author: McDevitt, P. J.,

text:
    Ladner et al. v. Siegel et al.

      Equity — Nuisance—Public garage — Residential neighborhood — Notice.
    1. A public garage in a residential neighborhood is a nuisance, regardless of its construction or operation.
    2. Apartments are dwellings, just as much as individual houses.
    3. Where it appears that a building is to be used as a public garage, open to the use of every one, it is immaterial that the owner may intend to use it primarily for the use of occupants of apartments which are to be built surrounding the garage.
    4. A public garage in a residential district is a nuisance, whether it is a violation of a building restriction or an annoyance to the general neighborhood.
    5. Where a preliminary injunction has issued against the use of a building as a public garage and not against its erection, the builders who proceed with the erection do so at their peril.
    Bill in equity for injunction. C. P. No. 1, Phila. Co., June T., 1927, No. 9261.

      G. C. Ladner, for plaintiffs; W. B. Saul, for defendants.
    March 30, 1928.
   McDevitt, P. J.,

From the pleadings and the evidence produced at the trial of this cause, it was shown that the complainants are residents in the vicinity of 47th and Pine Streets, Philadelphia.

Complainants’ houses are all located in a strictly residential district, and are all of substantial value.

The residential district in which these houses are erected extends from 49th Street on the west, a distance of four squares eastward to 45th Street, and from Locust Street on the north, a distance of seven squares southward to Cedar Avenue, in which area there are no commercial properties, public garages or shops of any description, with the exception of a drug store located at the northeast corner of 47th and Pine Streets, which is in the Garden Court Apartments, and in this district practically every home is occupied by the owner.

Defendant, Clarence R. Siegel, filed plans for the erection of a two-floor public garage, to be built to house over 400 cars, and broke ground for the erection thereof.

The defendant, F. W. Mark Construction Company, is the contractor who has been awarded the contract for the erection of said two-story public garage.

This building is situate about the middle of the block bounded by 47th Street, 48th Street, Pine Street and Spruce Street. It has a frontage of 120 feet on the north side of Pine Street and extends of that width northward 79 feet 6 inches, then widens to a width of 200 feet, and of that increased width extends northward 161 feet 5 inches. The entrance or passageway on Pine Street is about 65 feet in width, with stores on both sides of the passageway. The passageway in the middle and stores on both sides take up the full frontage of 120 feet.

Complainants, as soon as they learned of the intention of the defendant, Clarence R. Siegel, immediately caused notice to be sent to him, his attorney and his co-defendant, the Mark Construction Company, informing them that they objected to his erecting a public garage upon this ground, but defendant, Clarence R. Siegel, proceeded with the work and announced his intention to push the same to completion.

Whereupon complainants filed their bill in the present cause, praying for an injunction restraining defendants, Clarence R. Siegel and F. W. Mark Construction Company, from erecting the structure, building or garage aforesaid, or any building of that nature or character, upon said premises, and, further, from permitting or allowing any person to erect, maintain or use said building upon said land or any part thereof for the purposes described.

After hearing, a preliminary injunction issued, not against the erection, but against the use. Notwithstanding the notice, the filing of the bill and the granting of the preliminary injunction, the erection of the garage building was proceeded with. The mere fact that the defendants saw fit to expend a large sum of money in the face of the notice, the injunction and the decision of this court, as well as the numerous decisions of the Supreme Court, should entitle them to no extra consideration, and the case should be determined upon the facts as they stood at the time the bill was filed.

As to the right of the plaintiffs to injunctive relief under the general law of nuisance, it must now be regarded as settled law by at least ten decisions of the appellate courts, ranging from Prendergast v. Walls, 257 Pa. 547, to George et al. v. Goodovich et al., 288 Pa. 48, that the operation of a public garage in a residential neighborhood will be restrained, and that the Supreme Court intends no slackening of this most beneficial rule, designed for the protection of residential neighborhoods, is apparent from the very learned, discriminating opinion written by Mr. Justice Kephart in the recent case of Pennsylvania Co. et al. v. Sun Co., 290 Pa. 404, appearing in the Advance Reports of Friday, Nov. 18, 1927. In this case, Mr. Justice Kephart pointed out that there is a distinction between a trade or business which the law has determined under certain conditions to be a nuisance per se and such which become a nuisance merely from the matter of operation, and he points out on page 410:

“As illustrating a business that is perfectly lawful, becoming unlawful and a nuisance per se as in a certain locality, reference is made to those cases where it has been judicially determined that the business was unlawful near dwellings or in built-up sections.
“In Evans v. Fertilizing Co., supra, the manufacture of bone fertilizer near the home of a farmer was held to be a nuisance per se because noxious odors and offensive smells were inseparable from the manufacture. This circumstance was a fixed fact, the knowledge of it was common to everybody, the court could take judicial notice of it. The same was true of the use of property in a city as a livery, stable (Houghton v. Kendrick, 285 Pa. 223) and a stockyard (Eckels v. Weibley, 232 Pa. 547) in a residential section; a public garage which is inseparable from the noise of pounding metals, noxious odors, racing motors and other affecting causes (Phillips v. Donaldson, 269 Pa. 244; Hibberd v. Edwards, 235 Pa. 454; Prendergast v. Walls, 257 Pa. 547); a sawmill in the same character of district (Krocker v. Westmoreland Planing Mill Co., 274 Pa. 143) ; an amusement park near dwellings, with its unfailing accompaniment of crowds, music and noise until late at night, and other detractions (Edmunds v. Duff, 280 Pa. 355); a powder-mill (Wier’s Appeal, supra). All of these uses were held to possess inherent qualities which, as to a given locality, have been condemned by the courts as nuisances per se. In other words, though the business be lawful, as, for instance, a powder-mill in an outlying district (Dilworth’s Appeal, 91 Pa. 247), it becomes unlawful because of location and surroundings.”

The learned Justice then points out: “In all these cases, it must be apparent that an injunction was not granted on the ground of anticipated danger or an apprehension of it, but when the place and the act are admitted, it has been determined by the courts that certain unavoidable, inherent characteristics of the business injuriously affect health and property. In these cases, the averment of the act, or an attempt to perform it in a place forbidden, is all that is necessary.”

In cases of this kind but two questions of fact are material for the determination of the court, and they are: First, is it located in a residential neighborhood? Secondly, is the proposed structure to be operated as a public garage? If both of these questions of fact are determined in the affirmative, then the injunction must necessarily follow.

There can be no serious dispute that the neighborhood immediately surrounding this proposed garage is of a strictly residential character. The distinction attempted to be made between a dwelling-house and apartments is hypercritical and unsatisfactory. Apartments are dwellings just as much as individual houses: Johnson v. Jones, 244 Pa. 386; Hamnett v. Born, 247 Pa. 418.

As to the other question, the intended use of the building to be erected as a public garage is not a subject of dispute. It is admitted by the defendants that it will be so used. It is intended to house and accommodate 429 cars. The testimony to the effect that it is intended primarily for the use of occupants of apartments which are to be built surrounding the garage does not alter the situation. Such apartment buildings are far in the future. With the testimony that there are 40,000 vacant apartments now in Philadelphia, it is not likely that they will be erected for a long period of time, if ever erected, and until they are actually erected the defendants propose to garage the car of any one who applies. This case, it may here be interpolated, should be decided not on what the condition may be in the future, but what the condition was at the time the bill was filed.

In many cases the appellate courts of this State have held unswervingly to the principle that a public garage in a residential neighborhood is a nuisance, regardless of its construction or operation.

In Hibberd v. Edwards, 235 Pa. 454, the owner of a small garage on the Lancaster Pike, in the village of Paoli, commenced the erection of a large (46 feet by 70 feet) garage with six times the capacity of the one that he occupied. There was a restriction in the deed against offensive use, and an injunction was granted on the ground “that the garage was an offensive use.”

In Prendergast v. Walls, 257 Pa. 547, a garage was attempted to be erected upon a lot at 38th and Chestnut Streets, free of building restrictions, within a short distance of valuable homes and a parochial school. It was enjoined by Court of Common Pleas No. 2 and the decree affirmed by the Supreme Court, irrespective of the fact that there were no building restrictions limiting the use of the lot. Since that case attempts to induce the Supreme Court to depart from its doctrine have proved unavailing, although in practically every case since it was attempted to be shown that the garage contemplated would be different from all others ever known and would be so arranged as to afford little, if any, annoyance to the surrounding neighborhood.

In Hohl v. Modell, 264 Pa. 516, the operation of a garage in a strictly residential neighborhood at the northeast corner of Lindley Avenue and Camac Street, Philadelphia, was again held to be “Contrary to the building restrictions prohibiting offensive use of the premises.”

In Phillips v. Donaldson, 269 Pa. 244, the court below held that a garage was not an offensive use and, therefore, did not violate a building restriction upon property prohibiting offensive use. The Supreme Court used this significant language:

“A public garage has been determined to be a nuisance in a residential district, and this would be the case whether it was in violation of a building restriction or an annoyance to the general neighborhood: Prendergast v. Walls, 257 Pa. 547; Hibberd v. Edwards, 235 Pa. 454; Hohl v. Modell, 264 Pa. 516. But such a garage would not be a nuisance in a section devoted to business purposes.
“It is argued we should take judicial notice of the fact that in the operation of a public garage there exist such accompanying disturbances or other conditions as will make it obnoxious and a violation of the covenant, urging that, without proof of probable annoying conduct, it would be a nuisance in a residential neighborhood. Because of their extensive use, and the general knowledge of such use, we might be inclined to agree, but it is not necessary to so decide in the present case, for, under the facts overlooked by the chancellor, we find there is ample evidence to show the covenant would be violated by the operation of the proposed garage.”

In Hunter v. Wood, 277 Pa. 150, the Supreme Court again upheld an injunction awarded to restrain the operation of a garage on property located on the Lancaster Pike, Wayne, Pennsylvania, as being an offensive use of the property, contrary to a building restriction. The building that the defendant erected was a showroom for the sale of automobiles and accessories, and the rear part a public garage and service station. The court held: “That a public garage in a residential neighborhood is a nuisance, regardless of the violation of a restriction in the deed forbidding the use of the premises for offensive purposes or occupation.”

