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v. Brillhart, 271 Pa. 301; Rhodes v. renders a verdict under forty shillings to Terheyden, 272 Pa. 397; Angelicchio v. inquire whether they intend to find the Director General of Railroads, 81 Pa. full costs, and if they answer in the afSupr. Ct. 393, 396-7.

firmative, it is the duty of the court to The records in this case show a ser mould a verdict in proper form as the ious obstacle to the success of the defen- jury intended.” We then asked the jury, dant's motion, because the legislature "where do you intend to put the costs." of 1923 amended the 21st section of the and the foreman replied, “On the dePractice Act of 1915, by requiring that fendant." The prothonotary was then the “motion to strike from the record directed to take the verdict, and it was any such pleading shall be filed, and a taken and recorded. “Verdict for the 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: And now,

February 27th, 1923, motion to strike from the records plain- "In all actions upon the case of slantiff's statement is refused.

derous 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 C. P. of

Schuylkill Co. jury that shall inquire of the damages, Leitzel v. Romberger

do assess or find the damages under fortv shillings, then the plaintiff or plaintiffs in such action shall have and recover

only so much costs as the damages so Slander -- Damages Costs--Act of given or assessed do amount unto, withMarch 27, 1713.

out any further increase of the same.” The act of March 27, 1713, provides that a The statute would seem to indicate plaintiff in an action for slander cannot re- that the plaintiff cannot recover any

costs than the amount of the 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 207: “It is to be regretted that the judgfull costs and as the jury decided so the es did not adhere to the letter of the stacourt should mould the verdict.

tute in the first instance; but in England Rule for judgment on verdict. 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.

statute, and cannot increase the costs Henry Houck, for defendant.

where the damages are under forty shill

ings, 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

cover more


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

C. P. of

Lackawanna Co. in proper form as the jury intended it." In that case the award was one dollar Petition of Winton Borough for damages and that defendant pay the

Declaratory Judgment costs, and it was held that the plaintiff was entitled to judgment for full costs.

In Gower v. Clayton, 6 S. & R., 85, the Declaratory judgment-Power of borverdict was for five dollars with costs of suit, and it was held that the plaintiff ough to pave street without petition of was entitled to full costs.

abutting property owner--dets of Jay 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 alct by another

where they found damages less by implication. than forty shillings, they may find twenty cents damages and full costs, or di- Under the Borough Act of May 14, 1915, vide the costs between the parties."

P. L. 312, as amended by the Act of June 7, 1923, P. L. 677, boroughs have the power,

without petition of property owners, But in Stuart v. Harkins, 3 Binney, grade, pave, curb, macadamize, or otherwise 320, decided years before any of the improve public streets, or parts thereof, and

the cost thereof, one-third against foregoing, it was held that an award un

the owners of the property abutting on each der forty shillings with costs entitled the side of the street and the remaining one

third to the borough, when said streets, or plaintiff to no more costs than damages.

parts thereof, do not exceed one thousand

feet in length and connect two streets, or In Refowich v. Rice, 4 Pennypacker, parts of a street theretofore paved and im49, decided in 1884, there was

proved. award in slander "in favor of the plain

The Act of June 7, 1923, contains no re

pealing clause. It must be considered as an tiff for six cents damages and costs,

enlargement of or an addition to the classiand it was held that the award did not fication of streets found in the Act of 1915; carry full costs; that the arbitrators' in- and it has no effect whatever on other legis

lation relating to the paving, etc., of other tent could not be inquired into after their streets in a borough. award had been rendered. The Supreme

One Act is held to repeal another by imCourt ordered judgment to be entered plication only in cases of very strong repug

nancy or irreconcilable inconsistency. only for six cents costs.

Petition for declaratory judgment. In the case before us the usual practice, as required in Moon v. Long, supra, JI. V. Cummings, for Petition. was followed. The jury was inquired of concerning the costs and they clearly Edwards, P. J., May 19, 1924.- The stated that the defendant should pay matter on which the judgment of the them, and as the matter was entirely court is prayed for in this case involves within their control, their verdict cannot the interpretation of certain sections of be disturbed, and the only inference that two Acts of Assembly, viz, the Acts of can be drawn from the facts as they are 1915 and 1923 relating to the paving of a made to appear is that the jury intended street or streets in a borough without the that the defendant is to pay all the costs. petition of the abutting property owners.





