a reference to their proceedings to continue the lien of their claim against the real estate of the decedent, very much in the manner followed in their prsedpe for the present writ. As the ease stands, therefore, we are of opinion that the defendant is entitled to have her rule made absolute. It was suggested at the argument, however, that if the court was of the opinion that the present proceeding was irregular, the plaintiff might apply for an amendment in the form of the pending action by changing the action from a writ of scire facias to an action of assumpsit. An amendment of this kind, under the provisions of the Act of May 10, 1871, P. L. 265, was allowed in the case of Com. v. Weiss, 6 Luzerne Legal Reg. 3, where an action of sdre facias sur recognizance in the Orphans’ Court was changed to an action of debt on a bond. We can see no distinction in principle between that case and the present one; and, if such an amendment was asked for, we should feel disposed to allow it, as such allowance would not change the cause of action and would not, as we view it, prejudice the rights of either party; and our order in the case will be made accordingly.

And now, Dec. 31, 1927, it is ordered that if, within ten days from the filing of this opinion, the plaintiff shall present her petition for permission to change her form of action, then, if such amendment shall in due course be allowed, the present rule shall be dismissed; otherwise, it will be made absolute and the writ of scire facias quashed and set aside.

From Francis B. Seilers, Carlisle, Pa.


source: Caselaw Access Project

author: Koch, P. J.,

license: Public Domain

text:
    Gray v. Mill Creek Coal Company et al.

      A. D. Knittle, Willis M. Parnell and George M. Gerber, for plaintiff.

      John F. Whalen, George M. Roads, M. M. Burke and Roscoe R. Koch, for defendants.
    April 30, 1928.
   Koch, P. J.,

-Prom the statement of claim we glean the following, which must be assumed as facts:

The plaintiff resides in the Borough of Port Carbon and owns valuable real estate there which abuts on the Schuylkill River on the east, and the defendants are engaged in the mining and preparing of anthracite coal on the headwaters of said river and on Mill Creek and their respective tributaries. The channel of Mill Creek became obstructed by deposits of mine refuse, and the defendants, in 1923, cleaned out Mill Creek above its junction with the Schuylkill River and deposited said refuse in the bed of said river eastwardly of, and above, the plaintiff’s property, thereby narrowing the said river to about half, or less than half, of its former width. For the purpose of transferring such deposit into the bed of the Schuylkill River, the defendants had a pumping station on the eastern bank of said river northwardly from the plaintiff’s property. And a short distance southwardly from the pumping station the defendants erected a barrier, beginning at the east bank of the river and running diagonally southwestwardly over half way across the river. The barrier was made of upright timbers and posts several feet in height, and the effect thereof was to turn the current of the river from the eastern bank toward the western bank. The barrier had disappeared when the statement of claim in this case was filed, but the effect of the barrier was the depositing of coal dirt and other material along the eastern bank of the river in the vicinity of the removed barrier, so that the current of the river has been permanently changed'to its western bank. Coal dirt has been deposited in the bed of the Schuylkill River to such an extent by coal mining operations on the watersheds ,of said river and of said creek that it has raised the bed of the river four or more feet above its natural channel; and, owing to that fact and the narrowing of the river and the change of its course, the property of the plaintiff was flooded by said river on Sept. 30, 1924, and since that date the plaintiff’s property has been repeatedly flooded by the overflow of the Schuylkill River and by seepage on to the lots and into the plaintiff’s cellar in ordinarily high water. The waters of the river are heavily charged with coal dirt, and said dirt is deposited on the plaintiff’s land, owing to the change in the channel which was made by the defendants, and thereby the plaintiff has been, and is, greatly damaged. And, also, the overflow on her property will occur on all occasions of high water, the conditions in the bed of said river being of a permanent nature. Plaintiff claims that her property, which had a value of $50,000, has been depreciated to the extent of $35,000. She also claims $5000 additional for damages done to heating apparatus and to personal property in the cellars of her houses and elsewhere on her property. And damages are claimed up to the date of the trial.

In the statement of claim it is also averred that the defendants have been, and are, respectively engaged in the business of mining and preparing anthracite coal for the market, and that they jointly and severally participated in cleaning out and removing said coal dirt from the said Mill Creek.

The affidavit of each defendant is very similar to the rest.. Briefly stated, it is therein averred that the statement of claim does not allege any fact which discloses any legal liability for the alleged damages suffered by the plaintiff; that there is no averment that the refuse material in Mill Creek was deposited there by the defendants or by any of them; that there is no averment of what acts were done severally and what acts were done jointly by the defendants; that such averments result in a misjoinder of parties and are vague, uncertain and ambiguous; that there is no averment that any of the defendants deposited any of the coal dirt in the bed of the river in the vicinity of the plaintiff’s property so as to raise the river four or five feet, causing in part or in whole the plaintiff’s damages; that there is no allegation as to when the coal dirt which raised the river-bed was deposited, nor by whom, and that none of the defendants are responsible for the tortious acts of any of the other co-defendants, it being alleged in said statement of claim that the defendants are severally engaged in conducting mining operations along the headwaters of said river and creek; that it is not alleged in said statement by whom or when the water of said river became heavily charged with coal dirt; and that there are no allegations of fact in the plaintiff’s statement of claim which would warrant the recovery of permanent damages to the plaintiff’s property from the defendants or from any of them.

When this case was argued, counsel for the defendants referred to a suit between the same parties which is now pending in this court, sitting in equity, to No. 2, March Term, 1925, in which suit, they allege, jurisdiction of all the subject-matter in this case has been taken. But the question of jurisdiction cannot be raised in that way. We may not take such judicial notice of a case that we even know is pending in any of our courts: Steel v. Levy, 282 Pa. 338, 342. But “when once the jurisdiction has (thus) attached, equity will itself proceed to round out the whole circle of controversy, by deciding every other contention connected with the subject-matter of the suit, including the amount of damages to which plaintiff is entitled because of injuries theretofore sustained:” Gray v. Philadelphia & Reading Coal and Iron Co., 286 Pa. 11, 16. The question of jurisdiction may be raised at any time. So, if jurisdiction has been taken of this case on the equity side of this court, it may exclude our trial of the case at law, provided a proper pleading may be entered for the purpose. But as there is none now before us, we will dispose of the question of law on its merits.

This suit is brought for the recovery of consequential damages resulting from the narrowing of the channel by the building of a barrier in the Schuylkill River and diverting the flow of the water so as to work injury to the plaintiff’s property by the flooding of the same on a particular date and also in ordinarily high water ever since that date. The suit is not brought to recover damages which resulted to the plaintiff by reason of any of the defendants’ mining operations; the suit is brought to recover damages that are caused to the plaintiff’s property by the washing thereon of mine refuse and other dirt which find their way from the Schuylkill River upon the property of the plaintiff by reason of the erection of a barrier in the river by the defendants when they cleaned out Mill Creek several years ago. The damages are claimed up to the date of trial because, every time when there is ordinarily high water, the plaintiff suffers 'from its effects on account of the erection of the said barrier. The channel of the river has been permanently changed and narrowed, and that permanent change in the channel often causes damages. The plaintiff’s statement of claim contains unnecessary averments, but they are not up for consideration under the present state of the pleadings.

The plaintiff’s pleading is not bad because it happens to say that, in the year 1923, the defendants jointly and severally participated in cleaning out and removing coal dirt from Mill Creek and depositing the same in the Schuylkill River and narrowing the river channel to about half, or less than half, of its former width by the building of a barrier therein. It is immaterial whether the defendants acted separately or by concert, or whether they acted wholly independently of each other, when they participated in cleaning out and removing coal dirt from said Mill Creek above its junction with the Schuylkill River and depositing the same in the bed of the Schuylkill, by which deposit the bed of the river was narrowed to about one-half, or less than one-half, of its former width.

The proportionate part of the contribution of any one of the defendants to the creation of the nuisance is not material. For suit may be maintained against any one or against all jointly: Comey v. Philadelphia Traction Co., 175 Pa. 133. If the defendants narrowed the channel so as to render its capacity insufficient to carry the overflow of water, they are liable for the resulting damages: Haus v. Bethlehem, 134 Pa. 12; Miskel v. Lehigh Valley Coal Co., 85 Pa. Superior Ct. 357. In constructing the barrier, it was not necessary that the defendants should act in concert to become joint tortfeasors. They became joint tortfeasors by the result that their individual acts taken together created; and if any of the defendants are not liable for any such acts, they may be relieved when the discovery is made upon the trial of the ease: Act of June- 29, 1923, P. L. 981.

