license to the petitioner, it is the duty of this Court to issue a peremptory mandamus to the Judges of the Quarter Sessions to compel them to grant such license. that the sole duty of the Court is confined to the inquiry whether the applicant is a citizen of the United States and a man of good moral character, etc. Back of all this lies the question whether The petitioner assumes that he is entitled as a petitioner's house is "necessary for the accommomatter of right to a license upon complying with dation of the public and entertainment of strangers the provisions of the Act of 1887, in the absence and travellers," and the plain duty of the Court of any allegation that he is an improper person of Quarter Sessions under the Act of Assembly to be so licensed. This is the fallacy which un-is to so exercise its discretion as to "restrain" derlies his case, as well as the able argument of rather than increase the sale of liquor. We do his learned counsel. He has no such absolute not know how many public houses there are in right, nor has any other man in the Common- the Ninth Ward; it is not material that we wealth. should. We are bound to presume that the Judges It is not needed to review the license legisla- below have ascertained the number in a judicial tion of this State for the last half century. That manner; that they have in like manner decided was thoroughly done by Mr. Justice AGNEW in how many are necessary for the public accommoSchlaudecker v. Marshall (72 Pa. 200). It is dation. An investigation of this question has no sufficient to say that prior to the Act of 1887, particular bearing upon the petitioner's fitness to the law was by no means uniform, there being keep a saloon; it is a general one, with which he many local acts in existence differing essentially has no more legal concern than any other citizen from each other. In Philadelphia any citizen of the Ward. The question is one of public concould procure a license upon payment of the cern; the petitioner is no party to it in the sense license fee to the county treasurer. In some that persons are parties to private litigation. It counties licenses were granted by the Court of may thus happen that licenses are refused to perQuarter Sessions, where in the opinion of the sons against whom there is no possible objection Court the public accommodation required them. on personal grounds. Thus, if a Ward has one The whole history of our license system and the hundred public houses where only fifty are relegislation attending it shows that the unrestricted quired by the public wants, it is plain that fifty sale of liquor has for a long time been regarded houses must be denied license although every one as a great evil. It is one which statesmen, and of the applicants is a worthy man and keeps a many earnest men and women have been wrest-respectable house; and though there be neither ling with from the organization of the govern- remonstrance nor objection on the score of want ment. When therefore the Legislature came to of fitness. The denial of a license under such enact the Act of 1887, they were seeking to curb circumstances may seem arbitrary. The trouble and regulate this evil. This clearly appears from is there are more persons who want to sell liquor the title of the Act. It reads, "An Act to re-than the Legislature consider it for the public good strain and regulate the sale of vinous and spiritu- to license for that purpose. ous, malt or brewed liquors, or any admixtures I will not consume time with an extended thereof." The mode of restraint adopted by the discussion of the right of the Judges of the Legislature was twofold. One was to increase Court of Quarter Sessions to exercise their disthe price of the license by which many saloons cretion in the granting of license. It has been would be closed, and others rendered more re-exercised by that Court almost time out of mind, spectable; and the other was to substitute the discretion of the Court of Quarter Sessions for the mere ministerial duty of granting licenses by county treasurers as it had theretofore existed in Philadelphia and some other places. If the construction of the Act contended for by the petitioner be the correct one, then the title of the Act should read, "An Act to increase the sale of liquor and to derive revenue therefrom." In other words, it would give every man in the State the right to sell liquor, who could pay for his license and comply with the Act. This would do violence to its letter and spirit. and the power has again and again been affirmed by this Court. This discretion, however, is a legal discretion, to be exercised wisely and not arbitrarily. A Judge who refuses all applications for license unless for cause shown, errs as widely as the Judge who grants all applications. In either case it is not the exercise of judicial discretion, but of arbitrary power. The law of the land has decided that licenses shall be granted to some extent and has imposed the duty upon the Court of ascertaining the instances in which the license shall be granted. In order to perform this duty properly the Act of Assembly The petitioner begs the whole case, when he has provided means by which the conscience of assumes that he has a right