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Chapter VI, Article VII, Section 9, of lows that the Act of 1923 does not apply the Borough Code of 1915, P. L. 312, to the streets mentioned in the petition. provides as follows:

The Act applies only to a certain class

of streets in a borough-streets not over "Boroughs without petition, or upon one thousand feet in length and running petition verified by affidavit of at least from one paved street to another. In one of the petitioners, may grade, curb, such streets the costs of paving is apporpave or macadamize streets, lanes and tioned as follows: One-third to be paid alleys, or parts thereof, and collect from by the borough, one-third by the owners the owners of real estate abutting on the of property on one side of the street, and improvement by an equal assessment on the remaining one-third by the owners the foot front, the whole cost, or part of property on the other side of the thereof, including the expenses for the

street. It will be noticed that there is necessary drainage thereof, as follows, no repealing clause in the Act of 1923. that is to say:"

It simply adds another subsection to sec(Subsections I, II, III and IV omitted, tion nine, of article seven, of chapter not applicable).

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 with short

between two paved out a petition, as provided in this sec- ! streets; or, apparently, cross streets runtion, then two-thirds of the cost may be ning from one paved street to another, collected."

although the 1923 Act is not specific on Section 13 of the same chapter and this point. This latter Act must be conarticle sets forth the procedure to be sidered as an enlargement of or an addifollowed by the borough in proceeding tion to the classification of streets found without a petition.

in the Act of 1915; and it has no effect The Act of 1923, P. L. 677, provides whatever on other legislation relating to that the Borough Act of 1915 "be

the paving, etc., of other streets in a

borough. amended by adding an additional subsection 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 as follows:

One Act of Assembly is held to “IX. That all boroughs in this com- repeal another by implication only in monwealth shall have the power, with- cases of very strong repugnancy or irreout petition of property owners, to grade, concilable inconsistency: Phil. v. Miller, pave, curb, macadamize or otherwise 42 Pa. Super. Ct., 471. In the case at improve public streets, or parts thereof, bar, the change effected by the Act of and assess the cost thereof, one-third 1923 is slight, but it is the duty of the against the owners of the property abut-courts to give effect intended by the legting on each side of the street and the islature to an amendment to an Act howremaining one-third to the borough, ever slight the change might be. when said streets, or parts thereof, do not exceed one thousand feet in length

Now, May 19, 1924, the court is of the and connect two streets, or parts of a opinion that the Act of 1923, P. L. 677, street theretofore paved and improved.” amending the Borough Code of 1915, by

adding an additional subsection to secThe petition further states that both tion 9, article 7, of chapter 6, of the of the streets proposed to be paved with Code, applies only to the streets or parts out petition are more than one thousand of streets mentioned in the said Act of feet in length, and do not connect two

1923 and to the method of apportioning paved streets, or parts of a street.

the costs of paving, etc., as therein proTaking it for granted that the fore- vided; and judgment is rendered to that going statement of fact is not to be effect. Cost of these proceedings are to gainsaid, the conclusion inevitably fol- be paid by the borough of Winton.


C. P. of

York Co.

The 3rd paragraph of the statement Hammer v. Grove

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 agreementStatute of defendant modified said written agree

ment as follows: possession was given frauds.

the defendant by the plaintiff about the A written contract for the sale of real es- 15th day of February, 1922, and in contate, modified by a subsequent oral agreement changing the date for the delivery of sideration therefore the defendant was the deed and possession and for the payment relieved from payment of the purchase of the purchase money, will sustain an action for damages resulting from the refusal of price of said real estate until the delivthe defendant to pay the purchase price when tendered the deed at the time fixed by the ery of the deed, and the defendant modified contract.

agreed verbally to the delivery of a deed Sur affidavit of defense raising ques- at a date subsequent to April ist, 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.

2. The Plaintiff bases his statement John A. Hoober, Esq., for plaintiff.

of claim upon an alleged parol agreement

for the sale of said real estate which is W. H. Kurts, Esq., for defendant and unenforcable at law. motion.

