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case on its merits, and we will do so. The Coffin v. Dorr, they would have disclosed the same result will be reached either way. defendant's mortgage title, and have fur

The case shows that the land in question nished at least an equitable defense to the was once owned by Randall S. Clark. On action, on the ground that a real action by January 8, 1855, he conveyed it to Charles the owner of the equity of redemption will Goodwin and George N. Severance. On the not lie against the mortgagee or one having same day, Goodwin and Severance mort- the interest of a mortgagee. Woods v. Woods, gaged it to Andrew H. Hall to secure the 66 Me. 206; Rowell v. Mitchell, 68 Me. 21. payment of three notes aggregating $2,500. [5, 6] The weakness of the petitioner's conThe deed of conveyance and mortgage were tention lies in the fact that it does not apboth recorded January 12, 1855. Hall as- pear that the defendant had any valid title signed the mortgage to Sarah H. Gilmore, whatever. He claimed under the warranty March 26, 1858, and the assignment was re- deed of a mortgagee. It is not doubted that corded May 23, 1859. On May 18, 1863, J. A. if a mortgagee in possession makes a conveyDeane, by an assignment purporting to be ance by deed, the deed will operate as an asmade by him, as attorney for Sarah H. Gil- signment of the mortgage. The same result more, assigned the mortgage to Willam A. follows if the mortgage debt is assigned or Farnsworth, Henry Morse, and Merrill Aus- transferred with the deed. But it is now tin. The assignment was recorded the same well settled in this state that a deed by a day. No power of attorney appears of rec- mortgagee, not having made entry, and being ord, and none can now be found. Previous- out of possession, conveys no legal title to the ly in the same month Sarah H. Gilmore gave land, unless accompanied by a transfer of the a warranty deed to Deane, and Deane gave mortgage indebtedness. Lunt v. Lunt, 71 Me. one to Farnsworth and his associates. The 377; Wyman v. Porter, 108 Me. 110, 79 Atl. counsel for petitioner in argument speaks 371. The reason is that until entry, the inof these as covering the land in question. terest of the mortgagee is not real estate. This is denied by the defendants, and the Lunt v. Lunt, supra. The mortgage is a percase does not show it. From the evidence sonal

From the evidence sonal chattel, a chose in action. and admissions in the case we think it may "It is but an incident attached to the debt, fairly be inferred that, so far, the mortgage and, in reason and propriety, it cannot, and notes were transferred from party to party ought not, to be separated from its principal.

The mortgage interest, as distinct from the debt, with the assignments of the mortgage. And is not a fit subject of assignment.” Jackson v. we may say here, as well as anywhere, that Willard, 4 Johns. (N. Y.) 42. we think that the circumstances indicate

It is very evident that when Mr. Farnsthat the notes have never been paid, and we worth gave these warranty deeds he did not so find.

And for the purposes of this case transfer the mortgage indebtedness. He died we shall assume that Deane had authority in 1876. After this controversy arose, not to assign the mortgage and transfer the only the original mortgage, but also two of notes to Farnsworth, Morse, and Austin.

the mortgage notes, and an execution issued It appears then that in May, 1863, Good- on a judgment on the third note, were found win and Severance were mortgagors and by this petitioner among her father's papers. owned the equity of redemption. William They apparently belong to his estate, of A. Farnsworth-and we need speak only of which she is the administratrix de bonis non. him-was the mortgagee, or had the inter- Nor is there any evidence that Mr. Farns. est of a mortgagee. His associates by con- worth had made entry, and was in possession veyance drop out of the case. Afterwards, when he gave the deeds. The petitioner arin 1865 and 1868, it is said, and having no gues repeatedly that such was the fact, but other title than that of mortgagee, Mr. the record does not show it. It shows, on Farnsworth gave warranty deeds of the land the contrary, that efforts were made to ascerto two persons. At the commencement of tain whether Farnsworth had ever been in the action in the case of Kimball and Cof-possession, and that the efforts were unavailfin against Dorr, it is admitted that the ing. The only thing in the case about posplaintiffs, by mesne conveyances, held the session is an admission in these words: title of Goodwin and Severance, mortgagors,

"It is also admitted that said land is and althe defendant, Dorr, held the title, such as ways has been wholly uncultivated, that it has it was, of the grantees in the warranty deeds never been fenced nor built upon; of Farnsworth, and, as we shall see present- only use ever made of it has been an occasional

cutting of wood, and that it has never been ly, the petitioner's rights were those of the used as a wood lot belonging to a farm; and mortgagee.

