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acknowledged till April 24th and not delivered said plaintiff was and is entitled as widow of till May 1st.

The auditor finds that the mechanic's lien creditors are entitled to subrogation to the Mevey mortgage of $5,000, as Preston's deed to Wolfshafer conveyed the property to him free of all encumbrances, when in fact the property was encumbered with this mortgage. The evidence is undisputed that the payment by Wolfshafer of the Mevey mortgage was part of the consideration for the conveyance to him of the property, and while in law Preston would be compelled to make good the terms of his deed to Wolfshafer, yet this is an equitable proceeding, and in equity Wolfshafer would not be per- | mitted to enforce his legal rights under the deed in face of his admission that by the terms of the sale he was to assume payment of the Mevey mortgage. Suppose Preston were to file a bill to reform his deed to Wolfshafer, and the latter were to admit the fact, would any court of equity hesitate to reform the instrument?

The auditor's fee in this case should be paid out of the fund, for while we are clear the evidence does not justify the finding of fraud, it does justify the finding of the exceptions.

For plaintiff, Geo. P. Hamilton, Wm. W. Wishart and L. K. & S. G. Porter.

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said Benjamin Sharrow, now deceased, to funeral benefits from the said lodge in the sum of one hundred and fifty ($150) dollars, but the said lodge, through the said trustees abovenamed has wholly neglected and refused to pay and still neglects and refuses to pay the said sum of one hundred and fifty ($150) dollars, or any part thereof, but the full amount thereof, together with interest from the 9th day of October 1897, is due and owing from the said defendants to the said plaintiff, and remains unpaid."

Defendant demurred to the plaintiff's statement, assigning the following reasons:

"First. That plaintiff cannot recover in this action, either against defendants as trustees.or the said Yohagany Lodge No. 364, Independent Order of Odd Fellows.

"Second.-That if plaintiff has any valid or legal claim against said lodge for remedy is in a court of equity by bill filed against the said lodge, as defendant to her alleged cause or ground of complaint, as set forth in her said statement."

For plaintiff, T. C Jones.-It is respectfully submitted on behalf of the plaintiff that while the law laid down in Fletcher v. Gawanese

For exceptant, J. H. Beal, W. T. Tredway Tribe, etc., 9 Pa. Super. Ct. 393, may possibly be and Alex. Gilfillan.

good law where the plaintiff is a member of au unincorporated association sued, it cannot be ap

Court of Common Pleas No. 2, plied to the present case. As this plaintiff was

ALLEGHENY COUNTY.

not and never had been a member of the association defendant she could not even be held to be a quasi partner, or to be charged with knowlSHARROW v. YOHOGANY LODGE No. 364, edge of the membership of the association, or of

I. O. O. F., et al.

its internal workings, and so far as relates to the assertion or enforcement of her clain in this

Unincorporated beneficial associations—Liability to case, she stands in the position of a stranger to

suit at law.

Under the Act of April 28, 1876, which provides that members of unincorporated beneficial societies shall not be individually liable for funeral benefits or other

liabilities, a widow of a deceased member cannot maintain an action of assumpsit against the lodge and its members.

the defendant association. It has never been held that persons not members of the unincorporated association were bound to proceed in equity though there are instances where they have been allowed to so proceed, and all that can be reasonably required in these suits is that

The doctrine of Fletcher v. Gwanese Tribe, 9 Pa. Super. Ct. certain members or officers representing the as393, extended to the case of a suit by one not a mem-sociation be named as such and be served with ber of the lodge.

No. 383 April T., 1899. Assumpsit. Plaintiff's affidavit of claim set forth that "the plaintiff, Nettie Sharrów, is the widow of Benjamin Sharrow, who died on the 9th day of October, 1897. At the time of the death of the said Benjamin Sharrow he was a member in good standing of the Yohogany Lodge No. 364, of the Independent Order of Odd Follows of Pennsylvania, and according to the constitution, bylaws, rules and regulation of said lodge, the

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process. In this case the three trustees of the association have been named and served, and no complaint can be made for want of notice to the proper parties.

