v. Brillhart, 271 Pa. 301; Rhodes v. renders a verdict under forty shillings to inquire whether they intend to find the full costs, and if they answer in the affirmative, it is the duty of the court to mould a verdict in proper form as the jury intended." We then asked the jury, "where do you intend to put the costs?" and the foreman replied, "On the defendant." The prothonotary was then directed to take the verdict, and it was taken and recorded. "Verdict for the The records in this case show a serious obstacle to the success of the defendant's motion, because the legislature of 1923 amended the 21st section of the Practice Act of 1915, by requiring that the "motion to strike from the record any such pleading shall be filed, and a copy thereof served upon the party filing plaintiff, with damages one dollar and such pleading, or his attorney, within costs on defendant." fifteen days after a copy of such pleading shall have been served upon the Plaintiff had not requested the court. opposite party or his attorney." Act to charge the jury respecting costs before May 23d, 1923, P. L. 325. The record it retired to consider the case, and, of shows that the requirement of that course, no reference was made to the amendment was not complied with. costs. The Act of Assembly applicable For the foregoing reasons, we must to such cases was approved 27th of refuse to sustain the motion to strike March, 1713. Sec. 4 Purdon, 4403, Plac. off. 3, as follows: 1 And now, February 27th, 1923, motion to strike from the records plaintiff's statement is refused. C. P. of "In all actions upon the case of slanderous words, to be sued or prosecuted, by any person or persons, in any court within this province, if the jury upon the trial of the issue in such action, or the Schuylkill Co. jury that shall inquire of the damages, do assess or find the damages under forty shillings, then the plaintiff or plaintiffs in such action shall have and recover only so much costs as the damages so Leitzel v. Romberger Slander Damages - Costs-Act of given or assessed do amount unto, with March 27, 1713. The act of March 27, 1713, provides that a cover more costs than the amount of the out any further increase of the same." The statute would seem to indicate plaintiff in an action for slander cannot re- that the plaintiff cannot recover any verdict, yet, under the practice in Pennsyl- more than one dollar, and Mr. Justice vania, the court may inquire of the jury, at Burnside said in Moon v. Long, 12 Pa., the time of rendering the verdict, whether it is intended that the plaintiff should have full costs and as the jury decided so the court should mould the verdict. Rule for judgment on verdict. 207: "It is to be regretted that the judges did not adhere to the letter of the statute in the first instance; but in England. it was the resolution of all the judges of the king's bench and common pleas, J. B. McGurl and G. L. Reed, for that although the court is bound by the plaintiff. Henry Houck, for defendant. statute, and cannot increase the costs where the damages are under forty shillings, yet the jury are not, and may give Koch, J., November 12, 1923.-The ten pounds costs and but ten pence damjury rendered its verdict for one dollar ages: Browne v. Gibbons, Salk., 207; damages in the plaintiff's favor, but Hullock, Law of Costs, 38." And, after counsel immediately moved the court to making further reference to English deask the jury before their, discharge "if | cisions, the justice said, "Out of their dethey meant the costs to follow," and add- cisions on the English statute grew the ed that, "It is customary when a jury practice in all our courts, as well as at nisi prius, followed by the circuit courts And now, November 12, 1923, the rule and court of common pleas, and by all is discharged, and the prothonotary is judges to this day, where juries in action directed to enter judgment upon the verof slander render a verdict under forty dict in the plaintiff's favor for the sum shillings, to inquiry whether they intend- of one dollar and all the costs. ed to find full costs, and where they answer in the affirmative the plaintiff obtains a verdict for full costs and a judgment accordingly; it being the duty of the court to mould and enter the verdict in proper form as the jury intended it.” In that case the award was one dollar damages and that defendant pay the costs, and it was held that the plaintiff was entitled to judgment for full costs. In Gower v. Clayton, 6 S. & R., 85, the verdict was for five dollars with costs of suit, and it was held that the plaintiff was entitled to full costs. In Willet v. Seville, 2 Grant, 388, it 14, 1915, P. L. 312, and June 7, 1923, was held that