circulating "any other book containing the sub stance of lectures delivered by complainant at Common Pleas-Equity. the University of Pennsylvania," the decree is McCall v. Barrie. June 5, 1884. Equity-Injunction-Party wall-Need not be continuous or uninterrupted in length or uniform in height - Partition fences - Act of March 11, 1862, § 4, P. L. 110. Hearing on bill and answer. Bill in equity, by McCall against Barrie, and an adjoining property owner, for an injunction, and that the defendant be ordered to build up certain openings left by him in a party wall. The facts, as averred in the bill and answer, are Will-Executor-Power to sell includes power set out at length in the report of this case sur to mortgage. An unrestricted testamentary power given to an executor to sell real estate, includes a power to mortgage, and survives to an administrator d. b. n. c. t. a. This is a firmly established rule of property in Pennsylvania. Error to the Common Pleas No. 2, of Philadelphia County. The facts of this case, the arguments of counsel, and the decision of the Court below, are fully reported in Wurfflein v. Haines, 14 WEEKLY NOTES, 76. The Fidelity Insurance, etc., Co. was appointed administrator d. b. n. c. t. a. in place of Haines, discharged, and also trustee under the will. The Court below entered judgment for plaintiff on the case stated. Defendant thereupon took this writ, assigning for error the judgment of the Court. John M. Gest (W. H. Staake with him), for plaintiff in error. John G. Johnson, for defendant in error. May 5, 1884. THE COURT. That an absolute and unrestricted power to sell includes a power to mortgage, is so well settled in Pennsylvania, that the question of changing the rule by judicial decision ought not to be entertained. It has long been recognized as a rule of property. Titles so numerous, depend on adherence to it, that a change would be fraught with great evil and injustice. Whatever may be held in other States or in other countries, we adhere to it as a rule not to be questioned in Pennsylvania. Under the provisions of the will in this case, the power of sale and of distribution fairly imposed on the executor all the duties which he assumed to exercise in the discharge of his trust. Judgment was properly entered in favor of the plaintiff below on the case stated. Judgment affirmed. PER CURIAM. GREEN, J., absent. E. A. B. motion for a preliminary injunction, which was refused. (See McCall v. Barrie, 14 WEEKLY NOTES, 419.) Francis Rawle (with him Walter George Smith), for complainants. A party wall must be such that the second builder may be able to use it. Milne's Appeal, 31 P. F. Smith, 56. And such that the tenants of the property encroached upon may not be annoyed by windows in it. Vollmer's Appeal, 11 P. F. Smith, 130. And such that the property encroached upon may not be subject to increased risks of fire communicated through openings in the wall. Milne's Appeal, supra. Vollmer's Appeal, supra. Should defendant be left to his own remedy by putting up a wall to shut up these windows he will have to take perhaps thirteen inches of his own land. See Vollmer's Appeal, supra, at p. 130. If the defendant were to put window sashes in the openings just within his own land, the case would be clearly within the facts of Vollmer's Appeal; nor can it make any difference in law whether the windows are just within or several feet within the line. C. Stuart Patterson, for respondents. No statute or judicial decision prescribes the length or height of a party wall. It may be built along the whole length of the property, or so far along as the builder chooses, and to any height he chooses, nor does any statute or decision require it to be of uniform height. The only restriction is that it must be so constructed that the neighboring owner can build against it, and, therefore, it must be without windows. Vansyckle v. Tryon, 6 Phila. 401. Vollmer's Appeal, 11 P. F. Smith, 118. Milne's Appeal, 2 WEEKLY NOTES, 513. In the present case, the windows complained of, are not in the party wall at all, but are in walls wholly within the defendant's property. C. A. V. In the present case the defendant is erecting a building six stories high and one hundred and seventy-four feet deep. He has built a party wall the whole length of his building to the top of the first story or sixteen feet above the ground. At that height, and at intervals of forty and fifty feet, he has receded from the party wall at right angles therewith, to the depth of nine feet, and built upon foundations on his own ground; then parallel with the division line from twelve to twenty feet, and then again at right angles with the division line, yet keeping on his own foundations, out to the party wall, which he again carries up to the sixth story. There are three of these recesses or wells in his building. All of the June 28, 1884. THE COURT. A party wall builder commenced his foundation as a party is one which separates one house from the next. wall. When he got to the ground level, he It is a wall erected on the line between two ad- receded a few inches and built his brick wall joining estates belonging to different persons, for wholly within his own line, but on