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upon your own judgment from that view. The
law does not permit that. You are only permit-
ted to view the land that you may the better
understand the testimony. The value of the
land you are to ascertain from the witnesses.
Whatever assistance a view may have been to
you in adopting a value, or in giving credit to
the witnesses, you are entitled to look at and
consider, * * and, after you have weighed
all the evidence, aided by your own view of the
premises, you are to give the plaintiff * *
compensation,
if you find it injured."
On appeal we said that we saw no error
in these instructions, and added:

*

*

"It was never intended that the view of the jury should be substituted for the evidence, and that they should make up their verdict from the view in disregard thereof. The object of the view is, as was correctly said by the learned judge, to enable them the better to understand the testimony."

In Shano v. Fifth Ave. & High St. Bridge Co., 189 Pa. 245, 247, 42 Atl. 128, 129 (69 Am. St. Rep. 808), we said:

"The jurors had examined the property, and from what they saw and knew, as well as from the testimony of witnesses, they were to form their own judgment; the expert testimony was an aid only in enabling them to reach a conclusion."

In Gorgas v. Philadelphia, Harrisburg & Pittsburgh R. R. Co., 144 Pa. 1, 13, 22 Atl.

715, 716, we stated:

"The true rule in such cases is believed to be that the jury in estimating the damages shall consider the testimony as given by the witnesses, in connection with the facts as they appeared upon the view, and upon the whole case, as thus presented, ascertain the difference between the market value of the property immediately before and immediately after the land was taken."

Finally, in Roberts v. Philadelphia, 239 Pa. 339, 344, 345, 86 Atl. 926, 928, no testimony was offered by the defendant to meet the evidence of the plaintiff's witnesses as to the character and value of the property in controversy, yet the jurors were instructed in such a manner that on appeal we were led

to say:

"The jury could only have understood from this instruction that, having seen the premises for themselves, they were at liberty to substitute what they there saw for the evidence in the case."

We held that this was error, citing Flower v. Balto. & Philadelphia R. R. Co., supra, and Hoffman v. Bloomsburg & Sullivan R. R. Co., 143 Pa. 503, 512, 22 Atl. 823, and observed: "The true rule * is that the jury may resort to the knowledge acquired by a view of the premises only for the purposes of understanding the testimony of the witnesses and of determining the relative weight of conflicting testimony as to the value of the property."

ELDER v. ELDER.

(256 Pa. 139)

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(Supreme Court of Pennsylvania. Jan. 8, 1917.) 1. HUSBAND AND WIFE 48(1) WIFE'S DEED TO HUSBAND-VALIDITY-STATUTE. Prior to Act June 3, 1911 (P. L. 631), relating to married woman's conveyances to her husband, her deed to her husband was absolutely void because of her inability to divest her title, and because of the incompetency of the grantee to take.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 242, 247, 248.]

2. CONSTITUTIONAL LAW 278(7)—HUSBAND AND WIFE 48(1)-WIFE'S INVALID CONVEYANCE-VALIDATION-RETROACTIVE STAT

UTE.

A married woman's invalid conveyance to her husband prior to Act June 3, 1911 (P. L. 631), was not validated by section 2 thereof, which is retrospective in effect, and would take her property and transfer it to her husband, in violation of Const. art. 1, § 9, as taking her property without due process of law.

Law, Cent. Dig. § 924; Husband and Wife, [Ed. Note.-For other cases, see Constitutional Cent. Dig. §§ 242, 247, 248.]

Appeal from Court of Common Pleas, Clarion County.

deed by Sarah J. Elder against W. F. Elder. Bill in equity for the cancellation of a Decree for plaintiff, and defendant appeals.

Affirmed.

