The Act of 1903, P. L. 49, adds a new element of damage in actions for libel, viz: "Damages for physical and mental suffering engendered by the injured party or parties.' But this is not special damages within the meaning of the law, but general. Special damages are such as the law will not infer from the nature of the words themselves. They must, therefore, be especially claimed in the pleadings and evidence of them must be given at the trial. Recovery for injury to feelings and mental sufferings are recoverable as general damages. when special damages are not claimed a defendant should be discharged on common bail. Rule to discharge the defendant on common bail. Joseph O'Brien and John R. Jones for John F. Scragg for defendant. is that in that case the lien which took the surety's money or property out of the grasp of the judgment creditor was the lien of a judgment between private parties and in the present case it was a tax lien of the City of Pittsburg. Any possible question, however, which might arise as to the right of the disappointed creditor to subrogation to the city's rights seems to have been eliminated by the payment of the money into court. The case between the parties is therefore the same as that which was presented in the case of Harrisburg Bank v. German, 3 Pa. 300, and the case above cited, in each of which the contest was between the disappointed judgment creditor claiming upon his plaintiff. equity as such, and one who claimed under an assignment from the surety, of his right to subrogation. In the case of August 8, 1904. KELLY, A. L J. Harrisburg Bank the court held that the This is an action of trespass for libel insurety's right to subrogation under these stituted by capias ad respondendum, and circumstances was a personal one, and upon the arrest of the defendant by the that his assignee took the fund as having Sheriff he presented his petition asking at least an equal equity with the judgment to be discharged upon common bail, creditor. In Hudson's Appeal, however, whereupon this rule to show cause was it was distinctly held that the surety's granted. right was not merely a personal one which he could waive or assign at will, but that his equity is subordinate to that of his judgment creditors, and that for the reason that they had a lien on the fund, which was applied to the payment, in this case, of the taxes; and by virtue of that lien they were substituted to the rights of the surety. Applying, then, the doctrine in this case, which seems to distinctly overrule the case of the Harrisburg Bank, the fund in the present case must be awarded to Teagarten, the disappointed judgment creditor of Lindsay King, whose land was surety for Waltor. King's proportion of the taxes. We are An examination of the affidavit to hold the bail and the declaration discloses that the plaintiff declares for general damages only, and it is claimed on behalf of the defendant that in the absence of any allegation of special damage he should not be required to give special bail. unable to find any Supreme Court case upon the question and counsel have not called our attention to any, but we have some Common Pleas decisions, however, upon it and upon an examination and consideration of them we are persuaded that the contention of the defendant is correct. The case which seems the best considIn accordance with the agreement of ered, and which contains the most the parties, therefore, judgment is now thorough discussion, is that of Scott v. entered in favor of J. P. Teagarten and Crum, 1 Pears. 196. In that case the against Everall Brothers, Incorporated; defendant was charged with having utthat the said Teagarten is entitled to re- tered words which were highly derogaceive the whole sum of $770 92 paid into tory of the plaintiff's character, viz: court by Walton W. King on account of With having charged the plaintiff with his judgment above mentioned. having committed fornication. There was no allegation of special damages, and after a thorough discussion of the subject Judge Pearson discharged the defendant on common bail. In his opinion he made use of the following emphatic language: "We have repeatedly decided that a defendant cannot be held to bail C. P. of Lackawanna Co. Ripple v. Little. Slander-Capias-Special Damages. The defendant cannot be held to bail in an action of slander, without proof of special damages, or that the defendant is about to leave the State or go out of the jurisdiction of the court. in an action of slander without proof of special damage, or that the defendant is about to leave the State or go out of the jurisdiction of the court." Recognizing the same doctrine are the cases of Sargent v. Millar, Wood. 438; Havercamp v. Sheldon, 15 W. N. C. 501; Noll v. Jacoby, 7 Lanc. L. R. 365; Zeller v. Katsingroh, 12 C. C. 451; Renninger v. Dillon, 2 D. R. 819, and Sciulle v. Pu We can find nothing in the Act of 1903, cinni, 8 Del. 598. But in McCauley v. P. L. 40, which has any bearing upon Smith, 4 Yates 193, the defendant who the question. That Act, so far as this was charged with having said of the matter is concerned, merely adds a new plaintiff, "He robs the travelers' horses element of damage in action for libel, víz: of their oats but charges the oats to the "Damages