a jury is not restricted as to costs in case of slander, and said, *P. L. 677-Repeal of one Act by another * *where they found damages less than forty shillings, they may find twenty cents damages and full costs, or divide the costs between the parties." But in Stuart v. Harkins, 3 Binney, 320, decided years before any of the foregoing, it was held that an award under forty shillings with costs entitled the plaintiff to no more costs than damages. In Refowich v. Rice, 4 Pennypacker, 449, decided in 1884, there was an award in slander "in favor of the plaintiff for six cents damages and costs," and it was held that the award did not carry full costs; that the arbitrators' intent could not be inquired into after their award had been rendered. The Supreme Court ordered judgment to be entered only for six cents costs. In the case before us the usual practice, as required in Moon v. Long, supra, was followed. The jury was inquired of concerning the costs and they clearly stated that the defendant should pay them, and as the matter was entirely within their control, their verdict cannot be disturbed, and the only inference that can be drawn from the facts as they are made to appear is that the jury intended that the defendant is to pay all the costs. by implication. Under the Borough Act of May 14, 1915, P. L. 312, as amended by the Act of June 7, 1923, P. L. 677, boroughs have the power, without petition of property owners, to grade, pave, curb, macadamize, or otherwise improve public streets, or parts thereof, and assess the cost thereof, one-third against the owners of the property abutting on each side of the street and the remaining onethird to the borough, when said streets, or parts thereof, do not exceed one thousand feet in length and connect two streets, or parts of a street theretofore paved and im proved. The Act of June 7, 1923, contains no reIt must be considered as an pealing clause. enlargement of or an addition to the classification of streets found in the Act of 1915; and it has no effect whatever on other legis lation relating to the paving, etc., of other streets in a borough. One Act is held to repeal another by im plication only in cases of very strong repugnancy or irreconcilable inconsistency. Petition for declaratory judgment. M. V. Cummings, for Petition. Edwards, P. J., May 19, 1924.—The matter on which the judgment of the court is prayed for in this case involves the interpretation of certain sections of two Acts of Assembly, viz, the Acts of 1915 and 1923 relating to the paving of a street or streets in a borough without the petition of the abutting property owners. Chapter VI, Article VII, Section 9, of lows that the Act of 1923 does not apply the Borough Code of 1915, P. L. 312, provides as follows: "Boroughs without petition, or upon petition verified by affidavit of at least one of the petitioners, may grade, curb, pave or macadamize streets, lanes and alleys, or parts thereof, and collect from the owners of real estate abutting on the improvement by an equal assessment on the foot front, the whole cost, or part thereof, including the expenses for the necessary drainage thereof, as follows, that is to say:" (Subsections I, II, III and IV omitted, not applicable). In to the streets mentioned in the petition. street. It will be noticed that there is no repealing clause in the Act of 1923. It simply adds another subsection to section nine, of article seven, of chapter six, of the Borough Code of 1915. The legislature evidently saw the necessity of "Subsection V. If any street is grad-providing for a particular class of streets ed, curbed, paved or macadamized without a petition, as provided in this sec-streets; or, apparently, cross streets runtion, then two-thirds of the cost may be collected." Section 13 of the same chapter and article sets forth the procedure to be followed by the borough in proceeding without a petition. streets between two paved ning from one paved street to another, although the 1923 Act is not specific on this point. This latter Act must be considered as an enlargement of or an addition to the classification of streets found in the Act of 1915; and it has no effect The Act of 1923, P. L. 677, provides whatever on other legislation relating to The Act of 1923, P. L. 677, provides the paving, etc., of other streets in a that the Borough Act of 1915 "be borough. amended by adding an additional sub section to section nine of article seven, We do not see how the question of of chapter six thereof, which shall read repeal by implication can arise in this case. One Act of Assembly is held to cases of very strong repugnancy or irreconcilable inconsistency: Phil. v. Miller, 42 Pa. Super. Ct., 