But set certs and the like. This appears not constable's notice of sale, such as has only by that part of the act which I have been attempted to be framed here. quoted, but also from the proviso, which without passing upon that question, we declares, that the penalties of the act feel called upon to condemn this indictshall not apply "to those tearing down ment as lacking in that particularity of or removing show bills, play bills, posters averment which the pleader in (or) programmes, after the performance ting out an offense of such a character therein advertised, or to the owner or would at least be bound to observe. tenant of any building, fence or other There is nothing here to describe, locate structure, when the same has been post- or limit the charge except the most gened or put up without his or their consent, eral terms. No constable is named, nor except such owner or tenant be the bill any process given, nor any locality desigposter putting up or employed to put up nated. It might be made to apply to any the same." It is true that the statute constable in the county, and to any prouses the expression, "other advertise- cess which he might happen to have hal ment," and it is contended that this is in his hands within two years on which broad enough to cover a constable's no- he advertised the defendant's property tice. But it is a familiar rule of construc- for sale, whether landlord's warrant or tion, that terms which are employed to- execution. This is altogether too vague. gether in an enactment as are these, are and indefinite. It amounts to no notice to be considered as of kindred signifi- to the defendant of the charge which she cance, the more general meaning of the is called upon to meet, nor is it sufficione being controlled by the particular ex- ently certain to bar a second indictment. pression of the other; Pardee's Appeal, It may be added that this objection ap100 Pa. 412. What is meant in this plies, whether our opinion as to its sufficonnection therefore is other advertise- ciency as an indictment under the staments of like character with those al- tute is correct or not. ready enumerated. It is not intended to apply to anything and everything set up dictment quashed. along the highway which may be designated as an advertisement, but rather to Q. S. of the bills and posters giving notice of or advertising public entertainments. The public have an interest in the information conveyed by these and therefore in the preservation of them until after the time for the performances of which they gave notice have gone by, and this furnishes an occasion and a legitimate basis for the passage of the statute. The rule is made absolute and the in Road in Huntington. Roads-Necessity. Luzerne Co. Where there is a report of viewers in favor of, and a report of reviewers against, a proposed road, and it appeared that there were ninety miles of road in the township, that the ordinary taxes were insufficient to keep them in proper repair, that the damages assessed were two hundred dollars, that the cost of opening the road and bridging the creek would be from one to two thousand dollars, and that, with the exception of two or three families, the existing roads accommodated the public reasonably well, and where the private road We are law afforded an ample remedy for those specially not justified in extending it beyond its interested, it was held that there was no such public proper purpose. necessity for the road as the law contemplates. Exceptions to report of viewers. F. W. Larned for road. I. P. Hand, contra. An attempt has been made however to justify this indictment at common law and we have held the case under advisement rather on that account than be- June 12, 1893. RICE, P. J.-Two of cause of any doubt about its not coming the three viewers report in favor of the under the statute. In Pennsylvania vs. proposed road, and the three reviewers Gillespie, Addison 267, an indictment report against it. It would have been was sustained which charged the defend- proper case for a re-review, but as this ant with unlawfully, forcibly and con- was not asked for, we must decide betemptuously tearing down, and contemp- tween the two conflicting reports. We tuously refusing to replace an advertise- have uniformly held in such cases that ment set up by the commissioners of the burden of proving the necessity for Fayette county for the sale of lands for the road to accommodate the public rests taxes. This would seem to go a long way towards sustaining an indictment for willfully and maliciously tearing down a upon the petitioners, and if, upon a fair consideration of the reports and the testimony, the court is not satisfied that the road is needed for public accommodation, cause plaintiffs have not shown that the it must fall. The difficulty and expense assignee received, from the drafts, any of keeping in proper repair existing roads money which he added to or mingled are sufficient reasons for refusing to open with the general mass of deposits in the new roads where the public necessity bank, or that any money in bank was therefor is doubtful; Road in Hazle, 6 ever set apart, or in any manner apKulp 463, and cases cited. There are propriated to the payment of the drafts, ninety miles of road in Huntington town- therefore plaintiffs cannot invoke the ship, and we can readily see, as alleged principle that equity will follow trust by the exceptants, that the ordinary property through all transmutations into taxes are insufficient to keep these exist- which it can be traced; even if drafts had ing roads in as good condition as they been actually paid in cash instead of should be. The damages assessed in merely charged, it is probable that plainfavor of property owners along the line tiffs would not have preference over of the proposed road are two hundred general creditors in the absence of identidollars. The cost of opening the road fication.