author: Corbet, P. J.,

text:
    Skokan v. Em Lou Coal Company et al.

      Workmen’s compensation — Practice, C. P. — Notice of appeal — Mailing notice insufficient — Perfecting of appeal — Act of June 26,1919.

    1. Section 427 of the Act of June 26, 1919, P. L. 642, requiring notice of appeal from the decision of the Workmen’s Compensation Board to be given to adverse parties, is not complied with by depositing such notice in the post-office.
    2. If the appellant files an affidavit that notice, setting forth the date of the appeal and the court in which the same was filed, was addressed to the adverse party and duly deposited in the post-office, and the adverse party files an affidavit that no such notice was ever received, the court will treat the notice as never given.
    3. In such case the court will not permit the appeal to be perfected after the expiration of the ten days provided by the act for an application for an extension of time.
    Motion to strike off and vacate the appeal of plaintiff from decision of the Workmen’s Compensation Board. C. P. Jefferson Co., Jan. T., 1921, No. 42.

      Brown & Means, for motion; Charles J. Margiotti, contra.
    Nov. 29, 1921.
   Corbet, P. J.,

The court is moved to strike off and vacate the appeal in this case for the reason that the party taking it did not, at the time of taking it, serve upon the defendant or insurance carrier, the adverse parties, a written notice thereof, setting forth the date of the appeal and the court in which the same was filed, as required by the Act of Assembly approved June 26, 1919, § 427, P. L. 642, 665.

Claimant, or plaintiff, filed an answer to the rule to show cause on the motion, in which she set forth: “That on the day the appeal was taken her said attorney forwarded a notice of the appeal to The Employers’ Liability Assurance Corporation, Ltd., and the Em Lou Coal Company, at 701 Commonwealth Building, Pittsburgh, Penna.; a copy of said notice is hereto attached, marked Claimant’s Exhibit ‘A.’ Said copy was mailed at a U. S. post-office at Punxsutawney, Penna., on the date of the appeal, as appears on the notice.”

To support the answer, claimant offered the affidavit of Theresa A. Gigli-otti (by agreement to be treated as a deposition), in which she deposed that, as private stenographer of Charles J. Margiotti, she, on Nov. 13, 1920, mailed at the United States post-office, Punxsutawney, Penna., a letter addressed to The Employers’ Liability Assurance Corporation, Ltd., 701 Commonwealth Building, Pittsburgh, Penna., which was as follows:

“Punxsutawney, Pa., Nov. IS, 1920.
“The Employers’ Liability Assurance Corporation, Ltd., and Em Lou Coal Company,
“701 Commonwealth Building, Pittsburgh, Pa.:
“Gentlemen: This is notice to you that I have entered an appeal in the Court of Common Pleas of Jefferson County, Penna., at Brookville, Penna., this date, to wit, Nov. IS, 1920, in the Matter of Mary Skokan v. Em Lou Coal Company.
“(Signed) Chas. J. Margiotti.”

That, subsequently, on March 24, 1921, at the direction of Mr. Margiotti, she wrote and mailed the following letter to The Employers’ Liability Assurance Corporation, Ltd., 701 Commonwealth Building, Pittsburgh, Penna., viz.:

“March 24, 1921.
“Mr. J. S. Carroll,
“c/o Employers’ Liability Exchange Cor., Ltd.,
“701 Commonwealth Building, Pittsburgh, Pa.:
“Dear Sir: The case of Mary Skokan v. Em Lou Coal Company, appeal No. 42, January Term, 1921, in the Court of Common Pleas of Jefferson County, Brookville, Penna., I beg to advise that same was set for argument March 7, 1921, and when you did not appear for the defendant I requested the court to continue the argument until some date which would be satisfactory to you. Will you kindly advise me just when it would suit you to argue the appeal in this case?
“Very truly yours,
“(Signed) Chas. J. Margiotti.”

In support of the motion, defendants offered the affidavit of N. C. Fraley (by agreement to be treated as a deposition), as follows: “N. C. Fraley, being duly sworn according to law, deposes and says that he is an adjuster in the employ of The Employers’ Liability Assurance Corporation, Limited, of London, England, and is in charge of the Western Pennsylvania Branch Claim Department of said corporation, located at Pittsburgh, Penna., at Rooms 701-702 Commonwealth Building, in said city; that he was in charge of said office on Nov. 13, 1920, the date of the appeal taken by the plaintiff in the above stated case from the decision of the Workmen’s Compensation Board of the State of Pennsylvania; that he would be the proper officer or representative of said corporation upon whom to serve notice of said appeal, as required by the Act of Assembly of the Commonwealth of Pennsylvania, approved June 26, 1919, § 427, P. L. 642, 665; that no such notice was served upon him or upon any employee of -said office, personally or by mail, or otherwise, and that he and said office did not learn of the taking of said appeal until long after Nov. 13, 1920, the date of the taking of the same as aforesaid, and not until after it had been called for argument in said court, for which reasons it is respectfully requested that said appeal be vacated and stricken off.”

Section 427 of the Act of June 26, 1919, P. L. 642, 665, contains the following provisions:

“Any party may appeal from any action of the board on matters of law to the Court of Common Pleas of the county in which the accident occurred. . . . Such appeal must be brought within ten days after notice of the action of the board has been served upon such party, unless any Court of Common Pleas to which an appeal lies shall, upon cause shown, extend the time herein provided for taking the appeal. The party taking the appeal shall, at the time of taking the appeal, serve upon the adverse party a written notice thereof, setting forth the date of the appeal and the court in which the same is filed, and shall file with his notice of appeal such exceptions to the action of the board as he may desire to take, and shall specify the findings of fact, if any, of the board, or of the referee sustained by the board, which he alleges to be unsupported by competent evidence.
“Upon filing of the notice of an appeal, the Prothonotary of the Court of Common Pleas to which the appeal has been taken shall issue a writ of certiorari, directed to the Workmen’s Compensation Board, commanding it, within ten days after service thereof, to certify to such court its entire record in the matter in which the appeal has been taken.”

On June SO, 1920, the referee awarded in favor of claimant. Defendants appealed therefrom, and on Nov. 5, 1920, the board set aside the referee’s findings of fact, conclusions of law, and award, and disallowed compensation.

Claimant appealed, but at no time filed any notice, which had been served upon the adverse party, of the taking of it. Without this the prothonotary was not authorized to issue the writ of certiorari.

The section of the Act of June 26, 1919, referred to, says: “The party taking the appeal shall, at the time of taking the appeal, serve upon the adverse party a written notice thereof.” Was there such notice served in the present case? We are of opinion there was not. While, with respect to commercial paper, “it is well settled that the fact of depositing in the post-office a properly addressed prepaid letter raises a natural presumption, founded in common experience, that it reaches its destination by due course of mail” and “is prima facie evidence that it was received by the person to whom it was addressed,” it “may be rebutted by evidence showing' that it was not received,” Phoenix Brewing Co. v. Weiss, 23 Pa. Superior Ct. 519, that rule “establishes no such legal conclusion in other business relations,” Kenney v. Altvater, 77 Pa. 34. The act in question requires that actual, not merely presumptive, and therefore rebuttable, notice be given. It prescribes the method whereby the adverse party is to be brought into the appellate court, and no other method can be utilized or substituted for the purpose. As well might a sheriff mail to the defendant a summons placed in his hands to be served. As a matter of fact, there was no service in this ease of the required notice.

It is our opinion the appeal must be dismissed. Claimant in her answer requests permission to perfect her appeal. We do not find any authority in section 427 of the Act of June 26, 1919, for so doing. The provision therein limiting the time for appeal to ten days, “unless any Court of Common Pleas to which an appeal lies shall, upon cause shown, extend the time herein provided for taking the appeal,” clearly indicates that the application for extension of time, and any grant of it, must occur within the running of the ten days, and not thereafter: Maguire v. Ballard Knitting Co., 29 Dist. R. 994. Once the appeal is barred, we are unaware of any power vested in the court to remove the bar.

And now, Nov. 29, 1921, after hearing and due consideration, the rule to show cause is made absolute and the appeal is dismissed, at the cost of the claimant. Unless an appeal be taken from this judgment within thirty days, the prothonotary is directed to remit the record of the Workmen’s Compensation Board to it. From Raymond E. Brown, BrookviUe, Pa.


source: Caselaw Access Project

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

license: Public Domain

text:
    Gilbert v. Gougler.

      Practice, C. P. — Trespass — Affidavit of defence — Judgment — Act of May U, 1915.

    1. Under the Practice Act of May 14, 1915, P. L. 483, judgment cannot be entered for want of an affidavit of defence in an action of trespass.

      Negligence — Automobiles—Father and son — Parties.
    2. The mere use of a father’s automobile by a son will not render the father liable for the negligent operation of the car by the son. It must be shown that the son at the time of the accident was engaged in the father’s business.
    Trespass. Rule for judgment for want of an affidavit of defence and statutory demurrer. C. P. Snyder Co., June T., 1921, No. 4.

      Charles P. Ulrich, for plaintiff; A. F. Gilbert, for defendants.
    Dec. 5, 1921.
   A. W. Johnson, P. J.,

This is an action of trespass to recover damages from the defendants, Harry T. Gougler and Ralph Gougler, alleged to have been caused by the negligent operation of an automobile by Ralph Gougler, one of the defendants, the son of Harry T. Gougler, the other defendant. The plaintiff moved for judgment for want of an affidavit of defence. But in trespass judgment cannot be entered for want of an affidavit of defence.’

Section 13 of the Practice Act of May 14, 1915, P. L. 483, provides as follows: “In actions of trespass the averments in the statement, of the person by whom the act was committed, the agency or employment of such person, the ownership or possession of the vehicle, machinery, property or instrumentality involved, and all similar averments, if not denied, shall be taken to be admitted in accordance with section 6; the averments of the liability, and averments relating to damages claimed or their amount, need not be answered or denied, but shall be deemed to be put in issue in all cases unless expressly admitted.”

