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December 26, 1914. Opinion by LANDIS, P. J.

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On September 17, 1914, a bill of indictment, charging the defendant with receiving stolen goods, was presented to the Grand Jury, and, on the same day, they made their return, Not a true bill, and prosecutor, H. Cantor, to pay the costs. An application has been made to us by Cantor to strike off this finding, and, while we do not think the reasons in the petition contain of themselves proper grounds, yet we are convinced that, under the law, the finding ought not to be permitted to stand.

Upon June 11, 1913, a complaint was

The first section of the Act of May 25, 1897, P. L. 89, provides "That from and after the passage of this Act, in all prosecutions for larceny where the value of the goods and chattels alleged to have been stolen shall be less than ten dollars, if the bill of indictment shall be re-made before a justice of the peace in name of the commonwealth by Jessie M. Brennen, that the defendant, upon June 8, 1913. wilfully and maliciously entered upon the land of the plaintiff, which land was prominently posted by printed notices according to the Act of Assembly of A. D. 1905, and did at said time commit such wilful trespass "; and a warrant in the name of the commonwealth was issued charging the defendant with "trespass under the Act of 1905, and the defendant arrested and brought before the justice. The defendant then, before hearing, made affidavit that the title to land will come in question as she verily believes and expects to be able to prove, and that she did not wilfully trespass upon posted lands of the complainant; and entered into recognizance, etc., and thereupon the justice ceased to proceed with the case, and transmitted the record to the Court of Common Pleas of Forest County, under the provisions of the Act of Assembly approved July 21, 1901, P. L. 608, and the transcript and proceedings were filed in this court to the above number and term.

Common Pleas--Law

Commonwealth v. Church.

Justice of the peace-Proceeding under the posting act Trespass-Title to

land.

A proceeding of the commonwealth under the posting act of April 14, 1905, P. L. 169, is in the nature of a proceeding for summary conviction, and cannot be transmitted by the justice to the Court of Common Pleas upon the affidavit of defendant to the effect that the title to the land is in question. The Act of July 21, 1901, P. L. 608, does not apply to such a proceeding.

Motion to strike off and dismiss transcript from justice of the peace.

Opinion by HINCKLEY, P. J.

turned ignoramus, the Grand Jury re-
turning the same shall decide and certify
on such bill whether the county or the
prosecutor shall pay the costs of prose-
cution ***"
and the second section"
of the said Act, which relates to cases
where the prosecution is for assault, or
assault and battery, or assault with in-
tent to maim, disfigure or disable the
prosecutor or other person, or to com-
mit the crime of murder, provides, in like
manner, that the Grand Jury, when they
ignore the bill, may determine the ques-
tion of costs. This is the only Act of
Assembly that we know of by which, in
any case of felony, the Grand Jury is
given this right.

It will be at once seen that the charge contained in the indictment is not mentioned in either of the said sections of the Act, and the action of the Grand Jury, therefore, was in excess of its power. It is for this reason that we make this rule absolute. In our opinion, the controversy between the parties ought to have been determined in the Civil Courts, and the proscutor should not have made a complaint against the defendant for receiving stolen goods; but this does not affect his present rights. As the costs have been improperly imposed upon him, they must be stricken off.

Rule made absolute.

This motion is made to strike off and dismiss this record for the reason that the Common Pleas has no jurisdiction of the case for reasons apparent on the record.

This proceeding is brought under the provisions of the Act of Assembly, April 14, 1905, P. L. 169, and is the nature of a summary conviction; Com. v. Zimmerman, 56 Pa. Super. 311; Com. v. Mitchell, 24 D. R. 496.

Numerous authorities have been cited by the counsel for the motion for the purpose of showing that this is a summary conviction, and that appeal from summary convictions must be taken under the constitutional provision, and the Act of 1866, upon special allowance, and then only upon cause shown, and must be taken to the Quarter Sessions. There is no doubt about the correctness of this proposition, and if this were an appeal from a summary conviction after trial before a justice of the peace, it would necessarily fall for want of an allowance by this court for such appeal, and, of course, because it has been filed in the wrong court. However, this record does not constitute, nor purport to be, an appeal. It is a transmission by a justice of the peace of his record pursuant to the provisions of the Act of July 2, 1901, P. L. 608, where defendant has made oath, and otherwise complied with the provisions of this act, and the justice thereupon, against the protest of the commonwealth, refuses to proceed with or hear the case.

