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on the 26th day of August, 1893, the said 2. The property was not put up and assignees in pursuance of said order of offered separately as advertised but was sale sold the two tracts of land of the sold as a whole with the understanding assignor as one to Amy B. Kast, wife of or agreement between the purchaser and the assignor, for the sum of $1,525.00. C. B. Myers, one of the assignees, that a That it will require the entire amount of part or portion of said real estate should said purchase money to pay said prior be afterwards transferred to said C. B. liens and the costs and expenses, and Myers. your petitioner's judgment will not be 3. That persons at the sale were inreached.

timidated and prevented from bidling, by That the real estate of said assignor the actions, language and conduct of the was appraised at the sum of $2,688.72, purchaser. and your petitioner was informed and be H. Keesey, E. W. Spangler and lieved that the said real estate would be Geise, Ziegler & Strawbridge for excepbid up to a sum so as to more than cover tions. her judgment.

Stewart, Niles & Neff, contra. That the said two tracts of real estate October 1, 1893. LATIMER, P. J.were not put up for sale, first, separate- Mere inadequacy of price we would not ly, as is the custom in real estate, but regard as a sufficient reason for refusing were sold as a whole, and your petitioner to confirm this sale. is informed that there was a purchaser at But when, as here, there is very great the sale ready to bid for one of said inadequacy of price, sufficiently indicated tracts, if put up separately, and nothing by the difference between the amount was said about the straw and manure, bid at the sale, viz: $1,525, and the apwhich was to go to the purchaser. praisement, $2,688.72, and especially

That your petitioner is a widow 76 when a creditor obligates herself to bid years of age, in very feeble health and it at a re-sale nearly twenty-five per cent. is with the greatest difficulty that she can advance, the Court should closely scrumove about, and is seldom able to leave tinize the sale, and if any irregularity the house, and this by reason of such appears, which probably affected the physical disability, as well as her belief bidding adversely, refuse to confirm. that the real estate would bring enougi Setting aside the allegations of intimito pay her judgment, that she did not dation, of which there is no evidence, it attend the sale of said real estate, that if appears that this real estate was advershe had so attended she would have bid |tised to be sold in two tracts, of which up said property to cover her judgment. only No. I was separately offered and That at a re-sale of said real estate she that there

a person at the sale will bid up said property to the sum ot for the purpose of bidding on No. 2, $2,000.00, which sum will be required to which was not separately offered. In reach her lien; and she respectfully asks addition to this, it seems that the hay, leave to file her bond in this Court in the straw and manure were not clearly and sum of $2,500.00 conditioned for the distinctly sold with the land, as agreed execution of her said promise to bid at a on between the execution creditors and re-sale of said real estate the sum of the assignees, while the declarations of $2,000.00

the assigner madle at the sale, were calYour petitioner therefore prays the culated to throw considerable doubt on court to set aside said sale of said this matter. Mrs. Krall's physical inaassignor's real estate, and to continue the bility seems to afford excuse for her not order of sale granted to said assignees, being at the sale. and to grant her such other and further i For the reasons stated the confirmrelief as the circumstances of the case ation of the sale is refused, and the asrequire.

signees are directed to sell the real estate Another judgment creditor was allow again in two tracts, offering each tract ed to join in the above, and filed the fol- separately and then both tracts as lowing exceptions:

whole, and to give full and unequivocal 1. The price for which said property notice that the hay, straw and manure was sold was much below its actual value. will be sold with the land.

was

a

Marshall v. Neiman.

ment not having been taken according to Practice-Act of May 23, 1887- Appeal law, must be stricken off. froin justice.

Rule ma le absolute, that the judgment

be stricken off. On an appeal taken from the judgment of a justice of the peace, plaintiff filed his statement C. P. of

Luzerne Co. and defendant failing to file an affidavit of de

Lee v. Lewis et al. fence, judgment was taken by default. On a Mechanics' lien Constitutional law-det motion to strike off, Held, that the judgment

of June 8, 1891. will be stricken off.

The act of June 8, 1891, P. L. 225, in so far There is no provision in the Act of 1887 for

as the same undertakes to make the contractor the taking judgment by default ou appeals the agent oi the owner, and to conser on him from justices.

authority to bind the building for labor and No equitable co:astruction of the Act of 1887 materials furnished upon his order, notwithcan reduce the period of 35 days, in cases of standing the fact that the parties to the conappeals, provided by the local act of 1872. tract have agreed that the contractor shall not

have the powers of an agent, and that no lien Motion to strike off judgment.

shall be entered against the building, and that The Court's opinion gives the facts: the sub-contractor or material man knew of

thie agreement, is unconstitutional. GIBSON, P. J.-This is a rule to show

Exceptions to referee's report. cause why judgment should not be stricken off, or opened and the defend- for plaintiff.

