order of Court to restrain the erection of a buildng, the walls of which were of insufficient strength and solidity to answer the purpose for which it was designed. of at least thirteen inches. Of this decision Supplee has received notice in writing. The respondent makes answer that he has built the walls, so far as the same have progressed, of a greater thickness than he is by law required to make them-the cellar wall being eighteen inches, the front wall thirteen, and the party walls nine inches in thickness. This is accompanied by a general denial of an infringement of the Act of Assembly cited by the petitioner, or of any of the laws or ordinances of the city of Philadelphia relative to the regulation and inspection of buildings. The petition set forth that Supplee had contracted to erect a police station, according to the plans of which the outside walls were to be only eight and one-half inches thick; that the inspectors considered this of insufficient strength and solidity to answer the purpose of the building; and that by the 5th section of the Act of May 7, 1855 (Purd. Dig. 1123, § 5) it was the duty of the inspectors to see that all houses were erected in accordance with the Acts and ordinThe eighth section of the Act of May 7, 1855 ances in force; that they had therefore notified (Purd. Dig. 1122), directs that the thickness of the respondent to construct the walls of a greater all walls thereafter erected, constructed, or thickness, and he having refused, the petitioner now asked for an order of Court to restrain the erection of the building. The answer denied the averments of the petition, and set forth that the respondent had built the walls of greater thickness than the Act required. Messick, for petitioner, argued that the build ing inspectors were invested with a sound discretion as to the necessary thickness of the walls of buildings to be used for other purposes than dwellings, and had authority to compel them to be made sufficiently thick to render them safe. Roney, contra, argued that the plan of the present building must have shown the walls to be sufficiently thick for safety, otherwise no permit would have been issued. Willson, on behalf of the city, suggested that it would be well, for the sake of security, for the Court to hear proofs as to what thickness of walls is necessary for a building to be used as the present one is intended to be used. C. A. V. September 30. THE COURT. Upon the petition of Robert N. Bowers, one of the Building Inspectors of the city of Philadelphia, Charles D. Supplee was enjoined against proceeding with the erection of a certain building which he had contracted with the city of Philadelphia to build for the use of the city, situate on the north side of Girard Avenue, about one hundred feet east of Montgomery Avenue. The building is to be thirty-six feet front by fifty-one feet deep, and in height about thirty-five feet, and when completed is to be used for the purpose of a police station-house. The petitioner complains that the respondent refuses to build the front and party walls of a greater thickness than nine inches; that after repeated examination of the premises, and upon consultation with his associates in office, it has been decided by them that to make the said walls safe and of sufficient strength and solidity, the outside and party walls should be of the thickness altered, in the city of Philadelphia (excepting from the operation of the Act the rural portions of the city), shall be as follows: In all buildings having a front of not more than sixteen feet and not more than thirty-five feet high, the foundation walls shall not be less than sixteen inches, and the front and party walls not less than nine inches in thickness. Where the front of the building does not exceed twenty feet, and the height is not more than forty-five feet, the foundation or cellar walls are required to be not less than eighteen inches and the party walls thirteen inches thick. The increased frontage of buildings is further regulated by this section to the extent of sixty-five feet; beyond that width the increased thickness of walls "shall be determined by the Board of Inspectors." This eighth section of the Act of 1855 was, by the second section of the Act of April 11, 1856 (Purd. Dig. 1127, § 24), "construed to require the walls of buildings to be of the thickness therein mentioned when of the respective heights therein specified, without any reference whatsoever to the fronts or widths of said buildings." That this section of the Act of 1856 was intended to work a material change in the law of the previous year does not admit of doubt. In terms it professes to place a construction on the Act, to which it is in effect a supplement, but in fact it does not construe the former Act at all, but in an important respect abrogates it, and substitutes a wholly different regulation as to the fronts or widths of buildings. In express terms it declares that the minimum thickness of the walls, as specified in the eighth section of the original Act, shall be regulated by the height of the wall without reference to the frontage of the building. Upon this provision of the Act of 1856, the defendant in part grounds his resistance to the application of the Building Inspectors; assuming also, as he does, that the eighth section of the Act of 1855 determines absolutely the thickness of walls thereafter to be erected. Is this a correct interpretation of the Act of 1855, considered in connection with the change property. The inspectors are required to possess which the second section of the law of 1856 has the qualifications of having served a regular apintroduced? The defendant has either not well prenticeship at house-carpentering or bricklaying, considered the