The Quarter Sessions, then, has jurisdiction in appeals allowed from summary convictions before a magistrate; and the Common Pleas has jurisdiction for the trial of cases transmitted to that court by a justice of the peace or magistrate pursuant to said Act of 1901.

ions relate clearly to actions of a civil. character between private parties.

ex

The Act of 1814 gives jurisdiction to magistrates in trespass and trover, cept when the defendant shall make oath that the title to lands will come in question." (In Shober v. Henry, 4 Dist. 505, held repealed by Act of 1879.)

Under the Act of 1814, if the defendant made the requisite oath, the case was dismissed, but this result is now prevented by the Act of 1901, which is entitled "a supplement to the Act of 1814, and the case does not fall, but goes on in the Common Pleas.

The Acts of 1810 and 1876 gives justices jurisdiction, "except in cases of real contract," when the title to lands may come in question. These provis

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The whole history of the Acts of Assembly in question, relating to summary convictions and suits before a justice of the peace and the practice under them, as well as the language of the Act of 1901, clearly indicate, we think, that the latter act, and the others of a similar character, are only applicable to proceedings of a civil character between private parties, and have no place on proceedings of this character, a summary conviction.

If the defendant's contention here is correct, the result would be that not only If either party refuses to pay the same, would the jurisdiction of the magistrate, judgment may be entered against the but the Court of Quarter Sessions would party so refusing and execution issued be ousted, and this summary proceedings for the collection. all signify that a civil metamorphosed into an action of tres- action of trespass between individuals, pass in the Common Pleas. or of a private nature is intended to be reached in this act. A summary conviction is not covered by words "action of trespass." It is not usually described as a suit between parties, plaintiff and defendant, but the commonwealth and defendant, and cannot be under any circumstances brought in the Common Pleas. It certainly is not contemplated

It must be apparent from such incongruous result that the Act of 1901 was never intended to, and does not apply to, summary convictions.

The wording of the Act of 1901: "In any action in trespass brought before a magistrate, etc. *** Defendant shall enter into recognizance *** to pay the plaintiff such sum as shall be recovered; ***the justice, instead of dismissing the suit, shall transmit a copy of his record to the prothonotary of the Court of Common Pleas, and the said suit shall then be proceeded in, in the said court as if originally rightly brought therein. The costs shall be paid in equal shares by the plaintiff and the defendant."

that execution should be issued against | the commonwealth for costs, as might follow. As heretofore stated, the reading of the Acts of Assembly sufficiently indicate that they were not intended to apply to cases of this character.

The legislature possesses large powers in the matter of creating new offenses and prescribing mode of conviction. See Van Swartow v. Com., 24 Pa. 131; Com. v. Hazen, 20 Super. Ct. 487; Fulton County v. Tate, 47 Pa. 532; Com. v. Craine, 12 Pa. C. C. 286; Duquesne Boro. School Dist. v. Pitts., 184 Pa. 160; Com. v. Bordon, 61 Pa. 272; Hoffman v. Com., 123 Pa. 75; Com. v. Groff, 8 Lanc. Law Review. 267; Com. v. Statzer, 5 Pa. C. C. 256.

This is a purely statutory proceeding, where the magistrate is given exclusive jurisdiction, and before there can be consideration by the Appellate Court there must be a hearing by such magistrate, and his jurisdiction is not ousted by the defendant making the oath and complying with the provisions of the Act of 1901.

The motion to dismiss the proceedings transmitted by the justice is made absolute.

McClellan v. Rosenmilier.

Negligence-Parent and Child-Master and Servant.

Defendant's minor son, without the father's knowledge or direction, while driving a motorcycle along the road on a dark night, collided with plaintiff's carriage and inflicted injuries for which damages were claimed. The jury found for the plaintiff. On a motion for judgment for the defendant n. o. v., Held, that judgment must be entered for the defendant.

There was no evidence to show that the acci

dent happened through any direction or counsel of the defendant, or that the son was acting in the capacity of agent or servant of the father, or that the act was within the scope of any employment, direction or agency of the

parent.

Even if the relation of agent or employee or servant had been shown, the plaintiff, in order to recover, would be under the necessity of showing affirmatively that the son was at the time engaged in the master's business, with the master's knowledge, and by the master's direction.

