same style of living." This class of cases affords us little assistance in the construction of a taxing

statute.

Gold v. City of Philadelphia. Municipal corporations-Neglect to keep highways in repair-To support action for damages individual must show special and peculiar injury resulting to himself from the neglect. Sur exceptions to report of referee. Case, by Anna Gold against the city of Philadelphia.

E. Coppée Mitchell, Esq., to whom the case was referred, found the following facts: In pursuance of certain Acts of Assembly the city of Philadelphia took possession of the Germantown and Perkiomen Turnpike Road, October 28th, 1874. It neglected its duty with respect to the road, allowing it to remain in a condition which made it inconvenient and unsafe for ordinary travel, and was in so doing guilty of gross negli

The Act of April 29, 1844 (P. L. 497, Purdon, 1380, pl. 147), under which the present assessment is made, enumerates a large number of things taxable, among which are "all household furniture, including gold and silver plate." It is the established rule that the words of statutes are to be taken in their ordinary and popular sense, and it is plain that in this case the Legislature so intended, for they added the words including gold and silver plate," as something which would not naturally be embraced in the term furniture which had preceded. But in the class of cases arising under wills plate constantly passed as furniture; and in the ancient fashions, lately revived by the revolving circle of social customs, our grandmothers thought more of their display of plate on the gence. The plaintiff kept an inn upon this road. sideboard than of pictures on their walls, and She complained that her right to free and unobconsidered a room at least as well "furnished" structed ingress and egress for herself and by the former as by the latter. There was customers was prevented, whereby her business always, therefore, a larger sense in which furni- was injured; that she was compelled to go a cirture might include pictures as well as plate, but cuitous route with her goods, so incurring loss it was not the ordinary and popular sense of the by the extra labor of herself, her servants, and word. This was restricted to the universal im- horses; that she was compelled to forward her plements of household service which every fam-goods by common carriers, thereby incurring ily was expected to have in greater or less quantity and costliness, but all in some degree, and this, provided it exceeded in value the limit of the Act, $300, was the "furniture" which the Legislature intended to tax.

expense; that she was compelled to repair the road directly in front of her premises at her own cost; and that her regular customers and custom were driven off from her inn, whereby her profits were lost, and the good-will destroyed. All this, it was claimed, constituted peculiar, special damage.

The referee, however, after reviewing the cases, decided as follows:

by every other member of the general public, who desired to travel on that highway, and refrained from doing so because it was unsafe.

This conclusion is fortified by the construction universally put on the Act at the time of its passage. Some of the earlier American taxing Acts used the words household "utensils" (5 Dane's Abridgment, Ch. 136, Art. 14, § 23), and those "But I do not think that her position as one which spoke of "furniture" meant the same intending to be a traveller makes her injury at thing. For forty years the Act has been under-all different in kind from that which was suffered stood and administered, by tax gatherer and tax payer alike, not to include paintings and similar objects. It is to be hoped that the exigencies of the State will never require the taxation of art, "The only other claim of the plaintiff for damwhich all civilized men in all ages of the world ages depends upon her being an occupier of a have sought to encourage and develop, but if house and lot fronting upon the highway; and I such a departure from established usage is to be am unable to see how the damage done to her as made, it should be by a new and clear expres-such occupier, by the condition of this road was sion of the legislative will, not by a new reading of a statute nearly half a century old. The appeal is sustained and the assessment

stricken off.

Opinion by MITCHELL, J.
FELL, J., absent in Quarter Sessions.

J. D. B. Jr.

different in kind from that of every other citizen occupying premises situated similarly, or premises which might have been more conveniently approached by means of this highway, than they could be by other highways to which they had access. It is the right of all citizens to travel upon all the highways of the Commonwealth. The circumstance that some of them, by reason of proximity, or other cause, may be accustomed to use one highway more than others do, makes a difference in the amount of damage which accrues to them by being deprived of the use of

July, '83, 160.
Annville National Bank v. Kettering.
Bills and notes-Protest, waiver of- What words
or acts amount to-Meaning of waiver.

Protest of a note may be waived either by a writing or by parol.