the partythe use of both estates. (2 Bouvier's Inst., 1615.) wall foundation. He left open windows in the The only use which can be made of a party wall wall. On a bill filed by the adjoining owner, is to place joists in it, or to support the roof of the these windows were declared illegal, and the debuilding. Any other use of it, such as painting a fendant was ordered to fill them up. sign on the side next to the adjoining property, may be restrained by injunction. (Wistar v. American Baptist Pub. Soc., 2 WEEKLY NOTES, 333.) The right to build a party wall is a privilege conferred by statute, and not a duty imposed by law. It is not a police regulation to prevent the spread of fire, as may be seen by the case of Weston v. Arnold (8 Law Rep. Chan. 1084), where an old party wall with windows in it, was replaced by a new wall, preserving the windows as ancient lights, although the English statute requires new party walls to be built solid without windows. In this State, so far as the wall is a party wall, or so long as it rests upon a party-wall foundation, it must be solid without windows or other openings in the wall for light and air. (Vollmer's wall built on the party-wall foundation is solid, Appeal, 61 Pa. St. R. 118.) And if windows without openings of any kind. The plaintiff should be left open in it, no length of enjoyment objects to the gaps or uninclosed spaces in the will give a prescriptive right to continue them, wall, and asks us to require the defendant to but the adjoining owner may close them up at any build a wall across them; that is to build a wall time, as was done in Roudet v. Bedell (1 Phila. which he does not need, and will not use to sup366), where the windows had been left open in a port either his floors or roof. We have no party wall for seventy-five years. But a party authority to do so. The defendant has not wall is not required to be continuous or uninter- violated any law in building the upper portions rupted in length, or uniform in height. Although of the outer wall of his building on his own the first builder cannot recede upon the founda- ground, and in declining to exercise his right to tion of part of the wall, and carry it up within | build a party wall the entire length and height of his own line on that foundation, yet he may recede from the party-wall foundation at any height, and build the upper part of the outer wall of his building upon his own ground, on a foundation wholly within his own line. He is not bound to come out to the division line along the whole length of his building. If he chooses to get off the party-wall foundation at any point, and carry his building further up on his own ground, he is not bound to build a wall on the division line up to the level of the top of his house. If he were, he would be required to build two walls, one for the support of his building, and the other a fence merely. A brick fence built to the top of his house would be unlawful, because the Act of March 11, 1862, P. L. 110, provides that a partition fence shall be a tight board or palisade fence, substantially built, at least six feet high. The adjoining owner might prevent him from building a brick wall, to be used as a fence and not for the support of his house. If he could be restrained from building a wall for that purpose, it is plain that he is not under any obligation to build it. In Milne's Appeal (81 Pa. S. R. 54) the first his building. His house is built on the ordinary The bill is dismissed with costs. J. M. G. Kelly v. March et al. Magistrate and magistrate's courts-Validity of judgment-Want of jurisdiction-Certiorari -When the record fails to show jurisdiction of defendant, a magistrate's judgment will be reversed on certiorari after the lapse of ten years. Certiorari to the judgment of a magistrate. This was a certiorari to a judgment of Alderman Pancoast rendered November 1, 1873. The affidavit on which the writ was allowed set forth that the sci. fa. to revive the judgment, issued May 20, 1884, was the first notice the de- C. P. No. 2. fendant had of the suit, and that the record showed no appearance by March, nor that the summons was served in accordance with the Act of Assembly. The transcript of the record showed the issu- The exceptions, inter alia, were :— of the service of the summons. (2) The return of service on the defendant March does not show when it was made. (3) If the return is construed as being made November 1, 1873, then it is bad as being less than five days before the hearing. I. T. Morris (with him Spencer and Chauncey) for defendant March. Where the justice had not jurisdiction of the parties a certiorari may issue within twenty days after notice of the judgment. Lacock v. White, 7 Harris, 498. This Court is not asked to interfere with the sci. fa., but to reverse the judgment, which would be conclusive on the hearing of the sci. fa. Sloan v. McKinstry, 6 Harris, 120. An alderman's jurisdiction must appear on his record. Murdy v. McCutcheon, 14 Norris, 436. Fraily v. Sparks, 2 Pars. 232. Herner v. Frank. F. M. L. June 9, 1884. Practice-Appeal from Magistrate- Copy of transcript and bill of particulars must be served on defendant. Sur rule on plaintiff to serve