The facts appear in the following opinion of Sloan, P. J., on hearing on bill and an

swer:

This case comes up on bill and answer. The material averments in the bill allege that the plaintiff on March 27, 1899, executed to defendant, her husband, a deed for two certain tracts of land in Clarion township, containing 50 acres of land, and that at the time of the execution of the defendant, W. F. Elder, who did not join the deed she was a feme covert, the wife of with her in the execution of the said deed. The prayer is for an order of court rescinding and declaring void and of no effect the deed mentionthe case heard on bill and answer. ed. Answer being filed, issue was joined, and

"That this deed is absolutely void is the well settled law of this state because of the inability of the grantor to divest her title, and also of the incompetency of the husband to take." Wicker v. Durr, 225 Pa. 305, 74 Atl. 64; Alexander v. Shalala, 228 Pa. 297, 77 Atl. 554, 31 L. R. A. (N. S.) 844, 139 Am. St. Rep. 1004, 20 Ann. Cas. 1330. Whatever rights the defendant now has, if any, to the land mentioned in the bill, bly of June 3, 1911 (P. L. 631), which provided he must have acquired under the act of Assemas follows: "All conveyances of real estate heretofore made by any married woman to her husband, which have been duly signed, acknowledged, and delivered by her, are hereby validated and made good in law."

It

The defendant contends that under this act of assembly the conveyance to him is validated, and now vests in him the title to the property. is very evident from the reading of the act of assembly that it was the plain intent of the law to be retroactive in its effect, and the question now is: Does the act of assembly contravene any constitutional rights of the plaintiff?

When the rule thus announced is kept in mind, it is apparent that the record brought before us by the appellant's assignments shows no reversible error, either in the matter now under discussion or in any other re- It was said by Sharswood, J., in Palairett's spect. Appeal, 67 Pa. 479, 485, 5 Am. Rep. 450: The assignments are all overruled, and the self unconstitutional, unless so far as it has an "Retrospective legislation is certainly not in itjudgment is affirmed. effect prohibited by the fundamental law. If,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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In Buchanan v. Corson et al., 51 Pa. Super. Ct. 558, 560, it is said, speaking of the deed of a married woman: "There can be no doubt that the deed mentioned was absolutely void. It conveyed nothing. It effected no change whatever in the title to the land."

against M. M. Kann. Rule for judgment for
want of a sufficient affidavit of defense made
absolute, and defendant appeals. Affirmed.

in the common pleas by Shafer, P. J. :
The facts appear in the following opinion

Rule for judgment herein was heard on a former argument list, and the rule discharged with out an opinion. Upon petition of the plaintiff a reargument was ordered as to the part of the rule by which plaintiff claims judgment for a part of his claim; the original rule having been for the whole of the claim and in the alternative for a part thereof.

The action is founded upon a contract made [1,2] This being the uncontroverted law of between the parties plaintiff and defendant in the land, then the deed from Mrs. Elder to the 1899, by which the defendant assumed 50 per defendant was up to June 3, 1911, absolutely cent. of all moneys that the plaintiff had advoid and of no more force and effect than a vanced to a certain company, with interest blank piece of paper. The title of the land in thereon. In March, 1912, the plaintiff sent to controversy was up to that date vested in the the defendant an account, a copy of which is atplaintiff, who was the absolute owner under the tached to plaintiff's claim and marked Exhibit protection of the law, which secures to every cit-B, together with a letter asking the defendant to izen his or her property. Can the act of assem- state how he wished to treat the matter of the bly then strike down this right, and divest her account. The defendant answered the letter in of her property, and without her consent trans- April, 1912, acknowledging receipt of the ac fer it to another? This would be doing the very count and inclosing $1,000 to apply on the printhing that Sharswood, J., said in Palairett's Ap- cipal, and adding: "Referring to the statement peal cannot be done. It would take the property above mentioned, the only thing that I wish you of one and transfer it to another "without due to correct in the matter, that in place of applyprocess of law." ing the $4,000 paid you in 1907 and 1908 to interest, I wish the same to be applied to principal. I shall endeavor to keep paying on the principal and on interest to the best of my ability."

We are of the opinion that the property of the plaintiff cannot be affected by the act in this case, and that she is entitled to the relief prayed

for.

The court awarded the relief prayed for. Argued before BROWN, C. J., and MES TREZAT, POTTER, STEWART, MOSCHZISKER, FRAZER, and WALLING, JJ.

George F. Whitmer, of Clarion, for appellant. John S. Shirley, Maffett & Rimer, and Geary & Hindman, all of Clarion, for appel

lee.

PER CURIAM. The decree in this case is affirmed, at appellant's costs, on the opinion of the learned chancellor below directing it to be entered.

(256 Pa. 103)

KANN v. KANN.

(Supreme Court of Pennsylvania. Jan. 8, 1917.) 1. CONTRACTS 214- CONSTRUCTION-TIME FOR PAYMENT.