The question of law is decided against the defendants.


author: Martin, P. J.,

text:
    In re Vitagraph, Inc.

      Wolf, Bloch, Schorr & Solis-Cohen, for appellant; John R. Jones, contra,
    June 28, 1928.
   Martin, P. J.,

Appellant intending to present a motion-picture film for public exhibition, submitted it for approval to the State Board of Censors.

Instead of printing upon the film the descriptive language, and that which represented the words of the actors, appellant proposes to employ a “Vita-graph” — an apparatus consisting of a disk record like those used on a phonograph and revolved on a turntable. A needle and sound-box are placed upon the record, and the revolution of the record reproduces the sound, which is conveyed to the audience by an amplifier. The speed with which the turntable is revolved corresponds to that of the reel on which the motion picture appears, so that the language and action are co-ordinated. The correspondence of speed is produced by the connection of the sound-reproducing machine and the moving-picture machine with a common axle.

The censors requested appellant to inform them as to the language proposed to be employed as part of the picture, to enable them to exercise an intelligent discretion in determining whether or not the picture as a whole is moral and proper, or sacrilegious, obscene, indecent or immoral, or such as tends, in the judgment of the board, to debase or corrupt morals. Appellant refused to submit to the board the language they proposed to employ in the picture. In the absence of this information, the board disapproved the film and informed appellant that without a knowledge of the language to be uttered in connection with the picture, it was impossible to determine whether the motion picture is moral and proper or will tend to debase or corrupt morals.

The Act of May 15, 1915, P. L. 53-1, creating the Board of Censors, provides, in section 3, the method of appointing members of the board, and in section 6 defines the duties, powers and prerogatives of the board to examine or supervise the examination of all films, reels or views to be exhibited or used in Pennsylvania, and requires that the board approve such films, reels and views which are moral and proper, and disapprove such as are sacrilegious, obscene, indecent or immoral, or tend, in the judgment of the board, to debase or corrupt morals.

“The power and authority given the board to determine the matters properly brought before them in the exercise of their discretion is not to be understood [as] judicial discretion, but such discretion as may be expected from persons well qualified by education and experience to act as censors under the act; that is to say, persons with education and experience sufficient to enable them to understand the purpose and object of the particular legislation with which they have to deal, and its several provisions, and for them to know what are the common standards of morality which the act seeks to protect, and to act intelligently when it becomes their duty to discriminate fairly between pictorial exhibitions which are consonant with the established canons of morality and such as tend to lower and degrade such standards. It follows that the discretion here committed to the Board of Censors is not to be narrowed by technical and official rules when the exercise is one of judicial discretion; nor is it possible to measure that discretion by any fixed standards. What is required is that it must be commensurate with the intelligent understanding by the board of the object and purpose of the law, associated with an honest desire and endeavor on its part to impartially enforce its provisions:” Goldwyn Distributing Corp., 265 Pa. 335, 341, 342.

“Where such inquiry arises, the investigation starts with the presumption that the tribunal making the order or decree appealed from acted within the reasonable scope of its power and discretion, and it can be called to answer only as the party complaining, upon whom rests the burden, can show that the decision of the board rests upon some ground that did not authorize the exercise of discretion. . . . The general rule is that the onus is upon the appellant to show affirmatively that the decision was made on a ground not involving the exercise of discretion — (citing) 3 Corpus Juris, 471, § 289:” Goldwyn Distributing Corp., supra, 342.

“The evident intent was to grant the right of appeal to the Common Pleas, so that tribunal could correct any arbitrary and oppressive orders which the Board of Censors might make, and nothing more; in other words, that the court might reverse the censors when the latter were guilty of an abuse of discretion. This is the ordinary rule to which, on appeal, even this court restricts itself in reviewing an exercise of discretion, particularly of administrative officials:” Goldwyn Distributing Corp., supra, 339, 340.

“In view of the unqualified right given the board to determine such question upon its own judgment and the utter impracticability of submitting it to other arbitrament, to the extent indicated must the complainant’s proof reach to justify interference on the part of the court with the board’s discretionary power, except in cases where the alleged abuse is attributed to perversity of will, passion, prejudice, partiality or moral delinquency; where such is the case, a very different rule obviously obtains:” Goldwyn Distributing Corp., supra, 343.

Section 24 of the Act of May 15, 1915, P. L. 534, 539, requires every person intending to sell, lease, exhibit or use films, reels or views in Pennsylvania to furnish the board, when the application is made for approval, a description of the film, reel or view to be sold, exhibited or leased and the purpose thereof, and to submit the film, reel or view to the board for examination.

“Pictures will be judged, as a whole, with a view to their total effect; those betraying evil in any form which may be easily remembered or emulated will be disapproved:” Goldwyn Distributing Corp., supra, 345.

It is contended by appellant that the spoken words announced from a vitagraph, while part of the “exhibition,” are no part of the film, and are not within the power of the board to censor.

If this narrow construction is adopted, a picture disapproved by reason of printed titles and words accompanying the film being determined by the censors to produce a picture that is immoral, improper, sacrilegious, obscene or indecent may be submitted for approval with the objectionable wording eliminated, and, after being approved as harmless, be exhibited with all the debasing and corrupting features restored by publishing the accompanying language on a vitagraph as a part of the “exhibition.”

The Act of 1915, creating the Board of Censors and defining their powers, clearly indicates the purpose of the legislators to protect the public against the exhibition of reels that are sacrilegious, obscene, indecent or, in the judgment of the board, tend to debase or corrupt morals. To construe the act as vesting the Board of Censors with power to prevent the exhibition of films which corrupt public morals when exhibited with printed titles, and to hold the board powerless to prevent an exhibition of the films when the same debasing features are published as part of the picture by a vitagraph, would result in neutralizing and destroying the act of assembly.

That the vitagraph is a mechanism unknown to the world when the Act of 1915 was passed does not prevent the remedial provision of the act being extended to the suppression of an evil made possible by its employment as part of a picture.

“A general law may, and frequently does, originate in some particular case or class of cases which is in the mind of the legislature at the time, but so long as it is expressed in general language, the courts cannot, in the absence of express restrictions, limit its application to those cases, but must apply it to all cases that come within its terms and its general purpose and policy. Hence, statutes framed in general terms apply to new cases that arise, and to new subjects that are created from time to time and which come within their general scope and policy. It is a rule of statutory construction that legislative enactments in general and comprehensive terms, prospective in operation, apply alike to all persons, subjects and business within their general purview and scope coming into existence subsequent to their passage. Thus, an automobile may come within the provisions of an act relating to vehicles generally, although the statute was passed before the invention of automobiles; and an act passed before moving pictures came into vogue, to prohibit the opening of places of public amusement on Sunday, may be applied to moving-picture shows, if the terms of the statute are broad enough to embrace such places of amusement. Likewise, a statute against gaming may be so framed as to cover gaming devices that may later be invented or become known. Tariff laws are made for the future, and the fact that at the date of an act imposing duties goods of a certain kind had not been manufactured does not withdraw them from the class to which they belong when the language of the statute clearly and fairly includes them. A fellow-servant statute which, on its face, applies to commercial railroads may be held to apply to ‘logging’ railroads, though they were unknown when the statute was enacted. A provision in a railroad charter defining the rights and duties of the company with relation to streets and highways may be held to be applicable, not only to existing streets and highways, but also to those subsequently laid out and opened. An act limiting the time of prosecutions under penal statutes may extend as well to penalties created after as before the act. . . 25 Ruling Case Law, 778, 779.

A construction which would permit so palpable an evasion of the law, as the transmission of the printed words prohibited on a film to the disk of a vitagraph to be announced as part of the picture, would result in an absurdity.

In Nichols v. Halliday, 27 Wis. 406, it was held: "If one interpretation would lead to an absurdity and the other not, we must adopt the latter; so that interpretation which leads to the more complete effect which the legislature had in view is preferable to another.” Com. v. Quaker City Cab Co., 287 Pa. 161.

The Board of Censors was right in demanding that the language employed in conjunction with the proposed picture should be submitted to them before the film receives the approval of the board.