-Freiberg, et al. v. Stoddart, and bridging the creek will be from one (Luzerne C. P.) 7 Kulp 157. to two thousand dollars. With the ex ception of two or three families the ex--The report of viewers appointed to es Streets:Opening of-Duties of viewers isting roads accommodate the general imate and determine the damages and public reasonably well, and the private benefits arising out of street improveroad law affords an ample remedy for those specially interested. Upon a full ments under the Act of May 16. 1891, 1. consideration of all the facts we do not ed a schedule of the damages and benefits L. 75, must show that the viewers preparthink we would be warranted in saying allowed and assessed in the case of each that there is such a public necessity for this road as the law contemplates. party interested, and that notice was Therefore, the exceptions to the report place where the viewers would meet and given to all the parties of the time and of viewers are sustained and the report exhibit the schedule and hear all exis set aside. Abstracts of Recent Decisions. ceptions thereto and the evidence; and the viewers should file with their report a plan showing the improvement, the properties taken, injured or destroyed, and the properties benefitted by the im (Cases not otherwise designated are provement.-McDermott v. City of Nev Supreme Court cases.) Castle, (Lawrence C. P.) 24 Pittsburgh Equity-Right to follow trust fund.- Will-Construction of-Absolute bePlaintiff's sent to Rockafellow & Co. quest.-A bequest by a father to his bankers, for collection and remittance, daughter of his personal estate "during two drafts upon certain persons who had her life-time, and absolutely should she ceposit accounts with the bankers, and leave issue at her decease; otherwise I the drafts, after acceptance, were charg- give and bequeath one-half of the unexed against those accounts, one draft on pended balance of the bequests to her by February 1, the other on February 7, and me herein made to my son, C., and his remittance was made by exchange, legal representatives after her decease, which was subsequently protested for she to have the sole benefit and control non-payment. On February 8 the bank thereof during her life time, with full being insolvent, closed their doors, and privilege and authority to dispose of the on February II assigned to the defend- remaining one-half of the unexpended ant for the benefit of creditors. The as- portion of the bequests to her aforesaid signee, upon taking charge, found cash in such manner as she may deem proon hand exceeding the amount of the per." HELD, that the legatee was endrafts. Upon bill filed to restrain distri-titled to the absolute use of the fund durbution among general creditors and to ing her life time without security.compel payment of said amount, the Hughes' estate, (Montgomery C. P.) 9 court refused preliminary injunction be- Montgomery Law Reporter 176. The affidavit of defence averred that defendants had borrowed $400 from M, and gave their bond therefor; that shortly afterward $200 of this amount with interest thereon, was paid; that one of the defendants borrowed $500 from the plaintiff Association and gave his bond therefor; that said Association, out of said $500. paid to M. the balance on his bond and had the same transferred to it, said payment and transfer being without the knowledge or consent of said defendants; and that about $275 had been paid by one of the defendants to said Association plaintiff, "which will about pay the balance due on said judgment." On a motion for judgment for want of a sufficient affidavit of defence, HELD, that the motion must be overruled. The last allegation of payment of "about" $275 to the Association since April 2, 1890, is not sufficiently specific and certain to prevent judgment. The payment of the $200 out of the money borrowed from the Association, is sufficiently averred to be a bar to judgment, and while its force is weakened by the averment of such payment and transfer without the knowledge of the defendants, yet in favor of a trial by jury the Court will infer that such allegations were intended to apply only to the transfer of the judgment. Motion for judgment for want of a sufficient affidavit of defence. Plaintiffs issued a scire facias to revise the lien of a judgment assigned to them by H. W. McCall, Esq. To this scire facias, defendants filed the following affidavits of defence: That on the 29th day of March, 1887, William Fishel, one of these defendants, borrowed from Hugh W. McCall, the legal plaintiff, the sum of four hundred ($400) dollars, for which he gave his certain judgment note for said amount, payable to said Hugh W. McCall, and upon which George Fissel, the other de fendant, became the surety. sum of two hundred ($200) dollars, on account of the principal of said judgmen and six ($6) dollars interest on the same, from the time of the making of said loan to the time of the payment of the said two hundred ($200) dollars, as