that there is now nothing upon it except a The petitioner's contention is based upon growth of wood.” the claim that the chain of conveyances from And here the cutting of wood is the only the warranty deeds of Farnsworth down to thing that relates to the question. It does Dorr gave the latter some title, namely, the not state when it was cut, nor by whom. mortgage title of Farnsworth. And upon Surely here is not enough to warrant a findthis assumption she urges that if the mort- ing that Farnsworth ever cut any wood, nor gage deed and notes had been offered in evi- that he had ever been in possession. dence in the original action of Kimball and [7] The result is that we are compelled to

find that the warranty deeds of Farnsworth

(245 Pa. 573) conveyed no title. And if that is so, no title McCABE v. BESSEMER & L. E. R. CO. came to the defendant Dorr. It thus ap

(Supreme Court of Pennsylvania. May 22, pears that the original action was a writ of

1914.) entry by the owners of an equity of redemp- MASTER AND SERVANT (§ 240*)-INJURY TO tion against a stranger to the title. If the SERVANT-CONTRIBUTORY NEGLIGENCE. petitioner had been more diligent, had she Where a railroad yard employé, while on assumed the defense, and offered in evidence an errand for his foreman and before entering

a building, noticed an engine standing on the the notes and mortgage, it would not have track, and, though on leaving the building his changed the situation. If a review should be view of the engine was obscured by an open granted, and she should offer them upon an- door, neglected to push the door back to see that other trial, it would not change the situation. the track was clear, and was caught between the

side of the building and the engine, he was It would still be a suit by the owner of the guilty of contributory negligence barring reequity against a stranger. Can it possibly covery for his injuries. avail in defense that the stranger has a claim [Ed. Note.-For other cases, see Master and against the petitioner for a breach of her fa- Servant, Cent. Dig. $$ 751–756; Dec. Dig. $

240.*] ther's warranty? We think not. Even suppose the petitioner should plead puis darrein Appeal from Court of Common Pleas, continuance that the real plaintiff, the Bar Crawford County. Harbor Water Company, had become the own. Trespass by Michael McCabe against the er in equity of the interest of the defendant Bessemer & Lake Erie Railroad Company Dorr, so that it had become the real defend- for personal injuries. From an order reant, and suppose for that reason the suit fusing to take off a compulsory nonsuit, should abate. Will the situation of the peti- plaintiff appeals. Affirmed. tioner be any different then from what it is Argued before FELL, C. J., and BROWN, now? Will she not then, as now, be the hold- MESTREZAT, POTTER, and ELKIN, JJ. er of an undischarged mortgage and entitled

Samuel Y. Rossiter, of Erie, for appellant. to hold it until the debt it secured is paid? George F. Davenport and Frank J. Thomas, and will she not then, as now, be liable for both of Meadville, for appellee. the breach of her father's covenants of warranty, to the extent of the assets received

BROWN, J. The appellant was an emfrom him as heir? Her father warranted the ployé of the appellee. He had been in its title. If there is damage by reason of a breach, service a number of years before he was inmust she not pay? and entirely irrespective of jured, during the last five months of which the result of the Kimball and Coffin suit? he worked at its Greenville yards. On OctoShe is indeed bound by that judgment. But ber 31, 1905, while working there, he was diwhat was that judgment? No more than this, rected by his foreman to go into the north so far as we are now concerned: It was ad- part of what was known as the sand house judged that Kimball and Coffin had a title to and get a stove. On each side of this house the land, and that Dorr did not have one. there were tracks of the defendant company, And is not that precisely the state of the title five or six of them being on the west side, as we now find it to be? The petitioner was the nearest of them about 312 feet from the not injuriously affected. Her rights under building and parallel to it. A door 4 feet in her mortgage were not adjudged nor affect- width opened outward from the west side of ed. Her liability under the warranty was the building, and, when open at right angles not changed.

to it, extended about six inches over the The petitioner suggests as a reason why nearest rail, cutting off a view of the tracks she ought to have a review granted that she to the south. Appellant entered the sand is endeavoring to foreclose the mortgage, and house through this doorway, and, having wishes to be able, before the case is again failed to find the stove, started for another tried, to effect a foreclosure, so that the title part of the building, passing out through the thereby effected will inure to the benefit of same doorway, the door of which extended the grantees under her father's warranty. at right angles to the building about a half It hardly need be said that this does not fur- foot over the nearest rail. As he turned nish legal ground for a review. To speak of around the door and was about to proceed only one contingency, if she has a right to south towards another room in the building, foreclose, the present owner of the equity has he found in front of him an engine of the a right to redeem, and we must assume that defendant company, coming towards him on it will do so. There will be nothing then to the track nearest the building. To avoid beinure to the benefit of grantees. And the ing run over he pressed himself up against breach will remain unsatisfied.

