author: MacNeille, J.,

text:
    Franklinville B. & L. Association v. Silberman et ux.

      Building associations — Appropriation of stock to mortgage debt — Bight of subsequent owner of stock.

    1. Where a borrower from a building association assigns shares of stock as collateral by an assignment which recites that “all money heretofore paid or hereafter to be paid into said association upon said shares shall be taken and considered as being appropriated as payments on and in liquidation of said loan,” a subsequent assignee of the stock has no standing to object to the application of the stock on account of the loan in. foreclosure proceedings on the mortgage secured thereby.
    2. under the terms of such assignment, the appropriation of the stock to the debt being expressly made, the association has no option in the matter, and the real owner of the property may compel it to credit the value of the stock on the mortgage debt.
    Rules to intervene and to open judgment. C. P. No. 3, Phila. Co., Dec. T., 1927, No. 17195.

      Gable, Vaughn & Gaul, for plaintiff.

      Bosen & Polish, for Darby Bank and Trust Company, petitioner.

      L. Weinrott, for Morris Karseh, assignee.
    June 25, 1928.
   MacNeille, J.,

The plaintiff obtained judgment on a bond and warrant of attorney accompanying a mortgage, dated Dec. 10, 1924, for $20,000, conditioned for the payment of $10,000. On Feb. 15, 1928, damages were assessed at $10,929.54, and on Feb. 23, 1928, fi. fa. issued, followed on April 9, 1928, by vend. ex. exit, returnable the first Monday of May, 1928.

On April 19, 1928, a rule was granted on Franklinville Building and Loan Association, the plaintiff, on behalf of the Darby Bank and Trust Company, a corporation, to show cause why it should not be allowed to intervene and make defense to the said judgment to the extent of the surrender value of certain shares of stock of the Franklinville Building and Loan Association.

The petition sets forth, and the answer does not deny, that the Darby Bank and Trust Company is the real owner of the mortgaged property by reason of sheriff’s deed of Dee. 29, 1926, subject to the Franklinville Building and Loan Association mortgage of $10,000; that, after having so secured title, the Darby Bank and Trust Company deeded the premises on Oct. 1, 1927, to Isaac Lieberson, subject to said mortgage; that thereafter, on April 2, 1928, Darby Bank and Trust Company repurchased this property at sheriff’s sale, subject to this same mortgage.

The Darby Bank and Trust Company now holds title, subject to the building association mortgage, and the question is, shall the plaintiff (Franklinville Building and Loan Association) collect the face of the mortgage or shall it give credit in the assessment of damages for the payments made on certain shares of its stock?

The mortgage was created Dec. 10, 1924, by the defendants in this suit, Leon Silberman and Sarah Silberman, who took title at that time as tenants by entireties, and thus created this mortgage. 'These defendants then pledged to the building association, as collateral security, the 150 shares of the association’s stock, under a contract and assignment containing a direction to appropriate the monthly payments thereon. For this purpose, a form of assignment as collateral security was used, differing from the form commonly used in the following respects:

In the first paragraph it sets out:

“Whereas, Leon Silberman and Sarah, his wife, having obtained a loan of $10,000 upon one hundred and fifty shares of (-series) the capital stock of Franklinville Building, Loan and Land Association, and being desirous of assigning said one hundred and fifty shares of said stock to said association as collateral security and of designating and appropriating the payments which have been made or which may be made upon said stock;” and

Secondly, in the next paragraph it sets forth an express direction as follows:

“That all the money heretofore paid or hereafter to be paid by us unto said association upon said shares of stock shall be taken and considered as being appropriated as payments on and in liquidation of said loan of $10,000 upon said shares of stock.” . . .

This was the condition of the affairs when, on Dec. 29, 1926, the Darby Bank and Trust Company took title from the sheriff. Thereafter, on June 17, 1927, the defendants Silberman undertook to assign the stock in question to Morris Karsch.

Clearly, the parties entered into a contract appropriating all payments on said stock to be credited on account of the mortgage. Just as clearly, then, it is the duty of the plaintiff in this suit so to treat all the payments on these shares of stock of the association. This course cannot be altered by the mere fact that the defendants Silberman, after the date of Dec. 29, 1926 (the date of the sheriff’s sale, whereby the Darby Bank and Trust Company took title), attempted by an assignment to preclude the appropriation. The stock was out of the reach of the defendants, due to the express appropriation at a prior date.

Stockholders in building associations fall into two classes — borrowers and non-borrowers. A borrower ordinarily makes an assignment of his shares of stock as collateral security for the loan. This is done generally without any appropriation of the monthly payments on account of the loan or debt. Under such circumstances, it remains in the power of the building and loan association to apply the payments on account of the loan or to treat them as contributions to the stock. But where, as in the instant case, there is a contract entered into in the assignment of the shares as collateral, which contract appropriates payments on account of the loan, then the building association is as much bound by the terms of this contract as is the borrower or stockholder, and the appropriation contracted to be made must be made. This principle is very fully discussed in York v. Gallatin, 186 Pa. 150, which has been followed in Erthal v. Glueck, 10 Pa. Superior Ct. 402, and in Bier v. Keer, 70 Pa. Superior Ct. 570.

In the case of York v. Gallatin, the wording was singularly like that in the assignment in the instant case, and it was held that these words “operated as an express appropriation of, and not as a direction to appropriate, payments on stock to the extinguishment of the loan.” This line of decisions has been followed in the lower courts. While it is true that the Supreme Court has said that there may develop circumstances under which it will not generally follow York v. Gallatin, it has said nothing to indicate that, under facts as they are in this case, it would indulge in any variance from that decision.

In the case of Broad and Erie Building and Loan Ass’n v. Steward, 4 D. & C. 341, Martin, P. J., of Court of Common Pleas No. 5 of Philadelphia County, decided as late as March 14, 1924, that this line of decisions should be followed under an assignment containing practically the same words as the one we are here considering.

Under these circumstances, Morris Karsch’s petition to intervene should be dismissed, and the rule to open judgment and to permit the Darby Bank and Trust Company to defend should be made absolute.

And now, to wit, June 25, 1928, the rule to intervene taken by Morris Karsch is discharged.

And now, to wit, June 25, 1928, the rule to open judgment to the extent of the amount paid in upon the shares of stock, taken by the Darby Bank and Trust Company, Incorporated, is made absolute.


source: Caselaw Access Project

author: Schaeffer, P. J.,

license: Public Domain

text:
    Deposits for Opening of Ballot-Boxes, City of Reading.

      Elections — Petitions to recount vote — Deposit—Fraud or substantial error —Return of money deposited — Act of April 23, 1927.

    1. The Act of April 23, 1927, P. L. 360, provides that each petition for the opening' of ballot-boxes and the recount of the vote shall be accompanied by a deposit of $50. The act provides that such deposits shall be repaid to the petitioner if the court shall certify to the prothonotary that fraud or substantial error was committed in the computation of the vote cast on the ballots in the several boxes or fraud in the marking of the ballots contained therein or otherwise in, connection with such ballots.
    2. With regard to the precincts that showed no error and in which the recount agreed exactly with the return, the court declared the deposits forfeited.
    3. With regard to the precincts where the recount showed error in the original return ranging from one to seventy-five votes, the court certified fraud or substantial error in the returns and directed the deposits to be returned to the petitioner, the election having been close, the apparent plurality of the original return showing a difference of sixty-three votes and the plurality changing from one candidate to the other as the ballot-boxes were opened. Under such conditions, any error in the return for any precinct must be regarded as substantial.
    Petition to open ballot-boxes. C. P. Berks Co., Nov. T., 1927, Nos. 189 to 246.

      George Eves, for Kershner; Harry W. Lee, for Hoverter.
    Dec. 21, 1927.
   Schaeffer, P. J.,

The returns by the several election boards of the City of Reading for the general election held on Nov. 8, 1927, showed that for the office of City Treasurer Mr. Hoverter had received an apparent plurality of sixty-three votes over the Democratic candidate, Mr. Kershner, and a few more over Mr. Reider, the Republican candidate. Thereupon, but before the computation and canvassing of the returns had been completed by the return judges, petitions under the Act of April 23, 1927, P. L. 360, were from time to time presented to the court, praying for the opening of ballot-boxes and the recount of the vote. In this manner the ballot-boxes of all of the fifty-eight election precincts of the city were opened and the votes recounted by persons, representing the three political parties, who had been designated by the court for that purpose, with the result that Hoverter’s apparent plurality diminished and then turned into a small apparent plurality for Kershner. As the recount progressed, the plurality either way was often less than ten votes. After fifty-five boxes had been opened and recounted, Kershner had an apparent lead of one vote over Hoverter, and Hoverter but a few hundred over Reider. The fifty-sixth box, being that which contained the ballots cast in the 1st precinct of the 17th Ward, upon recount, showed that Hoverter had there been credited by the election board with seventy-three more votes than he had actually received. The remaining two boxes increased Kershner’s plurality to eighty-six.