And now, to wit, June 28, 1928, the appeal of Vitagraph, Inc., from the final order of disapproval of the State Board of Censors of the motion-picture film entitled “Polly Moran, the Movie Chatterbox,” is dismissed and the action of the Board of Censors affirmed. Appellant to pay the costs.


author: Hicks, J.,

text:
    Armour & Company v. Leshefka.

      P. B. Roads, for plaintiff; John Skweir, for defendant.
    Feb. 27, 1928.
   Hicks, J.,

Rule 32, section 5, Schuylkill County Court Rules provides: “If the party shall file an answer, then all facts averred in the petition and not denied in such answer shall be taken as admitted upon the argument.” The answer does not definitely and positively deny the allegations in the petition of the lack of worth of the bail, nor does it affirmatively show that the bail is good. Under such circumstances, the allegations contained in the petition for the purpose of the disposition of this rule must be accepted as verity and the recognizance admittedly defective.

This is an appeal by the defendant from a judgment entered against him in an action of assumpsit before an alderman in the City of Pottsville, which appeal was regularly entered in the Court of Common Pleas of Schuylkill County on Jan. 25, 1927, to No.. 300, March Term, 1927. On March 14, 1927, upon application of the plaintiff, a rule was granted upon the defendant to perfect his appeal within ten days, or, in default thereof, to have the said appeal dismissed, which rule was returnable on March 28, 1927. The defect in the recognizance was alleged to have consisted of the attorney for the defendant becoming bail for him before the alderman on the appeal. Prior to the return-day of the rule, substituted bail was entered. On Sept. 19,1927, the plaintiff presented his petition for a rule upon the defendant to show cause why the appeal should not be dismissed and stricken from the record for insufficiency of the substituted bail because of its worthlessness, returnable Oct. 3, 1927, to which an answer was filed by the defendant, in the sixth paragraph of which he alleges: “6. That the defendant honestly believes that the bailor, George Motsko, was a sufficient bailor and still thinks so.”

It is not necessary for the court to decide whether the original recognizance was defective because the attorney for the defendant became bail on appeal before the alderman nor to construe Rule 11, section 6, Schuylkill County Court Rules, which provides that “no attorney of these courts . . . shall be admitted or permitted to become bail ... or in any suit or action pending in these courts, without permission of court.” Whether this rule of court precludes an attorney from becoming bail in a civil action before a magistrate's court is of no interest, since this bond has been substituted by the one now admittedly defective.

The substituted recognizance is bad. The law favors the right of appeal. It involves the right of trial by jury. Where an appeal has been taken in good faith and within the time prescribed by law, it is usual to allow a defect to be amended; in other words, to perfect the appeal. To prevent hardship, the court will in such cases allow the defendant to perfect his appeal by giving a proper legal recognizance. The proper course when the recognizance of an appellant is defective or invalid is not to dismiss the appeal, but to rule him to amend or perfect it and to dismiss only as the penalty of neglect or refusal. The right of appeal and of trial by jury is too precious to be frustrated by the ignorance, incompetency or malice of inferior magistrates and officers: Koenig v. Bauer, 57 Pa. 171; Means v. Trout, 16 S. & R. 349; Huntington v. Jackson, 2 P. & W. 431; Adams v. Null, 5 W. & S. 363; Womelsdorf v. Heifner, 104 Pa. 1; Kerr v. Martin, 122 Pa. 436; Carbaugh v. Sanders, 13 Pa. Superior Ct. 361.

It is true that a former rule was granted upon the defendant to perfect his appeal within ten days, which rule was never disposed of because the defendant anticipated its disposition by filing substituted bail, but this should not prevent the defendant from having an opportunity to perfect his substituted bail.

The court grants the defendant leave to perfect his appeal by filing a recognizance within fifteen days from this date, to be approved by court upon notice to the attorney for the plaintiff, the said recognizance to be filed nunc pro tunc, dating it with the original one, in which case it is ordered that the rule to strike off the appeal be discharged; otherwise, the rule be made absolute, at the costs of the defendant.

And now, Feb. 27, 1928, upon motion of P. B. Roads, counsel for the plaintiff, an exception is noted and bill sealed.

From M. M. Burke, Shenandoah, Pa.


author: Landis, P. J.,

text:
    Moore v. Newswanger et al.

      H. R. Fulton, for plaintiff; Harold G. Ripple, for defendant.
    Dec. 31, 1927.
   Landis, P. J.,

On Aug. 25, 1926, the plaintiff caused a writ of replevin to issue against the defendants for one Peerless touring automobile. He gave his bond, with surety in the sum of $250. The sheriff thereupon served the writ upon the defendants, and, having taken possession of the said automobile, he delivered it to the plaintiff. The defendants gave no counter-bond. On Aug. 31, 1926, the plaintiff filed his statement, and, on Sept. 15, 1926, the defendants filed what they called an “affidavit of defense raising questions the nature of a plea in abatement under the Practice Act of 1915.” It is therein asserted that there is no partnership between Harry Newswanger and Jerome R. Rhoads as “The Lime Street Garage,” and that they have no interest in the proceeding; that the Lime Street Garage, Incorporated, was in possession of the automobile, and that the company was duly incorporated and was doing business as such. The plaintiff then filed a paper called “plaintiff’s reply,” but no new facts are developed therein. On Nov. 29, 1927, the plaintiff moved for judgment for want of a sufficient affidavit of defense.

The Practice Act of May 14, 1915, P. L. 483, relates solely to “actions of assumpsit and trespass, except actions for libel and slander.” It does not . control the practice in actions of replevin. In cases of replevin, the Act of April 19, 1901, P. L. 88, applies. The 4th section of this act provides that the plaintiff shall file a declaration verified by oath, and section 5, that the defendant or intervening party shall file an affidavit of defense setting forth the facts denying plaintiff’s title and showing his own title, and that, in the event of failure so to do, judgment may be entered for the plaintiff. With like effect, judgment may be entered for want of a sufficient affidavit of defense. Under section 13, the declaration and the affidavit of defense constitute the issues under which, without other pleadings, the question of title shall be determined by a jury, and if any party shall be found to have only a lien, a conditional verdict may be entered, which the court shall enforce in accordance with equitable principles. In Evans v. Witman, 40 Lane. Law Rev: 631, 10 Dist. R. 719, it was lately held by this court that “where a plaintiff gives a bond and causes a writ of replevin to issue against a person having possession by virtue of a claim of lien, and under it the property is given up to him, the question of whether or not the defendant has a lien must be settled by a jury trial, and a judgment for want of a sufficient affidavit of defense cannot be entered.”

In Leek v. The Livingston Manor Manuf. Co., 6 Lacka. Jurist, 52, it was decided by Judge Newcomb that “the denial of the existence of a partnership between the party who makes an affidavit of defense and other parties joined with him as defendants, coupled with an averment that the contract in the suit was with a corporation, naming it, if true, is a good defense.” This case is very similar in its facts to the one we are now considering. If there was no partnership between the parties defendant as the Lime Street Garage, then the plaintiff cannot obtain a verdict against them, even though he has secured possession of the automobile. If the Lime Street Garage is a corporation, he can, by amendment, strike out the names of Newswanger and Rhoads, and, having properly amended his statement, proceed against the corporation. But the defendants, who are sued as partners (and who not only deny the partnership but also deny that they are in any way interested in the controversy), have a right to be heard on that question, though they have filed no counter-bond and have asserted no title to the automobile. In any event, however, the plaintiff cannot at this time obtain a judgment for want of a sufficient affidavit of defense. The rule is, therefore, discharged, v Rule discharged.

From George Ross Eshleman, Lancaster Pa.


author: McConnel, J.,

text:
    Barford, Insurance Commissioner, v. Beaner Electric Co.

      Martin, Swaney & Ewing, for plaintiffs.