A waiver of "protest" of a note by an indorser before maturity releases the holder from the necessity of making demand and of sending notice of non-payment.

made payable and to notify the defendant of its non-payment.

Counsel for plaintiff requested the Court to charge the jury, inter alia, as follows:—

(1) If an indorser gives directions to the indorsee at the time or before he brings the note for discount that the same shall not be protested, and this is assented to by the indorsee, it relieves the latter of the duty of making demand for payment of the maker, and of giving notice of nonpayment of the indorser of such note. Answer. This point is refused. Such waiver of protest is prima facie evidence of presentment to and demand upon the maker, but it does not relieve the indorsee from the necessity of such presentment and demand. (First assignment of error.)

(2) If the defendant waived protest of the note before maturity, no demand of the maker was necessary to charge him with its payment. Answer. This is refused for the reasons just given. (Second assignment of error.)

The Judge charged, inter alia, as follows:"Assuming that such waiver of protest was Error to the Common Pleas of Lebanon County. made, the legal effect of a waiver of protest, as Assumpsit, by the Annville National Bank the law has laid it down, is this—that it is prima against John Kettering, indorser on a note for facie evidence that all that was necessary to $101, discounted by the plaintiffs. Plea, non-charge the indorser has been done; that is, that assumpsit.

At the trial, before MCPHERSON, P. J., the facts appeared to be as follows:

the note was presented, that demand was made and that notice was given to the indorser-the indorser stands in the same place in law as if The note in suit was made by one William notice of protest had been actually made and Uhrich, payable sixty days after date to the order proven. Now, upon the evidence in of the said John Kettering at the Lebanon Na- the case-which, so far as we recollect it, is the tional Bank; which note was indorsed by the prima facie presumption, as we have explained said defendant, and was, at his request, on April it to you, and the evidence of Mr. Brightbill— 3, 1875, discounted by the Savings and Deposit you must determine if this note was presented Bank of Annville, he receiving the proceeds for payment. If you find it was presented the thereof. This note, some time after September day after it was due, and find also it was in the 17, 1878, became the property of the Annville possession of the Annville National Bank up to National Bank, the said Savings and Deposit that time, and was not in the Lebanon National Bank of Annville, the former owner thereof, having, on said last named date, commenced business as a national bank, assuming all the debts and liabilities and receiving all the assets of its predecessor, the Savings and Deposit Bank aforesaid.

Both the cashier and the teller of the Savings and Deposit Bank aforesaid testified that the defendant had had numerous notes discounted at their place of business prior to the one in suit; that, upon his applying to them for the discount of his first note, he stated that he desired to commence dealings with their bank, that he would be obliged to apply to them for discounts, and that he desired it to be understood that none of his notes should be protested; that, in pursuance of said request, none of his notes were protested, neither was demand made nor notice of non-payment given, and that, for the same reason, said bank omitted to protest the note in suit as well as to demand payment thereof at the bank where the same was

Bank at all until the 3d day of June, then we instruct you that no sufficient demand was made in the case, and the plaintiff cannot recover; because, as we have explained to you, the presentment and demand at maturity of a note is one of the essential requisites-speaking generally, or in ordinary cases-to charge the indorser, and we see nothing in this case to take it out of the ordinary rule; but that is a question of fact for you to determine."

Verdict for defendant, and judgment thereon. The plaintiff took this writ, assigning for error the answers to the above points and the portion of the charge above quoted.

Josiah Funck & Son, for plaintiff in error.

A waiver of protest has always been understood to mean a waiver of all the steps necessary to charge the indorser, and, consequently, a waiver of demand and notice.

Huckenstein v. Herman, 34 Leg. Int. 232.
Coddington v. Davis, 1 Comstock, 190.

The words, "waiver of protest," have also | foreign bills has become so well nigh universal long since acquired the above meaning in the that in common parlance the term means the business community, and to proclaim a new and taking of such steps as are required to charge different construction would be productive of the indorser. For the same reason, the word great hardship and inconvenience.