It has been held that beneficial associations, such as the defendant company, are quasi partners, and if the members thereof are only quasi partners and are not individually liable in suits brought against the association, or even against them as individuals, much less is this plaintiff bound by the analogy that has

of the contents thereof. A. L. Best, constable.
Constable sworn to above returu.
"Same day subpoena issued for Rufus Hall
for plaintiff.

attempted to be raised between suits against beneficial associations by the members thereof and suits against firms by one of the partners. As has been stated above, the plaintiff in this case stands in the position of a stranger to the And now, June 19, 1899, at time set for hearassociation defendant and if the court shoulding parties appear, hearing had. Edward Johnbe of the opinion that the caption of the case son, plaintiff, being sworn, says his claim is $5 should name C. A. Walker, Henry Holland and damages in trespass through the sale of a watchBenjamin Fiddler as trustees of the Yohogany case by defendant to plaintiff and which was Lodge, etc., and that suit should be brought in represented by defendant to be solid gold, but that form, plaintiff through her counsel hereby which contained a brass bow. respectfully requests leave to so amend the form of the record. See Stevick on Municipal Corporations, pp. 61, 62, 63, 65, 67.

For defendants, L. L. Davis.

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"Rufus Hall, sworn for plaintiff, says he cleaned plaintiff's watch twice during the past two years; that the bow is either filled or plated.

"Louis Schmidt, defendant, sworn, says the watch-case sold to plaintiff by him contained a

Opinion by SHAFER, J. Filed September 12, sold golid bow. 1899.

"E. W. Hill sworn for defendant. A. E.

This is an action of assumpsit against an un-Sweiter sworn for defendant. Case continued incorporated beneficial association and certain persons as its trustees. The plaintiff is not a member of the society but sues for benefits alleged to be due her upon the death of her husband who was a member.

The defendants have demurred, assigning as ground of demurrer that a common law action does not lie, but the plaintiff's remedy is in equity.

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We think the case is ruled by that of Fletcher v. Gawanese Tribe, 9 Pa. Super. Ct. 393. The only distinction suggested is that in that case the plaintiff was a member of the society. The reasoning upon which the judgment in that case is based, however, applies with equal force to the cases of a member and of one who is not a member. If a judgment were rendered for the plaintiff herein there would be the same difficulty about the execution which would arise if a member were a plaintiff, and which is relied upon in the case stated.

Demurrer sustained.

SCHMIDT v. JOHNSON.

Justice of the peace-Jurisdiction-Transcript.

A Justice of the peace has no jurisdiction in an action of trespass brought against defendant for selling to plaintiff a gold-plated watch, representing it as a gold watch.

In the above case the transcript was defective in not showing that the sale took place within six years.

No. 646 July T., 1899. Certiorari to justice of the peace.

until June 23, 1899, at 7 o'clock P. M. June 23, 1899, at 7 o'clock P. M., having heard all the proofs and allegations, judgment publicly in favor of plaintiff and against defendant for three dollars and costs of suit."

The defendants filed the following specifications of error:

"1. The summons does not disclose a cause of action of which the justice has jurisdiction. "2. The record of transcript does not disclose a cause of action within the jurisdiction of a justice of the peace.

"3. The record or transcript does not disclose where or when the facts constituting the alleged cause of action occurred, nor where or when the alleged damage was sustained.

"4. The sale of the watch by plaintiff in error to defendant in error, wherein the false representations or deceit or warranty on which the action in this cause purports to be founded, is alleged to have been made or practiced, was made on May 25, 1893, and the summons in this case was not issued by the justice of the peace until June 13, 1899, so that more than six years had elapsed from the time the alleged cause of action arose before this suit was begun before the justice of the peace, and the action was barred by the statutes of limitation of actions.

"5. The record or transcript discloses an inconsistency between the action and the subject of it.