the building, but the side of the engine exTo repeat. We think the petitioner has tended so far over the rail that he was stated no ground that would serve as a de caught and severely squeezed in the narrow fense if a review should be granted. It will space between it and the building. From therefore be useless to grant one.

the refusal of the court below to take off Petition denied, with costs.

the nonsuit, in the action which he brought to

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

recover for the injuries so sustained, he has 2. TRUSTS (8 324*)-TESTAMENTARY TRUSTEE taken this appeal.

-ALLOWANCE OF COMMISSION RIGHT TO

OBJECT-WAIVER. The nonsuit was directed on the ground

Where the trustees' commissions on income of the contributory negligence of the plaintiff, were stated and charged in accounts rendered and the motion for it could not have been to the life tenant, without objection on her part, denied. The appellant had been familiar she could not, on an accounting thereafter, obfor months with the situation within the ject to the allowance of such commissions. Greenville yards. He had worked there con

[Ed. Note. For other cases, see Trusts, Cent. stantly and knew that trains were at all Dig. § 482; Dec. Dig. $ 324.*i times passing in and out. He admitted he 3. EXECUTORS_AND ADMINISTRATORS (8 495*) knew that the engines were wider than the

-SALES OF REALTY-RIGHT TO COMMISSION. tracks and projected beyond them. He fur- | missions allowed him in prior accounts, on sales

An executor was entitled to the usual comther admitted that, shortly before he went of realty, where such sales were made while into the sand house, he saw a train moving he remained in office performing the duties on the track nearest to it, and that when thereof, without reason to suppose that he he entered it the engine which injured him would not be compensated therefor. was standing at an ash pit to the south. and Administrators, Cent. Dig. 88 2089-2106,

[Ed. Note. For other cases, see Executors While it does not appear in the testimony 2108; Dec. Dig. & 495.*] who opened the door in such a way that all view to the south was cut off as the appellant Appeal from Orphans' Court; Philadelcame out of the building, it is admitted in phia County. his history of the case that he himself had Adjudication in the matter of the estate of so opened it. Without such admission, the Jacob Neafie, deceased. From a decree dispresumption would be that he had opened it missing exceptions to the adjudication, Mary in carrying out the direction of his employer E. Whitaker and others appeal. Affirmed. to go into the building for the stove. His

The facts appear in Neafie's Estate, 199 vision to the south when he came out of the Pa. 307, 49 Atl. 129, and in the following building was thus obstructed by his own act; opinion of the lower court by Gest, J.: but, even assuming that some one else had

The core of this case, the center about which opened the door, his manifest duty, when he everything revolves, is the contract made by left the building and started to go south, the executors on March 29, 1898, for the sale was to look and see whether the track was stock of the Neafie & Levy Ship & Engine

to Somers N. Smith of the testator's shares of clear. This he could readily have done by Building Company. The exceptants seek to surclosing the door or pushing it against the charge the accountants with the par value of building. Instead of exercising this ordinary the bond of Somers N. Smith, the purchaser, or

rather the two-thirds thereof belonging to this prudence, which would have given him a estate, which is now worthless, but carried clear view to the south, he did not even stop among the assets at a valuation of $270,000, to look before passing around the door, but on the ground that said sale of the stock by the went south several feet, with the engine al- executors to Smith (whose bond represents the

purchase money) was an unauthorized investmost upon him. With his knowledge that it ment, for making which the executor, and for projected beyond the rails, he took the risk continuing which the trustees, are responsible. of being crushed by it when he pressed him. The principal contention is whether this act of self against the wall. He heedlessly placed sound discretion and by lawful authority. But

the executors was done in the exercise of a himself in a position of danger, which he we do not think the matter is debatable, inascould have avoided by the exercise of but much as the Supreme Court passed upon it in ordinary care when he left the building.

Neafie's Estate, 199 Pa. 307, 49 Atl. 129.

