author: Taulane, J., Kun, J., McDevitt, P. J.,

text:
    Cohen v. Schofield, Director of Public Safety, et al.

      A. T. Ashton, G. C. Farrier and J. A. Boyle, for defendants, exceptants.

      B. l. De Young, for plaintiffs, contra.

      Dec. 18, 1929.
   Taulane, J.,

— The plaintiff, Philip Cohen, has a Federal permit to manufacture a toilet preparation known as Parma Violet Perfume. One of its chief ingredients is denatured alcohol, but if manufactured according to the permit, it could not be redistilled or otherwise treated so as to be fit for beverage purposes.

Some 2000 gallons of said perfume, prepared by Cohen, one of the plaintiffs, and sold by him to Hoffberg, another plaintiff, while being transported by Kessler, a teamster, along the streets of the City of Philadelphia, were seized by the police on the ground that said perfume was not manufactured in accordance with the Federal permit, but contrary thereto, so that said perfume could be readily converted, by distillation or other process, into an alcoholic substance fit for beverage purposes.

Immediately upon its seizure, the perfume was delivered to the District Attorney for condemnation in accordance with the provisions of the Snyder Act (March 27, 1923, P. L. 34).

The plaintiffs filed a bill in this court, alleging that the perfume was manufactured in strict accordance with the permit; that it was not subject to seizure as a violation of the prohibition laws, and prayed that the perfume be returned to them, and the police officials be restrained by injunction from interfering with the lawful conduct of their business.

The defendants filed an answer, denying the allegations of the bill, and the issue so framed has been tried. The Trial Judge found that the perfume was manufactured in accordance with the permit, and that the plaintiffs are entitled to the relief prayed for.

As the perfume was seized as an alcoholic liquor, intended for use for beverage purposes in violation of the prohibition laws, and is in the possession of the District Attorney for condemnation, we think this court has no jurisdiction to determine whether the perfume was subject to seizure. The determination of that question is vested exclusively by the Snyder Act in the Court of Quarter Sessions on proceedings for condemnation by the District Attorney. If the perfume was manufactured in accordance with the permit, and was not intended for use for beverage purposes, of course, it could not be legally seized and condemned. And that is the question which the Court of Quarter Sessions will be obliged to decide in the condemnation proceedings already instituted by the District Attorney. If this is not the law, courts of equity, and not the Courts of Quarter Sessions, will be constantly called upon to determine questions of the right to seize and condemn illegal liquor.

Wherever the legislature provides a special remedy, that remedy is exclusive. Under no circumstances could we order the return of the perfume to the plaintiffs, because section 21 of the Act of Feb. 19, 1926, P. L. 16, 26, provides: “No property rights shall exist in any alcohol or alcoholic liquid manufactured, produced, distilled, developed, or used in the process of manufacture, denatured, redistilled, recovered, reused, held in bond, held in storage as bailee for hire, sold at wholesale, or transported for hire, in violation of any of the provisions of this act, and the same shall be deemed contraband and forthwith destroyed. No alcohol or alcoholic liquid in the custody of any officer of the law shall be seized or taken from him on any writ of replevin, injunction or other like process.”

The Snyder Act provides a very complete and exclusive procedure for the seizure and condemnation of alcoholic liquids, and the framers of the act purposely excluded the intermeddling of courts of equity by injunctions or like orders.

The plaintiffs contend that section 21 has no application unless the alcoholic liquid violates the prohibition laws. In a sense, that may be true, but the moment an alcoholic substance is seized as a violation of law, the legality of the seizure must be determined by the Courts of Quarter Sessions. Should we adopt the plaintiffs’ view, we would have a trial first in a court of equity, and if it be adverse to the claimant, he would have another opportunity in the Courts of Quarter Sessions.

We are satisfied that we are without jurisdiction and cannot order the return of the perfume to the plaintiffs.

A consideration of the merits of the case would not benefit the plaintiffs. The weight of the evidence suggests that the perfume was not manufactured according to the permit and that its sale and distribution was for illegal purposes. We are not called upon, however, to decide these questions, but leave them for decision in the condemnation proceedings.

We do not think an injunction should be issued against the police officials.

Courts of equity, as a general rule, have no jurisdiction or power to restrain or interfere with public officials in the enforcement of the criminal law: 32 Corpus Juris, 261. Courts of equity, in some instances, have issued injunctions to restrain the enforcement of an unconstitutional statute (Tyson v. United Theatre Ticket Offices, 273 U. S. 418) or to restrain police officers from doing some definite, concrete act, admittedly and concededly illegal. Even in such cases, courts of equity hesitate to interfere with the police.

Here the situation is different. The plaintiffs are engaged in a business where its lawfulness depends primarily upon the plaintiffs themselves. It has all sorts of ramifications leading to abuses and criminality. The police should have a free hand to enforce the liquor laws. We should not restrain them in advance or attempt to decide what they can and cannot do in enforcing the law. The circumstances of each ease as it arises will determine what action the police should take. It would embarrass the police in the performance of their duties if they were obliged each time they considered there was a violation of the law to interpret our injunction, which at best would only be in the most general terms. It would mean little for us to restrain the police from interfering with the lawful conduct of the plaintiffs’ business. If the plaintiffs conduct their business in a lawful manner, they need no injunction nor need they have any reasonable fear of police interference. We have no reason to believe that the police will molest the plaintiffs unless they violate the law. For any abuse of power on the part of the police the plaintiffs have ample redress in the civil and criminal law: Delaney v. Flood, 183 N. Y. 323.

The policy of courts of equity in refusing to interfere with the administration of the criminal law is admirably stated by Earl, J., in Davis v. American Society for the Prevention of Cruelty to Animals, 75 N. Y. 362, where he says: “A person threatened with arrest for keeping a bawdy-house or for violating the excise law, or even for the crime of murder, upon the allegation of his innocence of the crime charged, and of irreparable mischief which would follow his arrest, could always draw the question of his guilt or innocence from trial in the proper form. An innocent person, upon an accusation of crime, may be arrested and ruined in his character and property, and the damage he thus sustains is damnum absque injuria, unless the case is such that he can maintain an action for malicious prosecution or false imprisonment. He is exposed to the risks of such damage by being a member of an organized society, and his compensation for such risks may be found in the general welfare which society is organized to promote. This action is absolutely without sanction in the precedents or principles of equity.”

We think the exceptions must be sustained.

Judge McDevitt dissents and is of the opinion that an injunction should issue against the defendants as prayed for by the plaintiffs.

And now, to wit, Dec. 18, 1929, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows:

1. Defendants’ exceptions are sustained.

2. The bill is dismissed.

3. Plaintiffs to pay costs.

Kun, J.,

concurring. — In concurring with Judge Taulane, I deem it appropriate to make a few observations. Nothing should concern the people more than the matter of law enforcement. All their rights depend on it. While the term “law enforcement” has recently been used mostly in connection with thé 18th Amendment and the so-called Prohibition Laws, I do not use it in that restricted sense. A breaking down of respect for law can but lead to its destruction. The problem has been recognized as sufficiently acute to lead the President of the United States to appoint a distinguished committee to study the whole question.

Undoubtedly, the wholesale-violation of the liquor laws has been the consideration in this connection, which has particularly engaged the attention of right-minded officials and the courts. The forces which have been organized to circumvent and violate these laws have, as is well known, the most extensive ramifications. Their evil influences have reached into high places. They have debauched sworn officers of the law, while enriching them, as was disclosed not so long ago in this jurisdiction. The recent spectacular capture of their “fort” in northern New Jersey indicated the thoroughness of their organization. There is no limit to their cunning, ingenuity and resourcefulness.

These observations are made to emphasize the necessity for the exercise of the greatest caution by our courts in dealing with any phase of the subject. No doubt, many courts have been imposed upon and have unwittingly by their rulings given aid, comfort and protection to persons actually engaged in gross violations of the liquor laws, because they were ostensibly conducting innocent business. None of these comments may apply to the plaintiffs in these cases, but, as pointed out in the opinion of the court filed, the plaintiffs, as permittees, have it solely in their power to conduct their business according to law, or, as the police and the district attorney suspect, in gross violation thereof. If they prepare their product as required by their permits, and it goes into legitimate channels of trade, the police and the district attorney cannot interfere with them, any more than they could interfere with any other lawful business; and if it were shown that, notwithstanding repeated adjudications in the proper court, a permittee was doing business in strict compliance with the law, [and] the police continued to interfere with his business, a court of equity might restrain them.

However, the burden of showing strict compliance with the law, and that the product actually went into legitimate channels of trade and not to so-called “cover-up” houses, through which the product could get into illegitimate channels, would necessarily be on the complainant, and he would have to show the clearest kind of a case and the clearest right to such an extraordinary remedy as an injunction against the legally constituted police authorities. According to the records in these cases, it 'would seem that the burden was put on the defendants.

In the cases before the court (the above case and cases Nos. 16,675 and 16,677) there have been no adjudications by the proper tribunal — the Quarter Sessions Court — of the fact questions involved. The plaintiffs, permittees, having had their products seized on the ground that they were unlawful, filed bills in equity to restrain the police and the district attorney (who was added as a defendant) from proceeding further against them. I join with my colleague, Judge Taulane, in holding that we are entirely without authority to grant such relief. In my opinion, such action would be a usurpation of the powers specifically given by law to the Quarter Sessions Court, where these cases are exclusively triable in the condemnation proceedings following such seizures. The statute expressly prohibits the removal of such seized products from the officials by “replevin, injunction or ether like process.” It seems to me that the granting of an injunction before seizure would in effect be an anticipatory violation of the statute which prohibits the return of the seized product by injunction after seizure.