An agreement to pay money, without more, is an agreement to pay on demand. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 980-995.]

AFFIDAVIT

2. ASSUMPSIT, ACTION OF 20
OF DEFENSE-SUFFICIENCY.
An affidavit of defense, in an action of as-
sumpsit, which admitted that the amount sued
for was due, but alleged that some time after the
original contract the plaintiff agreed that the
balance owing him could be paid whenever de-
fendant was able to do so, and that there was no
specific time agreed upon for payment, was in-
sufficient, especially when such agreement was
without consideration.

[Ed. Note.-For other cases, see Assumpsit, Action of, Cent. Dig. §§ 100-116.]

Appeal from Court of Common Pleas, Allegheny County.

Assumpsit for money owing by W. L. Kann

The affidavit of defense sets up certain matters in the account which do not affect the item now in question, but after stating the one-half of the principal account which was originally owing as $7,033.11, and crediting the payments according to his view of the matter, it is stated that the balance owing plaintiff is $6,555.59. As to this sum defendant says that, while it is owing to the plaintiff, it is not due, "for the reason that, a short time prior to the year 1912, plaintiff agreed with the defendant that the balance owing to plaintiff from defendant could be paid felt that he was able to do so, and that there by defendant to plaintiff whenever defendant was no specific time agreed upon for the payment of the balance owing, and that defendant was to have the right to repay same at his convenience," and then he avers his inability to pay at the present time.

[1, 2] The only question in the case, therefore, is whether, under the terms of the original con

tract and the legal effect of the agreement set up by defendant, this sum is due or not. The Contention of the defendant is that the original contract, made in 1899, by which he agreed to pay one-half of the moneys advanced, was an agreement to pay within a reasonable time; and, whether the time from 1899 until the present time is a reasonable time in which the money is to be paid is a matter to be determined only by a jury. He does not himself say that the time derstand it, that the agreement, made in 1912, is not reasonable. He also contends, as we unto pay when he should be able to do so, is binding, and puts off the payment until he shall be able to make it. Defendant's counsel has cited

a number of cases in which it was held that, when no time was fixed for the doing of some particular act, it was to be done in a reasonable time; but he has cited no case in which it was held that an agreement to pay money, in which no time was fixed for payment, meant a payment in a reasonable time.

form that an agreement to pay money, without On the contrary, the cases appear to be unimore, is an agreement to pay it on demand. But, even if the contract did mean that he was

to pay at a reasonable time, it seems to us that he ought to allege that the time in which he is called on to pay is not such. As to the agreement made in 1912, or shortly before, we fail to see how that can avail the defendant, as there is no consideration for it. Defendant's counsel has cited a number of cases in regard to the promise to pay when able; but these are all cases of where the action is founded on the promise itself, and not upon the previous duty to pay it. We are therefore of opinion that the affidavit of defense as to this item is insufficient, and the rule is made absolute as to the item of $6,555.59.

Judgment for plaintiff for $6,555.59. fendant appealed.

De

Argued before BROWN, C. J., and MESTREZAT, MOSCHZISKER, FRAZER, and WALLING, JJ.

Leonard S. Levin, of Pittsburgh, for appellant. Edward Schreiner, of Pittsburgh, for appellee.

PER CURIAM. The judgment in this case is affirmed, on the opinion of the learned president judge of the court below, making the rule for it absolute.

(256 Pa. 77)

WATTERSON v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. Jan. 8, 1917.) 1. MASTER AND SERVANT 78-RELIEF DEPARTMENT-ACTION FOR BENEFITS-DEFENSE -SUFFICIENCY.

In assumpsit by the widow of a railroad employé against the company for benefits from its relief department, of which deceased had been a member, an affidavit of defense which sought to deny plaintiff's right to recover under a regulation of the department that, if any claim should be presented, or suit brought against the company for damages on account of injury or death of a member, payment of benefits should not be made unless such claim should be withdrawn or such suit discontinued before the trial or decision rendered therein, and that any verdict or judgment rendered in favor of either plaintiff or defendant should preclude any claim upon the relief fund was insufficient, where, although plaintiff had instituted a suit in trespass against the defendant for damages for her husband's death, a compulsory nonsuit was entered at the close of her case, and was taken off the next day, and a voluntary nonsuit entered nunc pro tune by leave of court.

