the property of the poor authorities of the county, and they are liable for the trespasses of such property. Answer. That point is correct and is affirmed. (11th assignment of error.)

6. If the jury believe that the dog that killed the plaintiff's sheep was raised from a pup by the steward of the poorhouse at the poor farm, that he was fed from the county provisions, that he was used for the purposes of the farm and premises, that he was kept in good faith for the purposes of the farm, that he was believed by the steward to be necessary at such farm, that such steward left him at the poor farm as their property, when he removed therefrom, as other property of the poor authorities was left, the defendant county being liable for the trespasses of its stock, is liable to the plaintiff for the damages done by the dog, and the verdict should be for the plaintiff. Answer. This point is correct and is affirmed with this qualification: Provided you find that the steward of the poor in procuring or obtaining this pup, and raising him there, was doing it under the direction of the poor directors, of the county, or that they knew it and acquiesced in it. With that qualification the point is affirmed. (12th assignment of error.) Defendants requested the Court to charge, inter alia:

with the other evidence in the case in determining the ownership of the dog. (3d assignment of error.)

7. Adam Gordon as steward of the defendant corporation had no authority to make said corporation the owner of the dog in controversy, and there is no evidence that he had any special authority to do so. Answer. Our answer to that point is as follows: Adam Gordon as steward of the defendant corporation had no authority by virtue of his office to make the said corporation the owner of a dog, that is he must have had authority from them beside the mere fact that he was steward of the poorhouse. If he had no such authority, then his act in procuring or obtaining this dog would not be binding upon the directors; but whether there is evidence of his having this authority we leave for the jury to determine. That is our answer to the defendants' seventh point. (4th assignment of error.)

8. The acquisition of ownership of the dog in controversy by the defendant corporation would be ultra vires, and said corportion would not be liable to the plaintiff for any injury caused by the said dog. Refused. (5th assignment of error.)

Verdict for plaintiff for $152. A rule for a new trial having been discharged, defendants appealed, assigning error, inter alia, as above.

J. A. J. Buchanan, (George L. Wyly, and
D. S. Walton, with him), for appellants.
R. F. Downey, for appellee.

3. The steward having killed the dogs he found on the premises when he went there, and the dog in question having been brought to the poorhouse, in which the steward and his family resided, by the steward's minor son, the presumption is that said dog was the property of the steward or his son, and the ownership of the dog January 4, 1892. WILLIAMS, J. The several could not be transferred to defendant corporation poor districts in the county of Greene were conwithout the consent and acquiescence of the di-solidated by the Act of 1859, P. L. 580, and the rectors and of such consent and acquiescence there is no evidence. Answer. That point is correct and is affirmed, that is, if the dog was brought there by the son of the steward without authority from the directors, then the dog could not be transferred to the defendant corporation without the consent and acquiescence of the directors. But whether there is any evidence of their consent or acquiescence we leave you to determine from the evidence. With that qualification the point is correct and is affirmed. (2d as-rectors. The funds necessary for the support of signment of error.)

4. As the steward with his family lived in the poorhouse, and as the dog was brought there by the steward's son, who was a member of his family, the fact that the dog remained there a long time is no evidence of the ownership by the defendant corporation. Answer. We answer that point in this way: The fact that the dog remained there a long time does not make it the dog of the defendant corporation, but the fact that he did remain there a long time may be taken into consideration by the jury along

care of the poor throughout the county committed
to three directors. These officers are elected by
the voters of the county, hold their offices for
three years, and settle their accounts annually
before the county auditors like other county offi-
cers. The county almshouse under their care is
called the House of Employment, and they are
authorized to appoint a steward and matron to
take the immediate care of the building and its
inmates under the general direction of the di-

the poor are provided in the following manner:
the directors make each year an estimate of the
amount needed for the ensuing year, and furnish
the same to the county commissioners, who are
required by the Act of 1859 to levy and collect
the sum in taxes and pay it over to the directors.
It is disbursed from their treasury. The directors
are public officers, charged with the disbursement
of public moneys for the specific purpose
of the
support of the poor.