471. In the case at bar, the change effected by the Act of 1923 is slight, but it is the duty of the courts to give effect intended by the legislature to an amendment to an Act however slight the change might be. as follows: "IX. That all boroughs in this com-repeal another by implication only in monwealth shall have the power, with out petition of property owners, to grade, pave, curb, macadamize or otherwise improve public streets, or parts thereof, and assess the cost thereof, one-third against the owners of the property abutting on each side of the street and the remaining one-third to the borough, when said streets, or parts thereof, do not exceed one thousand feet in length and connect two streets, or parts of a street theretofore paved and improved." The petition further states that both of the streets proposed to be paved without petition are more than one thousand feet in length, and do not connect two paved streets, or parts of a street. Taking it for granted that the foregoing statement of fact is not to be gainsaid, the conclusion inevitably fol Now, May 19, 1924, the court is of the opinion that the Act of 1923, P. L. 677, amending the Borough Code of 1915, by adding an additional subsection to section 9, article 7, of chapter 6, of the Code, applies only to the streets or parts of streets mentioned in the said Act of 1923 and to the method of apportioning the costs of paving, etc., as therein provided; and judgment is rendered to that effect. Cost of these proceedings are to be paid by the borough of Winton. C. P. of Hammer v. Grove York Co. The 3rd paragraph of the statement does practically admit that the deed was not delivered by the plaintiff on April Ist, 1922, as stipulated, but the same Contract for the sale of real estate paragraph sets forth that "plaintiff and modified by oral agreement-Statute of defendant modified said written agree frauds. A written contract for the sale of real estate, modified by a subsequent oral agreement changing the date for the delivery of the deed and possession and for the payment for damages resulting from the refusal of of the purchase money, will sustain an action the defendant to pay the purchase price when ment as follows: possession was given the defendant by the plaintiff about the 15th day of February, 1922, and in consideration therefore the defendant was relieved from payment of the purchase price of said real estate until the delivery of the deed, and the defendant agreed verbally to the delivery of a deed. Sur affidavit of defense raising ques-at a date subsequent to April 1st, 1922, tions of law in Jesse Hammer v. Henry at such time as a lawful deed could be Grove. No. 98, October Term, 1922, in the Court of Common Pleas of York delivered by plaintiff to defendant." County, Pa. tendered the deed at the time fixed by the modified contract. John A. Hoober, Esq., for plaintiff. W. H. Kurtz, Esq., for defendant and motion. Ross, J., February 4th, 1924:-The suit is to obtain damages alleged to be occasioned by the defendant in refusing to take and pay for a deed and title of the land which defendant had agreed to buy under certain conditions stipulated in the written agreement. The plaintiff's statement of claim recites the terms and the entire written agreement, but does not sue for enforcement of the contract, but for damages alleged to have been occasioned the plaintiff by the defendant not taking and paying for the deed and title so preparted and tendered by reason of the contract. The defendant has filed an affidavit of defence under the 20th section of the "Practice Act 1915," which says in substance, that, I. The plaintiff admits in paragraph 3 of his statement that he did not comply with the terms of the written agreement entered into between the parties for the sale of the real estate in question. 2. The Plaintiff bases his statement of claim upon an alleged parol agreement for the sale of said real estate which is unenforcable at law. 3. Charges that plaintiff "does not set. forth any specific time" for the performance of said alleged parol agreement for the sale of said real estate. We think the questions of law raised by the defendant are not sufficient in law to affect plaintiff's suit for damages. The statement itself expressly shows that the suit was brought not for the purpose of enforcing the contract for the casioned by the alleged breach of a versale of real estate, but for damages ocbal contract whereby the plaintiff was damaged, according to his allegations contained in the statement. "A parol contract for the sale of lands is good, under the act of frauds and perjuries, to support an action for damages": Ewing v. Tees, 1 Binn. 450; George v. Bartoner, 7 Watts, 530; Lowry v. Mehaffey, 10 Watts, 387; McDowell v. Oyer, 21 Pa. 417; Hertzog v. Hertzog's Admrs., 34 Pa. 418. The affidavit of defense raising questions of law is not sustained. And now, February 4th, 1924, the defendant is ordered to file a supplemental or amended affidavit of defense within fifteen days from this date. Brownson, P. J., March 17, 1924.