Lower Merion vs. Railroad Companies.

ants from their operation, some reason must be shown why their acts are illegal and need restraint. The mere crossing of a public road is certainly not illegal, else railroads could not be built; nor is the changing of the site of a public road where it becomes necessary. The affidavits to support the application set forth that a public road has been crossed by both defendants, and that at least one of them has occupied the bed of the road for some distance.

The affidavits of defendants deny any obstructions or interference with travel, or that any portion of the highway is occupied longitudinally; and the affidavits of the Philadelphia and Reading Railroad Company directly and emphatically aver that no part of the public road is taken (except in crossing), and that where their said new tracks parallel the highway it is upon their own property.

Under this state of facts how is the court to assume that plaintiff's allegations are correct, for this denial of the taking of the road is supported by facts as shown by marks and posts. If for no other reason than that the plaintiffs have not shown such a clear case of right as to entitle them to an injunction, it must be refused. "In awarding an injunction a very delicate and highly responsible power is used, which ought not to be exerted when there is reasonable doubt as to the existence of any fact on which the application is founded. If there appears, from the affidavits of the parties or witnesses, such a repugnancy in point of fact as makes it necessary to decide on the relative truth of their conflicting statements, or the credibility of the affirmants, no prudent Judge will undertake so dangerous an inquiry in the first stage of the cause": Brightly's Eq., Sec. 304. It must be remembered that this is not a clear case of trespass or an act done without authority of law.

But if we regard plaintiff's affidavits as true as bearing upon the occupation of the road, we can come to no other conclusion. We must in the absence of testimony to the contrary assume that defendants are constructing their branch road for a proper purpose. It may be of the highest importance to the industrial establishments in that vicinity that they should have railway connections with different roads. How then can this be done except by crossing at proper places, constructed so as to do the least injury to the public? The contention as to the crossings is that there are too many, and can do no good to defendants. But of that we are not to judge, else the court would be exercising that discretion which the law vests in

Lower Merion vs. Railroad Companies.

the officers of the company. It may be, as alleged in the argument, that this is but a contest between the defendants to occupy territory; but we have no evidence of that fact, and must be guided by the bill and affidavits. We do not see from the affidavits and plans filed how the crossings can interfere with public travel any more in this particular case than in any other.

It also urged that we should restrain the defendants from occupying the public road longitudinally (if they are so doing) until they have reconstructed or supplied another road. It was, however, ruled in Danville, &c., R. R. Co. vs. Com., 73 Penna. St. R., 29, that the thirteenth section of the act of 19th February, 1849, which directs that "if any such railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith," etc., does not mean that a new road should be constructed before the company should occupy the old one, but in a reasonable time under the circumstances.

It is no answer to say that there is no room to reconstruct a new road. We can not go into the merits of that question on this motion, and if the fact were as alleged the defendant companies must bear the consequences. We can not, however, anticipate such a result, and must presume that they intend to fulfill the requirements of the law. We are not unmindful of the consequences to the property holders along the road, but the law guards their interests and affords redress for wrongs done them, and the fact that they will be temporarily inconvenienced or suffer damage to their properties gives us no right to restrain defendants from building their road according to law. We think, therefore, that the case is not one which requires us to move until the cause is ripe for final adjudication.

And now, September 19, 1889, a preliminary injunction is refused.

Court of Common Pleas of Huntingdon County.

TOWNSEND vs. WILSON.

The act of June 2, 1881, making taxes assessed upon real estate a lien, except in cities of the first, second and fourth classes, is void, being in violation of the Constitution, Art. III, Sec. 7, forbidding special laws regulating the affairs of counties and municipalities, and Art. IX, Sec. 1, requiring the assessment and collection of taxes to be by general laws.

EXCEPTIONS to the report of auditor to distribute proceeds of Sheriff's sale.

Petrikin & McNeal, M. R. Speer and Russell & Longnecker, Esqs., for exceptions.

D. Caldwell and W. M. Williamson, Esqs., contra.

The facts appear in the opinion of the court delivered July 1, 1889, by MCPHERSON, J., of the Twelfth district, specially presiding.

An exception relates to the claim of the County Commissioners, supported by several interested purchasers, that certain taxes upon four unseated tracts were liens upon the land, and should have been paid out of the fund.

The claim of the County Commissioners rests upon the act of 1881, P. L. 45. The auditor disallowed it mainly upon the ground that this statute does not apply to taxes upon unseated lands; and, upon the argument, it was further objected to because Sec. 3 of the act preserves all local or special laws, and Huntingdon county has a local law upon this subject (act of 1872, P. L. 179, extending the act of 1868, P. L. 1017), the provisions of which were not observed.

