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down and wait until the citizens notify them that their highways are out of repair. The right to recover damages for injuries sustained by reason of dangerous places in the streets, including the sidewalks, proceeds upon the ground of a negligent omission on the part of the corporate officers to perform a duty imposed upon them by law-and that duty is one of reasonable diligence in the supervision and repair of structures, over which their jurisdiction extends.

In Vanderslice v. City of Phila., 13 W. N. C. 373, where the damage resulted from the breaking of a sewer, the question of notice was considered, and the learned Justice who delivered the opinion of the Court, followed closely the reasoning and the text of the opinion of the Court of Appeals of New York in McCarthy v. City of Syracuse, (46 N. Y. 194.)

In both cases, the doctrine is affirmed, that "mere absence of notice does not necessarily absolve the city from the charge of negligence. Its duty to keep its sewers in repair *** involves the exercise of a reasonable degree of watchfulness in ascertaining their condition from time to time and preventing them from becoming delapidated or obstructed. When the obstruction or delapidation is an ordinary result of the use of a sewer

which ought to have been anticipated, the

omission to make an occasional examination and to keep the sewers in apparent good repair is a neglect of duty which renders the city liable." There is not one word of this which does not as well apply to a board walk as to a sewer, for a boardwalk is at least as perishable. We do not however understand the language cited to mean anything more than that actual notice is not required. A distinction is taken in the case, between defects that are latent and those which are open and readily observed upon inspection. In the one case actual notice is evidently meant, on the other notice either actual or constructive. Said the learned Court "the city is

presumed to have knowledge of an open defect after a reasonable time has elapsed for its ascertainment and removal." The act of 1851, confers upon the municipal officers ample powers for the management and control of brorough affairs, and in no department are they more completely equipped with power, than in their jurisdiction over the borough highways. Their duty in terms is to "remove nuisances," and they are armed with the power to tax ad libitum. Having then the authority, and holding the purse strings, there is no hard-ship in the rule which requires them to exercise reasonable diligence in looking after the sidewalks and streetsand this is the standard of their duty in this regard. Has it been fulfilled in this case.

The referee has found actual notice, because the supervisor of streets testified that he saw this hole in the sidewalk "just before" the accident. How long before, would have been a most pertinent inquiry, but was not made. It is contended the evidence was insufficient to support such a finding, and if this was the only evidence from which notice could be inferred, it would perhaps be our duty to set aside this report.

But under the act of April, 1868, (P. L. 782) the Court is permitted to look into

the evidence as well as the law and to enter such judgment as it may deem proper.

Was there then sufficient evidence to warrant the finding of constructive notice to the corporate officers.

Jas. L. Kerr, (page 66 notes of evidence,) testified "I have noticed the hole frequently in passing up and down before this accident."

Anne Olewiler, (pge 12,) I walked over this (board walk) last summer and stepped in a broken plank once, (describing the location as the same.) It was before Mr. Siltzer was hurt.

Israel Jacobs, (pge 17,) I was acquainted with this sidewalk, *** I got my

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foot in it one evening * * * It was be- C. P. of
fore this accident happened ***
say whether a long or short time before,

but it was last summer."

Surely it is a reasonable inference from this evidence that the defect in the boardwalk was patent before the accident and could, with the exercise of reasonable vigilance on the part of those having charge of it, have been discovered and repaired. This view is strengthened by the absence of any proof of watchfulness at all by the borough officers. Had they shown proper diligence coupled with want of notice, there would be good reasons for excusing them-but we must take the case as presented, and upon this point alone, the only one urged upon us, it would be idle to recommit the report or send the parties to a jury.

We do not lose sight of the argument that the borough could not in the first instance have made this repair, even conceding the obligation to do so-because the statute (1 Purdon 167 pl. 26) and the ordnance require the owner of the adjoining

lot to construct the sidewalk within ten days after notice from the borough authorities to do so. But it must be observed, that the fact that borough officers are requested to notify lot owners of their duty in this regard, points to the necessity of inspection and supervision. If the lot owner fails to repair, then the borough may do so and file its lien-so that assuming the statute and the ordinance to refer to the repair of worn-out sidewalks, as well as to their original construction, the borough has still the duty resting upon it to do this work, either mediately or immediately, and it can scarcely be permitted to plead its omission to notify the property owner, as a defence to this action.