6. The action before the justice of the peace is a demand for unliquidated damages less than $5.33, to-wit, $5 damagers for trespass in The transcript of the justice was as follows: damages;' the justice of the peace corruptly "And now, June 14, 1899, summons returned and willfully disregarded the whole of the evion oath. Served a true copy of original sum- dence produced and sworn to before him by mons on defendant personally, at the samé | plaintiff in error and his witnesses; and the time produeing the original and informing him justice of the peace corruptly and willfully and

unjustly and unlawfully gave judgment against then, to determine, is whether there is any the plaintiff in error for damages in less than statute authorizing or compelling the county to $5.33, to-wit, for $3 damages; and plaintiff in | pay the costs. error believes and avers that this was corruptly and willfully done for the purpose of preventing plaintiff in error from taking an appeal from the judgment of said justice of the peace in said

cause.

The plaintiff alleges that she is entitled to the same by virtue of the second section of the Act of May 19, 1887, P. L. 138. Section 1 of this act provides "That the costs of prosecution accruing in every case of misdemeanor in any of the Courts of Quarter Sessions of the Peace in this Commonwealth shall, on the termination of the

"7. The justice of the peace acted under and with, and exhibited gross partiality and unfairness throughout the whole of the proceed-prosecution by the bill of indictment being ings before him, and the whole of said proceedings were a mere travesty on justice."

The defendant also introduced evidence to show that the watch-case sold by him was just as represented, and also as to the time of the sale, and also alleging misconduct on the part of the justice at the trial.

For plaintiff in error, H. M. Scott.

PER CURIAM. Filed September 5, 1899. Exceptions sustained and judgment of magistrate reversed. Costs to be paid by defendant

in error.

Court of Common Pleas,

CRAWFORD county.

TERRILL v. CRAWFORD COUNTY.

ignored by the grand jury, or by a verdict of a traverse jury and sentence by the court, thereon be immediately chargeable to and paid by the proper county: Provided, That the county shall be liable only for the costs of such witnesses as the district attorney shall certify were subpoenaed by his order and were in attendance and necessary to trial of the case," Section 2 provides, inter alia, "and the costs of officers, including the costs of the justice of the perce and constable, and all cases of wife desertion and surety of the peace, shall be charged to and payable by the proper county as soon as the case is disposed of by the order of the court.

It seems very clear that the word “and” in the second section and above italicized, is a clerical error or misprint in the statute, and should undoubtedly be read "in."

Without such a construction the language is Desertion-Witness fees-Liability of county for. not ambiguous is meaningless which we should

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Had the defendant been convicted of a crime, the costs would then have been immediately chargeable to the county, but we do not think the desertion Act of 1867 is a proceeding upon a criminal charge. No indictment is had and no trial by petit jury is provided for. The object of the statute is not to punish for a crime or wrong done, but to enforce a duty. Certainly the Legislature of 1887 when they enacted this

The plaintiff in this case claims to recover from the county of Crawford $2.50, being wit-law did not consider that the term misdemeanor ness fees for her attendance upon court in a case of desertion, in which said case her husband, the defendant, was ordered to pay $4 per week for the support of his wife and child, and to give security, etc., and the costs of prosecution and to stand committed until the sentence was complied with.

Said defendant refused to comply with the order and was committed to the county jail, where he yet remains.

The sole question in this case is as to the liability of the county for fees of witnesses for the Commonwealth in desertion cases.

That such costs are the creature of statutory onactment will not be denied. The question

covered a desertion case, or they would not have referred to the same in the second-section, after having provided for the costs in misdemeanor cases in the first section; and furthermore, it would seem that when they made special provision for the costs of officers in desertion cases, that they expressly intended that the witness fees should not be placed upon the county. It may be that the legislative authority was more solicitous for the officers than the deserving witnesses for the prosecution; and while a witness for the prosecution in a desertion case is as meritorious a case for the imposition of costs upon the county as in most misdemeanors, yet we are unable to persuade ourselves that the

law contemplated such payment by the county, and without such authority the plaintiff has no relief.

crime, but it is designed simply to make those who are engaged in a lawful occupation choose to take out a license before engaging in such

And now, to wit, January 10, 1899, judgment lawful occupation. The proceeding before the is entered for the defendant.