There the life tenant, one of the present exceptJudgment affirmed.

ants, sought to have the executor removed as trustee under the act of April 9, 1868 (P. L. 785; Stew. Purd. 8 52, p. 4893), alleging her

want of confidence in him as a result of his (245 Pa. 576)

having made this very sale. This court disIn re NEAFIE'S ESTATE.

missed the trustee, and its decree was reversed

by the Supreme Court in an elaborate opinion Appeal of WHITAKER et al.

by Mr. Justice Mestrezat, who concluded that

the trustee had done what his duty required (Supreme Court of Pennsylvania. May 22,

him to do and what the interest of the estate 1914.)

committed to his care demanded of him. 1. JUDGMENT (8 717*)—RES JUDICATA-SALE[!] It is argued by the learned counsel for 1. JUDGMENT (8 717*)—RES JUDICATA -SALE the exceptants that express authority to make OF STOCK-SURCH ABGE OF TRUSTEE

this sale was not given by the court to the exA decision of the Supreme Court, reversing ecutors, and the sale itself was only incidentally a decree of the orphans' court removing a tes- considered by the Supreme Court. tamentary trustee because he had made an unprofitable sale of stock, and determining that of the record leads to the exactly opposite con

agree with counsel in this, as our examination the sale was properly made, being res judicata clusion. There were, it is true, other grounds on a subsequent adjudication of the trustee's of dissatisfaction alleged, but this one would account, authorized the orphans' court's refusal have been vital, had the Supreme Court conto surcharge the trustee for the loss alleged to sidered it substantial; and it may be that the have resulted from the sale.

subsequent history of the case shows that the [Ed. Note. - For other cases, see Judgment, sale was unfortunate, but that is not to the Cent. Dig. 1248; Dec. Dig. $ 717.*]

point. We are of the opinion that this court *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

cannot now hold the executor and trustee blame George Quintard Horwitz, of Philadelphia, worthy for having done that which the Supreme and Max L. Mitchell, of Williamsport, for Court, shortly after it had been done, held to appellants. John G. Johnson, Eli K. Price, have been proper.

If this is true in the case of the trustee, who, and Maurice Bower Saul, all of Philadelphia, as one of the executors, made the contract, it is for appellee Seddinger. John G. Johnson, true a fortiori in the case of the cotrustee sub- Edward H. Bonsall, and Maurice Bower sequently appointed. This trust company had absolutely nothing to do with the making of the Saul, all of Philadelphia, for appellee Land contract, and we fail to see what could have Title & Trust Co. been done by it to better the situation that was presented. It was a condition, and not a theory, that confronted it. There is no sufficient is affirmed on the opinion of Judge Gest.

PER CURIAM. The decree appealed from to . done by the cotrustee which would have averted the ruin of the Neafie & Levy Company, which, as the auditing judge finds, was due, at least

(245 Pa. 561) chiefly due, to its undertaking to build ships Appeal of CARLISLE & M. S. RY. CO. et al. at a price below their actual cost. The reten (Supreme Court of Pennsylvania. May 22, tion of the Somers N. Smith bond as an "in

1914.) vestment” of the estate was unavoidable, for the 1. COURTS ($ 180*)— JURISDICTION-COURT OF obvious reason that the trustees could not have

QUARTER SESSIONS-VALIDITY OF MUNICIdisposed of it. Thus retained, the asset was

PAL ORDINANCE. not marketable. There was no testimony to show that any purchaser could have been found sessions is limited by Act April 3, 1851 (P. L.

Since the jurisdiction of the court of quarter for it. Indeed, it would be difficult to imagine 326) $ 27, as amended by Act May 22, 1883 (P. such a possibility, and the evidence shows that, L. 40j § 2, to a review of ordinances and reguup to the time of the receivership of the com- lations done or purporting to be done in the pany, the trustees collected all that was due exercise of some power conferred on the borough on the bond.

by statute, such court has no jurisdiction to reWe have not thought it necessary to discuss view an ordinance imposing conditions on a in detail many other matters of less importance street railway company pursuant to the authorelaborated by the learned counsel for the ex-ity conferred by Const. art. 17, $ 9, providing ceptants in their able and forcible argument, that no street passenger railway shall be confor, as stated by us in the beginning, they all structed without the consent of the local audepend directly or indirectly upon the contract thorities. of March 29, 1898. We have, however, exam

[Ed. Note.-For other cases, see Courts, Cent. ined them, in the light of the testimony pre- Dig. $$ 412, 437, 439-447, 449-455, 457, 458, sented at the audit, and entirely agree with the 460-464. 467, 468; Dec. Dig. & 180.*] findings of fact, as stated by the auditing judge, and his conclusions of law applicable thereto? 2. STREET RAILROADS ($ 24*)-FRANCHISE[2] So far as the allowance of the trustees'