aforesaid, That said William Fishel, defendant, paid the interest upon the said two hundred ($200) dollars, then remaining due, up to the 2nd day of April, 1890. That on the 2nd day of April, 1890, said William Fishel loaned from the said Standard Building & Loan Association of York, Pa., the above use plaintiff, the sum of five hundred ($500) dollars, and gave said Association his certain judgment bond for the same, which was duly entered upon said last mentioned day in Office, in said the Prothonotary's Office, County. That out of said sum of five hundred ($500) dollars, loaned to said William Fishel by said Association, the balance of two hundred ($200) dollars, due upon said judgment to said Hugh W. McCall was paid, and the said judgment transferred upon the record to said Association. That said payment of the said judgment of Hugh W. McCall by said Association and the transfer of said judgment to said Association, was done without the knowledge or consent of either of the said defendants, nor did either of the said defendants know that the same was about to be done, nor that it had actually been done, until within a very short time. That since the 2nd day of April, 1890, William Fischel, one of the defendants, has paid to said Association about the sum of two hundred and seventy-five ($275) dollars, which will about pay the balance due upon said judgment so assigned to it by said Hugh W. McCall. That said defendants are not indebted to said plaintiff upon the above mentioned judgment in any amount. All of which they aver and expect to be able to prove upon the trial of the cause. Plaintiffs then filed the following motion: The judgment was entered upon said. And now, August 7th, 1893, the Court note in the Prothonotary's Office, of is respectfully moved by N. Sargent Ross, said county, to No. 959, of January Term, 1887. That on the 27th day of September, 1887, William Fishel, one of the defendants, paid to said Hugh W. McCall, the attorney for plaintiff in above named case, to grant judgment for want of a sufficient affidavit of defence, for the sum of two hundred dollars, with interest from the 2nd day of April, A.D. 1890, with costs and attorneys commissions, The last allegation of payment of and with all conditions, stipulations and waivers contained in the original judg ment. N. Sargent Ross for motion. Stewart, Niles & Neff, contra. October 16, 1893.-BITTENGER, J.As a general rule no defence can be made to actions on judgments except defences relating to matters and things subsequent to the judgment: Seymore v. Hubert, 92 Pa. 499; Stroud's App., 109 Pa. 326. These matters are mostly confined to payment or release. The affidavit of defence in the case under consideration is confined to allegation of payment of the judgment to the original payee and the use plaintiff. I. It is alleged that William Fishel, one of the defendants, paid to the plaintiff, McCall, $200.00 and all interest on the judgment, to April 1, 1890. 2. That the balance of $200.00 was paid out of money borrowed by William Fishel from the use plaintiff on a judgment bond, dated April 2, 1890, and the judgment assigned on the record to the holder thereof, the Standard Loan and Building Association, plaintiffs. Then follows an averment that said payment and transfer were made without the knowledge and consent of the defendants, and that knowledge of the same was only obtained by them shortly before the filing of the affidavit of defence, (July 25, 1893). "about" $275.00 to the association since April 2, 1890, is not sufficiently specific and certain to prevent judgment. The affidavit must not be uncertain or evasive; Allen v. National Bank of Germantown, 10 W. N. C. 188. Is the averment that the balance due on the judgment April 2, 1890, was paid fendant, William Fishel, from the assoout of the moneys borrowed by the deciation, on bond of that date, qualified by the allegation immediately following, that said payment and transfer of the and consent of the defendants, sufficient judgment were without the knowledge to move the Court to refuse judgment? Averments of payment in affidavits of defence must be distinctly and not evasively set forth; Coulston v. Bertolet, 12 Atl. 285, digested in 4 Bright. Dig. page 6371, pl. 92. Nothing can be left to inference; Peck v. Jones, 70 Pa. 83. It must not be vague and indefinite; Langfeld v. Lyon, 132 Pa. 141. ficiently averred to The payment of the $200.00 is sufhave been paid out of the money borrowed from the Association, on April 2, 1890, and must be a bar to judgment, unless the subsequent averment of want of consent of defend ants and knowledge thereof on the part of said defendants, to the payment and transfer of said judgment, for a period of about two years after said alleged judgment and transfer renders the averment of payment so vague and contradicThe affidavit further avers, in sub-tory as to entirely deprive it of the force stance, that since the 2nd day of April, and effect it would otherwise have. 1890, William Fishel, one of the defendants, paid to the Association plaintiff, about $275, "which will about pay the balance due on said judgment." It is contended on the part of the plaintiff that the affidavit is insensible and contradictory to such an extent as to render it insufficient to prevent the entry of judgment on the sci fa. While it is not stated on the record, for what amount the judgment is assigned to the association, and no credits appear there, and