J. Q. Creveling, Alerander Farnham ant let into a defence. The proceed

J. G. Miller, George R. Bedford for deings upon which the judgment was

fendants. entered consist of an appeal from the

July 29, 1893. Rice, P. J.—The act judgment of a justice of the peace, of June 8, 1891, P. L. 225, entitled “An rendered November 1, 1879, and appeal Act securing the rights of sub-contractors taken November 20, 1879, and entered

to file mechanics' liens and preventing inJanuary 5, 1880, to November Term, terference with this right by contracts," 1879, No. 20. On the roth of February, undertakes to make the contractor the 1888, a statement was filed, and service of same had the same day upon the de- agent of the owner, and to confer on him

authority to bind the building for labor fendant, and judgment taken for want of and materials furnished upon his order, an affidavit of defence on the 28th of notwithstanding the facts that the parties February, 1888.

to the contract, upon which the right of This suit was commenced before the the sub-contractor or material-man to a act of Vay 23, 1887, and appeal entered lien must be founded, have agreed that when the act of March 5, 1872, P. L. the contractor shall not have the powers 203, was in force, providing for thirty of an agent, and that no lien shall be days' notice, in writing, in cases of judg- entered against the building and that the ment by default for want of an affidavit sub-contractor or material-man knew of of defence in appeals from the judgments such agreement. In this case the plainof justices of the peace. There is no tiff was told by the owner that he would provision in the act of 1887, for the tak- not pay or be responsible for any maing judgment by default on appeals from terials furnished by him, and that the justices. The sixth section provides that contract provided that no liens should be “if the plaintiff shall neglect to serve his entered against the buildings, and yet, statement at least fifteen days before the notwithstanding this express notice, he return day of the writ, he may file it on proceeded to furnish the materials, and or at any time after the return day," in insists on his right to hold the building order to require the defendant to file an for their price. It has been decided reaffidavit of defence within fifteen days peatedly, that such an agreement violates after notice that the statement has been no rule of public policy, and that, wher filed. This is not applicable to appeals clear and explicit, it binds not only the from justices. Nor can any equitable contractor but the sub-contractor and construction of the act of 1887 reduce the material-man as well. But if it is in the period of time, namely, thirty days' power of the legislature to declare it notice, as provided in the local act of invalid and of no effect as against the 1872, in cases of appeals. This judg-sub-contractor, then, as the referee wel

says: “It may likewise, by another and C. P. of

Lancaster Co.

Johnson v. Burkholder et al. similar law for that purpose authorize the sub-contractor to disregard the other CostsRetention of by sheriff on sherterms of the original contract requiring

iff's sale-Suit against sheriff to rethe builder to conform to the plans and

cover illegal costs. specifications, to use specified materials,

The plaintiff's real estate was sold under an and to make good his undertakings re- the sheriff retained $126.59 as costs out of the

execution issued on one of two judgments and garding the character of the workman- proceeds, which were insufficient to satisfy the ship, and yet confer a right to a lien for judgments. Subsequently the plaintiff satisfied something which the owner never con. the judgments, and obtained a decree from the templated or authorized.” Meritorious as

Court striking out $68.55 of these costs. The are the claims of those whose labor or dismissed his appeal, and the plaintiff brought

sheriff appealed to the Supreme Court, who materials have gone into a building, they suit on his appeal bond for the $68.55 and $12 are not superior to the right of the owner Supreme Court costs. in improving his property to deal with HELI), that the suit was properly brought on one person instead of many, and to pro

the sheriff's appeal bond instead of on his offi

cial bond. tect it against liens for debts which he

Held further, that the claim being adjudihas not contracted. And much as such cated, no defense could be allowed but payclaims are to be favored, and are entitled ment and satisfaction, and a counter claim to protection, there is a limit beyond could not be maintained as a set-off. which the legislature cannot go without

Rule for judgment for want of suffiinfringing the right of private property cient affidavit of defence. guaranteed to the citizen by the constitu