It held, however, that where a neighborhood was in the transition stage from residential to business, nevertheless, the injunction should issue, as otherwise it would put the owner of the property in whose favor the restriction was placed upon the property in no better position than other persons in the locality not favored by the stipulation.

In this case, the Supreme Court points out that the same principles govern injunctions against the operation of garages, whether based upon restrictions in title or put upon general nuisance grounds, the only distinction being that where there is a restriction an injunction will go out, even though the neighborhood has changed, if an injunction would still be of substantial benefit to the party intended to be benefited.

The next case is Slingluff v. Tyson, 280 Pa. 206. This is an extremely important precedent. Its facts are greatly similar to the case at bar. In fact, the defendant in the Slingluff case presented a stronger case, as far as construction was concerned and intended use, than does the defendant in the case at bar. In the Slingluff case, there was no restriction in the deed. The plaintiffs were residents of West Main Street, Norristown, one of the finest residential districts in Norristown. The defendant planned to erect a service station on a lot 90 feet by 200 feet to an alley. The building was to be iron and concrete, 891 feet by 100 feet. The front part of the building was to be used as a sales and showroom, with no access from Main Street by automobile; all traffic to enter and leave the premises by the rear alley, and vacant part of the lot to be used to accommodate cars brought in for inspection, adjustment and minor repairs. No machinery of any kind to be installed or operated on the premises; neither gasoline nor oil stored or kept for sale. The premises were to be used solely: (1) sales and showroom, (2) as a service station for making minor repairs, adjustments and repairing imperfect parts on new Paige and Jewett machines and minor repairs on old machines. If extensive alterations or repairs were needed, the defendant proposed to send cars to another shop equipped for that purpose. It was held: “Notwithstanding the attempt of the defendant to minimize the nuisance and even keep all traffic from the residential street, the garage was bound to be an inevitable nuisance,” and injunction as granted by the court below was affirmed on appeal.

In the next case, Mitchell v. Guaranty Corp., 283 Pa. 361, there was no building restriction. This bill was brought to restrain the erection and operation of an automobile sales and service station in Harrisburg. Here, again, in affirming the injunction granted by the court below, the Supreme Court said: “A public garage, from which a public service station differs only in name (Slingluff v. Tyson, 280 Pa. 206), is not a nuisance per se, but becomes such in fact when conducted in a residential neighborhood (citing cases above noted, with the addition of Tyson v. Coder, 83 Pa. Superior Ct. 116). So long as the more remote industrial developments have not destroyed the quiet and cleanliness of plaintiffs’ homes, they are entitled to protection from this immediate encroachment which does. Each case depends largely on its own facts, and where they are of doubtful import, equity should not interfere. In the instant case, there is no room for doubt. Front Street is the most exclusively residential of any street in Harrisburg, and the only places of business thereon are a silk-mill on the north side of North Street and the city’s water pumping-station at the foot thereof, both of which have been there over fifty years and neither interferes with the quiet or cleanliness of the neighborhood. The other streets in the locality to which we have referred are also residential.

“On Liberty Street, across from defendant’s property and extending to State Street, are two churches and a parochial school, the latter having an average daily attendance of 140 pupils from six to fourteen years of age, many of whom must use Liberty Street as their most direct route to the entrance of the school building on Buttonwood Street. So, in addition to the noise, odors, etc., the service station would create a serious menace to the school children; in which, and in other controlling features, the case is parallel to Prendergast v. Walls, 257 Pa. 547.

“In the main, the business places to which appellant calls our attention are too remote from the locus in quo to be controlling. For example, the fact that Second Street, south of Pine Street and two blocks south of State Street, is a business street is unavailing, as is the fact that there are private garages in the neighborhood in question. Doubtless, defendants would construct and operate a modern up-to-date service station, but it would be a large building and accommodate ninety cars, with entrances on North and Liberty Streets.

“Smoke and fumes would be generated and, although carried out of a stack twenty-four feet high, would yet be offensive to the neighbors. The annoyances incident to the business of a public garage, or public service station, regardless of the manner of its construction or operation, are such as to require its exclusion from a residential neighborhood.”

What the Supreme Court has thus recently said concerning a service station built to accommodate but ninety cars would be magnified and amplified when called upon to consider the defendants’ proposed garage built to accommodate five times as many cars.

As to the menace to school children, the same potential menace exists here to a much larger degree, because the Henry C. Lea Public School and the West Philadelphia High School are attended by thousands, not merely hundreds, of children from tender years to high school age.

The next case is Tyson v. Coder, 83 Pa. Superior Ct. 116. In this case, the erection of a garage in an exclusively residential district in Huntingdon, Pennsylvania, was held to have been properly enjoined. The language of the lower court, Barnett, P. J., who specially presided, and which was approved by the Superior Court, is especially applicable to the case here.

“Although it is not purely residential, it is practically so. It contains no business establishment which seriously affects its safety, peace and quiet, which are the distinguishing characteristics of such a neighborhood. There can be no uncertainty, therefore, as to the application of the rule which seems to be now settled, that a public garage in a residential district is a nuisance. The defendant’s plan, as outlined by him in his testimony, contemplated the construction and conduct of a garage in such manner as to eliminate, so far as possible, its offensive character. With ample means and best intentions, he might mitigate some of the annoyance incident to his business, but he could not hope entirely to overcome them. The rule, however, which excludes garages from residential sections is not restricted to such as are badly constructed and carelessly managed. It applies to all such establishments in such communities.

“If the plaintiffs are to be protected by law from successive encroachment upon their enjoyment of accustomed quiet of their homes, the remedies must be applied now.”-

Finally, we come to the case of George v. Goodovich et al., 288 Pa. 48. It is unnecessary to comment upon this case further than to say it shows no indication on the part of the Supreme Court to retrace its steps or to permit the wholesome rule adopted by them that a garage in a residential neighborhood is a nuisance to be frittered away by exceptions, in which the nuisance can be said to vary only in degree and not in principle. .

As to defendants’ argument relating to character of construction and care to reduce nuisances, this is the same contention that has been made by every defendant in every one of the cases cited, which contention was brushed aside by the Supreme Court in the case of Mitchell v. Guaranty Corp., 283 Pa. 361, on page 366, with the statement that “the annoyances incident to the business of a public garage or public service station, regardless of its construction or operation, are such as to require its exclusion from a residential neighborhood.”

As pointed out by Mr. Justice Kephart in the recent case of Pennsylvania Co. v. Sun Co., 290 Pa. 410: “The common experience of mankind, of which the courts take judicial notice, has found in certain localities and surroundings certain pursuits to be universally injurious to health and damaging to property, no matter how carefully conducted. Such pursuits are, in given places, nuisances per se.”

Under the authorities above cited and quoted, the conclusion is inescapable that the use of defendants’ garage would be a nuisance per se.

The exceptions having been dismissed, the injunction is made permanent.


source: Caselaw Access Project

author: Buffington, Circ. J.,

license: Public Domain

text:
    Lieber v. Horn & Hardart Baking Company, Inc.

      Innkeepers — Liability of restaurant-keeper to customer injured by food— Res ipsa loquitur.

    1. A customer who sustains an injury from a tack in a strawberry eaten at a public restaurant cannot maintain an action against the restaurant-keeper in the absence of evidence of negligence other than the mere presence of the tack.
    2. An innkeeper is not an insurer of food, although it is his duty to exercise due care in furnishing and serving it.
    3. The presence of the tack in the strawberry is not evidence of negligence, as the maxim res ipsa loquitur does not apply to such a case.
    In error to United States District Court for the Eastern District of Pennsylvania. United States Circuit Court of Appeals for the Third Circuit, Oct. T., 1927, No. 3704.
    Before Buffington, Wooley and Davis, Circ. JJ.

      Francis Rawle, Joseph W. Henderson and Thomas F. Mount, for plaintiff in error.

      Abraham L. Freedman, for defendant in error.
    Feb. 27, 1928.
   Buffington, Circ. J.,

This suit was begun in a state court. The defendant, averring plaintiff was a citizen of Pennsylvania, that her alleged claim was in excess of the statutory jurisdictional requirement, and that it was a corporate citizen of another state, removed the case to the court below. Jury was waived, the case tried by the judge and a judgment entered for $150. Thereupon this appeal was taken. The facts themselves are undisputed and the question involved is whether the record disclosed evidence of negligence on the part of the defendant which would have constrained submission to a jury. The proofs adduced by plaintiff were that defendant maintained a public restaurant in the City of Philadelphia, to which she and a companion came on the night of May 12, 1926, and ordered strawberries; that while eating them she felt a sharp pain in her gum; she spat out and saw blood coming. She felt around with her tongue and again spat and brought out a nail or tack, such as is used in making berry baskets. Her companion testified to the same effect and a dentist also to treating and disinfecting her upper left gum. This comprised the entire testimony on behalf of the plaintiff. Was it sufficient to constrain submission to a jury on the issue of negligence on the part of the defendant? That it was is contended on the ground, first, that defendant was the absolute insurer of the fitness of all food served; or, second, that the mishap of the plaintiff was itself proof of negligence. Turning to the first question, we are clear that, under the authorities, an innkeeper is not the insurer of food, but his duty is that of exercising due care in the furnishing and serving thereof: Valeri v. Pullman, 218 Fed. Repr. 522, and authorities therein cited; Sheffer v. Willoughby, 163 Ill. 518; Roseberry v. Wachter, 138 Atl. Repr. 273. Turning to the second question, was the happening of the mishap to the plaintiff, in other words, the presence of the tack, in and of itself evidence of negligence? The accident which is itself evidence of negligence is as stated in San Juan v. Requena, 224 U. S. 98, “when a thing which causes the injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant’s .want of care.” Now, the presence at times of some foreign substance in food, viands poisonous and impure, the infectious character of meat and drink, are things which in the ordinary experiences of life, as we know, happen both in homes and public eating-places. Foods are assembled from distant places; they pass through different ownerships and handlings, all of which in the nature of things may have contributed to the food or drink not being absolutely pure or safe. Therefore, it seems to us the fact that the plaintiff got this tack in her jaw when eating the strawberries, which at this season, of year, May, must have come from a distance, would not in and of itself be evidence of negligence on the part of the defendant. This seems consonant to reason and in line with the holdings of the adjudged cases. See Ash v. Childs, 231 Mass. 86, where the presence of a small tack in a blueberry pie was held not to be per se proof of negligence, and that the plaintiff was not entitled to recover unless he proved some negligent act on the part of the defendant: Crocker v. Baltimore Dairy Lunch Co., 214 Mass. 177, where the plaintiff suffered from ptomaine poisoning from eating in defendant’s restaurant; Valerie v. Pullman, 218 Fed. Repr. 522, where food which proved unwholesome was served; Roseberry v. Wachter, 138 Atl. Repr. 273, where a bone splinter in chicken soup lodged in the plaintiff’s throat; and Sheffer v. Willoughby, 163 Ill. 518, where the plaintiff was sickened by eating oyster broth.

