If the return to a writ is signed by the sheriff, it is not vitiated by the fact that the name of another person, whose official position is not mentioned, is also appended. The signature of the sheriff alone would be sufficient; but, even if it were not, it would serve as evidence of a recognition or adoption of whatever the other person did.

The averments of fact contained in the sheriff's return cannot be questioned, except in an action against him by the party aggrieved. In all other cases they must be accepted as true.

Quare, whether an order setting aside the service of a writ is reviewable by the Supreme Court.

Appeal of Henry Bennethum, from the judgment of the Court of Common Pleas of Berks county, setting aside the return of services to a summons in ejectment issued by said Bennethum against Levi Wesley Bowers. Plaintiff took this appeal.

For appellant, Cyrus G. Derr, Esq.
Contra, D. E. Schroeder, Esq.

sheriff." It was said by this court in Mentz v. Hamman, 5 Wh., 150, in regard to the return of the sheriff to a writ of execution: "It is of no manner of consequence on whose information he chooses to rely for the truth of his return.” If Mr. Bollinger's name were stricken out it would still be a good return, for the sheriff himself returns the writ served upon his official responsibility. But as before observed there is a distinct recognition by the sheriff of Bollinger's authority and the defendant cannot be allowed to gainsay it.

The second reason (b) that the copy served was not a true and attested copy is equally without merit. The sheriff returns that it was a true and attested copy. If this return was false the sheriff would be liable therefor, but being in proper form it is conclusive between the parties and cannot be contradicted aliunde. The rule is thus stated in Benwood Iron Works v. Hutchinson, 101 Pa. St., 350: "Where the return on its face does not show a legal service of the writ the service may be set aside As the return must be considered as conclusive between the parties to the action, it is error to set aside the service upon extraneous evidence. Affidavits and depositions are no parts of the record," citing Kleckner v. Lehigh County, 6 Wh., 66, where it was held that the court below erred in setting aside the service of the writ upon extraneous evidence.

The question whether an order of the court below setting aside the service of a writ was re

Opinion by PAXSON, C. J. Filed March 17, viewable here was not raised, and is not decided. 1890.

We are of opinion that the learned judge below erred in setting aside the service of the writ. The return was as follows:

"Served the within writ of ejectment by giving a true and attested copy thereof to Levi Wesley Bowers, defendant, personally, and making known to him the contents thereof, on December 27, 1888.

"CYBUS BOLLINGER.
"Served as above. So answers

It may be more than doubted when the court refuses to set aside the service, for in such case it is clearly an interlocutory order. The setting aside of service does not set aside the writ; that remains, and an alias can issue thereon, thus stopping the running of the statute. There may be cases where from the difficulty of making a second service great hardship might result to a plaintiff from having the serqice of his writ set aside. It is difficult to see how such hardship could arise in an action of ejectment, where, if "GEORGE B. SCHAEFFER, the defendant evades service of the alias writ it "Sheriff." can be served on his tenant in possession. And There was also an affidavit of service, pre- if there is no tenant in possession the plaintiff sumably by Bollinger. The objection of the can enter without an ejectment. In this case court below was twofold, (a) that the return an alias writ would have been speedier and less does not show that Mr. Bollinger was a deputy expensive remedy than this appeal. There is sheriff, and (b) that the copy filed was not much reason for holding that an order setting attested. In regard to the first objection it is aside the service is but interlocutory and not sufficient to say that the adoption by the sheriff a final judgment, but in view of the fact that a of Bollinger's act sufficiently indicates the au- number of writs of error have come up, in which thority under which the latter acted. He thus the action of the courts has been reviewed in recognized him as his deputy, and it is imma- | similar cases, and that the point was not raised terial that he omitted to add the words "deputy and argued in this case, we will decide it,

The order setting aside the service of the writ outwards, and were operated by a spring, is reversed and a procedendo awarded.

question, it was pushed open by one of the firemen suddenly, and without notice to the passers by, and in-subject was substantially as follows: "When flicted the injuries complained of.

For appellant William Benson, S. M. Brain- | the plaintiff but we can only due so at the exerd and C. L. Baker, Esqs.

law, for the reason that the Constitution does not pro- county commissioners. But the practical prohibit this species of legislation as far as poor districts are concerned.

