Ridgway vs. Borough of Bridgeport et al.

Later the answer of the school district was presented, but this contained no denial of any allegations in the bill.

The case was argued upon the answer of December 1, 1888, and we shall treat it as raising the questions upon which the court is to render a decision.

The defendants claim that there is no equity jurisdiction to entertain the bill because of an adequate remedy at law.

The better practice is to raise this question by demurrer: Adams vs. Beach, I Phila., 99; Story's Equity Pleadings, Sec. 481a. The allegations of the complainant show that she is entitled to equitable relief. The suit was properly brought in equity.

The bill alleges that no property of complainant is liable for any tax. This is not denied by the answer. Equity will restrain a tax collector where the property to be sold is not the subject of taxation: Hughes vs. Kline, 30 Penna. St. R., 231; High on Injunctions, Sec. 488. That the complainant's property is not the subject of taxation for school or municipal purposes was fully considered in Ridgway vs. County Commissioners, 5 MONTG. L. R., 25. Even if the complainant's property is taxable, the allegation in the sixth paragraph of the bill entitles her to relief in equity. Her property was never assessed. Her name was not entered on the list of taxables by the assessor, nor was he called upon to assess a tax against her. Her name was placed upon the tax-book without any authority or color of law. In Sallade vs. School Directors of Lykens Township, 2 Pearson, 49, a case very similar to the one at bar, it was held that the court has authority to restrain the collection of the tax by injunction.

It is argued that the complainant should pay the tax and proceed against the school district or municipality for damages. The answer to this argument is found in Miller vs. Gorman, 38 Penna. St. R., 313, where the court said: "It may be said that an action for damages would lie against the supervisor; but it would lie only after the payment of the tax in money. And why should equity permit a plain breach of statute duty to occur before its eyes in order that it might be redressed at law? The redress in damages if obtained would be inadequate, and such actions would defeat the due administration of a public officer. One of the great purposes of the equity jurisdiction is to prevent circuity of action and exclude unnecessary litigation."

De Lucca vs. Derr.

What was said in relation to the jurisdiction disposes of the whole case. The answer in effect admits the allegations of the bill.

The County Commissioners, as a Board of Revision of Taxes, could not assess property omitted by the assessor.

It is the duty of the latter to value the property, and the Board can then revise such assessment.

The answer sets forth that the assessment against the complainant was made by the Commissioners at the request of the parties in interest, as the defendants are informed. Whether by "parties in interest" it is intended to include the complainant does not clearly · appear. The answer is made upon information without any allegation of belief on the part of the respondents. Even if she made no objection to the assessment, but learned afterwards that her property was not the subject of taxation, she is not liable.

The allegation that it is immaterial whether this tax was originally assessed against the complainant or Jacobs & Scott, the owners of the fee from whom she leased, is not tenable. If she pays a tax assessed against Jacobs & Scott she has her remedy against them, but she is without such remedy if the tax is assessed against her. We are of opinion that no tax was assessed against Mrs. Ridgway, and had such tax been assessed it would not be collectible.

And now, April 15, 1889, this cause came on to be heard on bill and answer, and after argument by counsel and due consideration by the court it is ordered, adjudged and decreed that the preliminary injunction heretofore granted be and the same is hereby made perpetual.

ANTONIO DE LUCCA VS. JOHN J. Derr.

A justice of the peace is entitled to notice previously to the commencement of suit against him, in any matter where he has acted honestly, although under a mistaken idea as to his authority in reference to a matter over which he has general jurisdiction.

A suit against him as an individual will not lie, where it appears that the act was done by him in his official capacity, if the effect is to deprive him of the protection of the act of 21 March, 1772.

MOTION to take off non-suit.

L. M. Childs, Esq., for motion.

Montgomery Evans, Esq., contra.

The facts appear in the opinion of the court delivered March 29, 1889, by Weand, J.

De Lucca vs. Derr.

This action was brought against John J. Derr to recover money paid to him by plaintiff, and which it was agreed should be refunded upon certain conditions.

The defendant is a justice of the peace of the borough of Norristown, and as such brought suit against plaintiff at the suit of one Antonio Coppolo. Judgment having been obtained, an execution was issued and placed in the hands of a constable, who made a levy. Plaintiff here (defendant in the suit before the justice) claimed that he had paid Coppolo the amount of the claim, and to stay the levy agreed to pay Derr the amount of the execution, the money to be refunded to De Lucca upon producing a receipt from Coppolo.

The justice thereupon received the money and gave a receipt, signing himself "John J. Derr, J. P.”