Seeing, then, that the defendant was not an insurer of the food furnished, that the presence of the tack, in and of itself, was not evidence of negligence, and that no other evidence of alleged want of due care on the part of the defendant was shown, it follows the plaintiff would not have been entitled to have her case submitted to a jury on the issue of negligence unless the proofs on the plaintiff’s part evidenced lack of due care. But such was not the case. Those uncontradicted proofs were that the berries were bought from one or other of the two dealers of highest repute in the city; that, before being served, they were placed in a colander, washed under pressure of city water, individually hulled, patted in a towel and placed in individual dishes for serving. The uncontradicted testimony of an expert in such lines was that such was “the proper and the most suitable way available,” and that such “is the standard method.” Indeed, we think the court below was misled by assuming the tack was lodged in a berry, point in and head out. Of this there was no proof, and in view of the jolts to which a berry crate would ordinarily be subjected in wagon or truck from farm to> railroad, in loading and unloading from the car, and later in wagon or truck-loading, carriage and unloading from railroad to dealer and from dealer to defendant’s restaurant, that, in the absence of proof, it is quite as likely, if indeed not more so, that the tack may have been jolted about and finally became imbedded sideways in a berry and so have been quite hidden from view. It is evident that to hold the defendant guilty of negligence in this case would be to base a verdict on speculation instead of the solid basis of proven negligence. Accordingly, the judgment below is reversed.


author: Landis, P. J.,

text:
    Forney et al., Receivers, v. Lipp.

      Receipt in full — -Conclusiveness of.

    Where an affidavit of defense alleges a receipt in full given by the plaintiff, this is sufficient to prevent judgment, though not conclusive, and judgment should not be entered on a rule, as the circumstances under which the receipt was given should be fully explained on the trial of the case.
    Rule for judgment for want of a sufficient affidavit of defense. C. P. Lancaster Co., Feb. T., 1927, No. 19.

      Charles W. Eaby, for plaintiff and rule; W. Hensel Brown, for defendant.
    Sept. 24, 1927.
   Landis, P. J.,

The plaintiff’s statement alleges that the defendant was in the employ of the plaintiff company as manager from July 11, 1926, to May 27, 1926, and that the books of the company show that he is indebted to it in the sum of $5183.70. A copy of the account with that result is attached thereto. The affidavit of defense avers that in the month of August, 1926, these receivers, upon the receipt of $1043.43, executed a release in full for a certain claim due and owing the company by the defendant, and in the same did acknowledge that they had no other claim against him. It may be that a mistake was made by the receivers in giving the receipt in full as they did give it, and, if so, they have a right by proper proof to show the true facts, or that they were misled into signing the same, but in the face of that receipt, and without full explanation, we do not see how we can now enter a summary judgment. The receipt is prima facie evidence of payment, but not conclusive, and, on a trial, parol evidence can be offered to explain or contradict it, and to show that while it was given for one purpose, the attempt is being made to use it for another, which would amount to fraud. See Dutton v. Tilden, 13 Pa. 46; Batdorf v. Albert, 59 Pa. 59; Borlin v. Highberger, 104 Pa. 143. In Guhl v. Frank, 22 Pa. Superior Ct. 531, it was said: “A receipt for money is prima fade evidence of payment, but is not conclusive and is subject to explanation. When a receipt in full represents the balance found to be due upon an account stated between the parties, involving mutual dealings covering a long period of time, it should only be set aside for weighty reasons. Fraud, accident or mistake would be sufficient to avoid such an instrument, but in such a case the cause of avoidance should clearly appear.”

I am, therefore, of the opinion that under the present circumstances the rule for judgment should at this time be discharged. Rule discharged.

From George Ross Eshleman, Lancaster, Pa.


author: Hildebkand, P. J.,

text:
    Commonwealth v. Cumberland.

      Criminal law — Fornication and basta/rdy — Effect of acquittal on basta/rdy charges when child is begotten in one county and bom in another — Jurisdiction — Act of March SI, 1860.

    Where a bastard child is begotten in one county and born in another, and a jury trying the reputed father in the county where the child was born finds the defendant not guilty of fornication and bastardy, but guilty of fornication, the court is without jurisdiction to sentence him. i
    Act of March 31, 1860, § 38, P. L. 392, considered.
    Motion in arrest of judgment. Q. S. Lawrence Co., Dec. Sess., 1926, No. 60.

      J. Elder Bryan, District Attorney, and J. W. Rhodes, for Commonwealth.

      James A. Chambers, for defendant.
    July 25, 1927.
   Hildebkand, P. J.,

On an indictment charging fornication and bastardy in the first count and fornication in the second count, the defendant was found not guilty on the first count and guilty on the second count. He has presented a motion in arrest of judgment.

The indictment averred fornication in the County of Lawrence with the prosecutrix, resulting in the birth of twin girls in the Borough of Ellwood City, in Lawrence County, Jan. 5, 1927. The bill of particulars filed averred the illicit intercourse to have taken place in Armstrong County, Pennsylvania, on April 4, 1926, and from that time almost weekly up until Aug. 1st of the same year. Jurisdiction of the offense is given to this court by section 38 of the Act of March 31, 1860, P. L. 393, which reads as follows: “If a bastard child is . . . begotten within one of the counties of this State and bom in another . . . the prosecution of the reputed father shall be in the county where the bastard shall be born, and a like sentence shall be passed as if the bastard child had been or shall have been begotten within the same county.”

This statute is in derogation of the rule of the common law and general rule of the statute law that an offense is triable only in the county in which it was committed. The overt, unlawful act with which defendant stands charged was committed in Armstrong County. The bastardy occurring in this county is merely a consequence or an aggravation of the offense of fornication committed in Armstrong County.

While several trial courts have held that the words “prosecution of the reputed father” give to the court of the county of the bastard’s birth jurisdiction of the offense of illicit intercourse, be it fornication, adultery or rape (Com. v. Swanheart, 70 Pitts. L. J. 1030), the Superior Court, in Com. v. Gamica, 85 Pa. Superior Ct. 396, has held otherwise. In that case, the defendant, a married man, was charged in one count with adultery and bastardy and in another with fornication and bastardy and was found guilty as indicted. The illicit intercourse was alleged and proven to have occurred in a county other than the county of the birth of the bastard. The trial court sentenced on the charge of adultery. In reversing the judgment of the trial court, the appellate court made use of the following language: “Section 38 prescribes a penalty for bastardy and must be strictly construed; it applies here. The court below, therefore, had authority to sentence on the conviction of bastardy, but not for the adultery said to have been committed in Westmoreland County. The judgment is reversed and the record is remitted with instructions to sentence appellant on the bastardy charge of which he was convicted.”

It is to be noted that the direction to the trial court is to sentence on the bastardy charge, and not on fornication and bastardy, although the jury had found the defendant guilty of fornication and the offense of fornication is included in the offense of adultery. The appellate court has said that the act “must be strictly construed.” It has followed up this declaration with an exceedingly strict construction.

It is argued that if it is held that this court is without jurisdiction to sentence on the charge of fornication, the defendant, although found guilty by a jury, will go unpunished. This appears to be the true situation, as in Com. v. Lloyd, 141 Pa. 28, it is indicated that the prosecution for bastardy in this county will bar a prosecution for fornication in Armstrong County. The situation is to be no more deplored than that. which appeared in Com. v. Gamica, supra,, where the defendant had been found guilty of the more serious charge of adultery, but went unpunished for the crime. The remedy for these conditions is with the legislature and not with the courts.

Section 38 of the Act of March 31, 1860, P. L. 393, prescribing a penalty for bastardy, and the Commonwealth having failed to sustain its charge of bastardy against the defendant, has no application in the present case, in which the jury has convicted of fornication only, and the fornication having been committed outside the jurisdiction of the court, this court is without authority to sentence the defendant, and his present motion must prevail.

Now, July 25, 1927, the motion in arrest of judgment is sustained and granted, and the defendant, Clair Cumberland, is forthwith discharged without day. From William McElwee, New Castle, Pa.


author: Berger, J.,

text:
    Walters v. Tamaqua Borough et al.

      Municipalities — Bonds' — Debt — Increase without consent of electors— Order of increase — Constitutional law — Current loans — Bonds provided for by revenue.

    1. A bond issue authorized by the borough council without a vote of the electors is valid if the amount does not exceed 2 per cent, of the assessed valuation of property within the municipality, notwithstanding the fact that there are already outstanding bonds in excess of that amount, if such latter bonds were all authorized by the electors.
    2. Under section 8 of article ix of the Constitution, debts not exceeding 2 per cent, of the assessed value of taxable property may be created by the municipal authorities without consent of the electors, and debts over 2 per cent, and not exceeding 1. per cent, may be created with the consent of the electors, and the order in which this indebtedness is incurred is immaterial.
    3. In estimating the total debt, it is not necessary to include a temporary loan made in anticipation of current revenues or bonds issued to acquire water-works, if the net revenues from the water-works have been sufficient for five years to pay interest and sinking fund or if such bonds are secured by liens upon the waterworks and impose no liability upon the municipality.
    Bill in equity to restrain the issue of municipal bonds. C. P. Schuylkill Co., July T., 1925, No. 1.