RIGHT TO IMPOSE CONDITIONS. commissions upon income is concerned, it ap

Const, art. 17, § 9, providing that no street pears that these were stated and charged in railway shall be constructed in a municipality the accounts rendered to the life tenant from without the consent of the local authorities, autime to time, without objection on her. part. street railway company as a consideration for

thorizes a borough to impose conditions on a The auditing judge accordingly held that it was the consent given. too late for her afterwards to object, and we think that his views are sustained, not only

(Ed. Note. For other cases, see Street Railby the reasons which he has given, but by the roads, Cent. Dig. $$ 34–38, 43, 50–55, 69–76; opinion of Judge Hare, in Lodge 'v. Heron, 3 Dec. Dig. $ 24.*] Phila. 356.

Appeal from Court of Quarter Sessions, [3] The exceptions to the adjudication of the

Cumberland County. fourth account of the executor relate to the allowance made to him of commissions at the

Appeal from borough ordinance by the rate of 3 per cent. upon the sales of real estate. Carlisle & Mechanicsburg Street Railway We are of opinion that, under the circumstances Company and the Valley Traction Company. of the case, the auditing judge was right in From a decree of the Superior Court affirmrefusing to strike them from the account. So long as the accountant remains in his office as ex- ing a decree of the quarter sessions dismissecutor and performs the labor of his office with ing the appeal, the companies appeal. Afout being given any reason to suppose that he firmed. was not to be compensated therefor, he should be allowed the usual commissions that were allowed The opinion of the Superior Court by Porhim in prior accounts. The auditing judge, ter, J., was as follows: however, has left open the question of the allow

The borough of Mechanicsburg was incorpoance of commissions on future sales.

rated by the special act of April 12, 1828 (P. We are not inclined to think that a recommit- L. 308), and by appropriate action became subment of the account of the trustees to the au- ject to the general borough act of April 3, 1851 diting judge and its postponement until the P. L. 320). The Cumberland Valley Electric final decree of the Supreme Court in Cornell v. Passenger Railway Company was duly incorpoSeddinger would result in any revision of our rated, on September 11, 1893, under the proviopinion, and the petition is dismissed.

sions of the act of May 14, 1889 (P. L. 211),

and the supplements thereof, by the commonThe court dismissed the exceptions to the wealth of Pennsylvania, to construct a street adjudication. Mary E. Whitaker, J. G. railway from the borough of Carlisle to and Neafie Whitaker, and Anna M. Mitchell ap- ing obtained the consent of the local authori

through the borough of Mechanicsburg, and havpealed.

ties constructed and subsequently operated, on Argued before FELL, C. J., and BROWN, the public highways, the street railway author

ized by said charter. The rights and franchises MESTREZAT, POTTER, ELKIN, STEW- of this company subsequently became vested in ART, and MOSCHZISKER, JJ.