Whether the funds of a public charity may be diverted from the purpose for which they were

with the steward's family until the close of his term, which was about two years. .

raised to pay for the neglect or tortious act of an officer or employé charged with their care is a question not raised on this record, and Although this was fully covered by the point for that reason we do not discuss it. It has which we have just considered, the defendants been fully considered in some recent cases. made it the subject of another, and asked the among which are The Fire Insurance Patrol v. Court to tell the jury that the fact that the dog Boyd, 120 Pa. 624; Ford v. Kendall School was at the House of Employment with its little District, 121 Id. 543. The question on which master for a long time did not give or tend to give this case turned in the Court below was that title to the Poor District. This was affirmed, but of the ownership of a dog which had killed with a similar qualification. The jury was told some of the plaintiff's sheep. The testimony that the fact that the dog did so remain at the showed that the dog had not been bought by the House of Employment might be considered by the directors of the poor, or by the steward, but that jury in determining the question of ownership. it had been given by a neighbor to the steward's Thus from evidence which the Court held inlittle son. It had, of course, lived in the family sufficient to show ownership, the jury were told of the steward and under the roof of the House of in substance that they might, nevertheless, find Employment. The theory of the plaintiff was that the Poor District owned the dog, which they that the dog had become the property of the di-promptly did. Both points were entitled to an rectors of the poor because it had remained at unqualified affirmance unless there was evidence the House of Employment during most of the term of its little master's father as steward, and because when the steward moved away from the county farm he left the dog behind him. The defendants denied the ownership of the dog and requested the Court to charge that "The dog having been brought to the poorhouse by the steward's son without authority from the directors or from his father, the defendant corporation did not become its owner merely because the steward believed a dog to be necessary and determined to consider the dog in question as the property of the defendant, there being no evidence that he ever communicated that fact to the directors or that they acquiesced in what he had done." This point the Court affirmed, and if the answer had ended with the affirmance that would have ended the case. But the learned Judge added: "We leave it to you to determine from the evidence in the case whether the directors did acquiesce in what the steward had done after it was done, or whether they authorized or directed it prior to the time it was done." The point grouped the facts fairly as they appeared in the evidence, and asked the learned Judge to pronounce upon their legal effect. This he did, affirming the proposition embodied in the point that the facts did not show a title in the poor district. Having thus

declared the facts insufficient as matter of law to sustain the plaintiff's position, he proceeded to submit the question of their sufficiency to the jury. There were no other acts or declarations of the directors or of the steward affecting their ownership of the dog than those enumerated in the point. There was therefore no evidence to submit to the jury from which either authority or acquiescence could be found except that which the learned Judge had just declared, as matter of law, to be insufficient for that purpose. There was, to be sure, the circumstance that after the dog was given to the steward's son it remained

before the jury that has not been brought before us. If there was such evidence, after an affirmance of the points in the manner we have seen, the attention of the jury should have been called to it, so that they might be able to see from what, authority or acquiescence might be found by them. We cannot say that the directors were bound to take official notice of the appearance of the dog in the steward's household, and eject him from the House of Employment vi et armis; nor that their failure to do so has drawn the title of the steward or his son, by a process entirely unconscious and involuntary, to the Poor District of Greene County. It is not alleged that they ever did, or said, anything looking to the purchase or acquisition of the dog in any manner; and as we do not think they acquired title by their failure to banish him from the poorhouse, or to take notice of his presence, we see no escape from the conclusion that the jury were permitted to find a previous authority or subsequent ratification and acquiescence from evidence which the learned Judge had properly pronounced insufficient.

The 2d, 3d, 4th, 5th, 11th, 12th, and 13th assignments of error are sustained. As this is conclusive of the plaintiff's right to recover, a discussion of the powers of the directors is unnecessary.

The judgment is reversed.

Oct. '91, 4.

H. C. O.

October 12, 1891.

Commonwealth v. Drass.

Indictment for breaking down fences-Act of
March 23, 1865-Evidence.