In accordance with the provisions of the act, each petition was accompanied by a deposit of $50. It now becomes our duty to certify to the prothonotary whether or not “fraud or substantial error was committed in the computation of the vote cast on the ballots” in the several boxes, or “fraud in the marking of the ballots contained therein, or otherwise, in connection with such ballots.” Section 3 of the act declares that where the existence of fraud or substantial error is found and thus certified, the prothonotary shall return to the petitioners the sum of $50 deposited; and seotion 4 provides that in cases where it shall not appear that fraud or substantial error was committed, the persons upon whose petition the ballot-box shall have been opened shall forfeit to the county said sum of $50.

In two precincts, to wit, the 1st of the 7th Ward and the 1st of the 13th Ward, no error of any kind appeared. The recount agreed exactly with the return. Hence, the deposits accompanying the petitions in those cases must be declared forfeited.

In the remaining fifty-six precincts, the error in the return varied from one vote in seven precincts to seventy-five votes in the 1st precinct of the 17th Ward. In thirteen returns the error amounted to ten or more votes. In seven precincts, the difference was but one; in five, it was two; in six, it was three; in seven, it was four; and in the remaining fifteen, from five to nine.

Whether an error in a return must be regarded as substantial or not, it would seem, would be dependent upon the circumstances. An error of ten votes in the return of one precinct of a municipality which gave an apparent majority of 50,000 votes and upwards could not be held to be real and substantial. In the face of such majority, such error could have no appreciable effect upon the general result. But where, as in our case, the three candidates for an office receive almost the same number of votes, and where the plurality of the highest is less than a hundred over Ms nearest competitor, and where, as the recount progresses, that plurality hovers, until the third to last box is opened, around zero, any error may well be substantial. During this recount the apparent plurality shifted from time to time between Hover-ter and Kershner, and each single vote became of real and substantial importance. In view of this fact, notwithstanding that the great error in the 1st precinct of the 17th Ward was> decisive, we must hold that substantial error has appeared in the return of each precinct, excepting only the 1st precincts of the 7th and 13th Wards.

And now, to wit, Dec. 21, 1927, the court hereby certifies unto Nelson L. Rothermel, prothonotary, that upon opening the ballot-boxes of the 1st precinct of the 7th Ward and the 1st precinct of the 18th Ward and recounting the votes upon the ballots therein contained, no fraud or substantial error within the meaning of the act of assembly appeared; and the sum of $50 deposited with the prothonotary at the time of filing the petitions praying for the opening of said ballot-boxes is declared forfeited, and said sums are directed to be paid to the county treasurer. And the court hereby certifies that fraud or substantial error within the meaning of the act of assembly does appear from the recount of the ballots contained in the ballot-boxes of the remaining fifty-six precincts of the City of Reading; and the sums of $50 deposited by the respective petitioners in said other fifty-six precincts are hereby directed to be returned to said petitioners.

From Charles K. Derr, Reading, Pa.


author: Prather, P. J.

text:
    City of Meadville v. Zoria.

      Municipalities — Road law — Fixing width of street — Act of April 27, 1928 —Discrimination—City of third class.

    1. Neither under the Act of April 27, 1923, P. L. 107, nor under the general police powers has a city of the third class the power to enact that buildings may be constructed on one side of a street for its whole length to within four feet of its line, and direct that all buildings on the other side between certain designated cross streets be built back seventeen feet from the line.
    2. Such discrimination is not justified by the fact that at the time the ordinance was enacted the physical conditions as to building-lines already adopted by property owners invited such discrimination.
    3. An ordinance must not be unreasonable, oppressive, or inconsistent in its discrimination.
    ■White’s Appeal, 287 Pa. 259, followed.
    Bill in equity for injunction. C. P. Crawford Co., Sept. T., 1926, No. 1.

      Dickson Andreios, for plaintiff; L. J. & S. A. Culbertson, for defendant.
   Prather, P. J.

This case came on for final hearing upon bill and answer and the presentation of testimony.

The pertinent facts are not in dispute, hence they are incorporated in our • general discussion.

Meadville is a city of the third class. On Oct. 6, 1925, said city passed an ordinance for the purpose of “maintaining uniform building-lines on the east and west sides of Chancery Lane,” a public thoroughfare in said municipality.

As the name implies, this thoroughfare was originally considered a lane or alley, perhaps due to the fact that its roadway, exclusive of Sidewalks, does not exceed fifteen feet in width. Chancery Lane begins at the north with North Street and extends southwestwardly beyond Chestnut Street.

The ordinance under consideration provides: “That from and after the passage of this ordinance, no building, or any part or any projection of any building, shall be established, erected, placed and maintained nearer to the street-line of Chancery Lane than the following, with the limits as stated: From North Street south to Walnut Street, on the west side, seventeen feet; from Walnut Street south to Chestnut Street, on the west side, four feet; from North Street south to Chestnut Street, bn the east side, four feet.”

Defendant is the owner of a lot at the corner of Chancery Lane and North Street, fronting to the north on said street fifty feet, and extending along the west side of said lane southwestwardly forty-nine feet. This lot on North Street is located in a solidly built-up business section, there being but two dwelling-houses in a distance of two city squares.

At the time of the enactment of said ordinance there were no vacant lots on either side of Chancery Lane from North Street to Chestnut Street; from North Street to Walnut Street there were no buildings on the west side of said lane nearer than seventeen feet; from Walnut Street to Chestnut Street, two squares on the west side, and from North to Chestnut, three squares on the east side, some buildings stood on either side of said lane as near the lines as four feet.

It is apparent that the ordinance, as to the four-foot limitation, on the one hand, and as to the seventeen-foot limitation, on the other hand, sought to accommodate its regulations to the building-lines already established by property owners, as evidenced by the buildings already constructed. Since the frontage of properties on said lane was entirely occupied by buildings prior to the enactment of this ordinance, it follows that the only property adversely affected by its restrictions is the corner lot at North Street and Chancery Lane, the property pf defendant.

After the enactment of said ordinance, defendant constructed a garage on said lot on the west side of Chancery Lane, which occupied the ground up to within five feet of the west line of said lane. The prayer of the bill is for a decree directing its removal. The controversy centres upon the validity of said ordinance.

The authority of cities of the third class to legislate upon this question is granted by the Act of April 27, 1923, P. L. 107. It provides: “Cities of the third class are hereby authorized and empowered, by suitable ordinance, to establish and maintain uniform building-lines upon any or all public streets, roads, highways, lanes and alleys of said cities.”

There can be no doubt concerning the authority of the City of Meadville under its general police power, “by suitable ordinance, to establish and maintain uniform building-lines upon” Chancery Lane, providing the exercise of such power promotes public welfare or safety or health within the statutory authorization: White’s Appeal, 85 Pa. Superior Ct. 502.

The City of Meadville must find its power to regulate building-lines in some statute. The statute cited confers upon it power “to establish and maintain uniform building-lines upon streets, highways, lanes and alleys.” Does this ordinance attempt to establish “uniform” building-lines, when it permits buildings to be constructed on the east side of this lane to within four feet of its line, and requires all buildings on the west side, between North and Walnut Streets, and immediately opposite, to be set back seventeen feet, and at the same time, beginning at Walnut Street on the west side, extending to Chestnut Street, moves this line east from the seventeen-foot line to four feet from the said lane? This is the absence of uniformity.

Why should the business block on Chancery and North, immediately east and opposite defendant’s property, be allowed to build within four feet of Chancery Lane line and the defendant be moved back seventeen feet? If the answer is, the city adopted these discriminating prohibitions and regulations in its ordinance because at the time of its enactment the physical conditions as to building-lines already adopted by property owners invited such discrimination, then we must reply that such answer does not set forth a legal justification.

If uniformity is argued from the fact that the building-line on the east side is fixed at four feet throughout its entire course, what happens to this argument when we parallel it with the fact that on the opposite side the building-line jogs thirteen feet in passing from one square to another?

For illustration, suppose that fire, flood or earthquake should destroy all the buildings on Chancery Lane within this zone, and the owners had come upon the ground to rebuild. Under this ordinance, the owner of the block at the east side of Chancery Lane, fronting on North Street, could rebuild to within four feet of the line of the lane, while the block owner opposite, the defendant in this case, must donate seventeen feet of his land to the public by setting back this distance.

An ordinance must not be inconsistent in its discrimination: Bryan v. City of Chester, 212 Pa. 262; it must not be unreasonable and oppressive: Kneedler v. Norristown Borough, 100 Pa. 368.

In White’s Appeal, supra,, where the building-line was to be determined by the distance from the street that 80 per cent, of the buildings had been located, the ordinance was unreasonable and invalid in this particular for want of uniformity.

Our Superior Court, in Junge’s Appeal, No. 2, in an opinion filed March 3, 1927 [89 Pa. Superior Ct. 548], referring to White’s Appeal, said: “It was held that the clause was arbitrary and unreasonable, and not a valid exercise of the police power, in that the regulation created no uniform standard for buildings of the same class throughout the district, but varied from block to block in the same district, and on opposite sides of the same street in such district, according to the front-line which happened to have been established by a percentage of the buildings in that block.”