Though, as stated by Judge Taulane, we are not called upon to decide the merits in these cases, I agree with him that on a consideration of the merits, the weight of the evidence suggests that the so-called perfumes seized in these cases were not manufactured according to the requirements of the permits, and, what is more important, the plaintiffs failed utterly to prove that their products were going into legitimate channels of trade. The clear inference from the testimony is that the products were to be redistilled and then put into illegitimate channels for distribution in violation of the law of the land.

I take it that, as a judge, I am to bring to bear, in considering cases, not only what limited knowledge of the law I may have but I am expected to apply also that knowledge which every one more or less has — a certain amount of common knowledge. Every man on the street knows that the increased traffic in “perfumes” and “hair tonics” by truck loads running into thousands of gallons, and the storing of thousands of gallons of such alleged products, as disclosed in' the cases before the court, is not due to any wide-spread epidemic of baldness in this country, or to any sudden increase in the aromatic inclination of the people, but “perfumes” and “hair tonics” have been resorted to as the merest subterfuge for getting illicit liquor into circulation by the devious methods which have been devised by those in the business.

Considering the record facts in these cases and the reasonable inferences deducible therefrom, and the law applicable to cases of this sort, it was little short of audaciousness for the plaintiffs to have been bold enough to ask for an injunction against the police and the district attorney from interfering with their business. That they obtained an injunction in the first instance only proves that even so able a jurist as the President Judge of this court, who has done notable work in padlock cases, may be imposed upon. During the time the plaintiffs have had the injunction they have enjoyed what in effect has been for them a judicial license, under the protection of which they could (whether they did or not, they alone know) with impunity violate the law, the police being rendered helpless to interfere with them for fear of being committed for contempt. I cannot agree to any process which puts the police in any such position.

Experience proves, I think, that the cases are extremely rare in which police violate their duties by overzealousness in action. Their violations are rather in their failure to act in certain matters for one reason or another, as was recently disclosed. The instances must be quite extraordinary in which they can be properly restrained from acting, though, no doubt, there are many in which they should be made to act. That, however, is beyond our power as a court. The responsibility lies elsewhere.

In my opinion, there was no justification for granting the injunction in these cases. I, therefore, concur in sustaining the exceptions and in dismissing the bills.

McDevitt, P. J.,

dissenting, Dec. 24, 1929. — In this cause, in the opinion nisi, the court reviewed the evidence and extensively stated the law as it was found to be applicable to the facts presented. It would be surplusage, therefore, to go over the ground already covered in that opinion. There remains, then, but to point out what the Chancellor considers the error and inadequacy in the opinions filed by his colleagues, evidencing, as they do, a complete lack of comprehension of the testimony (580 pages) taken at the various hearings and their patent failure to consider the equitable relief prayed for.

They summarily dismiss the case for lack of equitable jurisdiction because of the provisions in the Snyder Act, and then, by way of extra-jurisdictional matter, arbitrarily state that the weight of the evidence suggests that the perfume was not manufactured according to the permit, and that its sale and distribution was for illegal purposes. Both opinions evidence a startling failure to absorb the atmosphere of the case as developed at the hearings. They completely ignore the important factor well recognized in determining the comparative value of conflicting testimony — the relative manner of the witnesses, expert and lay, in offering their testimony, the advantage of which comparison could only be had by sitting, as the trial judge, throughout the case.

The first prayer of the bill of complaint filed in this cause asked that the defendants, their police officers, detectives and agents working under them, be restrained and enjoined from interfering with the conduct of the lawful business of the plaintiffs. A careful study of the Snyder Act fails to disclose anything which would give relief from an unwarranted interference with the plaintiffs’ business; there is nothing in that act to prevent the granting of equitable relief in such a cause; and in no forum but a court of equity could such relief be had.

Having acquired jurisdiction, the court could make a final determination of the whole subject. Boni judiéis est ampliare jurisdietionem.

As was said in Miron v. Percheck et al., 279 Pa. 458, in a per curiam opinion: “‘It is quite true, as was held by the learned judge below, that equity having acquired jurisdiction of a case may decide all matters incidentally connected with it:’ Graeff v. Felix, 200 Pa. 137.”

Such a decree is within equity jurisdiction, avoids further litigation between the parties founded upon the facts developed, and is determinative of questions likely to arise between all parties connected with or interested in the dispute.

As pointed out in the opinion of July 31, 1929, the high-handed, arbitrary and unwarranted conduct of the Police Department savors of Bolshevick Russia. Mistaking a police uniform for the authority of law, the Police Department has attempted to destroy a business operating not only under a government permit but under the personal scrutiny of government agents.

Enforcement officers testified that their opinions were based upon rumors— mere gossip. The places they referred to as “cover-up” houses were well known to them but unmolested.

Much is made by defendants of the variance (according to their witnesses) between the samples filed in Washington and those taken in the seizures. Only by the most liberal interpretation of the rules of evidence could the samples be admitted, and the manner of proof was about as slipshod as the method of keeping such samples. Salus p-opuli suprema, lex is a maxim apparently unknown to the defendants. Apparently, they still believe in the Divine right of kings and the maxim Bex non potest peccare.

No man can be judge in his own cause. (Nemo debet esse judex in propria sua causa.) But apparently the Director of Public Safety believes that by. the police power vested in him he may sweep aside law, equity and Federal permits and establish a jurisdiction of his own. But even the police power, undefined and unbridled, will not be permitted to work a wrong. Omnia iainovatio plus novitate perturbat quam utilitate prodest.

The stenographic record is the only collection of facts before the court, and that which does not appear will not be presumed to exist. The law does not allow of a captious and strained intendment, for such nice pretence of certainty confounds true and legal certainty.

Nowhere does the record contain a statement that the lotions seized could be used for beverage purposes, and the law always regards the immediate, not the remote cause of any event.

No man should take advantage of his own wrong. Why should innocent persons be compelled by such high-handed practices to recover their lawful property by the long-drawn and tedious methods of a trial by jury in a Quarter Sessions Court?

Acta exteriora indicant interiora secreta. If the Police Department were confident that the plaintiffs were violating the law, they needed but to procure a search warrant and confiscate the contraband. But they preferred their highway confiscatory methods under the cloak of uniforms so as to better destroy their victims.

There is no right without a remedy, and equity looks upon that as done which ought to be done by both parties to every transaction.

For the reasons set forth in the opinion nisi and herein, I cannot agree with my colleagues, and in dissenting feel that defendants’ exceptions should be dismissed.


source: Caselaw Access Project

author: Fleming, P. J.,

license: Public Domain

text:
    Pletcher v. Pletcher.

      5. D. Gettig (with him John J. Bower), for plaintiff.
    J. K. Johnston (with him Philip H. Johnston), for defendant.
    July 23, 1929.
   Fleming, P. J.,

— This matter is before the court upon an affidavit of defense raising questions of law, filed under the provisions of section 20 of the Practice Act of May 14, 1915, P. L. 483. The contentions of the defendant are that the plaintiff’s statement fails to show that she was any more than a mere volunteer, and that no privity of contract existed between plaintiff and defendant, and that, therefore, as a matter of law, no liability rests upon the defendant.

A careful consideration of plaintiff’s statement shows that the plaintiff was the daughter of defendant’s wife by a prior marriage; that plaintiff’s mother, being the defendant’s wife, became ill quite sometime before her death, and that she, the mother and wife of the parties, requested the plaintiff to pay doctor and hospital bills which had been contracted. The statement of the plaintiff does not aver that plaintiff’s mother had requested her husband, the defendant, to pay these bills, nor does it aver that he, the defendant, had unreasonably neglected or had refused to pay the same. It suffices with the averment that such bills were not paid “by her husband, A. A. Pletcher,” and that they were paid “with the knowledge and consent of the said A. A. Pletcher.” It is later averred in the statement that neither plaintiff’s mother nor her husband, this defendant, had the ready money to pay such bills, following such averment with the vague wording, “this plaintiff to be reimbursed for these bills by the said A. A. Pletcher, the husband of Cora Pletcher.” Nowhere in said statement is it averred that the defendant was consulted about nor that he agreed to pay the bills in question. Nor does the plaintiff aver that she was under a legal compulsion to pay the same.

While we regard the moral obligation to pay his stepdaughter for these moneys as most firmly fixed upon the defendant, we are of the opinion that the contentions of the defendant, in a legal sense, are well founded and that the points raised must be decided in his favor.

Jones v. Markley et ux., 92 Pa. Superior Ct. 348, was an action in assumpsit to recover from a husband a loan made to his wife for the purchase of necessaries. Therein Judge Henderson says: “An attempt was made in the statement of claim to charge the appellant on an implied liability for the money because at the time it was procured by the wife she represented that the moneys were needed for the purchase of necessaries of life by her. It nowhere appears in the statement of claim that the defendant had driven his wife from his home or that he had failed to provide her with necessaries in their home, and it is only when the husband has abandoned his home or driven his wife therefrom or has refused to provide for her therein that an implied credit arises in her favor, under which she is authorized to procure lodging, clothing, food and other necessaries suitable to her condition in life and reasonably within the ability of her husband to pay. It was held, however, in Walker v. Simpson, 7 W. & S. 83, that the liability did not cover money borrowed by the wife, as that was not an equivalent of the things which a husband was obliged to furnish his wife under the classification of necessaries. It is not set forth in the statement of claim that the circumstances of the wife were such as to entitle her to charge her husband’s estate with any obligation. The averment is merely that the loan was made on her representation that the money was needed for the purchase of necessaries. This falls far short of creating a prima facie liability of the husband.”

