even if it can be conferred at all by a mere ordinance, ought to be exercised with extreme caution and moderation. As has been said with regard to proceeding by warrant of arrest, so it may be said here with much greater force: "Where the person is a householder or well-known inhabitant not likely to flee, the better course is to proceed by summons, unless it is otherwise directed by the statute." Com. v. Borden, 11 Sm. 276. See, also, Sharp v. City of Wilkes-Barre, 1 Kulp, 73, where it was held that an arrest on view for violation of an ordinance against the erection of frame buildings was unjustifiable. The judgment is reversed. J. V. Darling, Esq., for plaintiff in error. S. J. Strauss, Esq., for defendant in error. Court of Common Pleas of Luzerne County. GLENNON V. THE COUNTY OF LUZERNE. 1. The census of 1880 showing that the county of Luzerne contained less than one hundred and fifty thousand inhabitants (sec. 2 of the act of May 11, 1881, P. L. 22), did not prevent the act of June 22, 1883, P. L. 139, from going into effect as to said county. 2. Whenever an effort is made to apply the act of March 31, 1876 (salaries), to an officer of any particular county, the fact to be ascertained is, whether the county contained sufficient population at the time the officer entered on the duties of his office. 3. Whatever the population may previously have been, or what it may hereafter become, does not control the case. 4. The population of a county in any particular year is a matter susceptible of proof like any other fact, and is also a proper subject of agreement by the parties, if they see fit to dispense with proof. 5. In a case stated the court cannot be called upon to find the facts from the evidence, nor to pass upon the sufficiency of the reasons upon which the parties may base their admissions, whether such reasons are stated or not. 6. The case stated admitted that when the plaintiff entered on his official duties as recorder (1884) the population of the county was over one hundred and fifty thousand, notwithstanding the census of 1880 showed a less population. Held, that, on the admitted facts, the plaintiff is to be compensated according to the act of 1876; also, that the effect of the admission was not destroyed by the subsequent statement of the reasons upon which it was based. Case stated. The opinion of the court was delivered March 9, 1885, by RICE, P. J.-This is an amicable action and case stated in which the court is asked to decide whether, upon the admitted facts, Joseph H. Glennon, recorder of deeds (elected in November, 1883), is entitled to be paid under the salary act of March 31, 1876, P. L. 13, or the act of June 22, 1883, P. L. 139. I. In the first place, the plaintiff contends that Luzerne. county is still under the act of 1876, by virtue of the provisions of sec. 2 act May 11, 1881, P. L. 22, notwithstanding the decennial census of 1880 showed that the county had, at that time, less than one hundred and fifty thousand inhabitants. We cannot assent to this proposition. Even though it be conceded that the section was intended to have a retroactive effect upon the status of the county, and also that, giving it that effect, the section would not be in contravention of section 3, article III., of the constitution, still it would not prevent the subsequent act of 1883 going into effect. All that the section undertakes to do, at the very most, is to preserve the schedule of salaries in counties within the purview of the act of 1876, "until altered by act of assembly." There is nothing in this section to prevent the legislature from passing a subsequent general law to regulate salaries in counties which, in fact, contain less than one hundred and fifty thousand inhabitants. II. In the second place, the plaintiff contends that he is to be compensated according to the act of 1876 because, as matter of fact, on the first Monday of January, 1884, when he assumed the duties of his office, the county contained more than one hundred and fifty thousand inhabitants, notwithstanding the decennial census of 1880 showed that, at that time, it contained less. In the case of Luzerne County v. Griffiths, I Kulp, 297, this court said: "In the absence of express legislative declaration of the fact, or of any other method provided by the legislature for ascertaining it, the last preceding decennial census is to be resorted to as the best evidence of the population of a county in case of classification of counties by population." In the subsequent cases of Harris v. County, 2 Kulp, 106, and Monroe v. County, 7 Out. 278, the rule was stated by us in substantially the same language, except that the words " or other proof" were added. The question finally came before the Supreme Court, and it was there held as follows: Whenever an effort is made to apply this act (March 31, 1876) to an officer of any particular county, the fact to be ascertained is, whether the county con tained sufficient population at the time the officer entered on the duties of his office. Whatever the population may previously have been, or what it may hereafter become, does not control the case." It will be seen from the foregoing that the population of a county, in any particular year, is a matter susceptible of proof, like any other fact in any suit in which the question is involved, and is also a proper subject of agreement by the parties, if they see fit to dispense with proof. As in the case cited (Monroe v. County, 7 Out. 278), so here, the question as to the mode of proving the fact does not arise; for the case stated contains the following distinct agreement that "when the said plaintiff entered on his official duties the population of Luzerne county was over one hundred and fifty thousand and less than two hundred and fifty thousand." The effect of that admission, for the purposes of the present suit, is to dispense with proof, and we cannot see that its effect as an admitted fact is destroyed by the subsequent statement of the reasons upon which it is based. In a case stated the court cannot be called upon to