author: Harvey, J.,

text:
    Commonwealth v. Albaugh.

      W. J. Geary, District Attorney, for Commonwealth.

      Samuel Wilson and John M. Myers, for defendant.
    March 30, 1929.
   Harvey, J.,

On Jan. 15,1929, J. G. C. Seigworth made information before John B. Fescemyer, a justice of the peace of Clarion County, against A. W. Albaugh, charging that he, A. W. Albaugh, did trespass on his lands in Farmington Township, in Clarion County, by wilful entry on said lands four times, averring the said lands were posted according to law (Act of April 14, 1905).

On the same day a warrant for the arrest of A. W. Albaugh was issued. On Feb. 20, 1929, a hearing was held before Justice Fescemyer, and A. W. Albaugh, defendant, was found guilty of trespassing and fined $10 and costs amounting to $10.05.

On March 1, 1929, a petition presented for special allocatur to appeal from the judgment of the justice into the Court of Quarter Sessions of the county and the same allowed. Defendant to enter bail in the sum of $100, conditioned for any fine and costs that might be imposed upon him. Bail-bond filed.

The matter came on for hearing March 16, 1929.

Copy of the docket entries of the hearing before Justice of the Peace John B. Fescemyer presented.

Motion to quash the appeal before hearing filed by W. J. Geary, District Attorney, averring that no sufficient reasons are set forth in the petition for the allowance of the appeal. That no due cause is shown for the allowance of the appeal, in that:

1. The petition does not set forth that the defendant did not have an opportunity to fully and fairly present his case before the justice.

2. The petition does not set forth that there was a doubtful legal question involved.

3. The petition does not set forth or indicate oppression, corruption or disregard of the law on the part of the magistrate.

4. The petition does not set forth that the defendant has “after-discovered evidence” which would justify the granting of a new trial under the well-known rules relating to the granting of a new trial for cause.

Examination of the records of the justice in this matter reveals defects which, if said records were brought into court upon certiorari, we should have been compelled to reverse the judgment. Defendant elected to appeal. This he had a right to do “upon cause shown,” upon allowance of the Court of Quarter Sessions of the county, providing satisfactory bail is entered (Act of April 1, 1925, P. L. 98). Allowance for the appeal was granted upon the petition of defendant containing averments which appeared sufficient. We might have refused an appeal, but “it would serve but little purpose to refuse an appeal in a case which could be reversed for lack of jurisdictional averments and facts on certiorari:” Com. v. Ferree, 6 Dist. R. 639.”

A careful examination of the certified copy of the justice’s records of the hearing in this matter contains no definite facts, but only a conclusion from unrecorded facts and seemingly a finding upon something not contained in the information. The fact, averred in the defendant’s petition, that the defendant was an agent of the Department of Agriculture of Pennsylvania and was specially commissioned to enforce the Act of M'ay 11, 1921, P. L. 522, and its amendments, known as the “Dog Law,” and was upon the premises of Mr. Seigworth in what he conceived the due performance of his official duties, and the specific manner in which he trespassed, is not shown in the certified copy of the justice’s records.

We feel that the principle set out in Com. v. Nesbit, 34 Pa. 398, applies in this case, viz.: “When the record contains no definite facts, but only a legal conclusion from unrecorded facts, a superior court cannot, without compelling a return of the evidence or taking testimony of what it was, decide whether the legal conclusion, that is, the conviction of the offense, be right or wrong.”

We sustain reasons 1, 3 and 4 in the motion of the district attorney to quash the appeal.

Irrespective of what appears as a finding in making up the justice’s conclusions extraneous to the charges in the information upon which the hearing was held, it does not appear in the record, and we believe we should know, whether or not the fact that the defendant was an official of the State, in the performance of his official duties when the alleged trespass was committed on the premises of Mir. Seigworth, was presented at the hearing. It may have been. The petition of the defendant does not state it was not. If it was not, we feel that it should have been. If it was and the justice disregarded it, is it a question upon which the defendant might predicate an appeal? The petition of defendant contends that it is. We believe it is.

Reason 2 in motion to quash is overruled. Motion to quash appeal overruled and refused.

At the hearing before us on the appeal, the Commonwealth called several witnesses. Mr. Seigworth, the prosecutor, testified, in substance, that he owned a farm containing about 120 acres in Farmington Township, Clarion County, Pennsylvania, upon which he resides. That on Jan. 17, 1927, he was at a point on the farm some distance from his residence house. That during his absence two men came to his house. That they were there a short time, turned and went across his fields to where they had an automobile in the lane leading from the public road. They had difficulty in getting the car turned around, one of the men went across his field and got a wooden bar or rail with which to lever the ear. This bar or rail was broken into several pieces and the pieces allowed to lie where the car was stationed. He testified that there had been a fall of snow the morning of that day and he could and did trace the footprints of these two men. That they got out of the car where it was on the lane or roadway and walked across a field diagonally about forty rods, which he said was “seeded down,” to the house and barn, and returned across the same field; also across the field to procure the bar or rail. That he saw them go away over a hill in the direction of where a neighbor lived. That they returned and he recognized the men, one of whom was the defendant herein. The material damage done was walking across the field and breaking the bar or rail. He further testified that he had ten cards as notices posted on the outer limits of his farm, one of which was at the point where the private lane or roadway left the public road; others along the lane and on the other edge of lands. These notices were printed on cardboard about seven inches by eleven inches in size. “No hunting” in large letters at the top of card, followed in smaller type, “All persons are warned from trespassing hereon, etc.,” signed “J. G. C. Seigworth,” owner. One notice bore “No Trespassing” over the letters “No Hunting,” testified to have been placed at a certain point to warn persons against going upon the adjoining lands with wagons or vehicles when the lane or roadway was in bad condition. That the last-mentioned notice was not at the end of road or lane where defendant and companion entered the lane. William Allebaugh and Floyd Smith, witnesses for prosecutor, testified to having seen the notices against hunting and trespassing on the Seigworth lands prior to Jan. 17, 1927, and that the same were posted as testified by Mr. Seigworth prior to and on that date. L. B. Host, a witness for prosecutor, testifies that he saw the “no hunting” signs prior to Jan. 17, 1927; that he was hunting deer and seeing the signs refrained from going upon the land. Did not see the special “No Trespassing” sign mentioned.

The defendant testifies: That he is agent for the State Department of Agriculture in the district of Clarion, Venango, Forest and Jefferson Counties for the enforcement of the law of May 11, 1921, P. L. 522, known as the “Dog Law.” That he was charged with the general enforcement of this law (section 35), and in pursuance of his duties thereunder he was at Licking-ville, in the vicinity of the farm of Mr. Seigworth, on Jan. 17, 1927; that he heard Mr. Seigworth had several dogs; went with Mr. Guilford, Game Warden in the district, in an automobile to call upon Mr. Seigworth; that they got along the public road to the end of the lane going to Mr. Seigworth’s residence house, turned into the lane, but only got part of the way when the auto was so impeded with snow drifts in the lane or roadway they were required to get out of the car and walk the remaining distance to the house; that they “cut across” a field to the house, possibly a distance of forty rods; that there was snow on the ground; that they heard dogs barking and found dogs in the barn; that they returned across the field about as they came to where the car was left standing in the lane or roadway; that they had difficulty in getting the car turned around, but did so and went back along the lane or roadway until they came to the public road; that he does not recollect of breaking a bar or rail in efforts to get the car turned around, but may have done so; that he did not see any notices against trespassing posted on the Seigworth’s land.

There is no question but that the defendant “entered” upon the lands of Mr. Seigworth and walked across a portion thereof to the residence house and barn on the lands.

There is also no question but that the lands were posted in the manner testified. Had these men been “hunters” and had entered upon the lands wilful, that is, with the purpose to hunt, whether they went on the land one rod, forty rods or any number of rods, shot anything or not, or did any damage or not, they would have been unquestionably trespassers and subject to the penalties of the act. It may be drawing a fine distinction, but is the notice testified as posted, which might have been seen by defendant when he entered the lane from the public road, such a notice as would have warned him or any one not a hunter from going upon the land as defendant did. The prosecutor himself testified, and brings in the notice to corroborate, that he changed the form of the notice where he wanted those who were not hunters to keep off his premises. Be that as it may, the defendant, an officer of the State, being “employed by this Commonwealth, . . . whose duty it is to enforce the law” (Act of May 11, 1921, § 2, P. L. 522), in pursuance of his official duties, proceeding along a road1 used by the public without hindrance, comes to a place where he can proceed no further because of the road being blockaded with snow, gets out of the automobile in which he is traveling and strikes across the field on foot to his objective, the lands being “posted” as testified; when he arrives at the residence house, finding no one and hearing dogs bark, he goes to a building near, a barn, opens a door and find dogs, is he a trespasser at any time or place after stepping from the automobile stalled in the lane until he returned to it, got it turned around and departed from and off the Seigworth lands? Counsel for defendant contend that as an officer of the Commonwealth, empowered generally to enforce the “Dog Law,” he has lawful authority by virtue of his commission, without other warrant, to go upon lands and premises for the purpose of inquiring and investigating whether or not dogs have been assessed and a license issued for them according to law, with the right to enter closed buildings to that end in the due pursuit of his official duties.

The district attorney contends that the instant defendant left the lane used by the public and stepped upon, i. e., “entered upon,” the lands of Mr. Seigworth, posted as testified they were, he was a trespasser; that had defendant proceeded and followed the lane around to the house and returned the same way, he would not have been a trespasser. This argument with respect to the charges in the information not extending to where buildings are entered without proper warrant.