The instant case presents an example of an attempt to charge the defend-' ant with an implied liability. The purpose for which the money is averred to have been supplied by the plaintiff was for hospital care and doctors’ bills, which might be said to come within the class of “other necessaries' suitable to her condition in life,” as mentioned in Jones v. Markley, supra. It does not appear from the plaintiff’s statement that the defendant refused or neglected unreasonably to furnish the services and attention required by his wife, or that he intended that the bills for the same should never be paid. The averment is that “these bills were a great source of annoyance to her, and she requested her daughter, Lorilla Pletcher, the plaintiff, to pay these bills under the direction of the said Cora Pletcher and with the knowledge and consent of the said A. A. Pletcher.” Bills and obligations are commonly annoying to all honest folks, but however honest one may ’be, there may be times and circumstances when one cannot pay. The fact that such bills were paid by the consent of the defendant — the statement does not say whether such consent was express or implied — does not entitle us to infer that he, the defendant, requested the plaintiff to pay them or that he, the defendant, agreed to reimburse the plaintiff for such expenditures. That the defendant was originally liable to the parties with whom such bills had been contracted cannot be denied, and the averment in plaintiff’s statement of claim is that he was liable for the same. The statement does not aver, however, that plaintiff paid these bills at the request of the defendant, or that she was a surety for their payment, or that she was under any form of legal compulsion to pay them. That her mother was annoyed by these bills, and that plaintiff paid them out of the goodness of heart to relieve her mother’s anxiety, is definitely certain and beyond question. But this is not sufficient, in a legal sense, to bind the defendant.

Nor can the plaintiff invoke the aid of subrogation in any way. Beach on Modern Equity Jurisprudence, § 801, says: “But one who is only a volunteer cannot invoke the aid of subrogation, for such a person can establish no equity. He must have paid upon request or as a surety, or under some compulsion made necessary by the adequate protection of his own right. In such a case, instead of creating any right of subrogation, the payment operates as an absolute discharge of the debt so paid.”

Sheldon on Subrogation, § 240, says: “The doctrine of subrogation is not applied for the mere stranger or volunteer who has paid the debt of another without any assignment or agreement for subrogation, being under no legal obligation to make the payment and not being compelled to do so for the preservation of any rights or property of his own.”

Subrogation can be invoked only for the protection of one who has paid the debt of another because he had made himself legally liable in connection therewith. When under no liability himself in connection with the debt he voluntarily pays it, no equity can arise from the transaction calling for protection. In such case, payment extinguishes the debt, except as the creditor received the money upon the understanding that the debt is to be assigned to the party paying. In such a case, the transaction being one of purchase, and not payment, the debt survives: Lackawanna Trust and Safe Deposit Co. v. Gomeringer, 236 Pa. 179.

In the instant case, however, there is no averment that plaintiff received or was to receive an assignment of the bills in question. The payment by the plaintiff, under the facts averred, therefore, brought about an extinguishment of the debt. The manner of payment was, in effect, a loan of cash by the plaintiff to h'er mother, which, under the ruling of Walker v. Simpson, 7 W. & S. 83, cited above, precludes a recovery in this case. The payment made by the plaintiff was made merely to relieve the anxiety of her mother and to extinguish debts in which she, the plaintiff, had no interest. The plaintiff was under no legal obligation to pay these debts. She voluntarily paid them without a request of the defendant or without any form of agreement or understanding with the defendant as to reimbursement.

As great as is our admiration for the manner in which the plaintiff stood by her mother in her hours of pain and suffering, and thereby sought to make her last days as peaceful and comfortable as was possible, we are compelled, as a matter of law, to sustain the contentions of the defendant and to rule against her right of recovery in this suit.

And now, July 23, 1929, after due consideration and for reasons noted above, the questions of law raised in the affidavit of defense filed are decided in favor of the defendant and against the plaintiff; such finding disposing of the entire question herein involved, judgment is directed to be entered in favor of the defendant and against the plaintiff.


author: McPherson, P. J.,

text:
    Reichley v. Mellott.

      John R. Jackson and Edmund Wingerd, for plaintiff.

      Walter K. Sharpe and John P. Sipes, for defendant.
    Aug. 19, 1929.
   McPherson, P. J.,

— In the trial of the above-entitled cause the question of the identity of the tract in dispute with the tract assessed and sold under proceedings to collect taxes was left to the jury under the testimony admitted. The jury found in favor of the plaintiff and against the defendant. The records in the county commissioners’ office showed the following: The assessors’ list for 1908, 1909', 1910 and 1911 for Todd Township, Fulton County, Pa., showed an assessment in the name of John Britton, Jr., warrantee, of 288 acres, valued at $288; that upon this assessment county taxes were levied for the corresponding years at the rate of 5 mills on the dollar; that returns of the tax collector of Todd Township of taxes unpaid on unseated lands were filed in the office of the county commissioners in the various years in the name of John Britton, Jr., and John Britton. It also appeared by the records of the Land Office of the State of Pennsylvania that in Fulton County there was no warrant issued in the name of John Britton or John Britton, Jr., except a warrant located in what is now Todd Township, Fulton County, to John Britton, Jr., for 404 acres.

The county treasurer’s tax book shows the sale for taxes of a tract of land in the name of John Britton, warrantee, 404 acres, to the county commissioners in the month of June, 1912. Later, there was a sale by the county commissioners of the land so purchased to W. L. Moseby in August of 1919, which tract was sold as a tract in the name of John Britton, warrantee, 404 acres.

The defendant objected to the introduction of the records of the Land Office of Pennsylvania which were offered by the plaintiff for the purpose of showing that no warrant was issued by the State for land in Fulton County in the name of John Britton or John Britton, Jr., except the tract of land warranted to John Britton, Jr., for 404 acres, located in what is now Todd Township, Fulton County.

The plaintiff further contends that, with this evidence out of the case, there is no evidence among the records of the commissioners’ office which would identify the tract of land sold for the collection of taxes; that the land assessed in the name of John Britton, Jr., warrantee, of the area of 288 acres, is no record evidence of the identity of that tract with the tract sold as land warranted to John Britton for 404 acres; that the question of identity should not have been submitted to the jury, and that the verdict of the jury should be set aside and judgment should now be entered in favor of the defendant.

As to the admission of the records of .the Land Office of the State of Pennsylvania, we are of the opinion that they were properly received for the purposes for which they were offered. These recprds seem to have been recognized by the courts as admissible for the purpose of showing negatively certain facts, because they contain no record of certain documents which had to be recorded in such record. Such records for such purposes were received in the case of Struthers v. Reese, 4 Pa. 129, 131. And in the case especially relied upon by the defendant in support of this motion, namely, Auman v. Hough, 31 Pa. Superior Ct. 337, 341, it is clearly stated that records of the Land Office were there admitted for the purpose of showing that there was no tract of unseated land in the County of Clinton warranted in the name of “Thomas Carothers.” Under these authorities, we are of the opinion that these records were properly admitted.

The question, therefore, remains as to whether or not, under the state of the records, there was any record evidence in the commissioners’ office which furnished a source of identification of the land in question or would lead to the identification of the land in question with the land sold and the question of the identity should have been submitted to the jury. It has been ruled that the suffix “Jr.” is not part of a man’s name, and that where the only difference between two names is the addition of such a suffix, both names are presumed to refer to the same person until the contrary is affirmatively alleged and proved: 29 Cyc., 268. If this be the law, then the assessment of the property in the name of John Britton, Jr., was sufficient to identify the land assessed with the land sold for taxes, or at least was sufficient as a source of identification, to be corroborated by any other testimony that might be produced, to have the question of identification submitted to the jury.

In support of the construction that the suffix “Jr.” is not a distinctive part of a man’s name, we rely on the following cases: Brainard v. Stilphin, Jr., 27 American Decisions, 532; Johnson v. Ellison, 16 American Decisions, 163; Litchfield v. Farmington, 7 Conn. 100.

If the suffix “Jr.” is no part of a person’s name, it would seem that an owner of land, the warrantee of which was John Britton, Jr., would be put upon notice that his land would be sold for taxes when in the proceedings for sale of land it was designated as land of John Britton, warrantee.

In Bidwell v. Coleman, 11 Minn. 78, the Supreme Court of Minnesota held that where a deed ran to A. B. Jr., and A. B. Jr. conveyed to C., C. must take notice of a judgment entered against A. B. while A. B. Jr. owned the property, as “Jr.” is no part of a name.

In Clark v. Groce, 41 S. W. Repr. 668, it was held that, where a patent to land was issued to the heirs of Jared E. Groce and proceedings in probate court were an administration of Jared E. Groce, Jr., the word “Jr.” was no part of the name and the identity of the estate with that of the patent was sufficiently shown.

The case of Auman v. Hough, relied on by the defendant, is not analogous to the instant case, as in that case there were two names, different both as to the surname and to the given name, and under those circumstances the court held that there was no record evidence of identification for the purpose of sending the question of identification to the jury for determination.

Under the facts as above outlined, we are of the opinion that the question of identification of the land with the land sold was a matter for the jury and could not have been withdrawn from their consideration. Their verdict that there was an identification established by the evidence in question is supported by the evidence itself, and the court is without authority or power to grant the motion of the defendant.

And now, Aug. 19, 1929, the motion of the defendant is overruled, and it is directed that judgment be entered in favor of the plaintiff and against the defendant on the verdict rendered upon the payment of the jury fee.


author: Groff, J.,.

text:
    Strasburg Borough v. Alexander.

      Harris G. Arnold and John A. Coyle, for plaintiff.

