missioner to take testimony and also renew-it avers will be properly applied. Should we omit the three small mortgages claimed by appellant to be without consideration, of which however there is no proof, we have the two judgments and the sum bid at the [1] Rule 78 of the court of common pleas sale, amounting to $93,307.96, due the bank. of Allegheny county provides that: "The testimony of witnesses to be used on the hearing of motions and rules to show cause shall be taken on reasonable notice before any justice of the peace or other competent authority and if deemed necessary a rule for the purpose may be entered of course by the prothonotary on application of either party and no witness shall be examined at bar without special order of the court." Rule 74 of the same court provides: For the taking of "depositions of ancient, infirm and going witnesses within five miles of the courthouse on twenty-four hours' notice or on four days' notice in other parts of Allegheny county, provided the party filed an affidavit of the facts necessary to entitle him to such rule." In taking the rule for depositions appellant's motion was apparently made under rule 74, instead of rule 78. Under the former, an affidavit is required which in this case was not furnished. That the court below in its discretion might waive strict compliance with the rule, if circumstances warrant, or continue the case and permit appellant to file a new rule, is well settled. Under the circumstances of this case, we cannot say the court abused this discretion either in the enforcement of its rules (Webster v. Monongahela River Consolidated Coal & Coke Co., 201 Pa. 278, 50 Atl. 964; American Structural Steel Co. v. Annex Hotel Co., 226 Pa. 461, 75 Atl. 669), or in refusing to further delay argument on the exceptions (Pringle v. Pringle, 59 Pa. 281; Commonwealth v. Ezell, 212 Pa. 293, 61 Atl. 930). [2-4] The third assignment of error refers to the action of the court below in refusing to set aside the sale. Inasmuch as there is no testimony in support of the exceptions, the question must be determined in view of the facts averred in the exceptions filed by appellant, the answer filed by the use plaintiff, and the replication thereto. The incumbrances against defendant's property ahead of appellant's judgment consist of a first mortgage of $55,000 which, with costs and expenses, is represented by the judgment of $62,500.41; a second mortgage represented by the judgment under which the sale was made amounting to $22,827; and three other mortgages of $10,000, $5,000, and $5,000, respectively-making a total of $105,327.41 incumbrances. Adding to this the sum of $7,980.55, the amount bid by the use plaintiff for the property, which represents the amount of actual costs of the proceeding and taxes against the property, makes the sum necessary to cover the use plaintiff's claim against the property $113,307.96. As against this amount there was received by the use plaintiff certain income from the properties, which proceeds Assuming appellant on a resale should bid the amount of $86,000, that sum is insufficient to cover the first and second mortgages held by the use plaintiff, and no advantage would result to appellant from such resale. A well-settled rule is that setting aside a sheriff's sale is within the discretion of the court below, and, in absence of manifest abuse of discretion, this court will not interfere. It is also definitely settled that inadequacy of price alone is not a sufficient reason for setting aside a sale. Stroup v. Raymond, 183 Pa. 279, 38 Atl. 626, 63 Am. St. Rep. 758; Chase v. Fisher, 239 Pa. 545, 86 Atl. 1094; Snyder v. Snyder, 244 Pa. 331, 90 Atl. 717. The judgment is affirmed. (256 Pa. 42) (No. 2.) WATKINS v. JUSTICE. (Supreme Court of Pennsylvania. Jan. 8, 1917.) APPEAL AND ERROR 478 PETITION FOR SUPERSEDEAS-STRIKING BOND-STATUTE. of court of common pleas in a case where the Where corporation appealed from judgment appeal did not operate as a supersedeas unless so directed by the court and failed to present the rules of the court and Act May 19, 1897 petition for order of supersedeas pursuant to (P. L. 67), the lower court did not err in striking appellant's bond from the record and in dismissing its rule to show cause why the appeal should not operate as a supersedeas. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2250.] Appeal from Court of Common Pleas, Allegheny County. Rule by use plaintiff to strike an appeal bond from the record in the case of C. B. Watkins, for the use of the German Savings & Deposit Bank, against William M. Justice, and rule by exceptant, the Ellwood Lumber Company, to show cause why the appeal should not operate as a supersedeas. Rule to strike exceptant's bond from the record made absolute, and rule to show cause why exceptant's appeal should not operate as a supersedeas dismissed, and exceptant appeals. Affirmed. Argued before BROWN, C. J., and MESTREZAT, MOSCHZISKER, FRAZER, and WALLING, JJ. George W. Flowers, of Pittsburgh, for appellant. W. W. Stoner and W. H. Lemon, both of Pittsburgh, for appellee. FRAZER, J. This appeal is by the appellant in the preceding case and from the action of the court below in striking from the record an appeal bond approved by the prothonotary. Upon the court dismissing the motion of appellant to appoint a commission- | ant, and this is true not only with respect to the er to take testimony and also overruling ex- things furnished, but those which it becomes the ceptions of appellant to the sheriff's sale, ex- duty of the servant to use in the course of his ceptant appealed and filed a bond in the sum of $1,000, which was approved by the prothonotary of the court of common pleas. The use plaintiff thereupon petitioned the court below to strike the bond from the record, and on the same date appellant entered a rule to show cause why its appeal should not operate as a supersedeas. These rules were argued together and the former made absolute and the latter discharged. From these orders the Ellwood Lumber Company, exceptant, appeals. The Act of May 19, 1897, P. L. 67, § 12, provides that in certain cases mentioned and all other cases "not herein otherwise provided for," which includes the case before us, an appeal "shall not operate as a supersedeas, unless ordered by the court below or the appellate court, or any judge thereof." Section 15 of the same act permits an appeal to be taken without security, providing however that in such case it shall not operate as a supersedeas. This section also provides that its terms shall not apply to a corporation appealing on its own behalf, and unless bail be given to operate as a supersedeas its appeal shall be quashed. Section 5 of the act requires bail to be entered in the court from which the appeal is taken, and section 17 gives that court power to make "such orders as to right and justice shall belong relative to the security offered or entered, either as to approval thereof, addition thereto or substitution therefor." Under the above sections of the act of 1897, and the rules of court, appellant was bound to present a petition for an order of supersedeas in accordance with the established practice set forth in the rules, and, not having done so, the court acted within its power in making the order appealed from, and in directing the bond to be stricken off as not having been entered in compliance with law. Judgment affirmed. employment. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 393.] 3. MASTER AND SERVANT 150(5)-MASTER'S DUTY-WARNING. of any change in the method or appliances whereIt is the master's duty to warn the servant by the dangers are increased. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 306.] 4. MASTER AND SERVANT 279(4)-ACTION EVIDENCE. FOR INJURY-NEGLIGENCE In a servant's action for damages, where it appeared that he had been sent for washing soda as on previous occasions, that it was his duty to chop the soda from a barrel, and that defendant's servant, without his knowledge, had substituted caustic soda for common washing soda, jury complained of, a verdict for plaintiff was a chip of which flew into his eye, causing the insustained by the evidence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 978.] Appeal from Court of Common Pleas, Allegheny County. Trespass by Mike Solomon against the Cudahy Packing Company to recover damages for personal injuries. Judgment for plaintiff, defendant's motions for a new trial and for judgment non obstante veredicto overruled, and defendant appeals. Affirmed. The facts appear in the following opinion by Haymaker, J., in the court of common pleas, sur defendant's motion for a new trial and for judgment n. o. v.: The reasons for a new trial are two: (1) The verdict is excessive; (2) the verdict is against the weight of the evidence. The defendant was in the wholesale meat business. The plaintiff had been employed only about one month and had no previous experience. One of his duties was to wash and scrub cars and a platform where meat was deposited in unloading cars. Previous to his injury he had been sent a number of times to defendant's spice room for common washing soda with which to wash and scrub. That room was kept locked and could be entered only by getting a key from some one in charge. The defendant substituted caustic soda for common