J. W. Johnson, for rule. tion. If the right of a sub-contractor or G. C. Kennedy, contra. material-man to a lien were a common October 9, 1893. BRUBAKER, J.law right, which accrues to him from the The matters upon which this suit is mere fact that he has furnished materials brought seem to be res adjudicata. It is or done work on the building, and inde- an action against Ex-Sheriff Burkholder pendently of any contract with the own- and his sureties on a bond given by him er, we do not doubt the power of the leg- to the plaintiff on an appeal taken by the islature to declare that a waiver of it sheriff, the defendant, to the Supreme must be evidenced by a writing signed by Court from the decree of this Court in him. So also, we concede that a statute the taxation of costs on certain writs of providing that such an agreement as this, levari facias. On October 5th, 1891, this in the original contract, should be invalid decree was affirmed and the aappeal jisas against a sub-contractor or material- missed by the Supreme Court. man, without notice, might be a reason The affidavits of defence, four in numable regulation for the protection of a ber, set forth a dual defence to the effect: meritorious class which has always been ist. There can be no recovery, for the favored in our law, against which no well reason the suit is not brought on the Exfounded constitutional objection could be Sheriff's official bond; and urged. But we agree with the referee in

2d. A counter claim by way of set off. holding that a statute which puts it out oi

We feel satisfied that the action was the power of the owner to protect his properly brought. If not

, the names of property from liens, by a stipulation in Sureties on bonds of public officials for the contract under which the work is done appeals would be superfluous and of none or the materials are furnished, is an un- effect virtually, if the position taken by authorized interference with the right of

counsel for the defendant be the correct a citizen to contract in relation to his

one, that the action should have been property. The referee has so thoroughly brought against the defendant on his ofand satisfactorily discussed the question ficial bond. that we do not deem it necessary to add

An official bond, it is true, is given as anything to what he has said.

security for the faithful performance of The exceptions are overruled, the an official duty; but it is of a collateral report of the referee is confirmed, and nature, and in cases of this kind, an judgment is directed in favor of the de- additional remedy merely; and it is but fendants.

just to the security of an official bond

Vol. VII.

C. C. 443.

Zork Legal Recard. he shall not be entitled to be discharged

from such imprisonment or arrest until THURSDAY, NOV. 30, 1893. No. 25. he shall have been in actual confinement

during a term of at least sixty days." that the remedy against the surety on Was then the judgment against the the appeal bond is enforced. The claim petitioner “obtained in an action foundhaving been adjudicated, no other deed on actual force?" The offence for fence could be allowed except that of its which the petitioner was mulcted in dampayment and satisfaction, since the en- ages was the removal of a sewing matering of the decree from the Supreme chine. It is not pretended that he used Court.

any more force than was necessary for We are, therefore, obliged to direct this purpose. True, he was angry, but judgment to be entered for the plaintiff there is no evidence that his anger maniand against the defendants for the fested itself in any acts of violence, nor amount of the claim with interest to this does the plaintiff who was present at the · date, to wit, in the sum of ninety-five removal testify that she was put in fear. dollars and thirty-four cents, with costs This is not enough. To constitute "acof suit.

tual force” within the meaning of the act

"the force must be such as to put one C. P. of

Northampton Co. standing in defence of possession in fear Dimmick's Case.

of personal injury”; Widner's Case, 10 Insolvency-Application for discharge

Phila. 82. See also Graeff's Case, 12 Pa.

But even if the evidence esDamages-Act of 16 June, 1836.

tablished a case of actual force, we still By the words “actual force” in the seven- think the section of the act under discusteenth section of the insolvent act is meant such force as to put one standing in the de- sion offers no bar to the present petition, fence of possession in fear of personal injury because the judgment in the case at bar is

Said seventeenth section presents no obstacle for less than $100. We cannot doubt that to a discharge under the act in any case where the words "where the damages found by the damages found do not exceed one hundred the jury shall exceed the sum of $100" dollars.

qualify each of the actions mentioned in Sur petition for a discharge under the the section, and not merely actions for insolvent act.

criminal conversation. The comma after 0. H. Myers for petition.

the words "criminal conversation" indiE. Allis, contra.

cates this, aside from the absence of any August 21, 1893. Schuyler, P. J.- apparent reason why all the actions menThis is a petition for a discharge under tioned in the section should not be placed the insolvent act. At the time his peti- insolvent act "being a statute in favor of

on an equal footing. Moreover, the tion was presented the petitioner was in the liberty of the citizen, a liberal conthe custody of a constable under a ca. sa. Struction must be given to it;" Delaney's issued by a justice of the peace on a judg- Case, 2 Phila. 393. ment in trover for $55. His discharge is