defendant with a copy of the transcript and to furnish a bill of particulars. Appeal by defendant from judgment of a Magistrate entered December 22, 1883. After the appeal was taken the plaintiff filed a copy of a book account, and the defendant his affidavit of defence. The plaintiff then ruled the defendant to plead, whereupon this rule was taken. J. R. Grier, for the rule. The defendant ought to be furnished with a complete statement of the claim, in order properly to prepare his plea. THE COURT. Rule absolute. C. P. No. 4. C. C. B. June 14, 1884. Bank v. American Ship Building Co. Foreign corporation-Jurisdiction-PracticeService of process-Return conclusive-Affidavits of defence-Plea in abatement-Facts amounting to plea in abatement to the jurisdiction, set forth in affidavit of defence, will stop entry of judgment. Rule for judgment for want of a sufficient affidavit of defence. The plaintiff's writ of summons had been, in May, 1884, returned: "Served the American Ship Building Company, a nonresident corporation, but engaged in business in this county, by giving, May 5, 1884, a true and attested copy othe within writ to L. I. Buckley, chief clerk of said comf pany, and making known to him the contents thereof, at the usual place of business of said chief clerk." Upon an affidavit, alleging that in March 22, | $1222.30 as creditor, and $1020.65 as distribu1884, the defendant had passed into the hands tee, and under the second account she was of a receiver by decree of Common Pleas No. 2; awarded $1240.29; that the executor declined that no permission had been obtained to institute to pay interest on said awards, and asked for an the suit, that since March 22, 1884, L. I. Buck-order upon him to pay the interest. The reley had not been in the employ of the company, spondent answered that the petitioner was paid and that he had not been engaged in business $1222.30, and on May 8, 1883, her attorney in this county, rules to quash the writ and to set satisfied this award of record; that on May 11, aside the return of service were ordered. 1883, his attorney tendered to petitioner in perAfter argument, the Court, following Ben- son $1020.65 and $1240.29, and demanded a wood Iron Works v. Hutchinson (12 WEEKLY refunding bond and satisfaction of the awards, NOTES, 495), discharged both rules. and she declined to accept payment upon these To a copy of the promissory note filed, the conditions; that since filing the petition an atdefendant's affidavit of defence alleged substan-tachment execution against the petitioner, and tially the same matter set forth in the affidavit in support of the above rules. Wm. H. Lex, for the rule. The service was valid, and if defendants are wrongfully brought into Court, they must sue the sheriff. Benwood Iron Works v. Hutchinson, 12 WEEKLY The return of the sheriff cannot deprive defendant of the right to plead to the jurisdiction. The same facts must be set forth in the affidavit of defence to prevent judgment in the meanwhile. THE COURT. When the Supreme Court overturned the practice which had existed in the Courts of Common Pleas since the foundation of the Commonwealth, they saw the necessity of a substitute for it in a plea in abatement to the jurisdiction. The defendant swears to facts which would make a good plea in abatement, hence we cannot give judgment. It is a much more tardy and inconvenient method of administering justice than that which existed before. But of course we must follow the adjudication of the Supreme Court. Rule discharged. Oral opinion per THAYER, P. J. respondent, as her garnishee, has been issued, Arthur M. Burton, for petitioner, cited- Bruner's Appeal, 7 Smith, 46, 51. Francis E. Brewster and F. Carroll Brewster, for respondent. Interest is allowed for "detention" of money, hence when non-payment is ascribable to mutual misapprehension it is not demandable. Railway Co. v. The City, 1 Smith, 468. As to refunding bonds, see Act of February 24, 1834 (Purd. Dig. 448, § 208; 449, § 217; and 450, § 224). the petitioner is clearly entitled to interest upon July 5, 1884. THE COURT. We think that the amount of the award in her favor by the adjudication of the first account, the payment of which was delayed by the unsuccessful appeal of the respondent executor to the Supreme Court. She did not lose this right when her attorney, without her consent, and after her notice to the respondent that she would demand payment in person, entered satisfaction upon the record. But it is equally clear that the executor could properly refuse to pay until a sufficient refunding bond had been tendered to him. The weight of the evidence shows that the bond, although prepared, was not actually presented, that formality having apparently been overlooked in the dispute respecting the interest. It is rather a narrow point to determine, where one party proposes to pay less than is due, and the other neglects to tender what is preliminary to any payment, on which side the superior equity lies. The executor promptly notified the legatee of his readiness to pay the legacy upon the presentation of a refunding bond, and the legatee as promptly demanded the interest. It is very evident that the production or non-production