washing soda a few days be fore the accident, with no notice to the plaintiff of the change. Both were obtained in the same way-by chopping it out of a barrel or drum. On the day of the accident plaintiff was admitted to the spice room by one Delmas, and was chopping caustic soda on the first occasion after the change, in the belief that it was the same as previously obtained, when some of the caustic soda was thrown into his eyes, resulting in the partial loss of his eyesight. Caustic soda is a compound of unslaked lime and carbonate of soda boiled together, forming a very strong compound that is very destructive to animal tissue. The accident caused: (1) The loss of five-sevenths of the vision of the right eye, which injury is progressing; (2) the loss of several months' wages; (3) the payment of considerable money for medical purposes; and (4) intense physical pain. It cannot be said that the verdict was excessive. Nor can it be said, in our present view of the case, that the verdict was against the weight of the evidence. Neither was pressed on the argument of the motion or in the brief of counsel. As to the motion for judgment non obstante any tool the master might have put in his hands with which to do his appointed work, and to direct the plaintiff to use caustic soda, without warning him of its dangerous character, was no less a negligent act than to have put into his hands without instructions a defective or dangerous tool, of the nature of which the servant had no knowledge. [4] Delmas denied that he had directed the plaintiff to chop the caustic soda from the barrel, and he testified further that he had warned the plaintiff to keep away, as he did not know what it was, but that plaintiff disobeyed the instruction. We instructed the jury that if they believed Delmas in that statement the plaintiff could not recover. Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, and FRAZER, JJ. John M. Reed and Dalzell, Fisher & Hawkins, all of Pittsburgh, for appellant. Meredith R. Marshall and Rody P. Marshall, both of Pittsburgh, for appellee. veredicto, we declined the point that "under the evidence and all the pleadings in the case the verdict must be in favor of the defendant." The defendant was in the wholesale meat business in the Wabash Building in the city of Pittsburgh. The cars containing meat were either carried or run on elevated tracks to the third floor of the building, where the contents were placed upon a platform. The plaintiff's work was to unload the cars, clean and scrub the platform and empty cars on the third floor, and deliver meat to various customers. On the same floor, and about 20 feet from the nearest point of the platform, was a small room, kept under lock and key, known as the spice room. Flagg, the superintendent of the sausage department, was the person ostensibly in charge of that room, and kept the key thereto in his room on the second floor. Flagg authorized Delmas to procure the key at all times, and the latter was the person practically in charge of that room and to whom employés applied when in need of any material from that room. Cain was the manager, had entire charge of the plant, knew that Delmas got the key, when necessary, from Flagg, and went to that room and either got therefrom or authorized employés to get therein what was necessary in the course of their employment, and Delmas was the man that he (Cain) generally saw in the spice room when necessary to furnish anything therefrom to the employés. It seems to have been well known to every one in authority about the plant that Delmas had practically the charge of the spice room, and it will not avail the defendant to invoke the fellow-servant rule, because it also appears that in other respects Delmas was a common laborer about the plant. He had control of the spice room and exercised superintendency over it; he directed what and how the employés should obtain materials therefrom. In exercising control and authority over that room he was, for the time being, and to that ex- An injunction will lie to enjoin interference tent, in the place of and exercising the same au- with or trespassing on property used for divine thority as Flagg, the acknowledged superintend- service, as the entire value of such property conent of one of the departments, his immediate su- sists in its free and undisturbed use and enjoyperior, and from whom he received orders. If ment for religious worship, and no more pecunthe directions or orders to the plaintiff at the iary damages furnish any compensation to a retime of the injury had come from Flagg, it could ligious society for repeated and constant acts of scarcely be said that he and