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in such a case is the same as in cases where specific performance is asked for, and Justice Mestrezat, in delivering the opinion, relies upon and quotes from so he many of the cases where the rule as to specific performance is involved, that it is unnecessary for us to refer to them. In Haupt v. Unger, 222 Pa., 439, the subject-matter of the contract was described as "All of the properties of E. J. Unger, Deceased, in Croyle Township, together with the Heise and Bertenet additions"; and it was held that parol evidence was admissible to identify the land and locate it on the ground.
We are satisfied from these authorities that the subject-matter is sufficiently described in the contract here involved and that parol evidence may be admitted to more particularly locate and identify it. It was described as all of the property, both real and personal, of the Grey Iron Company of Mt. Joy, Pa. There can be no dispute as to what was intended by this, because the testimony shows that all of the property, both real and personal, of that company was advertised for sale by the receivers of the Hardware & Woodenware Manufactur
ing Company, and that it was purchased as a unit at that sale by one of the defendants' grantors.
In the case of Haupt v. Unger, supra, Unger agreed to sell to Haupt land which he did not then own, but subsequently purchased. It was found as a fact that in purchasing it Unger acted as the agent of Haupt, and it was held by the Supreme Court that such finding was proper.
In the present case it does not matter, therefore, whether the agreement was to sell real estate, or whether it constituted Kingsbury and Tisdale agents of the plaintiffs, for in either event the plaintiff would be entitled to have the property conveyed to it, so far as the testimony taken on this motion shows.
4. It is contended, further, that the preliminary injunction should be dissolved because the answer alleges that the defendants have parted with possession of much of the personal property in question. This is not responsive to the plaintiff's bill, and it was, therefore, ¦
necessary for the defendants to have proven it. This they have not done. But even though they had proven it, it would be no reason to dissolve the preliminary injunction. At most, it would be a question for consideration on the final hearing of this bill. No harm can come to the defendant by postponing its consideration until then.
5. It is further urged that the dismissal of the plaintiff's bill, in the proceeding brought in the Supreme Court of the State of New York, is a bar to its proceeding in this Court. With this we cannot agree. An examination of that record shows that the plaintiff's case was dismissed inter alia because the Court. did not have jurisdiction to make the decree of specific performance which was asked for. If it did not have jurisdiction, it could not pass upon the merits of any question involving plaintiff's rights, and if it did pass upon any such question it would not bar the plaintiff from proceeding to obtain its rights in a Court which does have jurisdiction. That case is not finally disposed of, as an appeal is pending.
titled to have specific performance of the As in our opinion the plaintiff is en
contract involved here both as to the real and personal property, the latter being used in connection with the former, and would be deprived of that right. if the defendants were permitted to dispose of the property to one who has no notice of such right, the plaintiff is entitled to have it protected by a continuance of the preliminary injunction until the case is finally heard and disposed of. We, therefore, refuse the motion to dissolve the preliminary injunction and continue it until further hearing.
I been offered to show any unfitness on the part of the mother, or that in her custody the child would not be properly cared for, we are of the opinion that for the present, at least, the mother should.
Parent and child-Custody of child continue to have the custody of the child. Divorce of parents. And now, October 8, 1914, it is ordered and decreed that the mother, Mrs. Carrie E. Lenhart, shall have the custody of Florence O. Lenhart as long as she furnishes the child with proper religious and moral instruction and sends her regularly to the public schools, and the mother shows herself a fit and proper person to have the custody of the child, and as long as it is not shown that the mother is an unfit person to have the custody of the child or that the child would be better cared for by the father; and the father shall have access to the child at all reasonable times.
Common Pleas-- Law
In a contest between divorced parents for the custody of a child six years of age, the court will award the custody to the mother, where there is nothing to show that she is an unfit person to have the child and it appears that the school and other advantages which she can offer to the child are equal to those offered by the father.
Petition of Lewis Lenhart for the custody of Florence Lenhart. C. P. of Snyder County. October Term, 1914, No. 72. Habeas corpus.
James G. Hatz, for petition.
Harry S. Knight and M. H. Taggart, for respondent.
October 8, 1914. Opinion by JOHNSON, P. J.
Florence Lenhart is a small girl about. six years of age. Lewis Lenhart is her father, and Mrs. Carrie E. Lenhart is her mother. The father resides in Harrisburg, Pa., and the mother resides in Union Township, Snyder County, Pa., with her parents. The father and the mother parted several years ago, and since that have been divorced. The father now makes application for the custody of the child in these proceedings. A hearing was had and testimony taken on both sides. The mother is now residing in Selinsgrove, Snyder County, Pa., where she has made arrangements to send the child to public school.
There is but one question for determination in this case, namely, the welfare and best interests of the child, Florence (). Lenhart. In an examination of all the evidence, we are unable to find that either the father or the mother is an unfit person to have the custody of the child. The school and church advantages at Selinsgrove are equal to those at Harrisburg. On account of the tender years of the child, the mother should be better able to care for the child than the father, and as no evidence has |
Case stated. C. P. of Union County. September Term, 1914, No. 24.