of tioner is and has been since 1880, the registered owner. That there is overdue and unpaid on said mortgage of interest to December 16, 1879, $72, balance of principal of $600, and the interest accrued on said balance since December 16, 1879, and he has caused to be issued a scire facias on said mortgage, against Grace Dougherty, with notice to A. T. Dougherty, terre tenant; that he is advised that he ought to be al the bond had nothing to do with the delay. $76.60; that he was the holder of a mortgage The proof of this is that a check for the face dated December 16, 1878, given by Grace amount of the award was offered to the peti- Dougherty to him as guardian, on premises on tioner with the request that she would sign a Cresson Street, Manayunk, of which the petireceipt therefor; and that the offer was withdrawn, not because she withheld the bond, but because she refused to sign except under a written protest. Our opinion is that the petitioner should receive interest upon the awards to her as legatee by the first and second adjudications, and to that extent her prayer is granted. The respondent is, however, entitled to defalk from their amount the sum of $321.50 for costs and examiner's fee, which he paid as garnishee in attach-lowed to retain from the amount of the award ment proceedings against the petitioner. the amounts of $36 and $60 as above, and claims Opinion by ASHMAN, J. that as to the balance of the award, no order should be made on him to pay pending said sci. fa. or until the amount due him, as a charge on June 17, 1884. the real estate of the petitioner as above, be Dougherty's Estate. paid. William Gorman, for petitioner. W. C. S. Guardian and ward-Order to pay-Reimbursement to guardian of expenses incurred on account of conduct of ward-Counsel fee-When allowed. Sur petition and answer. The petitioner averred that on March 24, 1883, the account of her guardian was audited and the sum of $359.51 awarded to her; that exceptions filed were dismissed, and the adjudication confirmed absolutely; that the guardian, although asked frequently to pay, refused to do so, and she asked an order directing the guardian to pay the amount awarded to her. J. Cooke Longstreth, for respondent. June 28, 1884. THE COURT. Upon the allegations in the answer, which are not traversed, and must, therefore, be accepted as verity, the respondent is justly entitled to an allowance for counsel fees. A contrary decision would subject a stakeholder to expenses possibly far in excess of his commissions, for litigating matters in which he has no personal interest. Hence, by the Acts of April 10, 1849 (P. L. 620), and April 22, 1863 (P. L. 527), a garnishee may in certain cases claim counsel fees in addition to his costs. Those Acts were intended to relieve against a mischief The respondent in his answer denied that he which was no greater than that occasioned by had been frequently requested to pay, but he the course of this petitioner. Her appeal from averred that an appeal to the Supreme Court the decree of distribution compelled the responfrom said adjudication was taken by the said pe- dent to engage the services of counsel, and her titioner, the record was removed to the Supreme abandonment of the appeal was a recognition of Court on certiorari, a paper-book on the part of the correctness of the award. Certainly the rule the appellant was printed and served on his which reimburses a guardian for the expenses incounsel, who caused to be prepared and printed cident to the management of his ward's estate, a paper-book in reply, at an expense to him of where those expenses arise from the acts of $60 ($10 for printing and $50 for counsel fee); strangers, will apply with equal force to the that the certiorari and record were recently re-charges which are necessitated by the conduct mitted to this Court, with a certificate of a dis- of the ward. We think that in this proceeding continuance of said certiorari on May 15th, A.D. 1884, but that the appeal has not yet been retracted or withdrawn; he further stated that he was also advised that there is an error of $36 apparent upon the face of the adjudication against him in this that whereas he charged himself upon the face of his account with two years' interest accrued on petitioner's share of a mortgage dated October 30, 1876, being the interest on the same in full to October 30, 1878, he is surcharged with such interest for one year, in the following item of the adjudication, to wit: Add ward's share of interest on mortgage from November 1, 1877, to December 16, 1879, the respondent may also be relieved against the mistake which appears upon the face of the adjudication. By giving to his answer the effect of a bill of review, which, under Parker's Appeal (61 Pa. St. R. 478), we may clearly do, the overcharge of interest upon the mortgage, which had already been fully debited in the account, can be stricken from the decree. The award is accordingly reduced by deducting $36 for one year's interest upon the mortgage, and $60 for expenses, and the accountant is ordered to pay the balance, to wit, $263.51, to the petitioner, whose prayer, with this modification, is granted. Opinion by ASHMAN, J. W. C. S. |