the rule is for judgment, generally, it is admitted by counsel for the plaintiff that the $200.00 and interest on the judgment, first specified in the affidavit, are paid. Judgment can in no event, therefore, be entered, except for the balance. This is a close question. It is very evident that the averment of payment is materially weakened by what immediately follows. The absence of knowledge of the payment and transfer of the judgment and non-consent thereto, seem inconsistent with payment out of the moneys which one of the defendants borrowed from the Association, giving his bond for the same. Yet in favor of a trial by jury we may conclude, as contended by counsel for defendants, that the allegations of want of knowledge and consent intended to be averred, were in regard to the transfer of the judgment and not its payment. It is alleged by plaintiff's counsel, said transfer was made pursuant to agreement, the existence of which agreement son of the injury alleged to have occurred through the negligence of the defendant in directing or permitting the guard of the McGinty rolls, which the boy was operating at the time of the accident, to be taken off. there is as yet no evidence before us, that fact can readily be established on a trial. In a case involving so much doubt we hesitate to deny the defendants a jury trial for the balance now claimed. The rule cannot be made absolute for the whole amount because the payment of The novel feature of this case is that the $200 and interest on the judgment the defendant used his own patent invento April 1, 1890, is properly averred and tion as a guard to avoid such accidents as now admitted. For the reasons stated, this, which must necessarily have frewith some reluctance, we refuse to allow quently occurred to his employees, by judgment for the balance and interest. reason of the danger and hazard in operAnd now, October 16, 1893, the motion is overruled and rule discharged. C. P. of Reese v. Hershey. Lancaster Co. Employer and employee:Dangerous employment-Damages for accident. When a master voluntarily subjects his servant to dangers, such as in good faith he ought to provide against, he is liable for any accident arising therefrom. ating the McGinty rolls, without protection. and especially so when run by steam power and at their highest speed, in the rapidity with which the rolls reIvolve in taking the candy through it in certain conditions of the weather. The defendant brought into court one of these machines with a sample of the candy or caramel material, and its manner of working was shown to the Court Plaintiff's son, aged seventeen years, lost his and the jury. At the time of the accileft hand while operating a rolling machine in dent the boy was seventeen years of age, defendant's caramel factory. The boy was hired had been at his work but seven or eight to operate and had for seven weeks operated weeks, and had never operated the mathis machine, protected by a guard, the invention of the defendant. About three hours be- chine without the patent guard, nor seen fore the accident, the defendant took off the it so operated without it until that day. guard from this machine, as it was trouble- The testimony of the plaintiff shows that some, the candy being unusually sticky. He the candy on the morning of that day testified that he cautioned the boy against the danger of the machine. The boy denied all was particularly sticky, and wrapped recollection of this, but admitted that he knew itself around the rolls, thus impeding that the machine was dangerous without the their action, that the defendant took the guard. The court refused a non-suit and the guard off the machine, when the followjury found for the plaintiff. HELD, That the ing conversation occurred between them, case was properly submitted to the jury and a as stated by one of the plaintiff's witnew trial should be refused. nesses: "He cautionel the boy to be careful; he asked him whether he could work at the machine with the guard off as well as with the guard on, and he said he could, or, he would try it." The defendant then started the machine without the guard, and after the boy had operated it about three hours the accident occurred. The boy did not remember that anything was said by the defendant before the machine was started. Rule for new trial. H. M. North for rule and defendant. contra. October 9, 1893. BRUBAKER, J.-The question now before us is, whether the question of negligence in this action should have been submitted to the jury under the peculiar circumstances of the case. As we have said before, and also in our charge to the jury, we now say, it It is not disputed that the boy was emis a close case; but we are not prepared ployed to operate the machine as it was to say that the testimony was insufficient perfected by the patent invention after it to warrant a recovery. After a careful had been applied, and that he had no exreview of the record, we are still unwill-perience whatever with the working of ing to assume the responsibility of de- the rolls without this protection before, termining it, and we shall therefore leave or received special instruction as to its the matter for the consideration of the operation when the protection had been appellate Court. removed. The boy, on the ingenious reThe action is brought by the father for cross-examination by the counsel for the the loss of the services of his son by rea- defendant, was led to say in the last |