for the physical and mental travelers," was discharged on common suffering endured by the injured party or bail with this brief opinion: "Unless parties. But this is not special damspecial damage can be proved or the ages within the meaning of the law, but words spoken charged the defendant with general. "Special damages are such as a crime of a gross nature, it is the course the law will not infer from the nature of of the court uniformly to discharge the the words themselves; they must, theredefendant in slander on common bail." fore, be especially claimed in the pleadIn A. B. v. R., 4 W. N. C. 185, Judge ings and evidence of them must be given Thayer refused to discharge on common at the trial;" 13 Am. & Eng. Ency. of bail a defendant who was charged with Law, 1st Ed. 434. They must always be having spoken words imputing unchas- explicitly claimed on the pleadings; Ibid tity to a woman, stating: "Where the 436. Recovery for injuries to feelings slander is so gross and injurious as this, and mental suffering are recoverable as we ought not to discharge the defendant general damages; 18 Am. & Eng. Ency. on common bail, although no special of Law, 2nd Ed. 1083. We are not, damage is shown in the affidavit. The therefore, called upon to consider the law presumes such a charge as this in constitutionality of that Act. juricus." And in Campbell v. Gilmore, 10 Lanc. Bar 37, Judge Hayes refused to discharge on common bail where the alleged slander consisted of calling the plaintiff a thief, etc., expressing the opinion that "the offence charged is of a character sufficiently gross to warrant the holding of the defendant to bail." The modern tendency of the law is to look with disfavor on imprisonment for debt, and much more so upon a mere claim for damages; and so, where the damages are as uncertain as they must necessarily be upon a claim for general damages in an action of libel, we think we are more in harmony with the spirit of the law in holding, as we do, that a defendant should not be held in custody pending the action, which, of course, he would be in case of failure to procure bail, if we held that special bail should be required. The rule to discharge the defendant on common bail is, therefore, made absolute. These are all the authorities we find upon the question and it is apparent that they are in conflict; the cases first cited holding that special bail shall only be required when special damages are de clared for, and those last cited holding that special bail may be required when the libel or slander consists of charging a person with a crime of a gross nature. The trouble with the latter doctrine is that C. P. of it furnishes us with no certain rule which may be generally applied. Under it each case would have to be arbitrarily disposed of upon its own allegation of facts ac Montgomery Co. Hynes v. Riehl et al. The rule that for a joint tort there can be no recovery upon proof of one or more separate torts, applies in a case where a husband and upon the ailegation that defendants did wife were sued as joint trespassers. not promptly remedy the wrong, if any, To sustain a joint action of tort there must be when their attention was called to it; for some physical act done in which two or more here again they are charged jointly—the actually participate; but where one commits the tort, and another, without acquiesence, par- wife is charged as owner and the husticipation or consent, merely reaps an advan-band as being liable for the torts of his tage, a joint action of trespass can not be sus-wife. And at best we would have the tained. husband liable for obstructing the flow Motion for new trial. and the wife for afterward permitting it, Larzelere, Gibson & Fox for plaintiff. bringing the case within the ruling in Evans, Holland & Dettra for defendant. Magee v. Pennsylvania Schuylkill Valley Railroad Co., 13 Pa. Sup. Ct. 187, where May 26th, 1904 WEAND, J.-At the it was held that in an action of trespass conclusion of the testimony the court directed a verdict for defendants, and plain-vidual owner of land to recover damages against a turnpike company and an inditiff moves for a new trial. The action is "tresposs" and the statement charges defendants with "having permitted the natural water courses upon their said property to become filled up; and have also filled up several of the ancient and natural water courses, so as to turn the water from the defendants' land over and upor the land of the said plaintiff."' The defendants were charged with both sins of commission and omission; but no joint physical act was shown, nor was there a particle of testimony to show that the husband did anything charged against them with the consent, knowledge ora cquiesence of the wife. There was not only no proof of a joint trespass or tort, but no evidence except inferentially that either defendant had obstructed the water-course or done any thing to cause the damage. And if either or both defendants were liable after notice of the obstruction, there was no testimony from which the jury could find whether any or what damage was thus caused In a suit for a joint tort there can be no recovery upon proof of one or more separate torts. When a joint tort is charged, a joint tort must be proved in order