Petition discharged. resisted solely on the allegation that this judgment was “obtained in an action founded on actual force.” The objection

QUARTER SESSIONS. is grounded on the seventeenth section of

Montgomery Co. the insolvent act which provides that “if

Road in Abington Township. the petitioner is in custody or confine- Road LawVacation-Petition. ment by virtue or process issued upon A petition to vacate a public road should set any judgment obtained against him in an iorth the circumstances which render such vaaction founded upon actual force, or upon

cation necessary.

If neither the petition nor report set forth actual fraud or deceit, or in an action for

more than that the road is useless, inconvena libel or slander, malicious prosecution, ient and burdensoine, there are no facts before or conspiracy, or in an action for seduc- the court upon which it can base its judgment. tion or criminal conversation, where the Exceptions to report of viewers. damages found by the jury shall exceed Chas. H. Stinson & Son, for exceptants. the sum of one hundred dollars *

Holland & Dettra, contra.

Q. S. of

*

one

was

October 2, 1893. WEAND, J.-The been laid out for many years and generpetition in this case asks for the vacation ally used by the public, has it in his of a public road because the same “has power to procure a vacation of the road become useless, inconvenient and burden- without a single resident of the township some.”

other than himself having either actual or The proceeding is under the act of 13th constructive notice thereof. Before such June, 1836, P. L. 558, section 18.

a result can be obtained the act should be The distinction between a proceeding strictly followed, so that before adopting to lay out a road and one to vacate a road the report of the jury the court may be is clearly defined in Newville Road Case, fully advised. It is no answer to say 8 W. 172, where it is said that the latter that this would be assuming that the jury proceeding a matter purely within the would not do their duty properly, for discretion of the court. In a proceeding where no one appears to object they to lay out a road the act defines definitely might well assume that no the duties of the viewers and what they opposed to the proceeding. shall return; and this being done, the The road asked to be vacated is on the court adopts their conclusions, unless line of two townships, and was laid out good reasons to the contrary are shown. and traveled for many years. On the

In a proceeding to vacate, however, we county map it would appear to be an find no specific directions as to the duty approach to a thriving borough and the of the viewers, because as the court is to railroad station, and we would therefore judge of the propriety of the proceeding, require good reasons for its vacation; and it is only necessary show by the petition as no notice was served on the superand report such facts as will induce and visors or the public, without the slightest aid the court to exercise its discretion. degree reflecting upon the viewers or In order that the court may act intelli- the applicants, we think our duty regently in the first instance, the twenty- quires us to set aside the report because thir section of the act provides that neither the petition nor report is in con"every application to vacate a road, as formity with the requirements of the act aforesaid, shall be in writing and signed of Assembly. by the applicants; it shall set forth, in a For all we know, the jury may have clear and distinct manner, the situation adopted a conclusion of law or been inand other circumstances of such road or fluenced by facts which could be satishighway, or of the part thereof which the factorily explained. Hereafter, in all applicants may desire to have vacated as proceedings to vacate roads in townships. aforesaid." The object of this require we shall require notice to the supervisors ment is apparent—that the court may, and the public. before appointing viewers, be informed

The exceptions are sustained, the reof the circumstances which render the port of the viewers is set aside and the road unnecessary. It is an essential part petition is quashed. of the petition to enable the court to act. In the case under consideration no facts

Abstracts of Recent Decisions. or circumstances are set forth, either in the petition or report, other than that the road is useless, inconvenient or burden (Cases not otherwise designated are some; but of this the court is to judge Supreme Court cases.) from the “situation and circumstances.” How are we then to exercise a discretion CitiesStreets-Widening of-Costs, or to know whether the facts are suffici- -Under the Act of 1891 the Court of ent to justify the finding of the jury? Quarter Sessions may, on motion, order

The mischief likely to result from such the payment by the city of costs, when a course of procedure is easily seen. No properly ascertained and taxed, of a renotice is required under the act of As- view had to widen a street in a city, the sembly or rules of court except to land- report of the reviewers having been conowners or occupants of the vacated road. firmed nisi by the court. There can be And thus a person owning land on both no legal reason for viewers to consume sides of a public road, which may have four days in meeting to widen a street

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