The justice in his findings at the hearing Feb. 20, 1929, notes “open building without a search warrant.” That is a factor not contained in the information.

It seems to be an element taken into consideration by the justice in arriving at his judgment and sentence. The testimony must have been introduced at the hearing before the justice, Feb. 20th; otherwise, how would the attention of the justice, from anything in the information, been brought to that point to the extent of the findings and judgment stated in the record. It was practically on this point the appeal was allowed.

In the Dog Law of May 11, 1921, P. L. 522, we find:

1. That “any person employed by the Commonwealth, . . . whose duty it is to enforce the law,” is defined as a police officer. (Section 2.)

2. That “on or before the fifteenth day of January of each year, . . . the owner of any dog six months old or over shall procure a license for each dog owned or kept by him. . . .” (Sections 3 and 18.)

3. Kennel licenses issued, the fee dependent upon the number of dogs kept in the kennel. (Section 11.)

4. It shall be the duty of every police officer (section 19) :

(a) To seize and detain any dog or dogs which bear a proper license tag and which are found running at large, either upon the public streets or highways of the Commonwealth or on the property of other than the owner of such dogs and unaccompanied by the owner or keeper.

(b) Any police officer is authorized and empowered to go upon any premises and enter any building to seize and detain any dog or dogs which have been found running at large, unaccompanied by the owner or keeper, when such police officer is in immediate pursuit of any such dog or dogs.

5. That the assessors for taxation purposes in each township, borough, etc., shall annually, at the time of assessing property as required by law, make diligent inquiry as to the number of dogs owned, harbored or kept by each person in his district; make a complete report to the Secretary of Agriculture, . . . setting forth the name of every owner of any dog or dogs, . . . how many of each sex; ... if a kennel is maintained, such fact be stated. Duty of assessor to notify owner that a license must be obtained. (Section 17.)

Careful examination and consideration of the act leads to the belief that the powers with which the agents of the Secretary of Agriculture are invested to enforce the law are analogous to and rise no higher than the powers with which police enforcement and peace officers are vested, namely, the “violators” may be “arrested” “on sight,” if seen or found violating the provisions of the act, and may be pursued till captured, even upon the premises and into the buildings of the owner. If, however, any one reported as owner of a dog or dogs fails to procure a license for it or them; if a dog is reported as running at large with or without a license tag; or if, upon information and belief, there may be a dog or dogs unlawfully harbored, owned or kept, not reported by the assessor, the license or licenses not procured; also, unless the officer is in immediate pursuit of the dog or dogs seen in violation of the provisions of the act, we are constrained to hold, and do hold, that an officer may not enter upon the lands and premises of the owner or keeper of the dog or dogs pursuant to his official duties to enforce the law without a lawful warrant specifically authorizing him for so doing under the provisions of the act for the purpose or procured by due process of law. To hold otherwise would be dangerously near being contrary to article IV, Amendment of the Constitution of the United States. In this view we feel sustained from the fact that in the act specific provisions are set out authorizing and empowering “police officers” to act summarily on sight under certain conditions, and is silent upon all others, leaving process to be under the common law.

We may have digressed from matters upon which this case might be decided. It is done because of the averments and arguments of counsel relative to the rights, powers and authority of the defendant, as an officer of the Commonwealth of Pennsylvania, in the performance of his official duties. In the instant case, the information upon which the case is based' charges only “the aforesaid A. W. Albaugh did trespass on the lands of the plaintiff in Farmington Township, aforesaid county, wilfully did enter on said lands at four different times against the Act of Assembly, the 14th day of April, A. D. 1905. Said lands being posted according to law.” (Not signed by the prosecutor.)

The matter was heard by the justice, who rendered a verdict, inter alia, “it was shown that A. W. Albaugh did trespass and open building without a search warrant,” upon which he was sentenced. Appeal taken on allowance granted. At the hearing before the court, the district attorney confined the testimony for the Commonwealth strictly to the charge contained in the information, that the defendant was a trespasser upon the lands; that the lands were “posted” in accordance with provisions in the Act of April 14, 1905, P. L. 169, and contended that a simple entry upon the lands so posted constituted a trespass. Counsel for the defendant sought by the testimony presented to establish that defendant did not see any notice warning against trespassing, if any were posted; that he was an agent of the Secretary of the State Department of Agriculture, and as such had authority to enter upon lands in the pursuit or performance of his official duties; that he was going to see Mr. Seigworth; that he got part way on a lane used by the public for travel; that he was stopped by impassable conditions in the roadway; got out of the auto and continued his journey across the fields on foot, that being the only practicable manner, and across the fields the only practicable course, to reach the residence house of Mr. Seigworth.

Plaintiff, by testimony, established the fact that Mr. Seigworth had “prominently posted” his land with “No Hunting” signs, but same had further upon them printed a warning to “All persons” against trespassing, under the Act of April 14, 1905.

In order to determine the status of this defendant on entering upon the lands of Mr. Seigworth under the circumstances in this case, we must take into consideration what a “trespasser” is under the law; whether the lands were prominently posted as “private property” and warning all persons from trespassing thereon. Also, whether the defendant did “wilfully enter” upon the land. This is a matter under a statute, not a civil case for damages.

“Civil” trespass upon lands is defined as “any unauthorized entry upon the realty of another to the damage thereof.”

“Every unauthorized entry on land of another is a trespass, even if no damage is done, or the injury is slight. It will be presumed that injury resulted, even if it was no more than the trampling of the herbage: . . .” 38 Cyc., 995-1.

At common law, no trespass to property is a crime unless it is accompanied by or tends to create a breach of the peace.

Under statutes, many civil trespasses have been made criminal. The purpose is to protect the actual possession of real estate against unlawful and forcible invasion and to remove occasion for acts of violence and breach of the peace. The act must involve a common law trespass. It is not the purpose of the statutes to make that a criminal trespass which would not be a civil trespass: 38 Cyc., 1176 B.

In this case, the use of the lane for passage, the same being open and permitted for public use, was not a trespass.

Defendant had come to a point where he could go no further in his automobile. He had come to see Mr. Seigworth. He was within some forty rods of his residence. What was he to do? Go back as he came and return after the snow-drifts were out of the road, or get out of his automobile and walk across the fields to the house. He got out and walked across the fields and came back to the auto the same way. He says that he did not see any signs warning against trespassing. Does the qualifying word “wilfully” in the expression “wilfully to enter” in the act have significance? We think it does under the circumstances in this case. To enter “wilfully” upon the land, he must know the act is forbidden, and nevertheless proceed to enter.

“The word ‘wilful,’ used in a statute creating a criminal offense, means something more than an intention to do a thing. It implies the doing of the act purposely and deliberately, indicating a purpose [on the part of the defendant] to da it without authority; careless whether he has the right or not; in violation of law; and it is this which makes the criminal intent, without which one cannot be brought within the meaning of a criminal statute:” State v. Morgan, 48 S. E. Repr. 670; 38 Cyc., 1181B, 1177 (iv), 1179 C., 1180 (11).

Under all the facts presented in this case, taking into consideration the situation of the defendant, the exigencies, that he did not know the land was “posted,” and, therefore, was not consciously aware he might be a trespasser by entering upon the lands of Mr. Seigworth as he did; that even if he had seen the notice posted at the junction of the lane with the public road, whether it was such a notice as is contemplated under the Act of April 14, 1905, is not established, we are of the opinion that the defendant may not be held criminally liable as a trespasser for entering upon the lands of the prosecutor in the manner and under the circumstances he did Jan. 17, 1927, as charged in the information made Jan. 15, 1929, upon which the proceeding was originally brought before Justice of the Peace John B. Pescemyer. In the information, four different entries are charged; only one entry was pressed and testimony taken thereon at the hearing before us on the appeal.

And now, March 30, 1929, after hearing the testimony and the arguments of counsel, upon careful and due consideration thereof, for the reasons set out above, we find A. W. Albaugh, the defendant, not guilty of the charge in the information made against him Jan. 15, 1929, for trespass by entering upon the lands of the prosecutor, J. G. C. Seigworth, Jan. 17, 1927. The results of and questions raised in this case being of public concern, we direct that all docket costs in the prosecution thereof be paid by the County of Clarion, Pennsylvania. From Merritt H. Davis, Clarion, Pa.


source: Caselaw Access Project

author: Biddle, P. J.,

license: Public Domain

text:
    Thew Shovel Company v. Fishman et al.

      Bowman & Reese, for plaintiff; Hyman Goldstein, for defendants.
    June 18, 1929.
   Biddle, P. J.,

— On Sept. 21, 1928, the plaintiff issued a writ of replevin to recover possession of a steam shovel which was then in the possession of the defendants. The sheriff’s return shows that he found the property described in the possession of the defendants and took it into his custody, and that within seventy-two hours after such taking the defendants filed a claim property bond, and the shovel was redelivered to them and has been retained by them since that time.

On Nov. 1, 1928, the plaintiff’s declaration was filed, and on Dec. 12, 1928, the defendants filed an affidavit of defense. On Dec. 21, 1928, the plaintiff entered a rule for judgment for want of a sufficient affidavit of defense, which is now before us for disposition. At the argument of the rule, there was no appearance for the defendants nor briefs submitted in their behalf.