How, then, can a city justify a discrimination by ordinance in building-lines on opposite sides of the street and in adjacent blocks, which is as radically irregular as the one adopted by property owners in the White case?

The language of the Superior Court in White’s Appeal, 85 Pa. Superior Ct. 502, 507, is appropriate to the facts in our present case: “Why should appellants not build as near the street-line as the lot owner at the corner of Friendship Avenue? Why not exercise the right enjoyed by those on the opposite side of the street, who, we were told at the argument, had built to the street-line? In Mahon v. Coal Co., 274 Pa. 489, the Chief Justice said: ‘Of course, the cure must always bear a substantial relation to the existing evil, and must not constitute a mere attack on property rights, disguised as an exercise of the police powers.’ In considering the same case (260 U. S. 393, at page 415), Mr. Justice Holmes said: ‘The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking. ... We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. As we already have said, this is a question of degree, and, therefore, cannot be disposed of by general propositions.’ ”

In White’s Appeal, the same case in the Supreme Court, 287 Pa. 259, 266, the Supreme Court, recognizing the power of cities to determine building-lines and discussing its limitations, said: “There is one matter that is quite certain, the power to thus regulate does not extend to an arbitrary, unnecessary or unreasonable intermeddling with the private ownership of property, even though such acts be labeled for the preservation of health, safety and general welfare. The exercise must have a substantial relation to the public good within the spheres held proper. It must not be from an arbitrary desire to resist the natural operation of economic laws or for purely sesthetic considerations. . . . While such regulations may not physically take the property, they do so regulate its use as to deprive the owner of a substantial right therein without compensation. ‘We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change:’ Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 416.”

In concluding that the provisions of the ordinance then under discussion, regulating building-lines, were invalid, the same court continued: “The application and consequence of this ordinance is a gross discrimination, in that it does not bear alike on all persons living within the same territory. Regulations which do not operate on all alike cannot be justified under the police power. Here it affects property differently on adjoining blocks, or within the same block or on opposite sides of the street.”

The facts and ordinance in our case are so similar to the facts and ordinance in the White case that we are compelled to reach the same conclusion. The authorities seem abundantly clear that a municipality may not, under the guise of an exercise of police power, appropriate or confiscate a substantial part (in this case more than one-third of a corner lot on a business street) without compensating the owner. To affirm such a proposition merely because the result to be attained is desirable is to affirm it to the extent of appropriating the entire property without compensation, if the desirability is not satisfied with a shorter limitation.

The city council, co-operating with the planning commission, is to be commended for the zeal exhibited to beautify the city wherever it may provide uniform building-lines. But the patent lack of uniformity, growing out of an attempted accommodation to building-lines already established by the property owners, renders this ordinance oppressive, discriminatory, and, hence, invalid, when applied to the property of defendant. It follows that the bill should be dismissed, at the cost of plaintiff.

Now, April 4, 1927, a decree nisi is hereby entered dismissing plaintiff’s bill, at the cost of the City of Meadville, which decree shall become final unless exceptions be filed thereto sec. reg.

J. Perry Eckels, Meadville, Pa.


author: Groff, J.,

text:
    Acme Fertilizer and Plant Food Company v. Weaver.

      Limited partnership — Misnomer—Pleas—Demurrer—Affidavit of defense —Practice Act of May H, 1915.

    1. Only questions of law heretofore raised by demurrer can be raised by the affidavit provided for in section 20 of the Practice Act of March 14, 1915, P. L. 487.
    2. A misnomer or the non-existence .of the plaintiff as a limited partnership, as averred in the statement, is a question that would have been raised by a plea in abatement at common law or specially in bar, and such questions should now be raised by the regular affidavit of defense, as provided in sections 3 and 12 of the Practice Act of 1915.
    Affidavit of defense raising question of law. C. P. Lancaster Co., March ., 1926, No. 42.

      Charles W. Eaby, for plaintiff; H. Frank Eshleman, for defendant.
    March 31, 1928.
   Groff, J.,

This is an action in assumpsit between the Acme Feltilizer and Plant Pood Company as the plaintiff and S. R. Weaver as the defendant.

The plaintiff in his statement of claim sets out in a concise and summary form the material facts on which he relies for his claim. He has his statement divided into paragraphs, numbered consecutively, each of which contains but one material allegation, and has attached thereto a copy of the book entries upon which he rests his right to recover. ,

This statement was served on the defendant, and instead of filing the ordinary affidavit of defense, and without answering the averments of fact in the statement of claim, he raises the question of law, as he is authorized to do under section 20 of the Practice Act of May 14, 1915, P. L. 483, in which he alleges that “the plaintiff’s statement does not set forth a legal ground of action, and no ground of action appears on said statement, for the reason that the alleged plaintiff sets forth that it is a limited partnership doing business in Lancaster County, and does not set forth anywhere that a limited partnership has been formed, inasmuch as no such limited partnership can exist under the laws of the Commonwealth without the recording of the said articles as provided by Act of June 7, 1907, § 1, P. L. 432; . . . and, further, that until the actual plaintiff is set forth and the legal status of the same properly declared, the defendant is subject to be called upon twice for the same claim, and his rights of set-off and counter-claim are in jeopardy. . . . And that no such record of the .Acme Fertilizer and Plant Food Company nor limited partner of any similar title appears therein” (meaning the records in the Recorder’s Office of Lancaster County). “Allegation of record is an indispensable averment.”

In other words, the defense set up in the affidavit of defense is that the plaintiff cannot recover because it has no legal existence under the name in which it brought suit.

Now, is this such a defect in the pleadings as would justify the court in deciding the question of law so raised against the plaintiff?

Section 3 of the Practice Act provides: “Pleas in abatement, pleas of the general issue, payment, payment with leave, set-off, the bar of the statute of limitations and all other pleas are abolished. Defenses heretofore raised by these pleas shall be made in the affidavit of defense.”

Section 4. Demurrers are abolished. Questions of law heretofore raised by demurrer shall be raised in the affidavit of defense, as provided in section 20.

It is, therefore, clear, under section 4 of the Practice Act, that only questions of law that were heretofore raised by demurrer shall be raised in affidavits of defense, as provided in section 20 of the Practice Act.

Is the objection raised here by the defendant such a plea .as is referred to in section 3, or such a legal objection as referred to in section 4 of the Practice Act? We believe that the affidavit of defense in this case, if it were pleaded at common law, would be a plea in abatement and not a question to be raised by demurrer.

“Misnomer of a corporation as well as of a natural person must be pleaded in abatement:” Northumberland County Bank v. Eyer, 60 Pa. 436.

But the defense that there never existed such a partnership as that named as plaintiff would go to the right of action altogether, and would, therefore, be pleaded in abatement or specially in bar: Rheem v. Naugatuck Wheel Co., 33 Pa. 358-363; Freeland v. Pennsylvania Central Insur. Co., 94 Pa. 504.

Under section 3 of the Practice Act of 1915, it would make no difference whether, under the common law practice, this was a plea in abatement or a special plea in bar, because any plea that was used at common law shall be raised in the affidavit of defense — meaning the general affidavit of.defense referred to in section 12 of the Practice Act of 1915, and not in an affidavit of defense raising the question of law referred to in section 20 of the Practice Act of 1915.

We, therefore, in view of the foregoing cases and after due consideration of the Practice Act of 1915, decide the question of law against the defendant, and direct him to file a supplemental affidavit of defense to the averments of fact in the statement contained within fifteen days.

From George Ross Eshleman, Lancaster, Pa.


author: Koch, J.,

text:
    Knoblauch v. Bankes.

      Ejectment — Writ—Service—Parties—Act of March 21, 1806.

      1. In an action of ejectment, the land sued for must, under the Act of March 21, 1806, 4 Sm. Laws, 332, be described in the writ, and the sheriff is obliged to serve all persons whom he finds in possession of the premises, irrespective of whether or not they are named as defendants in the writ.
    2. In an action of ejectment, it is necessary for the plaintiff to show that defendant was in actual possession at the time of the service of the writ of ejectment, or the plaintiff will be defeated; the writ is prima facie evidence of such possession.
    3. In the absence of a return of the writ, verified by the oath of the sheriff, it is necessary to' prove that the defendant was in possession, even though there be an appearance and plea by counsel.
    4. The land must be well enough described, either by the writ or proof, to enable the sheriff to deliver it.
    5. Where, in an action of ejectment, a map showing a survey by an engineer who swears to its correctness is put in evidence, it is error to decline to submit the case to the jury on the sole ground that plaintiff had failed to put his writ in evidence.
    6. In ejectment, after trial and verdict, a record may be amended so that the pleadings shall conform exactly with what was tried.

      Ejectment — Boundaries—Laying out line — Estoppel—Evidence.
    7. Where owners of adjoining lands have staked out a line between their properties and each has improved his own property according to the line so laid down, each is estopped from making any claim upon the ground occupied by the other, although the line may have been established by mistake or through ignorance.
    8. Where one advises and encourages another to enter upon, invest his money in, or expend his labor on land with the assurance that he will thereby acquire title to it, such a one will not be permitted afterwards to call in question such title, even though he acted in ignorance of his own right.
    Motion in arrest of judgment and for a new trial. C. P. Schuylkill Co., May T., 1926, No. 578.

