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Karaffa v Ferguson.

exceeding 35 miles per hour. Her testimony would supply the very thingspecific proof of an excessive rate of speed—the lack of which moved us to grant the non-suit.

Taking into consideration all of these maters, we believe it to be proper to lift the non-suit and permit a jury to pass upon the case.

And now, October 24, 1919, after argument, the plaintiff's motion is granted, the non-suit is lifted, and the case is ordered upon the next trial list for retrial.

Larkin v Pennsylvania Railroad Company. Negligence-Stone on Railroad Track-Evidence-Jury.

It was a question for the jury where damages were sought to be recovered from a railroad where plaintiff was injured by the train running off the track, the accident being caused by a stone rolling from a hillside onto the track.

Sur Motions for New Trial and for Judgment for Defendant N. 0. V. No.

1191 April Term, 1916. C. P. Allegheny County.

R. P. & M. R. Marshall and Joseph J. Goldsmith, for plaintiff.
Patterson, Crawford & Miller, for defendant.

SHAFER, P. J., November 11, 1919.–The action is for personal injuries received by a passenger in a car of defendant company, which were caused by the car leaving the track. Upon the showing on the part of the plaintiff that the car was derailed and she was thereby thrown to the floor and injured, the burden of disproving negligence was cast upon the defendant.

The defendant showed that a large rock had slid from the bank or hi!1 at the side of the road upon the track and that this was the cause of the derailment, and further gave evidence which was uncontradicted and which tended to show that the fall of the rock had taken place not more than 36 minutes before the accident; that the road was patroled by watchmen; that the hillside at the place of the accident had been inspected from time to time with reference to the danger of falling rocks and that no such danger was apparent.

On the part of the plaintiff it was testified that the rock was undermined a considerable distance by reason of softer material falling out. Under these circumstances it seems to us the case was clearly one for the jury. The motions are both refused, and it is ordered that judgment be entered for the plaintiff on payment of the verdict fee.

Yake v Schmoll.

Replevin -Goods in Custody of the Law Void Writ-Motion to Quash

Act of April 3, 1779.

Under the Act of April 3, 1779, 1 Sm. Laws, 470, a writ of replevin against a constable who has levied on the goods under execution from a magistrate is void and will be quashed on motion. It is not too late to

to quash a writ after an affidavit of defense has been filed, where a writ of replevin has been illegally issued.

move

Replevin. No. 13 March Term, 1919. C. P. Lancaster County.

H. Edgar Shertz, for plaintiff.
B. C. Atlee and H. M. Houser, for defendant.

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HASSLER, J., July 5, 1919.—This writ of replevin was issued for goods and chattels which had been levied upon and seized by a constable by virtue of an execution from a justice of the peace, and were, therefore, in the custody of the law at the time it was issued. The present rule is to show cause why it should not be quashed.

Section 2 of the Act of April 3, 1779, 1 Sm. Laws, 470, is as follows: "All writs of replevin granted or issued for any owner or owners of any goods or chattels levied, seized or taken in execution, or by distress or otherwise, by any sheriff

or of any county, constable, irregular, erroneous and void; and all such writs may and shall, at any time after the service, be quashed (upon motion) by the court to which they are returnable, the said court being ascertained of the truth of the fact by affidavit or otherwise." Section 3 provides that “The court, besides quashing the said writs, may and shall award treble costs to the defendant or defendants in such writs.”

In this case the goods and chattels for which the writ of replevin was issued had been levied upon by Milton B. Hess, a constable, to satisfy an execution against Charles A. Schmoll, issued by a justice of the peace. He, the said constable, is one of the defendants against whom the writ of replevin was issued. It is upon his application that the motion to quash the writ was granted, and he makes affidavit of the truth of the facts necessary to entitle him to have it quashed. It has been decided that the above Act of Assembly applies where a writ is issued against an officer who has levied upon goods and chattels, and where he makes application to quash the writ and swears to the truth of the necessary facts: Cortland Wagon Co. v Landis, 17 Lanc. Law Rev., 19; English v Dalbrow, 1 Miles, 160; Weed v Hill, 2 Miles, 122; Tufts v Cole, 3 Kulp, 436. As all these requirements have been met in this case, and as the goods were clearly in the custody of the law, the writ of replevin is irregular, erroneous and void, and we must quash it.