Later, the defendants filed an affidavit raising the question of law as to the right of plaintiffs to recover against Harry T. Gougler, one of the defendants, and asking for judgment in favor of Harry T. Gougler. The following is plaintiff’s amended statement: “That the automobile which Ralph Gougler was driving Dee. 10, 1920, and in which he negligently ran into the plaintiff’s automobile as aforesaid, in the original statement filed, belonged to Harry T. Gougler, the father of Ralph Gougler, and that Ralph Gougler, at the time of the collision, was operating his father’s car with permission, consent and authority of the said Harry T. Gougler, and that said Ralph Gougler has frequently before Dec. 10, 1920, driven his said father’s car at will and with the knowledge and consent of the said father.”

The defendants contend that no liability is shown on the part of Harry T. Gougler. The contention is correct. Harry T. Gougler, father of Ralph Gougler, incurred no liability merely because he was the owner of the automobile which Ralph Gougler, his son, operated with the permission, consent and authority of Harry T. Gougler. No relationship of master and servant is alleged. In Scheel v. Shaw, 252 Pa. 451, it was held: “In an action to recover damages for injuries resulting from an automobile accident, it is necessary for plaintiff to prove not only that defendant was the owner of the car and that the driver was his servant, but that such servant was at the time engaged in the master’s business. The test of liability is whether the servant, at the time of the plaintiff’s injury, was acting within the scope of his authority in furtherance of the master’s business.”

The father is not liable for the negligence of his son, unless such negligence is committed while the son was engaged in the father’s business. The mere use of the father’s car by the son, with the permission, consent and authority of the father, will not render the father liable for the negligent operation of the car by his son: Scheel v. Shaw, 252 Pa. 451.

The motion for judgment for plaintiff for want of an affidavit of defence must be overruled, and the prayer of Harry T. Gougler, contained in the defendants’ affidavit raising the question of law, must be sustained.

Now, Dec. 5, 1921, the motion for judgment for want of an affidavit of defence is overruled, and the prayer for judgment for Harry T. Gougler is sustained, and judgment is directed to be entered in favor of Harry T. Goug-ler, one of the defendants, on the question of law raised in the affidavit of defence. From M. I. Potter, Middleburg, Pa.


author: Ryan, P. J.,

text:
    Miller v. Keim.

      Practice, C. P. — Affidavit of defence — Statutory demurrer and averments of fact in same affidavit — Waiver of legal objections — Act of May 14, 1915.

    1. Under the Practice Act of May 14, 1915, P. L. 483, an affidavit of defence should not contain both a statutory demurrer and allegations of fact.
    2. When an affidavit of defence raises questions of law as to the form of the statement and also answers allegations of fact of the plaintiff, the defendant must be deemed to have waived the legal objections raised, and the case is at issue.
    Statutory demurrer. C. P. Bucks Co., Sept. T., 1920, No. 68.

      John L. DuBois, for plaintiff; Buckman & Buckman, for defendant.
    Dec. 13, 1921.
   Ryan, P. J.,

While the affidavit of defence is entitled “Affidavit of defence raising questions of law,” and in its first paragraph enumerates a great many legal objections to the statement of claim, in its second and third paragraphs it answers allegations of fact contained in the statement. It also sets forth in four more paragraphs a set-off and counter-claim, to which the plaintiff has replied. Section 4 of the Practice Act of May 14, 1915, P. L. 483, abolishes demurrers and provides in their stead, in section 20, the affidavit of defence raising questions of law, as follows: “Section 20. The defendant in the affidavit of defence may raise any question of law without answering the averments of fact in the statement of claim; and any question of law so raised may be set down for hearing and disposed of by the court. If, in the opinion of the court, the decision of such question of law disposes of the whole or any part of the claim, the court may enter judgment for the defendant, or make such other order as may be just. If the court shall decide the question of law so raised against the defendant, he may file a supplemental affidavit of defence to the averments of fact of the statement within fifteen days.” The term “statutory demurrer” is generally accepted as a proper name for this pleading. It is clear that the act intends that it shall be a demurrer in fact, embracing only matters of law arising on the face of the statement of claim; hence the provision that “if the court shall decide the question of law as raised against the defendant, he may file a supplemental affidavit of defence to the averments of fact of the statement within fifteen days.” When the defendant in his affidavit of defence raises questions of law as well as fact, he departs from the practice outlined by the above section. When the questions of law raised relate, as here, to the form of the statement, and the defendant also answers the allegations of fact of the plaintiff, he must be deemed to have waived the legal objections raised. This case is at issue on the facts and will go' upon the list in regular order.

From Calvin S. Boyer, Doylestown, Pa.


author: Gummey, J.,

text:
    Haly’s Estate.

      Practice, O. C. — Counsel fees — Findings of auditing judge.

    1. Where a trust company has been appointed trustee to sell decedent’s real estate in partition proceedings and, before a sale is effected, the property is taken in condemnation proceedings and the award paid to the trustee, it is the duty of the auditing judge, under section 1 of the Act of April 27, 1864, P. L. 641, to regulate the fee of counsel employed by the trustee in the condemnation proceedings.
    2. When the expert called by the attorney in the condemnation proceedings fixes the value of the services at 10 per cent, of the amount recovered, or $3615.66, and the trust officer of the company, a member of the bar, testifies that $1000 is a “full, fair fee” for all services rendered, the conflict of testimony is an element to be considered and the finding by the auditing judge that $1000 is an adequate fee is conclusive in the absence of manifest error.
    Exceptions to adjudication. O. C. Phila. Co., April T., 1883, No. 126.

      Saul, Ewing, Remick & Saul, for exceptions; Frazier & Frazier, contra.
    April 22, 1922.
   Gummey, J.,

These exceptions relate to the action of the auditing judge in refusing to allow the exceptant, who is a member of the bar, the amount of his claim for services rendered in the matter of certain condemnation proceedings brought on behalf of the Commissioners of Fair-mount Park, the exceptant contending that he was entitled to receive a fee of $3615.66, being 10 per cent, of the damages recovered, less $1000 already paid on account thereof, but which payment the auditing judge held to be sufficient compensation for the services rendered.

For the purposes of this opinion, it must be assumed that the award of the viewers was paid to the accountant, the Guarantee Trust and Safe Deposit Company, as trustee in partition, because in the year 1906, in pursuance of partition proceedings instituted in this court, the accountant was appointed trustee to make sale of the real estate; upon any other assumption, the accountant would not have been entitled to receive the money, as it was not trustee of the decedent’s estate in any other capacity, and, therefore, it necessarily follows that it was the duty of the auditing judge to regulate the fee in accordance with the provisions of section 1 of the Act of April 27, 1864, P. L. 641 — the partition proceedings having been instituted prior to the passage of the Partition Act of June 7,1917, P. L. 337, which, in section 35 (a), re-enacts the Act of 1864.

As we have frequently said, a question as to the value of services rendered by counsel is one of fact, and the finding of the auditing judge is conclusive in the absence of manifest error, and this, although another judge, on the same testimony, might have arrived at a different conclusion. See Bergdoll’s Estate, 25 Dist. R. 102. In view, however, of the argument urged upon us by counsel for the exceptant, that, in accordance with the decision of the Supreme Court in Moore’s Estate, No. 1, 228 Pa. 516, the auditing judge was bound by the testimony of Mr. Deeter, who was the only member of the bar called as an expert, and who expressed his opinion to the effect that the fee claimed was a reasonable and proper one and was the minimum fee which it was the general practice of the bar to charge in cases of this character, it should be pointed out that in Moore’s Estate the decision was based on what the Supreme Court describes as “the mere naked conclusion that, under the testimony, the amount of the charge for services by counsel, as a whole, was excessive,” further saying “that upon the record as it stands in this appeal, no sufficient reason appears for reducing the amount of the allowance claimed for counsel fees;” and in Wood’s Estate, 272 Pa. 8, a distinction is drawn between an allowance to counsel for services in settling an estate, which “is

largely a matter for .the court below,” and an allowance for legal services rendered a decedent in his lifetime, in which event counsel is “merely a creditor of the estate, and, his claim being challenged by exceptant, the burden of proof is upon him.” See, also, Eisenlohr’s Estate, No. 1, 258 Pa. 431. Nor should it be overlooked that Mr. Deeter was not the only member of the bar to express his opinion. Mr. Shepard, who is also a member of the bar as well as trust officer of the Guarantee Trust and Safe Deposit Company, testified to the effect that he was familiar with the services rendered by Mr. Stewart, that the board of directors of the company had instructed him not to pay Mr. Stewart more than $1000, and, to quote Mr. Shepard, “I felt that was a full, fair fee for all the services;” so that there was a conflict of testimony as to what would be a reasonable fee under the circumstances. The exceptions are dismissed.


author: Gest, J.,

text:
    Ball’s Estate.

      Wills — Construction of will and codicils.

    Testator devised real estate of which he died seised to his four children. His mother had devised her real estate to him for life, with remainder to his children. He directed in regard thereto, that his sons, J. and A., who were indebted to him, should pay their indebtedness out of their grandmother’s estate as soon as received. By a codicil, after reciting that his son A. had transferred to him his interest in. his grandmother’s estate, he provided that the income thereof should be held by A. and his wife for their lives, and the life of the survivor, and on the death of the survivor, should vest in A.’s children. By a subsequent codicil, after ratifying his will and former codicil, he directed as follows: “I order and direct in regard to my son A. that . . . my estate which is not part of the trust estate provided for in the first codicil shall be held in trust for” him, and “after his death, the principal thereof to vest absolutely in his children, share and share alike . . ." In, case of interference with the proper execution of the will or codicils by A., he devised “the above share” to his brothers and sisters. On petition for an inquest in partition, A.’s trustee set up by answer, that the second codicil revoked the will and first codicil and vested the entire estate in the trustee: HeM, that on consideration of the will and codicils together, it was apparent that the testator intended to benefit all four children equally, but for reasons satisfactory to himself had put A.’s share in trust, and that the inquest should be awarded.
    Petition for inquest in partition and answer. O. C. Phila. Co., Jan. T., 1922, No. 494.

      Joseph R. Embery, for petitioners; Theodore F. Jenkins, for respondent.
    April 28, 1922.
   Gest, J.,

Joseph Ball, the testator, died in 1919 seised of certain real estate, and by his will, dated in 1906, he devised the same, after the death of his wife, which event has occurred, to his four children, Joseph Price Ball, Henry Price Ball, Arthur W. Ball and Rebecca W. Ball, in equal shares, all of whom survived the testator and his widow. The mother of the testator by her will had devised her estate to him for life, with remainder to his said four children, and the testator in his will, after reciting that two cf his children, Joseph and Arthur, were indebted to him, directed that they should pay their indebtedness out of their grandmother’s estate as soon as received, in order that his wife might have as large an estate as possible for her support and comfort.