      Joseph Knox Stone, for defendants.
    Dec. 17, 1927.
   McConnel, J.,

An action in assumpsit has been brought by Einar Barford, Insurance Commissioner of the Commonwealth of Pennsylvania, as statutory liquidator of the William Penn Motor Indemnity Exchange, dissolved, against Beaner Electric Company, claiming to recover from the defendant, which is a corporation, the sum of $33, with interest from Sept. 17, 1921; and the statement sets forth, among other things, that the Insurance Commissioner above named is the statutory liquidator of the William Penn Motor Indemnity Exchange, dissolved; that the said exchange was a reciprocal automobile insurance company, organized and existing under the Act of June 27, 1913, P. L. 634, with its principal place of business in the City of Pittsburgh, County of Allegheny and State of Pennsylvania, and, as such, had appointed William Penn Underwriters, Inc., its attorney-in-fáet, as required by said act; that after proceedings in the Court of Common Pleas of Dauphin County, on Nov. 17, 1925, the said exchange was found to be insolvent and the Insurance Commissioner of the Commonwealth of Pennsylvania was directed to make liquidation of said exchange; that the defendant was a member of said William Penn Motor Indemnity Exchange and had appointed William Penn Underwriters, Inc., its attorney-in-fact, as appears by copies of the agreement signed by the defendant attached to the statement of claim and marked Exhibits “B” and “C;” that on Jan. 31, 1920, the defendant had applied for and received a policy of insurance on a Ford automobile, and a copy of said policy is attached to the statement of claim and marked Exhibit “D,” the number of the policy being 2163, issued by the William Penn Motor Indemnity Exchange; and on the same day the defendant applied to the plaintiff, William Penn Motor Indemnity Exchange, for insurance on another automobile, and a policy was issued to it, a copy of it being attached to the statement of claim and marked Exhibit “E,” the number of this policy being 2164; that the defendant continued to hold said policies until Jan. 31, 1922; that the losses and expenses of said William Penn Motor Indemnity Exchange during the time defendant’s policies were in force necessitated the levying of an assessment upon the defendant as a policy-holder, which assessment was duly made on Sept. 17, 1921, by the board of directors of the William Penn Underwriters, Inc., under the power of attorney above mentioned and in accordance with the rule that the policy-holder should pay his proportionate share of the expenses and losses which happened during the period of his policy holding, limited, however, to an amount equal to his annual deposit, and no more; that under policy No. 2163, the defendant became indebted, by virtue of said assessment, to the William Penn Motor Indemnity Exchange in the sum of $19, and under policy No. 2164, in the sum of $14, making in all $33; that the defendant had received due and legal notice of all of Said assessments and demand had been made upon it for payment of the same, but, notwithstanding said notice and demand, the defendant had failed to pay the said sum of $33, or any part thereof.

The defendant filed a statutory demurrer to the statement of claim, setting forth (1) that there is no jurisdiction in the Court of Common Pleas to try the matters set out in the plaintiff’s statement of claim; (2) that the plaintiff’s statement does not set out any matter on which an action of assumpsit would lie; and (3) that the William Penn Motor Indemnity Exchange, being, as set out in the statement, neither an individual, a partnership nor a corporation, cannot maintain such action, nor can any one else in its behalf who seeks to claim under it. Under this demurrer all the allegations contained in the plaintiff’s statement of claim which are properly pleaded must be taken as true.

It seems clear that while the defendant was the holder of these two policies issued by the William Penn Motor Indemnity Exchange, he became liable to pay the assessments on these policies amounting to $33. Two actions in which this exchange was interested and in which policies had been issued were brought in the lower courts of this State, and by appeal were taken to the Superior Court. These two cases are William Penn Motor Indemnity Exchange v. Haddad, 86 Pa. Superior Ct. 307, and William Penn Motor Indemnity Exchange v. Tannous, 86 Pa. Superior Ct. 312. In the first case, which was brought originally in the Court of Common Pleas of Washington County, an action of assumpsit was instituted by William Penn Motor Indemnity Exchange, by William Penn Underwriters, Inc., attorney-in-fact, against Samuel G. Haddad; and in the other case the suit was instituted by the William Penn Motor Indemnity Exchange without the intervention of the attorney-in-fact. The opinions in these two cases were written by Linn, J., and in that in the Haddad case the court said (page 308): “The Insurance Department Act of 1921, P. L. 789, provides a comprehensive method for the solution of the problems which have arisen in the organization and operation of the exchange involved in this appeal, and while that statute does not seem to have been called to the attention of the court below and was not referred to in the briefs filed or argument made in this court, mere reference to it would ordinarily be sufficient to dispose of this appeal.”

It was, therefore, held in these two appeals that neither the William Penn Motor Indemnity Exchange, by its attorney-in-fact, nor the William Penn Motor Indemnity Exchange, in its own name, could, since the appointment of the Insurance Commissioner as receiver, maintain actions against the subscribers to insurance with the exchang-e, but that the matters at issue between the subscribers for insurance and the exchange would have to be worked out through the receiver. Therefore, the Insurance Commissioner brought this action in assumpsit against another subscriber for insurance with the William Penn Motor Indemnity Exchange, and the defendant contends that the Insurance Commissioner cannot maintain this action for the reasons set out in the statutory demurrer.

The defendant cannot and does not contend that the Insurance Commissioner does not represent the William Penn Motor Indemnity Exchange, for under the Insurance Department Act of May 17, 1921, § 503, P. L. 789, provision is made for the application by the Attorney-General to the Court of Common Pleas of Dauphin County for an order upon any insurance company to show cause why its business should not be closed, and, “in case, it shall finally appear to said court or judge that the company aforesaid cannot collect from its members sufficient funds to satisfy the claims against it, the said company shall be adjudged insolvent, and the court or judge aforesaid shall decree its dissolution and appoint the Insurance Commissioner as receiver to take charge of its effects, with like powers as hereinafter provided.” And in section 506 of the same act it is provided: “If on a like application and order to show cause, and after a full hearing, the court shall order the liquidation of the business of such company, association, exchange, society or order, such liquidation shall be made by and under the direction of the Insurance Commissioner, who shall be vested by operation of law with title to all of the property, contracts and rights of action of such company, association, exchange, society or order as of the date of the order so directing him to liquidate.” Under section 101 of the same act, it is provided as follows: “The word ‘exchange,’ as used in this act, shall be construed to include only individuals, partnerships and corporations authorized by the laws of the Commonwealth to exchange with each other inter-insurance or reciprocal insurance contracts;” so that clearly this act provides for the liquidation of the affairs of exchanges such as the William Penn Motor Indemnity Exchange.

But the defendant contends that the William Penn Motor Indemnity Exchange, being neither an individual, a partnership or a corporation, could not have originally, if the Insurance Commissioner had not been appointed receiver, bring any action in assumpsit against the defendant under the policies of insurance issued to it; and, therefore, as the rights of action only of the exchange passed to the Insurance Commissioner, that the Insurance Commissioner himself cannot bring this action; and the only way an action could have been brought by the William Penn Motor Indemnity Exchange against the defendnat was by a bill in equity, and not by an action of assumpsit.

There are two important and controlling questions in this case. The first question is, what kind of an association was formed by the William Penn Motor Indemnity Exchange under the Act of Assembly of June 27, 1913, P. L. 634, which contains exactly the same provisions, as to reciprocal insurance, as the Act of May 17, 1921, P. L. 682. It is clear that the exchanges authorized to be formed under these acts are not corporations, neither are they individuals, nor are they partnerships; but in our opinion they are quasi-corporations, exactly as an unincorporated church association is neither a partnership nor a corporation, but a quasi-corporation.

It will be noticed under article X of the Act of May 17, 1921, P. L. 682, such associations as the William Penn Motor Indemnity Exchange are called “reciprocal and inter-insurance exchanges.” And section 1004 of the same ac« provides as follows:

“Section 1004. . . . Such subscribers so contracting among themselves shall, through their attorney, file with the Insurance Commissioner of this Commonwealth a declaration, verified by the oath of such attorney, setting forth:

“(a) The mame or title of the office at which such subscribers propose to exchange such indemnity contracts. Such name or title shall not be so similar to any other name or title previously adopted by a similar exchange or association or by any insurance company as, in the opinion of the Insurance Commissioner, is calculated to result in confusion or deception.”

This act also provides for the appointment of an attorney-in-fact and for the transaction of most of the business of the exchange through an attorney-in-fact.

Under section 208 of the Insurance Department Act of May 17, 1921, P. L. 789, it is provided that the Insurance Commissioner shall issue certificates of authority to insurance companies, associations or exchanges of other states and foreign governments, provided he shall be satisfied, by such evidence as he may require and demand, that such company, association or exchange is qualified under the laws of this Commonwealth to transact business herein. It seems evident to us that the exchanges contemplated and authorized by this act created the individuals and corporations who subscribe for the insurance into a quasi-corporation, or at least gave the individuals a local habitation and a name as an exchange and that they are something different from an ordinary unincorporated association.