It is urged that, as the defendants have filed an affidavit of defense, it is too late to make an application to quash. It will be observed that the Act provides that the writ may and shall be quashed at any time after service. It is not too late to do this even at the time of the trial: Taylor v Ellis, 200 Pa., 191. The rule is, therefore, made absolute and the writ of replevin quashed, and, in accordance with the 3rd section of the Act of Assembly, treble costs are awarded to Charles A. Schmoll and Milton B. Hess, defendants.

Rule made absolute.

Wynne v L. & W. V. R. R. Co.

Practice-Trespass_Abandonment

Non Pros.

-Failure to File Statement-Rule for

An action of trespass was brought June 14, 1916, and no further step was taken until September 25, 1918, when plaintiff filed a statement showing the cause of action to be a personal injury sustained as a passenger on defendant's railroad, for which cause the statutory limitation would be two years. A petition for a rule for a non pros. was filed after the filing of the statement, which set up solely the failure of plaintiff to file his declaration within two years after suit was instituted. Held: That the lapse of time did not raise a presumption of abandonment of the case, and the rule was discharged.

Rule to Show Cause Why Non Pros. Shall Not be Entered. No. 714 June Term, 1916. C. P. Luzerne County.

W. L. Pace, for plaintiff.
J. T. Lenahan, for defendant.

FULLER, P. J.—This action of trespass was brought June 14, 1916, and no further step was taken until Sept. 25, 1918, when plaintiff filed statement showing cause of action to be personal injury sustained as a passenger on defendant's railroad for which the statutory limitation would be two years.

The statement avers as the date of accident June 14, 1916, the very date of bringing suit, which, if correct, and we have nothing before us to show the contrary, indicates a spirit of promptness quite inconsistent with that spirit of procrastination which lays ground for a non pros.

The petition for this rule was filed Oct. 7, 1918, after filing of statement, and avers no grounds whatever extraneous to the record, not even containing an allegation of abandonment, but explicitly suggests as the sole ground of non pros. "the failure of defendant to file his declaration within two years after suit instituted,” the motion being thus based strictly upon the analogy of the statute of limitations.

Upon argument of the rule, when it was first set down upon the list January 9, 1919, the plaintiff filed an answer averring extraneous facts, which, if true, fully explained any appearance of procrastination, viz., negotiations for settlement, and sickness of plaintiff's wife, coupled with the suggestion of a belated trial list.

The defendant objects to the answer on the ground of its not being filed within fifteen days after service, October 9, 1918, of the petition and rule, as provided in Court Rule XLIII (2); but the latter is only designed to establish extraneous matters of fact averred in the petition and not specifically denied by counter-affidavit within the period named, and does not apply wheer, as here, no such extraneous matters of fact are averred in the petition

Be this as it may, we base our decision in this case, as in some other cases, distinctly upon the proposition that the lapse of barely two years does not afford sufficient ground for presuming abandonment on the state of this record. Therefore, the rule is discharged.

Barnes Laundry Company v City of Pittsburgh et al.

Equity - Public Service Commission Water Rates - Municipalities

Jurisdiction -City Council-Water Assessors -Complaint

Municipal corporations are neither within the term "public service companies," as used in the Act of July 26, 1913, P. L. 1374, nor are they embraced in its rate making provisions; further they are not subject at all to the jurisdiction of the Public Service Commission beyond the "limited extent" provided in parts of the Act so that the Public Service Commission has no jurisdiction over a water rate fixed by the council of a second class city.

When rendering the same character of service as public service companies, municipalities for many purposes must be considered and treated like private corporations, but, for purposes of supervision over their internal management It can readily be seen they may justifiably be put on a different basis from ordinary public service companies; for, though engaged in rendering the same kind of service as the latter, they are entitlel to derive therefrom a just gain.

The Act of June 15, 1915, P. L. 976, relating to water rates in municipalities glve the courts jurisdiction on appeal to make “such order and decree touching the matter complained of as may seem just and equitable." This warrant of authority is necessarily limited to a revision of those matters which may be legally "complained of" to the full board of water assessors, 1. e., errors in assessments which that body has power to redress, by reduction or otherwise, and plaintiff who failed to make complaint to the Board of Water Assessors within the time required by the Act is estopped by his laches from raising the question in a court of equity. To wait until the city filed a lien and then defending upon sci. fa. would be too late.

The Act of June 16. 1836, P. L. 1835-6, 785, 790, Section 13, provides that the several courts of Common Plea's shall have chancery powers to prevent or restrain "the commission or continuance of acts contrary to law and prejudicial to the interests of the community and the rights of individuals." This broad grant of equity jurisdiction is sufficient to cover cases where plaintiff complains that defendant city has unlawfully arrogated to itself the right to make and enforce unreasonable and discriminatory water rates to the prejudice of the former.