      V. J. Dalton and E. J. Smith, for plaintiff.

      J. W. Moyer and George W. Ryon, for defendant.
    Dec. 19, 1927.
   Koch, J.,

This action was brought to recover possession of a strip of ground about six feet wide, situate on the southern side of Worman Street, in the City of Pottsville. The defendant’s house covers the northern end of the strip for a distance of 44 feet and 3 inches. The strip varies in width and is 89 feet 6 inches long.

All the testimony in the case had been received and was closed at noon on the third day of the trial. When the court reconvened at 1.30 P. M. of that day, counsel for the defendant moved for the direction of a verdict in her favor, “on the ground that the plaintiff had proven by his own agent and witness, Henry Knoblauch, on cross-examination, that ever since he bought the lots in question from John O. McMenamin, he has been and now is in full and undisturbed possession of the same, and also has failed to show that Mrs. Bankes, the defendant, ever was, or now is, in possession of the same or any part thereof, or in possession of the land described in the writ.” After hearing a brief argument of counsel on both sides, we granted the motion and directed a verdict in the defendant’s favor on the second ground stated in the defendant’s motion, because the plaintiff had not put his writ in evidence. When we had charged the jury so far as to clearly indicate why they should render their verdict in the defendant’s favor, plaintiff’s counsel interrupted the charging of the jury in order to offer the writ in evidence, but the defendant objected to the offer and it was refused.

Under the circumstances, the request was properly refused after all the testimony had closed and the court had recessed and the witnesses had not been directed to appear again in court. We allowed the plaintiff an exception to our ruling, but we see no sufficient reason for changing that ruling now.

Were we wrong in directing a verdict for the defendant?

The action of ejectment is regulated, in part at.least, by statutory law. The form of the writ is specifically provided for by the 12th section of the Act of March 21, 1806, 4 Sm. Laws, 332. The land sued for must be described in the writ, and the sheriff is obliged to serve all persons whom he finds in possession of the premises, irrespective of whether or not they are named as defendants in the writ. “And the return by the sheriff of having served any such writ on the defendants, marked served by him, shall be evidence of such defendant or defendants being in actual possession of the premises or part thereof:” Act of April 13, 1807, 4 Sm. Laws, 476. Section 12 of the Act of March 21, 1806, 4 Sm. Laws, 332, made it the duty of the plaintiff in ejectment “to file in the office of the prothonotary ... on or before the first day of the term to which the process issued is returnable, a description of the land, together with the number of acres which he claims and declares that the title is in him.” And the defendant was required to enter his defense and thereupon issue was to be joined. But section 1 of the Act of June 12, 1919, P. L. 478, provides that: “In all actions of ejectment hereafter to be brought, the plaintiff shall file a declaration, which shall consist of a concise statement of his cause of action, with an abstract of title under which he claims the land in dispute, and, in addition to the plea of ‘not guilty’ now required by law, the defendant shall file an answer in the nature of a special plea, in which he shall set forth his grounds of defense, with an abstract of the title by which he claims; and no action of ejectment shall be considered at issue until the plaintiff’s statement and the defendant’s plea and answer shall be filed; nor shall any evidence be received, on the trial of said action, of any matter not appearing in the pleadings, subject to the power of amendment. The several courts of this Commonwealth shall have the power, by general rule or special order, to fix the time within which the defendant shall file his abstract of title,” etc.

In an action of ejectment, it is necessary for the plaintiff to show that the defendant was in actual possession at the time of the service of the writ in ejectment, or the plaintiff will be defeated: Cooper v. Smith, 9 S. & R. 26. And-the writ is prima facie evidence of such possession: Dietrick v. Mateer, 10 S. & R. 151; Gratz v. Benner, 13 S. & R. 110. In the absence of such a return verified by the oath of the sheriff, it is necessary to prove that the defendant was in possession, even though there be an appearance and plea by counsel: McIntire v. Wing, 113 Pa. 67; Kraemer v. Voneida, 24 Pa. Superior Ct. 347. Therefore, the writ is not the only evidence of possession. Verdicts in ejectment are generally “for the premises described in the writ,” and in such cases the writ must be offered in evidence for the purpose of a verdict, where all the land sued for is recovered. But, if the description in the writ is too vague and uncertain, a general verdict will also be too vague and uncertain to sustain a judgment. The land must be well enough described to enable the sheriff to deliver it: Hunt v. McFarland, 38 Pa. 69. “Whenever a verdict in ejectment is sufficiently certain to enable a court to give judgment and the sheriff to deliver possession, it will be sustained; and its certainty may be in the verdict itself or by reference to something of a permanent and public nature:” Hagey v. Detweiler, 35 Pa. 409. “In ejectment, a verdict must be certain in its description of the premises referred to; if it be a part of a tract of land, it must describe it by reference to something of a permanent and public nature, such as a landmark upon the ground, a recorded deed, or a diagram filed of record with the verdict:” O’Keson v. Silverthom, 7 W. & S. 246. These doctrines were followéd in Smith v. Brotherline, 62 Pa. 461, 471. But in Green v. Watrous, 17 S. & R. 393, a verdict for the plaintiff for a 412-acre tract, deducting 100 acres described in an agreement specified in the verdict, was held sufficiently certain. In Brautegan v. Wilson, 251 Pa. 306, an action was brought for the recovery of a strip of ground claimed by the plaintiff and occupied by the buildings of the defendant. The verdict was for three-fourths of an inch of land at the front on Donner Avenue, running at right angles with disputed land a distance of 100 feet, and was sustained. The verdict was based on the testimony of two engineers. In the case before us, the map showing the survey of the property in dispute, as testified to by Engineer George H. Steidle, would enable a jury to frame an intelligent verdict without the aid of the writ, and, because of that fact, it was error to decline to submit the case to the jury on the sole ground that the plaintiff had failed to put his writ in evidence. Besides, after trial and verdict, a record may be amended so that the pleadings will conform exactly with what was tried: Act of March 14, 1872, P. L. 25; Parks v. Boynton, 98 Pa. 370; Harris v. Pittsburgh & Lake Erie Ry. Co., 11 Pa. Superior Ct. 6.

But the defendant was, nevertheless, entitled to a direction in her favor on the first ground stated in the motion, because of the evidence which was given in the case on the part of the plaintiff himself. Both parties claim title from the same common source, to wit, the Pottsville Land and Improvement Company, a corporation. On Sept. 30, 1909, the said company conveyed to John O. McMenamin a lot of ground then in the Borough of Potts-ville, now City of Pottsville, situate on the south side of Worman Street, “beginning at a point on the northeast corner of lot No. 7, sold to Mrs. William Bankes; thence south along the line dividing lots Nos. 7 and 6 to the Schuylkill River; thence eastwardly at right angles to the said dividing-line and along the said river 50 feet; thence northwardly parallel with the line dividing this lot from the Bankes lot to Worman Street; thence west-wardly along Worman Street 50 feet to the place of beginning; containing in front on Worman Street 50 feet and in depth to the Schuylkill River, being the western ten feet of lot No. 4 and the whole of lots Nos. 5 and 6 on the plan of lots surveyed for” said company by William Pugh.

On Feb. 5, 1924, McMenamin conveyed to the plaintiff in this case thirty feet of said ground, the same being described as follows: “Beginning at a point on the northeast corner of lot No. 7, sold to Mrs. Elizabeth Bankes; thence south along the line dividing lots Nos. 7 and 6 to the Schuylkill River; thence eastwardly at right angles to said dividing-line and along said river 30 feet; thence northwardly parallel with the line dividing lot No. 6 from the Bankes lot to Worman Street; thence westwardly along Worman Street 30 feet to the place of beginning; containing in front on Worman Street 30 feet and in depth to the Schuylkill River, being the western ten feet of lot No. 5 and the whole of lot No. 6.”

On Nov. 11, 1910, the said company conveyed to Mrs. Elizabeth Bankes two lots in said borough, bounded on the north by Worman Street, on the east by lot of John 0. McMenamin, south by the Schuylkill River and on the west by land of H. L. Miller; containing in front on Worman Street each lot 20 feet, making 40 feet all together and in depth to the river, being two lots Nos. 7 and 8 on the plan of lots surveyed for said company by A. B. Cochran and Son, Engineers.