      F. Lyman Windolph, for defendant.
    Jan. 19, 1929.
   Groff, J.,.

— This is an action brought by the plaintiff, the Borough of Strasburg v. N. B. Alexander, to recover the sum of $87.35. by reason of the plaintiff borough having placed curbing along the front of the defendant’s property in the said borough.

The plaintiff’s original statement of claim was filed Feb. 2, 1927, to which an affidavit of defense raising a question of law was filed on Feb. 14, 1927. The questions raised in said affidavit of defense were argued, and on April 16,

1927, an opinion filed by Landis, P. J. The questions of law were decided against the defendant without prejudice to his legal rights. See 40 Lane. Law Rev. 515. Following the suggestion of the court in the opinion above referred to, the plaintiff, on Nov. 3, 1928, filed an amended statement, amending paragraphs 3, 5 and 6 of his original statement, and on Dec. 15, 1928, plaintiff again amended his statement, amending paragraph 3. These amendments are all under separate backs and are not embodied in one document as an amended statement.

On Sept. 12, 1928, an affidavit of defense to the merits was filed, and later, on Nov. 3, 1928, the plaintiff filed a reply. On Nov. 24, 1928, the defendant came into court and asked permission to withdrawn the affidavit* of defense filed on the merits of the case, and that he he permitted to file an affidavit of defense raising questions of law to the amended statement of claim.

An examination of the plaintiff’s statement discloses that neither the ordinance under which the said curbing was done nor the method provided in said ordinance for assessing the costs of the same is set out in plaintiff’s statement, nor is the method by which the cost to defendant was ascertained by the borough set forth sufficiently to enable the defendant to file an affidavit thereto.

We, therefore, feel that the plaintiff’s statement is deficient in not setting out this information to which the defendant is entitled; that there is some virtue in the questions of law raised by the defendant, but that the deficiency is not such as would entitle the defendant to a judgment on an affidavit of defense raising a question of law; that the proper practice in cases of this kind, under section 21 of the Act of May 14,1915, P. L. 483, would be as suggested by the Supreme Court in King et al. v. Brillhart, 271 Pa. 301, viz., to move to strike off the insufficient statement, or if it is too indefinite, to obtain a rule for a more specific statement.

We, therefore, decide the question of law against the defendant, but order and direct the plaintiff to file an amended statement setting out the necessary facts upon which his claim is based within fifteen days from the filing of this opinion.

Prom George Ross Eshleman, Lanoaster, Pa.


author: Broomall, J.,

text:
    The State Mutual Benefit Society v. Jackson et al.

      Thomas A. Curran, for petition.

      Alexander B. Geary (of Geary & Rankin), with him Geo. J. Edwards, Jr., contra.
    Oct. 18, 1929.
   Broomall, J.,

— In the above attachment execution defendant, Jackson, presented his petition for the benefit of debtor’s exemption under the Act of April 9, 1849, P. L. 533, to which plaintiff and garnishee therein filed a joint answer denying his right thereto, and also claiming to set off a judgment for costs subsequently assigned to garnishee by plaintiff in these proceedings against the sum due him by garnishee on another judgment.

It appears that defendant, Jackson, in the suit, as of the above term and number, against plaintiff (defendant therein) recovered a judgment in the Court of Common Pleas of this county for $125, together with interest and costs; that defendant, Jacks on, was also plaintiff in another suit against garnishee and recovered a judgment in a similar amount against it; that judgment of plaintiff, on appeal, was reversed, while the one against garnishee was affirmed (see 95 Pa. Superior Ct. 56); that thereupon plaintiff entered judgment for costs, issued an attachment execution thereon against defendant, Jackson, attaching the moneys due him on the judgment against garnishee; that the judgment of plaintiff for costs amounts to $132.50, while the judgment of defendant, Jackson (plaintiff therein), against garnishee is in the sum of $186.54; that plaintiff subsequently assigned its said judgment for costs to garnishee, and that garnishee offers the difference ($54.04) in full settlement.

The Act of April 9, 1849, P. L. 533, exempts property on execution to the value of $300 from levy and sale. This allowance should not be treated lightly, and a debtor should be protected in having it allowed to him, unless he has waived it or by some legal act of his he is to be deprived thereof. In in the instant case it has not been waived nor has any act of the debtor deprived him of it. The execution is on a judgment for costs in an action wherein debtor was the unsuccessful plaintiff to recover on a contract of insurance. There is no question raised as to the regularity of the exemption claim. It is contended that to allow it in this case would be an approval of an inherently wrongful act, but with this we cannot agree. The suits in question by debtor were against two different defendants, and the rights which accrued for or against him in each must be treated separately.

While the'Exemption Act of 1849, supra, applies only to eases of debt on contract, it will be allowed on a judgment for costs against an unsuccessful plaintiff in an action of tort: Lane v. Baker, 2 Grant, 424, cited with approval in Bradley v. Railroad Co., 160 Pa. 72. The judgment for costs, even in an action of tort, is treated simply as though the costs were a debt on an implied contract to pay. It is not contended, however, that the exemption is not allowable on an attachment execution, but only that it is not allowable on an execution for costs. The above decision decides this point in favor of the debtor.

It is also contended that plaintiff having assigned its judgment to garnishee, that one can be set off against the other. While one is a judgment for costs, and the other is a judgment for debt, this we believe makes no difference. It is well settled that one judgment may be set off against another judgment.

Counsel for plaintiff and garnishee cite Ehrhart v. Esbenshade, 53 Pa. Superior Ct. 258, and Knoller v. Everett, 65 Pa. Superior Ct. 169, in support of their contention. In our opinion, these cases, involving a set off of one judgment against another, are authority for the proposition that they will only be set off upon equitable principles and will not be set off where it will work an injustice to either party or where there are intervening equities. The inherent power of the court in this respect will only be exercised in its discretion so that substantial justice will be done.

In the instant case we believe it would be an injustice to deprive debtor of the benefits to which he is entitled under the exemption law, as he has not waived the benefit of it, nor has he by any act deprived himself of it, and that a similar injustice would be done should we allow the set-off, as by so doing he would be deprived of his exemption.

And now, to wit, Oct. 18, 1929, rule heretofore granted is allowed, exemption allowed as prayed for and set-off refused.

Prom William R. Toal, Media, Pa.


author: MacDade, J.,

text:
    Christ v. Fleegler et al.

      John E. McDonough, for plaintiff; E. Le Roy Van Roden, for defendants.
    Nov. 12, 1929.
   MacDade, J.,

— This is an action by bill of complaint, to which preliminary objections are filed.

The bill avers that one Christ Gost Christ, of Michigan, on Nov. 29, 1921, became seized and possessed of a certain lot or piece of land, situate in the City of Chester, bounded and, described as therein set forth.

That the then Treasurer of the County of Delaware, on June 9, 1924, exposed said lands to public sale at his office in Media and sold the same to one of the defendants herein, namely, Joseph Fieegler.

Thereafter, the deed for same was acknowledged in open court on June 29, 1926; the said Frank S. Wallace, Treasurer, delivered his deed to the said Joseph Fieegler, which was duly recorded in the office of the Recorder of Deeds in and for Delaware County in Deed Book 630, page 10, eo die.

It seems that the! County Treasurer sold the land because of non-payment of county rates and levies for the year 1922, aggregating $2.51, and poor rates and levies for the same year, aggregating 59 cents. No other rates or unpaid taxes were charged against the said land.

The plaintiff further avers that:

1. The Treasurer of the County of Delaware was without legal right to sell any land in the City of Chester for non-payment of taxes.

2. That the sale, deed and conveyance of the said land by Frank S. Wallace, Treasurer of the County of Delaware, to the defendant, Joseph Fieegler, was void and without authority of law.

3. That the deed so recorded is a cloud upon his title.

4. That, although requested by plaintiff, the said defendant has neglected, failed and refused to reconvey the said land to him. ,

The preliminary objections [of the defendant] to the bill are:

1. He should not be required to answer the facts averred in said bill, since he has a just and complete defense to plaintiff’s claim which does not require the production of evidence to sustain it, as follows:

(a) Plaintiff admits in his bill that the land described in paragraph No. 1 of the bill was sold by the County Treasurer of Delaware County for the nonpayment of county taxes.

(b) Plaintiff nowhere alleges that the sale was irregular in any respect, and, therefore, defendant submits that the sale was valid and proper under the Act of June 1, 1915, P. L. 660, and the other acts pertaining to sale of lands for non-payment of county taxes.

Under the Act of March 13, 1815, § 4, 6 Sm. Laws, 299, we find in substance the following: “No alleged irregularity in the assessment, or in the process or otherwise, shall he construed or taken to affect the title of the purchaser, but the same shall be declared to be good and legal:” Ryan v. Bruhin, 88 Pa. Superior Ct. 61; Peters v. Heasley, 10 Watts, 208; Townsen v. Wilson, 9 Pa. 270; Lee v. Jeddo Coal Co., 84 Pa. 74; Coxe v. Deringer, 78 Pa. 271.

In Peters v. Heasley, supra, it was said: “We are asked in this case to consider them all [all cases], to go back to the earliest decisions, and decide that unless the purchaser can show at the trial that every direction and requisite of the law has been punctually complied with, the purchaser has no title. The Act of 1815 was framed expressly to dispense with such proof, and it has been so repeatedly decided that after two years allowed by the act within which an owner might redeem, all proof of any more than that [1] a tax was assessed, and [2] a sale made was unnecessary, that we had a right to suppose the matter at rest.”

The same effect is given by the Act of 1915 as to seated lands: Ryan v. Bruhin, 88 Pa. Superior Ct. 61.

In an action of ejectment, both parties must set forth in full their title. The plaintiff has the right to content himself with the offer of his paper title. The defendant then may show why he has a better title, by showing the tax sale proceedings: Osmer v. Sheasley, 219 Pa. 390.