These objections would deserve careful consideration if there were not another objection which, in our opinion, is fatal to the claim, and which alone need be noticed, viz.: that the act of 1881 is special legislation upon a prohibited subject, and is therefore unconstitutional; Art. IX, Sec. 1, providing that the assessment and collection of taxes shall be regulated by general laws, and Art. III, Sec. 7, forbidding special legislation regulating the affairs of counties and municipalities. The act of 1881 does not apply to the whole state, nor even to all territorial subdivisions of a given class, but expressly excepts cities of the first, second and fourth classes. In our judgment, therefore, the question is ruled by Scranton vs. Silkman, 113 Penna. St. R., 191, and similar cases with it. The claim must fall, for it rests admittedly on this act alone.

The exceptions are overruled, the report is confirmed, and dis tribution is decreed in accordance therewith.

Court of Common Pleas of Montgomery County.

MARY DALFONZO vs. James Newton.

A judgment of record at the defendant's death, although not then a lien on his land, is not a debt whose lien is limited to five years from the decedent's death, unless suit be brought according to Sec. 24, act of February 24, 1834.

An executrix, who is also devisee, is bound by a judgment of revival obtained on a sci. fa. sur judgment, although the writ be only issued against her as executrix.

The proper practice on a judgment obtained against a decedent in his life-time is to issue the sci. fa. against his representatives.

The act of June 1, 1887, P. L. 289, does not apply where the judgment sought to be obtained is not against a defendant or terre tenant. A devisee is not a terre tenant within the meaning of the act.

A judgment by default for want of an appearance was entered against an executrix, and a Sheriff's sale had on the judgment and ven. ex. February 23, 1888. The deed was acknowledged March 24, 1888. A petition in lunacy was filed May 8, 1888, and by the report of the commission filed May 23, 1888, it was found that the executrix was a lunatic, and had been such for four or five years previously, without lucid intervals. Held, not to invalidate the sale, and that the purchaser was protected by the act of 1705.

EJECTMENT. Sur motion for new trial.

Fox & Son, Esqs., for plaintiff.

William F. Solly, Esq., for defendant.

The facts appear in the opinion of the court delivered September 16, 1889, by WEAND, J.

The plaintiff brought her action of ejectment to recover possession of land claimed by defendant.

On November 25, 1870, Jacob M. Cowden entered a judgment in the Court of Common Pleas against Antonio Dalfonzo, husband of plaintiff, and through whom both parties claim title. Dalfonzo died February 9, 1879, leaving a will by which he devised all his property to his wife, Mary Dalfonzo, and appointed her his executrix.

On July 16, 1887, a sci. fa. was issued on the judgment against Mary Dalfonzo, executrix, etc., which was served upon her.

November 14, 1887, judgment was entered on the sci. fa. for want of an appearance, and damages assessed at $370.53.

Under fi. fa. and ven. ex. the land in question was levied upon, condemned, and sold to defendant, who received a Sheriff's deed therefor and entered into possession.

Dalfonzo vs. Newton.

On May 23, 1888, there was filed in said court the report of a commission in lunacy finding that Mary Dalfonzo was a lunatic, and had been such for four or five years previously, without lucid intervals.

The plaintiff's contention is that no valid title passed to the defendant under the Sheriff's sale, because the judgment on the revival was void by reason of lapse of time, and because it was found against an insane executrix; also because there was no authority to enter judgment by default for want of an appearance against her as executrix, and that there was no judgment against her as terre tenant.

It has repeatedly been held that the lien of a judgment against a decedent is without limitation against heirs and devisees: Fetterman vs. Murphy, 4 Watts, 424; McCahan vs. Elliott, 103 Penna. St. R., 634; Aurand's Appeal, 34 Id., 151.

A judgment of record at the defendant's death, although not then a lien on his land, is not a debt whose lien is limited to five years from the decedent's death, unless suit be brought according to Sec. 24 of the act of February 24, 1834: Baxter vs. Allen & Needles, 77 Penna. St. R., 468.

An heir or devisee is but a volunteer, and takes only the surplusage of his ancestor's estate. He is not a terre tenant: Horner 169.

vs. Hasbrauck, 41 Penna. St. R.,

If then the judgment was a lien at decedent's death, was the revival proper? The writ, it is true, only issued against the executrix; but as she was also sole devisee, she was bound by the judgment obtained on the sci. fa., if in other respects valid: Stewart vs. Montgomery, 23 Penna. St. R., 410.

The authorities show that the proper practice on a judgment obtained against a defendant in his life-time, is to issue the sci. fa. against his representatives, and that it is unnecessary to bring in the widow, heirs or devisees under Sec. 34 of the act of 24th February, 1834, P. L. 80; and that after a revival to issue the execution upon the original judgment and not upon the judgment on the scire facias. Yet when the issuance is upon the latter it is but an irregularity which can not affect the title of a purchaser at Sheriff's sale: Grover vs. Boon, 124 Penna. St. R., 399.

From these decisions it follows that the judgment, revival and sale were all legal, proper and orderly, and vested a good title in