The second important question is whether such an exchange, whether it be considered as an unincorporated association or as a quasi-corporation, could bring an action of assumpsit in its own name. Of course, an unincorporated association cannot be sued under the name of the association in a common-law action, and the suit against such an association has to be against the individuals, naming them all or naming a few of them as representing all of the members of the association. (See Wolfe v. Limestone Council, 233 Pa. 357; Maisch v. Order of Americus, 223 Pa. 199; Oster v. Brotherhood of Locomotive F. & E., 271 Pa. 419; Fletcher v. Gawanese Tribe, 9 Pa. Superior Ct. 393.) And the reason that the association cannot be sued in its own name alone arises from the fact that a judgment against such a nonentity would be valuless; and even if a suit could be maintained and a judgment obtained, it would be impossible to execute the judgment. A suit in equity avoids all this trouble and gives the court, in ease of a. judgment, the power to compel the officers of the association to apply the funds in their hands to the liquidation of the plaintiff’s claim.

The same difficulties, however, do not arise in the case of a suit by an unincorporated association, and, therefore, it has been held under numerous decisions in this State that a suit may be brought not only in equity, but at common law by an unincorporated association either eo nomine or by certain of its members in behalf of all, provided the action is brought actually for the benefit of all the members of the association; and it makes no difference whether it is merely an unincorporated association or a quasi-corporation, such as a religious association or church.

In the case of Chambers v. Calhoun, 18 Pa. 13, an action in assumpsit was brought in the name of David Calhoun and James Leech, surviving Robert Gurry and Samuel Hamilton, members of the building committee of the Mifflin Township meeting-house, against William Chambers. The Mifflin Township meeting-house was an unincorporated association; William Chambers had subscribed a certain sum for the purpose of building a new house of worship. It was contended by the defendant that the plaintiffs had no right to sue. The opinion of the court was delivered by Chief Justice Gibson, and, among other things, he said: “The promise on which this action is brought, being to no particular person or set of persons by name, could be enforced in England only by a bill in equity; but as our equity powers have not yet been extended to such a case, we are compelled to resort to an action as a substitute for a bill. Why should we higgle about technical congruity after the very first step has been a departure from all congruity? The object is to compel the promissor to pay, and any means that can produce that effect may be resorted to in order to prevent a failure of justice.”

In the case of Phipps v. Jones, 20 Pa. 260, a suit was brought before a justice of the peace by B. W. Jones and two others, trustees of the Doe Run Valley Church, against Phipps and Harvey, administrators of Ellis Phipps, deceased. A judgment was recovered before the justice of the peace, the case was appealed to court and the plaintiffs declared in assumpsit. A subscription had been made by Ellis Phipps to aid in the building of a church to be under the control of the Presbyterian denomination of Christians. A judgment was recovered against the defendant and it was taken to the Supreme Court. The opinion of that court was delivered by Lowrie, J., who said, inter alia: “There ought to be no doubt about the right of unincorporated religious societies to sue on a contract ffiade with them in their associate capacity and for the legitimate purposes of their association, even though there be no persons named or described in the contract as trustees or committeemen on behalf of the society. Such associations have always, and especially since the Act of 1731, been recognized as having an associate and quasi-corporate existence in law, with power to hold land and build appropriate houses, and, of course, with power to acquire rights by contract and to vindicate them. And if the English common law forms are insufficient for such eases, we admit the infusion into our law of the plain equity principle that allows a committee of voluntary societies to sue and be sued as representatives of the whole: 1 Bro. C. C. 101; 13 Ves. 544; Story’s Eq. PL, § 116. There is, therefore, no difficulty about sustaining this action if it has a contract to rest upon.”

The case of Singing Society v. Turn-Verein, 163 Pa. 265, was an action of replevin brought by the Liederkranz Society, composed of about twelve or fourteen active members and about two hundred passive members. It was an unincorporated association. The action was against the Germania TurnVerein of Lancaster, Victor Both, Philip Stumpf and August Koehler. Upon motion in the court below, a non-suit was entered because the plaintiff was not a legal plaintiff and had shown no right to sue. The plaintiffs then appealed to the Supreme Court, and the opinion was delivered by Mr. Justice Mitchell, who said, inter alia:

“It is conceded that in cases of unincorporated associations whose membership is large suits may be brought by some of the members in their own names on behalf of or as representing all. The present action, therefore, would have been sustainable if brought in the name of Ostermayer and others in behalf of the members constituting the Liederkranz Society. It was brought in the name of the Liederkranz Society by Ostermayer et al. There is no substantial difference. The allowance of suits in any such form is a modification of the ordinary requirements as to parties, introduced by equity in the interest of practical convenience. ‘The second class is where the parties form a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole. In eases of this sort the persons interested are commonly numerous, and any attempt to unite them all in the suit would be, even if practicable, exceedingly inconvenient:’ Story, Equity Pleadings, § 107. It is necessary that the suit should be brought on behalf of all the parties in interest, but this may as well be done in substance by using the general name which describes them all, as by the phrase ‘in behalf of themselves and all others interested.’ The latter is the usual form, and it is always better to adhere to established practice. . . .

“Unincorporated societies have long held in this State an intermediate position between corporations and partnerships. Those for religious purposes, it is said by Lowrie, J., in Phipps v. Jones, 20 Pa. 260, ‘have always, and especially since the Act of 1731, been recognized as having an associate and quasi-corporate existence in law.’ Their ownership of property is of the same intermediate character. It partakes of the qualities of both the others, the title being for many purposes joint and several like that of partners or joint-tenants, while the right of possession is joint only as in corporations.”

It will be noticed that the action in this case was brought by the Liederkranz Singing Society of Lancaster, Pa., by F. C. Ostermayer and Andrew J. Riski, of the board of trustees of said society, and Mr. Justice Mitchell indicates that the action may be brought in the general name which describes them all, as well as when it is accompanied by the phrase “in behalf of themselves and all others interested.”

In the case of Ryerss v. Trustees of the Presbyterian Congregation of Blossburg, 33 Pa. 114, an action in assumpsit was brought by James H. Gulick, William Alworth and Clarendon Rathbone, trustees of the Presbyterian Congregation of Blossburg, against Joseph W. Ryerss, to recover a subscription of $100 toward the building of their church. Among other objections raised in the court below was that the plaintiff, being an unincorporated association, did not have the right to sue. Mr. Justice Woodward, in delivering the opinion of the Supreme Court, said: “Whether the Presbyterian Congregation of Blossburg were a duly constituted corporation or only a religious society bound together by articles of association, it was a legal party competent to sue and is named on the record as plaintiff.” And the appeal of the defendant was dismissed.

In the case of Klein v. Rand, 35 Pa. Superior Ct. 263, an action was brought by Ike Klein and others, lately trading as Commercial Co-operative Association, against Israel or Isador Rand, and the action was in assumpsit. A non-suit was entered in the court below and the error assigned upon appeal was the refusal to take off the non-suit, and Henderson, J., in delivering the opinion of the Superior Court, said, inter alia: “The association was composed of about 160 members. The action was brought in its name by the president, secretary and three other members, one of whom at least was a director. It is a well-established rule that in the case of unincorporated associations having a large membership actions may be brought by some of, the members in their own names in behalf of all. This modification of the usual requirement as to necessary parties is an equitable exception suggested by cónvenience. Where the number of members is very large, it would be, if not impracticable, very inconvenient and certainly unnecessary to include all their names as parties when the right of action exists in the association and when individuals are named who may be made liable for costs. Where the action is brought for all the parties in interest, the requirement of the law is met by the use of some of the individuals composing the organization: Story, Eq. PI., § 107; Phipps v. Jones, 20 Pa. 260; Liederkranz Singing Society v. Germania Turn-Verein, 163 Pa. 265; Fletcher v. Gawanese Tribe, 9 Pa. Superior Ct. 393. The right of the association to sue is not questioned. The benefit of the action, if any, accrues to the association and the presumption is that the interests of all are subserved by the proceeding. A judgment in favor of the association would protect the defendant, and he has no interest in the disposition of what he may pay thereon. The officers of the association were the actors in bringing the suit and were in the discharge of their official duties in so doing if the cause of action exists as claimed.”