Harry M. Showalter, for plaintiff. Curtis C. Lether, for defendant. August 5, 1914. Opinion by JOHNSON, P. J.
In this case stated, from the facts agreed upon the following question is submitted for the determination of the court: "Is the plaintiff, the aforesaid duly elected and qualified constable of the borough of New Berlin, Union County, entitled to be paid mileage for attendance on court and making returns thereto, in addition to the compensation allowed them under the Act of April 23, 1909, P. L. 151 ?”
J. F. Dunkleberger, the constable of New Berlin, has been paid his fees of
$2.50 per diem, as provided by the Act of April 23, 1909, P. L. 151. In making his returns to court at Lewisburg he has traveled one hundred and fifty-four miles, for which he now claims $8.64. The Act of February 17, 1899, P. L. 1, is the general constables' fee bill. In it, for making returns to the Court of Quarter Sessions, $1.50 per diem was allowed. In addition to the fees allowed for different kinds of services, a separate paragraph provides for traveling expenses, as follows: "For traveling expenses in the performance of any duty or service required by law, each mile going and returning, six cents, to be computed by the route usually traveled in going from points and places where said constables may reside, or where he receives any paper to be executed, to the points or places required to be traveled, whether that route be by highways, railroads or otherwise: Provided that in no case shall more mileage be demanded or received than for the miles actually traveled."
The Act of April 6, 1899, P. L. 32, provides: "That from and after the passage of this act, the constables in the commonwealth shall be entitled to re
ceive from the county treasury, upon orders drawn by the county commissioners of the several counties, the fees and mileage allowed by law for making returns to the Court of Quarter Sessions of the peace, and for attending at general, special, township, ward and borough elections; and the several counties are hereby made liable therefor and required to pay the same as aforesaid."
The Act of April 23, 1909, P. L. 151, provides: "That from and after the passage of this act, the fees to be received by constables in this commonwealth shall be as follows: For attendance on court and making returns thereto. $2.50 per diem; for serving notices of their election upon township or borough officers, for each service, fifteen cents."
The question to be determined here is whether this last act of April 23, 1909, repeals that part of the Act of February 17. 1899, which provides for mileage in so far as it relates to constables in making returns to the Court of Quarter Ses
sions. These three acts are in pari materia and should be considered and construed together as one body of law on the same general subject. "Where there are earlier acts relating to the same subject, the survey must extend to them; for all are, for the purposes of construction, considered as forming one homogeneous and consistent body of law and each of them may explain and elucidate every other part of the common system to which it belongs." Endlich on the Interpretation of Statutes, 54. This principle is illustrated by the following example: "Again, the general road law of Pennsylvania forbade the laying out of a private road on a public road, and required certain notice to be given to parties through whose lands the new road was to pass. A later act authorized the laying out of private roads, under the surface of any land, to coal mines, providing nothing as to the occupation of public roads or notice to parties. It was held that this act was to be construed together with, and as part of, the general road law, and that, therefore, the taking of a public road and the failure to give notice were both fatal defects in a proceeding under the later act." Endlich on the Interpretation of Statutes, 56.
Thus, we see that the acts here referred to form somewhat of a homogeneous whole and should therefore be construed together, the Act of 1909 increasing the per diem fee from $1.50 to $2.50 and letting the mileage, as provided in the Act of February 17, 1899, stand.
It is contended by the defendant in the case at bar that the Act of 1909 entirely repeals the Act of 1899 in so far as it relates to the Court of Quarter Sessions. It does repeal that part of it which relates to the per diem compensation, but it makes no reference to the allowance for mileage and the law does not favor a repeal by mere implication. "But repeal by implication is not favored. It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments in the statute book, or to effect so important a measure as the repeal of a law without ex
pressing an intention to do so. Such an interpretation, therefore, is not to be adopted unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with real intention. Hence it is, a rule founded in reason as well as in abundant authority, that, in order to give an act not covering the entire ground of an earlier one, nor clearly intended as a substitute for it the effect of repealing it, the implication of an intention to repeal must necessarily flow from the language used, disclosing a repugnancy between its provisions and those of the earlier law, so positive as to be irreconcilable by any fair, strict or liberal construction of it, which would, without destroying its evident intent and meaning, find for it a reasonable field of operation, preserving, at the same time, the force of the earlier law, and construing both together in harmony with the whole course of legislation upon the subject." Endlich on the Interpretation of Statutes, 280.
