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in such a case is the same as in cases necessary for the defendants to have where specific performance is asked for, proven it. This they have not done. and Justice Mestrezat, in delivering the But even though they had proven it, it opinion, relies upon and quotes from so would be no reason to dissolve the premany of the cases where the rule as to liminary injunction. At most, it would specific performance is involved, that it be a question for consideration on the is unnecessary for us to refer to them. final hearing of this bill. No harm can

In Haupt v. Unger, 222 Pa., 439, the come to the defendant by postponing its subject-matter of the contract was de consideration until then. scribed as "All of the properties of E. J. 5. It is further urged that the dismisCnger, Deceased), in Croyle Township, sal of the plaintiff's bill, in the proceedtogether with the Heise and Bertenet al. ing brought in the Supreme Court of the ditions "; and it was held that parol State of New York, is a bar to its proevidence was admissible to identify the ceeding in this Court. With this we land and locate it on the ground.

cannot agree. An examination of that We are satisfied from these authorities record shows that the plaintiff's case was that the subject-matter is sufficiently de dismissed inter alia because the Court scribed in the contract here involved did not have jurisdiction to make the and that parol evidence may be admitted decree of specific performance which was to more particularly locate and identify asked for. If it did not have jurisdicit. It was described as all of the prop- tion, it could not pass upon the merits erty, both real and personal, of the Grey of any question involving plaintiff's Iron Company of Mt. Joy, Pa. There rights, and if it did pass upon any such can be no dispute as to what was in- question it would not bar the plaintiff tended by this, because the testimony from proceeding to obtain its rights in shows that all of the property, both real a Court which does have jurisdiction. and personal, of that company was ad- That case is not finally disposed of, as vertised for sale by the receivers of the an appeal is pending. Hardware & Woodenware Manufacturing Company, and that it was purchased titled to have specific performance of the

As in our opinion the plaintiff is enas a unit at that sale by one of the de

contract involved here both as to the fendants' grantors.

real and personal property, the latter In the case of Haupt v. Unger, supra, being used in connection with the forUnger agreed to sell to Haupt land mer, and would be deprived of that right which he did not then own, but subse-l if the defendants were permitted to disquently purchased. It was found as a pose of the property to one who has no fact that in purchasing it Unger acted notice of such right, the plaintiff is enas the agent of Haupt, and it was held | titled to have it protected by a continby the Supreme Court that such finding uance of the preliminary injunction until was proper.

the case is finally heard and disposed of. In the present case it does not matter, We, therefore, refuse the motion to distherefore, whether the agreement was to solve the preliminary injunction and sell real estate, or whether it constituted continue it until further hearing. 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,

been offered to show any unfitness on Common Pleas-- ław

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 Lenhart's Case.

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 or

dered and decreed that the mother, Mrs. In a contest between divorced parents for Carrie E. Lenhart, shall have the custody the custody of a child six years of age, the of Florence 0. Lenhart as long as she court will award the custody to the mother, where there is nothing to show that she is an

furnishes the child with proper religunfit person to have the child and it appears ious and moral instruction and sends that the school and other advantages which her regularly to the public schools, and she can offer to the child are equal to those the mother shows herself a fit and proper offered by the father.

person to have the custody of the child, Petition of Lewis Lenhart for the cus- and as long as it is not shown that the tody of Florence Lenhart. C. P. of Sny- | mother is an unfit person to have the der County. October Term, 1914, No. custody of the child or that the child 72. Habeas corpus.

would be better cared for by the father; James G. Hatz, for petition.

and the father shall have access to the

child at all reasonable times. Harry S. Knight and M. H. Taggart, The writ is discharged, and the costs for respondent.

of this proceeding shall be divided

equally between the parties. October 8, 1914. Opinion by JOHNSON, P. J.