Prom the admitted averments of the pleadings, it appears that on April 3, 1928, the plaintiff was the owner of the steam shovel in question, and that on April 4, 1928, the plaintiff and the defendants entered into a written contract for the conditional sale of the shovel to the defendants, the contract in question providing, inter alia, that the defendants were to pay $500 with the order, which payment was admittedly made; that the total price of the shovel was to be $2750; that the purchasers were to pay $250 thirty days after shipment of the shovel and $250 every thirty days thereafter until the full purchase price was paid. The contract also contained the following provisions: “It is agreed that title to said property shall not vest in buyer or in any other person, firm or corporation until paid for in full. If cash payment is not made as agreed, or if there be default at any time in any payment or other condition of this agreement, the full amount unpaid hereunder, including any notes given, shall become due and payable forthwith. In default of payment or other condition herein expressed, said property may be removed by the seller or its agents without legal process. Buyer agrees to pay all legal taxes, assessments or other public charges which may be levied upon the equipment herein referred to. When payment in full shall have been received, the property shall belong to the buyer. ... It is agreed this order covers all agreements concerning this transaction of every name and nature and no representation made by an agent or other person not included herein shall be binding.”

A copy of this written agreement of conditional sale was filed in the office of the Prothonotary of the Court of Common Pleas of Cumberland County on April 14, 1928, and recorded in Conditional Sales Docket at page 341. On April 14, 1928, the shovel in question was shipped from Williamsport to the defendants, by whom it was taken and by whom it was held until the issuance of the present writ of replevin. The $500 down-payment was admittedly made, but none of the subsequent payments called for in the contract of sale were made.

While the defendants admit the foregoing facts, they aver as their ground of defense that there had been a breach of warranty in regard to the shovel, as a result of which they had suffered damages, and that these damages, with certain set-offs which they set up, exceeded the payments which had become due up to the time of the issuance of the writ of replevin; and they contended, therefore, that the plaintiff was without right to retake the shovel and had no ownership thereof.

As we understand the law of this case, the question involved is one of title only, and the defendant may not in a proceeding of this sort set up as a defense either a breach of warranty, misrepresentation of quality or set-off: Lee-Strauss Co. v. Kelly, 292 Pa. 403; Michael v. Stuber, 73 Pa. Superior Ct. 390.

And, as no other ground of defense is averred in the affidavit filed, it follows necessarily that the affidavit is insufficient and that the plaintiff is entitled to judgment on the pleadings.

And now, June 18, 1929, the rule for judgment for want of a sufficient affidavit of defense is made absolute.

From Francis B. Sellers, Carlisle, Pa,


author: Kun, J.,

text:
    Jackson et al. v. Sarajean Building and Loan Ass’n et al.

      Orr, Hall & Williams, for plaintiffs.

      Wolf, Block, Schorr & Solis-Cohen, for defendants.
    March 14, 1930.
   Kun, J.,

— In the year 1810, one Benjamin Johnson, owner in fee of a tract of land situate between Sansom Street and Chestnut Street, at Twentieth Street, extending westward to what is now the east line of No. 2027 Sansom Street (property of the defendants), divided it into lots fronting on Sansom Street and on Chestnut Street, creating an alley between the rear of the lots extending from Twentieth Street westwardly to the west line of his property (being the east line of what is now No. 2027 Sansom Street), naming it Linton Place (now Ionic Street), and designated said alley as a boundary of the respective lots, reserving to each grantee “the free and common use of said alley.”

Complainants derive their title by successive conveyances from the said Johnson. One of them, however, Thomas B. Monaghan, has a deed to a lot ¿described as fronting on Ionic Street, without any reference to the use of any alley. According to the proofs, prior to about four years ago, when the predecessors of defendants built a public garage at No. 2027 Sansom Street, there had! been no use or any claim on the part of the owners of that property to make any use of the alley in question, which is a cul-de-sac running, as stated, from Twentieth Street west to the east line of defendants’ property. A solid wooden fence had existed on that line for many years and the predecessors of defendants had their own alley in. the rear of their property, the outlet of which, however, was at a point west, there being no communication between that alley and the alley or street in question. About four years ago, the predecessors of defendants built their present garage and did not provide for any ingress or egress through their east wall to the west end of the cul-de-sac in question. However, two or three months ago, defendants broke through their east wall at the point mentioned and began to use the alley as a means of ingress and egress for their garage, which action brought about the filing of the bill in this case to restrain the defendants from continuing to do so and for a final decree eventually to make them fill up the opening in their wall.

The proofs show the defendants had written notice of the claims of complainants in the matter, and were asked not to proceed with their work. If the defendants believed that the status of the alley, which had apparently existed for over 100 years, had in fact and in law changed, it was their duty, under the circumstances, to file a bill against the complainants and others interested to restrain them from interfering with their alleged right to make an opening in their east wall and to use the alley or street as a public street, and affirmatively prove their right. Instead of that, the defendants proceeded to change a long prior existing status, and complainants seeking to have them restrained by a preliminary injunction, defendants advance the argument that since the purpose of a preliminary injunction is to maintain a status quo, and the present status quo being the actual use by the defendants of the alley in question, that ought not to be disturbed.

A party cannot, however, by an alleged wrong violate the rights of another after notice and then have the changed status quo preserved for his benefit. As stated in Fredericks v. Huber, 180 Pa. 572, the status quo which will be preserved by a preliminary injunction is the “last actual peaceable, non-contested status which preceded the pending controversy.”

There are some strong points in this case favoring the contention of the defendants that the alley in question has assumed the aspect or status of a public street, but the contention of the defendants in that regard is not free from grave doubt. True it is, that a street may become a public street without formal dedication of it as such. Notwithstanding the original deed creating the alley did not merely name it as a boundary, which would have amounted to a dedication of it to public use (Maier v. Walborn, 84 Pa. Superior Ct. 522), but added the words “reserving to each grantee the free and common use of said alley,” negativing any intention to dedicate it as a public street (Ulrich v. Grimes, 94 Pa. Superior Ct. 313), such an alley or street, though a cul-de-sac, may by actual user become in the course of time a public street, but the evidence would have to be considerably stronger than that which has been presented thus far on behalf of the defendants to warrant such a conclusion.

That there is a city electric lamp and a city fire-plug in the alley or street, and that a public sewer and water-main and pipes have been laid in the street, are important factors no doubt, but are not conclusive. (Gowen v. Philadelphia Exchange Co., 5 W. & S. 141.) Likewise, the facts that one of the abutters had conveyed the rear end of his lot to another, who built thereon, making the alley or street his front, and that property is assessed for taxation as being on the alley or street, and that the City placed on the building at the entrance of the alley the name-plate “Ionic Street,” can hardly change the legal status of the alley or street. No act of any abutter could possibly affect the rights of the others. The acts of the public, however, acquiesced in by the abutters might work a change. The real test is public user. Of course, in the case of a cul-de-sac, it would apparently be more difficult to show public user, because, ordinarily, the only persons using such a street would be the visitors to, or persons having business with, the abutters (Seidler v. Waln, 266 Pa. 361); although the mere fact that a street is a cul-de-sac does not exclude the possibility that it may be a public street under proper circumstances. Smith v. Union Switch and Signal Co., 17 Pa. Superior Ct. 444; Maier v. Walborn, supra, in both of which cases the courts held there had been a dedication of the alley involved to public use, in which they differ from the instant case. It is conceded that there was no dedication of the alley in question to public use in the first instance; as, indeed, it must be because the original grant to the abutters was not to the alley as a boundary merely, but expressly for their “common use,” which, as has been pointed out, expressly negatives any intention to dedicate the alley for public use. Kirkham v. Sharp, 1 Wharton, 323, cited in Ulrich v. Grimes, supra, to the same effect. The defendants have not as yet satisfied the court that the status of the alley has changed.

The complainants, excepting Monaghan, are entitled to a preliminary injunction against defendants, as prayed for in the bill. A decree may be submitted.


author: Martin, P. J.,

text:
    Davis v. Davis.

      S. J. Houston, for libellant; G. A. Gleeson, for respondent.
    March 27, 1930.
   Martin, P. J.,

— Libellant and respondent were married on April 10, 1918. Three children were born, one of whom died in his first year. Two girls are still living and have resided with their mother since July, 1927.

On Sept. 12, 1928, Sadie C. Davis filed a libel, alleging cruel and barbarous treatment endangering her life, and indignities to the person which rendered her condition intolerable and life burdensome, causing her to withdraw from her husband’s home and family.

A master was appointed and testimony taken on behalf of both libellant and respondent. The master found the facts and conclusions of law, and filed a report recommending that libellant be granted a divorce.

Exceptions were filed on behalf of respondent, averring that the master erred in his findings of fact and conclusions of law, and that the evidence was not sufficient to warrant a divorce.

It appears from the evidence that shortly after the libellant and respondent were married they had difficulty with regard to the christening of their firstborn child, as a result of which libellant withdrew from the home of respondent’s parents, where they were residing. The child became ill and was placed in the Mary J. Drexel Home for Children by its mother. Respondent, learning of this disposition of the child, without the consent of the mother or any one in authority at the Home, took the child away and kept it for some time before the mother or the hospital authorities knew where it was. After the mother learned that the father had the child, and after some altercation, she induced him to permit the child to return to the hospital; but after agreeing that the child be returned to the hospital, he struck his wife a violent blow in the face, saying: “There is a kiss for you.” Shortly after the child was returned to the hospital it died; and it was asserted that the death was largely due to exposure when the child was taken from the hospital.

The libellant testified that many times when she and her husband engaged in arguments he would strike her in the face, sometimes with his open hand, but at other times causing serious injury, and that she had exhibited the marks to a sister, Mrs. Wynne. This course of conduct continued until libellant left in 1927.

There is evidence that respondent seldom provided for his wife and children, and that it was necessary for the wife to seek employment during the greater part of the time they lived together; that she was employed by Lit Brothers, Strawbridge & Clothier, Dewees and at other places. When she was employed her husband came to the store where she was working, annoyed her by attempting to raise a disturbance, demanded money to buy his lunches, and the frequent calls upon her by the husband caused the management to discharge her. On an occasion when respondent met his wife on the street, there was an altercation, when he tripped her, tearing her dress and leaving marks on her.