the Carlisle & Mechanicsburg Street Railway

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Company and the Valley Traction Company, the, the Act of May 22, 1883 (P. L. 40) $ 2, conferappellants, and the latter companies became sub- red jurisdiction upon that court to review the ject to the duties and liabilities of the corpo- action of the borough council, upon complaint ration to which they had thus succeeded. The of any person aggrieved “in consequence of any consent of the borough of Mechanicsburg to the ordinance, regulation or act done, or purporting construction and operation within its limits of to be done, in virtue of this act, and the deterthe street railway in question was by ordinance mination and order of said court thereon shall No. 133, approved August 6, 1900, and the be conclusive." The jurisdiction of the court is street railway company duly accepted the said limited to the review of ordinances and regulaordinance, and under the provisions thereof tions done, or purporting to be done, in the exconstructed its railway. The provision of said ercise of some power conferred upon the borough ordinance, which is material to the determina- by the statute. tion of this case, was as follows, viz. : “That the The provisions of ordinance No. 226 expresssaid railway company, in consideration of the ly negative the intention to impose the charge rights and privileges granted by this ordinance, in question under the police power of the borshall pay to the borough the sum of $50 per an- ough “for police and street regulations,” and, num, said payment to begin two years after the when the borough undertakes to collect this completion of said railway, and to continue for charge, it must be prepared to sustain it upon three years, at the expiration of which term the the ground that it is "solely for the rights and said annual payment shall be increased to the privileges granted in ordinance No. 133." The sum of $100, which latter annual sum shall ordinance No. 133, after fixing the annual paycontinue for the period of five years, at the ex- ments during the first ten years, contained this piration of which period the council reserves explicit provision : "At the expiration of which the right to regulate and determine the future period the council reserves the right to regulate annual payment." The period of ten years fol- and determine the future annual payment." If lowing the completion of the railway expired on the borough, in granting its consent, had the March 1, 1911, and the appellant companies and right to reserve the power to fix, at some future the corporation, to the rights of which they had date, the amount of subsequent annual paysucceeded, made the annual payments during ments to be made by the street railway company that period for which the amounts had been by for the right to occupy the streets, then the orthe ordinance definitely fixed. Upon the expira- dinance No. 226 can only be considered as an tion of that period the council of the borough attempt made by the borough, at the proper duly passed the ordinance entitled “Ordinance time, to exercise the power so reserved. In deNo. 226. Fixing the annual payment to the termining the validity of this ordinance, only borough of Mechanicsburg, Pa., by the Valley two questions arise: (1) Did the borough have Traction Company, successors to the Cumber- power, as a condition of its consent to the conland Valley Electric Passenger Railway Com-struction of the street railway, to reserve the pany, for the rights and privileges granted in right to determine at a future time the amount ordinance No. 133." This ordinance recited of the annual payments subsequently to be some of the provisions of ordinance No. 133, in- made by the company for the privilege to octer alia, that the earlier ordinance had pro- cupy the streets? (2) If it had that power, vided for the annual payment of a fixed sum then, was the ordinance No. 226 a proper exduring the period specified and had reserved to ercise of the power reserved by ordinance No. the council of the borough the right to deter- 133? mine the annual payment to be made after the [2] The right of the borough to exact any expiration of that period, and then ordained, in compensation from the street railway company its first section, that the appellants, successors for the privilege of entering upon the streets to the passenger railway company, should pay was not conferred by any statute. The ordiannually to the borough, from March 1, 1911, nance which imposes the charge does not purthe sum of $1,200. The second section of the port to be the exercise of any power conferred ordinance is as follows: "That said annual by statute. The only assertion of authority for payment of $1,200 be considered solely for the this charge, upon the part of the borough, is rights and privileges granted in ordinance No. founded upon article 17, § 9, of the Constitu133, to the Cumberland Valley Electric Pas- tion of the commonwealth: "No street passensenger Railway Company, and shall in no way ger railway shall be constructed within the limpreclude or debar the borough of Mechanics- its of any city, borough or township, without burg fror

collecting fines for the violation of the consent of its local authorities." This proordinances or any acts of assembly now enact- vision is peremptory and without express limied, or that may be enacted relative to the same tations of any kind. “It is a gift directly from or levying additional taxes for police and street the Constitution to the local bodies, and needs regulations." The appellant companies, after no help, nor permits any interference from the the enactment of this ordinance, presented their Legislature. If any limitations are to be impetition to the court of quarter sessions, pray- plied by the courts, the implication must arise ing leave to appeal to that court “from said from clear necessity, as absolute, as perempordinance No. 226,” and that the said court tory, and as unavoidable as the constitutional order and decree that the said ordinance was un- mandate itself. * He who can consent reasonable, illegal, and void. The court below or refuse without reason does not make his made an order formally allowing the appeal. consent or his refusal either better or worse The borough filed an answer and the appellants by a good or bad reason. The same principle a replication, but, as to the material facts, there applies to the present subject. It is conceded was no dispute. The learned judge who heard that the local authorities may impose some conthe case in the court below, after full considera- ditions, such as those relative to the police powtion, filed an opinion holding that, because of er, but where is the grant to any other body the subject-matter of the ordinance and the na- to supervise and limit the conditions, or say ture of the power exercised by the borough au- what they shall be? The Legislature clearly thorities in its enactment, the court of quarter cannot do it. The very purpose of the provision sessions was without jurisdiction to review the was to put an end to the Legislature's interaction of the borough council, and dismissed the ference.' Allegheny City v. Railway Co., 159 petition. The petitioners appeal from that de- Pa. 411, 28 Atl. 202. The municipality, having cree.

the absolute power to give or withhold con[1] The court of quarter sessions is not vested sent, has the matter in its own hands and may with general equity jurisdiction, and its author-protect its interests by giving its consent upon ity to review the action of the council of a condition. When the consent is given upon borough and declare an ordinance invalid is en-conditions clearly expressed, and the street railtirely dependent upon statute. The Act of way company accepts the terms, a contract reApril 3, 1851 (P. L. 326) $ 27, as amended by lation arises, and the rights of the parties are

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