2. MASTER AND SERVANT 78-RELIEF DEPARTMENT-DEFENSE TO MEMBER'S ACTION -CONSTRUCTION.

The fair meaning of such regulation was that only a final disposition of any action brought should be a bar to a recovery on the relief certificate, and the voluntary nonsuit was in the nature of a discontinuance putting plaintiff in the position of one who had not instituted any action, and hence did not bar her

recovery.

perior Court reversed, and judgment of the common pleas court affirmed.

Argued before BROWN, C. J., and MESTREZAT, POTTER, MOSCHZISKER, and WALLING, JJ.

C. E. Harrington and Harry C. Golden, both of Kittanning, for appellant. Orr Buffington and O. W. Gilpin, both of Kittanning, for appellee.

BROWN, C. J. [1, 2] Thomas F. Watterson, the husband of the appellant, was killed in a railroad accident while in the employ of the defendant company, and she brought an action in trespass against it to recover damages for his death. After she had closed her testimony, the defendant moved for judgment of nonsuit, and its motion was thus disposed of by the trial judge:

"While we regret that this lady is unable to opinion, it is our duty to grant a compulsory recover for the loss of her husband, yet, in our nonsuit, but we will give leave to the plaintiff, at any time before final determination of this question, to petition the court for leave to enter a voluntary nonsuit; so that disposes of the case.

On the following day, on motion of plaintiff's counsel, the court made the following order:

"A voluntary nonsuit is now entered nunc pro tunc this 18th day of November, 1911, as of the date of November 17, 1911, and the compulsory nonsuit heretofore granted is now taken off."

Subsequently this action was brought by the appellant to recover benefits from the relief department of the defendant, of which her husband had been a member. Section 58 of the regulations of that department is as

follows:

"Should claim be presented or suit brought against the company, or against any other corporation which may be at the time associated therewith in administration of the relief departments, in accordance with the terms set forth in regulation No. 6, for damages on account of injury or death of a member, payments of benefits from the relief fund on account of such injury or death shall not be made unless such claim shall be withdrawn or such suit shall be discontinued before trial thereof or decision rendered therein. Any compromise of such sion rendered in favor of either plaintiff or declaim or suit, or any verdict, judgment, or decifendant in such suit, shall preclude any claim such injury or death." upon the relief fund for benefits on account of

In its affidavit of defense the railroad com

pany denied the right of the plaintiff to recover because she had brought an action against it for her husband's death, which, it averred, had not been discontinued before the

Appeal from Court of Common Pleas, Arm- trial thereof or decision rendered therein. strong County.

Action by Ada L. Watterson against the Pennsylvania Railroad Company. From a judgment of the superior court reversing a Judgment of the common pleas court for plaintiff for want of a sufficient affidavit of defense, plaintiff appeals. Judgment of Su

On a rule for judgment for want of a sufficient affidavit of defense the lower court held that the action in trespass had not been prosecuted to judgment or decision in favor of the defendant, as it contended, and directed judgment to be entered against it, for the reason that the voluntary nonsuit suffered

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

by the plaintiff, with the court's leave, was a discontinuance of the suit within the terms of the regulations of defendant's relief department. On appeal to the superior court this judgment was reversed, that court being of the opinion that, when the lower court entered the compulsory nonsuit, it “definitely decided that the plaintiff could not recover." Watterson v. Pennsylvania Railroad Co., 64 Pa. Super. Ct. 205. The correctness of this ruling is the sole question before us.

The institution of the action in trespass was not in itself a bar to the right of the appellant to recover in this proceeding. Section 58 of the regulations of the relief department of appellee contemplates the bringing of such an action, and it becomes a bar to a right to recover on a relief certificate only after "trial thereof or decision rendered therein." That the fair meaning of these words is a final disposition of the case is apparent from what immediately follows them:

"Any compromise of such claim or suit, or any verdict, judgment, or decision rendered in favor of either plaintiff or defendant in such suit, shall preclude any claim upon the relief fund for benefits on account of such injury or death."

There was no compromise or verdict in the first suit, nor was there a final judgment or decision therein. The entry of the compulsory nonsuit was not a definite decision that plaintiff could not recover, and it was properly not so regarded by the trial judge; for he gave leave to the plaintiff to ask permission to suffer a voluntary nonsuit at any time before the final determination of the question of the right of the defendant to the compulsory nonsuit.

that case is conclusive in this. Hostetter v. Kaufman, 11 Serg. & R. 146.

