The defendant contends, first, that the borough council and not the borough constables are the "proper authorities" intended by Section 13 of the Act of July 7, 1913, P. L. 672; secondly, that the borough authorities had no right to erect the sign outside the limits of the borough, though the curve in the street is partially within the limits of the borough; and, third, that at the place in question the State Highway Department had exclusive jurisdiction to erect danger signs.

We are of the opinion that the proper authorities of the Borough of Middletown had jurisdiction to erect the sign, "Danger; blow your horn," in accordance with provisions of Section 13, of the Act of July 7, 1913, P. L. 672. It was the duty of the borough authorities to maintain the part of the street lying within the borough in a reasonably safe condition and it was the duty of the State Highway Department to maintain that part of the street lying within the township in a reasonably safe condition. And the defendant is not in a position to complain, if the proper authorities of the Borough of Middletown, in endeavoring to provide for the safety of the street at the curve in question, and especially that part of the street within the jurisdiction of the borough, erected the proper sign on the township side of the street.

But the more serious question here is the power or authority of the constables of the Borough of Middletown to erect such signs. Section 13 of the Act of July 7, 1913, P. L. 672, requires every operator of a motor vehicle to sound his horn, bell or signal device, giving reasonable warning, "when approaching a street or road crossing, dangerous curve, in any of the streets, boroughs or townships of this Commonwealth, where the proper authorities shall have erected signs easily readable from the highway, and at right angles thereto, bearing thereon in letters at least five (5) inches in height, the words "Danger: blow your horn."

To convict the defendant in this case it is necessary to show that the danger sign was erected by the "proper authorities" of the Borough of Middletown. The question here is, who are intended as the "proper authorities" to erect the danger sign, the borough council and burgess, or the constable? The act to be performed by the "proper authorities" is an important one. It is in

the nature of a legislative act. The safety as well as the liberty of all who travel the streets and highways, is involved. Failure to give the proper signal on approaching a curve where the proper danger sign is erected subjects the operator of a motor vehicle to a fine, and upon failure to pay same, to an imprisonment.

Section 6 of the Act of February 9, 1828, P. L. 96, incorporating the Borough of Middletown, provides that "The town council so chosen, or the majority of them, shall have full power and authority to make and enact such ordinances, rules and regulations as may be necessary for improving and keeping in order the streets, lanes, alleys, public squares and common ground belonging to said township with the said borough and removing nuisances or obstructions therefrom and the same to annul, alter and make new as occasion may require, and shall have all powers necessary for the well ordering and better government of the said borough."

Section 1 of the Act of April 3, 1851, P. L. 320, commonly known as the General Borough Act, authorizes the burgess and town council of boroughs to "make such laws, ordinances, by-laws and regulations, not inconsistent with the laws of this Commonwealth, as they shall deem necessary for the good order and government of the borough."

As to constables, "their first duty is that of keeping the king's peace." In addition, they are to serve warrants, return lists of jurors, and perform various other services enumerated in Coke, 4th Inst. 256; 3 Steph. Com. 47; Jacob, Law Dict. 2; 1 Bouv. Law Dict. 410. "The general duty of all constables, both high and petty, as well as of the other officers, is to keep the king's peace in their several districts." 1 Bla. Com. 356.

The borough council and burgess are the legislative body of a borough. They are the "proper authorities" intended in Section 13 of the Act of July 7, 1913, P. L. 672. By their resolutions or ordinance duly enacted the erection of the danger sign in question must be authorized, and the constables have no authority to erect such signs unless duly authorized by the burgess and town council.

It follows, therefore, that the defendant was not guilty in failing on June 7, 1914, to heed the sign,

"Danger: blow your horn," erected without authority by the constables of the Borough of Middletown, and the jury should have been directed by the Court to render a verdict of not guilty. The verdict of guilty must therefore be set aside.

And now, July 17, 1915, the verdict of guilty of the jury is set aside.

LANDIS MACHINE COMPANY vs. ZELLNER. Certirari-Probated Claim-Production of Testimony-Act of 7 July, 1879, P. L. 194—Justice of the Peace.

A court of record may, through the aid of rules and acts of assembly, give to a probated claim unreplied to by any counter pleading a probative value that will support a judgment after it has been given but a justice of the peace not being clothed by law with any authority to invest an affidavit of claim with a probative value not contemplated by the Act of Assembly can only give judgment for a plaintiff when based on proofs and allegations.

In the Court of Common Pleas of Westmoreland County, No. 902 May Term, 1915. Certiorari.

Beacom & Newill, for Appellant.
No appearance, for Appellee.