to a license because the Court may be informed as to the facts, it may he is a respectable man, has always kept a re-hear petitions, remonstrances, or witnesses. And spectable house, and that no remonstrances have we have no doubt the Court may in some inbeen filed against him. It is an error to suppose stances act of its own knowledge. The mere submitted to the Board. These respondents claim that it is their duty, in discharge of an obligation they owe to the public, not to take the certificate of the twelve citizens as conclusive as to the necessity of the tavern or eating-house for the public accommodation, as to the honesty and temper appearance of an applicant for license, when he comes to the bar of the Court, may be sufficient to satisfy the Judge that he is not a fit person to keep a public house, The Judge is not bound to grant a license to a man whom he knows to be a drunkard or a thief; or has actual knowledge that his house is not necessary for the public ac-ance of the applicant, and as to his being procommodation. The object of evidence in such cases is to inform the conscience of the Court so that it can act intelligently and justly in the performance of a public duty. While the act of deciding in such cases is perhaps quasi-judicial, the difference between the granting or withholding of a license, and the decision of a question between parties to a private litigation is manifest. Neither the petitioner nor any other person in this State has any property in the right to sell liquor. It is needless to cite the numerous cases in which this Court has refused to interfere with the discretion of the Quarter Sessions in regard to licenses. I will refer to Schlaudecker v. Marshall, supra, which is upon all-fours with this, and where the question was raised upon an application for a mandamus to a Board of Licensers appointed under the Act of 10th May, 1871, giving to the said Board "the same power and authority to grant licenses in the city of Erie as the Court of Quarter Sessions by law now has." The Act then in force was that of 22d March, 1867, the first section of which was substantially the same as the seventh section of the Act of 1887, so far as the duties of the Court are concerned. The petitioner there, as here, averred all that was necessary under the law to entitle him to a license, nor does any remonstrance appear to have been filed against it. The petitioner obtained a rule upon the Board, to show cause why they should not grant his application. An answer was put in by the Board in which, after specifying the number of applications, the number granted, and the number refused, they said: "The respondents answer and say that they claim it is not only simply their privilege, but an important duty enjoined on them by law, fully and carefully to examine every application for license, and when they are found to be in form according to the provisions of the Act of Assembly, that would constitute a prima facie case. Then it becomes the duty of the Board, particularly when there are one hundred and thirty-four applications for license to deal out spirituous liquors in a city of a population of about twenty thousand, first, to see if the public interest required that number to be licensed; and second, is the appli. cant a person of good repute for honesty and temperance? and, third, has he the necessary house room? These facts the Board has to ascertain from evidence or personal inspection, and thereupon to judge and determine upon all the cases vided with house room, but to examine into the matter, and upon a full and careful investigation to decide who shall have license and who shall not. These respondents did decree upon Mr. Schlaudecker's application and rejected it, and believe they acted in accordance with the law in doing so.' This Court, in an elaborate opinion by Mr. Justice AGNEW, decided that upon this state of facts the writ of mandamus was properly refused. See, also, Toole's Appeal (90 Pa. 376), as to the discretion of the Court. Were we to grant the alternative mandamus now prayed for, it would result only in a return thereto by the Judges of the Court below that they have considered the application of the petitioner, and in the exercise of the judicial discretion conferred upon them by law, have rejected it. Under all our cases such a return would be conclusive, and it would lead to no profitable result to allow the writ. It is therefore denied. Opinion by PAXSON, J. TRUNKEY and GREEN, JJ., absent. Note containing waiver of right to appeal Justice of the peace-Appeal from judgment ofWhen stricken off. Plaintiff brought suit before a justice upon a note containing waiver of exemption, right to appeal, etc. Defendant at the time of hearing before the justice denied his signature, but was not sworn, nor did he file any affidavit. A continuance was obtained by plaintiff for the purpose of proving defendant's signature, which was done at a subsequent hearing, at which defendant did not appear. Judgment having been entered, defendant appealed, and filed a transscript which showed the above facts. The Court upon motion struck off the appeal: Held, not to be error. Held, further, that if the note was signed by the defendant, he had no appeal because of the waiver, and that if the signature was a forgery it was his duty to have raised the question in a legal way. Error to the Common Pleas of Luzerne County. Appeal by Thomas Cawley from the judgment of a justice of the peace entered against him in favor of Paul Bohan. A rule having been taken by plaintiff to strike There is no waiver of the right to appeal until off the appeal, an affidavit was filed by plaintiff's the instrument which contains the alleged waiver counsel, alleging that "said case is an appeal from has been established by a trial of that issue. the judgment of a justice of the peace founded upon Shell v. McConnell, 1 Pearson, 27. a judgment-note with waivers; said note waived Foss v. Bogan, 92 Penna. 