      R. J. Graeff, for plaintiff; J. 0. Ulrich, for defendants.
    April 11, 1927.
   Berger, J.,

This is an injunction bill filed May 4, 1925, against the Borough of Tamaqua and the members of its borough council to restrain the issue of bonds of the borough to the amount of $100,000, or to increase the indebtedness of the borough to that extent, pursuant to a resolution of the town council passed Feb. 9,1925, and approved by the chief burgess Feb. 13, 1925. The case came on for hearing before the chancellor March 11, 1926, on bill and answer. After the introduction of some testimony on that date by the plaintiff in support of his bill, he asked leave to file a replication, and the case was continued to permit that to be done. No replication was filed until Oct. 25, 1926, and the case was brought to a close without the offer of any additional testimony. The facts which I am about to find and state are based upon the evidence and the admissions arising out of the bill, answer and replication.

Facts.

1. The Borough of Tamaqua was incorporated by the Act of the General Assembly of the Commonwealth of Pennsylvania, approved April 8, 1833. By a decree of the Court of Quarter Sessions of the County of Schuylkill dated March 2, 1852, it is subject to the restrictions and possesses the powers and privileges conferred by the act of assembly, entitled “An act regulating boroughs,” approved April 3, 1851, and its supplements.

2. On Feb. 9, 1925, the members of the town council of the Borough of Tamaqua were John F. Wagner, John T. Davis, John F. West, Robert J. Kant-ner, Edward Murphy, Solon Bobst, Thomas Stahler, Henry Hartman, Harry Weaver, Howard Greenawalt, A. L. Hadesty, Jr., and Thomas Cartmell. Thomas Stahler died since this bill was filed, and J. Nelson Gothie, who succeeded him by appointment, has been made a party defendant by amendment of the bill.

3. Feb. 9, 1925, the town council of the Borough of Tamaqua passed a resolution to increase the bonded indebtedness of the borough in the sum of $100,-000, the bonds to be dated April 1, 1925, payable thirty years after date, and bearing interest at the rate of 4| per cent, per annum. This resolution also directed the preparation and filing of a statement showing the financial condition of the borough, in accordance with the requirements of the law relating to the increase of indebtedness by municipalities.

4. Feb. 13, 1925, John F. Wagner and Henry Keilman, as president and secretary of the town council, respectively; Samuel R. Beard, the borough treasurer, and Eli F. Ehrich, the chief burgess of the.borough, executed and filed in the office of the Clerk of the Court of Quarter Sessions of Schuylkill County a statement of the financial condition of the Borough of Tamaqua, in which is incorporated a copy of the resolution of the town council authorizing the proposed increase in the bonded indebtedness of the borough. This statement is made a part of the plaintiff’s bill of complaint.

5. By advertisement in the Evening Courier, a newspaper of general circulation in the Borough of Tamaqua, bids to be opened in council chamber March 23, 1925, at 8 P. M., were invited for the sale of the bonds. The borough reserved the right to reject any or all bids, and the bonds, if sold, were to be ready for delivery to the purchaser April 1, 1925.

6. The bid of E. H. Rollins & Co. for the entire issue of bonds was $101,-918.40, but acceptance of their bid was postponed because there was then pending an injunction bill, filed March 17, 1925, to No. 3, May Term, 1925, by the plaintiff in this suit, to restrain the present defendants from making sale of the bonds. The bill was dismissed April 20, 1926, on preliminary objections. See Walters v. Tamaqua Borough, 6 D. & C. 323. The bid of E. H. Rollins & Co. for the bonds was accepted on April 20, 1925, on action of the town council taken after plaintiff’s bill had been dismissed, and actual delivery of the bonds to them was made some time after May 4, 1925, upon payment of the purchase price to the treasurer of the Borough of Tamaqua.

7. The assessed value of the taxable property in the Borough of Tamaqua, according to the triennial assessment made in the year 1922, as fixed by the county commissioners sitting as a board of revision, was $11,605,203. As a result of the hearing of appeals to the Court of Common Pleas from valuations fixed by the board of revision, the valuation in the Borough of Tamaqua was reduced, by agreement of the parties, to $9,794,372, but this reduction was without prejudice to the right of the appellants to prosecute their appeals further, and they were so proceeded in that the assessed value of the taxable property in the Borough of Tamaqua was ultimately fixed, by an agreement between the board of revision and the parties to the appeals, at the sum of $5,422,682. From the evidence, it is impossible to ascertain the exact dates when these two. reductions in the assessed taxable value of. the property in the Borough of Tamaqua were made by the board of revision, but the taxes for the year 1924 were levied on the valuation of $9,794,372, and for the year 1925, on the valuation of $5,422,682. The statement of the financial condition of the borough, filed Feb. 13, 1925, as is set forth in paragraph 4 of these findings, avers that the last preceding assessed valuation of the taxable property in the Borough of Tamaqua was $9,897,772. The valuation of $5,422,682 was not fixed by the board of revision until April, 1925.

8.The bonded debt of the Borough of Tamaqua on Feb. 9, 1925, and on Feb. 13, 1925, was alleged to be as follows:

Sewer loan of 1904. $700
Varioloid loan of 1906. 21,300
Sewer and refunding loan of 1912. 45,000
Refunding and improvement loan of 1914..■... 25,000
Refunding loan of 1920 . 60,000
Water loan of 1919. 100,000
Water refunding loan of 1922. 35,000

9. The water loan of 1919, amounting to $100,000, and the water refunding loan of 1922, amounting to $35,000, were issued by the borough pursuant to the Act of June 5, 1915, P. L. 846, for the construction and acquisition of water-works and appurtenances thereto, and the net revenue therefrom for a period of five years after the acquisition thereof will be sufficient to pay the interest on the bonds and the sinking fund charges during that period, and the bonds are secured by liens upon the water-works and impose no municipal liability.

10. The statement of the financial condition of the borough filed in the Court of Quarter Sessions preparatory to increasing its indebtedness is made a part of plaintiff’s bill, and was read in evidence by him. It contains an averment that the actual indebtedness of the Borough of Tamaqua as of Feb. 13, 1925, the date of the filing of the financial statement, was $187,653.59, and that no part of the borough’s indebtedness was created without a vote of the people. I, therefore, find that the entire bonded indebtedness of the borough outstanding prior to Feb. 13, 1925, was $187,653.59, all of which was issued with the assent of the electors given at an election held for the purpose of increasing the indebtedness of the borough.

11. The plaintiff avers in his bill that the floating indebtedness of the Borough of Tamaqua as of May 4, 1925, the date of the filing of his bill, was $60,000, consisting of a temporary loan amounting to $25,000 and of unpaid warrants drawn upon the borough treasurer amounting to $35,000, but has offered no evidence to establish that the floating indebtedness of the borough is a part of its permanent indebtedness. On the contrary, he has proved by the testimony of Samuel R. Beard, the borough treasurer, that at each year’s end the outstanding temporary loans of the borough were paid, and that no new temporary loans were ever issued in such amounts that in the aggregate they could not be paid out of the taxes levied for the year in which they were issued and made payable. There is no evidence to show that the warrants drawn upon the treasurer were not paid promptly when presented.

12. No ordinance or resolution was passed by the town council of the Borough of Tamaqua authorizing an election for the purpose of obtaining the assent of the electors to increase the borough indebtedness in the sum of $100,000, and no election was held to authorize the bond issue of $100,000 sought to be restrained by this bill.

13. A petition to amend the plaintiff’s bill and the prayers for relief was filed Nov. 29, 1926. The proposed amendments to the bill are the addition as a party defendant of J. Nelson Gothie, who took his seat in the Town Council of the Borough of Tamaqua as an appointee to fill the vacancy caused by the death of Thomas Stahler after the bill had been filed, and the addition of E. H. Rollins & Co., the purchasers of the bonds, as a new or additional party defendant. The proposed amendments to the prayers of the bill are: (1) That the borough council “be restrained from the levy and collection of any tax intended for the payment of the interest and (or) principal of the said $100,000 bond issue;” (2) That the Borough of Tamaqua, its officers and agents, be restrained from appropriating or paying any money out of the borough funds for the payment of interest and (or) principal of the aforesaid bond issue of $100,000;” and (3) “such further and proper relief as the facts and circumstances warrant.”

14. On March 30, 1927, the plaintiff filed a prayer for additional relief, reading as follows: “That the bond issue complained of should be declared illegal and void.”

Discussion.

The plaintiff’s bill was filed and has been proceeded with on the theory that the issue of $100,000 of thirty-year 4i per cent, bonds of the Borough of Tamaqua authorized by the Resolution of Feb. 9, 1925, was the creation of a debt of the municipality, both in excess of 2 per centum and of 7 per centum of the assessed value of the taxable property in the Borough of Tamaqua, in violation of article ix, section 8, of the Constitution of Pennsylvania: 1 Purdon’s Digest, 197.

The admission by the plaintiff that on Feb. 9, 1925, there was no outstanding bonded indebtedness of the borough which was not issued without the assent of the electors reduces the question for decision to the ascertainment of whether the $100,000 bond issue, added to that previously issued and outstanding, increased the indebtedness of the borough to more than 7 per centum of the assessed value of its taxable property. The reason for this is the construction placed upon the constitutional provision here invoked in Keller v. Scranton, 202 Pa. 586. The City of Scranton on Nov. 17, 1900, had property of the assessed taxable value of $23,121,000, so that as of that date $462,420 of bonds was the total amount which could be issued without a vote of the electors. Its outstanding indebtedness was $582,000, of which $299,000 had been authorized by the electors and $283,000 had not. In this financial situation, the city council passed an ordinance providing for the construction of a viaduct, the erection of which might result in visiting the city -with a liability for damages in the sum of $100,000, whereupon an injunction bill was filed restraining the city from carrying out the provisions of the ordinance on the ground that the $100,000 liability for damages constituted an increase of the city’s indebtedness in excess of 2 per centum of the assessed value of its property, without authority from the electors. The lower, court, adding together both classes of the outstanding indebtedness and the proposed increase, making a total of $682,000, held that the city’s liability of $100,000 for damages, if the viaduct were constructed, was an increase of more than 2 per centum in the municipal indebtedness, and entered a final restraining order because the assent of the electors had not been obtained to the increase. On appeal, this order was reversed on the ground that section 8 of article XX of the Constitution divides municipal indebtedness into three classes with reference to amount: (1) Debt more than 7 per centum of the assessed value of taxable property, which is entirely prohibited; (2) debt not over 2 per centum of assessed value which may be created by the municipal authorities without approval by vote of the electors; and (3) debt over 2 and not exceeding 7 per centum of the assessed value, which may be incurred by the municipal authorities only with the assent of the electors. The order in which this indebtedness is incurred, whether of the second or of the third class, is entirely immaterial. In other words, a municipality may first resort to an increase of its municipal indebtedness to the extent of 5 per centum with the assent of the electors, without diminishing its power subsequently to issue municipal indebtedness to the extent of 2 per centum, without a vote of the electors. This being so, the restraining order was set aside on appeal and the bill dismissed because the indebtedness of $283,000, being of the second class, added to the proposed increase of $100,000, or a total of $383,000, did not exceed the power of the municipal authorities of the City of Scranton to incur indebtedness of the second class, the maximum debt of that class being $462,420. In Troop v. Pittsburgh, 254 Pa. 172, 178, Swearingen, J., citing Keller v. Scranton, supra, designated municipal indebtedness under 2 per centum of the assessed taxable value as councilmanic debt, and that over 2 per centum to 7 per centum or under as electoral debt.