Shortly after the marriage the husband was convicted of statutory rape, felonious assault, and fornication and bastardy. Respondent did not deny that he was convicted,'but alleged that he was innocent; and influence was brought to bear which resulted in a suspended sentence on the rape and felonious assault charges, but he was sentenced to pay for the support and maintenance of the bastard child.

Libellant complained that respondent was too familiar with a woman named Ida Becker; that he had neglected his wife for this woman, and on several occasions told his wife he wished she would get a divorce so that he could marry Ida Becker.

Libellant claimed that the indignities to which she was subjected rendered her condition intolerable and life burdensome, and that she was compelled to withdraw from her husband’s home.

Respondent admitted that he had slapped his wife on several occasions, but denied that he abused her or offered indignities to her, and asserted that, although she was employed, he had given her as much money for her support and for the support of the children as he was able to supply, as he was out of work part of the time. He denied the charge of undue familiarity with Ida Becker.

The libellant was corroborated by witnesses called in her behalf, and presented a case within the act of assembly entitling her to a divorce on the grounds of cruel and barbarous treatment and indignities offered to her person which rendered her condition intolerable and life burdensome, causing her to withdraw from her husband’s house and family.

In Lynn v. Lynn (No. 1), 76 Pa. Superior Ct. 428, it was held that: “As a cause for divorce, cruel and barbarous treatment is entirely distinct from indignities to the person. A single act of cruelty may be so severe as to justify a divorce. No single indignity to the person is sufficient. Indignities need not be such as to endanger life and health; it is sufficient if they render the condition of a woman of ordinary sensibility and delicacy of feeling intolerable and her life burdensome. Where the evidence of the libellant is adequately corroborated and the testimony of the respondent is evasive, inconclusive and lacking in frankness, the Superior Court will affirm a decree of-divorce which is based upon evidence of frequent assaults upon the libellant by the respondent, humiliation of the libellant in the presence of servants, relatives, physicians and others, and failure to provide her with ordinary necessities, including care in time of illness.”

Counsel for respondent claims that, after the libel was filed in this case, there was a reconciliation of condonement on the part of libellant. Respondent testified that he and his wife had sexual intercourse on several occasions since the divorce proceedings were instituted. This was denied by libellant.

The master saw the libellant and respondent and had an opportunity to observe them as they gave their testimony. No substantial reason has been presented to doubt that he came to a proper conclusion as to who was telling the truth.

The fact that libellant was seen with her husband, talked with him, and gave him money on several occasions to get rid of him, does not amount to condonation of the offenses with which she charged him.

It was said in the case of Bortell v. Bortell, 78 Pa. Superior Ct. 201: “In an action for divorce on the grounds of cruel and barbarous treatment and indignities to the person, a reconciliation does not have the effect of a condo-nation in the sense of canceling the existence of facts well known to both parties. The alleged condonation is only one of many items to be considered in making the final decree.”

The exceptions should be dismissed and the master’s report approved.

And now, March 27, 1930, the exceptions filed on behalf of respondent are dismissed; the report of the master is approved; and it is ordered that a final rule in divorce be granted.


author: Per Curiam,

text:
    Clayton's Estate.

      Charles G. Garbling, for exceptions.

      Walter Lee Sheppard,- Ira J. Williams and Charles Berguido, contra.
    Feb. 20, 1930.
   Per Curiam,

— In upholding the trust for the reasons given by him in his adjudication, the Auditing Judge was undoubtedly sustained by the authorities cited, and the exceptions might readily be dismissed without further comment, were it not that we are all of opinion that the application is premature, in that at the time of the death of the cestui que trust there may be living issue who, under the provisions of the will, may be entitled in remainder.

All exceptions are dismissed and the adjudication is confirmed absolutely.

Henderson, J., did not sit.


author: Koch, P. J.,

text:
    Commonwealth ex rel. Snyder, District Attorney, v. Baker.

      R. A. Freiler, for petitioner; C. M. Palmer, for defendant.
    March 3, 1930.
   Koch, P. J.,

— According to the suggestion of the district attorney, the respondent has been a councilman in the Borough of Saint Clair since the first Monday of January, 1928, and has been the President of the Council since the first Monday of January, 1930. In June, July and August, 1929, it is averred that the respondent hired himself to perform certain labor to and for the use of the borough, for which labor the borough had contracted with one John T. Slattery. The contract concerned the paving of Nicholas Street, and Baker was paid by Slattery for labor performed by him in that work under said contract.

The respondent has moved to quash the proceeding on the ground of laches, because the alleged work in which Baker was interested was concluded in August, 1929, whereas the writ in this case was not applied for until Jan. 22, 1930. The respondent relies upon Com. ex rel. v. Bala & Bryn Mawr Turnpike Co., 153 Pa. 47, which holds that laches may be imputed to the Commonwealth as well as to an individual. In that case an amendment to the charter of the turnpike company was made by a Court of Common Pleas, and the decree was unappealed from. The company thereafter proceeded in good faith and without warning and expended a large amount of money in extending its road pursuant to its amended charter. No move was made by the Commonwealth until five years after the charter had been amended, whereas here but a few months have elapsed. Besides, in that case the quo warranto aimed at the destruction of the defendants’ property, while here the right of the respondent to continue longer in the office is put into question, because of his alleged interest in a contract with the borough in which he serves as a councilman.

Our statutes respecting quo warranto proceedings contain no provision respecting the time within which such proceedings must be started, and we do not think enough time has elapsed to bar this ease on the ground stated in support of the motion.

The motion to quash is dismissed and the respondent is allowed one week within which to file his answer.

Prom M. M. Burke, Shenandoah, Pa.


author: Fleming, P. J.,

text:
    Miles v. Milesburg Borough et al.

      A. C. Dale, for plaintiff; J. K. Johnston, for defendant.
    Sept. 12, 1929.
   Fleming, P. J.,

— The plaintiff seeks to restrain the defendants from taking a portion of the plaintiff's land, situate in the Borough of Milesburg, for use in the building of State Highway Route No. 219. On Aug. 20, 1929, a preliminary injunction was awarded and hearing thereon fixed for Monday, Aug. 26, 1929. At that time, the Hon. A. R. Chase, of the 46th Judicial District, presided in our absence, dismissing preliminary objections to plaintiff’s bill and directing that defendants answer over and that the County of Centre be made a party defendant and be also required to answer, final hearing to follow on Wednesday, Sept. 4,1929. All parties have answered, and the questions now before us are:

1. Does the Secretary of Highways have authority to change existing lines in boroughs or to widen streets therein?

2. Are counties responsible in damages to the owner thereof for lands taken within boroughs for purpose of changing lines or widening streets?

3. If counties are not so liable for taking of such lands, what, if any, are the obligations of the borough therein?

4. Does the plaintiff have an adequate remedy at law for a recovery of damages for land so taken?

To properly consider these questions, we have reached the following

Findings of fact.

1. The plaintiff, O. E. Miles, is a citizen and resident of the Borough of Milesburg and is the owner of real estate situate on Water Street in said borough.

2. The Borough of Milesburg is a municipal corporation, subject to the provisions of the General Borough Act, approved May 4, 1927, P. L. 519.

3. The Lord Construction Company is the contractor employed by the Pennsylvania Department of Highways for the construction of certain improvements on Route 219. Scholl Brothers are sub-contractors employed in such work.

4. That Route 219 extends from Clearfield to Lock Haven — commencing in Clearfield, and running over routes 57 and 313 to Kylertown; thence by way of Drifting to a point on the dividing-line between Clearfield and Centre Counties; thence by way of Moshannon, Snow Shoe, Runville, Milesburg and Howard to a point on the dividing-line between Centre and Clinton Counties; thence by way of Beech Creek to a point on the boundary-line of the City of Lock Haven, Clinton County: Act of May 14, 1925, § 1, P. L. 708, amending section 6 of the Act of May 31, 1911, P, L. 468, as amended by the Act of June 21,1919, § 1, P. L. 556.

5. That in the reconstruction of said Route 219 it is proposed to use Water Street in said Borough of Milesburg, a street not heretofore used in said route.

6. That at the point where plaintiff’s land begins at the southwest comer thereof, Water Street is narrowed to a width of sixty feet and it is proposed to take a strip of plaintiff’s land thirty feet wide and approximately 150 feet long for the construction of said Highway Route 219.

7. That the Borough Council of the Borough of Milesburg, by Ordinance approved May 22, 1929,- have approved and established the lines, grades, drainage structures and all other structures appearing on the plans of the Department of Highways of the Commonwealth of Pennsylvania showing proposed improvement on Water Street in said borough.

8. That the said Borough of Milesburg has not agreed with plaintiff upon damages for the taking of his land, nor has said borough tendered security to said plaintiff therefor.

9. That the Secretary of Highways has not caused a description or plan of the proposed improvement within the said borough to be recorded in the Office of the Recorder of Deeds in and for the County of Centre.

10. That the Secretary of Highways has not notified the County Commissioners of Centre County, in writing, of the contemplated change other than in the submission of blue-prints covering the whole improvement within the county.

11. That no agreement as to damages satisfactory to the county commissioners has been had with the plaintiff, nor have the county commissioners agreed that the Secretary of Highways may proceed with the work in said borough, nor have they approved the change of lines or width of said Water Street in any way.

Discussion.