297. the right of appeal, which is set forth in the transcript, yet on demand of defendant the justice gave him a transcript, took bail, and received costs, which transcript the defendant has filed in court." This rule the Court made absolute, WoodWARD, J., saying: "The transcript of the justice in this case shows that judgment was entered in favor of the plaintiff and against the defendant on a judgment-note under seal, and with a waiver of the right to inquisition upon real estate, of the right to appeal, and of all exemption laws. It also appears from the transcript that the parties appeared before the justice on the 17th December, 1886, that the justice adjourned the hearing until the 21st upon the statement (not under oath) of the defendant, that he denied the signature to the note. On the 21st the plaintiff appeared but the defendant did not. The justice heard the evidence of the plaintiff as to the genuine character of the signature, and then entered judgment in favor of the plaintiff for the amount alleged to remain due and unpaid thereon. "It has therefore been ascertained by a Court of competent jurisdiction, after hearing the proofs and allegations of the parties, that the note in question was made by the defendant, and also that it contained a waiver of the right to an appeal. The defendant by his failure to appear at the hearing and either cross-examine the plaintiff or offer testimony in his own behalf, left to the justice no other course open than the one which he adopted in entering judgment for the plaintiff, and that judgment, by the terms of the note, is final and conclusive. (See Watson v. Welter, 91 Pa. St. 385; Foss v. Bogan, 92 Id. 296.) "The rule to strike off the appeal is made absolute." Defendant then took this writ, assigning the action of the Court for error. W. H. Hines, for plaintiff in error. As there was a controverted question of fact raised before the justice, to wit, the signing of the note by the defendant, and the amount still owing on the same, this must be submitted to a jury. Coal Co. v. Snowden, 42 Pa. St. 492. When the defendant denies that he signed the note, and the plaintiff swears he did, this raises a question of fraud, which must be tried by a jury. Riegel v. Wooley, 32 Pa. St. 227. Miles v. Lewis & Barrowman, 19 WEEKLY NOTES, 263. R. R. Co. v. Brydon, 7 Central Rep. 396. Every person against whom a justice renders judgment is entitled by common right to an appeal and a trial on its merits. a Rowen v. King, 25 Pa. 410. C. F. Bohan, for defendant in error. The maker of a note may, by his contract therein, waive the right of appeal, so as to be bound by the waiver. Prichard v. Denton, 8 Watts, 372. The transcript in this case shows the cause of action before the justice to have been on a judgment note, signed by the defendant, and containing a waiver of the right of appeal. This is conclusive, and cannot be supplemented or varied by parol evidence. Foss v. Bogan, 11 Norris, 296. defendant signed the judgment note in question, The justice's judgment, in effect, says that the and that it contained a waiver of the right of appeal, and that judgment now stands uncontra Idicted before this Court. This judgment is final and conclusive. The judgment of the justice became conclusive on all defences which might have been urged before its rendition. Calhoun v. Logan, 10 Harris, 49. Defendant has had his day in Court, and cannot have the facts in the case examined on a writ of error. Calhoun v. Logan, supra. May 7, 1888. THE COURT. The note upon which this suit was brought contained a waiver by the defendant of the right of appeal. He appeared before the justice upon the return day of the summons and denied his signature. He was not sworn, nor did he file any affidavit containing such denial. It was sufficient, however, to compel the plaintiff to obtain a continuance, for the purpose of proving the signature. This he did at the adjourned hearing, the defendant not appearing, and the justice gave a judgment for the plaintiff. It thus appears from the transcript of the justice that the defendant did not at any time make oath that his signature was a forgery, nor did he call a witness for that purpose. He has not raised in any legal way the question of the genuineness of his signature. His unsupported, naked assertion, not under oath, is not sufficient. When the opportunity to sustain his assertion was afforded he declined it, or at least neglected it. | G. R. Kinports was the owner in fee simple of He does