In the present case, there was no councilmanic debt outstanding on Feb. 9, 1925, unless the temporary loan of $25,000 and the outstanding warrants upon the borough treasury fall within that classification. The distinction between a short term or temporary loan of a municipality and a long-term loan, or an obligation representing a permanent debt, is that the former is merely an anticipation, in good faith, of the probable revenues of the year in which the loan is issued sufficient to pay it when due, and the latter, the creation of an obligation which cannot be met out of the anticipated revenues of the year in which it is issued: Addyston Pipe & Steel Co. v. City of Corry, 197 Pa. 41, 48, 49; Jackson, Assignee, v. Conneautville Borough School District, 280 Pa. 601, 607; Thomas Colliery Co. v. Shenandoah Borough, 7 D. & C. 314, 318. The allegation of the plaintiff that the $25,000 unsecured loan outstanding was a temporary loan, therefore, precludes its inclusion in the permanent indebtedness of the borough. Moreover, the burden of proof was upon the plaintiff to establish that the temporary loan of $25,000 and the unpaid borough warrants of $35,000 could not have been paid out of the current revenues for the year 1925 before these items can be classified as a permanent debt of the borough, and in this he has failed. The water loans of 1919 and 1922 have not been shown to be a debt of the borough within the meaning of the constitutional limitation upon its power to incur municipal indebtedness.

According to the allegations of the plaintiff’s bill, the total bonded debt of the Borough of Tarnaqua on Feb. 13, 1925, other than the water loans, was $152,000; adding to this the bond issue of $100,000, leaves a total bonded indebtedness of the Borough of Tarnaqua outstanding of $252,000. The $100,-000 loan of 1925 is less than 2 per centum of the assessed taxable value of $5,422,682, which the plaintiff contends is the proper base upon which to compute the councilmanic indebtedness of the borough. If the councilmanic debt authorized by the Resolution of Feb. 9, 1925, be added to the electoral indebtedness issued earlier, the sum is approximately $100,000 less than 7 per centum of the lowest assessed value of the taxable property in the Borough of Tama-qua in the year 1925. I am of the opinion, therefore, that the bill must be dismissed, and this conclusion makes it unnecessary to dispose of the plaintiff’s applications to amend, other than that to add the name of J. Nelson Gothie as a party defendant, which has beeen allowed.

Conclusions of law.

1. A plaintiff in an injunction bill to restrain the issue of municipal bonds on the ground that the issue exceeds the constitutional limitation upon the municipality’s borrowing power must prove every element of his case by the weight and fair preponderance of the evidence.

2. Section 8 of article IX of the Constitution divides municipal indebtedness into three classes with reference to amount: (1) Debt more than 7 per centum of the assessed value of taxable property, which is entirely prohibited; (2) debt not over 2 per centum of assessed value, which may be created by the municipal authorities without approval by vote of the electors; and (3) debt over 2 and not exceeding 7 per centum of the assessed value, which may be incurred by the municipal authorities with the assent of the electors. The order in which this indebtedness is incurred is entirely immaterial.

3. If no debt of a municipality issued by approval of a vote of the electors is outstanding when an increase in the indebtedness of less than 2 per centum of its assessed taxable value is authorized, the proposed increase is valid if the sum of the old and new debts does not exceed the constitutional limitation of 7 per centum.

4. A temporary loan, which is merely an anticipation, in good faith, of the probable revenues of the year in which the loan issued sufficient to pay the loan when due, is not a municipal indebtedness within the meaning of the constitutional limitation upon the borrowing power of a municipality.

5. Bonds issued by a borough, pursuant to the Act of June 5, 1915, P. L. 846, for the construction and acquisition of water-works cannot be considered as a debt of the municipality within the prohibition of the constitutional limitation upon municipal indebtedness, if the net revenues derived from the water-works for a period of five years, either before or after the acquisition or construction thereof by the municipality, have been sufficient to pay interest and sinking fund charges during said five-year period, or if the said obligations shall be secured by liens upon the water-works and impose no liability upon the municipality.

6. The bond issue of $100,000 authorized by the municipal authorities of the Borough of Tamaqua, Feb. 9, 1925, and sold to E. H. Rollins & Co., did not require the approval of the electors of the borough in order to make it valid.

7. The bond issue of $100,000 authorized by the municipality of the Borough of Tamaqua, Feb. 13,1925, was not prohibited by section 8 of article XX of the Constitution.

Decree nisi.

Upon consideration of the foregoing case by the chancellor, it is ordered, adjudged and decreed nisi:

1. Plaintiff’s bill is dismissed.

2. Plaintiff is directed to pay the costs.

From M. M. Burke, Shenandoah, Pa.


author: McKeen, J.,

text:
    Marlatt v. Marlatt.

      Divorce — Petition for trial by jury.

    A petition for an issue to try a divorce proceeding may be refused by the court when the allegations are of such character as would render a jury trial inadvisable.
    Act of April 20, 1911, P. L. 71, considered.
    Rule for issue and jury trial. C. P. Northampton Co., Feb. T., 1926, No. 91, alias April T., 1926, No. 112, in Divorce a. v. m.

      F. P. McCluskey, for libellant; Smith & Paff, for respondent.
    March 14, 1927.
   McKeen, J.,

-The libel in divorce in the above stated case was filed in the Court of Common Pleas as of No. 91, Feb. Term, 1926, and in the libel the respondent is charged with cruel and barbarous treatment and indignities to the person of libellant.

In her answer to the libel, denying the material allegations contained therein, the respondent prays that the facts may be inquired of by the country. Subsequently, on her petition, respondent obtained a rule to show cause why an issue should not be framed to permit a jury to determine the truth of libel-lant’s allegations with respect to the alleged cruel and barbarous treatment and indignities to his person. The respondent contends, in support of the rule, that she is entitled, as a matter of right, to have the disputed facts determined by a jury.

The application for a jury trial was made under the provisions of the Act of April 20, 1911, P. L. 71, relating to divorces, section 2 of which provides: “. . . Either of the parties who shall desire any matter of fact that is affirmed by the one and denied by the other to be tried by a jury, may take a rule upon the opposite party, to be allowed by a judge of the Court of Common Pleas, to show cause why the issues of fact set forth in the said rule shall not be tried by a jury. . . . Upon the return of said rule, and after hearing, the court may discharge it or make it absolute or frame issues itself, . . . but such rule shall not be made absolute when, in the opinion of the court, a trial by a jury cannot be had without prejudice to public morals.” In Renard v. Renard, 60 Pa. Superior Ct. 389, Judge Trexler, in interpreting the power and discretion of the court in respect to awarding an issue, held: “It is argued that the only reason which may move the court to refuse an issue under the Act of 1911 is that the public morals might be prejudiced by a trial by jury. We cannot agree with this view. If we refer to the sentence quoted above, we find that the power is put in the hands of the court to grant or refuse an issue, but with this condition, that an issue shall not be granted when the public morals might be prejudically affected. The provision is not to restrict the court in refusing an issue, but is a limitation on the granting of one. The sentence is rather inaptly framed, but, as we read it, it means that the trial judge may in any case grant or refuse an issue at his discretion, excepting where the public morals will be prejudiced by a jury trial, in which case he shall refuse it. His discretion is not confined to the single question of the effect of a jury trial upon the public morals. There may be other matters arising which might render a jury trial inadvisable.”

In the present case, a bill of particulars was filed by libellant, and while the allegations contained therein might not be prejudicial to public morals, yet they are of such a character as would render a jury trial inadvisable.

And now, March 14, 1927, rule for issue and jury trial is discharged.

From Henry D. Maxwell, Easton, Pa.


author: Koch, J.,

text:
    Commonwealth v. Dwyer.

      Husband, and wife — Order of support — Divorce—Revocation of order.

    1. The mere entry of a decree in divorce will not of itself abrogate an order on the husband for the support of his wife and children.
    2. In such case, if application is made after the divorce, the court which made the order will set it aside or modify it so as to confine the allowance to the support of the children.
    Rule to show cause why the order for support should not be modified and amended. Q. S. Schuylkill Co., March Sess., 1922, No. 295.

      A. D. Knittle, for prosecutrix; M. J. Ryan, for defendant.
    Oct. 31, 1927.
   Koch, J.,

The original return of the justice in this case has been mislaid or lost, but we have been supplied with a copy of it. In it the defendant is charged with the desertion of his wife and three children without reasonable cause and with his want of contribution to her support or that of his children. The information was sworn to on Jan. 13, 1922. On March 13, 1922, upon hearing had, the defendant was directed to pay the costs and to pay his wife $50 a month. Another hearing was had on Nov. 27, 1922, and the defendant was directed to pay his wife $30 every two weeks. The increase was made because Mrs. Dwyer had given birth to another child after her husband’s desertion. The husband and wife never lived together after their separation in January, 1922, and on June 20, 1927, Dwyer obtained a decree of divorce from his wife. Having obtained said decree, Dwyer ceased his compliance with the order of this court and has paid Mrs. Dwyer nothing since Aug. 15, 1927, claiming that said order automatically ended with the decree of divorce. The evidence does not show whether the divorce was a vin-culo matrimonii or a mensa et thoro, nor the ground thereof.