It seems, then, that a common-law action may be brought by an unincorporated association either in the name of the association or the name by which it is generally known, provided it represents all of the parties in interest; or it may be brought in the name of certain members of the unincorporated association in behalf of themselves and all other persons interested. In the present case the action is brought by the Insurance Commissioner as receiver for the William Penn Motor Indemnity Exchange. The receiver represents all of the parties in interest, and that means all of the policy-holders in the exchange, just as in the case of a corporation the receiver would represent the corporation and through it all of the stockholders; and it has been held that the receiver not only represents the corporation, but also the creditors: Cushing v. Perot, 175 Pa. 66; State Bank v. Kirk, 216 Pa. 452; Lyon v. Benney, 230 Pa. 117; People’s Bank v. Stroud, 223 Pa. 33. The plaintiff, therefore, in this case represents all of the parties in interest, except the defendant, who, according to the papers filed, owes to the exchange the sum of $33. We can see no reason, either in justice or in equity, why the plaintiff is not entitled to bring this suit and why the defendant should not pay the amount which he owes; and, therefore, in our opinion, the statutory demurrer should be dismissed.

Order. — Now, to wit, Dec. 17, 1927, the statutory demurrer filed by the defendant is overruled and dismissed, and the defendant is required within fifteen days to file an affidavit of defense to the merits of this case.

From Wm. F. Schutte, Beaver, Pa.


author: Harvey, P. J.,

text:
    Clarion County’s Appeal.

      Lewis Collner, Solicitor, for County Commissioners.

      Corbett & Hugh and M. H. Davis, for petitioner.
    Dec. 30, 1927.
   Harvey, P. J.,

This comes on to be heard upon motion of attorneys for Henry Booth, petitioner, to strike off the appeal from report of viewers in above-stated case.

On July 26, 1927, Henry Booth, by his attorneys, Corbett & Rugh, filed in the Court of Quarter Sessions of this County of Clarion, at No. 8, August Sessions, 1927, his petition for the appointment of viewers to view the premises and assess the damages sustained by him by reason of the relocation, straightening, changing the grade and paving the public road through his lands in Elk Township, Clarion County, Pa., known as State Highway Route No. 55; and by the appropriation of a considerable part of his lands and cutting him off from a large part of his farm, occasioning him great damage.

On same day, July 26, 1927, D. M. Geist, Esq., J. M. Owens, C. E. and A. F. Hess, members of the county board of viewers, were appointed viewers for the purpose prayed, and Wednesday, Aug. 17, 1927, 10 o’clock A. M., fixed for view and hearing. The viewers filed their report Aug. 22, 1927, setting forth that they had gone upon the premises, and after hearing, and having taken into consideration the facts developed by the view, the testimony of witnesses and the arguments of counsel, and having fully considered the disadvantages and the special advantages or benefits resulting to the land from the location and building of the said road and changing the grade, fixed the damages sustained, in excess of special benefits, at $1000, and awarded that the sum be paid to Henry Booth by Clarion County. From this finding and award, appeal was taken Sept. 19, 1927.

The improvements were made under the Act of Assembly of May 23, 1923, P. L. 341, and its supplements.

The viewers’ report shows that they gave notice of the time and place of meeting to all parties interested; that at the time fixed, on the premises, all the viewers were present with Henry Booth and D. C. Corbett, his counsel. After viewing the premises in question and hearing the parties interested, the viewers adjourned the further hearing until Aug. 19', 1927, at 10 o’clock A. M., on the premises, at which time and place a public hearing was held pursuant to the adjournment. All the viewers were present, as was Henry Booth, petitioner, with his counsel, Don C. Corbett.

Report of viewers filed in court Aug. 22, 1927, and the same was confirmed nisi.

The county contends by its full board of commissioners that the report of viewers in the said matter in awarding the damages fixed to petitioner is excessive, unjust and unreasonable, and appeals from the report of viewers to the Court of Common Pleas under the act of assembly under which the proceedings were instituted.

“The proceedings upon said petition and by the viewers shall be governed by existing laws relating to the ascertainment and assessment of damages for opening public highways. The county commissioners, or any other party to such proceedings, may appeal from the award of viewers to the Court of Common Pleas and shall be entitled to a trial by jury:” Act of May 23, 1923, § 16, P. L. 341.

The report of viewers shows their procedure to have been in strict accordance with the law. The report shows on its face all the proceedings required. While due notice of the view was served upon the county commissioners, the report of viewers does not show any commissioners to have been present or represented thereat. It is averred by Lewis Collner, solicitor for the board of county commissioners, in his argument on the motion at issue, that he was present at the hearing to represent, and did represent, the commissioners, which averment he says he can substantiate by the testimony of one or more of the viewers.

The only province of the viewers was to proceed as provided by law to ascertain and assess damages, if any, occasioned by reason of the construction, reconstruction or improvement of said highway and amount to be paid to the owner or owners of the property damaged. Every step taken in procedure of the viewers was in accordance with law. Their report was filed Aug. 22, 1927, and confirmed nisi. No exceptions were filed thereto. An appeal from report of viewers, upon which the motion to strike off is now in issue, was filed Sept. 19, 19'27. Motion to strike off appeal filed Nov. 7, 1927. The only question we now have to consider is whether or not the appeal shall be stricken off as moved for the reasons set out in said motion, namely:

1. The appeal was entered to an interlocutory order and not a final judgment, and was prematurely taken. -

2. No appeal taken from the final confirmation of the viewers’ report.

3. The county commissioners did not appear in person or by agent or attorney before the board of viewers at the view or hearing, and by not appearing they waived any objection as to the amount of damages assessed.

4. No exceptions to the report of viewers were filed. No question of form or of law is raised on the appeal.

Taking the “reasons” as set out in order:

Counsel for the county commissioners contends that the procedure in taking the appeal follows the Act of June 13, 1874, P. L. 283, and is proper. Counsel for the petitioner urges that the Act of May 26, 1891, P. L. 116, governs the procedure and that the appeal was entered Sept. 19, 1927, two days before the final confirmation of the report, and is, therefore, premature.

1. The Act of May 28, 1891, which gave to any party aggrieved the right of an appeal within thirty days after decree of confirmation of the viewers’ report in the Quarter Sessions, gives no appeal at all from the award, but allows “any party aggrieved by the said decree of confirmation to appeal therefrom.” The Act of June 13, 1874, providing for an appeal to the Court of Common Pleas of the proper county within thirty days of the ascertainment of the damages or the filing of a report thereof in court, gives the right of appeal from the award itself, of which the party appealing may avail himself at once without waiting for the action of the court, and must avail himself, if at all, within thirty days “and not afterwards,” under the act. The appeals differ and may be taken at a different stage of the case. “The two systems are not irreconcilable, but may run together with entire harmony. The Act of June 13, 1874, is not repealed by the Act of May 26, 1891:” Vernon Park’s Appeal, 163 Pa. 70. “Both acts are in furtherance of the same right to a jury trial, and a party may make his choice of remedies. One questions the assessment by the (viewers’) jury, the other attacks the decree confirming the assessment:” Spear v. Montgomery Co., 24 Pa. C. C. Reps. 177. Upon the question raised as to the county not being such a municipal corporation within the meaning of the Act of 1874, under which the County of Clarion takes its appeal. Finding, as we do, that the proceedings in the view were regular and in accordance with the law, and the statute (Act of May 23,1923, P. L. 341) specifically granting the right of county commissioners to “appeal from the award of the viewers to the Court of Common Pleas,” we must rule adversely to the contention of petitioner on that point.

Reason No. 1 is overruled.

• 2. No appeal taken from the final confirmation of the viewers’ report. Holding, as we do, that the appeal, as taken under the Act of June 13, 1874, is valid and proper, the fact of no appeal taken after the confirmation, Sept. 21, 1927, is immaterial.

Reason No. 2 is overruled.