not account in any manner for his con- certain real estate, situated partly in Clearfield duct in this respect. In a legal sense it cannot be County and partly in Cambria County. Upon said that there was a disputed question of fact that date, he entered into articles of agreement about the signature. If such disputed fact had with one Thomas Tozier, by the terms of which been fairly raised, we would have had a different he agreed to sell his land to Tozier for a conquestion before us. As it stands, it looks like a sideration amounting to $22,500. A portion of device to gain time, and an appeal, to which the this purchase-money was payable at ten, thirty, and defendant is not entitled. sixty days, and the amounts thus stipulated to be paid at these times were paid, leaving a balance of the purchase-money amounting to $16,500, which had never been paid. We are of opinion the Court below was right in striking off the appeal. If the note was signed by the defendant he had no appeal, because he had waived it; if a forgery, it was his duty to have raised that question in a legal way before he could claim the right of appeal. This he could not do by his mere assertion not under oath. Judgment affirmed. Opinion by PAXSON, J. Upon March 9, 1875, an action of ejectment was brought in the name of G. R. Kinports against Thomas Tozier, who was in possession of the tract of land, to compel a specific performance of this contract. This action of ejectment came on for trial January 22, 1878, at which time Jonathan Boynton obtained leave of Court to have his name entered as a co-plaintiff with G. R. Kinports, and on the same day a verdict was taken for the plaintiff in the ejectment against Tozier for the premises, to be released on the payment of $15,510, one day after date. This April 18, 1888. award became a final judgment, and Mr. Boynton was put in possession the 18th of April, 1878. TRUNKEY and STERRETT, JJ., absent. Jan. '88, 33. H. C. O. Kinports v. Boynton. Between the date at which the action of ejectJudgments-Scire facias to revive-Sale of lands ment was begun, and the date of trial, on under articles of agreement— Vendor's interest May 29, 1875, G. R. Kinports, by a writing duly in land so sold-Assignment thereof Judg- executed, assigned the purchase-money due him ment creditors-Lien of judgment on vendor's from Tozier, "together with all his interest and interest— When superior to unrecorded assign-legal estate in the said land, with right to pro ment. The interest which remains in the vendor of land by articles of sale, pending payment of the purchase money, is such an estate in land as may be conveyed or mortgaged, and is subject to the lien of a judgment recovered against the vendor. An assignment by the vendor of such interest as collateral security for a debt is a mortgage, which, unless recorded, is invalid as against a subsequent judgment creditor of the vendor without notice. ceed in his own name and right for the collection of the same by ejectment or otherwise," to John W. Williams, in consideration of the indorsement of certain notes amounting in all to a little over $11,000," to secure, indemnify, and protect the said John W. Williams against the said indorsement;" and upon the 14th of October, 1876, John W. Williams assigned all his interest in the said purchase-money, thus acquired from G. R. Kinports, to Jonathan Boynton, as a collateral re These assignments were never corded; but it was upon the interest thus acquired, that Boynton became a party to the above ejectment suit, and was placed in possession of the land. In a scire facias to revive the lien of such a judg-security. ment, brought against the vendor and such mortgagee as terre-tenant, the fact that the mortgagee had in the meantime recovered possession of the land by ejectment for non-payment of purchase-money is immaterial to prevent judgment of revival. On the trial of such a scire facias the plaintiff offered to show that the debt for which the judgment was entered was contracted by the defendant prior to the date of the mortgage: Held, that such evidence was admissible. Error to the Common Pleas of Clearfield County. Scire facias, by Porter Kinports against Gideon R. Kinports and Jonathan Boynton, terre-tenant, to revive and continue the lien of a judgment. Porter Kinports, plaintiff in this case, having a judgment note against G. R. Kinports, the defendant, bearing date July 28, 1876, due at one day from date, entered up the same on the 11th day of August, 1876, and subsequently on April 9, 1881, within five years from the date of the entry, issued this sci. fa. to revive the lien of that judgment. Boynton was named as terretenant in that writ. The plaintiff contended that G. R. Kinports had never parted with his legal title in the premOn the trial, before KREBS, P. J., the follow-ises, that he had such an interest and ownership ing facts appeared: On or before October 8, 1874, in the land as would be bound by the judgment The plaintiff offered to prove that the debt, for which the judgment note, dated July 28, 1876, was given, was contracted prior to the date of assignment of G. R. Kinports to Williams. Objected to. Objection sustained. Exception. (First assignment of error.) The