McConnell, J. The first specification of error is that: "The record does not show that the writ was served in Westmoreland County." It does not show that it was not served in Westmoreland County, and the legal presumption is that it was served where there was legal authority to serve it, that is to say, within the County of Westmoreland. Besides, the record does show that it was served "on C. D. Zellner, 328 Donner Ave., Monessen, Pa.," and we can take judicial notice of the fact that Monessen is in Westmoreland County. The first specification is overruled.

The second specification is as follows: "The record does not show that a certified affidavit of claim was served upon the defendant." It is true the record does not show that a duly certified copy of plaintiff's affidavit of claim was delivered to the constable and by him served at the time and in the manner that service was made of the summons in the case, while it does recite

that the plaintiff had filed such an affidavit-yet, under the Act of 7 July, 1879, P. L. 194, authorizing such procedure, the filing and service of such an affidavit is not compulsory, but is only for the purpose of enabling the plaintiff to take judgment for want of an affidavit of defense, if the defendant does not, by that means, reply to the affidavit of claim by the time the writ is returnable. A judgment for that kind of default was not taken in this case. If it had been, the proceeding would have been illegal, for the reason set out in the specification. The judgment purports to have been taken by reason of what was presented on the day fixed for return,-and not for a lack of an affidavit of defense. "The plaintiff is not obliged to file an affidavit of claim: he has his option to do so, or proceed in the ordinary way." Cook vs. Minick, 1 C. C. 603. It may well be that, after making the affidavit of claim, the plaintiff did not see fit to follow up that special form of procedure, and intentionally allowed the case afterwards to progress in the ordinary way. The record is entirely consistent with such an inference. In that condition of things, the lack complained of in this specification would not be fatal. In a proceeding of this kind, it is our duty to adopt that view of the case, rather than to reverse because the record does not show compliance with a form of procedure that may not have persistently attempted to have been followed up at all. This specification is overruled.

The third specification is: "The record does not show that any proof was taken in support of the plaintiff's claim." The record only mentions the introduction of evidence against the claim-nothing being specifically or even generally mentioned about evidence in support of the claim. The record does not even show that, on the day fixed for hearing, any one at all appeared before the justice in behalf of the plaintiff. If any evidence in support of the claim was considered by the justice (judging from what appears in the record)-it must have been the affidavit filed by the Machine Company, the plaintiff. But that affidavit would not be a sufficient basis for a judgment in favor of the plaintiff. "A justice's judgment will be reversed on certiorari, where the transcript shows that the only evidence offered for the plaintiff was a probated copy of a book account."

Munroe vs. Klepser, 5 Dist. 60; George vs. McCutcheon, 8 Dist. 591. "Judgment cannot be entered without hearing proof in support of the plaintiff's claim, though the defendant refuses to defend." McCowan vs. Ward, 5 Kulp, 385; Chambers vs. Reynolds, 2 Dist. 402; Pearre vs. White, 4 Dist. 504. "It is essential that the record should disclose that evidence was heard to establish the plaintiff's claim. Neither presentation of the demand by an agent authorized to make the claim, nor a sworn statement of claim admitted in evidence is sufficient to warrant the entry of a judgment by a justice of the peace. Where the record shows that no proofs were heard, a statement therein that judgment was entered, 'after hearing all proofs' will not give the judgment validity." Wolf. vs. Sailer, 10 Dist. 601; Young vs. Getz, 6 Dist. 78.

The record says: "Plaintiff, Landis Machine Co., having filed a sworn affidavit of claim of $22.74 for goods sold and delivered to defendant, C. D. Zellner, demand $22.74 and interest. And now, on this 3rd day of April, 1915, after hearing all the proofs and allegations of the defendant and all testimony being offered by him, judgment is withheld. On the 10th day of April, 1915, judgment is publicly entered against C. D. Zellner, defendant, and in favor of Landis Machine Co., plaintiff, for the sum of $22.74, int. $1.25 and costs $3.60." It is obvious. that the justice, accepting the affidavit of claim as proof, and without any agent for the plaintiff being present(unless, as is sometimes the case, the justice was himself acting as agent)-called on the defendant to meet the plaintiff's claim, as so made out, and required him to submit his testimony-and then, withholding judgment to no specific date, finally afterwards entered judgment for the plaintiff, without giving any further special notice to defendant. A court of record may, through the aid of rules and acts of assembly, give to a probated claim, unreplied to by any counter pleading, a probative value, that will support a judgment after it has once been given-but a justice of the peace-not being clothed by law with any authority to invest an affidavit of claim with a probative value not contemplated by the act of assembly can only give judgment for a plaintiff when based on "proofs and allegations"-and this judgment