If the ground of divorce was cruel and barbarous treatment ori the part of the wife, or indignities to his person, rendering his condition intolerable or life burdensome, the court granting the divorce could have allowed support or alimony according to the circumstances of her husband: Act of June 25, 1895, P. L. 308. Or if an annuity for life had been agreed upon after separation and prior to the divorce, the husband would be obliged to'pay it: Blaker v. Cooper, 7 S. & R. 500. But we cannot say that the order of this court ended with the divorce; the way to end such an order is to apply to the court that made it. Otherwise, the order stands as a part of the court’s record in the case.

Mrs. Dwyer and her four children are living together in a house in Mahanoy City, the title to which stands in the name of both Mr. and Mrs. Dwyer, but she is unable to support herself and the four children also. Mr. Dwyer appears to be willing to contribute to the support of his children, but nothing to the support of Mrs. Dwyer. The ages of the children are from twelve years to five years; consequently, none is able to do anything for the support of the family. Dwyer has a steady job at good wages, amounting to more than $180 a month.

The prayer of the petition is that the order heretofore made “be modified and amended according to law and equity and in accordance with the said decree of divorce, said order to be nunc pro tunc as of June 20, 1927.”

The orders of this court were intended for the benefit of the defendant’s wife and children, but Mrs. Dwyer is no longer entitled to support from her former husband. Therefore, the order must be modified.

The order made on Nov. 27, 1927, directing the defendant to pay to his wife the sum of $30 every two weeks, is vacated, and the defendant is ordered and directed to pay the costs and to pay to Mrs. Dwyer, his former wife, the sum of $30 every two weeks for the support of his four children, and to enter into his own recognizance in the sum of $1000, conditioned for his compliance with this order; this order to take effect as of Aug. 15, 1927.

Prom M. M. Burke, Shenandoah, Pa.


author: Hassler, J.,

text:
    Patterson v. Stauffer.

      Damages to automobile — Proof of — Negligence.
    A plaintiff can recover damages for Injuries to his automobile caused by the negligence of the defendant, although he has had no repairs made, if he proves by competent witnesses what the injuries were and what the cost of repairing them would be.
    Rules for a new trial and for judgment for defendant n. o. v. C. P. Lancaster Co., April T., 1926, No. 62.

      Charles W. Eaby, for defendant and rules; Charles G. Baker, contra.
    July 2, 1927.
   Hassler, J.,

This is an action to recover damages for injuries to the plaintiff’s automobile, caused by the negligence of the defendant. The jury found that the defendant was negligent, and' that the damages sustained by the plaintiff were $103.06. The only reason urged for a new trial is that there was not sufficient proof of the plaintiff’s damages.

The automobile of the plaintiff was not repaired after the accident. He produced testimony to show how it was injured. A witness was then called who was experienced in the repair of automobiles, and whose competency was not questioned, who testified that each item- of injury to the automobile was and what the cost of repairing each would be. In Bauer v. Armour & Co., 84 Pa. Superior Ct. 174, it is decided that where an automobile can be put in as good condition as it was before a collision, the proper measure of damages is the cost of the repairs and not the difference in value before and after the accident. If the value afterwards is less than before it was repaired, the plaintiff would be entitled to recover this difference in value, together with the cost of repair. In Berry on Automobiles (4th ed.), page 957, § 1072, it is said: “The measure is the reasonable cost of repairs made necessary by the negligence complained of; and such cost would be what an automobile repairman would, in accordance with the market and usual rates, charge for the work and materials necessary.”

The amount of the damages sustained by the plaintiff to his automobile was shown by this testimony in accordance with these authorities. If, as the defendant contends, the plaintiff could only recover after the repairs had been made, he might be without remedy for such injuries as the plaintiff sustained to his automobile. Under such a rule, if one whose automobile had been damaged could not get any one to repair it, because of lack of credit or for any other reason, he could not recover, no matter how badly his property was injured. This is certainly not the law. It was shown by a witness who is competent to testify to it what the cost of repairs of the injuries shown would be according to the market and usual rates charged for labor and materials required. We are satisfied that this testimony was sufficient to submit the amount of plaintiff’s damages to the jury and fully justified the verdict. The rule for a new trial is discharged. The rule for judgment n. o. v. is also discharged.

Prom Georg-e Ross Eshleman, Lancaster, Pa.


author: Gest, J.,

text:
    Christopher’s Estate.

      Taxation — Inheritance tax — Transfer of assets in lifetime of decedent.

    1. Where one transfers securities in his lifetime, reserving the income therefrom for life, •with power to alter, change or modify the terms of the trust, or with full power of revocation, the settlor has such an interest in the subject-matter which passes on his death to those entitled under the terms of the trust as will render it subject to the inheritance tax.
    2. Where a settlor, upon entering a home, is required to, and does, transfer her estate to a trustee under a contract by which she is to be paid the income therefrom for life, with vested remainder of the fund in the home, subject to the payment of her funeral expenses, and the further consideration that during her occupancy of the home she is not to be charged for board, the fact that such transfer can be revoked by either party at will, either by the voluntary withdrawal of the settlor or her dismissal from the home by the board of managers, renders the corpus of the fund liable to transfer inheritance tax; and such is the case although the settlor died in the home without ever having revoked the trust.
    Appeal from Register of Wills. 0. C. Phila. Co., Jan. T., 1926, No. 724.
    Thompson, J., Hearing Judge. — This is an appeal “from the decision of the Register of Wills in the above estate, appraising and assessing transfer inheritance tax in the sum of $1130.93,” and testimony was taken in respect thereto, from which it appears:
    1. Testatrix died Jan. 27, 1926, a guest in the Leamy Home, an unincorporated charitable organization, the purpose of which is to provide a home for women belonging to the Protestant Episcopal Church, said home being started years ago by a bequest in the will of a woman named Leamy, whose name the home took, and it has been in successful operation in Mount Airy, Germantown, Philadelphia, for many years last past. It has been so firmly established as a philanthropic institution that other testators have left bequests to it.
    2. The testatrix entered this home on Sept. 18, 1920, and- remained there until her death.
    3. Before any one is admitted to the home, they are required to furnish certain information upon a blank printed for that purpose, upon the reverse side of which, and after the signature and under the title “Special Notice,” appears the following in print:
    Applicants for admission to the Home owning property of any character will he expected to transfer the same to the Philadelphia Trust, Safe Deposit and Insurance Company, a corporation of the State of Pennsylvania, in trust to create a special fund, upon the following agreement:
    Income at the rate of five per centum per annum from these properties and funds so put in trust shall he paid semi-annually to the applicant when admitted to the Home, to use in any way she may deem proper. Inasmuch as members of the Home are such during the pleasure of the Board (See Rule 1), in the event of a member voluntarily withdrawing from the Home, or being dismissed therefrom by order of the Board of Managers, this fact shall terminate the trust and principal and accrued interest shall be returned to such withdrawing or dismissed member.
    upon the death of a member of the Home, the principal and accrued interest to the credit of such member shall be applied
    First. To defray her funeral expenses, and
    Finally. All the rest, residue and remainder of said fund shall revert to and become part of the invested funds of the Leamy Home, for such uses and purposes as the Board of Managers shall elect and appoint.
    In the event that any applicant becoming the owner of property after being admitted, if she remains in the Home she will be required to assign it to the Trust Company, in accordance with the above requirements, and if on the decease of any member it be found that she has left property unassigned as above, the Managers shall have full power to charge board and maintenance of such individual at the rate of Eight Dollars ($8.00) per week from the date of her admission to the Home.
    4. The testatrix delivered certain securities to the Philadelphia Trust Company of the value of $24,100, who gave her the following receipt and declaration of trust, at the bottom of which the Leamy Home endorsed an agreement to make good to the trustee any and all deficits by reason of the payment by it to the testatrix of 5 per cent, upon the corpus:

    Philadelphia, October 1st, 1920.
    The Philadelphia Trust Company hereby acknowledges receipt from Miss Emma Christopher, at present an inmate of the Leamy Home, Mount Airy, Philadelphia, of the following securities:
    10 $1000 Bonds of the Philadelphia, Wilmington and Baltimore Kailroad 4% stock Trust Certificates, registered in the name of Emma Christopher, Nos. 2232, 3277, 4428, 4633, 5217, 7018, 7613, 9502, 9633 and 9763, due 1921.
    1 $5000 4% Bonds of the City of Philadelphia, registered in the name of Emma Christopher, No. 51, due. July 1st, 1944.
    2 $1000 Bonds of the Lehigh Valley Railroad Company General Consolidated Mortgage, registered in the name of Emma Christopher, Nos. A1199 and A1200, due 2003 (4%).
    2 $1000 Bonds of the Electric and Peoples Traction Company, 4% Gold Stock Trust Certificate, registered in the name of Emma Christopher, Nos. A525 and A526.
    3 $1000 Bonds of the Philadelphia and Reading Railroad Company (“Reading Terminal"), registered in the name of Emma Christopher, Nos. 1925, 2235 and 4042 (5%), due 1941.
    1 $1000 Bond of the Pennsylvania and New York Canal and Railroad Company, Consolidated Mortgage 5% (reduced to 4%), registered in the name of Emma Christopher, No. 5005, due 1939.
    1 $1000 Bond of the Lehigh Valley Railroad Company Consolidated Mortgage 6% (reduced to 4%%), registered in the name of Emma Christopher, due 1923, No. 11795.
    1 $100 Coupon Bond, United States Third Liberty Loan, 4% %, due 1928, No. 2322262.
    Making a total par value of Twenty-four Thousand One Hundred Dollars ($24,100) IN TRUST for the following uses, intents and purposes:
    The gross income from the above securities until they are disposed of, or until maturity, will be paid as it accrues to the said Emma Christopher, and thereafter at the rate of five per centum per annum, and in the event of her voluntarily withdrawing from the said home, or being dismissed therefrom by Order of the Board of Managers, this fact shall terminate the Trust and Principal and accrued Interest shall be returned to her.
    Upon the death of the said Emma Christopher, if an inmate of the Home, the principal and accrued interest to her credit under this Trust shall be applied as follows:
    First. To defray her funeral expenses, including her interment in her Lot, South Half of Lot 295, Section W, in Laurel Hill Cemetery, Philadelphia.
    Finally. All the rest, residue and remainder of said fund shall revert to and become part of the invested funds of the Leamy Home at Mount Airy, Philadelphia, for such uses and purposes as the Board of Managers of said Home shall elect and appoint.
    IN WITNESS WHEREOF the said Philadelphia Trust Company has hereunto affixed its Corporate Seal this 1st day of October, A. D. 1920.
    PHILADELPHIA TRUST COMPANY,
    By HENRY G. BRENGLE, President.
    Attest: V. R. TILDEN, [SEAL]
    Assistant Secretary.
    Philadelphia, October 1st, 1920.
    In consideration of the Trust assumed in the within Declaration, executed this day by The Philadelphia Trust, Safe Deposit and Insurance Company, the Board of Managers of the Leamy Home at Mount Airy hereby agrees to make good to the said Trustee any and all deficits that may at any time and from time to time arise hy reason of the payment by it to the said Emma Christopher of income at the rate of Five (5) per centum per annum upon the corpus or principal of the said fund. THE LEAMY HOME, MT. AIRY, PHILADELPHIA.
    By EWING L. MILLER, Manager.
    5. No application for admission to the Leamy Home, signed by the testatrix, with the “Special Notice” endorsed thereon, was offered in evidence, for the reason that said application was alleged to have been mislaid. Since the hearing, counsel have found said application and it has been stipulated into the record.
    6. There was no evidence offered tending to show that the Leamy Home paid anything to the trustee in fulfillment of their agreement to pay 5 per cent, on the corpus of the trust fund.
    7. Under the terms of the relationship between testatrix and the Home and the trustee, testatrix could have retired from the Home and terminated the trust at any time and received her securities back; and the Home could for any reason dismiss testatrix from the Home, in which event, they were obliged to return to her the securities in question.
    The appellants in their brief contend that decedent transferred bonds of a par value of $24,100 to a trustee for the Home, and for this she received an agreement to pay over the gross income on the securities until they were disposed of or until maturity, thereafter at the rate of 5 per cent, per annum, and during the mtervm, free board and lodging at the Leamy Home. The Home ran all the risk of collecting the bonds at maturity, as well as of a deficiency of income therefrom during the life of Miss Christopher, and for six years defrayed the expense of her board and lodging, for which the rate otherwise was fixed at $8 per week, and for this received at the time the deed was given the securities in question, as to which they thus became entitled to an absolute interest, so that nothing passed on the death of the decedent.
    The above contention that the Home became entitled to an absolute interest at the time the securities were deposited is not justified by the facts, in that the Home was required to surrender the securities to the decedent if she left the Home or was dismissed by them for any reason. The decedent, therefore, had an interest in the securities transferred by her in trust as aforesaid, which continued up to her death, and on her death passed to the Home.
    Garman’s Estate, 3 Pa. C, C. Reps. 550, relied on by the appellant, is not in point. There, decedent in his lifetime held a note of one Peter Glick for $3000, and, being doubtful as to the chance of collection, offered the note to one Philip Brown, if the latter would agree to pay him, the decedent, interest on $3000 as long as he, the decedent, lived. Brown accepted the offer, received the note and gave a bond to the decedent to pay him interest on the sum of $3000 yearly for life. He afterwards collected the full amount of the note from Glick, and for eight years paid to Garman the annual sum secured from the bond. Upon the death of Garman, the Commonwealth assessed a tax on the bond. The court sustained the appeal and held: “If the transaction was a sale by which Garman parted with the possession, title and enjoyment of a portion of his property in consideration of an annual sum to be paid to him as long as he should live, the tax would not be due in respect of the property so transferred. We are of opinion that this latter view of the matter is correct, and that the tax is not chargeable in respect of the sum of $3000 complained against.”
    I am of the opinion that the rule laid down in Hartley’s Estate, 8 D. & C. 164, to the effect that where one transfers securities in his lifetime, reserving the income thereon for life, with power to alter, change or modify the terms of the trust, or with a full power of revocation, the settlor has such an interest in the subject-matter which passes on his death to those entitled under the terms of the trust that the fund is taxable. It is a transfer by deed, made and intended to take effect in possession or enjoyment after the death of the settlor, and is clearly taxable within the provisions of section 1 of the Act of June 20, 1919, P. L. 521, as amended by the Act of May 4, 1921, P. L. 341. In this case, all the authorities necessary to an intelligent understanding of the subject-matter are collected and reviewed.
    The appeal is, therefore, dismissed, and the action of the Register “appraising and assessing transfer inheritance tax in the sum of $1130.93” is confirmed.

      R. M. Remick (of Saul, Ewing, Remick & Sa/ul), for exceptant.

      H. Horace Dawson, for Commonwealth, contra.
    March 9, 1928.
   Gest, J.,

We can discover no tangible distinction between the present case and Hartley’s Estate, 8 D. & C. 164, upon the authority of which the judge who presided at the hearing of this appeal held that the trust estate was subject to the transfer inheritance tax. As we entirely agree with his conclusions of law, the exceptions to the decree dismissing the appeal are dismissed and the appraisement of tax is confirmed.

Van Dusen, J., did not sit.


author: Dickinson, Dist. J.,

text:
    Brierley et al., Receivers, v. Commercial Credit Company.

      Practice, C. P. — Statutory demurrer — Stipulation as to judgment — Final judgment — Usury—Corporations—Acts of May H, 1915, and April 27, 1927.

    1. Under the provisions of the Practice Act of May 14, 1915, P. L. 483, a statement of claim, in addition to serving the purpose of the averment of a cause of. action, must likewise serve the further purpose of an adequate and sufficient “bill of particulars.”
    2. Where a copy of the agreement on which the action is based is set out in the statement, the agreement is brought upon the record and the cause of action is thereby restricted to the assumpsit implications arising thereout.
    3. It is the settled practice under the Act of May 14, 1915, P. L. 483, not to answer questions of law raised by a statutory demurrer unless, by a stipulation of parties or otherwise, a final judgment can be rendered and a trial thereon saved.
    4. If such a stipulation is refused and the court in looking into the record cannot find a way to enter a final judgment, the demurrer will be overruled and defendant allowed to file an affidavit of defense to the merits.
    5. Under the Act of April 27, 1927, P. D. 404, a corporation has no right to interpose the defense of usury.
    6. Qucere: Does the act preclude a corporation from recovering usury which it has paid?
    Statutory demurrer. District Court of the United States for the Eastern District of Pennsylvania, Sept. T., 1927, No. 13,362.

      Arthur E. Weil and Frank A. Harrigan, for plaintiff.

      L. M. Schoch and Thomas Stokes, for defendant.
    April 13, 1928.
   Dickinson, Dist. J.,

The practical wisdom of the rule which pertains in every appellate court that the question for discussion should he formulated in concise terms is vindicated in this as in almost every cause. Frequently the question to be discussed can be best presented through a contrast of the respective viewpoints of the parties. The demurrer here proceeds upon the theory that the plaintiff is advancing a cause of action on the basis of a demand that the defendant return the aggregate sum of the moneys which during a long course of years it has exacted from the plaintiff by way of usurious interest collected for loans made by the defendant to the plaintiff.

It is denied that a cause of action exists for many reasons, among which one may be chosen for illustration. This is that the Pennsylvania Act of Assembly of April 27, 1927, P. L. 404, denies to every corporation the right to interpose the defense of usury. As the question of law thus raised goes to the very basis of the cause of action, the Practice Act of 1915 is invoked, and the court is asked to rule in effect that the plaintiff has no right to recover. The statement of claim discloses whether the cause of action is as stated. Passing by all other questions and going directly to this as the only one to which we are asked to make answer, we find the basis of the cause of action as set forth is to be found in the agreement of Dec. 23, 1919. This agreement first provides that the defendant shall purchase of the plaintiff its accounts receivable on the basis of face value discounted at “the legal rate of interest.” This necessarily implies that all advances are on a loan basis or that the purchase price is face value, less 6 per cent., or whatever the applicable legal rate of interest may be. Of this face value 77 per cent, is to be paid down “and the remaining 23 per cent., less any deductions and total charges (as defined),” is to be paid when the accounts are paid by the debtors. For the advances made the defendant here is to receive over 15 per cent, per annum interest on the advances made, plus an additional i per cent, charge up to a certain sum.