When Clayton Knoblauch bought from McMenamin in 1924, Henry Knob-lauch, the plaintiff’s father, looked after the buying of it for him, but the plaintiff had seen the property before he bought it and had looked it over. As he did so, he saw the improvements that Mrs. Bankes had made on her property, to wit, a dwelling-house and garage, and saw also the fences; and, after acquiring the property, the plaintiff rebuilt the fence between the house and garage of Mrs. Bankes. Henry Knoblauch testified that he had bought one-half of the McMenamin property for his son Clayton and one-half for his son Charles, thirty feet for each, but, after he purchased it, he and Mrs. Bankes measured the ground from fence to fence and could not get the sixty feet then; got only fifty-four or fifty-five feet from fence to fence. McMena-min had bought ten feet more before selling to the Knoblauchs, ■ After Henry Knoblauch and Mrs. Bankes measured the lots, Knoblauch said to her that there was something wrong, and that he was going to have the lots surveyed. He did so and the survey resulted in this action of ejectment, in which the plaintiff claims that the defendant set her house and her garage over on the ground that McMenamin had owned before making a sale of the lots to Clayton Knoblauch and Charles Knoblauch. At the' time of the survey, Mrs. Bankes claimed that her line was right. In fact, the plaintiff thought that he had the width of his lots until Mrs. Bankes began to build a bungalow on another lot that she owned. Henry Knoblauch testified that in January, 1924, as agent for the plaintiff, he went with McMenamin over the ground that he wanted to buy and that he saw the fences there', one on .each side, and he saw the Bankes’s house. In back of it was the old fence, running back to the garage that stood where cribbing now is, which was put there by Knob-lauch himself, and back of the rear end of the fence was the garage of Mrs. Bankes. The garage was standing there when the land was bought by Knoblauch, and also the fence running back to the river. When Knoblauch saw the fences, the house and the garage, he made no inquiry as to whether they were on the line or not, but thought the fences were on the line, and, believing that the fences were on the line, he bought the property as it was there. Said deeds call for sixty feet, but he made no measurements to find whether there were sixty, feet there or not at that time. We will here make quotations from his testimony.

“Q. You bought that field there, then, as you saw it fenced off? A. Fenced off, yes. Q. And you were told by the seller, McMenamin, you say, that there were sixty feet? A. Sixty feet. Q. You had no conversation with Mrs. Bankes at all, before you bought, about the lines of the property? A. No, not before I bought, I had no conversation with Mrs. Bankes.” Before buying, he did not ask Mrs. Bankes whether the fence was on her line or either east or west of it. McMenamin had just told him he had three lots, sixty feet of ground, and that it was fenced in, and Knoblauch bought the lots as they were fenced there. “Q. And you got the lots that were fenced off and have them in possession? A. I have what was fenced in, yes. Q. Just got exactly what was bought and Mrs. Bankes has no part of that; she has no title to any part of the lots that you bought from McMenamin within the fences, has she? A. Not according to the engineers. Q. I am not asking according to that? A. Give me the question again. (Question read.) A. Not within the fences; mine is all in between the fences. Q. You bought those fenced lots; the fences were not very good, but still they were visible on the ground there, and that ground you have now in possession, or your two sons, is that not so? A. Yes; that is, in between the fences.” He had two sons and had been their agent or overseer in the purchases from McMenamin. He made no measurements until about a year after he bought the ground, and then it was only when Mrs. Bankes started to build a bungalow that he found he had only about fifty-four feet by measuring at right angles across the lots. He measured eastwardly from lot No. 7 to lot No. 4.

Mrs. Bankes built her house on lot No. 7 in 1910. It has a frontage of eighteen feet, and when it was staked out, John McMenamin was present and also a Mr. Hock, of the Land and Improvement Company, from whom she had bought the ground, and she says that she had bought it on Aug. 6, 1908. This was before McMenamin bought his. She had bought lots Nos. 7 and 8 and McMenamin bought east of her. According to her story, McMena-min bought fifty feet and later ten feet more. McMenamin even worked on the foundation of her house and built the fence, and there never was any dispute with him whatever about the ground. McMenamin built his house in 1909. He left a three-foot alley, and Mrs. Bankes built near the line as it was surveyed; she stayed six inches away from the line as it was staked because McMenamin told her not to crowd the line, and McMenamin put the fence up according to the surveyor’s stakes. The surveyor told him that he was over on her ground when he put up the new fences, which had become dilapidated by the time Knoblauch bought. It was right on the line where she built her garage, and he built a stone wall at the side of her garage, under it, to prop it up. He also built a cribbing about two and one-half feet high where the fence had been. Cribbings are now substantially where the McMenamin fences stood and where the engineer’s stakes were on Knob-lauch's ground. She had forty feet in her two lots.

John McMenamin was called on behalf of the defendant and testified that he bought the property in 1909; that he got a surveyor; that he had the stakes put on the line and left a three and one-half foot alley between his foundation and the Bankes’s line. He built his house in 1909 and moved into it in December of that year. Then he bought the other half of lot No. 4, so that he had three lots or sixty feet in front. He also built a fence from the Bankes’s house in front and another back of it, and her house was about six inches from the line in front and about eight inches from the line in back, clear of the line on her own side. He testified that the stakes were set by George H. Steidle, the present plaintiff’s surveyor. When he put up the fence, he put the posts on his side of the line, but right to the line. He also built a fence along the Schuylkill and in front of his lot. He lived there from December, 1909, until he sold to the plaintiff in 1924, and he never had any difficulty or any claim on Mrs. Bankes, nor did she make any on him. The alley that was there between him and Mrs. Bankes was his own, and he had a gate on it for his own uSe. Henry Knoblauch came to see him and he said he would not sell unless he could sell the whole place. He told Knoblauch that he owned three twenty-foot lots, Nos. 4, 5 and 6, but Knoblauch said it did not look like sixty feet to him. Knoblauch examined the house and everything was satisfactory. Knoblauch saw the fences and everything. Saw the fences in the rear and on the east and the west. MeMenamin told Knoblauch that the place had been surveyed by the borough engineer. He did not say whether the fences were on the lines or not. Knoblauch was there several times about it. MeMenamin had two deeds; one was for lots Nos. 6 and 5 and half of No. 4, and the other was for half of lot No. 4, which he thinks he bought in January, 1910. The lots are numbered from east to west, from one to eight. Mrs. Bankes had her lots before he got his. He told Mrs. Bankes not to crowd the line when she built her house, because he did not want the water running from her roof and porch on to his side. He helped to dig the cellar and helped put up the foundation of concrete, and that was six inches west of the line that Steidle had given him as the line of his lots. “My stakes were there and the Bankes’s house was built west of the line of stakes.” The garage is substantially on the line.

Under such a state of facts, Knoblauch has no right of recovery. MeMena-min and Mrs. Bankes having staked out a line between their properties, and each having put improvements on their respective properties according to the line so laid down, are mutually estopped from making any claim upon the ground occupied by the other, although the line may have been established by mistake or through ignorance of the parties. Where one advises and encourages another to enter upon, invest his money in, or expend his labor on land with the assurance that he will thereby acquire title to it, such a one will not be permitted afterwards to call in question such title, even though he acted in ignorance of his own right: Woodward v. Tudor, 81* Pa. 382; Putnam v. Tyler, 117 Pa. 570, 586; Thompson's Appeal, 126 Pa. 367, 373; Schuey v. Schaeffer, 130 Pa. 16, 22; Marshal v. Foltz, 221 Pa. 570, 676. See, also, Com. v. Moltz, 10 Pa. 527, and Millingar v. Sorg, 55 Pa. 215.

It, therefore, appears that while we may have erred in granting the motion on the second ground stated by the defendant at the time of the trial, the defendant, nevertheless, was entitled to a verdict on the first ground stated by her counsel, so that no error was made in directing a verdict.

The motion in arrest of judgment and for a new trial is overruled, and the prothonotary is directed to enter judgment in favor of the defendant upon payment of the jury fee. From M. M. Burke, Shenandoah, Pa.


author: Niles, P. J.,

text:
    Singley v. Glatfelter.

      Pleading — Trespass—Leave to file affidavit of defense more than fifteen days after service of statement.

    The defendant, in an action of trespass, was granted leave to file an affidavit of defense after disposition by the court of a motion to strike off plaintiff's statement, two rules for a more specific statement, the amendment of the plaintiffs statement, and after the case was placed on the trial list and continued at the instance of the defendant.
    Petition for leave to file an affidavit of defense.. C. P. York Co., April T., 1927, No. 104.

      James J. Logan and A. J. Hershey, for plaintiff.

      Harvey A. Gross, for defendant and petition.
    Feb. 27, 1928.
   Niles, P. J.,

In this action of trespass a summons was issued Feb. 25, 1927, and served upon the defendant, Ida A. Glatfelter, March 2, 1927. March 17, 1927, plaintiff’s statement of claim was filed and a copy served on the defendant, together with notice requiring her to file an affidavit of defense within fifteen days. No affidavit of defense was filed as required by this notice, but March 31, 1927, within the fifteen days, Ray P. Sherwood, Esq., as attorney for defendant, filed a motion to strike off plaintiff’s statement on account of specified formal defects. June 6, 1927, the court, Hon. McClean Stock, Judge, refused the motion to strike off plaintiff’s statement, with the suggestion of the propriety of a rule for more specific statement. June 20, 1927, on motion of Mr. Sherwood, attorney for defendant, a rule was entered on plaintiff to file a more specific statement. Sept. 6, 1927, plaintiff filed an amended statement, and the same day the rule of June 20th was dismissed. Sept. 21, 1927, within the fifteen days from the service of the notice to file affidavit of defense to the last-amended statement, another rule issued, on motion of Mr. Sherwood, for a more specific statement. Oct. 24, 1927, this last rule for more spécific statement was discharged by the court, Hon. McClean Stock, Judge. The case was on the trial list for the week of Feb. 6, 1928, and on petition of the defendant, alleging the absence of a material witness, the case was continued, at the cost of the defendant. On the same day, Feb. 6, 1928, Harvey A. Gross, Esq., then attorney for defendant, offered to file an affidavit of defense, and a rule was granted to show cause why this should not be allowed. Feb. 13, 1928, defendant’s petition for allowance to file the affidavit of defense was presented. Feb. 20, 1928, an answer was filed by plaintiff’s attorneys, J. J. Logan and A. J. Hershey, Esqs.