The sale of real estate for the non-payment of taxes is a statutory proceeding and certain necessary steps must be taken to pass good title.

In-this bill in equity, however, the plaintiff must show wherein the tax sale was irregular, to be a cloud on his title: Cuttle v. Brockway, 24 Pa. 145.

He states only that city land may not be sold, and that the sale is void and without authority of law. He does not raise the question of an irregular assessment.

His bill avers that defendant has a deed for the land subsequent to his, and alleges only one reason why it does not divest plaintiff’s title: Cuttle v. Brockway, 24 Pa. 145; Iron Co. v. Pales, 55 Pa. 90; Heft v. Gephart, 65 Pa. 510.

We now come to the real question in this ease, namely: Are lands in the City of Chester liable to be sold at tax sale for county taxes?

It is contended by the plaintiff that city land may not be sold for county taxes.

The Act of May 21, 1913, P. L. 285, provides: “That return of taxes assessed by the authorities of any county, poor district, borough, incorporated town or township against seated land in such county, poor district, borough, town or township shall be made whenever personal property cannot be found thereon sufficient to pay such taxes, and when the necessary requirements of the act have been complied with, the property may be sold by the county treasurer for the unpaid taxes.”

This means that when the authorities of the county, &c., assess a tax on property in the county, and where the authorities of the boroughs, poor districts or townships assess a tax on property in their respective taxing jurisdiction and the taxes remain unpaid for two years, the property may be sold by the county treasurer. The! act does not say that the cities in any county may make a return of city unpaid taxes, and if not paid within two years, the property assessed may be sold by the county treasurer. The property in a city, in the county, is subject to county tax, and the act provides that all assessed county tax unpaid shall be returned.

The Act of 1913 was amended by the Act of June 1, 1915, P. L. 660, which provides that returns to the commissioners of the county on or before Feb. 1st, after taxes are assessed, of taxes by any county, school district, &c., against seated land, shall be made, whenever personal property cannot be found on the premises sufficient to pay the taxes. There can be no reason at all to construe this that a county treasurer may not sell land located in a city to collect county taxes. The several municipalities and quasi-municipalities named may return their taxes to cause property in their boundaries to be sold. A city may not return its taxes for collection, but the land in the city is liable for taxes authorized to be returned.

Other pertinent authorities on the question of the authority of the county treasurer to sell at tax sale land in the City of Chester for unpaid county taxes are Day v. Swanson, 236 Pa. 493; Long v. Phillips, 241 Pa. 246; Ryan v. Bruhin, 88 Pa. Superior Ct. 61; Act of 1844, P. L. 486; Act of 1901, P. L. 224-250; Act of 1903, P. L. 106; Act of 1913, P. L. 285; Act of 1915, P. L. 660; Act of 1921, P. L. 1089; Act of 1925, P. L. 735.

The county treasurer in the present cause seems to have proceeded with the sale under the Act of 1915, supra, and the plaintiff contends the sale is irregular for that reason, for the act, it is claimed, excepts cities of the third class, which the City of Chester is, but with this contention we do not agree, supra.

Order.

And now Nov. 12, 1929, the above matter coming on to be heard by the court in banc upon bill of complaint and preliminary objections thereto and arguments of respective counsel, after due consideration, the court doth order, adjudge and decree that the preliminary objections be and are hereby dismissed, and the defendants are hereby ordered and directed to file their answers sec. reg. et sec. leg.

From William R. Toal, Media, Pa.


author: Thompson, J.,

text:
    Culbertson’s Estate.

      William J. Brady, for James Culbertson, exceptant.

      Bernard J. O’Connell (Nathan Griffith and Frank R. Ambler with him), contra.
    Feb. 7, 1930.
   Thompson, J.,

— We have read carefully the 157 pages of testimony and the thirty-two pages of the opinion of the Presiding Judge (Gest), and are of the opinion that Judge Gest was correct in holding the will to be a forgery and in revoking the letters testamentary granted thereunder. We are persuaded in reaching this conclusion by a consideration of the following:

1. When Mrs. Culbertson died in August of 1917, she lived at No. 2130 Wood Street with several of her children. She had nine altogether. The house was a small one and a search was made for a will and no will could be found. About two weeks thereafter the will in question was found in a drawer in the bureau in the decedent’s bedroom. This drawer was searched after her death for a will and it was not there then. At least three, and perhaps four, of the children were present when both searches were made, although James denies this in part and said there was only one search. James is the chief beneficiary. This, we think, is strongly corroborative of Augustus’s story that he forged the will and gave it to James after his mother’s death, and it was placed where it was subsequently found.

2. The will is alleged to have been forged in September, 1917, but dated back to 1907, this being the year after the death of decedent’s husband, and the same witnesses were on both the will of the decedent and her husband. These witnesses are now dead, and their handwriting was sworn to by members of their family, but this testimony is very unsatisfactory.

3. In the will alleged to be forged, James, a boy about eleven years old in 1907, was named as executor. Augustus, the self-confessed forger, said they did not think of this discrepancy of age at the time they made James an executor.

4. Augustus submitted at the hearing a draft which he practiced on before the final will was drawn. He said he made three copies before he finally got the will in the shape he wanted.

5. We think it unnatural for a mother of nine children to leave such a large portion of her estate to one child, and he about eleven years of age, to the exclusion of the rest, with all of whom she was on most friendly terms. The alleged forged will gives each child $250, and the rest of her estate, including four pieces of real estate, to James.

6. No one of the nine children knew of a will in the lifetime of the decedent, who was an illiterate woman and could not write, as she signed with a mark. It is incredible to our mind that an illiterate woman should make such a will and none of her children know anything about it in her lifetime. Augustus says he forged the will, and it is all in his handwriting. There is some testimony to the effect that the decedent some time before her death said she intended to make a will and was to go to see a lawyer about it, which she never did.

7. A comparison of the signatures of the witnesses on the forged will with signatures claimed to be genuine shows a marked difference.

8. Augustus, the alleged forger, says he used his father’s will as a form. A comparison of the wills shows this to be true in part.

9. According to Augustus’s testimony, the reason for the forging of the will was that James was going with a girl with whom he wanted to make a showing that he was a man of substance, and it was understood between James and Augustus that in a year or so James would sell the property and make an even division among all the children. Augustus says the will was not forged until after the death of his mother when no will was found. Augustus swears that he asked James to make this division about 500 times, and James kept putting him off until finally it worked on his conscience to such an extent that in December, 1928, he went to a policeman at 17th and Market Streets, they being in the teamster business and having an office near that point, to come and arrest James in the office; the policeman came and Augustus wanted James arrested. The policeman testified that he told Augustus that he could not arrest James, but that he should get a lawyer or go to a magistrate, and Augustus said, “If I assault him you are bound to arrest us both, and I will then tell the story.” He then made an effort to assault James after charging him with participation in the forgery of the will, and James sat in his chair and made no response and said, “You have not heard my side of the story.” A man charged with a crime he did not commit would not act in this way. Augustus then told the story to the family; one of the members went to James and he did not deny it, but said, “You have not heard my side of the story.” This is not the natural conduct of a man charged with a crime.

10. The will is in the handwriting of the confessed forger. It will not do for the chief beneficiary, James, to say he knows nothing about the matter. If Augustus did not write the will, who did? The beneficiary should have some knowledge of who wrote the will, or the circumstances of its being written if it was written by the other members of his family. It is exceedingly improbable that the will was written by Augustus at the request of his mother and no one knew anything at all about it.

11. If the will alleged to be forged was written in 1907, where was it until found in 1917? The decedent was an illiterate woman. If the will was given to her in 1907, what did she do with it? It was not in the bureau drawer in 1917 when search was made to find the will, and it is not alleged that Augustus kept it since 1907 and said nothing about it to anybody.

12. The only testimony offered by the proponent was James himself, who disclaimed any knowledge about anything. We think it was incumbent upon James under the circumstances, as he says that the will is not in the handwriting of Augustus, to have offered some proof of a handwriting expert that this was the fact. There was no trouble in getting admittedly genuine writings of Augustus, as James was in business with him and the other brothers until 1918.

13. We feel convinced that Augustus’s story of how he forged the will has been corroborated.

The decree of the Presiding Judge dated Nov. 14, 1929, sustaining the appeal and revoking letters testamentary is affirmed, and all exceptions filed thereto are dismissed.


author: Hildebrand, P. J.,

text:
    Houk v. Houk.

      Aiken & Brahum, for plaintiff; Clyde Gibson, for defendant.
    July 31, 1929.
   Hildebrand, P. J.,

— This matter was argued before the court in banc on a mile issued upon plaintiff’s motion for a decree pro confesso for want of an appearance and for want of an answer to a bill in equity, in which plaintiff seeks an order directing her husband, the defendant, to contribute to her support and to account to her for certain personal property taken by him at the time of his desertion of plaintiff, canceling and rendering void a certain deed, enjoining and restraining the defendant from alienating or encumbering certain real estate and attaching and sequestering certain lands and personal property, pending disposition of the case.