Equity ordinarily will not entertain a suit where redress may be had at law, yet equitable jurisdiction does not depend entirely upon the want of a common law remedy, but may be sustained on the ground that, under given circumstances, it is the most convenient and efficient road to adequate relief.

W. W. Stoner, J. B Eichenauer; Gray, Thompson & Rose; H. Stewart Dunn, T. F. Ryan and S. J. Dille, for appellants.

C. A. O'Brien, City Solicitor; Harry Dia ond and B. J. Jarrett, Assistant City Solicitors, for appellee.

Appeal from C. P. of Allegheny County. No. 41 October Term, 1919. Supreme Court, Western District.

MoschZISKER, J., January 5, 1920.–To facilitate a ready understanding of, and future reference to, this opinion, we have divided it into seven parts, as follows: I. Statement of the case. II. Consideration of "Public Service Company Law.” III. Act of June 15, 1915, P. L. 976, in regard to taxes and water rents in cities of second class. IV. Equity jurisdiction, including discussion of general principles governing municipal utility rates and inadequacy of remedies at law. V. Laches. VI. Statement concerning authorities cited. VII. Final Order.

I. The bill complains that the City of Pittsburgh made the Barnes Laundry Company install a water meter, and arbitrarily fixed unreasonable, discriminatory rates per thousand gallons for water consumed by it, threatening to compel payment at law, also to cut off the supply, if such “illegal” charges were not promptly met. The laundry company prays the municipality be

Barnes Laundry Company v City of Pittsburgh et al.

restrained from enforcing several uncollected assessments, and that alleged excessive rates theretofore paid by complainant corporation be ascertained and refunded to it. The City and two of its officials, included as defendants, demurred; the bill was dismissed and plaintiff appealed.

The case presents several important points, one being the question of jurisdiction of the Public Service Commission; for, of course, if that body has the right to determine the reasonableness of water rates fixed by municipalities, the court below lacked power to give relief in the present proceeding

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II. The Act of July 26, 1913, P. L. 1374, is entitled "An Act defining public service companies and providing for their regulation by prescribing and defining their duties and liabilities, prescribing, defining and limiting their powers, and regulating their incorporation; and, to a limited extent, regulating municipal corporations engaged or about to engage in the business of public service companies

Article 1, Section 1, states the term "public service company" shall include, inter alia, "water corporations;" the term “corporation” shall include all bodies corporate,” but “shall not include municipal corporations, except as otherwise provided in this Act;" the term “municipal corporation” shall include, among others, all “cities;" finally, that no property owned by a municipality at the date when the Act becomes effective “shall be subject to the commission or to any of the terms of this Act, except as elsewhere provided herein." While it is plain, to this point, the Act cannot be construed to comprehend a municipality operating a water plant, yet the question arises whether or not it is “otherwise provided" therein, and, if so, to what extent?

Article 2, Section 1, Paragraph i, p. 1380, states municipal corporations must adopt and use, in conducting their business, such methods as shall be prescribed by the Public Service Commission, "with respect to accounts, records, and memoranda relating to the rendering or furnishing by them to the public of any service of the kind or character rendered or furnished by public service companies, and to the making of reports in relation thereto.” Article 3, Section 3, Paragraph d, p. 1388, provides that only upon approval of the commission "shall it be lawful

for any municipal corporation to acquire, construct, or begin to operate, any plant, equipment or other facilities for the rendering or furnishing to the public of any service of the kind or character already being rendered or furnished by any public service company within the municipality;" but a municipal corporation may continue the operation of its plant or extend the same to any territory which "is not then being supplied by a public service company rendering or furnishing service of a like kind,” and any municipality, which at the time the Act becomes effective has “in process of construction any such plant," may proceed with, complete and begin operation thereof "without the aforesaid approval of the commission.” In connection with these last mentioned provisions, see Article 5, Section 18, p. 1415, which declares the approval of the commission shall be given only when it finds and determines that the granting thereof is “necessary or proper for the service, accommodation, convenience or safety of the public.” Article 3, Section 11, p. 1395,provides that "no contract or agreement between any public service company and any municipal corporation shall be valid unless approved by the commission;" and Article 5, Section 15, p. 1413, that "where any municipal corporation is engaged in rendering or furnishing to the public any service of the kind or character rendered or furnished by public service companies," the commission, "with respect to such service," shall not only have power

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