A codicil, dated in 1910, after reciting that the testator’s son Arthur had transferred to him the interest of the said Arthur in the grandmother’s estate, provided that the income thereof should be used by his wife for her life, and on her death that the estate so conveyed to him should be held by his son Arthur and his wife for their lives and the life of the survivor, and on the death of the survivor should vest in Arthur’s children. In other respects he ratified and confirmed his will.

The testator then, in 1911, executed a second codicil, which gives rise to the controversy in this case. In this codicil, after ratifying and confirming his will and former codicil, except so far as they conflict with the second codicil, the testator directed as follows:

“I order and direct, in regard to my son Arthur W. Ball, that immediately after the death of my wife, Sarah P. Ball, my estate which is not part of the Trust estate provided for in the First codicil, shall be held in trust for the benefit of my said son, Arthur W. Ball, the net income of the same to be paid to him for life by the Commonwealth Title Insurance and Trust Company, and after his death, the principal thereof to vest absolutely in his children, share and share alike; if any children be deceased before their father, then their child or children, if any, shall take said deceased parent’s share. If any interference or attempt to prevent the proper execution of this will or its codicils is made by said Arthur W. Ball, then the above share shall be divided between the brothers and sister of said Arthur W. Ball.”

The widow having died in 1921, Joseph Price Ball, Henry Price Ball and Rebecca W. Ball filed this petition for an inquest in partition, and the trustee for Arthur W. Ball, in its answer, asserts that the second codicil revoked the devise contained in the will to the petitioners, and that its effect was to vest the title to the whole of the estate in the respondent. The case hinges on the meaning of the words in the second codicil, “my estate which is not part of the trust estate provided for in the first codicil shall be held in trust for the benefit of my son Arthur.” The respondent claims that this refers to -the entire estate of the testator, except that part of the testator’s mother’s estate which Arthur had conveyed to him, while the petitioners claim that these words refer merely to Arthur’s share of the testator’s estate.

We are clearly of opinion that the second codicil, by its express terms, was intended to affect only the share of the testator’s estate which in his will he devised to his son Arthur in fee. His language appears to be explicit. He says, “I order and direct in regard to my son Arthur,” and proceeds to establish a trust for him, having in the first paragraph of the codicil expressly ratified and confirmed the will in other respects. The obvious intention of the testator with regard to his son Arthur was at first, in his will, to give him his one-fourth share of the estate in fee. His first codicil dealt with Arthur’s share of his grandmother’s estate, conveyed to the testator by Arthur, and this, after the death of the testator’s wife, he gave to Arthur and his wife for life, with remainder to their children. Then, in the second codicil, desiring to make a further change with regard to Arthur, and him alone, the testator established a trust for him.

To give to the language of the second codicil the effect of disinheriting the other three children would stretch it far beyond any reasonable construction. A codicil is intended to change the provisions of the prior will; that is its function; but the will continues, except so far as it is changed by express language or necessary implication, and in other respects the codicil is to be read and construed as part of the will. Cassidy’s Estate, 224 Pa. 199; Sigel’s Estate, 213 Pa. 14, and Schattenberg’s Estate, 269 Pa. 90, are in point. If the testator had intended to give his entire estate to Arthur or in trust for him, there would be no apparent reason for the testator’s apprehension that Arthur would interfere or “attempt to prevent the proper execution of this will or its codicils.” There would be no motive for him to do so, and it will be noted that the testator says “the proper execution of this will,” which reference would be meaningless if, as it is contended, the provisions of the will as to the three other children were abrogated in favor of Arthur. And, in this connection, it will be noted that the testator provides, in case of Arthur’s interference, that “the above share shall be divided between the brothers and sister of said Arthur.” This use of the word “share” in the singular number shows very clearly that Arthur’s interest was only of an aliquot part of the estate, not the whole of it. And, finally, if the testator, in his second codicil, had intended to devise the entire estate in trust for Arthur, there would be no reason for his recital of the fact that the indebtedness of Arthur had been satisfied as of the date of the codicil.

A consideration of the will and codicils convinces us that the testator desired to benefit his four children equally, but, for reasons satisfactory to himself, he intended to put Arthur’s share in trust for his life so as to preserve the principal for Arthur’s children.

An inquest is accordingly awarded in accordance with the prayer of the petition.


author: Thompson, J.,

text:
    Portuondo’s Estate.

      Practice, O. C. — Power of attorney to collect judgment — Revocation — Lapse of time — Presumption of constituent’s death.

    The Orphans’ Court will not permit the collection of a judgment against administrators as garnishees under a power of attorney executed by a non-resident who has not been heard from for seven years, as a question may arise whether the power has not been revoked by the constituent’s death. In such case, the amount due on the judgment will be directed to be paid Into court with leave to the attorney to make application to take out of the money so deposited his reasonable charges and expenses incurred in the proceedings.
    Petition and answer. O. C. Phila. Co., April T., 1921, No. 251.

      B. F. Owens, for petitioner; Henry A. Hoefler, contra.
    April 28, 1922.
   Thompson, J.,

This case was heard on petition and answer,

and from the same and the record it appears that John Latham obtained a judgment against Charles W. Mayer in Common Pleas No. 1, December Term, 1906, No. 8929, for the sum of $2035.92, on March 18, 1907; that the said Mayer is entitled to a distributive share in the estate of Margaret Portuondo, deceased, in an amount largely in excess of said judgment, interest and costs; that the said John Latham issued an attachment execution on his judgment, summoning Francis A. Dugro and Francis R. Mayer, administrators c. t. a. under the will of Margaret Portuondo, deceased, in which proceeding a judgment was entered against said administrators as garnishees on March 7,1922, for $2085.92, with interest from March 18, 1907, and costs. The present petition is for an order on said administrators c. t. a. to pay the amount of the judgment entered against them as garnishees to Bernard F. Owens, Esq., of this bar, who alleges that he has a power of attorney from the said John Latham authorizing him to collect said judgment, and the answer of respondents, inter alia, raises the question as to whether said power of attorney is at present in force, for reasons therein stated. Upon the argument, it appeared that the power of attorney was given in 1907, and that Mr. Owens has not heard from his client since 1915, at which time the latter was in London, he being an Englishman by birth.

In view of the lapse of time since Latham was last heard from, a question may arise as to whether the power of attorney given by him to Mr. Owens is not revoked by Latham’s possible death, and we are, therefore, of opinion that the amount due on said judgment should be paid into this court, and it is so ordered.

Leave is, however, given to Mr. Owens to make application to this court to take out of said moneys so deposited his reasonable charges and expenses rendered in said proceedings as provided for in the power of attorney.


author: Hasgest, P. J.,

text:
    McNair, Admin’r, to use, etc., v. Manuel and Spiro.

      Lease — Assignment—Breaches of covenants — Act of 32 Henry VIII, eh. 3L.

    1. Where suit on account of breaches of covenants in a lease is brought in the name of the lessor to the use of his assignees, only such breaches may be shown as were committed before the assignment.
    2. The fact that by the Act of 32 Henry VIII, ch. 34, the assignees might have brought suit in their own names, and could thereupon enjoy the same benefits and remedies which their lessors or grantors had or enjoyed, does not have the effect of allowing breaches committed after assignment to be shown in an action brought in the name of the lessor.

      Lease — Covenant against unlawful business — Occasional events — Crap games — Pool.
    3. An occasional crap game or an occasional game of pool, in which the participants were betting, would not amount to an unlawful business. To come within the term so as to constitute a breach of covenant against unlawful business on leased premises, crap games or gambling would have to be so frequent as to amount to a habit, or of sufficient frequency to put the defendants or their agents on notice.
    Motion for new trial. C. P. Dauphin Co., March T., 1920, No. 158.

      Maurice R. Metzger, for plaintiffs; George Ross Hull, for defendants.
    Feb. 6, 1922.
   Hasgest, P. J.,

In this case a judgment was originally entered Feb. 12, 1920, in an amicable action of ejectment on account of alleged breaches of a lease. The judgment was subsequently opened and the defendants let into a defence. The trial resulted in a verdict for the defendants, and a motion for a new trial was then made.

On the trial a lease was offered in evidence, originally made by H. V. McNair, administrator of the estate of Alvin McNair, deceased, to the defendants, for the premises in question. The lease was assigned to C. E. Witman, C. B. Witman and F. P. Witman on Jan. 2, 1920, for the unexpired term. This lease provided, in part, as follows: “No unlawful business shall at any time be carried on upon said premises. ... In case of a breach or evasion or any attempt to break or evade any' of the covenants or conditions of this agreement, the first party may forfeit and annul the unexpired portion of this lease and enter upon and repossess the said premises with or without process of law, and without giving any notice whatsoever.”

1. On the trial we limited the plaintiff’s proof to breaches occurring before the assignment Jan. 2, 1920, and excluded evidence of breaches committed after that date. This is now assigned as error. We are convinced that the ruling was correct. In the case of Stoddard v. Emery, 128 Pa. 436, the action was entitled “Truman M. Stoddard, for the use of Heman Janes, v. L. Emery, Jr.” The lease in that ease was assigned Jan. 7, 1878. The plaintiff was limited to proof of breaches before that date. The court below said (page 438): “The plaintiff is Mr. Stoddard, and if there is a recovery at all, it is upon his rights; . . . I cannot see how damages that accrued to Mr. Stoddard under this lease, up to the time he parted with his title, and damages that may have accrued to Mr. Janes afterwards, as one cause of action, can be brought together in one case. The recovery in law is Mr. Stoddard’s. If it belongs to Mr. Janes, of course, it goes to his use. Now, the question is how Mr. Stoddard can recover after he parted with his title and ceased to have an interest in this. We are inclined to hold that Stoddard can recover what damages he sustained.”

Of this ruling, the Supreme Court said (page 442): “If there were any breaches after the purchase of Janes, there would be no right of action in Stoddard, and there could be no recovery in an action brought in his name.”