plaintiff were fel- trespass upon its property and temporalities. low servants in that regard, and if Flagg delegated a part of his duties as superintendent to Delmas, and Delmas while discharging them negligently injured the plaintiff, it was a result happening in the course of superintendency, to be visited upon the employer or master. [1-3] Be that as it may, this verdict can well be sustained upon another ground of negligence alleged in plaintiff's statement, and supported by the evidence, and that is the negligence of the master in failing to exercise ordinary care and diligence in furnishing the servant with a reasonably safe place in which to do his work and to furnish reasonably safe instrumentalities of service. To use such care and furnish such instrumentalities is a personal and absolute duty that the master owes his servant, from the neglect of which, in case of accident, he cannot escape on the fellow-servant rule, and that applies to not only the things furnished, but those which it becomes the duty of the servant to use in the course of his employment. It is equally the master's duty to warn the servant of any change in the method or appliances whereby the dangers are increased. These principles are too well settled to require a citation of any of the numerous authorities, either text-books or reports. Therefore it becomes wholly immaterial in this case whether the alleged negligence was that of a coemployé or a vice principal; for the act of the subordinance constituting the negligence charged related to a positive duty of the master from which he cannot relieve himself except by performance. The washing material furnished the plaintiff was an instrumentality just as much as PER CURIAM. The judgment in this case is affirmed on the opinion of the learned court below overruling the motions for a new trial and for judgment non obstante veredicto. (256 Pa. 14) ASHINSKY et al. v. LEVENSON. (Supreme Court of Pennsylvania. Jan. 8, 1917.) 1. INJUNCTION 34-SUBJECT-MATTER-INTERFERENCE WITH SYNAGOGUE PROPERTY. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 74-81.] 2. RELIGIOUS SOCIETIES 7- RIGHTS OF MEMBER-DEPRIVATION OF PROPERTY. A member of a religious congregation, and enter the synagogue and by unlawful and scana pewholder in its synagogue is not authorized to dalous conduct deprive the congregation of the use of the property for public worship, and prevent the rabbi and congregation from making use of it for that purpose. cieties, Cent. Dig. §§ 18-31.] 3. RELIGIOUS SOCIETIES 14-TRESPASS ON There is no presumption that the laws of a religious congregation oust the jurisdiction of the civil courts to remedy an interference with the use of and a trespass upon its property; and, if invoked by either side, they must be established by proof. [Ed. Note.-For other cases, see Religious Societies, Cent. Dig. §§ 100-102.] 4. INJUNCTION 94-USE OF RELIGIOUS PROPERTY-MOLESTING RABBI In a suit in equity, brought by a Jewish rabbi and his congregation to enjoin defendant, a member of the congregation and a pewholder in its synagogue, from entering into the synagogue or premises of the congregation and from insulting, molesting, approaching, accosting, or in any way speaking to the rabbi, defendant contended that the laws of the congregation and of the Jew ish church ousted the jurisdiction of the civil [1] The facts are not in dispute, and a court from remedying such injury, but offered no very brief consideration of the case will proof of such laws, and also contended that plaintiff had an adequate remedy at law, and show that the court was clearly warranted that equity had no jurisdiction, and the lower in granting the first prayer of the bill and court awarded an injunction as prayed for in enjoining the defendant from entering into the bill. Held, that an injunction was proper the synagogue or on the premises of the conly granted, but that the decree will be modified by striking therefrom that part thereof enjoining gregation. The congregation is a corporadefendant from insulting or molesting the rabbi tion for the purpose of the support of pubnear the premises of the synagogue or in a public worship according to the faith, doctrine, and usage of the orthodox Jewish religion. lic street. 103-JURISDICTION-INADEQUATE REMEDY AT LAW-USE OF PROPERTY. While equity is concerned only with questions which affect property and not with criminal or illegal action, yet where property rights are involved, a series of even criminal acts will not prevent equity from restraining them if the remedy at law is inadequate. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 176, 177.] Appeal from Court of Common Pleas, Allegheny County. Bill in equity for injunction by Aaron M. Ashinsky and Beth Jacob Congregation against Elias E. Levenson. Decree for complainants, and defendant appeals. Modified [Ed. Note.-For other cases, see Injunction, The defendant on numerous occasions during Cent. Dig. § 165.] several years prior to filing the bill entered 5. INJUNCTION the synagogue, called the rabbi vile names, caused great disorder, and created such disturbances during public worship as to seriously interfere therewith and to prevent religious services from being conducted. Members of the congregation frequently requested him to behave himself properly in the synagogue, but their efforts were in vain. These and many other acts of like character during at least the last three years disclosed the intention of the defendant to prevent by his persistent and continuous illegal conduct the plaintiff congregation from using their property for religious worship for which it was procured and is now held. Unless a chancellor protects the plaintiff, it is clear that the congregation will be deprived of the use and enjoyment of its property. In such case, there is no adequate remedy at law for the unlawful acts of the defendant which have been constantly recurring and threatening to continue, and equity clearly has jurisdiction, as declared in numerous decisions of this court, to entertain the bill and enter such decree as will effectively protect the congregation in the use and enjoyment of its property. In Sparhawk v. Union Passenger Ry. Co., 54 Pa. 401, 421, Thompson, J., delivering the opinion, says: and affirmed. The court on final hearing awarded an injunction restraining defendant from entering into the synagogue or premises of the Beth Jacob Congregation, and from insulting, molesting, approaching, or accosting or in any way speaking to Rabbi A. M. Ashinsky. Defendant appealed. Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, and FRAZER, JJ. F. C. McGirr, of Pittsburgh, for appellant. Charles H. Sachs, of Pittsburgh, for appellees. "Injury to property, with reference to its reasonable and ordinary use, by continuous hurtful acts, constitutes a nuisance undoubtedly, and may properly be the subject of equity jurisdiction, not only to redress the injured party by restraining the injurious acts, but in some cases by compelling the wrongdoer to make amends for the injury done. In such a case the applicant for redress by injunction must establish a clear case sequence of the continuance of such acts." of 'irreparable injury' likely to ensue as the con MESTREZAT, J. The learned court below has found and clearly stated all the facts. The plaintiffs are Rabbi Aaron M. Ashinsky and the Beth Jacob Congregation, and the defendant is a member of the congregation which worships in a synagogue owned by it, situated at the southwestern corner of Epiphany and Townsend streets, in the city of Pittsburgh. The bill prays that an injunction be granted enjoining and restraining the It is well settled that a series of acts aldefendant (1) from entering into the syna- though criminal will not prevent equity from gogue or premises of the Beth Jacob Congre- restraining them if the remedy at law is ingation; and (2) from insulting, molesting, adequate. Klein v. Livingston Club, 177 Pa. approaching, accosting, or in any way speak- 224, 228, 35 Atl. 606, 34 L. R. A. 94, 55 Am. ing to Rabbi A. M. Ashinsky. The learned St. Rep. 717; Flaccus v. Smith, 199 Pa. 128, court entered a decree restraining the de- 48 Atl. 894, 54 L. R. A. 640, 85 Am. St. Rep. fendant from entering into the synagogue or 779; 22 Cyc. 775. In Wisconsin it has been upon the premises of the Beth Jacob Congre- distinctly ruled that an injunction will lie gation and from "insulting or molesting Rab-to enjoin interference with or trespassing on bi A. M. Ashinsky in the synagogue or on or property used for divine service. Trustees of near the premises thereof, or in the public the German Evangelical Congregation of New streets." No question as to the form or suf- Elm v. Hoessli, 13 Wis. 348. The reason ficiency of the pleadings is raised on the for not putting the plaintiff to his action at record. law, and for granting equitable relief in such cases is stated by the learned court as follows (13 Wis. 355): "For would any mere pecuniary damages furnish any compensation to a religious society for repeated and constant acts of trespass upon its property and temporalities? Most clearly not. The entire value of such property consists in its free and undisturbed use and enjoyment for religious worship. Considering, therefore, the nature of this property, the use and purpose to which it is dedicated, and