The various steps referred to in the record now bring before the court the question as to whether, under all the circumstances, the affidavit of defense presented Feb. 6, 1928, should be allowed to be filed and considered as a part of the pleadings upon which the case is to go to trial.

On behalf of the plaintiff, a construction of the Practice Act is urged to the effect that the fifteen days allowed by the notice served with the statement is the extreme limit allowed for denial by a defendant in an action of trespass of the averments of the statement regarding 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. It is urged that fifteen days having expired without the filing of an affidavit of defense, a certain status is established and the essential facts admitted, which may not be disturbed because the right to deny them has been thereby waived by the defendant.

We are not; convinced that this extreme position should be adopted.

' Counsel for plaintiff urge further, however, that even if an affidavit of defense may be filed after the lapse of fifteen days, it cannot be so filed without leave of court first obtained for cause shown; and that no sufficient cause is shown in this case, but, on the contrary, there does appear sufficient probability of hardship or disadvantages to the plaintiff to require refusal.

It is urged in plaintiff’s answer and argument that in preparing for the trial she relied upon the presumed admission of the agency of the driver of the car, arising from the failure to file an affidavit of defense denying the averments of plaintiff’s statement in that particular, and other conduct of the defendant, and that she and her counsel have been led to believe that there would be no contest regarding those matters, and are met with greater difficulties in the investigation and preparation of evidence on account of the lapse of time.

The case as now presented does not satisfy the court that the filing at this time of this proposed affidavit of defense will be of such prejudice or disadvantage to the plaintiff as would warrant refusal, the effect of which might be to prevent admission of evidence to establish the real facts before the jury. This ruling is in harmony with that in a similar case in this court of O’Brien v. Hostetter, 41 York Leg. Record, 161.

And now, to wit, Feb. 27, 1928, the rule granted Feb. 6, 1928, to show cause why an affidavit of defense should not be filed is made absolute, and the affidavit of defense offered Feb. 6, 1928, is allowed to be filed and an exception granted to the plaintiff.

From Richard E. Cochran, York, Pa.


author: Reno, P. J.,

text:
    Tyler v. Tyler.

      Divorce — Conviction of crime — Larceny■—■Transportation of stolen automobile from one state to another■ — Acts of March 9, 1908, and May 1, 1909— Act of Congress of Oct. 29, 1919.

    1. A conviction under the Act of Congress of Oct. 29, 1919, ch. 89, §§ 1-5, 41 TJ. S. Stat. at Li. 324, for transporting a motor-vehicle in interstate commerce knowing it to have been stolen, followed by sentence and imprisonment thereon for four years, is not larceny within the meaning of the Act of March 9, 1903, P. L. 19, as amended by the Act of May 1, 1909, P. L. 374, which makes larceny and imprisonment therefor for more than two years a ground for divorce.
    2. In such a ease, it cannot be successfully argued that one who transports an automobile in interstate commerce, knowing it to have been stolen, is guilty of receiving stolen goods, and that such an offender is an accessory after the fact of larceny, and that the Pennsylvania statutes provide for a divorce when one is convicted as an accessory to a larceny.
    3. Receiving stolen goods and participating in larceny as an accessory after the fact are two separate and distinct criminal offenses and are not equivalent to each other.
    Libel in divorce. C. P. Lehigh Co., Sept. T., 1926, No. 98.

      Robert L. Schiffert, for libellant.
    Dec. 5, 1927.
   Reno, P. J.,

The Act of March 9, 1903, P. L. 19, as amended by the Act of May 1, 1909, P. L. 374, provides the following as a cause of divorce: “When either of the parties shall have been, either within or without this State, convicted as principal or as accessory, either before or after the fact, of the crime of . . . larceny . . . and be sentenced by a competent court having jurisdiction to imprisonment for any term exceeding two years.”

In the United States District Court for the Central Division of the District of Utah, respondent entered a plea of guilty to an indictment charging that respondent “did then and there knowingly, wilfully, unlawfully and feloni-ously transport and cause to be transported in interstate commerce, within the meaning and intent of the National Motor Vehicle Theft Act, a certain motor-vehicle not then and there the property of the said Theodore Tyler and Charles Lancaster, or either of them, to wit, what is commonly called a Hudson ' Speedster Model, Motor No. 101670, which said motor-vehicle was then and therev transported in interstate commerce as aforesaid by the said Theodore Tyler and said Charles Lancaster, by means of said motor-vehicle’s own locomotion, from the City of Portland, in the State and District of Oregon, to the town of Wanship, in the State and Central Division of the District of Utah, and within the jurisdiction of this court, the said Theodore Tyler and the said Charles Lancaster then and there knowing that the said motor-vehicle so transported as aforesaid did not belong to the said Theodore Tyler and Charles Lancaster, or either of them, and that said motor-vehicle had been theretofore and on or about the 24th day of October, A. D. 1922, stolen from the true owner thereof, to wit, Horace Rosenberg, of Portland, Oregon.”

Respondent was sentenced to imprisonment in the United States Penitentiary for a period of four years.

The Act of Congress under which he was indicted and sentenced is, in part, as follows: “Whoever shall transport or cause to be transported in foreign or interstate commerce a motor-vehicle, knowing the same to have been stolen, shall b.e punished by a fine of not more than $5000 or by imprisonment of not more than five years, or both:” Act of Congress of Oct. 29, 1919, ch. 89, §§ 1-5; 41 U. S. Stat. 324; 18 U. S. C. A., § 408.

The libel charges that respondent was convicted and sentenced for the crime of larceny. But he was not; he was convicted and sentenced for transporting a car from one state to another, knowing it to have been stolen.

The gist of the offense consists in transporting a stolen automobile from one state to another. The crime is not complete until it is carried from one state into another, but it is complete when so carried, whether or not it was actually stolen by the offender. This, of course, is not larceny within the meaning of our statute, and the conclusion must be that respondent was not convicted of, and sentenced for, larceny.

It is beyond the legislative competence of Congress to define and punish crimes except as to matters within the powers conferred by the Constitution: Keller v. United States, 213 U. S. 138, 29 Sup. Ct. Repr. 470. Thus, Congress may, because of its power to regulate interstate commerce, prohibit the transportation from one state to another of an automobile knowing it to be stolen (Brooks v. United States, 267 U. S. 432, 45 Sup. Ct. Repr. 345), but it may not define as a crime the act of taking and carrying away the personal property of another unless the transportation bears some relation to a power conferred upon Congress by the Constitution. It follows that a conviction under the Act of Congress cannot be held to be a conviction of larceny, even though the act is entitled “the National Motor Vehicle Theft Act.”

The libellant recognizes the force of this and argues that one who transports an automobile in interstate commerce knowing it to be stolen is guilty of receiving stolen goods, and that such an offender is an accessory after the fact of larceny, and that the statute provides for a divorce when one is convicted as an accessory to larceny. The answer to this contention may be briefly summarized: First, the libel does not charge that respondent was convicted as an accessory; second, respondent was not convicted or sentenced as an accessory; third, receiving stolen goods and participating in larceny as an accessory after the fact are two separate and distinct criminal offenses and are not equivalent to each other: Com. v. O’Neill, 10 Dist. R. 227; cf. Com. v. Light, 10 Pa. Superior Ct. 66; fourth, if guilty as an accessory, respondent was guilty as accessory to the violation of the Act of Congress prohibiting the transportation in interstate commerce of a stolen automobile, which, as already shown, is not the crime of larceny within the purview of the Act of 1903, supra.

Now, Dec. 5, 1927, the divorce is refused and the libel is dismissed.

Prom Edwin L. Kohler, Allentown, Pa.


author: Alessandroni, J.,

text:
    Commonwealth v. Benjamin et al.

      Summary conviction — Disorderly conduct — Holding Communist meeting in violation of police orders — Constitutional law — Bight of assembly — Police power.