Dunkleberger v. Union County. Florence Lenliart is a small girl about six years of age. Lewis Lenhart is her

Lewis Lenhart is her Constables - Fees Mileage - Act of father, and Mrs. Carrie E. Lenhart is April 23, 1909, P. L. 151. her mother. The father resides in Har

Constables are entitled to mileage under the risburg, Pa., and the mother resides in Act of February 11, P. L. 3. in addition to Union Township, Snyder County, Pa., $2.50 per day under the Act of April 23, 1909, with her parents. The father and the

P. L. 151, for attendance on court and mak

ing returns thereto. mother parted several years ago, and since that have been divorced. The

Case stated. C. P. of Union County. father now makes application for the September Term, 1914, No. 24. custody of the child in these proceed

Harry J. Showalter, for plaintiff. ings. A hearing was had and testimony taken on both sides. The mother is now Curtis C. Lether, for defendant. residing in Selinsgrove, Snyder County, Pa., where she has made arrangements

August 5, 1914. Opinion by Johnto send the child to public school.

SON, P. J. There is but one question for deter- In this case stated, from the facts mination in this case, namely, the wel- | agreed upon the following question is fare and best interests of the child, Flor-submitted for the determination of the ence 0. Lenhart. In an examination of court: “Is the plaintiff, the aforesaid all the evidence, we are unable to find | duly elected and qualified constable of that either the father or the mother is the borough of New Berlin, Union an unfit person to have the custody of County, entitled to be paid mileage for the child. The school and church ad- attendance on court and making returns vantages at Selinsgrove are equal to thereto, in addition to the compensation those at Harrisburg. On account of the allowed them under the Act of April 23, tender years of the child, the mother 1909, P. L. 151?” should be better able to care for the child J. F. Dunkleberger, the constable of than the father, and as no evidence has | New Berlin, has been paid his fees of

This

$2.50 per diem, as provided by the Act : sions. These three acts are in pari maof April 23, 1909, P. L. 151. In making iteria and should be considered and conhis returns to court at Lewisburg he has strued together as one body of law on traveled one hundred and fifty-four the same general subject. "Where there miles, for which he now claims $8.64. 1 are earlier acts relating to the same sub

The Act of February 17, 1899, P. L. I, ject, the survey must extend to them; is the general constables' fee bill. In it, ! for all are, for the purposes of construcfor making returns to the Court of tion, considered as forming one homoQuarter Sessions, $1.50 per diem was geneous and consistent body of law and allowed. In addition to the fees allowed each of them may explain and elucidate for different kinds of services, a sep- every other part of the common system arate paragraph provides for traveling to which it belongs.” Endlich on the expenses, as follows: "For traveling Interpretation of Statutes, 54. expenses in the performance of any duty principle is illustrated by the following or service required by law, each mile example: “Again, the general road law going and returning, six cents, to be com- of Pennsylvania forbade the laying out puted by the route usually traveled in of a private road on a public road, and going from points and places where said required certain notice to be given to constables may reside, or where he re- parties through whose lands the new ceives any paper to be executed, to the road was to pass. A later act authorpoints or places required to be traveled, ized the laying out of private roads, whether that route be by highways, rail- under the surface of any land, to coal roads or otherwise: Provided that in mines, providing nothing as to the occuno case shall more mileage be demanded pation of public roads or notice to paror received than for the miles actually ties. It was held that this act was to be traveled.”

construed together with, and as part of, The Act of April 6, 1899, P. L. 32, the general road law, and that, therefore, provides: “That from and after the the taking of a public road and the failpassage of this act, the constables in the ure to give notice were both fatal defects commonwealth shall be entitled to re- | in a proceeding under the later act.” ceive from the county treasury, upon

Endlich on the Interpretation of Statorders drawn by the county commis- utes, 56. sioners of the several counties, the fees Thus, we see that the acts here reand mileage allowed by law for making ferred to form somewhat of a homogereturns to the Court of Quarter Sessions neous whole and should therefore be of the peace, and for attending at gen- construed together, the Act of 1909 ineral, special, township, ward and bor- creasing the per diem fee from $1.50 to ough elections; and the several counties $2.50 and letting the mileage, as proare hereby made liable therefor and re- vided in the Act of February 17, 1899, quired to pay the same as aforesaid." stand.