We, therefore, after a careful consideration of the law and facts of this case, dismiss the exceptions, confirm the report, and enter judgment for the plaintiff there

on.

The defendant has taken out a writ of error, and the case goes to a higher tribuunal for final adjudication.

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Lancaster Co.

Weaver et al. v. Steacy et al. Sheriff's Sale-Distribution of proceeds Three hundred dollars exemptionTaxes-Act of June 2, 1881.

In the distribution of the proceeds of a sheriff's sale of real estate, if the defendant has waived the benefit of the

exemption laws in three judgments, he cannot claim it as against a judgment creditor in whose judgment there is a waiver; Pitman's Appeal, 12 Wr. 315, followed.

A claim for taxes, under the Act of June 2, 1881, (P. L.

45), must state what taxes are claimed and when levied, and also in all other respects must conform strictly to the Act of Assembly. As the requirements of the Act were not observed in this case, the claim was not entitled to priority of payment allowed by the Act.

Where a party is clearly entitled to the balance of the fund for distribution, the Court will not subject it to the costs of an audit, but will order the sheriff to pay such balance over to the party legally entitled to it.

Rule to show cause why the balance in hands of the sheriff should not be paid into Court.

Under and by virtue of a writ of venditioni exponas issued to April Term, 1883, No. 44, the real estate of Morris Cooper,

one of the above named defendants, was sold by the sheriff on April 7, 1883, for the sum of $6,832.38. At the time of the sale by the sheriff there were open, unpaid and remaining as liens on Cooper's said real estate, six judgments.

The first four judgments have heen paid in full by the sheriff out of the purchase money realized from said sale, and there remains in his hands an unappropriated balance of $301.91. The whole of this balance is claimed by W. D. Weaver et al, on their judgment to August Term, 1879, No. 266. Part of it is claimed by Morris Cooper, the defendant, under the exemption laws of the Commonwealth, and a claim is only made for $63 of it for taxes against Cooper which remain unpaid. The sheriff being in doubt as to which of the claimants were entitled to the fund, through his counsel, asked for and obtained a rule to show cause why the same should not be paid into Court.

June 20, 1883, Livingston, P.J. Should the rule in this case be made absolute, and the fund subjected to the costs of an audit ? Is the defendant entitled to the benefit of the exemption laws? Is the collector of

taxes entitled to be paid prior and in preference to the judgment creditors?

Three of the judgments against defendant contain waivers of the benefit of the exemption laws; two of them being prior to the judgment of Weaver et al. The defendant Cooper, having waived his right to the benefit of the exemption laws in those judgments in favor of plaintiffs therein cannot claim it as against the judgments of Weaver et al. This is rendered perfectly clear on reference to the opinion of the Supreme Court in Pitman's Appeal, 12 Wr. 315, and this disposes of the claim made by Cooper, the defendant.

The claim made for taxes is not in writing. The claimant does not state what taxes are claimed, or when levied. He simply claims $63 for taxes. The act of June 2, 1881, P. L. 45, declares, "That from and after its passage, all taxes, whether county, township, poor, school, or municipal taxes assessed by competent authority upon real estate in this Commonwealth, except in cities of the first, second, and fourth classes, shall be a first lien from the date of levying the same upon the real estate upon which they are levied, and in all cases where such taxes cannot be collected from the owners of such real estate, or the tenants thereof, or persons, companies, or corporations assessed for such taxes under existing laws shall, on or before the first day of January next after the assessment thereof, be returned by the persons having such taxes for collection to the commissioners of the county in which they are assessed for collection according to the existing laws, and to be recorded as a lien in a book to be kept in their office for that purpose for use as a reference for all persons interested, to be called the Tax Lien Record, in which such return shall be entered in full with a proper index thereto, both to the township or borough where located, and to the name of the parties assessed for such taxes respectively. That such returns shall contain a statement of the