Unless a statute provides otherwise, the legal interest or title in and to a debt or contract which has been assigned remains in the assignor, and the action must be brought in his name: 3 Troubat & Haly’s Practice, 2008-9. In some instances the statute law provides that the legal title shall follow the equitable title, and then the suit may be brought in the name of the assignee. It is so provided by the Act of May 28, 1716, 1 Sm. Laws, 90, as to bonds, specialties or notes for the payment of money; by the Act of March 14, 1873, P. L. 46, as to assignments of insurance policies; by the Act of April 23, 1829, 10 Sm. Laws, 455, as to judgment bonds, specialties and other contracts where the transferrer died before suit.

The Supreme Court held that the Act of May 28, 1715, 1 Sm. Laws, 90, authorized suit to be subsequently maintained in the name of the assignor where the assignment was duly executed and recorded (Pryor v. Wood, 31 Pa. 142), but unless the assignment was under seal, acknowledged and recorded, the suit was properly issued in the name of the holder of the legal title for the use of the assignee: Partridge v. Partridge, 38 Pa. 78. This latter case was decided in 1860. Subsequently the Act of April 22, 1863, P. L. 567, was passed, specifically relating to the assignment of mortgages, and providing that the assignee might sue either in his own name or in the name of the assignor. A covenant in a lease for the payment of rent is not assignable under the Act of May 28, 1715: Newbold v. Comfort, 2 Clark, 331.

The plaintiffs contend that under the Act of 32 Henry VIII, ch. 34, which is in force in Pennsylvania, they had the right in this case to prove breaches both before and after the assignment. That act provides that the grantees or assignees of lessors shall enjoy the same benefits and remedies which the lessors or grantors themselves had or enjoyed for the breach of any condition, covenant or agreement contained or expressed in leases or grants. In Newbold v. Comfort, 2 Clark, 331, it is held that “by the Statute of 32 Henry VIII, ch. 34, the assignee of the reversion may sue in his own name upon expressed covenants in a lease.” If the use-plaintiffs in this case had that right, then they have not availed themselves of it, but chose to bring the suit in the name of the assignor. There is no question in this case as to whether the use of the name of the legal plaintiff is proper. The defendants are not objecting to it, but are asking the court to consider the case as the plaintiffs themselves have brought it: Saeger v. Runk, 148 Pa. 77.

2. It is contended that the court erred in “instructing the jury in effect that there could be no breach of the lease in question unless the breach was committed with the knowledge of the defendants or their agents.” The vice of this reason is that it does not correctly state the charge of the court. The court did not charge that there could be no breach unless the breach was committed with the knowledge of the defendants or their agents. In the general charge the court said:

“The defendants were bound to conduct a lawful place. By that we mean that they must operate a place with reasonable care. They could not hide behind the fact that they themselves did not know that anything unlawful was being done there if their agents knew it, and they could not hide behind the fact that their agents did not know it, unless the agents used reasonable care to ascertain it. If gambling was going on there, where the other people around the place could readily see it, those in charge could not shut their eyes to it and say they did not see it, if they could by the exercise of reasonable diligence have seen it; so, in ascertaining whether gambling was going on there, you will ascertain whether these defendants knew it, or their agents knew it, or by the exercise of reasonable diligence they could have known it. Even though they did not know it, if they could and should have known it by the exercise of reasonable diligence, they are chargeable with knowledge of it. . . .
“The putting up of signs, as you have heard, would not be sufficient to shield defendants; they could not get behind the fact that they put up signs to prevent boys under eighteen years of age from being in that place, or prohibit gambling, unless they did everything that was reasonably required to prevent those things. Now, did the defendants do what they ought to have done, and were the measures which they took effective to prevent either gambling or allowing children under eighteen years of age to be in this poolroom?”

The testimony in this case was that there was pool playing for money, and that punch-boards, which were gambling devices, were being operated by the defendants or their agents; that children under the age of eighteen years were permitted to be in the place from time to time. The jury were instructed that if that testimony was true, it was a violation of the lease. If the testimony was true that punch-boards were being operated and children under the age of eighteen years were frequenting the place, those things must have been known to the defendants or their agents. Punch-boards could not have been operated unless the defendants or their agents conducted the operation. Children could not have frequented the place without the knowledge of those in charge.

There was some further testimony that crap games were from time to time being conducted in the yard, but that was no part of the business that was being carried on. The provision of this lease is that “no unlawful business shall at any time be carried on upon the premises,” and unless an unlawful business was carried on, it would not be the subject of a forfeiture. Forfeitures are odious in law, and the language of a covenant or condition upon which a forfeiture is claimed will not be extended to sustain such claim beyond what the language clearly implies. So, an occasional crap game or an occasional game of pool, in which the participants were betting, would not amount to an unlawful business. To come within this language the crap games or the gambling would have to be so frequent as to amount to a habit, or of sufficient frequency to put the defendants or their agents on notice, and if they were that frequent, it would be negligence for the defendants or their agents not to have known of them. We think there was no error in the charge.

3. The plaintiffs complain that the court erred in affirming defendants’ third point, which is as follows: “If the jury find that the defendants instructed their managers, servants and employees to prevent the doing of unlawful things upon the premises, and those managers, servants and employees exercised reasonable care and diligence to prevent the doing of such unlawful things, the verdict must be for the defendants.”

NOTE. — See McNair, to use, «. Manuel, 29 Dist. R. 1154.

What we have already said applies to this point. The doing of occasional unlawful things would not amount to the carrying on of an unlawful business. If the defendants and their employees exercised reasonable diligence to prevent the doing of unlawful things, and, notwithstanding such reasonable diligence, an occasional'unlawful thing, such as a crap game played for money, was carried on without the knowledge of the defendants or their agents, it would not be sufficient to sustain a forfeiture. If there were unlawful acts which by their frequency amounted to an unlawful business, that would be sufficient to sustain a forfeiture, even though the defendants or their employees did not in fact know of the existence of such acts. But it is inconceivable that such conduct in a place where the public were invited could be carried on in such a way as to amount to'a business without the knowledge of the defendants or their agents.

For these reasons, the motion for a new trial is overruled and judgment directed to be entered upon the verdict in favor of the defendants upon the payment of the jury fee.

Prom William Jenkins Wilcox, Harrisburg, Pa.


author: Ray, P. J.,

text:
    Waters v. Crow.

      Practice, C. P. — Ejectment—Rule to bring ejectment — Act of April 16, 1903.

    1. Where a rule is issued under the Act of April 16, 1903, P. L. 212, to bring ejectment, and the respondent fails to enter an appearance or to answer, or to bring ejectment within the statutory period of six months, but, after the expiration of such period, brings an ejectment, judgment for the premises in dispute will be entered for petitioners.
    2. In such case, where respondent files an answer after the expiration of the six months, alleging negligence of counsel as the cause of the delay, and the petitioners file a general replication, the burden is on the respondent to sustain the averments of the answer, and if no testimony is taken, the averments of the petition will be regarded as true.
    Rule to bring action of ejectment in six months or show cause why same cannot be brought. C. P. Greene Co., Dec. T., 1917, No. 19.

      A. F. Silveus, for petitioner; Downey & Hook, for respondents.
    Aug. 8, 1921.
   Ray, P. J.,

This proceeding was instituted under the Act of March 8,1889, P. L. 10, as amended by the Act of April 16,1903, § 1, P. L. 212, to settle the title to real estate. The 17th day of September, 1917, on presentation of the petition of Elijah Waters and Emma Dille, a rule was granted by the court on E. H. Crow, the respondent, to bring his action of ejectment within six months from the service of said rule upon him or show cause why the same could not be brought, to settle the title to a certain tract of land described in the petition, situate in Morgan Township, Greene County, Pennsylvania, containing 34.417 acres, subject to certain reservations. The rule was issued the same day and duly served by the sheriff on the respondent Sept. 26, 1917. No appearance was entered and no answer filed by the respondent in the statutory period of six months subsequent to the service of the rule on him, nor did he bring an action of ejectment within the said statutory period of six months.

On March 30,1918, notice was served on the respondent that the petitioners, on April 8,1918, at an hour therein named, would move the court to enter judgment against him and in favor of the petitioners for the premises described in the petition and rule, and to make the rule absolute in default of and for failure to appear in response to said rule in six months from the service thereof. In response to this notice, the respondent, May 10, 1918, filed an answer, setting forth, inter alia, that he had brought an action of ejectment for the said premises on March 28,1918, which was one or two days subsequent to the expiration of the six months’ period stipulated by the act of assembly under which he had instituted this proceeding. In this answer the respondent sought to relieve his neglect by alleging negligence on the part of his attorney, who was his agent in the matter. His failure either to appear, to answer or to bring ejectment within the statutory period was in no wise the fault of the petitioners or their counsel, or any ofiicer of the court, and he does not so allege in his answer. To this answer the petitioners, Feb. 7, 1919, filed a general replication, joining issue on the averments contained therein. No evidence has been taken in support of the averments contained in the answer, and the replication threw upon the defendant the burden of sustaining them.

In Naglee’s Estate, 52 Pa. 154, it is held: “Where the replication puts in issue the averments of the answer, it throws upon the defendants the burden of sustaining them.”

The defendant having failed to sustain the averments of his answer, the averments of the petition are to be regarded as true. In effect, therefore, the matter now stands as if no answer had been filed.

In Utley v. Cobb, 42 Pa. Superior Ct. 484, it is held: “Where a person is ruled to bring an ejectment, as provided by the Act of March 8, 1889, P. L. 10, as amended by the Act of April 16, 1903, P. L. 212, and he fails to do so until more than six months have expired from the time the rule was made absolute, and then, without any permission of the court, he issues a writ of ejectment, such writ will be quashed.” Section 2 of the Act of March 8, 1889, P. L. 10, which section of the said act is still in force, and by virtue of which the petitioners instituted this proceeding at No. 19, December Term, 1917, provides: “Whenever a person claiming an interest in or title to such real estate shall have been served, and shall fail to appear and show cause why such action cannot be brought within six months after such service, it shall be the duty of the court to enter judgment against the person served and make the rule absolute, which judgment shall be final and conclusive between the parties, their heirs and assigns; and thereafter no action of ejectment for the recovery thereof shall be brought by such person claiming an interest in or title to such real estate, or any person claiming by, from or under such person: Provided, that if the party served shall fail to appear and show cause within the period of six months as aforesaid, he or she shall not, in any event, be liable for the costs.”