The gist of this controversy lies in a dispute between the Borough of Miles-burg and the County of Centre as to which shall answer to this plaintiff for his certain damage. The Borough of Milesburg has ordained the lines, grades, drainage structures and all other structures appearing on the plans of the Department of Highways. This includes the widening of Water Street along plaintiff’s land, which widening will result in the taking of plaintiff’s land. Such municipal action is, in effect, the ordaining of the widening of the street and the exercise of its right of eminent domain to procure from the plaintiff enough land to constitute the new width.

Judge Keller, in Fetherolf’s Petition, 84 Pa. Superior Ct. 514 (1925), held that the Secretary of Highways has no authority under the Act of May 31, 1911, P. L. 468 (Sproul Act), as amended by the Act of April 6, 1921, P. L. 107, to change the lines of location of a public road or street within the limits of a borough. Such change can only legally be made by the proper action of the borough authorities. While the Secretary of Highway has discretionary power to improve a borough street lying between two improved sections of a State highway, such discretionary right of improvement carries with it no authority to ordain or lay out streets or to change the location of existing streets within a borough. The borough’s police power and control over its streets remain unaffected except as to the authority specially committed to the Secretary of improving and maintaining, at his discretion, a section of unimproved road in the borough along a designated State highway route. Where the Secretary of Highways has no power to interfere with the location of the streets in a borough, so as to authorize the diversion of a road in front of the plaintiff’s house and the laying out, opening and construction of a new road through his property, the provisions contained in section 16 of the Act of May 31, 1911, P. L. 468, and its amendments, do not furnish an appropriate remedy for the damages which the plaintiff has sustained. Where the improvement was undertaken with the approval of the borough, which agreed to adopt the lines and grades established by the Secretary of Highways, it would seem that the plaintiff has a full and complete remedy against the borough.

This was held, by Justice Schaffer, in Blainesburg-West Brownsville Road, 293 Pa. 173 (1928), to be the rule controlling that case, and in Westmoreland Chemical and Color Co. v. Public Service Commission, 294 Pa. 451 (1928), a similar construction appears, Justice Kephart saying, in part: “For all purposes, the street was still a borough street, the county had no power to interfere with the location of the street in a borough; it had no power to lay it out, open or, of its own motion, construct the road; that right remained in the borough, and that municipality was liable under its existing statutes for consequential injuries attaching to the borough through precedent legislation.”

In the instant ease, the borough authorities and the Secretary of Highways have no conflict. The latter has prepared plans which include the widening of Water Street and the borough has approved such plans by specific corporate action. The plaintiff is to be deprived of his land and may suffer consequential damages by the road improvement. Who shall answer to him for the same? Does the plaintiff have an adequate remedy at law?

Counsel for the defendant borough contends that by virtue of the Act of Assembly approved May 7, 1929, P. L. 1596, the County of Centre is liable for such damages and that the municipality is relieved thereby. It is further contended, based upon such preliminary contention, that the plaintiff has an adequate remedy at law by virtue of section 3 of such act.

We must bear in mind the rule in the cases cited above in determining what liability would attach to the county at least up to the passage of the Act of 1929. In Fetherolf’s Petition, 84 Pa. Superior Ct. 514, 520, Judge Keller says:

“But by the express provisions of section 10 [he is referring to the Sproul Act and its amendments] the powers granted the State Highway Commissioner under section 8 aforesaid are not to include any authority on his part to interfere with the roads, streets and highways of boroughs. Under the law, the borough council alone has power to ordain and lay out new streets and to change the lines and location of existing streets, except when they form part of a through highway, and then this power is shared concurrently with the Court of Quarter Sessions: McCall v. D., L. & W. R. R. Co., 71 Pa. Superior Ct. 508. This power has not been expressly or impliedly taken away from the borough authorities and lodged in the State Highway Commissioner. On the contrary, it is expressly and particularly preserved to the borough and withheld from the commissioner.

“As section 16 of the Sproul Act applies only to proceedings taken by the State Highway Commissioner, pursuant to section 8, and as section 8 is not applicable to boroughs, it follows that it is not the method for assessing damages for land taken in the laying out or changing the location of a borough’s roads and streets. For land taken pursuant to action of borough council, the borough alone is responsible: McCall v. D., L. & W. R. R. Co., supra, page 517; if the proceeding is taken in the Quarter Sessions, the viewers and the court pass upon the necessity of the change of the road as well as the damages, and the county is entitled to be heard on both aspects of the proceeding before being called upon to pay the damages.

“On full and careful consideration of the case, we are of the opinion that the Act of 1911 and its amendments gave the State Highway Commissioner no power to interfere with the location of streets and roads in the Borough of Orwigsburg so as to authorize his diversion of the road in question from the front of the appellee’s house and the laying out, opening and construction of a new road through his property; and that section 16 in consequence does not furnish the appropriate remedy for the damages he has sustained. As the record shows that the improvement was undertaken with the approval of the borough, which agreed to adopt the lines and grades established by the State Highway Department, it would seem that he has a full and complete remedy against the borough: County of Chester v. Brower, 117 Pa. 647; Freeland v. Pennsylvania R. R. Co., 197 Pa. 529, 541; Lafean v. York County, 20 Pa. Superior Ct. 573; Shobert v. Bloomsburg, 74 Pa. Superior Ct. 246, 249.”

In the case decided by Judge Keller’s opinion, quoted above, the viewers had awarded damages to be paid by the county. On exceptions to the report of viewers, the court dismissed such exceptions and affirmed the award. The county appealed and the decision of the lower court in refusing to sustain the exceptions and dismissing the award was reversed. Does the Act of May 7, 1929, P. L. 1596, in any way change the rule?

We have seen that prior to 1929 the authority of the Secretary of Highways, except in instances wherein the matter before us cannot be classified, ceased at the borough-line and that boroughs which had approved plans, etc., submitted by the Secretary of Highways were answerable to damaged parties. The counties were liable, under the Sproul Act and its amendments, in townships, but not in boroughs. The Act of May 7, 1929, P. L. 1596, provides a method by which counties may, at their option, assist in highway improvements witjhin boroughs in the same manner as they have heretofore assisted in townships, provided the Secretary of Highways shall have performed certain preliminary acts. These preliminary acts are: (1) Determine that a present road in a borough is (a) dangerous, or (b) inconvenient to the traveling public, either by reason of width, grades, dangerous turns or other local conditions, or (c) that the Commonwealth’s expense in construction or maintenance and repair will be too great or unreasonable and could be materially reduced or lessened by a divergence from the existing road; (2) obtain approval of the Governor and the commissioners of the proper county for the establishment of the width or lines of such State highway within a borough; (3) cause a description and plan thereof to be made, acknowledged and recorded in the office of the recorder of deeds. Until these prerequisites have been fully met, the county is no more a party to damage's within the borough than it was prior to the passage of said act.

The Secretary of Highways may have made a determination within the first requisite named above, but we have not been informed as to its nature, and from our personal knowledge of Water Street and the general geography of that portion of Milesburg Borough, we cannot even make an intelligent guess, for there appears to be no good reason for this location of the proposed improvement. We are certain, however, that the county commissioners have not approved this change of location or widening of the street. The Governor approved it, but the commissioners did not, and the act plainly states that it must be approved both by the Governor and the county commissioners. Had the commissioners approved such change of location, the provisions of section 3 would have obligated them to negotiate with abutting property owners as to damages. Even so, the act further provides that when no agreement satisfactory to the county commissioners and said owners is made, the Secretary of Highways may not proceed with the work of construction and improvement unless the commissioners agree that he may do so. We have likewise found as a fact that they have not so agreed.

It further appears that the Secretary of Highways has not complied with section 2 of said act in causing a description and plan to be made, acknowledged by him and recorded in the office of the recorder of deeds.

The record, in its entirety, shows clearly that the County of Centre at no time has indicated its willingness to be bound for damages within Milesburg Borough. Until the County of Centre has so agreed and the Secretary of Highways has complied with the Act of May 7, 1929, P. L. 1596, the rule remains as expressed by Judge Keller in Fetherolf’s Estate, supra. Using Judge Keller’s words in the instant case, “as the record shows that the improvement was undertaken with the approval of the borough, which agreed to adopt the lines and grades established by the State Highway Department [now the Department of Highways], it would seem that he [in this case O. E. Miles, the plaintiff] has a full and complete remedy against the borough,” and that the County of Centre is not liable.

We must, therefore, consider whether plaintiff actually has an adequate remedy at law against the Borough of Milesburg in this case. Being subject to the General Borough Act, approved May 4, 1927, P. L. 519, we conclude that the corporate action taken by such borough on May 22, 1929, whereby it approved, by ordinance, all of the plans of the Department of Highways, which plans include the taking of plaintiff’s land, was taken pursuant to section 1401 of said General Borough Act. By such section the borough is accorded the right of eminent domain in the widening of its streets. The land sought to be taken from plaintiff does not come within the restrictions mentioned in section 1402 of said act. The procedure is proper thus far. Section 1403, however, requires the borough to tender to' the plaintiff a bond to secure payment of damages, and until such bond is accepted by the plaintiff, or, being refused by him, is approved by and filed in court, the borough has no legal right to enter upon plaintiff’s lands. To do so without first complying with section 1403 of the Act of May 4, 1927, P. L. 519, would, beyond question, constitute trespass upon the part of the borough. Will equity restrain such threatened trespass?