In reversing the court below the Superior Court relied upon two of its own cases, Snyder v. Penna. R. R. Co., 49 Pa. Super. Ct. 111, and Rotonti v. Penna. R. R. Co., 49 Pa. Super. Ct. 595. Neither case is analogous. In the first there had been a nonsuit, which the court below refused to take off, and from this refusal no appeal was taken; in the second there was a compromise of the action of trespass brought by the widow of the deceased.

In his opinion, holding that the appellant was entitled to judgment for want of a sufficient affidavit of defense, the learned president judge of the common pleas said the following of the first action, which we now approve:

"We are of the opinion that the record now stands as if a voluntary nonsuit were suffered in the first instance, that the court had not released its grasp upon the question, but conditionally only granted a compulsory nonsuit, which with the leave and order of court was eliminated, and in its place was entered the voluntary nonsuit suffered by plaintiff. The voluntary nonsuit must be considered as taken at once, without the intervention of a day, while the question was open, before the court, at the conclusion of plaintiff's testimony, because such is the effect of the nunc pro tune tiff suffered a voluntary nonsuit, and that the order. Holding, therefore, as we do, that plainrecord so shows, what was the effect thereof? In our opinion, the effect was the same as if plaintiff had filed a discontinuance of the action. In other words, that plaintiff was in the position of one who had not instituted an ac tion, and that she must be regarded now as being voluntarily out of court, and as not having such is the effect of a discontinuance of a suit instituted the said action of trespass. or action at law will hardly be disputed, and we are of the opinion that the sufferance of a voluntary nonsuit has a like effect."

That

The judgment of the Superior Court is re

The right of the plaintiff was to move to strike it off, and it would not have become a final judgment against her until the court had formally refused to disturb it. The reversed, and that of the common pleas is affusal to take off a nonsuit, and not the entry firmed. of it, is the final judgment from which an appeal will lie. Haverly v. Mercur, 78 Pa. 257; Scranton City v. Barnes, 147 Pa. 461, COMMONWEALTH ex rel. FEY v. SCHOOL 23 Atl. 777; Scanlon v. Suter, 158 Pa. 275, 27 Atl. 963; Bausbach v. Reiff, 237 Pa. 482, 85 Atl. 762.

The compulsory nonsuit was still under the control of the court when the plaintiff moved to have it taken off and to suffer a voluntary nonsuit nunc pro tunc under the leave given her. Her motion was allowed, and the record shows a voluntary nonsuit suffered, by leave of court, as of the time she closed her case; and this voluntary nonsuit was in the nature of a discontinuance before there was any final judgment in the case allowed by the trial judge, who still had control of it. There was a voluntary withdrawal by the plaintiff of the action which she had instituted. No appeal was taken by the defendant from the action of the court in permitting the voluntary nonsuit to be suffered, even if an appeal could have been availing; and the record in

(256 Pa. 50)

BOARD OF SCHOOL DIST. OF BOROUGH OF DUQUESNE et al. (Supreme Court of Pennsylvania. Jan. 8, 1917.) 1. TAXATION 546-TAX COLLECTOR-VACANCY IN OFFICE-STATUTE.

The power to fill a vacancy in the office of tax collector is vested by Act June 25, 1885 (P. L. 187), in the courts of quarter sessions, and section 547 of the School Code of May 18, 1911 (P. L. 309, 342), conferring like authority upon the school board, is merely supplementary thereto; the appointment by the school board being in any event temporary for the current year only.

Cent. Dig. 88 1019-1040.] [Ed. Note.-For other cases, see Taxation,

2. TAXATION

550-TAX COLLECTOR-Va⚫

CANCY-CERTIFICATE.

One appointed to fill a vacancy in the office of tax collector of a borough by the court of quarter sessions under the Act of 1885 (P. L. 187), and who has complied with all the conditions of such act and has tendered the school board of the borough an additional bond with

sufficient sureties in the entire amount of the school tax levied, is entitled to have the tax duplicate of the school district of such borough certified to him for collection, where the school board has not elected or appointed a person to collect school taxes until after his appointment, and may enforce his right to receive such certificate by mandamus.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. 88 1051, 1052, 1054, 1055, 1066, 1067.J

plicate. Fey demurred to the answer but the court below overruled the demurrer and en tered judgment for the respondent the school board. In Black v. Duquesne Borough School District, 239 Pa. 96, 101, 86 Afl. 703, 705, we said:

Appeal from Court of Common Pleas, Al- quent statutes. This law was in effect in the legheny County.