amount of each kind of tax so returned, the names of the parties assessed with the same, the year when such taxes were assessed, a sufficient description by boundaries or otherwise of each separate lot or tract, and about the quantity of the same, and the township or borough in which it is located; that the person making the same has a warrant for the collection of such taxes, and the date thereof, and that after a proper effort at the proper time, he could not find sufficient personal property by a legal sale of which such taxes or any portion thereof could have been collected, which returns so made shall be signed and verified by oath or affirmation of the persons respectively making the same, and when recorded as aforesaid shall thereafter be the first lien on the real estate upon which they are assessed respectively for the term of two years from the first day of July next after they are returned and recorded as hereinbefore provided, and such record shall be notice to all persons, and a certified copy thereof signed by a majority of the commissioners or the commissioner's clerk in whose office such record is kept, and attested by the official seal of office, shall be prima facie evidence of the amount of such taxes in all cases relating to the same, and upon payment of such taxes the record of the same shall be satisfied by a majority of the proper commissioners having it so marked, which shall be attested by them.

"That upon any judicial sale of such real estate for purchase money or otherwise during the continuance of the lien of such taxes as hereinbefore provided, such taxes shall be first paid out of the proceeds of such sale upon proper claim and proof of the same before an auditor or otherwise, as in other cases after payment of costs, etc."

The claim for payment of taxes in this case has not been properly made under this act, and the certificate now in possession of the sheriff by the county commis

YORK LEGAL RECORD.

VOL. IV. THURSDAY, FEBRUARY 28, 1884.

No 52.

sioners under their official seal is that there was no lien for taxes filed or of record in their office against the real estate sold by the sheriff as the property of Morris Cooper, the defendant, at the time of said sale on April 7, 1883. The tax claimed cannot therefore be paid out of the proceeds of such sale now in the hands of the sheriff.

Having seen that the claim of the defendant cannot be sustained, and that the tax claim is without foundation, it follows that the balance now in the hands of the sheriff should be applied towards the payment of the judgment of Weaver et al.

We therefore discharge the rule, and direct the sheriff to apply the balance in his hands as above stated in part payment of the judgment of Weaver et al., to August term, 1878, No. 266.

Rule discharged and order made.

York County v. Reeser.
Re-audit of 1872--Effect of appeal--
Striking off judgment.

Under the provisions of the Act of 1872, the County Reauditors reported an indebtedness on the part of the defendant and his colleagues, Commissioners of York county of $3,0:9.20. This report was filed in the Prothonotary's office and judgment for that amount entered against defendant and his colleagues. Defendant appealed from this report, but the appeal was never prosecuted. A scire facias was issued on the judgment, and after the lapse of five years the defendant filed his petition praying the Court to quash the scire facias and strike off the report of the Re-auditors. HELD, That the petition must be dismissed.

The defendant having appealed from the report, has himself brought it into Court for adjudication.

There may be matter for judicial investigation, and this can only be determined upon the hearing of the appeal, upon an issue properly presented to the Court.

ber, 1864, to the year 1867, duly elected and qualified, and that he took upon himself the said office and acted as such for and during his full term. That the duly elected Auditors of the county in each and every year of his said term, duly did audit, settle and adjust the accounts of the board of Commissioners of which he was a member, and in due form made their report thereof to the Court of Common Pleas of the said county, and in each and every of the said years from 1864 to the expiration of his said term of office the said Commissioners did fully, fairly and honestly submit to the said County Auditors all the accounts of the county in the business transacted by them and the several reports of the said Auditors were filed among the records of the Court of Common Pleas of said county; and although the right of appeal from the reports aforesaid was given by law within 60 days, yet no appeals were ever taken from the reports of the Auditors so filed as aforesaid; and your petitioner avers that in none of the said Auditors' reports was he your petitioner ever charged with being indebted to the county of York one cent.