The record shows that the bill was filed on May 24, 1928. On May 26, 1928, on motion of plaintiff’s counsel, special injunction was issued restraining the defendant from removing certain personal property and from encumbering or alienating certain real estate. Hearing was fixed for Tuesday, May 29, 1928. On May 29, 1928, no service having been had on defendant and it being averred that defendant was then a resident of Ohio, service of the bill of complaint and of the special injunction issued on plaintiff’s motion was directed to be had upon defendant wherever he might be found, the service to be returnable June 4, 1928, to which time, upon motion, the injunction was continued. On June 5, 1928, the injunction and hearing thereon were continued to June 18, 1928. On the same day, upon plaintiff’s motion, service was directed to be had by advertisement. On June 27, 1928, a .paper marked “Appearance De Bene Esse” in the following form was filed:

“Now, June 27, 1928,1 do hereby appear de bene esse for John E. Houk, the defendant above named, and question the jurisdiction of the court in said case over him, the said John E. Houk, and object that the said court has no jurisdiction in said case over the defendant, and pray that the service by publication under order of June 5, 1928, be set aside and the said order vacated, and that the said orders of May 26, 1928, May 28, 1928, and May 29', 1928, be vacated and set aside and the bill and special injunction be dissolved, and further prays a rule to show cause directed to said plaintiff be issued and, saving and reserving the many errors, uncertainties and imperfections in said proceeding, say that the said court is without jurisdiction in said case and that the order of service by publication is irregular, illegal and void.

“Clyde Gibson, Appearing de bene esse

as attorney for John E. Houk."

On Sept. 5, 1928, and on Nov. 6, 1928, upon plaintiff’s motions, the special injunction granted on May 26, 1928, was again granted and continued. On Jan. 7, 1929, there was filed proof of service by publication, and on the same day plaintiff presented her motion for judgment pro confesso for want of an appearance and for want of an answer. Service of the rule issued on that motion was directed to be had by publication and proof of publication was filed May 24, 1929. Answer to the rule issued upon motion for decree pro confesso was filed June 3, 1928, the defendant setting up his appearance on June 27, 1928, for the purpose of objecting to the jurisdiction of the court, showing that that question had not been preliminarily determined and averring that the court was without jurisdiction to enter a decree.

While the paper filed by defendant on June 27, 1928, for the purpose of questioning the jurisdiction, asked that a rule to show cause be issued upon plaintiff, the paper having been filed in the prothonotary’s office and defendant’s request not having been called to the court’s attention, no rule was issued as requested. However, counsel for the parties have agreed that the matter may now be considered by the court as though a rule had been regularly issued and served on defendant’s request and that the question of jurisdiction as raised by the defendant, as well as plaintiff’s motion for a decree pro confesso, is now before the court for determination.

On behalf of the plaintiff, it is contended that defendant’s appearance de bene esse has the effect of a general appearance and that, the jurisdictional question not being raised in conformity with the Act of March 5, 1925, P. L. 23, the'question of jurisdiction is not properly before us.

In support of plaintiff’s contention that defendant’s appearance operates as a general appearance, plaintiff cites Taylor v. McCafferty, 27 Pa. Superior Ct. 122. In that case, the appearance was merely “de bene esse.”' It was held that the words de bene esse have no meaning in equity practice and that rejecting them as surplusage, the appearance was left general. That case, however, recognizes as proper practice the entry of a conditional appearance containing a reservation of all benefit of exception to the bill and service, the limitation of the appearance defining its purpose.

In the present case, in his appearance, defendant defines his purpose to be to question and object to the court’s jurisdiction, and he saves and reserves to himself “the many errors, uncertainties and imperfections” of the proceeding. It seems to us the case cited by plaintiff in support of her position supports defendant’s contention that his appearance is conditional and not general, and it may be well to note that cases decided by the Supreme Court since Taylor v. McCafferty indicate that the words de bene esse still have a meaning in equity practice. In Clark v. Elkin, 283 Pa. 339, 343, the opinion of the Supreme contains this sentence: “An appearance de bene esse was entered and a motion made to set the service aside.” In Vandersloot v. Pennsylvania Water and Power Co., 259 Pa. 99, 102, the present Chief Justice makes this statement: “Counsel for defendant entered an appearance de bene esse for the purpose of attacking these two returns.”

In support of their contention that the question of jurisdiction is not properly raised, plaintiff’s counsel calls our attention to section 2 of the Act of March 5, 1925, P. L. 23, which provides as follows: “All such preliminary [jurisdictional] questions shall be raised by petition setting forth the facts relied upon, whereupon a rule to show cause shall be granted and such preliminary question disposed of by the court. Such procedure shall be deemed de bene esse only and shall not operate as a general appearance.”

Plaintiff’s counsel also cite Rule 29 of the Equity Rules, which provides: “Any party served with a bill in equity or served by summons in an equity case who wishes to question the jurisdiction of the court over him or his property may file a petition, setting forth the facts and praying that the service be set aside; whereupon a rule to show cause shall be granted, an answer may be filed and further appropriate proceedings had as in actions at law; but such procedure shall be deemed de bene esse only and shall not operate as a general appearance.”

The writing filed by defendant is in the form of a petition. He prays that the service by publication be set aside, that various orders be vacated and that a rule be issued. It is not supported by affidavit. The defendant, however, does not set up any facts on which he bases his position, but rests his case upon the plaintiff’s pleadings. Rule 9 of the Equity Rules provides: “All pleadings, and amendments thereto, and all petitions, not founded on matters of record only, must be sworn to before some person other than a party or attorney interested in the cause.”

This rule indicates that an affidavit is not required to defendant’s petition. We consider that there has been a substantial compliance with the statute and the rule cited by plaintiff.

Having concluded that defendant’s appearance does not operate as a general appearance, and that he has properly raised the question of jurisdiction, the question of jurisdiction is now for disposition.

Service was had under the provisions of the Act of April 6, 1859, P. L. 387, which provides for personal service on parties outside the jurisdiction of the court wherever they may be found, and by publication when the defendant cannot be found, the 2nd section of the act providing for such service by publication. Such service is provided for in equity proceedings in any suit “concerning goods, chattels, lands, tenements or hereditaments, or for the perpetuating of testimony concerning any lands, tenements, and so forth, situate or being within the jurisdiction of such court, or concerning any charge, lien, judgment or encumbrance thereon, or where the court have acquired jurisdiction of the subject-matter in controversy, by the service of its process on one or more of the principal defendants.” The purpose of the Act of 1859 is clearly indicated by its title, “An act to authorize execution of process in certain cases in equity concerning property within the jurisdiction of the court and on defendants, not resident or found therein.” Equity has jurisdiction over property because the property is within the jurisdiction of the court, and its jurisdiction, in the absence of a general appearance by a non-resident owner, appears to be limited to that property.

The plaintiff contends that under the Act of May 23, 1907, P. L. 227, as amended by the Act of April 27, 1909, P. L. 182, giving a wife equitable relief against the estate of her husband, the court is empowered to enter a personal decree against the defendant and make such orders as will provide a suitable maintenance by sequestration or otherwise. Had the bill and its prayers been confined to the securing of equitable relief against the property of the defendant within the jurisdiction of the court, service by publication, under the Act of 1859, would have given the court jurisdiction. The ease of Erdner v. Erdner, 234 Pa. 500, cited by plaintiff, supports this statement. That case, however, was reversed on appeal, for the reason that the decree, made under service by publication, appointed a receiver in the estate of the defendant to take charge of all the property of the defendant and preserve assets for the benefit of creditors, etc., it being held that the court had no authority to delegate to a receiver the duty to ascertain the amount necessary or suitable for the maintenance of the wife or determine the property to be sold or mortgaged for that purpose.

The matter of jurisdiction acquired by service on a non-resident defendant by publication was fully discussed in Coleman’s Appeal, 75 Pa. 441. After reviewing the law previous to the Act of 1859, Justice Sharswood states: “It will be seen from this brief review that it has not been the policy of our jurisprudence to bring non-residents within the jurisdiction of our eourts unless in very special cases. In proceeding against them for torts, even property belonging to them cannot be reached by process, and in cases of contract nothing but the property can be affected, unless the defendant voluntarily appear and submit to the jurisdiction. We may congratulate ourselves that such has been the policy, for nothing can be more unjust than to drag a man thousands of miles, perhaps from a distant state, and in effect compel him to appear and defend under penalty of a judgment or decree against him pro confesso.”

After noting that an examination of the language of the Act of 1885 disclosed that it is strictly and carefully confined to two classes of cases, the first of which is, where a suit in equity has been instituted concerning property or for the perpetuating of testimony concerning property situate within the jurisdiction of the court; and, second, where the court has acquired jurisdiction of the subject-matter in controversy by service of its process on one or more of the principal defendants, Justice Sharswood continues: “As to the cases comprehended in the first class, we are of opinion that the bill must be confined, at least so far as the interest of the foreign defendant is involved, to a prayer for a decree affecting only the property in question. If it goes further and asks for relief by a decree against the defendant personally, though, it would be entirely competent for the court to make such decree, if the person of the defendant was within their jurisdiction, it is not a case within the purview of the act, and the court has no authority to direct the service of process upon the defendant. Had the hill in this case been confined to the prayer for relief as to ninety-eight shares of the capital stock of the Williamsport and Canada Lumber Co., standing upon their books in the name of the defendant, Walton Dwight, there would be plausible ground upon which to sustain the service of the process upon him.”

The language of Coleman’s Appeal is quoted at length in Vandersloot v. Pennsylvania Water and Power Co., 259 Pa. 103. In the latter case, as in the present case, the prayers for relief were not confined to property alleged to be within the jurisdiction of the court, and plaintiff prayed relief which, if granted, would require a decree against the defendant personally. For this reason, it was held not to be a case for service in accordance with the Act of 1859, and the judgment of the lower court was reversed and the service of the bill set aside. The plaintiff here prays for an order and decree directing the defendant to contribute to her support and maintenance, to account to the plaintiff for certain personal property removed by him and to reconvey certain lands to the plaintiff. Counsel, in preparing the bill, evidently had in mind that it would be served personally on the defendant within the jurisdiction of the court, and with that in mind the prayer of the bill seems to have been properly formed. However, as the plaintiff seeks a decree against the defendant personally, requiring action on his part to carry it into effect, the bill is not such a bill as may be served by publication under the Act of 1859, and the defendant, who has entered a conditional appearance, is entitled to have the prayer of his petition granted and the service by publication under the order of June 5, 1928, set aside and said order vacated.