to sustain the action; Goodman v. Coal Township, 206 Pa. 621. for injuries to plaintiff's land caused first, by an increased volume of water thrown upon the land and, secondly, by the pollution of the water, a verdict and judgment against both defendants as joint tort feasors can not be sustained if it appears that, although the increase in the volume of water was the joint act of the two de fendants, the pollution of the water was the act of the individual defendant alone." To sustain a joint action of tort there must some physical act be done in which two or more actually participate; but where only one commits the tort, and another without acquiesence, participation or consent, merely reaps an advantage, a joint action can not be sustained. It is claimed, however, that the relation of husband and wife will sustain the action. A husband may be presumed to be the agent of the wife in many respects, but not to do wrong or commit a tort without her consent. "The common law liability of the husband for the tort of the wife remains without statutory modifications. For a tort committed by his direction he alone is liable;" Hess v. Heft, 3 Pa. Sup. Ct. 482. As there was no evidence that the wife actually committed a trespass, there could be no joint liability. In this case the wife is not relieved because of the marriage relation, but because there is no evidence to convict her of any wrong and because there was no act of her husband for which she is liable. The jury under no circumstances, as shown by the testimony, could have found that Mrs. Riehl, either actively or constructively, had done plaintiff any in- "It seems to be the common law rule jury; and they could only have found that a married woman can not be a tresthat Mr. Riehl did something from infer- passer by prior or subsequent assent; and ence to be drawn from the fact that water that accordingly she can not, by reason was thrown onto plaintiff's land which ought to have run over defendant's land. Nor is the plaintiff's case sustained of prior or subsequent assent or authority from her, be held liable for the tort of her husband or any third party in which she does not participate as an actor; Am. & Eng. Ency. of Law, 2nd edition, Vol. 15, p. 900. Finding, therefore, I. That there was no direct evidence as to who obstructed the water-course, there was no joint tort proved; 2. There was no evidence of any tort by the husband to which the wife consented or acquiesced, or which was done by her direction or with her consent; and, 3. There was no evidence of any act of the wife for which both husband and wife were liable, we think our direction was proper. The motion for new trial is overruled. C. P. No. 2, of Allegheny Co. Borough of Avalon v. Valley Consolidated Water Company. defendant obtained its right to enter upon clause Water Company - Borough ordinance-1901 by the owner of the property, who Extension of water pipes. On demurrer to the defendant's return to an is a non-resident of the borough; that the land embraced therein is a steep hillside alternative writ of mandamus brought by the and but few of the lots have been sold; borough of Avalon to compel the defendant, a that there are but twenty houses in that water company, to supply water to a section of portion of the borough, fifteen of which the borough, known as North Avalon, it ap- are supplied with water by defendant peared that defendant was supplying water under an ordinance of council passed in 1896 providing for a suitable supply of water by the defendant for public, domestic and sanitary pur poses throughout the borough, with the further provision that "the company shall extend its lines from time to time as councils may direct." The defendant refused to supply North Avalon as directed, which consisted of a plan of 280 lots, without a sewer system, and having erected thereon 20 houses, of which defandant had supplied 15 with water, the other five not wanting it. It had also furnished a fire hydrant for this locality, Defendant averred that there was no present demand for water there and that it would cost $31,000 to reconstruct the plant so as to supply the whole plan of lots. HELD, that the ordinance was entitled to a reasonable construction and that the defendant was doing everything reasonably necessary under its charter and the ordinance to supply the borough with water. Demurrer to defendant's return to alternative writ of mandamus. through pipes laid by it under a private arrangement with the owner of the property, and that none of the owners or occupiers of the remaining five houses, three of them being at this time vacant, has made a demand for a supply of water. The return also sets forth that a fire hy. drant has been located at a point which Commands all buildings now erected in North Avalon and will supply ample water in the event of a fire; that there is practically no sewer system in the plan, and that to pipe the entire plan and supply water thereto would necessitate a reconstruction of defendant's entire plant at an expense of more than $31,000. The return also avers defendant's willingness to extend its lines in North Avalon and supply water for both public and domestic purposes as fast as that portion of the borough is built up. Chas. R. Lang for plaintiff. N. W. Shafer for defendant. To the return plaintiff has demurred, March 11, 1904. FRAZER, P. J.