In the case at bar the respondent allowed the statutory period of six months from the service of notice upon him to elapse without having appeared, or having answered, or having brought his action of ejectment. Subsequently, however, to the expiration of the period of six months, without application to, or permission of, the court, he instituted an action of ejectment against the petitioners, at No. 44, June Term, 1918, of this court, for the premises described in the petition and rule. Jan. 8, 1919, the defendants in this action of ejectment, Elijah Waters and Emma Dille, procured a rule on the said E. H. Crow, the plaintiff therein, to show cause why the writ of ejectment should not be quashed and the action abated.

In view of the facts herein detailed, and the record as it stands, we are of opinion that the petitioners are entitled to judgment in their favor and against the respondent for the premises described in the petition and rule, and that the rule should be made absolute, and that the costs of the proceeding should be paid by the petitioners.

And now, Aug. 8,1921, this matter came on to be heard and was submitted on the petition, answer and replication, whereupon, after due consideration, it is ordered, adjudged and decreed that judgment for the premises described in the petition and rule should be, and hereby is, entered in favor of Elijah Waters and Emma Dille, the petitioners, and against E. H. Crow, the respondent, and the rule to show cause is made absolute, and this judgment shall be final and conclusive between the parties, their heirs and assigns, and the costs of this proceeding shall be paid by Elijah Waters and Emma Dille, the petitioners, and this judgment shall be properly entered by the prothonotary in the judgment index as provided by law in such case.

Ordered, adjudged and decreed accordingly.

From S. M. Williamson, Waynestmrg;, Pa.


author: Moser, J.,

text:
    Patricia Donnelly’s Case.

      Parent and child — Custody of child — Father and grandmother — Costs— Habeas corpus.

      1. A father who has remarried, is able to support his family comfortably, and is conducting himself properly, is entitled to the custody of a little girl, six years old, as against her grandmother, who has supported her in her family for four years; especially is this the case where the child expresses a strong inclination to live with her father and have the company of her younger brother.
    2. In such case, where it appears that her father has abducted the child, he will be required to pay the costs of the habeas corpus proceedings brought by the grandmother.
    Petition for writ of habeas corpus. C. P. Northumberland Co., Sept. T., 1921, No. 78.

      Voris Auten and W. B. Faust, for relator.

      J. A. Welsh and S. A. Gribbin, for respondent.
    Dec. 27, 1921.
   Moser, J.,

Joseph Donnelly, the respondent in this proceeding, was married to Sarah Bache, the daughter of the relator. On March 17, 1915, there was born to this union a female child, afterward named Patricia. During the month of August, 1917, Mrs. Donnelly died, leaving to survive her the said daughter Patricia, and a son named James, who was said to be about four years of age at the time of the hearing (May, 1921).

Soon after the death of the mother, Patricia was taken to the home of her maternal grandmother, the relator in this action, in the Borough of Mt. Car-mel, where she remained for nearly four years. On Aug. 4, 1920, Joseph Donnelly remarried, and since that time he has been living with his second wife in the Borough of Shamokin. After this second marriage, Mr. Donnelly took James, the son, to his home in Shamokin, which, according to the testimony, is a comfortable and well-furnished abode. It appears from the testimony that during the fall of the year 1920 the respondent requested Mrs. Bache, the relator, to permit him to take Patricia to his home at Shamokin. When first requested to surrender the custody of the minor, the relator suggested that the matter be deferred, but subsequently the request was refused; Patricia was not permitted to attend the public schools; her movements were somewhat restrained and to some extent she was guarded.

On May 27, 1921, the respondent went to Mt. Carmel with a taxi or motor-ear, picked Patricia up while she was playing in the neigborhood of relator’s home, put her into the car against her will and drove her to his home in Shamokin, where she has since remained as a member of his family.

After the final hearing, in view of the manner in which the minor was taken from the relator, we were rather inclined to remand her to her grandmother, thus placing matters in statu quo until there could be a final determination of the rights of the respective parties. To this end we talked to Patricia when no one was present, and intimated that she had better return to her grandmother for at least a few weeks. She was decidedly opposed to this suggestion, declaring emphatically that she wanted to remain with her father and brother. When we hinted that she might be required to return at least temporarily to her grandmother, she became excited and clearly indicated that if she was to be returned to the relator, it could only be accomplished by compulsion or the use of force. While the child was little more than six years old at the time of the hearing, it must be conceded that she was bright and intelligent for one of her years; she seemed to comprehend quite clearly just what was being done and what the parties were attempting to accomplish.

We hesitated to compel this little girl to leave her father and little brother and decided to permit matters to continue as they were for a time, so that we might await developments. Both parties to the controversy are comfortably situated, are financially able to furnish the girl a good home and provide her with an ordinary education. From reliable sources we learn that at the date this is written the young lady is apparently happy and contented with her father and stepmother, and that she is very much attached to her little brother.

In this case it was strongly intimated1 that testimony would be introduced to show that the respondent indulged in bad habits; that he made a practice of gambling and spent many nights away from his home; that he was not a fit person to have the custody of the minor child in question and be responsible for her bringing up. There was no allegation that he ever used intoxicants. There was some testimony to the effect that he gambled at times and remained away from his home at night; but from the evidence of all the witnesses interrogated concerning his private life since his last marriage, we must conclude that since he has been living at Shamokin with his present wife, he has been steady, industrious and prosperous; that he has provided a good home for his children and that they have been fortunate in the stepmother selected for them.

In determining the right of custody of an infant, the three interests involved are those of the parents, of the State and of the infant, and of these the latter is the more important and controlling: Com. ex rel. McDonald v. McDonald, 20 Dist. R. 1071; Com. v. Hart, 8 W. N. C. 156. In the case'here under consideration we think that either the relator or the respondent would be solicitous of the welfare of the infant and jealously promote her best interests. The grandmother having had the custody of Patricia for nearly four years, and she being an attractive child, it inevitably follows that the grandmother became deeply attached to the little girl and suffered many pangs of sorrow since she has been taken away. Under all the circumstances, in attempting tb arrive at a conclusion in this case, we may well ponder over the thought expressed by Mr. Justice Fell in the case of Com. v. Blatt, 165 Pa. 213, where he uses the following language: “The subject is one of the most difficult and delicate upon which a court is called to act.” In that very case, however, the court proceeds to say: “The legal right of the parent to the custody, care and companionship of his children is not to be interfered with except for the most substantial reasons affecting their welfare. The hasty disposition of such a case, unless it be very clear, is likely to result in great injustice to the parent or ultimate injury to the child.” In Com. v. Hogan, 14 Dist. R. 196, it is said by Judge Criswell: “The surviving parent of a child is its natural guardian and protector, and his right to its custody should not be ignored except for cause. Poverty, in itself, is no sufficient cause, unless it be such as to entail real hardships upon and neglect of the child. The cause which will justify disregard of the natural rights of a parent must ordinarily be something in the nature of a fault or neglect, intentional or otherwise, injuriously affecting the child in his custody, and from which, for this reason, the best interests of the child, as well as of the State and community at large, require that the child should be protected.”

While we have the greatest sympathy for the relator and are mindful of her rights, after having taken care of the child for about four years, yet we think the above quoted legal principles laid down by the courts, together with the fact that, in living with her father and his family, Patricia will have an opportunity to grow up with her brother, to associate with him, and in all probability become attached to him as a sister should, have turned the scales in favor of the father. The writ is, therefore, discharged.

The respondent, in his testimony, signified a willingness to make an adjustment with the relator for the support and clothing given the child while in her custody; this, we think, he ought to do without delay. Under all the circumstances, in view of the fact that respondent took the law in his own hands and removed the child forcibly, we hereby direct that he pay the costs of this proceeding.

From C. M. Clement, Sunbury, Fa'.


author: Prather, P. J.,

text:
    Altenberg v. Shreve Chair and Lumber Company.

      Justice of the peace — Constable’s return — Contradiction of — Certiorari— Service of process.

    1. A constable’s return oí service, full and complete on Its face, cannot be set aside or contradicted! ori certiorari proceedings.
    2. Where a constable’s return of service of process upon a corporation is regular on its face, the defendant, on certiorari-, will not be permitted to show by depositions that it had no office in the county, and that the person upon whom the writ was served was not its agent.

      Certiorari. C. P. Crawford Co., Sept. T., 1921, No. 86.

      George I. Eldred and A. L. Thomas, for plaintiff.

      Thomas & Thomas, for defendant.
    Nov. 7, 1921.
   Prather, P. J.,

Plaintiff having secured judgment against defendant in an action of trespass, the defendant caused a writ of certiorari to issue to bring up the record in said proceeding.

The exception filed to said record is: “The justice did not have jurisdiction to determine said case, for the reason that there was no proper service of the defendant, which was intended to be The Shreve Chair Company, as the said C. G. Proper, who was alleged to have been served, was not the agent of said defendant, or of the said The Shreve Chair Company, at its place of business in Crawford County, nor was he said agent for any purpose or at any place of said party or parties, nor did the said defendant or the Shreve Chair Company have a place of business in Crawford County at said time nor at any other time, nor did any of the officers of said company reside in Crawford County at said time or any other time.”

The Act of July 9, 1901, P. L. 614, relates to and prescribes the form of service of process in certain actions at law. Paragraph (e) of the 2nd section, relating to the service upon corporations, limited partnerships or joint stock companies, provides that the writ of summons may be served by the sheriff “by handing a true and attested copy thereof, at any of its offices, depots or places of business, to its agent or person for the time being in charge thereof, if, upon inquiry thereat, the residence of one of said officers within the county is not ascertained.”

Section 16 of the same act provides that the service of writs by a constable shall be “in the same manner and with like effect as similar writs are served by the sheriff when directed to him .by the proper court”

The return of service in the case before us is as follows: “Return of constable M. B. Ashley, who, being duly sworn, says that he served the within summons on the defendant, Shreve Chair & Lumber Company, June 8, 1921, by handing a true and attested copy thereof, at its place of business in Crawford County, Pa., to C. G. Proper, agent in charge thereof for the defendant corporation, and that upon inquiry thereat the residence of one of the officers of said defendant corporation is not ascertained in Crawford County, Pa.”