phraseology of the original Act, and afterwards to have worked at or carried on or, having considered it, has not given due weight such business for at least seven years. Before to the use of the words "not less than" as quali-entering upon such office they are required to fying the thickness of each class of walls particu- make oath that they possess the prescribed qualilarly mentioned in the Act of 1855. These words fications; that they will faithfully perform their are in no instance omitted; ten times are they duties, and see that buildings inspected by them repeated in the eighth section, showing a clear are built in accordance with legal requirements. intention on the part of the Legislature to fix a The fifth section of the Act makes it the duty minimum regulation of walls, which neither of the inspector to inspect buildings during the builder nor Building Inspector is at liberty to progress of the work; to see that they are condisregard. What, then, is the effect of the structed in manner adapted for the security of the second section of the Act of 1856, upon this same against fires, and the safety of the inhabiportion of the original law? We answer, none, tants. He is to require that suitable material be other than to leave the question of the minimum used; that the work is done in a substantial and thickness of walls as it was first established, ex- workmanlike manner, and that it is of sufficient cept that the width or frontage of a building is strength and solidity to answer the purpose for no longer a material consideration. The minimum which it is designed. These constitute some of thickness is now determined by the height of the the most material provisions of the law, and are structure alone, so that when the height is ascer- by no means to be overlooked in giving a contained, all parties are controlled by the statute struction to the other sections of it, and especially upon the subject; no one may build, or allow to the eighth section, which is supposed by the debe built, a wall of less thickness, according to fendant to justify him in resisting the command height, than is particularly prescribed by the Act of the building inspectors. We gather from all of Assembly; and this is equally applicable to this that the chief purpose of the Act is to make all portions of the wall, whether foundation or buildings in the city of Philadelphia more safe. cellar walls, party and front walls, and also to the than they had formerly been against fire, and to distinction, where one is made in the law, as to a guard more effectually against loss of life, which differing thickness of walls for the separate may at any time result from the erection of buildstories. In this section of the Act of 1855 there ings which are not of sufficient strength and is a qualification which limits the extent to which solidity to answer the purpose for which they are a lot may be encumbered by a party wall, pre- designed. The duties imposed on the inspectors scribes the minimum thickness of party or divi- are clearly defined, but the powers given to them sion walls where the building is to be used for a are by no means restricted to those which are in store house, and a direction that, when a building terms mentioned in the Act. Much is left to their is to be carried up to a greater height than the better judgment, and for the exercise of an honest, maximum height mentioned in the section, the and at the same time, a sound discretion. The increased thickness of the wall shall be deter-law does not say, nor is it possible that it should mined by the Board of Inspectors. These con- do so, what in each particular case constitutes a stitute the entire provisions of the eighth section of the Act of 1855, as modified by the second section of the Act of 1856, and we fail to discover in them any intention to prescribe a maximum thickness of the walls thereafter to be constructed or built. On the contrary, the evident purpose is to lay down a positive rule, which is to every one a command, directing that walls shall not be less than the prescribed thickness, and from this is deduced the legitimate inference that, nothing appearing to the contrary, it is not repugnant to the sense of the statute, judged by this portion of it alone, that such walls might be required in certain cases to be of a greater thickness; but this law, like all other laws, is to be examined in all its parts, to be considered as a whole, and interpreted according to its spirit and intent. The title of the Act recites that the purpose is to provide for the better preservation of life and sufficient security against fires, nor what constitutes, in every or in such instance, a sufficiency of strength and solidity. This, the Act says, must be determined by the purpose for which the building is intended. That which would be sufficient when a building was to be used for one purpose might be wholly inadequate when intended for a different use. It entrusts the determination of these questions in the first instance to the building inspectors, and in the seventh section is found a requirement that the inspector shall give a certificate that the building is in all respects safe and secure. So much importance does the law attach to this certificate, that if he shall falsely certify that the law has been complied with when it has not, his bond is declared to be forfeited, the whole principal sum becomes due and payable, and the further punishment is added that he shall be forthwith dismissed from his office. How is it possible that the inspector shall certify that the building is in all respects safe and secure if, in his belief, it is unsafe and insecure? and what answer to an application to enforce against him the severe penalty of the law would it be that the