Where parties are indicted under the Act of March 23, 1865, which provides that any person who "shall maliciously or wantonly break or throw down any

66

post, or rail, or other fence erected for the inclosure of | to prevent him as a trespasser, or any other way, land, or shall carry away, break, or destroy any post, in the night time-one of the trespassers at 9 rail, or other material of which such fence was built, o'clock at night or afterwards, and the other at inclosing any lots or fields in the Commonwealth, such person or persons so offending shall be guilty of a mis-11 o'clock-a force of men, in one case seven, demeanor," it is error not to allow the defence to prove and in the other eight, appeared upon the ground that they did not tear or take down the fence wan- and the fence was destroyed, removed, torn down. tonly, nor wilfully, nor maliciously, but in justification This is an express violation of the Act of Asof their right to go out and in on their own property." sembly that I have read.] I do not pretend to Such an offer of evidence is not an admission of the say that this prosecutor, Mr. McCloskey, was on Commonwealth's case. It admits the taking down of the true line of his property; but that question is the fence, but it does not admit that it was done not a question for the Court of Quarter Sessions, which is only a Court for the purpose of punish

"maliciously or wantonly," which was the gist of the

Commonwealth's case.

The case should be submitted to the jury to finding crime. He may have been mistaken for all whether the act was malicious and wanton, or merely done in the exercise of a supposed legal right. In the one case it is a crime; in the other, a trespass at most.

Appeal of Ellen Drass and Charles Drass, from the Quarter Sessions of Cambria County, who, with Thomas Gillespie, William Gillespie, Martin Howell, Ferney Howell, Patrick O'Brien, James Green, and John Skipper, were indicted for malicious mischief in tearing down the fence erected for the inclosure of a lot of ground belonging to Catharine McCloskey.

that we know. If he was, there are the fullest means of rectifying that mistake in the civil Courts of this Commonwealth. The purpose of the law is to prevent men, or women either, from taking the law into their own hands. Supposing that this prosecutor, when an effort was made to tear down this fence, had rallied a force to protect it, there might have been an assault and battery, perhaps a riot and blood shed; and hence the necessity of the Act to punish in the criminal Courts acts of this kind where parties recklessly and rashly take the law into their own hands and The facts of the case are set forth in the fol- commit acts that are made offences by the Act of lowing charge to the jury by JOHNSTON, P. J. :- Assembly, instead of waiting for a peaceable de"You have before you two cases in the Quarter cision in the civil Courts. This defendant [Mrs. Sessions, in the character of malicious mischief. Drass may have thought she had some grievance. On the 23d of March, 1865, an Act of Assembly We cannot say she had not; but she cannot rewas passed which has been read to you, and I dress them by the strong arm of force, aided by will read it especially to you again. That if a crowd of men in the night. That is not the any person or persons, from and after the passage proper way for her to obtain her rights if she has of this Act, shall maliciously or wantonly break sustained any wrong. The main offence is clearly or throw down any post or rail or other fence made out.] The defendants offer to justify here erected for the inclosure of land, or shall carry by some claim of title that they have; but we can away, break or destroy any post, rail, or other material of which such fence was built, inclosing any lots or fields in the Commonwealth, such person or persons so offending shall be guilty of a misdemeanor, and on conviction shall be sentenced to pay a fine not exceeding $50,' etc.

not try titles in the Quarter Sessions. We cannot go into this question here at all. We have another Court, another jurisdiction, that would quietly and patiently hear these parties in another tribunal; but here is a plain and palpable infraction of the law, and Courts and juries have no course but to find the defendants guilty; and having found them guilty, the Court may, in passing sentence, consider such mitigating circumstances as are presented to it. On the plain facts in this case the offence here charged was

[This Act of Assembly was passed to meet precisely such cases as this and to keep peace among the good citizens of this Commonwealth. There have frequently been unseemly riots, and even blood shed on this very question; and it is to prevent scenes of this kind that all parties are committed; and it cannot be justified by the required to go into the civil Courts of this Com-claim that this fence was in the wrong place. monwealth to try the rights of the parties.]

That would involve a land trial where land titles "The prosecutor in this case built a fence in- are not tried, in the Court of Quarter Sessions. closing what he claims to be his boundary around The law aims to prevent such reckless acts perhis lot. [It was peaceably and quietly built, and formed in the night time; and if the prosecutor no objection or pretence of objection was made to had stood in defence of his property and raised a the building of the fence.] It was constructed at crowd to oppose the taking away of the fence, times when he was released from his other labors, the effort to take it away would have been foland it took some time for its construction, as the lowed, in all probability, by a much more serious witnesses have testified; [and when it was com- offence. [We have no remedy in this case but pleted, without any objection or remonstrance of to direct that the case is made out and that the any kind, or any resort to any civil proceedings defence has failed entirely to show any reason

why these parties should not be convicted. Your | tear or take down the fence wantonly, nor wilverdict, under the circumstances, must necessarily fully, nor maliciously, but in justification of their be for the Commonwealth, because there is no right to go out and in on their own property.” reasonable doubt or any question here in regard See first specification. to the commission of the act itself.]