It will be observed that the return of service is sufficient in form and in substantial compliance with the requirements of the statute as set forth in section (e), above recited.

Upon the part of exceptant depositions were taken in support of the facts stated in the exception noted, to the effect that the defendant company did not, at the time of the said action before the justice, have such office or place of business in Crawford County, and that the said C. G. Proper was not the agent in charge of any such place of business for said company in said county.

We are, therefore, to consider (a) the sufficiency of the constable’s service as exhibited by the record, and (b) the relevancy of extraneous facts to affect its sufficiency and validity.

It is only “where the sheriff’s return is defective or incomplete that it opens the door to extraneous evidence:” Park Bros. & Co. v. Oil City Boiler Works, 204 Pa. 453, 458; Fulton v. Commercial T. M. Accident Ass’n, 172 Pa. 117; Hagerman v. Empire Slate Co., 97 Pa. 534; Miller Paper Co. v. Keystone Coal & Coke Co., 267 Pa. 180.

In the last case cited the return of service of the sheriff was in the following form: “Served Keystone Coal & Coke Company, the within named defendant company, by handing personally Jan. 14, 1918, a true and attested copy of the within writ at Juniper and Chestnut Streets, in the County of Philadelphia, the place of business of said defendant company, to M. T. Dean, the person for the time being in charge thereof, being unable to ascertain the residence of any of the officers of said defendant company within the county, upon inquiry at said place of business.”

Considering this return, the Supreme Court said:

“Admittedly the return is full and complete, but the defendant corporation, whose principal place of business is in Westmoreland County, petitioned the court to set it aside on the ground that the corporation was not so engaged in business in Philadelphia County, or otherwise situated, as to be there sub-jeet to suit and service of process. Plaintiff filed a responsive answer and depositions were taken, upon consideration of which the court below made an order setting aside the service, and therefrom plaintiff brought this appeal.
“In the absence of fraud, which is not here alleged, a sheriff’s return, full and complete on its face, is conclusive upon the parties and cannot be set aside on extrinsic evidence.”

In Benwood Iron Works v. Hutchinson, 101 Pa. 359, the Supreme Court said: “Where the return on its face does not show a legal service of the writ, the service may be set aside. As the return must be considered as conclusive between the parties to the action, it is error to set aside the service upon extraneous evidence. Affidavits and depositions are no part of the record.” See, also, Ben Franklin Coal Co. v. Pennsylvania Water Co., 25 Pa. Superior Ct. 628; Bennethum v. Bowers, 133 Pa. 332.

In the very recent case of Holly v. Travis, 71 Pa. Superior Ct. 527, the Superior Court, inter alia, said: “We are of opinion that the return of a constable does not possess the conclusiveness of a sheriff’s return, and that, although regular on its face, it may, on certiorari from the Common Pleas, be shown by depositions to have been irregular and invalid.”

Upon appeal to the Supreme Court, as reported in 267 Pa. 136, the judgment of the Superior Court was reversed, and, quoting the language of the Superior Court to the effect that the return of a constable did not possess the conclusive qualities of a sheriff’s return, the Supreme Court said: “Nor can we concur in this statement of the law. As stated, it is contrary to the settled rules of practice, and mistakes the one purpose of the writ of certiorari to which it has always been confined. A writ of certiorari brings up for review nothing but the record, and the court to which it is returned has jurisdiction to correct only such irregularties, if any, as appear on the face of the record. In such actions the parties are confined strictly to questions affecting the regularity of the record.”

In discussing the record therein presented and the principle involved, the Supreme Court further says: “Not a single irregularity appears in this returned record. An examination shows that it contains a full, clear and positive averment of every fact that was essential to give the justice jurisdiction of the case. There is no denial of this. The complaint is not of any irregularity in the record, but that it is untrue, in that it recites, among other things, that on April 29, 1918, the summons of dispossession issued by the justice and directed to the tenant was served on defendant, Wallie Travis, together with a certified copy of the affidavit of complaint, by handing him personally true and attested copies thereof in the Township of Sentón, County of Lackawanna. It is enough to say that the untruth, if such it was, was not discovered or discoverable on the face of the record, but could be discovered and established only by testimony aliunde. This was attempted to be shown by affidavits with a view of challenging the jurisdiction of the magistrate. We have cited authorities showing that this is not to be done in the ease of an appeal, because to do so would have been to contradict a solemn record which imported verity and was conclusive of the fact. With even less reason could the right to contradict the record be urged in a certiorari proceeding such as this was, where the court’s consideration of the case was confined to an inspection of the record and its regularity. Where no irregularity is apparent on the record, nothing is left the court but to dismiss the certiorari.”

In the concurring opinion of the same case Mr. Justice Simpson, joined by Mr. Justice Walling and Justice Kephart, said: “I concur in the judgment in this case for the additional reason that the matter is controlled by section 16 of the Act of July 9,1901, P. L. 614, which provides that ‘writs issued by a magistrate, justice of the peace or alderman shall be served in the county wherein they are issued, by the constable or other officer to whom given for service, in the same manner and with like effect as similar writs are served by the sheriff when directed to him by the proper court.’ ... It is conceded that a service made by the sheriff in the ‘manner’ provided by this act is conclusive on the parties and cannot be contradicted where the return is full and explicit, and also that the return in the present case is full and explicit and would be unassailable if it had been made by a sheriff. The Superior Court’s reason for not applying here the rule, which it admits would apply were this a sheriff’s return (71 Pa. Superior Ct. 527), is because the act ‘contains nothing as to the effect of the return of a constable.’ Neither does it contain anything as to the effect of a return of a sheriff. In either ease the ‘effect of a return’ is merely to record what the service was, and if its effect, when made by a sheriff under this very act (Park Bros. & Co., Lim., v. Oil City Boiler Works, 204 Pa. 453), is to render it immune from attack, as eon-cededly it does, then a ‘like effect’ must be given to this admittedly full and explicit return by a constable.”

The case last cited must be regarded as conclusive authority for the principle that a constable’s return of service, full and complete on its face, such as the one under consideration, cannot be set aside or contradicted in a cer-tiorari proceeding.

In Holly v. Travis it is also held that: “Mistake or fraud in making up a record can neither be averred nor proved by parol evidence in a collateral proceeding, nor in an action founded on it. The only mode of relief is through the court where the record is thus erroneous. ... If wrong, the only mode of having it corrected is by application to the court where the proceeding or judgment was had, to have it reformed according to the truth, or vacated, as may be requisite.”

As to conclusiveness of the return, the authorities are collected in 7 Vale’s Pennsylvania Digest, 22,031.

If it is still urged that when a person served as agent of defendant is not in fact his agent, the rule announced as to the finality of the record ought not to prevail, we may call attention to certain other authorities not more conclusive of the rule, but decisive of its application, whether the person served as agent was so in fact or otherwise.

In Kleckner v. Lehigh County, 6 Wharton, 66, it was held that defendant could not in contradiction of the sheriff’s return show that, the persons served were not two of the county commissioners. Upon this question the Supreme Court said: “As the return must be considered absolute and conclusive between the parties to the action, the court erred in setting aside the service of the writ by the introduction of extraneous proof.”

In Patton v. Insurance Co., 1 Phila. 396, the return of the sheriff showed a service upon Alfred Edwards, “an agent of the within named defendants.”

A rule was taken to set aside the service of the writ upon the averment that Edwards was not agent of defendants, and evidence was taken to this effect by depositions. In discharging the rule, Judge Sharswood held that: “The parties are concluded by the facts stated in the sheriff’s return.” See Kennard v. Railroad Co., 1 Phila. 41; Benwood Iron Works v. Hutchinson, 101 Pa. 359.

In Keeley v. Shanley, 5 Montg. Co. Law Repr. 27, the court held: “If the return shows a legal service, we cannot inquire into the question of agency or defendants’ business on a motion to set aside the service.”

If the return is false, defendant’s action is against the officer: MacGeorge v. Harrison Chemical Manuf. Co., 141 Pa. 575.

In the light of the authorities cited, we must regard the record before us as an absolute verity and not susceptible to modification or contradiction by any extraneous facts supplied by depositions. When so considered, the service of the constable and his return satisfy the requirements of the law. We are, therefore, without power to hear depositions and to apply facts established thereby to alter, correct or contradict the return of service upon the defendant made by the constable when such return is full and complete and in compliance with the statutory requirements.

It follows that defendant's depositions must be disregarded, its exception overruled and the judgment of the justice affirmed.

Now, Nov. 7, 1921, the defendant’s exception overruled, the writ of certio-rari dismissed and the judgment of the justice affirmed.

Prom Otto Kohler, Meadville, Pa.


author: Smith, P. J.,

text:
    Auburn and Rush Poor Asylum’s Case.

      ,Poor law — Poorhouses in Susquehanna County — Destruction of building— Petition to purchase other land — Assent of court — Special Acts of April 4, 186b, and March 11, 1870.

      1. Where a poorhouse has been totally destroyed by fire In the districts covered by the Special Acts of April 4, 1864, P. L. 266, and March 11, 1870, P. L. 393, in Susquehanna County, the court cannot give its “assent” to the purchase of other land for a new building as long as the land on which the old building stood, and the other buildings thereon, are adequate for the purposes of the poor district.
    2. The district may rebuild the poorhouse on such land without the assent of the court.
    Petition for assent of court to the purchase of land for a poorhouse. Q. S. Susquehanna Co., Aug. Sess., 1921, No. 9.

      John M. Kelly, for plaintiff; H. A. Denney, for defendant.
    Nov. 14, 1921.
   Smith, P. J.,

Upon petition of the Directors of the Poor of the Auburn and Rush Poor Asylum, presented Sept. 16, 1921, we appointed D. T. Brewster, Esq., master and investigator to take testimony and report upon the advisability of granting their application, and that every opportunity be given to every person resident or property owners in the Poor Townships of Rush, Auburn, Forest Lake and Springville, comprising said poor district to be heard, directed ten days’ notice to be given, thus addressed in the Independent Republican and Montrose Democrat for two successive weeks, the last issue to be at least ten days prior to the date set for hearing by the master.