Court of Common Pleas,

WESTMORELAND COUNTY.

IRWIN BOROUH v. DOUGLASS.

Peddlers license-Trade regulation.

A borough ordinance restricting any person peddling meat in the borough without first having taken out a license and providing a fine for its violation, will be construed to include a butcher whose meat is sold from a wagon in charge of his employee.

This ordinance provided that a license fee must be paid

by "hawkers, peddlers, street sellers and venders of vegetables... meats or merchandise," and a license taken out before engaging in business, exempting. however, "farmers selling the products of their own farms but nothing else." Held, that the ordinance was not an unfair trade regulation but a proper police regulation, and therefore valid.

burgess was not instituted by the Commonwealth of Pennsylvania, whose exclusive function it is to punish criminals, but by the borough of Irwin, whose sole object it is to put money into its treasury. It is true, the basis of the liability is the violation of a borough ordinance, but the suit is simply a civil suit for the penalty. It was the peddling of meat without first obtaining a license for so doing that created the lia bility, and it was George A. Douglass, acting through his agent, that was doing the act. The principal is responsible for the acts of his agent, even though they be unlawful acts, if

they are done within the scope of his authority

or by the express direction of the principal. The first assignment is therefore overruled.

The next three assignments of error allege that the ordinance alleged to have been violated is a trade regulation, and that it is unreasonable and unjust in its provisions.

The ordinance is entitled "An ordinance requiring persons engaging in certain kinds of

No. 619 Aug. T., 1898. Certiorari.
Opinion by MCCONNELL, J. Filed June 24, business to first pay a license fee, fixing the

1899.

amount thereof and the manner of collecting the same, and the penalty for non-payment thereof." The second section (the one alleged to have been violated) reads as follows:

It is claimed in the first assignment of error that the record shows that the defendant did not peddle meat in the borough of Irwin in violation of an ordinance of said municipality and that therefore the judgment of the burgess finding him guilty of so doing must be re-ies, meats or merchandise whatever (excepting versed.

The basis for this assignment of error is found in the fact that it appears from the record now before us that the defendant had not personally done the act that was adjudged by the burgess to be a violation of the borough ordinance, but that he had instructed his employee to drive from place to place or from house to house with horse and wagon selling meat to various parties.

"SECTION 2. Hawkers, peddlers, street sellers and venders of vegetables, oysters, fish, grocer

books, magazines or papers), shall first take out a license from the burgess, and pay therefor the sum of $1 for each day, or $10 for each year or part thereof: Provided, that this shall not apply to farmers selling the product of their own farms but nothing else."

Section 3 provides for the amount of the fines to be imposed for a violation of sections 1 and 2 and the collection thereof, "in manner now provided for the collection of similar fines."

The contention is, that if the ordinance has To support the allegation that it is a trade rebeen violated, that it is the employee who per-gulation, the cases of Sayre Borough v. Phillips, sonally did the act that is to be subjected to the 148 Pa. 482, and Shamokin Borough v. Flannipenalty, and not this defendant, who only in- gan, 156 Pa. 43, are cited. structed him to do the act. "This offense (says defendant's counsel in his brief) being quasicriminal one, the defendant cannot be fined for violating the ordinance, even though his hired man was instructed to sell meat from the wagon. Under the ordinance they cannot fine the defendant, who was not present and never sold any meat from the wagon."

The object of the fine is not to punish criminally that which the law has made to be a

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In both of those cases there were provisos to the ordinances exempting residents of the borough from the operation of the ordinances. The obvious purpose was therefore to give a trade advantage to those residing within the limits of the borough over those residing outside and engaged in the same business. These were not therefore police regulations governing order or the conduct of markets, but were the embodiment of an obvious purpose to discrimi

nate in favor of the citizens of the boroughs in a matter of trade, a thing with which the lawmaking branch of municipal government has no power to deal.

given to the corporate officers to deal with the subject-matter of this ordinance. The cases already cited show a municipal ordinance directed against peddling without a license is a proper police regulation as long as it is directed against the business. As soon as it is directed, not against the business, but against certain persons engaged in that business, to the end that certain other persons engaged in it may thereby be benefied, it becomes vicious. It is then a trade regulation and not a police regulation.