The fact that the defendant had information that the state would not license motorcycle drivers the age of his son, and failed to impart this knowledge to the latter, is too remote

from the happening of the accident for which the plaintiff claims damages to be considered have been instructed to find for the defendant. as the proximate cause, and the jury should

No. 244, August Term, 1912.

Motion for judgment non obstante vercdicto.

Cochran, Williams & Kain, for motion.
R. P. Sherwood, contra.

December 7, 1914. Opinion by Ross, J.

The undisputed facts brought out at the trial of this case are: On the night of August 6, 1912, between the hours of 9 and 10 o'clock, plaintiff's coachman was driving two of his employers horses harnessed to a two-seated brewster carriage, in which were seated the plaintiff's wife and daughter and a relative. and while proceeding westwardly along a certain road known as the "Country Club Road" the front wheel of the carriage was struck by a motorcycle which was being driven by Joseph L. Rosenmiller, who is a minor son of the defendant. As a result of the collision, the carriage was demolished, the horses and harness were injured, the occupants of the carriage were thrown out, and the rider of the motorcycle was thrown off his motorcycle. The suit was brought against the defendant to recover from him the damages claimed for the injuries. alleged to have been sustained by the plaintiff.

It was shown that Joseph L. Rosenmiller was returning from a visit to the home of Senator McConkey and mounted on his motorcycle was traveling eastthe night was very dark and both the ward. At the time the collision occurred, driver of the carriage and the driver of the motorcycle claim that they did not see each other until the accident occurred. The motorcycle which Rosenmiller was riding had been purchased by him and paid for through his own transactions and with money which he checked from his individual bank account.

His father (the defendant) had no knowledge that he was riding his motorcycle that night. It appeared that the young man had procured a state license

to operate his motorcycle, but some time after he had procured the license, the Notary Public, who acted as agent in obtaining the license, informed William F. O. Rosenmiller, the defendant, that the State Department would not grant any more licenses to drive motorcycles to minors under the age of 18 years. It also appeared that Joseph L. Rosenmiller was a minor under the age of 18 years, and it did appear that the defendant, William F. O. Rosenmiller, never communicated that information to his minor son, Joseph L. Rosenmiller. The question of negligence of the defendant was left to the jury under the following instructions: If you find that the accident was occasioned by the negligence of Joseph L. Rosenmiller, then you must go further, and from all the facts adduced before you, and the circumstances as they have been detailed, and the impressions made upon you by the witnesses, before you can find a verdict for the plaintiff, you must in addition to the negligence resulting in the accident, find that the accident occurred through the action and negligence not only of Joseph L. Rosenmiller, but directly ema- anated from the negligence and carelessness of the defendant, William F. O. Rosenmiller."

The jury returned a verdict for the plaintiff of $800 and costs.

After viewing the whole record we are of the opinion that the defendant's points asking for binding instructions should have been affirmed.

If we assume that the defendant was remiss or negligent in failing to import to his son the information which the Notary Public gave him, can it be reasonably argued that that remissness was the direct or proximate cause of the accident? It was shown and not denied that the son had a license from the proper department, that he was a competent driver of a motorcycle, that at the time the collision occurred he was engaged in his own pursuits, independent of his father's knowledge or direction or counsel; and it was not shown that he was

"The unquestioned general rule at common law is that a parent is not liable to respond in damages for the independent negligent or tortious act of his minor child merely by reason of that relation, unless it appears that the parent directed

employee of the father.

or counseled the wrongful act, or subse-acting in any capacity as an agent or quently ratified it; or that the minor, at the time of committing the tort, was acting as the agent or servant of the parent, and the wrongful act was one within the Scope of such employment;" 10 L. R. A. (N. S.) page 933, note “A.”

The uncontradicted evidence in the case before us is, that the minor son, Joseph L. Rosenmiller, was, when the accident happened, driving his Own

motorcycle, which had been bought and paid for, independently of his father, the defendant, and also at the time was engaged in affairs without the knowledge, direction, or counsel of his father, William F. O. Rosenmiller, who is the defendant.

The plaintiff's counsel does not contend that the evidence shows that the accident, for which damage is claimed, happened through any direction or counsel of the defendant, or that the son was acting in the capacity of agent or servant of the parent, or that the act of the son which was the alleged cause of the accident was one within the scope of any employment, direction, or agency of the parent, for such was not the case; but he strenuously argues that the omission of the parent, in not acting on the information given him by the agent, (who procured the license under which his son was driving the motorcycle that minors under 18 years of age would not be furnished by the highway department with licenses to run or drive motorcycles,) and forbidding his further using the motorcycle, was carelessness, and that as a result of that carelessness the accident happened.