Now, July 31, 1929, upon consideration of the foregoing, it is ordered, adjudged and decreed that the service by publication under the order of court dated June 5, 1928, be and the same is hereby set aside and the said order is vacated and the rule on plaintiff’s motion for decree pro confesso granted Jan. 27, 1929, is discharged and plaintiff’s motion refused.

From William McElwee, Jr., New Castle, Fa.


text:
    Commonwealth v. Waite.

      W. D. Zerby, for defendant and rule.

      John G. Love, District Attorney, contra.
    July 18, 1929.
   Fleming, P. J.,

— The question before the court is as to whether or not a justice of the peace has power to punish a person summarily by imprisonment for contempt, committed before him. In the instant case the justice of the peace issued his subpoena directed to the defendant, commanding him to appear and testify in a matter pending before him. Upon defendant’s default, an attachment was issued by the justice of the peace.

It has long since been decided that a justice of the peace does not have such power. In Albright v. Lapp, 26 Pa. 99, it is clearly decided that no such authority exists, and we have been unable to find otherwise, either in judicial decision or legislative enactment.

In Brooker v. Com., 12 S. & R. 175, where it is decided that an indictment can be supported for contempt of a justice of the peace, it is also held that such amounts to an obstruction of .the execution of his office. Justice Gibson therein says: “Every obstruction of an officer, in the execution of his office, is a public injury, and, unless where the legislature has directed otherwise, is indictable. Indeed, were it necessary to the due administration of the laws that justices of the peace should have power of commitment for contempt, I would not hesitate to declare that the grant of the office carried with it as an incident all ancillary power which should be necessary to its complete execution. But, as punishment of contempts by indictment is commensurate with this object, I am content that the law, in this respect, be held here as it is in England. By treating such contempt as an indictable offense, we put it in the power of the justice to hold the offender to bail, to answer to a prosecution and be of good behavior in the meantime, and to commit him in default of finding bail; which is sufficient to prevent a repetition of the offense. It is, therefore, unnecessary to the administration of justice that a justice should exercise the high power of punishing by attachment, which, in the hands of many magistrates, might become a public grievance. But that to obstruct a magistrate in the execution of his office is an indictable offense is a proposition about which it is impossible to doubt.”

Again, in Albright v. Lapp, 26 Pa. 99, Justice Woodward comments aptly as follows: “For more than one hundred and fifty years (it is now almost two hundred and twenty-five — these parentheses are ours) these remedies have proved adequate for the protection of this important branch of our judicial system, and if the power to punish contempts summarily (which, like all irresponsible power, is exceedingly liable to abuse) is now to be added, it must be done by legislation. Such a power, wherever claimed and exercised, needs a firmer basis to stand on than judicial implication. If the higher courts have derived it from courts of equity, the legislature have defined and limited it; and if the legislature have not defined and limited it in the hands of justices of the peace, it is because they have not derived it from courts of equity or any other source.”

Our legislature not having deemed it wise to entrust the power of punishing for contempt to justices of the peace, it is not for us to attempt to do so. The rule is well settled that no such power exists. Justices should, however, be prompt to hold defendants, as in this case, to bail in order that a proper indictment may be laid. Citizens should co-operate rather than hinder the several magistrates in the enforcement of law. The behavior of the defendant in the instant case, if proven, merits punishment, but under our established decisions the right to mete out this punishment does not lie summarily in the magistrate. The defendant must be indicted and tried by a jury of his peers. We, therefore, make the following order:

And now, July 18, 1929, the attachment of a justice of the peace is dissolved and defendant discharged for reasons above stated. The district attorney is directed, however, to cause the proper process to be awarded against defendant and a bill of indictment to be submitted to the next grand jury. Costs in the instant case to be paid by the County of Centre.

From S. D. Gettig, Bellefonte, Pa.


author: Martin, P. J.,

text:
    Cary v. Cary.

      Joseph Newman, for libellant.

      J. J. Sullivan and James Patterson, for respondent.
    Jan. 2, 1930.
   Martin, P. J.,

— The libel filed in this case averred that the libellant and respondent were married in 1901 and lived together until Sept. 1, 1918, when the respondent “did, on or about Sept. 1,1918, wilfully and maliciously desert the libellant without a reasonable cause, and did, on said date, absent herself from his habitation for and during the term and space of two years, and that she hath continued in her desertion of him from thence hitherto.”

The respondent filed an answer denying that she deserted her husband.

The cause was heard by a master, who found as facts that the parties were married in Philadelphia on Nov. 14, 1901; that libellant and respondent resided in Philadelphia for nine years, and their last address was No. 1700 Pine Street; that after the separation libellant went to live at No. 1426 Lombard Street, where he now resides, and the respondent continued to live at No. 1700 Pine Street, until she moved to No. 1740 Ellsworth Street, where she now resides.

The master concluded that there had been a wilful and malicious desertion by the respondent for more than two years prior to filing the libel; that the averments of the libel were sustained by the proofs; and that libellant is entitled to a decree of divorce.

The evidence upon which the master relied was principally that of libellant. He testified that, on or about the 1st or 2nd day of September, 1918, his wife, without provocation, struck him in the face with part of a chair and inflicted injuries to his person; that she threw dishes at him, and that her conduct was such that it caused him to withdraw from his home; that she had him arrested and incarcerated for five or six days; that after this altercation he rented a room at No. 1426 Lombard Street, which he has occupied until the present time; that after he moved there he wrote a letter to his wife, requesting her to come to this place of residence that they might live together, but received no reply from her, and they continued to live apart.

He testified that he wrote to his wife, but did not state that the letter was delivered to her. She denied that she received the letter. She also denied that she struck libellant either with a chair or dishes. She testified that libellant was a heavy drinker, and when she remonstrated with him for drinking, he would become very abusive, and finally left, after beating her; and that he beat her again when they had their last quarrel on Sept. 1, 1918. She testified that she gave her husband no cause for leaving her; that he never asked her to come back after he deserted her; and that she had worked and maintained herself, with the exception of an order for support awarded to her by the court.

Mrs. Rose Jackson, a friend of respondent, testified that she had been in and about their home much of the time libellant and respondent lived together; that libellant was a heavy drinker, and that she often heard him raging and carrying on.

Libellant called no witnesses to corroborate his statement of abuse' inflicted upon him. There was testimony of altercations, but they were not of a serious nature.

The libellant is demanding a divorce on the ground of desertion. According to his own statement, he left the home after trouble with his wife on or about the 1st or 2nd of September, 1918, and made no attempt to effect a reconciliation other than the alleged letter he said he wrote to his wife after he had taken a room on Lombard Street. He admitted that he saw his wife several times on the street, but that he never talked to her or asked her to live with him.

It was said by Judge Porter, in Micheals v. Micheals, 65 Pa. Superior Ct. 464, 466: “The legislation of the State of Pennsylvania has not indicated an intention to make the obtaining of a divorce an easy matter. The opinion of the master is merely advisory to the court, which it may accept and act upon or disregard, in whole or in part, according to its own judgment as to the weight of the evidence or the legal conclusions of the master. It was not intended that the court should derogate its own function and delegate the discharge of its duty to its-appointee. It is undoubtedly true that it is the duty of the court to give consideration to the opinion of the master, particularly where the veracity of witnesses is involved. But, even on such a question, the court must exercise its own judgment from an examination and consideration of the evidence, and it is in no sense bound to adopt the finding of the master or treat it as casting a burden on the party excepting to his report: Howe v. Howe, 16 Pa. Superior Ct. 193; Naylor v. Naylor, 59 Pa. Superior Ct. 547.

“Whether exceptions are filed to the report or not, it is the duty of the court to examine and carefully consider the evidence and determine whether it satisfactorily establishes the facts which, under the express authority of the statutes, authorize the court to enter a decree. These principles have been established by the decisions, not merely as founded upon public policy alone but as based upon any reasonable construction of the statutes which confer jurisdiction upon the courts. The appellate court must in every case, except where the facts have been determined by a jury trial, apply these principles in disposing of cases of this character.”

In Young v. Young, 82 Pa. Superior Ct. 492, 495, in an opinion by Judge Henderson, the court said: “Neither in the Act of 1834 nor of 1895 is there any reference to such cruel and barbarous treatment or indignities to his person by the wife as forced the husband to withdraw from his house and family, as is provided in the Act of 1815 with reference to the conduct of the husband toward the wife; nor in either of the acts where cruel and barbarous treatment or indignities to the person is made a cause for. divorce is there any limitation as to time within which the libel may be filed after the wrong is done as in the case of desertion. It nowhere appears that it was the legislative purpose to make cruel and barbarous treatment or indignities to the person the equivalent of desertion. The causes are entirely distinct and the evidence sustaining one is of a wholly different nature from that necessary to establish the other. We cannot regard evidence of,cruelty or indignities practiced by the wife as sufficient to establish a desertion of her husband by her. The law provides a specific remedy for a husband injured by the cruelty of his wife or her conduct amounting to indignities to his person, and to this the injured party must appeal if he would have relief. It cannot be said with legal accuracy where a wife’s conduct has become so intolerable to her husband that he finds it advisable or necessary to take up another habitation, and where the wife remains in the home which they have jointly occupied through a period of years, that his wife has wilfully and maliciously absented herself from the habitation of her husband.”