3. Failure of the county commissioners to appear in person, by agent or attorney before the board of viewers waiving any objection to the amount of the damages assessed. Irrespective of the averment by the solicitor for the county commissioners as to his being present at the hearing before the board of viewers, no questions of fact seem to have been raised at the view or hearings in the matter by or on the part of the county commissioners. In this case, the construction, reconstruction and improvements were already made. All the viewers had to do at the view and hearings was to ascertain and assess what in their judgment the damages over benefits amounted to and make report thereof to the court. The law imposes no penalty upon the commissioners for not appearing at the views or hearings. Views of this character differ from views in the laying' out of roads where the location and description with costs and damages incident are to be determined. From the fact that due notice shall be given to the county commissioners, we must assume that it is for some purpose. While it might be best for the county commissioners, or some representative for them, to be present at views or hearings to possibly aid the viewers the better to discharge their duties and look after the interests of the county, we do not feel, nor can we find authority directly in point, that it is necessary for the county commissioners, or some one to represent them, to be present at the views or hearings such as that in this case.

Reason No. 3 is overruled.

4 (a). No exceptions filed. “The filing of exceptions to the report of viewers has nothing to do with the right of appeal:” Bowers v. Braddock Borough, 172 Pa. 596, 600; Clarion Borough’s Petition, 77 Pa. Superior Ct. 429, 433. Reason No. 4 (a) overruled.

4 (b). It is true that no question of form or of law is raised on the appeal.

And now, Dec. 30, 1927, after hearing arguments of counsel, upon due consideration, for and by reason of the findings and conclusions above set out, rule to show cause is discharged. Motion to strike off appeal is refused.


author: Hare, P. J.,

text:
    Altoona Beverage and Ice Company v. Pennsylvania Alcoholic Permit Board.

      R. A. Henderson, for plaintiff; W. F. Knauer, for defendant.
    Dec. 22, 1927.
   Hare, P. J.,

The matter here involved is the validity of an order revoking a permit issued to the plaintiff by the Alcoholic Permit Board of the Commonwealth of Pennsylvania under the provisions of the Act of Feb. 19, 1926, P. L. 16. The order of the board is assailed upon three grounds:

1. The order is not supported by competent and sufficient evidence.

2. The Act of Feb. 19, 1926, P. L. 16, is within the constitutional inhibitions contained in (a) article ill, section 3; (b) article I, section 1, of the Consti-. tution of the Commonwealth; (c) the 14th Amendment of the Constitution of the United States.

3. The said act does not disclose a legislative intent to regulate or control manufacturers of cereal beverages.

In the proceeding under investigation we do not have the benefit of any suggestion as to the particular testimony which may be irrelevant or incompetent under the pending issue. The statute absolves the board from the observance of technical rules of procedure. In this respect the Act of 1926 bears close analogy, we believe, to the Workmen’s Compensation Act, and “contemplates liberality in the admission of proofs and the inferences reasonably to be drawn therefrom, . . . yet, after all the data has been gathered without regard to technical rules, all irrelevant and incompetent testimony must be rejected and the findings made to rest upon such relevant and competent evidence of sound probative character as may be left, whether circumstantial or direct:” McCauley v. Imperial Woolen Company, 261 Pa. 312. Also, by analogy, we conclude that the credibility of the witnesses who appeared and testified was for the determination of the board, and upon appeal the court may not disturb the findings of fact if there be competent evidence to sustain them. The question here is not whether there were technical irregularities in the admission of testimony, but whether the findings of fact are supported by competent proof.

We ascertain from the record that the appellant applied to the board for a permit to operate a brewery or cereal beverage plant, and proffered its bond in the sum of $10,000. The application and bond were approved, and, on May 14, 1926, a permit was issued to the appellant authorizing operation of its plant. A report of violations of the law having been filed with the board, an order or citation was issued requiring the appearance of the appellant at a time and place designated to show cause why the permit should not be revoked and canceled. The citation specified with certainty the grounds of the complaint. The company appeared by its officers, was represented by counsel, and challenged the jurisdiction of the board to hear and determine the issue and declare a forfeiture of the bond. .

Witnesses were called, examined by counsel for the Commonwealth and cross-examined by counsel for the company. These witnesses were Federal agents, and testified that on Nov. 2, 1926, they inspected the plant of the company. During the course of their inspection they observed a truck entering the enclosure about the brewery. The truck received a cargo and left the brewery premises. They followed the truck in an automobile and kept it in sight until it arrived at the rear of the Walton Hotel. The truck was stopped and a barrel was removed. The agents then seized the truck and its cargo and required the operator, in their company, to drive it to the brewery. They took samples of beer from the barrels which were on the truck and from the barrels which were in the racking-room (the room from which shipments are made) and from the storage tank in the brewery. They found five persons at work in and about the brewery, one of whom was the brewmaster and the others were his helpers. There were seven full and eight half-barrels on the truck. Certain tests of the beer were made at the plant. All disclosed an alcoholic content in excess of 3 per cent, of alcohol by volume. Twelve samples were obtained, marked for identification and transmitted to a chemist for analysis. The chemist testified that one of the samples analyzed by him tested 2.14 per cent, of alcohol by volume and the portion of alcohol in all of the others exceeded 3 per cent. The company did not file any pleading or offer any evidence in contradiction of the testimony of the witnesses. Obviously, in this circumstance, if this were a trial by jury, the evidence is of the nature and character that the court would not be warranted in declining to submit it to that body for the determination of the issues of fact, and the finding of the jury would be binding upon the court. The rule is applicable to other bodies empowered by law to be the triers of facts. The Permit Board is the tribunal in this instance, created by law to hear and determine the facts, and the findings are supported by sufficient relevant, material and competent evidence.

Notwithstanding the wide range and unusual ability displayed in the presentation of the constitutionality of certain sections of the statute, but little need be said in vindication of its validity. The question raised is whether the statute is unconstitutional in part by reason of the insufficiency of the ■title, and because it violates the constitutional limitation of legislative power with reference to persons and subjects. In approaching the solution of the question, we are told that “when the constitutionality of an act of assembly is attacked, it is the duty of every judge — without regard to his opinion as to the necessity for the statute or its wisdom — to seek a construction which will support the legislative interpretation of the Constitution, and an act can never properly be declared void unless this is found to be impossible:” Com. v. Snyder, 279 Pa. 234. The same ease is authority for the principle that a statute will not be declared unconstitutional unless it is clearly so, and every doubt must be resolved in favor of its validity.

That a title need name only the real subject of the legislation; that it need not set forth all enactments intended to be made in regard thereto; that it is not to be an index of the contents of the bill or a catalogue of the effects of the legislation; that it need not include subjects indirectly affected; and that if it fairly gives notice of the subject of the act with sufficient clearness to put one on inquiry into the body of the same, it is all that is necessary, are familiar principles frequently announced by our appellate courts and recently reiterated in Com. v. Snyder, supra, and Graeff v. Schlottman, 287 Pa. 342.

The title of the statute under examination is most comprehensive. The subject of the legislation is alcoholic liquors and the regulation of the manufacture, production, transportation and sale thereof. This is sufficient to put one upon inquiry as to the contents and effects of the legislation, and lead one to inquire as to the statutory definition of the commodity subject to the regulations and prohibitions of the act. We cannot state the conclusion in more appropriate form than in the language of Judge Henderson in Com. v. Blackman, 82 Pa. Superior Ct. 362: “Every one is presumed to know that traffic in alcoholic liquors is prohibited except under highly restricted conditions, and a law, the title of which relates to alcoholic liquors, and prohibits the manufacture, furnishing and traffic in and possession of liquors for beverage purposes, must be held to put one on inquiry as to its particular provisions. The whole subject of the manufacture, transportation, possession and sale of intoxicating liquors is brought to the attention of the reader of the title, and he is thus put on notice of the legislation relating thereto.”

The contention that the statute is in violation of the due process provision of the Federal Constitution and of the inherent and the indefeasible rights of citizens within the constitutional guaranty of the Commonwealth must receive an adverse answer under the authority of Com. v. Dietz, 285 Pa. 511, and Nolan v. Jones, 263 Pa. 124.

Equally untenable is the assertion that the statute does not disclose any legislative intent to regulate or control manufacturers of cereal beverages. Upon that subject the legislature has promulgated its own definitions and construction. Intoxicating liquor, alcohol, the processes and methods of their production, and the plants or factories producing them, are given a specific and definite meaning by the terms of the statute, and they unquestionably embrace the manufacture of cereal beverages. The legislative definition and construction of terms are binding upon the courts: McElhone v. Philadelphia Q. Club, 53 Pa. Superior Ct. 262.