"The prosecution is not pressed against those who were merely employés of these parties. The bills will be before you, and you can find the names on the bills; but conviction is only pressed as against Mr. and Mrs. Drass in one of the bills, and against Thomas Gillespie in the other."

The second specification discloses a somewhat similar offer. The learned district attorney objected to the admission of this evidence on the ground "that evidence of justification cannot be admitted, the defendants not undertaking to deny the offence as made out by the Commonwealth's witnesses-in fact, admitting it by their offer to justify." The learned Judge sustained this ob

Defendants offered a witness to prove that jection. the defendants did not tear or take down the I do not understand the offer to admit the fence wantonly, nor wilfully, nor maliciously, Commonwealth's case. It admits the taking but in justification of their right to go out and down of the fence, but it does not admit that it in on their own property. Objected to because was done "maliciously or wantonly," which was it is an attempt to justify the tearing down of the gist of the Commonwealth's case. The mere the fence as proved by the Commonwealth's act of tearing down a fence is not necessarily witnesses. Offer of testimony overruled. (First malicious or wanton. It may be done in the assignment of error.) honest exercise of a right. Surely if some one erects a fence which denies or obstructs my entrance to my house or grounds I may remove it without subjecting myself to an indictment in the Quarter Sessions. Such an act lacks every element of malice or wantonness. Such appear to have been the facts in this case; at least it was so alleged by the defendants, and they were entitled to make such proof.

Defendants offered to prove that "they are defendants in the criminal Court, and have a right to be heard to justify the defendants from the charge in the indictment." Objected to, because evidence of justification cannot be admitted, the defendants not undertaking to deny the offence as made out by the Commonwealth's witnesses in fact, admitting it by their offer to justify. Offer overruled. (Second assignment of error.)

Verdict "guilty" as to Ellen Drass and Charles Drass, and "not guilty" as to the other defendants.

Whereupon Ellen Drass and Charles Drass took this appeal, assigning as error the action of the Court in overruling the foregoing offers of evidence, and in charging the jury as set forth in the portions of the charge included between brackets.

George M. Reade, for appellants.
Francis J. O'Connor, for appellee.

January 4, 1892. PAXSON, C. J. The learned Judge below evidently mistook what was

passage

We think it was error to instruct the jury that "this Act of Assembly was passed to meet precisely such cases as this,” etc. The case should have been submitted to the jury to find whether the act was malicious and wanton, or merely done in the exercise of a supposed legal right. In the one case it is a crime; in the other, a trespass at most.

All of the specifications of error are sustained. Judgment reversed, and a venire facias de novo awarded.

Oct. '91, 276.

Geible v. Smith.

II. S. P. N.

October 21, 1891.

to apparent and continuous easement.

at most a trespass for malicious mischief. The Easement-Purchaser of property takes subject defendants were indicted under the Act of 23d March, 1865, which provides: "That if any person or persons, from and after the Where a continuous and apparent easement or serviof this Act, shall maliciously or wantonly break tude is imposed by the owner of real estate on a part or throw down any post, or rail, or other fence thereof for the benefit of another part, the purchaser erected for the enclosure of land, or shall carry of the same, in the absence of an express reservation away, break or destroy any post, rail or other material of which such fence was built, enclosing any lots or fields in the Commonwealth, such person or persons so offending shall be guilty of a misdemeanor," etc. etc.

Upon the trial below, the defendant, Ellen Drass, being on the stand, the defence offered to prove by her "that they, the defendants, did not

or agreement, takes it subject to the easement or servitude, although the same was created by the vendor during unity of possession, and could not then have a legal existence.

Appeal of Charles Geible, plaintiff, from the judgment of the Common Pleas of Butler County, in an action of trespass against Joseph Smith and Herbert Smith.

The case was, by agreement of counsel, tried before HAZEN, P. J., without a jury, and the facts, as found by him, are as follows:

"The title to the properties is not denied by either party. The right of defendants to use the way as it existed at and before the time of sale by Charles Duffy to the parties hereto, is the sole question.