The master filed his report, evidence attached, in open court Oct. 15, 1921, upon which we, the same date, endorsed a rule to show cause why his recommendation should not be confirmed and a decree made in conformity therewith, returnable Oct. 31,1921, and directed the clerk to publish notice of same in two issues of the newspapers above designated prior to the return-day.

From the petition of the directors and evidence taken before the master appointed, it appears that the proceedings are based primarily upon the Special Act of April 4, 1864, P. L. 266, “To provide for a poorhouse in the Borough of Montrose and Township of Bridgewater, in Susquehanna County,” and one of March 11, 1870, P. L. 393, “To authorize the erection of a poorhouse in the Townships of Auburn and Rush, in the County of Susquehanna.” Both are still in force, and it is amended that later the Townships of Spring-ville and Forest Lake were included with Auburn and Rush and now continue component parts of the latter poor district, as allowed by the 22nd section of the act. The Act of 1870 merely extended the provisions of the Act of 1864 to the district composed of Auburn and Rush Townships, now including Forest Lake and Springville, constituting the commissioners therein named “with all the powers conferred,” and enjoining upon them “to discharge all the duties enjoined by the said Act of 1864.”

We must, therefore, refer to the Act of 1864 to determine what are the powers and duties of the petitioners at bar and the powers and duties of the court in the premises.

The 2nd section directs the commissioners designated therein, “as soon after the passage of the act as practicable, . . . with the assent of the Court of Quarter Sessions of Susquehanna County, ... to purchase such real estate as may be proper and necessary for the support of the poor” of said district; to take conveyance therefor and secure unpaid purchase money if any by “bonds or mortgages upon such real estate,” and also “to erect thereon suitable buildings.”

They are also authorized to borrow . . . money ... in their opinion advisable and necessary, not exceeding $6000; to pay for said real estate and erect said buildings and secure the payment of the same by bonds and mortgages upon said real estate.

By the 3rd section, said commissioners named and their successors are constituted “directors of the poor,” ... “a body politic and corporate in law,” to take title and hold “lands, tenements and hereditaments, not exceeding the yearly value of $3000;” to erect and keep in proper condition suitable buildings for the reception, use, accommodation and employment of the poor of said district and provide all things necessary therefor.

Section 5 provides, inter alia: “Said directors shall exercise and enjoy all other powers now vested in the overseers of the poor as are not herein granted or supplied.”

By section 8, when accomplished, the directors shall file in the Clerk’s Office of the Court of Quarter Sessions their certificate that they have acquired title to real estate and provided the suitable buildings required by the 2nd section of the Act of April 4, 1864, P. L. 266.

Section 24 repeals all laws of this Commonwealth “relating to the poor as are hereby altered or supplied or are inconsistent with this act.”

The master has found the following facts, inter alia:

That, complying with the foregoing provisions as to acquiring property for its purposes, the directors now own, unencumbered, title to about 220 acres within the district, upon which, Aug. 15, 1921, were located a frame house of about forty rooms, two barns, garage, hog-pen, chicken-house, wood and coal-house; and it is conceded that they were sufficient and adequate for the care of the poor of the district.

That, Aug. 16, 1921, the house was totally destroyed by fire, since when it has been necessary to hire board, lodging and care for the fifteen poor persons, a charge upon the district, and accommodations as a residence for the steward and his family elsewhere. That rebuilding of the house would cost approximately $12,000, for the purpose of which there are available funds of the district, $4087.72, or the same to apply on purchase money for other real estate with buildings already thereon suitable for the purpose of the district; an opportunity for which is presented by a written option expiring (now by extension) Nov. 15, 1921, by N. D. Snyder of his farm in Rush Township, comprising about 160 acres, with suitable buildings, at the price of $7000. Upon the buildings but little need to be expended for repairs and necessary changes.

The master reports, recommending that we, in the language of the 2nd section of the Act of April 4, 1864, P. L. 266, “assent” to the purchase by the petitioners of the N. D. Snyder farm, above mentioned, as prayed for by them, but deny their alternative request to either express our assent, approve or direct them to rebuild the house upon the 230 acres to which they still hold title, the latter for the reason that, whether they rebuild or not, is a question for the sole decision of the directors, and not within our province to recommend or control in these proceedings, and to which we agree. We suggest, in this connection, that the provisions of the 3rd section, giving to the directors power to keep in proper condition suitable buildings, appears to include power to “rebuild” in case of fire, and the closing clause of the 2nd section seems to furnish means of raising and securing funds for the purpose, not exceeding the $6000 mentioned therein, neither of which appear to require the assent of the court, although this suggestion is not expressed as a conclusive opinion, but a consideration of it is recommended as a possible means of rehabilitation by the directors of their present holdings, should they adopt the plan of rebuilding. We further refer to the existence of powers granted to the directors of this district to borrow money and secure its payment in the manner set forth in the Supplementary Act of May 24, 1871, P. L. 1089.

We are of the opinion that the master properly held that the court’s authority to “assent,” given by the 2nd section, is restrictive to the original purchase of real estate and erection of buildings thereon, and this having been exercised, the power of the court is exhausted in the absence of statutory authority in the act to give a similar “assent” to rebuilding. Analogous authority for this conclusion is found in Light et al. v. Houck, 2 W. N. C. 5, interpreting a similar provision to the one at bar in the Special Act of 1830, relating to Lebanon County.

It remains to be answered whether such authority in the court exists by virtue of legislation other than this Special Act of 1864, reference to which and discussion thereof is made by the master in support of his affirmative conclusion.

In this connection, we must note the repealing 24th section of the Act of 1864, above quoted, and relate its provisions to other existing legislation referred to by the master.

While we might exercise this authority of “assent” or “approbation” of purchase under the Act of June 30, 1885, P. L. 203, providing such district had not already acquired and now owns, as at bar, adequate and suitable real estate, we are still of the opinion in such case such authority is non-existent.

The Act of March 9, 1771, § 16, 1 Sm. Laws, 338, cited by the master, is still in force: Weidman v. Benton Township, 4 Luzerne L. T., N. S., 99. The purchase there authorized by overseers of the poor requires no action of the court, and is, therefore, inapplicable at bar.

We are, therefore, foreed to the conclusion that' there is no legislative authority given to us to enter our decree of “assent” to the proposed purchase of the Snyder property of 160 acres, prayed for by the petitioners, or any other real estate, so long as their present holdings are adequate and suitable, except the absence of the house thereon destroyed by fire, the rebuilding of which we have already suggested is for the determination of the directors without court action. In this we are compelled to differ from the determination of the learned master and fail to concur with his recommendation on this point. We wish, however, to commend his very thorough investigation of the facts and examination and reference to the statutes and legal principles, which have been of great assistance to us in our consideration and review in the premises.

Possibly, and quite probably, our right and duty to act in the manner prayed for would obtain were a prior or contemporaneous petition for sale of the present real estate owned by the district presented to us, sitting as a Court of Common Pleas, under the Act of April 28, 1887, P. L. 75, but not otherwise.

In view of what appears a necessary delay of action and consequent lapse of time before adequate house accommodations can be provided, should rebuilding be decided upon as the only practicable solution of the present difficulty, the statutory provisions afforded by the Act of June 30, 1885, P. L. 203, for the temporary care of subjects of relief by this district by contracts with outside poor districts is fortunate and may have to be resorted to.

We are favorably impressed by the attitude taken by the directors, taxpayers and all counsel in their proceedings, which assures us that all endeavors have been, and will be, made by them and others, to effect the best interests of all concerned, both of the unfortunate poor and those who have to bear the burden of their maintenance, and which it is our purpose to conserve to the full extent of, but necessarily within, the circumscribed statutory limitations.

That full opportunity has been afforded all for hearing is evident from the appearance and evidence of and on the part of contestant taxpayers and their counsel before the master and in court, and the filing by the latter’s order option to the directors, petitioners, for our action of purchase by them not only of the Snyder property, but also of other properties by the owners thereof, viz., Jesse S. Strickland, J. S. and Mary C. Howard, C. N. and Mrs. C. N. Giles, Louisa and Edward Cavanaugh, which, because of not being assented to by the petitioners or directors of the poor district, or made a part of their petition as alternative purchases, cannot be considered, for the reason that, both under the Act of 1864 and the general statutes referred to by the master and cited in the opinion, the action of the court must be founded upon the application of the directors themselves and not property owners.

And now, Nov. 14, 1921, the prayer of the petitioners at bar, for the reasons stated fully in the foregoing opinion, are dismissed, and it is directed that the costs of these proceedings be paid by the poor district, of which the petitioners are the directors or overseers of the poor.

From Gerritt E. Gardner, Montrose, Fa.


author: Swoope, Dep. Att’y-Gen.,

text:
    West Penn Power Company.

      Land law — Mineral rights under navigable river — Failure to pay purchase money to Commonwealth — Laches—Statute of limitations — Act of April 11, 1848.

    Where a corporation has secured a warrant and survey for mineral rights under a navigable river, but has failed for fifty-seven years to pay the purchase money due the Commonwealth, it has been guilty of such laches that, both under the ten years’ limitation in section 3 of the Act of April 11, 1848, P. L. 533, and under the general principles of law, the Commonwealth has a right to consider that the company has abandoned its claim.
    Attorney-General’s Department. Opinion to Hon. James F. Woodward, Secretary of Internal Affairs.
    Nov. 2, 1921.
   Swoope, Dep. Att’y-Gen.,

I received your request for an opinion from this department as to whether or not the West Penn Power Company, a corporation, was legally entitled to a patent for the mineral rights underlying 100 acres of the bed of the Allegheny River, in Allegheny County, Pennsylvania, by virtue of a warrant granted A. M. Fulton, June 2, 1864, survey made July 6, 1864, and returned to the Land Office and accepted May 15, 1865.

The Allegheny River was declared a navigable river and public highway by the Act of March 21, 1798, 3 Sm. Laws, 320.

The Act of April 11, 1848, P. L. 533, authorized the Surveyor General to issue warrants for not exceeding 100 acres of the bed of any of the public navigable rivers of this Commonwealth, under the limitations therein specified, survey to be had thereunder and return thereof to be made. The first clause of section 2 of this act is in these words: “That from and after the issuing of said warrant, the right to dig and mine for iron, coal, limestone, sand and gravel, fire-clay and other minerals shall vest and be in the party in whose favor the said warrant or warrants shall issue, his heirs or assigns.”