No question whatever has arisen in regard to plaintiff’s title to the lands proposed to be taken. They are admittedly his, and in an action of ejectment a verdict would undoubtedly be directed for him. When, upon a bill in equity to restrain a threatened trespass to land, the title of complainant is so clearly shown that in a trial in ejectment a verdict would be directed for him, a preliminary injunction will be continued: Unangst v. Railway Co., 9 North. 105. Further, it has been held that where the fact of long and continuous peaceable possession by the plaintiff is not denied by the defendant, equity will enjoin the defendant’s acts looking to permanent possession of the land until his alleged right in law is established: Coal Co. v. Savage, 4 Dist. R. 557. A trespass of a permanent nature, destructive of the leasehold, will be enjoined: Allison’s Appeal, 77 Pa. 221. Equity will enjoin .such a permanent and continuing trespass as the construction and maintenance of a log slide over another’s land: Proctor v. Campbell, 1 Wilcox, 270, 6 Pa. C. C. Reps. 531. The court will restrain the laying of a pipe-line, without compensation, as an injury for which an action at law would not give a complete remedy: Sterling’s Appeal, 111 Pa. 35. Equity will restrain a railroad company from entering on plaintiff’s land by repeated trespasses and erecting an abutment of a bridge and roadbed thereon: McConahy v. Railroad Co., 31 Pa. Superior Ct. 215. We, therefore, reach the following

Conclusions of law.

1. That the Secretary of Highways does not have authority to change existing lines in boroughs or to widen streets therein until he has fully complied with the provisions of section 1 and section 2 of the Act of May 7, 1929, P. L. 1596.

2. That counties are not responsible in damages to the owner thereof for lands taken within boroughs, in the change of lines or in the widening of streets, unless the commissioners of such counties, jointly with the Governor, have approved the plans submitted by the Secretary of Highways, and then not until the said Secretary of Highways has fully complied with the provisions of section 1 and section 2 of the Act of May 7, 1929, P. L. 1596.

3. That until the county commissioners of the proper county, jointly with the Governor, have approved the plans for the change of lines or the widening of streets within boroughs, and until the said county commissioners have authorized the Secretary of Highways to proceed with the work of construction or improvement, the borough is liable for damages to owners whose lands have been taken in the change of lines or the widening of streets within such borough.

4. That the defendant, the Borough of Milesburg, has failed to comply with the provisions of the Act of May 4, 1927, P. L. 519, providing for the exercise of the right of eminent domain by boroughs in the change of lines or widening of Water Street in said borough.

5. That any taking of plaintiff’s lands by the defendant Borough of Miles-burg without having first complied with said Act of May 4, 1927, P. L. 519, would constitute a continuing trespass on the part of said borough for which plaintiff would have no adequate remedy at law.

6. That equity will enjoin such trespass.

We, therefore, énter the following

Decree nisi.

And now, Sept. 12, 1929, after hearing, it is directed that the injunction heretofore granted against the Borough of Milesburg, Lord Construction Company and Scholl Brothers continue preliminarily for ten days from this date, unless the said Borough of Milesburg shall, within said time, tender to O. E. Miles, plaintiff, a bond as prescribed by section 1493 of the Act of May 4, 1927, P. L. 519, to secure damages, whereupon, if such bond be accepted, or, being rejected by said O. E. Miles, plaintiff, be approved by and filed in court as prescribed by said Act of May 4, 1927, P. L. 519, the said injunction shall be dissolved. Otherwise, by virtue of the default of said Borough of Miles-burg in filing such bond as directed, to forthwith become permanent. Costs, in either instance, to be paid by the Borough of Milesburg, defendant.

From S. D. Gettig. Bellefonte, Pa.


author: MagDade, J.,

text:
    Commonwealth v. Jiminson.

      Louis A. Bloom, Assistant District Attorney, for Commonwealth.

      Elgin E. Weest, for defendant.
    Dec. 4, 1929.
   MagDade, J.,

This defendant, Harry Jiminson, was convicted on June 18, 1929, of failure to support a child born out of lawful wedlock, in accordance with the Acts of Assembly of the Commonwealth of Pennsylvania of July 11, 1917, P. L. 773, and of July 21, 1919, P. L. 1075, an indictment having been presented against him charging that, on Oct. 24, 1921, at the county aforesaid and within the jurisdiction of this court, with force and arms, etc., being the father of a child, Rose D. Jiminson, aged seven years, the child of May Abele (born out of lawful wedlock), and then being within the limits of the said Commonwealth of Pennsylvania, did then and there unlawfully and wilfully neglect and refuse to contribute reasonably to the support and maintenance of the said child, Rose D. Jiminson, and from the said Oct. 24th, in the year aforesaid, until the day of the finding of this indictment, at the county aforesaid and within the jurisdiction of this court, unlawfully has wilfully neglected and refused to contribute reasonably to the support and maintenance of his said child, Rose D. Jiminson.

Whereupon the case having been tried before the court and jury and the defendant being found guilty, the defendant, by his counsel, E. E. Weest, Esq., moved in arrest of judgment based upon a point submitted by the defendant at the time of the trial aforesaid, requesting the court to give binding instructions to the jury to render a verdict of not guilty, which we declined, as well as a motion to set aside the verdict, copies of which motions are as follows:

“And now, June 18th, 1929, the defendant moves the Court to set aside the verdict and discharge the defendant.

“Elgin E. Weest, Attorney.”

“And now, June 18th, 1929, the defendant moves the Court in arrest of judgment and sentence.

“Elgin E. Weest, Attorney.”

Therefore, we had before us the aforesaid motions, whereupon, on Nov. 15, 1929, we made the following order:

“And now, to wit, this Fifteenth day of November, 1929, the Court having directed on November 5, 1929, that counsel for defendant file a brief of law in support of motion to set aside the verdict in above case, which said brief was to be filed in ten days, it now appearing that the transcript of testimony was not furnished counsel until this date, the time for filing said brief of law is extended for ten days from this date.”

The said brief of law having been furnished by the defendant, we are now prepared to proceed to, dispose of the said motions, which we are inclined to grant and discharge the defendant from custody.

The defendant, Harry Jiminson, was first arrested for desertion and nonsupport on a complaint of the said Mae Abele. At the hearing of the said complaint, from the testimony it appeared that the support sought by the said prosecutrix was for an illegitimate child (the paternity of which had never been proven), whereupon the court directed that the case be certified to the Court of Quarter Sessions for indictment of the defendant under the above acts of assembly for failure to support an illegitimate child. Pursuant thereto, the case was so certified and the defendant, Harry Jiminson, on June 5,1929, was indicted for failure to support and maintain an illegitimate child, was tried and convicted on June 18, 1929', before a court (MacDade, J.) and a jury.

Pleadings in the cause were as above stated, including an exception to the ruling of the court in declining to affirm defendant’s point for binding instructions.

The defendant was duly indicted, as directed by the court, under the Act of July 11, 1917, P. L. 773. Sections 1 and 2 of this act being applicable to this case, are as follows:

“Be it enacted, &e., That any parent who shall wilfully neglect or refuse to contribute reasonably to the support and maintenance of a child born out of lawful wedlock shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding five hundred dollars ($500.00) or imprisonment not exceeding six months, or both, with or without hard labor, in the discretion of the court.

“Proceedings under this act may be instituted upon complaint made, under oath or affirmation, by the parent of such child.”

The Act of July 21, 1919, P. L. 1075, however, amends the Act of 1917, supra, so far as section 2 thereof is concerned, and the section now reads as follows:

“Proceedings under this act may be instituted upon complaint made, under oath or affirmation, by the parent of such child. All prosecutions under this act must be brought within two yearns of the birth of the child: Provided, however, that where the reputed father shall have voluntarily contributed to the support of the child, or shall have acknowledged in writing his paternity, then a prosecution under this act may be brought at any time within two years of any such contribution or acknowledgment by the reputed father. All acts and parts of acts inconsistent with this act are hereby repealed.”

The essentialia of the case at bar make necessary a fulfilling of several requirements before a conviction can be sustained herein and must be met by the prosecution, the first of these being that the action must be brought within two years; and the second being that the prosecution not having been brought within two years under the act, it must have been brought within two years from the time when the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity.

The defendant in this case contends that the act complained of, to wit, the birth of the child of Mae Abele, is alleged to have occurred on Oct. 24, 1921, and this action was instituted in June, 1929, or more than two years from the date of the birth of the said child. The defendant further contends that from the date of the birth of the said child until the present time he has never voluntarily contributed to the support of the child nor has he acknowledged in writing its paternity, and that, therefore, his motion in arrest of judgment and to set aside the verdict and discharge the defendant should be sustained.

The defendant in this case did not take the stand, but his position in this case is amply supported by the testimony of the prosecutrix herself.

On pages 3 and 4 of the transcript of the testimony the following questions by Louis A. Bloom, the assistant district attorney, who tried the case, and answers by Mae Abele, the prosecutrix, appear: “Q. What is the date of birth of the child? A. October 24th. Q. How old is the child? A. Seven.”

Again, on page 5 of the transcript of testimony, the prosecutrix, Mae Abele, testified as follows: By Mr. Weest: “Q. How old is the child? A. It is over seven years of age; she will be eight in October.”

In view of the fact that the testimony adduced at the trial on June 18, 1929, definitely established the birth of the child as having occurred on Oct. 24, 1921, there can be no question but that more than two years bad elapsed since the birth of the child when the prosecution herein was commenced; therefore, under the acts of assembly above quoted, unless the prosecution can show that some time less than two years prior to the institution of the action, the alleged father, the defendant here, either voluntarily contributed to the support of the child or acknowledged his paternity in writing, a conviction under this act cannot be sustained.