"Charles Duffy was the owner of a certain lot or piece of land situate on the west side of South Main Street in the borough of Butler, fronting 34 feet on said street, and extending back west 180 feet said width, to an alley; bounded on the north by land of Al. Ruff, and on the south by land of Pape.

which said union stairway and hall was constructed, without any reservation whatever as to the use of said stairway and halls, or any of them, for his other or remaining building. Subsequently Charles Duffy sold and conveyed to Joseph Smith and Herbert Smith, the defendants, by deed of general warranty, dated December 30, 1890, recorded December 31, 1890, his remaining storeroom, of the two, without reservation or restriction as to said stairways and halls or any of them. Charles Geible, Sr., went into immediate possession of his said lot and building on purchasing and taking title of same. Joseph Smith and Herbert Smith, defendants, went into im mediate possession of the lot and building on purchasing and taking title for the same. Said stairways and halls were then and continuously had been from the completion of said buildings,

and in constant use, by all the occupants in common of the two buildings. Charles Geible, Sr., knew this fact and use when he purchased said building from Duffy. Plaintiff, Charles Geible, Sr., testified: I first asked Duffy about the stairway, then I asked Mr. Duffy about the halls; whether Ruff or anybody else had any right of them halls; and he said not. Then he took the word to make it sure— -I will sell you from the centre of the Ruff wall to the centre of the other wall, and that includes all that was said when I bought.' Charles Duffy testified in corroboration of Charles Geible, as follows: I sold from centre to centre. I sold Mr. Geible those eighteen feet, and, of course, sold him all that I had there of the eighteen feet; all that I made him the deed for.

"In the fall of 1878 said Duffy and Ruff each began constructing a two-story brick building, with uniform front, on their said respective pieces of land, each covering the entire front on in the spring of 1879, open, visible, peaceable, said street, and extending back 80 feet, completing the same in the spring of 1879. Duffy's building contained two several store-rooms, divided by a brick partition wall, extending from the ground to the roof. The south wall was common to both Pape and Duffy, each owning to the centre line thereof. A union stairway and hall on second floor was constructed by mutual agreement, in parol, by Duffy and Ruff, between their said buildings, the stairway leading from the pavement on the west side of said Main Street to the second floor of and between said buildings, thence to the rear 80 feet, and by a stairway to the ground at the west end of the buildings, for the use in common of the owners and occupants of said buildings. Duffy constructed a hallway of studding, lathing, and plastering on the second floor of his said buildings, beginning on the north side or line, near the head of said union stairs and at the hallway (between his buildings and said Ruff's), thence south through the said partition wall (between his two store buildings) to the partition wall on his south line. This hall was pierced on both sides with doorways opening into rooms on each side thereof, in both his said buildings or store-rooms. Said union stairs and hall, and the hall leading south across his (Duffy's) building to the south line thereof, was for the use of the occupants of said buildings, and was used by the tenants on the said floors of said buildings continuously from the time said buildings were constructed until the bringing of this suit. There is no other provision made in the general plan of these store buildings for reaching the second story of Duffy's buildings, or either of them, save by said stairway and halls.

"Charles Duffy sold and conveyed to Charles Geible, Sr., the plaintiff, by deed of general warranty, dated October 2, 1879, recorded November 24, 1879, his building or store-room on the north side of said land, adjoining said Ruff, and on

The deed shows what I sold Geible.' There is no evidence showing or tending to show that defendants had any knowledge of this private conversation had between Charles Duffy, the vendor, and Charles Geible, the vendee, regarding this matter.

"Defendants are bound only by the notice which the records of the conveyance from Duffy to Geible gave them, and the physical appearance of the property, as well as the open, visible, and continuous use that it had been put to, and was at the time of their purchase.

Cer

"Plaintiff disputes the right of defendants to use the stairways and halls as they existed at the time of the construction of the buildings and up to the time of their purchase from Duffy. tainly no question could be raised about the right of Duffy to use said stairways and halls while be owned the property. Plaintiff having purchased, taken title for and gone into the possession of the servient tenement, raised no question about the servitude on the part of the dominant tenant up to the time of the sale, conveyance to and possession by defendants."

After reviewing the law, the Court concluded