Your petitioner further shows that although the County Auditors' reports of the settlements of his accounts as Commissioner for 1864, remained unappealed from for eight years; those for 1865 for seven years; those for 1866 for six years; yet under the provision of the Acts of Assembly of March 6, 1872, and April 3, 1872, Messrs. Cochran, Maish and Wallace were appointed to re audit said accounts, who filed their report as such re

Petition to quash scire facias and strike auditors, January 2, 1873, entered 284

off report.

W. C. Chapman for petition.
Levi Maish, contra.

To the Honorable Judges of the Court of Common Pleas of York County.

The petition of William Reeser the above defendant respectfully represents

That he was one of the Commissioners of said county, from the roth of Novem

November Term, 1872, in the said Court in which your petitioner and Henry Miller and John E. Anstine, his colleagues, are charged with an indebtedness to said county of $3019.20. He further shows that from said report and the entry of the same in said court he took his appeal according to law, which was duly entered in said Court to No. 67 April Term, 1873;

and that on said report although appealed from, the aforesaid scire facias was issued to number 59 January Term, 1878, on the 20th day of December, 1876, and that the said scire facias has not since been prosecuted, and nothing further been done in the case, and that more than five years have since elapsed since the issuing of the said scire facias. He further shows that the records of said Court are still encumbered with said report of the re auditors, showing an apparent lien on his real estate, to his great damage and detriment and seriously impairing his credit.

Wherefore he prays that this petition may be permitted to be filed as an amendment to his affidavit, filed in said Court, January 7th, 1878, and that the facts stated herein may be considered and treated as the further ground of his prayer in said affidavit.

And further that the prayer of said petitioner contained in said affidavit that the Court should quash the above mentioned writ of scire facias, may be permitted to be enlarged so that he may add the prayer that the Court will strike off the said report of the re-auditors, entered as aforesaid to 284 November Term, 1872, as filed and entered against him under the authority of the said acts of 1871; the said acts being unconstitutional and void. And he will pray, &c.

WILLIAM REESER.
W. C. Chapman, for petition.
Levi Maish, contra.

November 5, 1883, GIBSON, A. L. J.Having expressed the opinion, that on account of the appeal taken, from the report

of the re-auditors and entered in this court, the court cannot summarily strike off the report, but that all questions touching its validity must be tried on an issue, I was requested to reduce my reasons to writing.

Ist. There is nothing to bring before the court the cognizance of the report except the appeal. The 4th Section of

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the Act of the 6th of March, 1872, directs the re-auditors to file their report in the office of the prothonotary, without any order of the court being required for that purpose, and there was no order of the court in the premises. Such order has been held to be requisite in county auditors' reports: Lan. Co. v. Slocum, 4 Leg. Op. 473; Com. v. Hoffman, 24 P. F. S. 105. If, therefore, the filing of the reauditors report has any effect as a judgment at all, it is only by virtue of its entry under the authority of the Legislature, if it had such authority. If the judgment had so remained, as in the case of judgments otherwise entered by the prothonotary, a motion to strike it off might have been sustained. pealed from the report of the re-auditors, and that appeal is entered in the Common Pleas docket to April, 1873, No. 67. The petitioner has therefore brought the report before the court for adjudication.

But the petitioner ap

2nd. There may be matter for judicial investigation under the Act of March 6, 1872, because it has been held that the action of county auditors in reviewing accounts of county officers is not judicial in its character: Burns v. Clarion Co., 12 P. F. S. 422. It was there held that the Legislature have the power to open the settlement of county officers accounts and readjust and resettle them, when the purpose is expressed "to resettle and equitably adjust the same." The preamble of the Act of March 6, 1872, expresses the purpose of the act in these words: "That all persons who have dishonestly or unlawfully used or applied to their own use the public funds of said county, should be compelled to reckon for the same and to repay the amount with interest." That such is not the case here can only be shown under the appeal. An issue may therefore be directed.

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