This very high text-book authority is fully sustained by the decisions of the Supreme Court of Pennsylvania. In Walter's Appeal, 70 Pa., 392, on page 395, it is said: "Implied repeals are Implied repeals are never favored." In Erie v. Bootz, 72 Pa., 196, on page 199, Justice Sharswood lays down the following principles in the interpretation of statutes: "The general principles of law upon the subject of the implied repeal of statutes are well settled by the decisions, and indeed are not in dispute. Implied repeals are not favored. If two statutes can stand together, the posterior does not abrogate the prior. This is indeed but the application of a general canon of interpretation-that the whole course of legislation, like the whole of a deed or other instrument of private parties, is to be so construed that every part and every word shall have its effect, if it consistently can, and thus the will of the legislature be completely carried into execution." In Osborne v. Everitt, 103 Pa., 421, on page 424, the principle is stated in the following language: "It is also a well-established rule that an act of assembly will not be construed to repeal by implication an ex
press enactment, unless there be a clear and strong inconsistency between them." Street v. Com., 6 W. & S., 209; Easton Bank v. Com., 10 Pa., 442. In the latter case we said, on p. 488: "Where both acts are merely affirmative, and the substance such that both may stand together, both shall have a concurrent efficacy." In City of Harrisburg v. Sheck, 104 Pa., 53, on page 57, Mr. Justice Green, quoting Woodward, J., in Wright v. Vic ers, 81 Pa., 122, said: “To repeal a statute by implication. there must be such a positive repugnancy between the provisions of the new law and the old that they cannot stand together or be consistently reconciled."
This exact question has been decided by Judge Woods in Ritchey v. Bedford County, 22 Pa. Dist. Rep., 328, where it is decided that constables are entitled to mileage under the Act of February 17, 1899, in addition to $2.50 per day allowed under the Act of April 23, 1909, for attendance on court and making returns thereto. In this case Judge Woods said: "The Act of February 17, 1899, P. L. 3, allowed the constable for making his return $1.50 and mileage, and while the Act of April 23, 1909, P. L. 161, is not in so many words a supplement to the Act of February 17, 1899, P. L. 3, it changes, and by the repealing clause alters, the fee, making no reference to the traveling expenses allowed under the Act of February 17, 1899, P. L. 3. would be unjust and inequitable to say that the constables of a borough which is a county-seat should receive the same compensation for the same duty performed by one who is compelled to lay out for traveling expenses his whole compensation. We do not think the legislature intended to make any such distinction. If the clause providing for mileage is repealed, then no mileage for any service can be allowed; but the counsel for the county contends that it only refers to the constable's return to court. This is not a proper construction to put upon the Act of 1909. The acts are clearly in pari materia and should be. construed together. To my mind, it was clearly the intention of the legislature to raise the constable's fee for making his
return from $1.50 to $2.50, without alter- | Court of Massachusetts in Mittenthal v. ing the expenses for traveling in the way of mileage."
In our opinion, the Act of April 23, 1909, P. L. 151, raises the fee for making returns to court from $1.50 to $2.50 per diem without changing the amount allowed for traveling expenses, as provided by the Act of February 17, 1899, P. L. 3.
And now, August 5, 1914, it is ordered and decreed that judgment be entered in favor of the plaintiff in the sum of $8.64 against the defendant and the costs are ordered to be paid by the defendant county.
Stipulation Restricting Judicial Functions.
The general rule is well settled that agreements to oust courts of jurisdiction are contrary to public policy and void. In the well-known case of Sanford v. Accident Association (147 N. Y., 326 it was held that an agreement in a certificate of life insurance of an accident association, that the issues in any action brought against it under the certificate should, on demand of the association or its attorney, "be referred for trial to a referee to be appointed by the court," is not binding upon the parties and will be ignored. In Kelly v. Trimont Lodge, in the Supreme Court of North Carolina, it was held that a stipulation in an application for membership in a beneficial association, whereby the applicant agreed to seek his remedy for all rights on account of such membership in the tribunals of the order, while binding as to decisions of the tribunals of the order on all questions of an administrative character, and as to controversies between members within the order, did not preclude a member from invoking the courts to aid in the enforcement of a property right, such as the recovery of sick benefits, without resorting in the first instance to the order's tribunal.
A modification of the general rule was announced by the Supreme Judicial
Mascagni (66 N. E., 425), holding that a stipulation in a contract entered into between Italian citizens, partly to be performed in Italy and partly in the United States, that the Italian courts should have exclusive jurisdiction of actions thereon, is not so objectionable on grounds of public policy that the Massachusetts courts would refuse to treat it as valid. This decision was based in part upon the considerations that the agreement was valid under the laws of Italy, and under the circumstances disclosed, might be of great convenience to, and especially promote justice between, the parties.
The recent decision of the District Court of Appeals of California, in Conwell v. Varian (February, 1913, 130 Pac., 23), is in line with the general rule above referred to. It was decided, among other points, that a stipulation by the attorneys of the parties that an action involving valuable property rights should be submitted to the court for decision on a single question involving an issue of alteration of an instrument, and that the court in passing on that issue should have the aid of a handwriting expert of its own choice, whose evidence and photographs should be conclusive, was void. The following is from the opinion:
"No such stipulation or agreement by counsel as the one involved here should be tolerated in any case, much less one involving valuable property rights, or, as here, a large sum of money. A trial thus conducted is in effect more in the nature of an arbitration than a trial, but even less satisfactory than the former method of settling disputed questions of fact. It is obviously the first duty of the courts to see that litigants shall have their rights judicially determined only after a fair and impartial trial according to the mode prescribed by law. To place a litigant's rights in a trial thereof at the mercy, so to speak, of the ex parte opinion of any person, however well qualified such person may be to speak on the subject to which his opinion relates, is not to give such litigant's rights a fair and impartial trial according to the recognized or prescribed forms by which