The statement of claim is made somewhat complex by going into details, but it is in effect the case of a collecting or other agent who has received moneys belonging to the plaintiff for which the defendant is called upon to account. Under the system of pleading which formerly prevailed, the cause of action would be presented in the form of a count “for money had and received by the defendant for the use of the plaintiff,” and would be based upon the implied assumpsit to pay it over on demand. Under the provisions of the Practice Act, a statement of claim, in addition to serving the purpose of the averment of a cause of action, must likewise serve the further purposes of an adequate and sufficient “bill of particulars.” To meet this latter requirement, the details of the demand are set forth which gives to the statement more or less of the necessary complexity to which we have adverted. Among other details, a copy of the agreement appears as part of the statement. This brings the agreement upon the record, and the cause of action is thereby restricted to the assumpsit implications arising thereout. If such were not the case, it would be clear that the defendant was attempting to set up the agreement as a defense (at least pro tanto) to the demand for the sum for which it was to account. As it is, however, the agreement is incorporated as part of the statement of claim, and any answer which arises out of the agreement to the demand made becomes, not a defense, but a denial of the cause of action, and the question of its sufficiency becomes a question of law which may be raised in the way here adopted. This is true, but true only in a partial and narrow sense. The practical purpose of the Practice Act is to meet a situation which not infrequently is presented at the trial. The plaintiff opens his case and develops his proofs. It then becomes evident that, granted the jury would find in his favor all the facts in support of which he has offered evidence, the court should direct a verdict for the defendant. If the pleadings disclose a like situation, why not save the time and expense of trial by entering a judgment upon the pleadings in advance of trial? Such a question brings with it its own answer. If, however, upon the pleadings, judgment cannot be entered broadly for either party disposing definitely and finally (subject to writ of error or appeal) of the whole demand, or a definitely distinct and substantial part of it, then nothing is gained by a ruling of any questions of law which may be raised in advance of trial, and a statutory demurrer is reduced to a fishing excursion to get an advance expression of opinion from the court of the merits of what are really trial questions. Because of this, it is the settled practice under the Act of 1915 not to answer questions of law raised unless by stipulation of parties, or otherwise, a final judgment can be rendered and a trial thereon saved. This course has the support of practical considerations. Questions of law which may seem to be clear cut, if ruled upon the pleadings, often must be ruled as more or less abstract questions. The fuller developments of the trial may place them in a clearer or different light. If they are ruled as propositions of law in advance of trial, the ruling may be a source of embarrassment to the judge presiding at the trial. It is because of this, the better and safer course, if a question may become a trial question, is to so rule it and not to determine it upon the pleadings unless, as we have said, its determination enables the court to enter a judgment which has (so far as affects the trial court) finality and renders a trial unnecessary. This leads us, when a statutory demurrer is interposed, to inquire of counsel (as was done in this case) whether they would stipulate that the court might enter judgment accordingly as the questions raised were ruled, and, upon refusal to so stipulate, to announce that we would not make a ruling unless we found that we could enter a final judgment. This course, we think, has the sanction of the Practice Act. To construe its commands otherwise is to make of it, not a means of speeding the day of judgment, but of delaying it, and not of a relief to the courts, but an addition to their burdens.

We have accordingly looked into this record to find a way of entering judgment, and, not finding it, refuse to determine the questions raised because they are trial questions, the defendant being given leave to file an affidavit of defense to the fact merits of the cause within the time limit granted by the Act of 1915.


author: Sayeks, P. J.,

text:
    Commonwealth, for use, v. Drocton.

      Criminal practice — Bail—Forfeiture—Remitting in part — Notice to prosecutor — Act of Dec. 9,1783.

    1. Where defendant failed to appear at three consecutive terms of court, whereupon her bail was forfeited, and subsequently the surety procured her arrest and she was convicted and sentenced, the court will, on petition of the surety and under the power given by the Act of Dec. 9, 1783, 2 Sm. Laws, 84, remit so much of the forfeiture as will relieve the surety from payment of all in excess of costs and such sum as may be necessary to reimburse the court for the expense and inconvenience caused by the default of defendant.
    2. Notice of petition to remit forfeiture should be given the prosecutor.
    Petition to remit forfeited recognizance. C. P. Greene Co., March T., 1927, No. 77.
    O. R. Hughes, for plaintiff; James J. Purrrum, for defendant.
    May 31, 1927.
   Sayeks, P. J.,

Helen Souskey, alias Helen Siviskey, was bound under recognizance, on which Leonard Drocton, the petitioner, was surety for her appearance at No. 16, June Sessions, 1926, of the Quarter Sessions of Greene County, in the sum of $500, to answer the charge of unlawful possession of liquor. She failed to appear at June and also at September Sessions, 1926, and again at December Sessions, 1926, to which her case had been continued. On Dec. 7, 1926, her case was called and the recognizance was forfeited after calling the principal and bail three times in open court.

The recognizance was certified into the county commissioners’ office on Jan. 3, 1927, suit was brought against the petitioner on Jan. 6, 1927, and the summons was served on him. On Jan. 14, 1927, the petitioner procured a bail piece and the next day arrested Helen Siviskey, and on Jan. 17th lodged her in the county jail.

On Jan. 17, 1927, she entered a plea of “guilty” to the bill of indictment and was sentenced to pay the costs of prosecution in the case and a fine of $100 to the Commonwealth, and was committed to jail until the sentence was complied with. She has paid the fine and costs and been discharged.

The petitioner, who was surety on her recognizance, filed his petition to the above number and term on Jan. 24, 1927, setting forth that he is a man of small means, with a wife and seven small children, a coal miner by occupation, and unable to bear the burden which would be imposed upon him by the recovery of judgment on said recognizance, and he prays' that forfeiture of his recognizance will be remitted and that he be “relieved and discharged of his liability to answer in the action aforesaid,” and also prays for “such other order and decree in the premises as to equity and justice may seem meet and proper in the exercise of legal discretion” by the court.

The district attorney has filed no answer to this petition, but he and A. A. Purman, Esq., for the county commissioners, waived issue and service of a rule to show cause, and the district attorney appeared at the argument and filed his brief. E. D. Patterson, former county detective, was the prosecutor in this case, and, so far as the record discloses, has received no notice of this proceeding.

The purpose of a recognizance in a criminal case is to secure defendant’s appearance in court to answer the charge for which he stands indicted. The 2nd section of the Act of Dec. 9, 1783, 2 Sm. Laws, 84, under which this petition is presented, empowers the court “to order the said recognizance to be levied, moderated or remitted, on hearing the circumstances of the case, according to equity and their legal discretion.”

It seems to have been the practice in this court for some time to have forfeited recognizances remitted on motion in open court, and it has so frequently been done that the practice has become almost an accepted custom. Recognizances have been respited and forfeitures remitted to the great inconvenience of the court and at the cost of the county and frequently on very flimsy excuses, or without any excuse at all, so far as the surety is concerned. The district attorney is frequently required to bring his witnesses back at a second or third term and finally to try a case without all of his witnesses because of the carelessness of defendants and sureties who ignore the conditions of their recognizances.

In order to avoid the trouble of renewing the security, it was formerly the practice, when the bail consented, to forfeit the recognizance and respite it until the next term: Keefhaver v. Com., 2 P. & W. 240, 244. It has been determined that where a recognizance is regularly forfeited, it will not be remitted without the consent of the district attorney: Com. v. Flucker, 11 Phila. 405; but if such were the unbending rule, the court would have very little of the discretion allowed it by the act of assembly.

In Mishler v. Com., 62 Pa. 55, 61, Justice Sharswood says, it being claimed that the forfeiture of the bail bond was invalidated as against the surety by subsequent respite: “It is not easy to perceive upon what principle mere indulgence thus • accorded to the principal would discharge the bail. It is entirely for his benefit, for it cannot be doubted that if the principal should surrender himself and stand his trial at the term to which the case was continued, the Court of Common Pleas would remit the forfeiture, as they are authorized to do by the 2nd section of the Act of Dec. 9, 1783, 2 Sm. Laws, 84, according to equity and their legal discretion.”

If the forfeiture is declared, relief thereon becomes a matter of grace and not of right: Com. v. Oblender, 135 Pa. 530. The liability of the recognizor becomes absolutely fixed and relief must be sought by petition, as in this case: Foulke v. Com., 90 Pa. 257; Com. v. Real Estate etc., Co., 22 Pa. Superior Ct. 235; Com. v. Brandt, 17 C. C. 138.

The courts have frequently refused to remit or modify recognizances: Com. v. Oblender, 135 Pa. 530; Foulke v. Com., 90 Pa. 257; Com. v. Cohen, 22 Pa. Superior Ct. 55; Com. v. Harvey, 222 Pa. 214; Com. v. McAnany, 3 Brewster, 292.

This case exhibits no particular merit, so far as the petitioner is concerned. Petitioner evidently did little or nothing to see that the defendant performed the condition imposed by the recognizance, and did not produce her in the Court of Quarter Sessions until after the forfeiture was declared. His poverty and the size of his family and the fact that he is a wage-earner of limited means should have been taken into consideration by him before entering into this recognizance. The disposition of the petitioner and other sureties in this court has been to treat a recognizance as “a mere scrap of paper.” It has been further suggested by the district attorney that petitioner should allege in his petition that he was not hired to become a surety on this recognizance and that he has received no security from the defendant to indemnify him, as suggested in Com. v. Nestor, 19 York Leg. Record, 35; Mayne v. Fidelity, etc., Co., 8 Dist. R. 711.

Something must be done to remedy the trouble that has been frequently apparent in this court. Defendants, and their bail as well, should learn that a recognizance requires the appearance of the defendant at a specified time, and unless causé is shown why such appearance was impossible, the penalty in the bond or recognizance will be imposed. It is not necessary that the court enforce payment of the whole penalty, but only such as meets the reasonable demands and the equities of this particular case: Com. v. Gaul, 2 Woodward, 70; Com. v. Cohen, 22 Pa. Superior Ct. 55; Com. v. Stegmaier, 5 Kulp, 502.

The reasoning of the court in Com. v. Gaul, 2 Woodward, 70, 73, applies equally as well to this case. “But the recognizance was in $500 and the judgment has been entered for the full amount. There is no equitable reason why the whole judgment should be exacted. Upon the collection of the money, the law requires its payment into and its distribution by the court. After the application of the fund to costs, the counsel and the prosecutrix, there would remain a balance which no principle would justify the court in surrendering to the county. This would amount to the infliction upon Jacob Reed of a punishment for becoming Gaul’s bail, more severe than that which would have been inflicted upon Gaul himself if he had been tried and convicted.”

In cases of this kind notice of this application should be given to the prosecutor, who in this case is the county detective: Com. v. Brandt, 17 C. C. 138; Com. v. Gaul, 2 Woodward, 70. Since he acts under the direction of the district attorney who appears here, the notice will not be required in this case.

Since preparing the above opinion, the court, upon examination of the record in the Quarter Sessions, finds that the defendant forfeited her recognizance at September Sessions, 1926, and it was respited on her petition.

Order.

And now, May 31, 1927, for the reasons above set forth, it is ordered and directed that the order of forfeiture of the recognizance be modified and that petitioner pay the costs of this proceeding, amounting to $15.10, and the sum of $84.90 to the County of Greene to recompense it for the expense and inconvenience caused by the default of defendant and petitioner in this case, and the remainder Of the sum declared forfeited, to wit, the sum of $400, is hereby remitted and the recognizor and petitioner, on complying with the above order, is hereby relieved of the payment of said sum, and judgment is hereby entered on said recognizance for $100, to be distributed as above set forth.

From S. M. 'Williamson, Waynesburg, Pa.