But the ordinance in this case makes no attempt to discriminate. Residents of the borough are no more exempt from the burden of the ordinance than non-residents. The purpose embodied in the ordinance in the cases cited is not the purpase of this ordinance, for it contains nothing which would make such a purpose effective. A peddler residing in the We have endeavored to show that this ordiborough must take out his license just as one nance remains a proper police regulation, notresiding outside the borough must do so. It withstanding the terms of the proviso. The is true, there is a proviso that the ordinance same cases, and many others which might be shall not apply to "farmers selling the pro- cited, will show that the ordinance is not unducts of their own farms but nothing else," just and unreasonable, and therefore void. The but there is no attempt thereby to distin-second, third and fourth assignments are overguish between residents or non-residents. Neither the prohibition of the ordinance nor the exception of the proviso is based on any distinction of residence as to the vendor or of locality of production of merchandise, each operating regardless of the status of the person to be affected thereby. A farmer may reside within a borough as well as without its limits, and may carry on farming operations in either place.

ruled.

The fifth assignment alleges that the Act of Assembly under which the ordinance is framed is unconstitutional. No case has been cited showing that the Act of 1851 is unconstitutional. No reason is urged why it should be so considered, and none is now apparent to us.

The judgment of the burgess is affirmed.
For certiorari, G. S. Rumbaugh.
Contra, George W. Flowers.

SUPREME COURT OF PENNSYLVANIA.
Sitting in the Eastern District.

The following judgments for the Western District were filed at Philadelphia on Friday, October 6, 1899:

BY MCCOLLUM, J.:

Nelson v. Steen. C. P. No. 3, of Allegheny Co. Judgment affirmed.

Wall v. Royal Society of Good Fellows. C. P. No. 3, of

Allegheny Co. Judgment affirmed.

But in no proper sense can the proviso be considered an exception. Mr. Justice WIL LIAMS, in Commonwealth v. Gardner, 133 Pa: 290, says: "I do not regard the sale of the natural products of the soil by the farmer or gardner by whom they are raised as affected by the laws relating to peddlers. They are not traders or travellers in any legal sense. The carriage of the surplus products of the farm or garden to a market town or from house to house is not peddling." The ordinance is directed against peddling, and the selling of products of the farm by the farmer is not peddling. The proviso simply undertakes to say that it is not peddling, and that therefore the prohibition of the ordinance is not directed against it. In no proper sense is the sale of his own farm products by the farmer hawking or peddling, and the proviso says that, in the special sense of the ordinance, it is not so. In a negative way, it is a definition of what constitutes hawking or peddling under the ordinance. We therefore are unable to see how the proviso invalidates Books Recently Received in the Law Library. the ordinance.

The general borough Act of April 3, 1851, & 2, P. L. 320, expressly empowers the corporate officers "to make all needful regulations respecting markets and market days, the hawking and peddling of market produce," etc. There is therefore express legislative power

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Bryant v. Pittsburgh Times. C. P. No. 8, of Allegheny

Co. Judgment reversed and venire facias de novo awarded.

Rushton et al. v. Allegheny City et al. C. P. No. 3, of Allegheny Co. Judgment affirmed.

Todd v. The Second Avenue Traction Co. C. P. No. 3,

of Allegheny Co. Judgment reversed and venire facias de novo awarded.

Reimer et al. v. Reimer. C. P. of Westmoreland Co. Judgment affirmed."

Waits v. Bailey et al. C. P. of Venango Co. Judg. ment affirmed.

Lorelard on Bankruptcy.

The Annotated Corporation Laws of all the
States, Vol. II, Massachusetts-New York.
Cunning-Gilbert-Woodward.

Desty's Federal Procedure, ninth edition.
Realty Practice J. T. Donly.

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