The Act of June 4, 1879, was intended to establish a general system for the relief and employment of the destitute poor throughout the State. | The general plan or purpose of the Act is, that each county shall be, or become, a single poor district; that real estate shall be purchased, and suitable buildings erected thereon, and that as soon as the buildings are completed, and the county commissioners are prepared to accommo-gate the present system for the support of the date the poor of the district, upon notice given, the poor shall be transferred to their custody and care; and thereupon the duties of the over

townships should be authorized and required to discharge all the duties of overseers of the poor within their respective districts, so far as their care and maintenance is concerned, until such poor are committed and delivered to the Rouse Hospital." And for this purpose the burgess and council, or the road commissioners, as the case may be, were "authorized to increase the borough and road taxes within their respective

to carry out the provisions of this act; or, if they deem the same expedient, may levy a separate poor tax for that purpose." "The obvious effect of this legislation," as said in Rouse's Estate v. Poor Directors, 118 Pa. St., 2, "was to re-erect the several boroughs and townships of the county into poor districts, invest the several officers named with all the powers, and impose upon them all the duties of overseers of the poor in their respective districts, until the poor under their care are committed and delivered to the Rouse Hospital."

islature as to local or special legislation do not extend to the regulation of the affairs of poor districts. The affairs of townships do not of necessity include the affairs of either the school or poor districts embraced within the same boundaries. The provision of the Constitution is, that "the General Assemby shall not pass any local or special law," etc., "regulating the affairs of counties, cities, townships, wards, boroughs or school districts." It is a very sig-districts to an amount sufficient to enable them nificant fact that, whilst shool districts are expressly included within the restriction, poor districts are plainly omitted. The overseers of Jenks township, under the 16th section of the Act of March 9, 1771, constitute a quasi corpora- | tion by that name, distinct from the township of Jenks, with the right to sue and to be sued; process in this form being properly served upon the overseers, whilst process against the school district is served upon the school directors, and that against the township upon the supervisors. The convention, being conversant with the manifold forms in which the public charity was dispensed in county poor-houses and in district poor-houses, organized under both general and special laws, in hospitals and homes supported by contributions, both public and private, and through the ordinary agency of the overseers or directors of the poor, may have deemed it unwise to interrupt the course of legislation on this subject, or to restrict the relief and employment of the poor to any one uniform or general system for the whole State, preferring rather that the hand of charity might be freely extended in any form which the Legislature from time to time might provide. However, this may be, the overseers of the poor of Jenks township would appear to be the proper parties complainant in this case.

A fund, many years ago bequeathed by Henry W. Rouse to the county of Warren, for the benefit of the poor of that county, was expended in the erection of the Rouse Hospital. The income of this charitable estate being inadequate for the support of the poor of the county, the deficiency is provided for by taxation, and by the 14th section of the Act of 1864, P. L., 442, the charge of all the poor in the county of Warren, and the expense of their support and maintenance, were imposed on the "Directors of the Rouse Hospital." By the Act of April 4, 1866, P. L., (1867), 1412, the office of "Directors of the Rouse Hospital" was abolished and the duties transferred to the "Commissioners of the Rouse Estate," under which name they were incorporated. But by the Act of March 31, 1868, P. L., 535, it was provided that "the burgess and councils of the boroughs and the road commissioners of the

Whilst the duties and obligations of the commissioners of roads, etc., of Sheffield township, thus remained, these proceedings were instituted, and as Ernest Eiffert and his wife were never committed to the Rouse Hospital, or delivered into the care of the commissioners of the Rouse estate, the responsibility for their relief remained with the road commissioners of Sheffield, and upon this showing Sheffield was clearly liable to Jenks for the amount necessarily expended in this behalf.

By the Act of May 9, 1889, P. L., 155, the Act of 1868, above referred to, was repealed, and it is contended that thereby the complainant's right of recovery fell; that the poor district of Sheffield was thereby abolished, that the commissioners of roads, etc., were discharged of their office as overseers, and can no longer exercise the rights, nor will they be held to the responsibilities of that office, and that the complainants are therefore without remedy. This ground of defense is not tenable; whilst the road commissioners of Sheffield, under the Act of 1868, performed certain duties ordinarily belonging to the overseers of the poor, they were not overseers of the poor; they were road commissioners, and were authorized to furnish relief from the road fund, and to increase the road taxes to an amount sufficient to enable them to carry out the provisions of that act. The debt to Jenks Poor District is a debt of the township, payable out of the road fund, and, although relieved of their duties as overseers by the Act of 1889, the responsibility of the road commissioners remains for debts existing when that act was passed. The road commissioners are the repre

sentatives of the township, and are the proper and of actual occupation," and he might have parties upon the record in a suit for their re-added, that upon the undisputed evidence there was no difference. In view of the facts recited,

covery.