To substantiate this position of the defendant, the prosecutrix herself in her testimony not only fails to establish any voluntary contributions toward the support of the child or acknowledgment in writing of the paternity by the defendant, but definitely establishes the fact that the defendant never contributed to the support of the child and never acknowledged his paternity; for instance:

The prosecutrix, Mae Abele, in response to questions of Assistant District Attorney Bloom, testified, as shown on page 3 of the transcript of testimony, as follows: “Q. Have you had any conversations with Mr. Jiminson, the defendant in this case, since the child was born relative to support of that child? A. Yes, sir. Q. What did he say to you in those conversations? A. He told me he wouldn’t give five cents to its support. I wrote him a letter. He claims he never got it, but I put a return address on the back of it and he couldn’t say he never got it. As a matter of fact, he did get it. I know that he got it. I sent the letter to him and he must have got it.”

And, again, on page 4: “Q. How old is the child now? A. Seven. Q. How often have you seen Harry Jiminson, the defendant in this case, since the birth of this child? A. Nearly every day. Q. What did he say to you regarding the child? A. He wouldn’t keep her and don’t intend to keep her. Q. Has he ever given you anything for the support of the child? A. No, sir. I had to go to Camden to have the child.”

And, again, under cross-examination by Mr. Weest, the prosecutrix testified as follows (page 5 of the testimony): “Q. How old is the child? A. It is over seven years of age; she will be eight in October. Q. Mr. Jiminson has never contributed or given any money to the support of this child since it was bom? A. No, sir; not 5 cents.”

Again, in response to questions by the court, the prosecutrix testified as follows (page 7 of the testimony): “Q. You have nothing in writing at all excepting you say you have an insurance policy that he took out on you? A. Yes, sir. Q. But nothing for the child? A. No, sir. Q. He has not written you any letters that he is the father of the child? A. I think three or four people he has told it was his child. No, sir. Q. There is no acknowledgment from him at all? A. No, sir.”

Again, in response to questions by Mr. Weest, the prosecutrix testified as follows (page 6 of the testimony): “Q. He has never contributed anything? A. No, sir. Q. Have you any acknowledgment in writing as to the father of your child? A. No, sir; but I have the insurance paper where he had them put — it was in 1923, the child was two years of age. They are insurance papers on me as his wife. Q. Insurance papers on you as his wife? A. Yes, sir. Q. If you are his wife, it is no illegitimate child. Did you marry him? A. No, sir.”

And, again, in response to questions by the court, the prosecutrix testified as follows (page 9 of the transcript of testimony): “Q. This act of assembly says where the reputed father . . . ; did he give you anything? A. No, sir; no present, nothing at all.”

By the Court: “That is your hard luck. You ought to be able to get a dollar. A. I asked him to buy the child a pair of stockings. No, sir, he said he would rot in jail first. Q. Have you any writing to the effect that he is the father of your child? A. Only where the child was bom. Q. Have you any writing from him that he is the father of the child? A. No.”

And, again, the prosecutrix called several witnesses, Henry Miller, Margaret McKnight and Emily O’Brien, none of whom testified to any contributions to the support of the child on the part of the defendant nor of any acknowledgment in writing of his paternity.

As a matter of fact, one of the witnesses of the prosecutrix, Henry Miller, testified that he had talked with the defendant the last week in April and suggested to the defendant he ought to help the prosecutrix out, to which Miller testified the defendant replied (page 12, transcript of testimony): “I wouldn’t give her a cent; I wouldn’t give her a cent if I had to rot in jail.”

The prosecutrix, it appears from the testimony, is now married, although she is not living with her husband (page 8 of transcript of testimony).

All of the cases cited under the Act of 1917, as amended by the Act of 1919, under which this prosecution is brought, consistently hold that, since the passage of the Act of 1919, the prosecution must be brought within two years from the birth of the child, unless the reputed father has contributed to the support of the child or has acknowledged his paternity in writing. Chief among the4se cases are the following: Com. v. Abell, 75 Pa. Superior Ct. 267; Com. v. Morningstar, 82 Pa. Superior Ct. 425; Com. v. McEvans, 92 Pa. Superior Ct. 124.

And, again, there is an interesting opinion by Judge Bonniwell, reported in the case of Com. v. Donovan, 29 Dist. R. 46, in which case the defendant was indicted under the Act of 1917 for failure to support an illegitimate child, the child having been born Sept. 12, 1913, and prosecution begun Nov. 23, 1917, and the defendant having been found guilty, a motion for a new trial was made and the defendant in that case raised the question that the act was in direct conflict with the Act of Limitation, contending that the Act of 1917 is in direct conflict with section 77 of the Penal Code of the Act of March 31, 1860, P. L. 427, which provides: “All indictments which shall hereafter be brought or exhibited for any crime or misdemeanor . . . shall be brought or exhibited within the time and limitation hereafter expressed, and not after; . . . for all misdemeanors, perjury excepted, shall be brought or exhibited within two years next after such felony or misdemeanor shall have been committed,” and is, therefore, unconstitutional. This, of course, was prior to the passage of the Act of 1919, so that after the passage of the Act of 1917 and before the passage of the Act of 1919 there was no limitation in point of time within which a prosecution of this sort might be brought, and this was recognized in the present case by the trial court, where it said (page 8 of the transcript of testimony): “The law says you must institute a suit within two years under the Act of 1919, but prior to that it was a wide-open proposition.”

His Honor, Judge Bonniwell, in Com. v. Donovan, 29 Dist. R. 46, recognized the same point, and in that case said:

“The wisdom of this statutory provision [Act of 1860, providing a two year limitation] is so manifest as to make argument needless. It is essential to the well-being of a community that prosecutions should not be unnecessarily delayed. Such delays do not often take place from worthy motives. Charges are often kept suspended over the head of the accused to subserve the ends of the accuser, and the end sought to be obtained by this particular act is one fraught with the utmost danger to social life and to domestic happiness. It is the experience of the courts that the defendant against whom the charge of fornication and bastardy is laid can only avoid conviction, if innocent, with the utmost difficulty. The tendency of the juries is a marked inclination to conviction in all such cases, and this condition arises not only from the sympathy which is usually felt towards the woman burdened with an illegitimate child, but also from the very nature of the charge, the manifest difficulty of disproving the allegation of the mother of the intercourse which is the basis of the crime.

“If, however, the charge is not to be brought within the statutory period of two years, but the bars are to be thrown down in this extraordinary fashion, so that, as in this case, the period of more than four years has elapsed before a prosecution was instituted, then it would naturally follow that a prosecution might be brought within the period of fifteen years and the utmost injury done to family life, as well as the greatest incentive to blackmail and extortion afforded.

“The act in question is one of those ill-considered, unbalanced legal inventions of short-sighted sociologists, who, with their minds concerned solely in the correction of isolated cases of merit that might be remedied through the means of this act, are oblivious to the disastrous consequences that its general application would cause throughout the State of Pennsylvania.

“The cunning subterfuge involved in the act, whereby the charge of intercourse is waived and the bastardy charge avoided in order to make it appear that this is a social amelioration act, illustrates only the adroitness of the prime movers in procuring the passage of so improper a piece of legislation, and does not in any way fortify its soundness.

“I am of the opinion that the act is in direct conflict with the act of limitations, and, therefore, null and void, in so far as it relates to any prosecution not commenced within the statutory period of two years from the commission of the act of intercourse that resulted in the birth of the child.”

It was probably such observations as were made by the trial court (MacDade, J.) in the instant case and as were made by his Honor, Judge Bonniwell, which led to the passage by the Legislature of the Act of 1919, limiting the time when prosecutions might be brought to within two years from the commission of the act. As in the present case upwards of eight years have elapsed between the birth of the child and the institution of the proceedings without voluntary contributions to the support of the child or acknowledgment in writing of the paternity of the child on the part of the reputed father in the meanwhile, and absolute refusals to contribute to the support of the child were repeatedly and consistently made by the reputed father, a conviction under these acts cannot be sustained.

Order.

And now, Dec. 4,1929, the above matter coming on to be heard by the court in banc upon a motion in arrest of judgment of the sentence upon a verdict of “Guilty,” after due consideration thereof, it is ordered and decreed that the above motion of the defendant in arrest of judgment be and is hereby sustained, the verdict be and is hereby set aside, and the defendant, Harry Jiminson, be and is hereby discharged from custody.

From William R. Toal, Media, Pa.


author: Patterson, P. J.,

text:
    Shoemaker v. Hamilton.

      Robert W. Smith, for plaintiff; John Woodcock, for defendant.
    Dec. 4, 1929.
   Patterson, P. J.,

— This is a motion for a new trial. The plaintiff, Dr. F. R. Shoemaker, a practicing physician of Hollidaysburg, Blair County, Pennsylvania, recovered a verdict amounting to $241.80 against the defendant for professional services rendered to the father of the defendant on an alleged promise of defendant to pay for said service.

Counsel for defendant argues that the remarks of the attorney for plaintiff were prejudicial to defendant and that a new trial should be granted for this reason. However, an examination of the record fails to disclose any statement of remarks complained of. It was not denied that the plaintiff rendered service to the father of the defendant over a long period of time. This service included approximately ninety visits to the father’s home and many visits by the father to the doctor’s office. Neither is it denied that the Charges were fair and reasonable.

The plaintiff testified positively that the defendant, in the presence of the father, promised to pay for the service and that a number of statements of the account were forwarded by plaintiff to the office of the defendant in New York City, and that on one occasion the defendant paid to the plaintiff $50 on account. The defendant denied the promise to pay and also denied having paid any sum on account of said bill. However, probably the most convincing corroboration of the plaintiff’s testimony resulted from the testimony of the defendant himself, when he was asked, upon cross-examination, the following question: “You have your own steamers? A. No, and I heard you say a number of things so the jury could hear that are not true. I have supported my father for years. I looked after him very tenderly. I gave him a beautiful home and paid all his expenses.” This testimony undoubtedly had great weight with the jury in support of plaintiff’s claim. The testimony showed that the father was indigent and entirely dependent upon the defendant for the necessaries of life.