Section 3 provides a limitation as follows: “That the person or persons so holding said warrant or warrants, his or their heirs or assigns, shall and may at any time within ten years from the date of the same have and receive a patent for the said land, under the seal of the Commonwealth, in the usual form, granting to them, their heirs and assigns, the right to dig and mine iron, coal, limestone, sand and gravel, fire-clay or any other mineral, on his or their paying into the treasury of the Commonwealth the usual price per acre of public lands, and the usual fees, with interest from the date of the said warrant, subject to the restrictions contained in the 2nd section of this act.”

This act was repealed by the Act of March 29, 1849, P. L. 255, but the repeal was repealed, so far as relates to Allegheny County, by the Act of April 16, 1856, P. L. 365, and, as to Fayette County, by the Act of April 18, 1864, P. L. 437, which latter act was held valid in an opinion by this department under date of Nov. 24, 1891 (Opinions, 1891, page 43). The Act of April 16, 1856, P. L. 365, makes a limitation as to this privilege, namely, that “the quantity included in any one warrant shall not exceed 100 acres.”

The general policy of the Commonwealth was declared in the Acts of July 15, 1897, P. L. 301, March 28, 1905, P. L. 67, and May 3, 1909, P. L. 413, to be to prohibit the granting of warrants or other office rights in the beds of navigable rivers. Section 3 of the Act of May 3,1909, is in these words: “That on and after the passage of -this act, there shall be no warrants or other office rights granted in any of the counties of the Commonwealth for lands in the beds of navigable rivers, or in beds of streams which are by law declared public highways.”

Sections 5 and 6 apply to pending cases, and provide as follows:

“This act shall not be construed to affect any pre-emption rights which may have been acquired under existing laws, or the right of any person who may have an application for vacant land pending with the Secretary of Internal Affairs of the date of the approval of this act.
“That the Secretary of Internal Affairs is hereby authorized and empowered to accept any and all surveys, regularly made and returned to the Department of Internal Affairs, in pursuance of any warrant, location, actual settlement, or order of survey, without limitation as to the quantity of excess or surplus over the amount specified in the warrant or application: Provided, that the purchase money and interest on such excess be paid into the State treasury at the rate stipulated in the warrant, or as otherwise required by law, prior to the acceptance of the return of survey and issuance of a patent thereon: And provided, further, that no acceptance of a return of survey shall, in any case, prejudice or affect the right or title of any other person in or to such excess or surplus land by virtue of a prior warrant, location, actual settlement or order of survey thereon.”

The facts in the case before us are that a lien was entered on the lien docket of Allegheny County for the unpaid purchase money, but the purchase money has never been paid, and no patent has ever been issued.

The query you make is whether at this late day the warrantee can demand a patent under the warrant and survey made in 1864, fifty-seven years ago.

The Supreme Court, opinion by Mr. Justice Trunkey (page 576 of opinion), thus defined the rights of a warrantee under the Act of April 11, 1848, P. L. 533: “The Act of April 11, 1848, provided for application, survey and grant of a quantity not exceeding 100 acres of the bed of any navigable river, beginning at a point designated in the application, at low water-mark on the bank of said river and pursuing the course of said river at low watermark to a designated point, thence at right angles across said river to low water-mark, thence along the shore at low water-mark to a point opposite the place of beginning. A warrantee under this act has the ‘right to dig and mine for iron, coal, limestone, sand and gravel, fire-clay and other minerals,’ but he takes no title to the soil or sand or anything in the bed of the river. His grant is confined within the limits of low water-mark, and this recognizes the principle that a grant of land by the Commonwealth, bounded on one side by a large navigable river, vests in the grantee the entire land to the line of low water-mark:” Pennsylvania Coal Co. v. Winchester, 109 Pa. 572.

In this passage it will be noted that there are three things to be secured by the warrantee before his title is perfected, namely, a warrant, a survey and a grant or patent. The patent is in effect a deed from the Commonwealth, and until it is granted the warrantee has but an incomplete title. In an earlier case, Brandt v. McKeever, 18 Pa. 70, the Supreme Court held that a grant under this Act of 1848 was only a license to mine, and that the property in the minerals did not pass until the minerals were taken and appropriated.

In the case before us the warrantee has obtained two of the three-things necessary, but has not secured his patent nor has he paid the purchase money. The Act of 1848, in section 3, says that the warrantee, his heirs or assigns, shall at any time within ten years from the date of the warrant, on payment to the Commonwealth of the purchase money,, receive a patent. In this ease the warrantee has waited fifty-seven years before asking for the patent, and, in our opinion has been guilty of such laches that, both under the ten years’ limitation in section 3 of the Act of 1848 and under the general principles of the law, the Commonwealth had a right to consider that he and his assigns had abandoned their claims and no longer laid claim to the minerals for which the warrant was issued.

This conclusion is strengthened by reference to an opinion of Attorney-General Hensel (see Opinions, 1891, page 18), in which he held, even in a case where the prior warrantee had paid the purchase money, but had been negligent in pursuing his rights, that the Commonwealth had a right to consider he had abandoned his claim, and to issue a warrant to another applicant. In this opinion Mr. Hensel said:

“It is a principle often announced in the decisions of the Supreme Court, and may be considered as the settled law of the Commonwealth, that he who obtains a warrant for the purpose of locating land thereunder must follow up the requisites necessary to put the title out of the Commonwealth with due diligence, and it is the duty of the holder of a warrant, descriptive or indescriptive, to have his warrant with survey returned to the office of the Secretary of Internal Affairs within a reasonable time. This is essential in order that the Commonwealth may have precise knowledge of the land that has been actually appropriated to it, and be paid for any surplus that has been surveyed into it: McGowan v. Ahl, 53 Pa. 84. The survey must be returned within a period that has been fixed, not to exceed seven years: Chambers v. Mifflin, 1 P. & W. 74; Star v. Bradford, 2 P. & W. 384; Strauch v. Shoemaker, 1 W. & S. 166; Wilhelm v. Shoop, 6 Barr, 21.
“The doctrine established by the courts in considering the question of the relation that a warrantee bears to the Commonwealth is, that whilst a duty is imposed upon a warrantee to proceed expeditiously and within a reasonable time to have a survey made and his rights definitely ascertained and fixed by patent, any indulgence shown by the Commonwealth is a matter of grace as against one who is careless and negligent of his rights.”

In accordance with these decisions, you are, therefore, advised that the West Penn Power Company, a corporation, having allowed a period of fifty-seven years to go by since a warrant was issued to the applicant under whom it claims under the Act of April 11, 1848, P. L. 533, and never having paid the purchase money to the Commonwealth, is guilty of laches as well as of failure to comply with the statutory requirement, and is not now entitled to a patent for the mineral rights under the 100 acres of the bed of the Allegheny River, which was surveyed under said warrant.

From Guy H. Davies, Harrisburg, Pa.


text:
    Thomas, Administrator, v. Moyer.

      Practice, C. P. — Affidavit of defence — Notary public — Affidavit taken by defendant’s attorney.

      1. An affidavit of defence will not be stricken off on the ground that the defendant’s affidavit was taken before his own attorney, who was also a notary public, in the absence of a rule of court forbidding the same.

      Jurisdiction, O. C. and C. P. — Suit for share of estate.

      2. Judgment will be entered for the defendant where the plaintiff’s statement of claim shows that the suit is brought to recover the unpaid balance of the plaintiff’s distributive share in an estate. The jurisdiction of the Orphans’ Court in such cases is exclusive.
    Affidavit of defence raising questions cSP law. Rule to strike off affidavit of defence. C. P. Bucks Co., Sept. T., 1921, No. 63.

      Harman Yerkes, for plaintiff; Harry E. Grim, for defendant.
    Dec. 12, 1921.
   Ryan, P. J.,

The affidavit of defence was sworn to before Harry E. Grim, Esq., a notary public, who- is the attorney of record for the defendant. The rule was granted upon a motion to strike off the affidavit of defence upon that ground, the plaintiff alleging that for that reason the affidavit “is irregular and insufficient.” The practice is to be condemned; nevertheless, in the absence of any statutory prohibition or rule of court to the same effect, the affidavit cannot be held to be void. In Ayer v. Sterneck, 18 Phila. 310, the defendant filed an affidavit of defence which was sworn to before a notary public who was a member of the firm of attorneys representing the defendant. It was objected to as insufficient because in contravention of a rule of court. The court said that this would prevail if the affidavit set up any facts by way of defence; but, being nothing more than a demurrer to the copy of the book entries filed, it ought to be considered. While this was decided before the enactment of the Practice Act of May 14, 1915, P. L. 483, it is analogous to the case at bar. The court considered the affidavit of defence because it was not in violation of the rule cited, and sustained the legal objection which the defendant raised therein. There is no such rule in this court. In Bowman v. Blough, 33 Lanc. Law Rev. 202, an affidavit taken before a member of the bar in the case was held to be void, but because it violated a rule of court forbidding it. This rule will be discharged. This brings us to the consideration of the question of jurisdiction raised by the affidavit of defence. It avers that this court is without jurisdiction, the jurisdiction of the Orphans’ Court being exclusive. The cause of action, as disclosed by the plaintiff’s statement of claim, is unpaid balances due to the plaintiff’s decedent from the estates of John Bartenback, deceased, and Catherine Bartenback, deceased, of which the defendant was the administrator. The statement, in the second paragraph, alleges that the defendant “as such administrator filed his accounts in the Orphans’ Court of Bucks County aforesaid on Aug. 21, 1897, showing a balance for distribution in said estates of $5325.65.” Credit for certain payments on account is admitted by the plaintiff, and a balance of $842.72 only is claimed. The plaintiff’s remedy is in the Orphans’ Court, whose power to enforce distribution in a decedent’s estate is exclusive. See Black’s Executor v. Black’s Executors, 34 Pa. 354.

And now, to wit, Dec. 12, 1921, the rule to strike off is discharged, judgment is entered upon the question of law raised by the affidavit of defence in favor of the defendant, and the suit is dismissed, at the cost of the plaintiff.

From Calvin S. Boyer, Doylestown, Fa.