walls were of the minimum thickness particularized in the eighth section? The reply to such an answer would be: "You are required to see to it that the walls were safe; that the work was of a sufficient strength and solidity. This is your first great duty, and this you have failed to perform; you were not forbidden to require of the builder a greater thickness of walls, but to see that under no circumstances, for no kind of a building, was the thickness less than that which is specified in the Act." Entertaining this view of the law, and holding that general oversight and control of buildings in progress of erection is entrusted to the inspectors of buildings for the most laudable and conservative of all purposes the preservation of life and of property-we are of the opinion, for the reasons stated, as well as for others not mentioned, that this petition was proper under the tenth section of the Act of 1855, and that the order of the inspector to the defendant was within the scope of his authority, and must be obeyed, unless it be shown, upon an investigation and determination of the facts, that such order ought not to have been made. We have before us the petition, which required that an injunction should be granted, and an answer, which does not show sufficient reason to dissolve it, but the facts are still open to further investigation, if the defendant desires to contest the correctness of the order of the inspector upon its merits, and to show by proofs, that the injunction ought not to be continued. The burden of proof rests on the defendant, the case on the petition, and answer is against him, and, the order of the inspector having been made by one competent to make it, and for a purpose authorized by the Act of Assembly, it must be taken as prima facie correct. The case, as it now stands, is to be regarded as a motion to dissolve an injunction, and the laboring oar is with him who undertakes to show that the order of the inspector ought not to have been made, and that the injunction ought not to have been granted, or, having been granted, ought now to be dissolved. Opinion by ALLISON, P. J., in full. Common Pleas—Law. C. P. No. 2. Sept. 30. City to use of Peters v. Devine. Municipal claim-Agreement of contractor to do the work for specified price-Affidavit of defence- Nudum pactum-Accord without satisfaction. Rule for judgment for want of sufficient affidavit of defence. Sci. fa. sur municipal claim. The affidavit set forth that Peters, the use plaintiff, before he procured from the city the contract to do the work charged for, solicited the defendant to sign as a property owner in favor of said Peters, as the paver to do the work; that in consideration of defendant so signing, the said Peters agreed to do the work at certain prices specified (lower than those charged in the claim); that defendant then signed a recommendation for Peters, and Peters did the work; that after the work was done Peters presented his bill at the rates now charged, but on defendant reminding him of the agreement he acknowledged it, and sat down with defendant's agent and recalculated his bill at the proper rates, and agreed upon an amount due, which amount defendant was and is ready to pay. Hopple, for the rule. The alleged agreement was before the use plaintiff had any contract, and, therefore, was without consideration. The alleged restating of the account was an agreement to take a smaller sum in payment of a larger, and therefore, a mere accord, not binding without actual satisfaction. Bowers, contra. Rule discharged. C. P. No. 4. Nagle v. Potter. Sept. 30. davit of defence. A. Thompson, for the exceptions, argued that though the referee finally excluded said contracts and based his award on the account stated, yet from the fact that he admitted the same at all, and heard testimony as to work done under them, the presumption arose that his mind had been inAssumpsit upon a promissory note. The fluenced, or may have been influenced, perhaps unaffidavit alleged that the note was given in pay-consciously to himself, in making his decision, by ment for leather purchased upon the representa testimony which he had subsequently decided to tion and agreement of the plaintiffs that each be inadmissible. Besides, a referce is bound by skin was large enough to cover two quarto the form of action as brought and the said sealed bibles; that the skins were not carefully examined contracts were not admissible in assumpsit. by the defendants until after giving the note, but a subsequent examination showed the skins to be of a smaller size and inferior quality, and that they were so packed as to conceal the imperfect ones. B. H. Haines, for the rule. The affidavit does not set out a special warranty. [BRIGGS, J. The affidavit says it was agreed. This is a proper word to use, and does set out a warranty.] The defendant had time to inspect the goods. The affidavit does not state how long the skins were in defendant's possession. He should have offered promptly to return them. [THAYER, P. J. He may keep them any length of time, or sell them without inspection, and afterwards, if they turn out defective, recover on the warranty.] Rule discharged. [See Dodd v. Kirk, 2 WEEKLY NOTES, 260.] C. P. No. 4. Brown v. Bliem. Sept. 19. Evidence-Form of action-Assumpsit will lie on promise arising out of contract, although the contract is under seal-Award of referee. Exceptions to award of referee. This case was founded on a declaration in assumpsit in the common counts. At the trial, a question arose as to the admission of certain sealed contracts as evidence to support the declaration, and, at the suggestion of the judge before whom the cause was being tried, a reference was made of all matters in dispute to William J. McElroy, Esq., as