The Supreme Court has said, in the case of Bair v. Robinson, 108 Pa. 247: “It is impossible to characterize as decent the refusal of a daughter, who has the means so to do, to remove from her household and dispose of in a proper manner, the dead body of her mother. A mother must not only be housed, fed and clothed when in health, have proper medical attendance and nursing when sick, but must also, if only for the welfare of the remainder of the family, be buried out of sight when dead. Common decency as well as health and comfort require this. We conclude, then, if it so be that Mrs. Robinson contracted with the plaintiff, she, in the absence of ability on part of her husband so to do, must pay the reasonable expenses of that burial.”

Decree. — Now, therefore, the motion for a new trial is denied and judgment for the amount of the verdict is hereby directed to be entered in favor of the plaintiff and against the defendant.


author: Landis, P. J.,

text:
    Mount Joy Paper Box Company v. Kerin.

      Daniel B. Strickler, for rule.

      George T. Hambright and John E. Malone, contra.
    Jan. 18, 1930.
   Landis, P. J.,

— The present suit was commenced before an alderman of the City of Lancaster on April 8, 1929. On May 14, 1929, the plaintiff filed its statement, in which it claimed $53.50 damages to its truck by reason of a collision on the public highway running between Lancaster and Harrisburg, and this statement was on the same day served on the defendant’s attorney of record.

On Nov. 4, 1929, the defendant filed an affidavit of defense, in which he alleged that the collision between the plaintiff’s truck and his automobile was not caused by any negligence on his (the defendant’s) part. In addition, he filed a counter-claim, in which he alleged that it was attributable to the negligence of the plaintiff and that he (the. defendant) sustained damages to his automobile to the amount of $192.46.

The reason given by the plaintiff for the striking off of the defendant’s affidavit of defense and counter-claim is that it was filed more than fifteen days after service of the statement without leave of court.

Section 12 of the Practice Act of May 14, 1915, P. L. 483, directs that, in actions of trespass, “the defendant shall file an affidavit of defense to the statement of claim within fifteen days from the day when the statement was served upon him.” Section 13 provides that, “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 Gross v. Dickinson, 4 D. & C. 505, Judge Lewis, of Philadelphia, decided that, “under the Practice Act of May 14, 1915, P. L. 483, after the lapse of fifteen days from the service of the statement of claim, no affidavit of defense can be filed without leave of court first obtained for cause shown.” I think the reasoning in this case fully sustains the position taken. A similar question is very fully discussed by Judge Stewart, of Northampton County, in Bilheimer v. Herman, 1 D. & C. 581. Section 9 of Rule 25 (page 27) of the Rules of the Court of Common Pleas of this county makes a similar provision. In the present case, as the affidavit of defense was filed after the fifteen days and without leave of court, it must be stricken off.

Section 14 of the Practice Act declares that, “in actions of assumpsit, a defendant may set off or set up by way of counter-claim against the claim of the plaintiff any right or claim for which an action of assumpsit would lie.” However, actions in trespass are not included within this provision. In Ranck v. New Holland Borough, 38 Lane. Law Rev. 564, this court decided that “a set-off or counter-claim cannot be set up in an action of trespass, although the claims of the plaintiff and of the defendant both arise out of the same transaction,” and that there is no warrant for such a proceeding under the Act of 1915. See, also, Quick v. Swanson, 1 D. & C. 608; Kramer v. Keller, 13 Berks Co. L. J. 258; Brown v. Syostek, 2 D. & C. 431; Shrum v. Carcase, 2 D. & C: 686.

This was the law when this action was brought and when the statement of claim was duly served. By the Act of April 4, 1929', P. L. 140, section 13 of the Act of 1915 was amended by adding: “The defendant in such actions may, by affidavit of defense, in addition to denying negligence on his own part, allege negligence on the part of the plaintiff and set up against the plaintiff in the manner by this act prescribed a claim for damages arising out of the same general circumstances upon which the plaintiff’s claim is based, and both claims shall in the said cause be tried as one action.” The time for the filing of the affidavit of defense has not, however, been changed by the amendment, and if the defendant could not, after fifteen days from the service of the statement, file an affidavit of defense, he certainly could not, without leave of court, file a counter-claim.

I am, therefore, of the opinion that the objection raised by the plaintiff is well taken and that the rule should be made absolute and the affidavit of defense and counter-claim be stricken off.

Rule made absolute. From George Ross Eshleman, Lancaster, Pa.

NOTE. — See following case.


text:
    Groff v. Cushmore.

      Charles W. Edby, for motion.

      George T. Hambright and John E. Malone, contra.
    Jan. 18, 1930.
   Landis, P. J.,

— On Dec. 1, 1928, the plaintiff brought this suit against the defendant, and on July 23, 1929, he filed his statement of claim. It was served on defendant’s attorney the same day. On Oct. 11,1929, the defendant, without leave of court, filed an affidavit of defense, to which was attached a counter-claim. Thereupon the plaintiff moved to strike off the counter-claim, first, because a separate suit had prior thereto been brought upon it; and, second, because the counter-claim was filed in a suit brought before the passage of the Act of April 4,1929, P. L. 140.

In the case of Mount Joy Paper Box Co., Inc., v. Kerin, May Term, 1929, No. 91, supra, in which we have at some length discussed the right to file affidavits of defense under the Act of May 14, 1915, P. L. 483, we have decided that an affidavit of defense in an action of trespass could not be filed after fifteen days from the time of service without leave of court, and for that reason we struck off the affidavit of defense and the counter-claim. The same reason applies with like effect in this case. The defendant, having allowed the fifteen days to pass, had no right to file an affidavit of defense and counterclaim without leave of court, even if the objection that the suit had been brought prior to the passage of the Act of 1929 was not sustained. We must, therefore, strike them off.

It may, however, be argued that the plaintiff’s objections do not rest upon the ground that the affidavit of defense was filed too late. This, however, we think, makes no difference if the pleadings are incorrect. Section 21 of the Aet of 1915 provides that “the court, upon motion, may strike from the record a pleading which does not conform to the provisions of this act and may allow an amendment or a new pleading to be filed upon such terms as it may direct.”

As, then, the affidavit of defense and counter-claim were thus filed, as above stated, we strike them off. Much loose practice has arisen on the subject of pleadings in this court, and it is quite time that it be corrected.

Motion sustained and affidavit of defense and counter-claim stricken off.

From George Ross Eshleman, Lancaster, Pa.

NOTE. — See preceding case.


author: "Kun, J.,

text:
    Forgang v. Philadelphia et al.

      J. Singer, for plaintiff.

      Augustus Trask Ashton, City Solicitor, and Israel K. Levy, Assistant City Solicitor, for defendant; Albert Smith Fought, for additional defendant.
    March 31, 1930.
   "Kun, J.,

— The suit in the above case was filed against the original defendant, City of Philadelphia, on March 24, 1927. During its pendency, the Act of April 10, 1929', P. L. 479, was passed. The constitutionality of the act was promptly challenged and was sustained on Nov. 25, 1929, in the case of Vinnacombe v. Philadelphia, 297 Pa. 564. The large number of cases which appeared on the trial list in the month or two following this decision in which the original defendants desired to bring in additional defendants under the act were continued to give them an opportunity to do so. The City of Philadelphia is defendant in perhaps thousands of such suits in which the possible liability over of others had to be investigated and considered.

The City in the instant case caused a scire facias to be issued under the act on Peb. 17, 1930, bringing in the additional defendant, Magdalena Seiberlieh. We cannot say under all the facts and circumstances that the original defendant failed to act promptly in bringing the additional defendant into the case.

A more important point is raised by the additional defendant in her contention that, in connection with the writ of scire facias against her, no sworn statement of the original defendant’s claim over against her was filed, and to require her to file an answer under oath, as the writ does, the court would, it is contended, for the first time in its history, “countenance the extraordinary system of justice of requiring a defendant to purge himself by affidavit of misconduct which no one by any sworn statement whatever has charged against him.”

If by the scire facias proceedings in these cases merely an additional defendant were added, chargeable with the basic cause of action in the case, it might be said that the sworn statement of claim filed as to the original defendant applied with equal force to the additional defendant. However, it was clearly pointed out in the Vinnacombe case that under the act “the issues raised by the scire facias and the proceedings following it are between the two classes of defendants only and are in form and effect in assumpsit, whether the original proceedings are in assumpsit or in trespass.”

In a word, the proceeding is simply an action over by the original defendant against the additional defendant, which, under the act seeking to avoid a multiplicity of suits, may be made a part of the original suit, but the appendage is a matter between the original defendant and the additional defendant in which the plaintiff is in no wise concerned. It would seem, therefore, that there is some point in the additional defendant’s contention that if there is some claim over against her by the original defendant to which she can be required to file an answer under oath, the claim against her ought to be made under oath.

Since, however, the Supreme Court in the Vinnacombe case for the guidance of litigants and trial courts presumably set forth all the procedural requirements under the act and omitted any reference to any supposed necessity on the part of the original defendant to file with the praecipe for scire facias any sworn statement of his claim over against the additional defendant, and provided merely that with the copy of the writ a copy of the original statement of claim should be served on the additional defendant, we are constrained to read the opinion as excluding the necessity of filing any such aifidavit by the original defendant.

The questions of law raised in the affidavit of defense of the additional defendant are, therefore, resolved in favor of the original defendant, the City of Philadelphia.