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Even if the relation of agent or employee or servant had been shown, the plaintiff, in order to recover, would be under the necessity of showing affirmatively that he, Joseph L. Rosenmiller, was at the time engaged in the master's business, with the master's knowledge, and by the master's direction; Lotz v. Hanlon, 217 Pa. 339; Sarver v. Mitchell,

35 Pa. Super. Ct. 69; Connor v. Pa. R. R. Co., 24 Pa. Super. Ct. Rep. 241.

We are of the opinion that under the facts of this case, the alleged remissness of the is too remote from the happening of the accident for which the plaintiff claims damages, to be considered as the proximate cause of the injuries complained of and the jury should have been instructed to render a verdict for defendant; Swanson v. Crandall, 2 Pa. Super. Ct. Rep. 85; The South Side Pass. Ry. Co. v. Trich, 117 Pa. 390; Finkbeiner v. Solomon, 225 Pa. 333; Joseph Wood v. Pa. R. R., 177 Pa. 306; Nella v. Northern S. S. Co,, 162 Fed. 499.

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On October 7, 1912, Annie Aurand, executrix under the last will and testament of Ellsworth Aurand, late of Monroe Township, Snyder County, Pennsylvania, deceased, presented her petition to the Orphans' Court of Snyder County in which she represented that Ellsworth Aurand died on the 20th day of August, 1995. that on the 7th day of September, 1905, letters testamentary on his estate were duly granted to the petitioner; that the decedent at the time of his death was seized in fee of several tracts of land situate in Monroe Township, Snyder County, mentioned in the said petition as tracts Nos. 1 and 2; that in his last will and testament the decedent directed all his just debts to be paid; that on the 25th day of February, 1907, upon petition being presented, the Orphans' Court of Snyder County ordered the sale of tracts Nos. 1 and 2 for the payment of decedent's debts, whereupon tract No. 2 was sold and the sale thereof confirmed on the 3rd day of June, 1907. It appears by the account of the petitioner, confirmed June 9, 1911, that there is a balance due the petitioner of $1,426.02, that in addition to this amount the petitioner has paid out of her own money in behalf of the estate of her husband the sum of $1,589.47 and that no personal estate of the decedent remains wherewith to pay the same, but that there is belonging to the estate of said Ellsworth Aurand tract No. 1, whereupon the petitioner prays that tract No. 1 be sold to pay the debts of the said estate " still remaining due and unpaid," and upon this petition the court ordered the sale of decedent's real estate as prayed for.

On the 10th day of October, 1912, Kathryn Aurand, a residuary legatee of the said last will and testament of said Ellsworth Aurand, presented her petition, in which she set forth that under the said will she was a residuary legatee of both the personal and real estate of the

George B. Reimensnyder and Harry A. decedent and that the debts numerated Coryell, for the petitioner.

in the petition for the sale of the remaining real estate of said decedent were unsecured debts and no longer liens belonging to the estate of Ellsworth Aurand,

Judgment is directed to be entered for the defendant non obstante veredicto.

Orphans' Court.

Aurand's Estate.

Decedent's estate Decedent's debts Lien on real estate-Statutory period of lien.

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Where the executrix of an estate pays the debts of a decedent out of her own funds, and, more than two years after the death of decedent, secures an order from the Orphans' Court for a sale of the remaining real estate of the decedent to pay her debt, the order for sale will be vacated and set aside on petition of a residuary legatee.

No unsecured debts of a decedent shall re

main a lien of the real estate of such decedent longer than two years after the decease of such debtor, and a direction in the will that the testator's just debts be paid does not continue the statutory period of the lien, nor does the confirmation of the account, showing an amount due the accountant, make any exception to the rule.

January 11, 1913. Opinion by JOHNSON, J.

l'etition for rule to show cause why order directing sale of remaining real estate of a decedent should not be vacated and set aside. Orphans' Court of Snyder County. Estate of Ellsworth Aurand, deceased.

Jay G. Weiser, Andrew A. Leiser and Andrew A. Leiser, Jr., for respondent.

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