referee under an order of Court. Before him the specialties were offered in evidence and admitted provisionally. After many meetings an award was made by him in favor of the plaintiff, basing the same on what he decided to be an account-stated between the parties, and excluding as evidence the said contracts under seal. To this award, the chief exception was that the referee erred in admitting the contracts under seal and proceeding to hear testimony based on them, and in not rejecting them completely at the outset. Bachman v. Reigart, 3 Penn. Rep. 270. T. J. Ashton, in reply, contended that as all matters in dispute between the parties were included in the reference, the referee could hear and consider any evidence otherwise competent, whether it was technically admissible under the pleadings or not. Grier v. Bilger, 1 Harris, 58. THE COURT (THAYER, P. J.). The referee rejected the contracts under seal and sustained an account-stated, although the items in it were founded on contract. Assumpsit will lie on a promise arising out of a contract. Exceptions dismissed. C. P. No. 4. Sept. 18, 1876. Debraham v. Walker et ux. Husband and wife-Husband not liable for goods purchased by his wife and charged to her, other than necessaries for the familyBook of original entries not sufficient prof that the articles bought are necessaries. Rule for judgment for want of a sufficient affidavit of defence. Assumpsit on book account. The entries were headed "Mrs. General Walker, bought," and were for articles of female clothing, table linen, etc. The affidavit of Sophia M. Walker set forth that the items charged did not comprise such articles as are necessaries, nor such as were for the improvement of the separate estate of a married woman. The affidavit further set forth that the charges had not been made against the husband, and that the said John G. Walker was away from this city at the time suit was brought, and is still absent. Hunn, for rule. The goods were bought by Sophia M. Walker, as the wife of General John G. Walker, and were charged to Mrs. General Walker. She was dealt with as a married woman, and the articles purchased were of such a character as to lead the plaintiff to believe that they were necessaries for the family. B. F. Fisher, contra, was not called on. THE COURT. Some further proof is necessary besides the book of original entries. The presumption is that the husband did his duty. Rule discharged. C. P. No. 4. Coaler v. Schlecht. Sept. 30. | he made his widow his sole devisee and legatee. Caveats were filed by his sons, alleging incapacity and undue influence. The will was proved March 30, 1875, and the contestants demanded an issue. Opening judgment by default-Laches. Rule to open judgment. A judgment had been entered for want of an affidavit, and a fi. fa. had issued and been stayed. An alias fi. fa. was issued and a levy made, when this rule was taken. Depositions in support of the rule alleged that the entry in plaintiff's book was against "Schlecht and Walters," while the suit was against Schlecht alone; that Walters alone contracted for the goods; that the defendant did not contract for them nor receive any benefit therefrom; and that the defendant was a foreigner, unable to read English, or to understand the proceedings. Depositions contra alleged that the bargain was made with Schlecht, and the name of Walters was added, upon defendant's suggestion, to a charge that had previously been made against the latter; further that the defendant had acknowledged the debt when the first fi.fa. was stayed. Hunsicker, for the rule. Callaway, contra. The rule is taken too late. motion certified the record to the Orphans' On April 9, 1875, the Register of his own Court, and on April 15 a petition was presented to the Court praying for an issue and the appointment of an examiner to take testimony. examiner was appointed, and his report having been filed, the case now came on to be heard on the prayer for an issue. S. Davis Page, for contestants. 1256, pl. 22), provides, that, whenever a dispute The Act of 15 March, 1832, § 41 (Purd. Dig. Court, the said Court shall, at the request of upon a matter of fact arises before a Register's either party, grant an issue. of right. This is demandable De Haven's Appeal, 25 Sm. 340. The Orphans' Court has all the jurisdiction. and powers of the Register's Court. Act of 19 May, 1874, § 6 (Purd. Dig. 1933). Com. v. Clark, 1 WE KLY NOTES, 330. If the fact in dispute be material to the validity of the will, the Court is bound to award an issue when required. Graham's Appeal, 11 Sm. 43. Bradford's Will, 1 Pars. 158. [O'BRIEN, J. That was the old practice: now we have a discretion, else why take testimony and argue the case?] The fact is in dispute when alleged on one side and denied on the other. Knight's Appeal, 7 Harris, 494. If undue influence be shown before and after the making of the will, a presumption that it continued will arise which ought to go to a jury. Eckert v. Flowry, 7 Wr. 46. McGrath, for respondents. It is no longer the rule that an issue will be granted whenever there is a scintilla of evidence; there must be enough evidence to support a verdict against the will. Philada. & Read. R. R. Co. v. Yeager, 23 Sm. 124. Estate of Wm. De Puy, 1 WEEKLY NOTES, 212. In re Will of Ellen Shaw, 1 WEEKLY NOTES, 332. [DWIGHT, J. Previously the Court which granted the issue tried it. Since the New Constitution a different Court tries it, and this Court ought to be, if anything, more liberal in granting issues so as not to usurp the discretion of the Court which tries them.] The test of testamentary capacity is that the testator knows and understands the business he is engaged in, and the disposition he is making at the execution of his will. |