plaintiff requested the Court to charge, inter alia, as follows: entered against him, after his sale to Tozier; | Kinports) judgment would attach to that interest that the assignments by himself to Williams and thus revested in him. It depended upon the by Williams to Boynton, were but collateral se- happening of a contingency which did not happen, curities for the payment of money, and, as such, therefore, Porter Kinports had no lien upon anywere in law but mortgages, and not being recorded thing except the naked legal title which remained were postponed to the lien of the judgment of in G. R. Kinports. He might have had a right Porter Kinports against G. R. Kinports, upon to pay those notes, or tender payment of them, which the scire facias issued. The defendant on and demand a conveyance to him, and thereby the other hand claimed that by the assignment have secured something upon his judgment to from G. R. Kinports to John W. Williams the which his lien would attach, but it is not shown whole of his interest in the premises passed, and or claimed that anything of the kind was done." that by reason thereof the judgment of Porter (Third assignment of error.) "We instruct you Kinports was no lien upon the land. as a matter of law under the evidence in this case and under the facts, that there was no lien acquired by his judgment further than that upon the naked legal title, and that stood to the use of John W. Williams, unless these notes were paid; they not having been paid, that assignment carries with it, in legal effect, that legal title, and that The Court charged, inter alia, as follows: legal title, we think, is vested by subsequent as"Now, gentlemen of the jury, it has been con-signment in Mr. Boynton. There was no title tended in this case, very ably and very earnestly, in G. R. Kinports against which the lien of this that this paper of the 29th May, 1875, in its judgment can be revived so as to give it legal legal incidents and effects, is a mortgage, and not effect. We instruct you under these facts and having been placed upon record, as required by circumstances, and under the law as we conceive the Act of 1820, known as the Recording Act, it to be, to find a verdict for the defendant." that therefore, it has all the infirmities of an un- (Fourth assignment of error.) recorded mortgage. Not having been placed upon record, and Mr. Kinports having put his judgment upon record, it has a prior and legal right as a lien upon this remaining alleged estate of G. R. Kinports. With this contention we find ourselves unable to agree. We do not think that the assignment of this purchase-money constitutes that instrument a mortgage. Nor such an instrument, as, if not recorded, attaches to it all the infirmities of an unrecorded mortgage." (Second assignment of error.) "At the time this judgment was entered, there was no remaining beneficial interest in G. R. Kinports. He had sold the land to Thomas Tozier; he held the legal title simply as trustee for him, and so far as he himself was concerned could use it to enforce (3) That the agreement or paper writing, the payment of the purchase-money, but when dated May 29, 1875, between G. R. Kinports the purchase-money was paid to him, he was and John W. Williams, was a conveyance of bound to convey. When he (Kinports) assigned the estate of said Kinports in said land, as a this purchase-money to John W. Williams, it security for, or an indemnity against the liability drew with it all the security that the legal title which said Williams incurred by indorsing the gave to G. R. Kinports, just as the assignment eight notes mentioned in said agreement, and was of a paper secured by a mortgage carries with it not an absolute, unconditional conveyance of said the mortgage, although it is not marked assigned estate or interest in said land by Kinports to at all. So that when this assignment was made Williams, and being a converance of said estate to Mr. Williams, whether it was made absolute, or interest in said land as security, it was in law or made to secure and indemnify him against the but a mortgage. Answer. "For answer to this payment of those notes, there remained no inter-point we refer to our general charge." (Sixth est in G. R. Kinports, on which this judgment of assignment of error.) Porter Kinports could attach, except the naked (2) That under the agreement of October 8, 1874, between G. R. Kinports and Thomas Tozier an estate in said land remained to the said G. R. Kinports, which was susceptible of being conveyed or mortgaged, and upon which the lien of a judgment against said Kinports would attach. Answer. That is true until the purchase-money was assigned on the 29th May, 1875, and from and after that date the judgment was a lien upon nothing but the naked legal title which stood to the use of Williams, and those claiming under him under these assignments. (Fifth assignment of error.) (4) That said agreement, assignment, or paper legal title, with the possibility that when those writing of May 29, 1875, never having been renotes were paid, the assignment would revert to corded, it was in law but an unrecorded mortG. R. Kinports, and in such an event, his (Porter | gage, and gave to the said John W. Williams, or |