Petition for mandamus by the Commonwealth of Pennsylvania, on relation of Edward H. Fey, against the School Board of the School District of the Borough of Duquesne, a school district of the third class of Pennsylvania, W. C. Libengood, and others, officers and members of such school board. Judgment for respondents, on the overruling of a demurrer to their answer, and relator appeals. Reversed.

"Prior to the act of 1911, school taxes in boroughs and townships were collected by tax collectors elected under the act of 1885, which act in some particulars was amended by subseboroughs and townships of the commonwealth It therefore follows that unless the act of 1885, at the time of the approval of the school code. in so far as it relates to the collection of school taxes, was repealed by the school code, it still remains the law. There is no express repeal, nor in our opinion is there a repeal by implication. The school code contains no general provisions for the election of tax collectors, and, after an examination of all the sections relating below that the evident intention of the Legisto this subject, we agree with the learned_court lature was to leave undisturbed the method of collecting taxes in force at the time of its adop

Argued before BROWN, C. J., and MES- tion."
TREZAT, POTTER, FRAZER, and WAL-
LING, JJ.

And further on it was said:

Samuel Milliken, of Pittsburgh, for appel-court below that the school code was not inlant. W. M. Ewing, of Pittsburgh, for appellees.

"We fully concur in the view expressed by the tended to disturb the election of tax collectors and the collection of school taxes as provided in the act of 1885."

POTTER, J. [1] As stated by counsel for [2] Section 547 of the school code authorappellant, the question here involved is izes a school board to appoint a tax collector whether one appointed tax collector of a for the year only when there is a vacancy. borough, by the court of quarter sessions, un- It does not interfere with the power of apder the provisions of the Act of June 25, 1885 pointment vested in the court of quarter ses(P. L. 187), having complied with all the sions by the act of 1885. In the present case, conditions of said act, and having tendered had no appointment been made by the court of the school board of said borough an addition-quarter sessions, the school board might have al bond with good and sufficient sureties in been at liberty to act. But the court did act the entire amount of school tax levied, is entitled to have the tax duplicate of the school district of such borough certified to him for collection; the school board of such borough not having elected or appointed a person to collect school taxes, until after the appointment of such collector by the court of quarter sessions.

promptly, and Fey, the appointee, qualified just as promptly, by filing his bond with the court of quarter sessions, by which it was approved and by tendering to the school board an additional bond in the requisite amount. After Fey had qualified there was no vacancy to fill. It is the settled policy of the law to have school, borough, township, and other local taxes collected by a single tax collector elected by the people of the local districts. The power to fill a vacancy in any such office is vested in the courts of

It appears that on July 28, 1916, F. Norman Black resigned as tax collector of the borough of Duquesne. On August 11, 1916, the court of quarter sessions appointed Edward H. Fey tax collector to fill the unexpired quarter sessions by the Act of June 25, 1885, term of Black for the years 1916 and 1917. P. L. 187. The provision in section 547 of On the next day, Fey notified the school the school code is, we think, to be regarded board of his appointment; and on August merely as supplementary, and the appoint14th he filed his bond, ample in amount and ment by the board of school directors as in security, in the court of quarter sessions, any event temporary, being for the current and tendered an additional bond to the school year only and to be made on or before the board in the entire amount of the school tax first of June in each year. As the relator levy. On the same day, namely, August 14th, Edward H. Fey was duly appointed tax colthe school board passed a resolution declar- lector by the court of quarter sessions, the ing the office of tax collector vacant and proper authority, he is entitled to all the elected John C. Meighan to collect the school prerogatives and emoluments of that office. tax for the year 1916, ignoring Fey's ap- The assignment of error is sustained, the pointment and tender of bond. Thereupon judgment of the court below is reversed, and Fey filed his petition for a writ of mandamus. The school board answered, admitting the facts set out in the petition, but denying that Fey was legally entitled to the tax du

it is ordered that, upon the filing of a proper bond by the relator, a writ of peremptory mandamus shall be awarded, in accordance with the prayer of the petition.

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