The law stated in Young v. Young, supra, rules the case at bar. The exceptions filed on behalf of the respondent must be sustained and a divorce refused.

And now, Jan. 2, 1930, the exceptions filed by respondent in the above-entitled case are sustained, the finding of the master is reversed, and the libel is dismissed.


author: Alessandroni, J.,

text:
    Masden v. Masden.

      W. Linton, for libellant; W. A. Gray, for respondent.
    Jan. 2, 1930.
   Alessandroni, J.,

— The libel in this case, filed on Feb. 21, 1927, alleged a desertion by the respondent on April 1, 1923. In support of this allegation, libellant testified that, after Feb. 1, 1923, his wife refused to have sexual intercourse with him; that in other respects, generally, she acted the part of a wife. She lived under the same roof with him; she attended to the household duties; she spoke to him in the presence of company and in the presence of her child, and otherwise treated him as a husband.

Upon the mistaken theory that this amounted to a constructive desertion, the master recommended the decree. It is unnecessary to say that a decree cannot be predicated upon such testimony: Wacker v. Wacker, 55 Pa. Superior Ct. 380.

It appeared, however, that the respondent abandoned the libellant Jan. 5, 1927, leaving a note to her husband indicative of an intention to desert. The report was referred back to the master for a finding consistent with the facts. Sometime thereafter the libellant moved to amend the libel so as to read that the respondent deserted the libellant on Jan. 5, 1927. Nothing appeared in this petition to indicate to the court that the libel to be amended was filed on Feb. 21,1927, a month and a few days after the amended date of the desertion. It is obvious that if this fact had been brought to our notice the amendment would not have been allowed because in contravention of the requirement of section 5 of the Act of April 26, 1850, P. L. 590. The effect of this amendment was to permit libellant to file his libel alleging .desertion before the statutory six months had elapsed after the date of the desertion. With the record in this state the action has been prematurely brought and the libel must be dismissed without prejudice.


author: Per Curiam,

text:
    Kent’s Estate.
    The facts appear from the adjudication of

      WilUam F. Brennan, for exceptants; Peek, White & Forster, contra.
    Jan. 27, 1930.
   Per Curiam,

— The Auditing Judge has given the matter of the proper interpretation of the will thorough consideration, and as, in our judgment, his conclusions are correct and his citations of authority apt, we dismiss the exceptions and confirm the adjudication absolutely.

Judge Van Dusen did not sit.


author: Groff, J.,

text:
    Annexation of Land to Ephrata Borough.

      Guy K. Bard, for annexation; Harris C. Arnold and John A. Coyle, contra.
    April 13, 1929.
   Groff, J.,

— This is a proceeding by which Ephrata Borough attempts to annex to the borough certain lands adjacent thereto, now located in the Township of Ephrata, on petition of freeholders to the borough council, which we find is authorized under section 425 of the General Borough Act of May 4, 1927, P. L. 508-535.

The annexation was objected to by the Supervisors of Ephrata Township, who presented a petition to the Court of Quarter Sessions of Lancaster County on Nov. 24, 1928, asking that the court order and direct that the ordinance of the Borough of Ephrata annexing said land be declared void and of no effect, for the reason that the said ordinance on its face discloses that it was not presented on petition of a majority of the freeholders of the territory to be annexed, as required by law.

There were half a dozen additional reasons given why the prayer of the petition of the supervisors should be allowed, but we will not consider them at this time for reasons which hereinafter appear.

That the supervisors are proper parties to take exception to the annexation of part of a contiguous township by the borough was decided by this court in an opinion by Landis, P. J., In re Ordinance of the Borough of Mount Joy annexing part of East Donegal Township, and reported in 37 Lane. Law Rev. 517.

In the stipulation of facts agreed upon by counsel for the Borough of Ephrata and counsel for the Supervisors of Ephrata Township it is agreed:

“1. That all of the freeholders in this tract, comprising Three Acres and Thirty-five and Eighteen Hundredths Perches located in Ephrata Township, signed the petition which was presented to the Borough Council of the Borough of Ephrata, and on the presentation of which the borough council passed an ordinance purporting to annex the tract in question to the said borough.

“2. That the blue print and draft attached to the ordinance filed by the Borough of Ephrata in the Court of Quarter Sessions in proceedings for the annexation of the said tract shows the correct dimensions of the tract, and the said draft and blue print may be considered by the court as if offered and received in evidence for the purpose of showing the extent, shape and position of the said tract in relation to the Borough of Ephrata, to the Township of Ephrata, and to other tracts purported to be annexed by similar ordinances at the same time.

“4. That the copy of the ordinance attached as ‘Exhibit A,’ to the Certification of Annexation filed in the Court of Quarter Sessions is a true and correct copy of the ordinance under which such annexation was purported to be made and may be considered as legal evidence of such ordinance.”

The Act of Assembly of May 4, 1927, § 425, P. L. 508-535, reads as follows:

“Annexation; Ordinance. — Any borough may, by ordinance, annex adjacent land situated in the same or any adjoining county, upon petition of a majority of the freeholders of the territory proposed to be annexed.”

Section 426 of the same act describes the procedure to be followed in such annexation.

The certified copy of the ordinance filed in the Clerk of Quarter Sessions Office, in its title, says:

“Providing for the Annexation to the Borough of Ephrata of a portion of Ephrata Township, in the County of Lancaster and State of Pennsylvania, adjoining the extreme southwestern portion of said Borough on the Southwest.”

And then reads as follows:

“Whereas, the petition of three-fifths of the taxable inhabitants of that part of Ephrata Township, in the County of Lancaster and State of Pennsylvania, adjoining the extreme southwestern portion of said Borough on the southwest and hereafter more fully described, has been presented to Council of said Boro, praying for the passage of an Ordinance annexing said hereinafter described part of the said Township of Ephrata to the Borough, therefore:

“Section 1. Be it ordained by the Council of the Borough of Ephrata: That the following described part of the Township of Ephrata, in the County of Lancaster and State of Pennsylvania, which is contiguous to and immediately adjoins the extreme southwestern portion of said Borough on the southwest, be and the same is hereby annexed to and made a part of the said Borough of Ephrata:

“Beginning....................

“Section 2............ Passed by Borough Council First day of October, 1928. L. 0. Alderfer, Pres, of Council. Attest: Howard L. Keiper, Clerk of Council. Approved this first day of October, 1928.

“M. W. Hess, Burgess.”

The ordinance shows that the land proposed to be annexed was annexed, not upon the petition of a majority of the freeholders of the territory proposed to be annexed but was upon the petition of three-fifths of the taxable inhabitants of the territory proposed to be annexed.

A freeholder is one who holds land in fee, or for life, or for some indeterminate period, and the word has been thus defined through all the textbooks and cases from Blackstone’s Commentaries to the present day. A taxable, or taxable inhabitant, according to Webster’s Dictionary, is one who is capable of being taxed, or liable by law to the assessment of taxes, and he may be a freeholder or not.

It is, therefore, evident that the portion of land proposed to be annexed to the Borough of Ephrata may, so far as the said ordinance is concerned, be annexed upon the petition of persons none of whom are freeholders.

The ordinance should, at least, substantially comply with the act of assembly, and should upon its face show jurisdiction or authority in the borough to do what it attempts to do. This has not been done, and we feel that the annexation under the ordinance as passed would be improper and illegal, and we, therefore, sustain the petition of the Supervisors of Ephrata Township, and the ordinance is declared null and void. The costs to be paid by the Borough of Ephrata.

From George Ross Eshleman, Lancaster, Pa.


text:
    Auman v. Centre County Commissioners.

      J. C. Furst, for rule; Arthur C. Dale, contra.
    Sept. 9, 1929.
   Fleming, P. J.,

— And now, Sept. 9, 1929, after hearing, the court finds as a fact that the Borough of Bellefonte, by a proceeding had to No. 6, August Sessions, 1858, Court of Quarter Sessions of Centre County, recorded in Quarter Sessions Docket No. 7, at page 177, has accepted the provisions of the Act of April 3, 1851, P. L. 320, entitled “An Act regulating boroughs,” and, therefore, concludes, as a matter of law, that the said Borough of Bellefonte is subject to the provisions of the Act of Assembly approved May 4, 1927, P. L. 519, known as “The General Borough Act,” in its entirety, and especially, in the instant proceeding, as to section 845 of said act; the court further finds as a fáct that the electors of the North Ward of the Borough of Bellefonte did not, at the municipal election held in the year 1927, elect an assessor for said ward, and, therefore, concludes, as a matter of law, that a vacancy existed in said office; the court further finds as a matter of fact that Elwood Johnson, a qualified elector of said North Ward of the Borough of Bellefonte, was duly and regularly appointed by the County Commissioners of the County of Centre as assessor for the North Ward of the Borough of Bellefonte to serve until his successor shall be elected according to the provisions of section 845 of the Act of May 4, 1927, P. L. 519, and, therefore, concludes, as a matter of law, that the term of said Elwood Johnson, as assessor for the North Ward of the Borough of Bellefonte, does not expire until his successor shall be elected at the municipal election to be held in the year 1931, and, further, that no vacancy now exists in said office to be filled by the electorate of said ward in the year 1929.

It is, therefore, ordered, adjudged and decreed that the rule heretofore issued upon the county commissioners to show cause why a mandamus should not issue commanding them to print, or cause to be printed, upon the primary election ballot of the Republican Party, for the office of assessor in the North Ward of the Borough of Bellefonte, for the primary election to be held on Tuesday, Sept. 17, 1929, the name of Herbert Auman, is hereby discharged. Costs to be paid by the County of Centre.

From S. D. Gettig, Bellefonte, Pa.