-De- thereby admitting the truth of all statefendant is a corporation created under the ments contained therein. The ordinance laws of this Commonwealth to supply which constitutes the contract between water to the public, and as the successor plaintiff and defendant should receive a and assignee of the Riverview Water reasonable construction. While the 12th Company, is authorized by its charter section provides that the water company and proper municipal legislation to con- must extend its lines when requested so struct and operate a water works in plain- to do by the borough council, the evitiff borough. The ordinance under which dent meaning of the section is that lines Motion for judgment for want of a sufficient affidavit of defense The essential facts are stated in the opinion of the court. V. G. Robinson for motion. shall be extended whenever reasonably counsel for plaintiff, purposely made, of the necessary for the purpose of supplying date the cause of action arose in the suit in water for "public, domestic and sanitary trespass, is sufficient to prevent judgment. purposes." It certainly never was contemplated that defendant should incur the expense of laying pipes and supplying water to localties in which there are neither consumers, nor necessity for either fire protection or the flushing of sewers. According to the return there are but twenty houses now constructed in North HEMPHILL, P. J., of Avalon, all of which are supplied with 15th J. D., specially presiding.-In Anwater by defendant except five, and we drews v. Packing Co., 206 Pa. 370, Mr. may assume the persons residing in those Justice Mitchell thus describes the funcfive houses do not desire water, as the re- tion of an affidavit of defense: "An affiturn sets forth that no demand has been davit of defense should set forth fully made upon the company for a supply of and fairly facts sufficient to show prima water for those houses. It also appears facie a good defense, and if it fails to do by the return that residents of North so, either from omission of essential facts Avalon have sufficient fire protection; or manifest evasiveness in the mode of that all houses erected in that section, in statement, it will be sufficient to prevent the event of a fire can be readily reached judgment. But if not deficient in either with water from the fire hydrant now loof these respects, and on its face fairly cated in that section. As to the necessity setting forth a prima facie defense, it is for water for the flushing of sewers, it does not appear that sewers have been constructed throughout the entire plan, and even if they have been their flushing would not be necessary until houses are built and occupied and connected therewith. It seems to us defendant has done Tested by the standard thus enunciatand is doing all that it is reasonably re-ed, the affidavit filed in this case is, in quired to do under its charter and the our judgment, sufficient. ordinance, by which it is authorized to supply water within the plaintiff borough. Under these circumstances, to require it to expend thirty thousand dollars merely for the purpose of piping a plan of vacant lots with no assurance of receiving at least a reasonably adequate return therefrom would be unreasonable and unjust. Judgment is accordingly entered for defendant on the demurrer. C. P. of Delaware Co Machold v. The Baltimore and Ohio Railroad Co. Agreement to settle suit pending-Fraud -Attorney at Law. not to be subjected to close technical examination as if it was a special plea demurred to. Its office is to prevent a summary judgment, and for that purpose a showing of a defense, with certainty to a common intent, is sufficient." The plaintiff brought suit against the defendant for the killing of a minor son, but not within the statutory limitation of one year, which upon the eve of trial counsel agreed to settle upon the payment by defendant to the plaintiff of the sum of $1,000. Subsequently the defendant refused to make payment and this suit was brought. As the reason for this refusal counsel for defendant company in his affidavit of defense avers that counsel for plaintiff conspired together to deceive the deponent by filing a stafement in his said suit in the month of July, 1901, alleging that the said death took place on May 23, 1800, instead of upon the true date, May An affidavit of defense should set forth fully and fairly the facts sufficient to show prima facie, a good defense, but it is not to be sub-23, 1899, "whereupon the deponent enjected to a close technical examination, and a tered a plea of not guilty and was misled showing of a defense with certainty to a com- into refraining from entering a plea of the mon intent is sufficient. statute of limitations by reason of the said An affidavit of defense in a suit to recover deception purposely practiced upon him on an agreement to settle an action in trespass, by said counsel for plaintiff." * * * which avers that counsel for defendant was in duced to enter into the agreement sued upon, The deponent being misled and deceived by reason of the fraudulent representations of by plaintiff's attorneys, as above set |