3. Charges that plaintiff "does not set Ross, J., February 4th, 1924:— The forth any specific time" for the performsuit is to obtain damages alleged to be ance of said alleged parol agreement for occasioned by the defendant in refusing the sale of said real estate. to take and pay for a deed and title of We think the questions of law raised the land which defendant had agreed to by the defendant are not sufficient in law buy under certain conditions stipulated to affect plaintiff's suit for damages. in the written agreement. The plaintiff's The statement itself expressly shows statement of claim recites the terms and that the suit was brought not for the the entire written agreement, but does purpose of enforcing the contract for the

sale of real estate, but for damages ocnot sue for enforcement of the contract,

casioned by the alleged breach of a verbut for damages alleged to have been bal contract whereby the plaintiff was occasioned the plaintiff by the defendant damaged, according to his allegations not taking and paying for the deed and contained in the statement. title so preparted and tendered by reason

“A parol contract for the sale of lands of the contract.

is good, under the act of frauds and per

juries, to support an action for damThe defendant has filed an affidavit of ages”: Ewing v. Tees, i Binn. 450; defence under the 20th section of the George v. Bartoner, 7 Watts, 530; Lowry “Practice Act 1915," which says in sub- v. Mehaffey, 10 Watts, 387; McDowell

v. Oyer, 21 Pa. 417; Hertzog v. Hertstance, that,

zog's Admrs., 34 Pa. 418. 1. The plaintiff admits in paragraph

The affidavit of defense raising ques3 of his statement that he did not com- tions of law is not sustained.

And now, February 4th, 1924, the deply with the terms of the written agree- fendant is ordered to file a supplemental ment entered into between the parties for or amended affidavit of defense within the sale of the real estate in question. fifteen days from this date.

Q. S. of

Washington Co. Brownson, P. J., March 17, 1924.-It Commonwealth v. One Dodge

has been made to appear upon the hear

ing, and is now found as a fact, that Automobile

Lloyd Cutshall, being the owner of the
Dodge automobile against which this

proceeding in-rem was instituted, unlawInterpretation of statutesCondemna- fully used said car on or about August tion of vehicle used in unlawful trans- !, 1923, in and for the transportation of tion of vehicle used in unlawful trans- intoxicating liquors within the County portation of intoxicating liquorRights 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 (111) 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 decree of condemnation, under the Act of

as intervening claimant under a chattel March 27, 1923, P. L. 34, on the ground that inortgage of the automobile, is entitled the vehicle while in the possession of the to any relief. His rights have been disowner, was used in the unlawful transportation 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

the Commonwealth from enforcing a forfeiture of the present proceeding, he prayed for incurred by the acts of the owner, in possession; such mortgagee does not come with

an order requiring the district attorney in the class of claimants, who under the pro- to deliver up the possession of the car visions of subdivision (D) of section ii of to him: Com. v. Cutshall, 4 Wash. Co. the act, are entitled to this relief; Commonwealth V. Cutshall, 4 Wash. Co. R. 7, re


7. We there held that a covenant athirmed.

contained in the mortgage, (which was The provisions of clause (III) of subdivi- made in the State of Ohio,) whereby sion (B) of section 11 of the Act of March 27, 1923, P. L. 34, relating to payment out the mortgagor agreed that in the event of the proceeds of a condemnation sale of a of a "default of payment, or any misuse, vehicle seized while being used in the unlaw


to remove ful transportation of intoxicating liquors, of the amount owing upon a “bailment lease from the county

or upon any or contract," afford relief only to a claimant 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 thereof, would not be permitted by the within the meaning or scope of this lan- courts of Pennsylvania to interfere with guage; he is not a bailor and he does not the statutory right of this commonwealth have the legal title.

While is may be proper to interpret Clause to seize and hold the car for the purpose (III) with some measure of liberality for the of carrying on a condemnation proceedpurpose of protecting the rights of innocent parties, it clearly is not admissible in its ing against it, and we refuse to take the interpretation, to reject any expressly pre-car out of the custody of the district atscribed conditions of the granting of the re- torney, or to interfere with the Commonlief, and thus to apply the provision to a case which is plainly and clearly outside of wealth’s proceeding to obtain a decree of the meaning and scope of the language used. condemnation. We left for determina

In re condemnation of an automobile tion, at the final hearing of the condem

In re condemnation of an automobile nation proceeding, the question whether used for unlawfully transporting intoxi- under the provisions of the Prohibition cating liquors.

Enforcement Act any relief could then Howard W. Hughes, District Attor- be given to the claimant. ney, and Thomas L. Anderson, Assistant The mortgage was made at SteubenDistrict Attorney, for Commonwealth.

ville, Ohio, on March 8, 1923. By it, in

consideration of $350, paid by McCausR. E. Burnside, for claimant.

len to Cutshall, the latter mortgaged this


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