The Act of April 23, 1909, P. L. 151, It is contended by the defendant in the provides: “That from and after the pas- case at bar that the Act of 1909 entirely sage of this act, the fees to be received repeals the Act of 1899 in so far as it by constables in this commonwealth shall relates to the Court of Quarter Sessions. be as follows: For attendance on court It does repeal that part of it which reand making returns thereto, $2.50 per lates to the per diem compensation, but diem; for serving notices of their elec- it makes no reference to the allowance tion upon township or borough officers, for mileage and the law does not favor for each service, fifteen cents.'

a repeal by mere implication. “But reThe question to be determined here is peal by implication is not favored. It is whether this last act of April 23, 1909, a reasonable presumption that the legis*Tepeals that part of the Act of February | lature did not intend to keep really con17. 1899, which provides for mileage in tradictory enactments in the statute so far as it relates to constables in mak- book, or to effect so important a measing returns to the Court of Quarter Ses- ure as the repeal of a law without ex

66

utes, 280.

pressing an intention to do so.

Such an

press enactment, unless there be a clear interpretation, therefore, is not to be and strong inconsistency between them.” adopted unless it be inevitable. Any Street v. Com., 6 W. & S., 209; Easton reasonable construction which offers an Bank v. Com., 10 Pa., 442. In the latter escape from it is more likely to be in case we said, on p. 488: Where both consonance with real intention. Hence acts are merely affirmative, and the subit is, a rule founded in reason as well as stance such that both may stand together, in abundant authority, that, in order to both shall have a concurrent efficacy." give an act not covering the entire In City of Harrisburg v. Sheck, 104 Pa., ground of an earlier one, nor clearly in- 53, on page 57, Mr. Justice Green, quottended as a substitute for it the effect of ing Woodward, J., in Wright v. Vicers, repealing it, the implication of an inten- 81 Pa., 122, said: “To repeal a statute tion to repeal must necessarily flow from by implication, there must be such a the language used, disclosing a repug- positive repugnancy between the pronancy between its provisions and those visions of the new law and the old that of the earlier law, so positive as to be they cannot stand together or be conirreconcilable by any fair, strict or liberal sistently reconciled." construction of it, which would, without

This exact question has been decided destroying its evident intent and mean- by Judge Woods in Ritchey v. Bedford ing, find for it a reasonable field of oper- County, 22 Pa. Dist. Rep., 328, where it ation, preserving, at the same time, the is decided that constables are entitled to force of the earlier law, and construing mileage under the Act of February 17, both together in harmony with the whole 1899, in addition to $2.50 per day allowed course of legislation upon the subject.” under the Act of April 23, 1909, for atEndlich on the Interpretation of Stat-tendance on court and making returns

thereto. In this case Judge Woods said: This very high text-book authority is “The Act of February 17, 1899, P. L. 3, fully sustained by the decisions of the allowed the constable for making his reSupreme Court of Pennsylvania. In turn $1.50 and mileage, and while the Walter's Appeal, 70 Pa., 392, on page Act of April 23, 1909, P. L. 161, is not 395, it is said:

Implied repeals are in so many words a supplement to the never favored." In Erie v. Bootz, 72 Act of February 17, 1899, P. L. 3, it Pa., 196, on page 199, Justice Sharswood changes, and by the repealing clause lays down the following principles in the alters, the fee, making no reference to interpretation of statutes: “ The general the traveling expenses allowed under the principles of law upon the subject of the Act of February 17, 1899, P. L. 3. It implied repeal of statutes are well settled would be unjust and inequitable to say by the decisions, and indeed are not in that the constables of a borough which dispute. Implied repeals are not favored. is a county-seat should receive the same If two statutes can stand together, the compensation for the same duty perposterior does not abrogate the prior. formed by one who is compelled to lay This is indeed but the application of a out for traveling expenses his whole general canon of interpretation—that the compensation. We do not think the whole course of legislation, like the legislature intended to make any such whole of a deed or other instrument of listinction. If the clause providing for private parties, is to be so construed that inileage is repealed, then no mileage for every part and every word shall have its