The plaintiff, having secured Coppolo's receipt, now seeks to recover the money from Derr without the notice required by the act of 21 March, 1772. At the close of plaintiff's case the court ordered a compulsory non-suit.

It is argued by plaintiff that the defendant can not in his official capacity be authorized to make such a contract; that he was but a private depository, and that the action will lie against him personally.

The whole proceeding, however, shows that the justice received the money in his official capacity; and as he did so honestly, although it may be under a mistaken idea as to his authority, we think the case comes within the direct ruling of Wise et al. vs. Wills, 2 Rawle, 208. In that case the justice received the money, as it was alleged, by fraud and mistake, but it was held that he was entitled to the protection of the act. The receipt there was signed by him individually, and he had no right to receive the money. The court said: "The statute supposes some wrong to have been done, some excess of authority, or want of authority, or of jurisdiction; for where everything has been done according to law, the act is useless. The act was made to prescribe a certain requisite; it requires a notice where the act was done in execution of his office; it does not discriminate between mistake, malice or fraud, and I do not see how we can."

In Jones vs. Hughes et al., 5 S. & R., 298, it was held "where a magistrate has a general jurisdiction over the subject matter, and intends to act as a magistrate but mistakes the law, he is entitled to

Lawler's Application.

notice previously to the commencement of a suit against him for an illegal act." "It may be laid down as a rule," says Gibson, J., in the above case, "that wherever the officer has acted honestly although mistakenly when he supposed he was in the execution of his duty, although he had no authority to act, he is entitled to the protection of the act of Assembly. But the cause of action must be a wrong suffered from an act done by the justice in the execution of his office."

It can not be questioned but that the justice had the right to receive the money, and if his agreement to refund was improper it was an honest mistake for which he should have an opportunity to make amends before suit brought; and the plaintiff can not deprive him of his rights by bringing the suit against him as an individual. And now, March 29, 1889, the motion to take off the non-suit is overruled.

IN RE APPLICATION OF PATRICK LAWLER, A MINOR, TO Declare HIS INTENTIONS OF CITIZENSHIP.

If an alien minor can be naturalized or enter his declaration of intentions, it must be done through his guardian or next friend. Whether an application, even under such precautions, should be sustained, doubted.

Henry U. Brunner, Esq., for petitioner.

H. M. Brownback, Esq., contra.

The opinion of the court was delivered March 29, 1889, by SWARTZ, P. J.

The applicant is an alien minor aged nineteen years, and asks leave to declare his intentions to become a citizen of the United States and to renounce forever all allegiance and fidelity to any foreign sovereignty.

This application must be founded on the act of Congress of April 14, 1802, which provides that the declaration may be made prior to the time the application is offered for admission to citizenship. The act of May 26, 1824, makes no provision for such preliminary declaration. Under its provisions the declaration of intention and application for admission may be made at the same time,

Saylor vs. Leedom, Adm'r, et al.

where the petitioner has resided in the United States three years next preceding his arriving at the age of twenty-one years.

In the case of the Application of Augustine Le Forestiere, 2 Mass., 419, it was intimated that under the act of 1802 a minor may be admitted to citizenship. A similar intimation is given in John Merry's Application, 9 W. N. C., 169. But in each of these cases it was held that if such admission to citizenship was allowable it could be accomplished only through the application of the minor by his guardian or next friend.

A minor appears in court by his guardian or next friend. The law contemplates that by reason of his indiscretion he must have the aid of a guardian.

To contract the obligation of allegiance is a most important undertaking. To declare the intentions of citizenship and renunciation of allegiance is an undertaking of equal importance. In a step of such moment the minor should have the aid of his guardian. He needs the care, advice and counsel of such guardian. A new relationship springs up the moment the declaration of intention is filed. Under certain circumstances the government extends to the alien who filed his intentions all the protection that is afforded to the American citizen.

If an alien minor may be naturalized or enter his declaration of intentions, it must be done through his guardian or next friend. Whether a petition even under such precautions can be sustained is doubtful.

And now, March 29, 1889, the application is refused.

ISAAC Z. SAYLOR VS. ANDREW S. LEEDOM, ADMINISTRATOR, ET AL.

A deed of trust, although voluntary, is not revocable at the will of the grantor, unless obtained by fraud and imposition, or executed under a misapprehension of fact or its legal effect.

No formal deed or will is necessary to constitute a declaration of trust; any declaration in writing which clearly expresses the gift to be in trust and sufficiently connects the trustee with the subject matter of the trust is sufficient.

CASE stated.

B. E. Chain, Esq., for plaintiff.

C. H. Stinson, Esq., for defendant.