    1. An appeal from a summary conviction for breach of the peace and disorderly conduct -will be dismissed where defendants, who were adherents to communistic principles, arranged for a public meeting of unemployed persons in defiance of orders from the police department, which had reasonable grounds to believe disorder would result therefrom; sent out notices of the meeting calling on all persons to “demand work or government maintenance” and “to protest against the brutal indifference of the city and State authorities;” and refused at the meeting to disperse, and used violent language in denouncing the police and the government.
    2. The constitutional right to assemble in a peaceable manner does not give the right to assemble for a purpose that may precipitate a riot or to exploit the ideas of those who would destroy the Constitution if they could. ' .
    3. The police may adopt all reasonable and necessary means for the preservation of rights of persons and property from unlawful violence and disorder.
    Appeal from summary conviction. Q. S. Phila. Co., filed Feb. 17, 1928.

      David Wallerstein, for appellants.

      John H. Maurer, Assistant District Attorney, and H. Eugene Heine, Assistant City Solicitor, for Commonwealth.
    July 16, 1928.
   Alessandroni, J.,

This is an appeal from a summary conviction before Magistrate Violet H. Fahnestock by each of the sixteen defendants who were fined $10 and costs after the magistrate had found them guilty of breach of the peace, Sunday violation and disorderly conduct. Upon the entry of bail and allowance of their separate petitions, an appeal was allowed.

Upon hearing de novo, the court has before it the following undisputed facts:

A few days before Sunday, Feb. 12th, George Evans, one of the defendants, known to William B. Mills, Superintendent of Police of the City of Philadelphia, to have very strong Communist leanings, if not an avowed Communist, called at his office and stated that he, Evans, was going to hold a meeting to protest on the part of the unemployed against certain actions on the part of city officials and to demand from City Council money for their sustenance and support. Evans was told that a meeting of this kind at this time would only bring there a number of unemployed under false pretences and would attract the usual radical Communist followers to affairs of that kind, and was further told that he would have an answer as to whether or not the meeting would be permitted. After Superintendent Mills conferred with the Director of Public Safety, it was decided, in the interest of law and order and of the prevention of a possible breach of the peace, not to permit the meeting to take place. Instructions were accordingly issued to the police in the district where the meeting was to be held to notify the owners of the hall and others interested that the meeting would not be permitted. Evans then caused the following printed circular to be delivered to the office of the Superintendent of Police: “Unemployed Organize. Demand Work or Government Maintenance. Mass Meeting to Protest Against the Brutal Indifference of the City and State Authorities. Sunday, February 12th, 1928, 2 P. M. Machinists Temple, 13th & Spring Garden Sts. Speakers: Ben Thomas, Geo. D. Evans, Herbert Benjamin and Others. Unemployed Men and Women come in masses to this meeting. Organize your forces for effective action to secure consideration of your needs and immediate adequate relief. Admission Free: Auspices: Philadelphia Council of Unemployed.”

The circular had the following notation on the hack: “2nd Month, 8th, 1928. Supt. Wm. B. Mills. Dear Sir: Arrangements have been made for holding the Mass Meeting announced on the back hereof. Very Truly, Geo. D. Evans, Secy. Phila. Council of Unemployed. Resi. 7723 N. 16th St., Phila.”

After the receipt of this circular, Evans, accompanied by his attorney, David Wallerstein, Esq., called on Superintendent Mills, who explained to them that the police would prevent the meeting. Evans replied that the meeting would be held. On Sunday, Feb. 12, 1928, Corporal Fagan informed Lieutenant John J. Cary that a meeting was to be held at No. 521 York Avenue, and that a crowd was gathering, about 3.30 o’clock in the afternoon. Lieutenant Cary, accompanied by two officers, went to that address, where he met Evans. He informed Evans that he understood there was going to be a meeting and told him, as he did not have a permit to hold it, they would not permit it, to which Evans replied: “I am going to hold it.” There were then about fifteen men upstairs. Evans, raising the second-story window and calling to the people who had gathered outside to come in and not to pay attention to the police, shouted: “The mayor of the. city is only a whelp, and the •President of the United States. . . .” Here he was stopped by Cary. Cary then proceeded to disperse the meeting and placed some of the men under arrest. A couple of hundred people had gathered outside and the streets were blocked with automobiles. Superintendent Mills, recalled, testified that from information he had received, he anticipated that if the meeting was not held at Machinists’ Temple they would go to the Communist headquarters, No. 521 York Avenue, and accordingly gave orders to the police in that district to prevent any uprising there. From this it would appear that those interested in holding this meeting, particularly Evans, brought their meeting to York Avenue to circumvent the police. Sergeant Harry A. Connoughton, acting upon orders from Lieutenant Cary, went to No. 521 York Avenue, where he interviewed Herbert Benjamin, one of the defendants, described as the president. While there he was informed by another defendant, Jennie Cooper, the secretary, that he was misinformed, that no meeting was to take place at No. 521 York Avenue, but at Machinists’ Institute, 13th and Spring Garden Streets. After having reported this to his superior officer, he was directed once more to report to the place of the meeting, where he found about three or four hundred people gathered and acting in a disorderly manner. “They were shouting and talking like a person in an excited mood; and their attitude in general concerning the Mayor and the Police Department in interfering with their meeting.” That he and other officers went upstairs to the meeting-room to pacify the people, “talked nice to them and had no trouble whatever, but they seemed to insist upon being arrested.” That they said, “Lock us up; you cannot put us out.” That all of those arrested seemed to be in the same attitude; they all wanted to be arrested. That speeches were made from the window calling to the crowd about the police interfering; that the Mayor and the police in general were against their cause. Corporal Fagan testified that he arrived at the place of the meeting about 1.30 P. M., with instructions not to allow any meeting to take place. There was no one there at that time. In a short time a number of people began to gather, among whom was the defendant, Jennie Cooper, who stated they were going to have a meeting there. She said: “They just cleaned out Machinists’ Hall and we are going to have this meeting in spite of Superintendent Mills and his police, or anyone else.” She was told they could not have a meeting there. Meantime, Evans and Benjamin arrived, and instructed Michael Tuolor, another defendant, to proceed with the meeting. He also instructed the people not to move out of the place, that the police had no power to be there and that they would hold a meeting in spite of them. Tuolor proceeded to take off his hat and coat and started to denounce the police. After that, Tuolor lifted up the window and made a speech exhorting the workers to come in and have their rights; every one to come to the hall arid defy the police. As the witness went upstairs to stop Tuolor, Benjamin and Evans joined in the speech-making, “denouncing” the President and the Mayor; talking about “the Mayor down-trodding them.” Meantime, another one had reached the window to make another speech. About this time the streets were blocked, automobiles could not pass, automobile horns were blowing and the people outside were being exhorted to come in and defy the police. Officer Hagan, who arrived shortly after 3 o’clock, testified that there were about 700 people outside the building at about 3.17 P. M. Officer Schwenck, testifying generally in corroboration of the other police witnesses, stated that the people were “hollering and creating a crowd,” and that he arrested the defendant, Israel Lazar, after he warned him against trying to force his way through the crowd into the meeting. Officer Roth said that he arrived on the scene at 2.15 P. M. He was there with Lieutenant Cary, and the latter informed Evans the meeting would not go on. That Evans replied: “Huh, you will not stop us.” “Who the hell do you think you are because you have that uniform on?” That some one yelled out of a window: “Don’t let the officers hinder you from coming in the building; they are only Mackey’s slaves; you vote and give people big jobs in the City of Philadelphia, and what for — the dirty Commonwealth.” The defendant, Irvin Sheves, was arrested by this officer for refusing to leave the hall. He had a “package of literature on disarming and a conference of the labor class of people.” Officer Lowry, arriving there at 3.15 o’clock, arrested Jennie Cooper, who was standing on the front steps shouting, “This is a fine democracy.” Fannie Cutler and Mary Grossman were also placed under arrest when they refused to disperse. On being told they would have to be put in the wagon [if] they wouldn’t move on, they answered: “That is what we want.” Clara Yampol-sky was arrested for refusing to obey the police order to remain outside the hall. George Reuss was arrested for interfering with the police in making arrests. Officer Pflugfelder testified that as Fannie Cutler and Mary Gross-man were being arrested, Fannie Cutler said: “This is fine democracy; a fine country to live in; you are fine officers, you are.” Peter Pedlinsky, Nicholas Krystalowych, John Horne, Emanuel Epstein and Oscar Ovrutsky were arrested for refusing to leave the hall after Lieutenant Cary told them to go. There was no testimony affecting Lema Hoffman. This defendant was ordered discharged at the hearing of the appeal.

The defendants contend that the convictions should be set aside because

1. They violated the provisions of section 20, article I of the Constitution of Pennsylvania.

2. That the Commonwealth failed to show that this was an unlawful assembly..

3. That no breach of the peace was committed, and if there was one, it is doubtful that there is such an offense in Pennsylvania.