Now, Dec. 22, 1927, the order of the Pennsylvania Alcohol Permit Board, revoking the permit issued to the Altoona Beverage and Ice Company, Inc., and forfeiting the bond given by said company to the Commonwealth, is affirmed, at the cost of the appellant.

From Robert W. Smith, Hollldaysburg, Pa.


author: Prather, P. J.,

text:
    Crawford County Auditors’ Report.
    Dec. 19, 1927.
   Prather, P. J.,

The question submitted is whether Sheriff Charles H. Jones should be' surcharged with $1118.87, with interest from Jan. 31, 1927, the admitted amount of uncollected fees for the year ending Dec. 31, 1926, upon civil writs not returned, nor fees accounted for, nor any transcript of uncollected fees filed and listed with the county treasurer. The auditors reported a surcharge of $2412.80. It is now agreed that the sheriff is entitled to certain credits thereon, reducing such uncollected fees to $1118.87. Under the facts submitted, judgment is to be entered for the county for this amount or to be entered generally for the sheriff.

The facts submitted are, substantially:

1. Crawford County is a county of the sixth class, and, hence, its sheriff is a salaried officer, pursuant to the provisions of the Act of May 11, 1925, P. L. 559.

2. Charles H. Jones is the duly elected, qualified and acting sheriff of said county, and was so during the year ending Dec. 31, 1926.

3. That during said year there came into his hands as sheriff a large number of civil processes, for the execution of which he received no previous indemnity or money, and for which writs he had received no fees at the end of the year 1926. The $1118.87 represents such uncollected fees.

Most of these writs, at the time of said audit in January, 1927, for some unexplained reason, remained in the sheriff’s hands, no return of their execution having been made to the proper office, nor any list of any “Fees . . . earned and outstanding” having been filed in the county treasurer’s office, nor any list thereof filed, taxed and judgments entered thereon against the party for whose benefit the services were rendered.

Discussion.

The question submitted requires consideration of the Act of May 23, 1923, P. L. 347, together with the Act of May 11, 1925, P. L. 559. The former act provides: “No sheriff shall be required to render any service in any civil proceeding until he receives indemnity satisfactory to him for the payment of his official fees, mileage, expenses and legal costs, or prepayment of same, from the party at whose instance or for whose benefit such service is to be performed, but any money advanced for his charges, and'not earned or expended, shall be refunded to the payer thereof . . . and in case he does not receive his charges in advance or upon demand, he may file with his return an itemized list of unpaid fees, mileage, costs and expenses respecting the services to which such return relates, and, if no exceptions are filed to the same within thirty days from the time of making such return, the items included in such list shall be considered taxed and confirmed as fees and costs due such sheriff and become a judgment in law against the party for whose benefit the services were rendered.”

Section 2 of the latter act provides: “He (the sheriff) shall keep necessary books and make necessary entries of receipts and disbursements of all moneys earned and chargeable upon the county, specifying the day and date, title of case, for what service and from whom received or due and shall on the first Monday of each and every month pay to the treasurer of the county all fees so received during the preceding month, filing therewith a transcript in detail of his fee account-book for said month, which shall be verified by him under oath or affirmation to contain a true and correct list of all fees received or earned and outstanding .■. . for services rendered in his office during said month.”

Section 5 of said act provides: “All rights of action and all other remedies heretofore granted or extended to said sheriffs for the collection of their respective fees are hereby extended and shall inure to the benefit of the several counties affected by this act for the collection of all fees and costs that may hereafter accrue to said counties under the provisions of this act.”

The Act of 1923 was passed for the protection of the sheriff and extends to him four alternative methods to secure the payment of his fees: (1) Indemnity or guarantee of payment before performing said services; (2) money deposited in advance to be applied to such payment; (3) withholding the return of his writ until payment has been made; (4) the filing of his claim and entering judgment against the one for whose benefit the service was rendered.

In addition to these securities, he could perform the service on faith and collect from the defendant if possible.

In the passage of this law, the legislature was either responding to an imperative necessity for the extension of its remedial provisions to this office or was spurred to do so because of the importunity of the sheriffs of the State. In either event, it was a proper recognition of a condition that too many patrons of the sheriff’s office had for too many years dealt unjustly with this office in their light regard for their moral and legal obligation to pay the fees to this office for the services rendered at their instance and for their benefit.

The old theory of the public was, “Get your fees out of the defendant;” the new theory of the law, in opposition to the old, under the Act of 1923, is, “Get your fees from the plaintiff and let him get his claim for debt and fees out of defendant through the execution of the process or writ.”

The Sheriffs’ Act of 1923 authorizes and invites a new program in the conduct of the office for collection of fees. Its provisions being salutary, just and imperatively necessary to the protection of this office, the presumption follows that these provisions were intended to be observed.

When the legislature passed the Sheriffs’ Salary Act of May 11, 1925, P. L. 559, placing all sheriffs of counties of the sixth class under a salary to be paid by the county, it transferred all his fees and earnings to the county and at the same time for the protection and reimbursement of the county enacted: “All rights of action and all other remedies heretofbre granted or extended to said sheriffs for the collection of their respective fees are hereby extended and shall inure to the benefit of the several counties affected by this act for the collection of all fees and costs that may hereafter accrue to said counties under the provisions of this act.”

In so doing, it made the sheriff, as to such fees and earnings, a quasi-agent and trustee for the county, a relation which required him to affirmatively perform such one of the four alternatives provided under the Act of 1923, relating to the collection of fees, as would reasonably and effectively protect the county from loss in its new property rights in these fees. Generally, an agency is revocable, which implies power in the principal to protect himself from continuing loss growing out of his agent’s neglect. But in the present case the agency is created by law for a definite tenure and the county, as a quasi-principal, has no power, express or implied, to direct, cancel or revoke said agency. The statute creating it has prescribed its duties and the manner of their execution.

Under the old administration of this office, when the sheriff’s recompense was his fees, he had a right to collect his fees or forego their collection and donate them to whomsoever he desired; they were his. Under the present salary system, they are no longer his, but belong to the county. The right to donate them or to ignore their collection has now ceased.

But the county can only receive its money through the sheriff’s compliance with the forms of collection directed by the statute. If the sheriff fails to collect and turn over the fees, the only other avenue through which the county can protect its interests is the entry of judgments against the persons who requested the service. The county could not do this because the sheriff failed to comply with the statute wherein it required him to file with the county treasurer each month “a transcript in detail of his fee account-book for said (preceding) month . . . verified by him under oath or affirmation to contain a true and correct list of all fees received or earned and outstanding . . . for services rendered in his office during said month.”

No one suggests that the sheriff has acted dishonestly, but in adopting the old system of collection of fees and ignoring the procedure outlined by the new system he has acted mistakenly. If the unretumed and unreported writs comprising the uncollected fees mentioned in the auditors’ surcharge are all now collectible, no injury has been done. If they are partly uncollectible, then he who failed to invoke the remedies that would have avoided the loss must suffer the loss. This is in effect a commingling of good and bad accounts, rendering it impossible to separate the good from the bad and assemble them in their separate parts. He who by his act of commission or omission brings about such a condition must account for the whole. This is a familiar rule relating to commingling of goods, and, in principle, is directly applicable here.

Fortunately, it was reported at the time of arguing this case that the sheriff had, after said audit, collected nearly all the outstanding accounts represented by said surcharge.

We are not required, in the consideration and decision of the question submitted, to inquire and determine whether the sheriff must, in all instances, require a deposit in advance or some other indemnity before executing civil process directed to him. In view of the preceding discussion, we have no hesitancy in concluding the wisdom of so doing.

Whether or not these protective features are mandatory, we are compelled to hold that the provisions of the Act of 1925, requiring the sheriff to file monthly with the county treasurer “a correct list of all fees . . . earned and outstanding,” are mandatory.

While the act does not provide that such failure shall make the defaulting officer liable for such fees, this principle is imbedded in the common law too firmly to require such a provision.

It follows that judgment should be entered against exceptant.

Order.

Now, Dec. 19, 1927, judgment is directed to be entered against exceptant, Charles H. Jones, for $1118.87, the amount in controversy according to stipulation as of July 5, 1927, with interest from Jan. 31, 1927, subject to credits thereon not heretofore allowed for payments, if any, made since July 5, 1927.

J. Perry Eckels, Meadville, Pa.