W. M. Derr, for defendant in error. Waiver of protest before maturity of the note, only waived the official act of the notary and the notice of non-payment. Notice can be given to the indorser of the non-payment of the note by another not a notary.

Falk v. Lee, 8 WEEKLY NOTES, 345. Waiving the protest puts the parties in the same condition as if protest had been made and given in evidence, being only prima facie, and in the absence of contradictory testimony is conclusive proof of notice to the maker.

Scott v. Greer, 10 Barr, 103.

Day v. Ridgway & Budd, 5 Harris, 308.

In the case of Huckenstein v. Herman (supra) it seems that the contention was not in regard to the demand, but to that of notice to the indorser, for in the opinion, the demand and notice of its results are coupled without any intention of separating the one from the other. The expression in Huckenstein v. Herman, relied upon by the plaintiff in error to overthrow the cases of Scott v. Greer and Day v. Ridgway, is the following in a per curiam opinion: "To waive the mere act of the notary, and yet to suffer the duty of making demand and giving notice to remain, would scarcely be thought of by business men."

"protested," sometimes employed in giving notice of dishonor to indorsers of inland bills and notes, clearly implies demand, non-payment, and consequent dishonor of the bill or note, in all cases where protest is necessary. (1 Pars. Bills and Notes, 471, 575, 579, 582, and authorities there cited.)

It is not essential that the waiver should be in writing. When the fact is established by competent evidence, a parol waiver is as valid and binding as a written one. The only difference is in the character of the proof. (Barclay v. Weaver, 7 Harris, 396.) It was there held that a verbal agreement, between the holder and indorser, to renew a note at maturity, might be shown by oral testimony, and that demand and notice were thereby dispensed with. The general principle, underlying nearly all cases of waiver, is that the indorser has by word or deed done something calculated to mislead the holder and induce him to forego the usual steps to fix the liability of the former.

well considered cases in other States, holding It is unnecessary to refer especially to several with demand and notice of non-payment. They that a waiver of protest without more dispenses

are in full accord with our own cases on the subject, the last of which is Huckenstein v. Herman (34 Leg. Intell. 232). That was a suit by May 19, 1884. THE COURT. No principle the holder against the indorser of a note which of the law merchant is better settled than that was not presented for payment at maturity. To demand and notice of the non-payment of a sustain the averment of demand and notice of negotiable note may be waived by the indorser, non-payment, the plaintiff relied on the words either orally or in writing, or by acts clearly│" protest waived," written on the note and calculated to mislead the holder and prevent signed by the indorser the day before, or early him from treating the note as he otherwise in the morning that the note matured. The would, but there is some diversity of opinion as Court charged in substance that the words were to what constitutes a waiver of these necessary equivalent to an express waiver of demand and prerequisites to charge the indorser. When a notice and on that point there was a verdict for written waiver of "demand and notice" accom- the plaintiff. In the per curiam opinion of this panies the indorsement, or is given by the in- Court, affirming the judgment of the Common dorser before maturity of the note, there can be Pleas, it is said: "A waiver of protest before no question as to its legal effect, nor can there maturity of a note is a waiver of all the steps be any doubt when the language employed leading to it and includes demand and notice of clearly imports or implies the same thing. It non-payment. This, we think, is the general has been doubted, however, whether the words understanding of a waiver of protest among busi"protest waived," written on a note by the in-ness men. The very purpose of waiver is to superdorser, or his separate request in writing not to sede the ordinary steps and avoid trouble and exprotest it, is a waiver of both demand and pense. To waive the mere act of the notary and notice, and in some cases these words have been yet suffer the duty of making demand and giving considered insufficient to dispense with either; notice of its result to remain, would scarcely be but the weight of both reason and authority is thought of by business men." It is argued by the that they do constitute a waiver of both. learned counsel of defendant that this conflicts Strictly speaking the term "protest" applies with the former ruling of this Court in Scott v. only to foreign bills, but the custom to treat Greer (10 Barr, 103) but we do not so underinland bills and notes in the same manner as stand it. In that case it was held that the waiver

there was no legal demand or notice, the verdict, as matter of course, was for defendant. The plaintiff's testimony, if believed by the jury, was clearly sufficient to have warranted them in finding the facts as stated in the foregoing points, and for reasons already suggested they should have been affirmed.