find the facts from evidence, nor to pass upon the sufficiency of the reasons upon which the parties may base their admissions, whether such reasons are stated or not. The duty of the court is to declare the legal conclusions upon the admitted facts. What the parties admit to be a fact is to be taken as proved, whether the court may conceive their reasons for admitting it to be good or bad. Hence we express no opinion as to the conclusiveness, or even reliability, of the ratio between the number of taxables and total population in any one year as a ratio for ascertaining the population in any subsequent year, the number of taxables being known. All that is decided is, that the fact being admitted that when the plaintiff entered upon the duties of his office, the county contained more than one hundred and fifty thousand inhabitants, he is to be compensated according to the act of March 31, 1876, and therefore is entitled to judgment. In accordance with the stipulations of the case stated, judgment is entered in favor of the plaintiff for the sum of two hundred and ninety-one dollars and sixty-six cents. J. V. Darling and W. S. McLean, Esqs., for plaintiff. Court of Common Pleas of Luzerne County. PARDEE & MARKLE V. JOHN. Promissory notes-Evidence. Before the act of 1869 (witnesses) a party to commercial paper, negotiated in the ordinary course of business before maturity, was incompetent to testify to anything tending to impeach its valid ity, before or at the time it passed out of his hands. 2. If the note appeared on its face to have been regularly negotiated before maturity, the contrary could not be proved by the endorser in order to make way for his testimony as to matters of defense existing anterior to, and at the time of, the making or negotiation of the note. 3. In a suit by an endorsee against the maker, a release of the endorser by the maker would not make him a competent witness for the latter to testify to facts invalidating the note, there being no evidence aliunde that it was not negotiated before maturity. 4. The act of 1869 does not affect the rule, in a case within the proviso, relating to suits by and against executors, etc. 5. The endorser may, nothwithstanding the above rule, testify to payment of the note in a suit against the maker. 6. The endorser, in a suit against the maker, testified in general terms that the note was paid "by judgment and property." Held to be insufficient. 7. A witness testifying to payment by judgment and property must give facts, not conclusions, and if from such facts payment would legally result as a conclusion, the question as to the existence of the facts goes to the jury. Rule for a new trial. The opinion of the court was delivered February 16, 1885, by RICE, P. J. Before the passage of the act of 1869 it was a settled rule of evidence in this state that a party to commercial paper, negotiated in the ordinary course of business before maturity, was incompetent to testify to anything tending to impeach its validity, before or at the time it passed out of his hands. Bank v. Rhoads, 8 Nor. 353. This rule, however, was confined strictly to negotiable instruments, and did not apply even to them unless they had been actually negotiated in the regular course of business, previous to their maturity. Harding v. Mott, 8 H. 469. Where evidence invalidating the transfer was given aliunde it was held that it would then be competent to prove the other facts by the endorser, but where the note appeared on its face to have been regularly negotiated before maturity, the contrary could not be proved by the endorser in order to make way for his testimony as to matters of defense existing anterior to and at the time of the making or negotiation of the note. Barton v. Fetherolf, 3 Wr. 279; Harding v. Mott, supra; Griffith v. Reford, 1 R. 196; Jarden v. Davis, 5 Wh. 338; Klopp v. Leb. Val. Bank, 3 Wr. 489; Kirkpatrick v. Muirhead, 4 H. 128. The ground of exclusion was policy of law. It was said that the rule was based on "the impolicy of permitting one who had assisted to put into circulation a commercial instrument afterwards to aver a taint upon it at the time it passed through his hands." Hence in a suit against the maker, where the rule would otherwise apply, a release would not make the endorser a competent witness to testify to matters of defense existing before and at the time of the making and negotiation of the note. The release cannot have any effect upon his competency, unless we assume the very facts which the witness is not competent to prove, namely, that the paper is not what it purports to be, and was not regularly negotiated as it appears to have been. Notwithstanding the release, the objection to his competency, not being based on interest but policy of law, still remains. The act of 1869 does not affect the applicability of the rule to the defendant's offer under consideration, inasmuch as this case is within the proviso. But, while we held that James Fitzpatrick, the endorser, was not a competent witness to impeach the validity of the note in suit, yet we also held that he could testify as to payment. His testimony upon that subject was, however, clearly insufficient. He says, in general terms, that the note was paid "by judgments and property." This assumed everything, and the witness put himself in the place of both the court and jury. Payment in the way indicated by his answer is a conclusion which involves questions both of fact and law. He should have given the facts, and if from those payment would legally result as a conclusion, the question as to the existence of the facts would have gone to the jury. For aught we know, his conclusion-for that is what his evidence amounts to-may have been based on an entirely erroneous notion of the law; and indeed so far as his cross-examination throws any light upon the matter, it was. We do not think it necessary to cite authorities to show that our answers to the points were the only ones which could have been given. The rule is discharged. H. W. Palmer and A. H. Dickson, Esqs., for plaintiffs. |