-It has been made to appear upon the hearing, and is now found as a fact, that Lloyd Cutshall, being the owner of the Dodge automobile against which this proceeding in-rem was instituted, unlaw Interpretation of statutes-Condemna- fully used said car on or about August 1, 1923, in and for the transportation of tion of vehicle used in unlawful trans-intoxicating liquors within the County portation of intoxicating liquor-Rights of Washington. It follows from this, of chattel mortgagee out of possession and we find as matter of law, that the Commonwealth has a clear right to a Act of March 27, 1923, P. L. 34, Sec. 11, decree of condemnation under the act of subdivision (D), and Clause (III) of March 27, 1923, P. L. 34, as against Cutshall. subdivision (B). The only other matter for determinaWhere, as against the owner of an auto- tion is whether Sparks B. McCauslen, mobile the Commonwealth is entitled to a as intervening claimant under a chattel decree of condemnation, under the Act of March 27, 1923, P. L. 34, on the ground that mortgage of the automobile, is entitled the vehicle while in the possession of the to any relief. His rights have been dis owner, was used in the unlawful transpor the Commonwealth, and cannot prevent the incurred by the acts of the owner, in possession; such mortgagee does not come within the class of claimants, who under the provisions of subdivision (D) of section 11 of tation of intoxicating liquors, a chattel mort-cussed to some extent in an opinion heregagee, out of possession, is not entitled to tofore filed, in connection with a petitake the possession of the seized car from tion wherein, previous to the institution Commonwealth from enforcing a forfeiture of the present proceeding, he prayed for an order requiring the district attorney to deliver up the possession of the car to him: Com. v. Cutshall, 4 Wash. Co. R. 7. We there held that a covenant contained in the mortgage, (which was made in the State of Ohio,) whereby the mortgagor agreed that in the event of a "default of payment, or any misuse, * * attempt from the county the act, are entitled to this relief; Commonwealth v. Cutshall, 4 Wash. Co. R. 7, reaffirmed. The provisions of clause (III) of subdivi sion (B) of section 11 of the Act of March 27, 1923, P. L. 34, relating to payment out of the proceeds of a condemnation sale of a vehicle seized while being used in the unlawful transportation of intoxicating liquors, of the amount owing upon a "bailment lease or contract," afford relief only to a claimant * * * to remove * * * or upon any seizure by any process of law," the who is a "bailor," having the "legal title" and who was out of possession at the time mortgagee should have the right to take of the seizure because the property was held possession of the car and make sale "under a bailment lease or contract," and a mere mortgagee, out of possession, is not within the meaning or scope of this language; he is not a bailor and he does not have the legal title. While is may be proper to interpret Clause (III) with some measure of liberality for the purpose of protecting the rights of innocent parties, it clearly is not admissible in its interpretation, to reject any expressly prescribed conditions of the granting of the relief, and thus to apply the provision to a case which is plainly and clearly outside of the meaning and scope of the language used. In re condemnation of an automobile used for unlawfully transporting intoxicating liquors. Howard W. Hughes, District Attorney, and Thomas L. Anderson, Assistant District Attorney, for Commonwealth. R. E. Burnside, for claimant. thereof, would not be permitted by the courts of Pennsylvania to interfere with the statutory right of this commonwealth to seize and hold the car for the purpose of carrying on a condemnation proceeding against it, and we refuse to take the car out of the custody of the district attorney, or to interfere with the Commonwealth's proceeding to obtain a decree of condemnation. We left for determination, at the final hearing of the condemnation proceeding, the question whether under the provisions of the Prohibition Enforcement Act any relief could then be given to the claimant. The mortgage was made at Steubenville, Ohio, on March 8, 1923. By it, in consideration of $350, paid by McCauslen to Cutshall, the latter mortgaged this |