4. The defendants were not guilty of disorderly conduct.

5. That there was no violation of the Act of April 22, 1794, commonly known as the Sunday Law.

An examination of the record fails- to disclose any testimony showing a violation of the Act of April 22, 1794, 3 Sm. Laws, 177. There are only two questions in this case: First, did the Superintendent of Police have the authority, in the exercise of his discretion, to refuse defendants permission to assemble under the circumstances? Second, did the acts of all, or any, of the defendants, when requested peaceably to leave the meeting-place, constitute a breach of the peace or disorderly conduct? The right of the State, in the exercise of its police power, to enact laws, ordinances and regulations to preserve itself and to protect its citizens has never been held to violate any of the provisions of the Constitution. The constitutional right of citizens to assemble together in a peaceable manner and for the common good, etc., does not mean that citizens have a right to assemble for purposes which may precipitate riot and disorder, however innocently or plausibly the sugarcoated purpose for police consumption may be declared. Constitutional rights safeguarding the rights of citizens should be invoked in the spirit of its authors and not as a cloak for the exploitation of the ideas of those who would destroy it if it lay in their power to do so. It is a commonplace that its worst enemies are the first to invoke the mantle of its protection. Surely, learned counsel for the defendants cannot mean that municipal authorities are without power to interfere and to prevent a proposed assembly, of men potentially injurious to the peace and order of the community, nor can it be denied that one of the primary functions of government is to preserve order. Isn’t this duty discharged more in the prevention than in punishment? What would become of the right of citizens to assemble in a peaceable manner if order was not established in the first place? The sight of the uniformed patrolmen (so obnoxious to the defendants in this case) on the public highways acts as a deterrent to the criminally minded. It would be utter folly to say that it were time enough for the police to put in an appearance and intervene'when a disorder was actually precipitated or a crime committed. It is said by the defendants that the police acted illegally, because without authority of any statute or ordinance, in refusing permission to assemble. We have found no authority for this proposition. Legislators have enacted laws and municipalities have passed ordinances regulating the conduct of those charged with the maintenance of peace and order. But the source of the duty to preserve order goes much beyond that legislation. It is rooted deeply in our common law and reserved specifically in decisions without number on questions of constitutional law in the states and its political subdivisions. In Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355, the court said:

“The State, by the organization of cities, imparts to its creature, the municipality, the powers necessary to the performance of its functions and to the protection of its citizens in their persons and property. . . .
“City councils, under the police power, may delegate to an officer like the mayor authority to carry out the will of the corporation in the dispatch and control of daily affairs and the preservation of the public peace. The only limitation of this power is that it must be exercised in a reasonable, lawful and constitutional manner.”

In Jefferson Coal Co. v. Marks, 287 Pa. 178, the Supreme Court says: “Undoubtedly, unless restricted by police powers exerted through cities, \boroughs and townships, people have an unrestricted right to assemble on highways or parade through the streets, unless their acts are inimical to public good or the safety and peace of the Commonwealth would be disturbed thereby.” See Duquesne City v. Fincke, 269 Pa. 112. While it is true that the question involved there was the right of a citizen to use the public highways for purposes of a meeting, Justice Simpson restated the fundamental principle that “The 14th Amendment to the Constitution of the United States does not destroy the power of the states to enact police regulations as to the subjects within their control, . . . and does not have the effect of creating a particular and personal right in the citizen to use public property in defiance of the Constitution and laws of the State” (quoting from Davis v. Massachusetts, 167 U. S. 43). It was held that Fincke did not have the right, under section 20 of the Pennsylvania Bill of Rights, to assemble with others and to speak on- the highway. The ordinance was not found to be in conflict with section 20 of the Constitution of the State. It does not avail to say that this case is distinguishable from the instant case, because it was shown there that the meeting proposed was to be on the highway, and here within a building. The Fincke case confirms the right of the municipality to regulate the conduct of its citizens in face of the constitutional guarantee of the right of peaceable assembly.

“The preservation of the public peace and order is the primary police function of a municipality. Whatever contentions may have arisen over municipal police power, the authority to preserve the peace and order of the municipality, to prevent the exercise of unlawful violence and to compel citizens and sojourners to abstain from riot, rout and unlawful assembly is regarded as an inherent municipal power essential to municipal life:” 28 Cyc., 707.

The new Charter Act, entitled “An act for the better government of cities of the first class of this Commonwealth,” P. L. (1919) 581, 582, article II, section 6, subdivision v, provides: “It shall be the duty of the mayor to perform such duties as may be prescribed by law or ordinance, and he shall be responsible for the good order and efficient government of the city.”

For obvious reasons, the duty of maintaining the public order is delegated to the Director of Public Safety. The few words quoted from the act are sufficiently comprehensive to constitute a delegation of power to the Mayor and his Director of Public Safety to maintain peace and order: “It is the duty of the police power to adopt all measures necessary for the preservation of the rights of person and property from unlawful violence and disorder, and for the maintenance of peace and quiet.” See, also, Northumberland County v. Zimmerman, 75 Pa. 26.

The only limitation of this power is that it must be exercised in a reasonable, lawful and constitutional manner. We have already discussed the latter two of the three limitations. The next question, therefore, is: Was the exercise of the power by the police reasonable? The factors involved in a proposed meeting of the kind intended by the defendants and its potentiality for disturbing the public peace are peculiarly within the province of the police authorities. They know, or should know, men, conditions, the state of the public mind and the probable outcome of the combined action of men under prevailing conditions. This they are qualified to do by special training and experience and upon them falls the responsibility of determining whether a proposed meeting is inimical or not to the public good, peace or safety of the community. They may, in this connection, exercise a discretion with which the courts have no power to interfere, except where an abuse of it has been shown: Theatre Co. v. Weaver, 33 Pa. C. C. Reps. 241; 15 D. R. 794. It is not necessary to review the facts of this case to establish the reasonableness of the power exercised by the police. There was a very general condition of unemployment. Under the leadership of George D. Evans, known to the police to have strong Communist leanings, if not an avowed Communist, a meeting was to be held to demand from City Council money for their sustenance and support. The circular used, calling the unemployed together, was an appeal for mass action: “Demand Work or Government Maintenance. . . . Organize your forces for effective action to secure consideration of your needs and immediate adequate relief. . . . Auspices: Philadelphia Council of Unemployed.” No comment is needed to describe the probable effect of such an appeal to men undergoing the suffering and hardship of unemployment. If, in the honest and sincere belief of the police, there resided in such a meeting a real probability of a disturbance of the public order, it was their duty to prevent the meeting: Theatre Co. v. Weaver, 33 Pa. C. C. Reps. 241. Every metropolitan centre harbors a negligible number of persons whose only claim to a questionable distinction is the exploitation of every opportunity for stirring up the emotions of one class or another; under this or that pretext, to exhibit their intolerance of the existing form of government and to procure recruits for their particular formula of social regimentation. To these, it is sufficient to set a movement under way. The greater the noise, disturbarice and public derangement, the better. With the possible consequences to the community and to the individual they are not concerned. There is no more propitious time for the execution of so ignoble a program than during a season of unemployment.

The next and final question is, wei'e the defendants guilty of a breach of the peace or of disorderly conduct?

Having before us the events that took place, the defendants may be divided into two classes: Those who committed acts which, under the circumstances, constituted a breach of the peace, or such as tended toward it, and those who were placed under arrest because of their failure to leave the meeting-place. In the former class are George D. Evans, Herbert Benjamin, Mike Tuolor, Jennie Cooper and Fannie Cutler. It was the conduct of these that, under the circumstances, was disorderly and deliberately calculated to precipitate a breach of the peace. It was the actions and words of these that created an attitude of defiance in those already in the hall and caused the gathering of the crowd outside, numbering from -200 to 700 people. It was due to no virtue of this group nor to the moderation of their language that the assembled crowd did not attack the police. It is quite clear that they intended to carry out their plan regardless.of the consequences. “An offense against the public peace may consist either of an actual breach of the peace' or doing that which tends to provoke and excite others to do it:” Updegraph v. Com., 11 Sergeant and Rawle, 405. In 4 Clarke, 17, upon an indictment for .inciting a breach of the peace, Gibson, J., said: “No man has a right to trifle with the feelings of any large class of men so as to provoke them to a breach of the peace.”

As to Peter Pedlinsky, Nick Krystalowich, Irvin Sheves, Oscar Ovrutsky, Clara Yampolsky, Israel Lazar, Mary Grossman, Emanuel Epstein, George Reuss and John Horne, we find the evidence insufficient to sustain a finding of a breach of the peace or disorderly conduct. As to these, as well as Lema Hoffman, the appeal is sustained and the conviction set aside.

The appeals of George D. Evans, Herbert Benjamin, Mike Tuolor, Jennie Cooper and Fannie Cutler are dismissed and the conviction sustained.

Order.

And now, to wit, this 16th day of July, 1928, pursuant to the opinion in the above case, the court finds Peter Pedlinsky, Nick Kyrstalowich, Irvin Sheves, Oscar Ovrutsky, Clara Yamplosky, Israel Lazar, Mary Grossman, Emanuel Epstein, George Reuss, John Horne and also Lema Hoffman not guilty of the charges of violating the Act of April 22, 1794, 3 Sm. Laws, 177, disorderly conduct and breach of the peace. George D. Evans, Herbert Benjamin, Mike Tuolor, Jennie Cooper and Fannie Cutler are found guilty of disorderly conduct and each of them is sentenced to pay the costs of prosecution and to forfeit and pay a fine of $10.