any service can be allowed; but the effect, if it consistently can, and thus the counsel for the county contends that it will of the legislature be completely car- only refers to the constable's return to ried into execution.” In Osborne V. court. This is not a proper construction Everitt, 103 Pa., 421, on page 424, the to put upon the Act of 1909. The acts principle is stated in the following lan- are clearly in pari materia and should be. guage: “It is also a well-established rule construed together. To my mind, it was that an act of assembly will not be con- clearly the intention of the legislature to strued to repeal by implication an ex- I raise the constable's fee for making his

P. L. 3

return from $1.50 to $2.50, without alter- Court of Massachusetts in Mittenthal v. ing the expenses for traveling in the way Mascagni (66 N. E., 425), holding that of mileage."

a stipulation in a contract entered into In our opinion, the Act of April 23, between Italian citizens, partly to be per1909, P. L. 151, raises the fee for mak- formed in Italy and partly in the United ing returns to court from $1.50 to $2.50 States, that the Italian courts should per diem without changing the amount have exclusive jurisdiction of actions allowed for traveling expenses, as pro- thereon, is not so objectionable on vided by the Act of February 17, 1899, grounds of public policy that the Massa

chusetts courts would refuse to treat it And now, August 5, 1914, it is ordered as valid. .

This decision was based in and decreed that judgment be entered in part upon the considerations that the favor of the plaintiff in the sum of $8.64 agreement was valid under the laws of against the defendant and the costs are Italy, and under the circumstances disordered to be paid by the defendant closed, might be of great convenience to, county.

and especially promote justice between, the parties.

The recent decision of the District

Court of Appeals of California, in ConLegal Miscellany. well v. Varian (February, 1913, 130

Pac., 23), is in line with the general rule

above referred to. It was decided, Stipulation Restricting Judicial Functions among other points, that a stipulation by

The general rule is well settled that the attorneys of the parties that an action agreements to oust courts of jurisdic- involving valuable property rights should tion are contrary to public policy and

be submitted to the court for decision on void. In the well-known case of San- a single question involving an issue of ford v. Accident Association (147 N. Y., alteration of an instrument, and that the 326 it was held that an agreement in a court in passing on that issue should certificate of life insurance of an acci- have the aid of a handwriting expert of dent association, that the issues in any its own choice, whose evidence and action brought against it under the cer photographs should be conclusive, was tificate should, on demand of the asso-void. The following is from the opinion: ciation or its attorney, “ be referred for "No such stipulation or agreement by trial to a referee to be appointed by the counsel as the one involved here should court,” is not binding upon the parties be tolerated in any case, much less one and will be ignored. In Kelly v. Tri- involving valuable property rights, or, mont Lodge, in the Supreme Court of as here, a large sum of money. A trial North Carolina, it was held that a stipu- thus conducted is in effect more in the lation in an application for membership nature of an arbitration than a trial, but in a beneficial association, whereby the even less satisfactory than the former applicant agreed to seek his remedy for method of settling disputed questions of all rights on account of such membership fact. It is obviously the first duty of the in the tribunals of the order, while bind- courts to see that litigants shall have ing as to decisions of the tribunals of their rights judicially determined only the order on all questions of an admin- | after a fair and impartial trial according istrative character, and as to controver- to the mode prescribed by law. To place sies between members within the order, a litigant's rights in a trial thereof at the did not preclude a member from invok- mercy, so to speak, of the ex parte opining the courts to aid in the enforcement | ion of any person, however well qualiof a property right, such as the recovery fied such person may be to speak on the of sick benefits, without resorting in the subject to which his opinion relates, is first instance to the order's tribunal. not to give such litigant's rights a fair

A modification of the general rule was and impartial trial according to the recannounced by the Supreme Judicial ognized or prescribed forms by which

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