mischief arising from acts of trespass upon it, and the insufficiency of the ordinary legal remedies, we must say that, in our opinion, the complaint states a proper case for an injunction." [2, 3] If the jurisdiction of the court was ousted and the defendant should have been dealt with by the laws of the church, as his counsel claims, he should have shown the existence of such laws. There is no presumption that such laws exist, and, if invoked by either side of the controversy, they must be established by proof. Tuigg v. Treacy, 104 Pa. 493. We cannot assent to the suggestion of the defendant's counsel that, as the defendant is a member of the congregation and a pewholder, the decree enjoining him from entering the synagogue is, in effect, pronouncing a sentence of excommunication. So far as the record discloses he is still a member of the congregation, and the decree does not affect him as such. But this fact does not authorize him to enter the synagogue and by unlawful and scandalous conduct deprive the congregation of the use of the property for public worship, and thereby prevent the officiating rabbi and the congregation from making use of it for that purpose. His membership does not confer authority upon him to violate the laws of the church and of the commonwealth. 2. CORPORATIONS 387(4) — ACTIONS — DEFENSES-ULTRA VIRES. commodation indorser of a promissory note, and, Where a brewing company became an achaving paid the note, sought to require payment of a prior indorser, the defense that plaintiff's action in indorsing the note was ultra vires that pelled, and that for that reason it had no right payment by plaintiff could not have been comto require payment of defendant was without merit; the payment of the note by plaintiff in no way prejudiced defendant or affected his liability, and the court properly directed a verdict for plaintiff. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 1552.] Appeal from Court of Common Pleas, Allegheny County. Assumpsit on a note by the Hazelwood Verdict for plaintiff for $2,938 by direction of Brewing Company against E. E. Siebert. the court, and judgment thereon, and defendant appeals. Affirmed. Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, MOSCHZISKER, FRAZER, and WALLING, JJ.. N. B. Madden and John N. Piatt, both of Pittsburgh, for appellant. H. R. Birmingham and S. S. Robertson, both of Pittsburgh, for appellee. POTTER, J. [1] The plaintiff in this case was indorser upon a promissory note, upon which the defendant was a prior indorser. Being called upon to make good its indorsement, the plaintiff paid the note, and in turn [4, 5] We think the learned court erred in enjoining the defendant from insulting or molesting the rabbi near the premises of the synagogue, or in the public streets, and to that extent the decree must be modified. If the rabbi is insulted or molested by the defendant, the law provides an adequate rem-required payment by defendant, which being edy, and he must resort to it for his protection. The legal remedies for such offenses are well understood, and are constantly invoked by the wronged party. Equity will not enjoin the commission of the alleged offense, as is well settled by all the authorities. Mr. Bispham (Bispham's Equity [9th Ed.] p. 64) says: "Equity is concerned only with questions which affect property, and it exercises no jurisdiction in matters of wrongs to the person or to political rights, or because the act complained of is merely criminal or illegal" (citing Sparhawk v. Union Passenger Ry. Co., 54 Pa. 401). The decree must therefore be modified by striking therefrom that part thereof enjoining and restraining the defendant from insulting or molesting Rabbi Aaron M. Ashinsky near the premises of the synagogue, or in the public streets. As thus modified, the decree is affirmed. refused, this suit was brought. The defendant sought to evade liability upon the ground that the plaintiff was an accommodation indorser, and that its action as such was ultra vires, and payment by plaintiff could not have been compelled, and for that reason it had no right to recover here. The court below held that the defense suggested was without merit, and that the payment of the note by the plaintiff in no way affected the liability of the defendant, as, in any event, he was liable to prior holders. With this conclu sion we entirely agree. The plea of ultra vires is not to be interposed by a stranger to the contract. To entitle the defendant to raise this question it must appear that some right of his has been invaded by the act of which he complains. [2] The defendant was unquestionably liable to other subsequent holders of the note, |