of protest by an indorser on the day the note "Such waiver of protest is prima facie evidence matured puts him in the same situation as if the of presentment to and demand upon the maker, protest had been made and proved; and there but it does not relieve the indorsee from the being no contradictory evidence, it is proof necessity of such presentment and demand;" under the Act of Assembly of demand, refusal, and he further instructed the jury in substance and notice. It is true, the learned Judge who that if, in point of fact, no demand was made delivered the opinion in that case intimates that or no notice given to defendant the plaintiff the prima facie case thus presented by the plain-could not recover. It being conceded that tiff might have been rebutted by showing that no demand was in fact made; but, what was said on that subject was aside from the question before the Court, and so far as his remarks may be considered in conflict with the ruling in Huckenstein v. Herman, supra, they cannot be regarded as authority for the position that a waiver of protest does not necessarily imply a waiver of de- When the alleged waiver is in writing, its conmand and notice. The principle decided in struction is for the Court, but when it consists of Huckenstein v. Herman, is akin to that in-verbal communications, it is the special province volved in Ridgway v. Budd (1 Harris, 208) and of the jury to consider the testimony and ascerBrittain v. The Doylestown Bank (5 W. & S. 87). tain the facts. When ascertained it is their duty In the latter case, the indorser, by memorandum to apply the law under the direction of the on the note, waived "notice of non-payment by the maker," and it was held that proof of demand was thereby rendered unnecessary. "The interpretation," said GIBSON, C. J., "is that he agreed to become immediately liable, without more, in case the note should not be taken up at maturity."

Court. Assuming the facts to be as recited in the points, the law as therein stated is correct, and hence there was error in refusing to affirm plaintiff's first and second points and in charging the jury as complained of in the third specification.

Judgment reversed, and a venire facias de novo awarded. W. M. S. Jr.

Opinion by STERRETT, J.

In the case at bar, it is conceded there was neither demand nor notice of non-payment nor was there any written waiver of protest. For the purpose of sustaining the material averment of demand and notice, testimony was introduced by plaintiff tending to prove in substance, that during a course of dealing with the bank, defendant had several notes discounted and the Jan. '83, 387. proceeds placed to his credit; that when he first requested a discount, he informed the officers of the bank that desiring to deal with them he would be obliged to apply for discounts and wished it to be understood that none of his notes should be protested; that pursuant to this request none of them were protested, nor was payment of them demanded of the maker; and in consequence of that understanding, payment of the note in suit was not legally demanded nor was notice of non-payment given to defendant. In view of this testimony, the Court was requested to charge :

1st. "If an indorser gives directions to the indorsee, at the time or before he brings the note for discount, that the same shall not be protested, and this is assented to by the indorsee it relieves the latter from the duty of making demand for payment of the maker, and of giving notice of the non-payment to the indorser of such note."

Earley's Appeal.

April 11, 1883.

Constitutional law-Constitution of Pennsylvania, Art. IX. § 7-Municipal corporationsUltra vires-Judgments-Set-off.

Municipal corporations have no power to purchase the outstanding judgments or obligations of their creditors for any purpose whatsoever, not even to set them off against

the claims of said creditors.

A. obtained judgment against a borough, B., the treasurer of that borough, held a judgment against A., which was subsequently purchased by said borough. The avowed purpose of this transaction was to use the borough as a means to collect B.'s judgment by way of set-off against A.'s judgment:

within the prohibition of Article IX. 7, of the Constitution of Pennsylvania, and hence that the proposed set-off was inadmissible.

Held, that this was a loan of the credit of the borough

Appeal of M. C. Earley from a decree of the 2d. "If the defendant waived protest of the Common Pleas of Luzerne County, allowing note before maturity, no demand of the maker certain judgments assigned to the borough of was necessary to charge him with its payment.' "Pleasant Valley to be set off against a judgment The learned Judge refused these points, saying: obtained by him against the said borough.