The proceedings of the Quarter Sessions are and distinctly appearing in the record, the therefore affirmed. question raised by the specifications mentioned For appellants, Charles H. Noyes and Watson | is immaterial, and requires no further consideraD. Hinckley, Esqs. tion in this case.

Contra, D. I. Ball and C. C. Thompson, Esq8.

SCHUYLKILL RIVER EAST SIDE RAILROAD

COMPANY v. REES.

In an action against a railroad company for damages to land growing out of the construction of its road, the fact that the company, under an agreement with the plaintiff, has erected a building in the stead of one removed by it, the cost to be deducted from the damages

to be awarded, does not prevent the plaintiff from showing that the change has resulted in damage to the property. The effect of such an agreement is, not to exclude any evidence as to damage, but to admit the cost of the new building in mitigation.

It is claimed that there was error in the admission of the evidence, and in the charge of the court, relating to the ice-house constructed by the defendant company under the contract of August 10, 1886. If the plaintiffs continued the business in which they were then engaged on the premises in question, they had an option under this contract to take the ice-house at its cost, to be allowed "as an offset to the damages awarded to them," and if they believed the company's bid for construction was excessive, they were at liberty to select an expert, who, with the expert to be named by the company in

Error to the Caurt of Common Pleas No. 3, of such case, should fix the just and proper cost of Philadelphia county.

the building, and decide whether the business could be conveniently carried on in the same. The plaintiffs did not believe or claim that the company's bid was excessive, and there was therefore no occasion or authority for the appointment of experts. They conceded that the

Opinion by MCCOLLUM, J. Filed June 4, 1890. There is no merit in the several specifications of error which relate to the admission of evidence of the value of the plaintiffs' property in August, 1886 It was then that the defendant company entered upon the premises, and that the plain-ice-house was well adapted to the business for tiffs first learned of its determination to construct its railroad there. There was nothing upon the ground to indicate a prior permanent location of such road, and there was no act of the defendant company within the knowledge of the plaintiffs, which amounted to an appropriation of their property. After the plaintiffs had closed their case, some evidence was given by the company of a location in 1883, a plan of which, so far as it relates to the plaintiffs' property, was then delivered to them; but in this location changes were subsequently made, and municipal consent to the construction of the railroad was not obtained until July, 1885. It was shown by the plaintiffs, and not controverted by any evidence into the cause, that there was no change in the occupation, use or value, of the property from 1881, to the entry for construction in August, 1886. It was purchased by the plaintiffs under an option secured by them in 1877, when there was great depreciation in the real estate market, and as it stood in 1881 it had cost them $46,500. Its market value after the railroad was constructed upon it did not exceed $40,000, and the defendant company's evidence was to the effect that it was worth that sum before the alleged location in 1883. The learned judge correctly said in his charge to the jury, that there was no evidence showing "any difference in value between the time of location

which it was constructed, and that it was the best that could be devised for that purpose, with the railroad upon the premises. The evidence did not criticise or condemn any work done by the company under the contract, and it did not call in question the efficiency of any device or apparatus erected or paid for by the company or used in carrying on the business. It did not relate to an inconvenience arising from defective or imperfect work or appliances, but to an inconvenience in the use of the property, caused by the construction of the railroad upon it. It had no reference to matters, which, in a certain contingency, were to be passed upon by the experts appointed by the parties. It was relevant to the issue and properly admitted. The cost of the ice-house was made by the contract under which it was built, an offset to the damages sustained by the plaintiffs by the location and construction of the railroad upon their property. It was so applied by the tribunal which ascertained and awarded them. The verdict represents the damages, less the cost of the new icehouse, and the company has the credit for which it stipulated. We are not prepared to say that it was substantial, or even technical error, to allow the jury which assessed the damages to apply an admitted set-off in reduction of them.

An exception was noted to the charge, not because of any inaccuracy of statement, but dis