In re Condemned Buildings. Rights of Occupant Landlord and Tenant-Fire Marshal-Powers of When a State Fire Marshal condemns a building and orders it vacated, removed or destroyed, the occupant or tenant, the terms of whose lease requires him to make repairs, should have notice as well as the owner in order to permit the tenant to appeal so as to show that the dangerous features as to the building could not be removed by the proper repairs. The extraordinary powers conferred upon a fire marshal must not be permitted to improperly interfere with contractural relations. This Department is in receipt of your inquiry of the 17th inst. in which you ask to be advised as to the "liability of the owner or lessee in a case where a building under lease is condemned and order issued for altering the hazardous condition." The circumstances, as we understand them, which make this question material are principally where an order has been served on the landlord and the tenant prevents or attempts to prevent him from entering upon the promises for the purpose of complying with such order. Section 5 of the Act of June 9, 1911, P. L. 658, provides that where a building is determined to be in such condition as makes it subject to an order by the State Fire Marshal for its removal or repair "such order shall forthwith be complied with by the owner or occupant of such premises or building." Throughout this section the terms "owner or occupant" are treated in the alternative and under this Act it is optional with yourself to treat either one as responsible for the condition. Your practice has been to serve such notice on the owner, and, with but few exceptions, the occupant has assisted in permitting the owner to forthwith comply with such order. This practice has developed from the fact that the objectionable conditions usually existed prior to the beginning of the term of the lease. Whether. that fact exists in each case or not is immaterial insofar as the duty is on one or the other of them to comply with a proper order made by you. In case you should make this order upon the owner and the occupant would resist the owner's entering upon the premises for the purpose of complying with it, the occupant by such action not only states that the owner does not have the right to make the repairs, but is not under obligation to do so, and thereby fixes upon himself the responsibility and expense of compliance with any order which you may subsequently make upon him. We would advise you when making an order upon the owner of a building or premises, to serve a copy of such order upon the occupant with directions that he permit the owner to immediately enter said premises for the purpose of complying with the order, and that he notify you of his consent thereto. When the order is for the removal or destruction of the building the occupant should particularly be made a party, so that he may be given the right of appeal for the purpose of showing that the dangerous condition may be remedied by repairing, for the reason that the extraordinary powers given to you must be guarded so that they may not be In re Condemned Buildings. made a vehicle whereby the owner may dispossess a tenant prior to the termination of his lease, or otherwise improperly interfere with their contractual relations. The Practice Act of 1915 applies to appeals from a Justice of the Peace and the plaintiff's statement must conform to that Act, and a demurrer to a rule filed to strike off the statement because the statement did not conform to the Act will be sustained. Demurrer. No. 270 March Term, 1916. C. P. Schuylkill County. R. P. Hicks, for demurrer. G. H. Gerber, contra. BECHTEL, P. J., October 9, 1916.-This case is an appeal from the Justice in an action in assumpsit. A declaration was filed March 20th, 1916, which ¿ces not conform to the requirements of the Practice Act of 1915. Thereupon a rule was granted to strike off the plaintiff's statement, to which rule counsel for the plaintiff filed a demurrer. Counsel for the plaintiff contends that the first section of the Practice Act limits its operation to actions of assumpsit and trespass, except actions for libel and slander brought in any Court of Common Pleas. Counsel contends further that as this action was brought before a Justice of the Peace, it is not an action brought in any Court of Common Pleas within the meaning of the Act, but that the Court of Common Pleas has only appellate jurisdiction; hence that the Act does not apply. We cannot agree with this contention. There is no doubt in our mind that the Practice Act was passed for the purpose of establishing a uniform system of practice in the actions mentioned in the several courts of the Commonwealth. There can be no doubt that the appeal from the Justice brings the action into the Court of Common Pleas. In our opinion, there are several ways of bringing actions into the Court of Common Pleas. One may be by praecipe filed in the proper office and another by an appeal from the Justice of the Peace, on which appeal the cause is heard de novo. This being so, we think it too plain for argument, that this cause is governed by the Act of 1915, supra. And now, October 9, 1916, the demurrer to the rule filed in this case is herewith overruled, the rule is made absolute, the plaintiff's statement is herewitth stricken from the record and the plaintiff is given ten days from this date in which to file a supplementary statement. Bills and Notes -Agency Peoples National Bank vs. Glassmere Land Co. Accommodation Maker-Holder for Value-Consideration An affidavit of defense to promissory notes in the name of a corporation to the effect that the notes were never authorized by the board of directors is insufficient, when it is averred that the original notes were not authorized by the directors, but it is not averred that the renewal notes, upon which suit was brought, were not So authorized. An accommodation maker and endorser of promissory notes is not relieved of liability when the notes have passed into the hands of a third party, and it is not averred in the affidavit of defense that the holder had knowledge of any irregularities even when it is admitted that the proceeds of the notes were credited to the account of another, as an accommodation maker is liable to a holder for value. An affidavit of defense is insufficient in a suit on a promissory note when it is averred that plaintiff holds other collateral securities for the same debt more than sufficient to extinguish this debt, without averring that these securities had been realized and the debt extinguished. Rule for Judgment for Want of a Sufficient Affidavit of Defense. No. 178 July Term, 1916. C. P. Allegheny County. Wishart & Dickie, for plaintiff. Geo. H. Calvert, for defendant. CARPENTER, J., July 26, 1916.-The notes in suit purport to have been made by defendant to its own order and endorsed by it. It is averred that the original notes were not authorized by the Board of Directors of defendant. This phase of the controversy will be discussed later. That the notes were made in the name of the defendant by its President and Treasurer is not disputed. Assuming, as must be done, for the purpose of discussion, that defendant's averment of facts within its knowledge, or that it is informed, believes and expects to be able to prove are true, the history of the transaction is as follows: The notes in suit are renewals of notes for like sums. The notes as originally drawn are payable to the Lincoln National Bank, were discounted by that bank, and the proceeds placed to the credit of the maker, defendant herein. The proceeds as credits to defendant were immediately transferred by it to the account of the Allegheny Plate Glass Company. C. B. McLean, President, and H. A. Johnston, Cashier of the Lincoln National Bank, knew that each of the notes was executed and presented for discount. solely for the benefit of the Allegheny Plate Glass Company. Each of the original notes was executed, delivered and presented for discount without the authority of the Board of Directors of defendant company, and this fact was known to the executive officers of said bank at and before the time said notes were discounted. It is denied that the Peoples National Bank paid any consideration for the notes, but it is averred that they were transferred by the Lincoln National Bank to the plaintiff as security for repayment of advances, the total amount of which is unknown to defendant. It is denied that plaintiff is the bona fide holder of said notes in due course and is averred that in bringing suit the plaintiff is acting as the agent of the Lincoln National Bank. That the notes are in the usual form and negotiable, cannot be, and in fact is not, disputed. The defense is predicated upon four propositions: (a) The original notes of which the notes in suit are renewals, were issued without authority from the Board of Directors of defendant. Peoples National Bank VS. Glassmere Land Co. (b) The notes were made and discounted for the benefit of the Allegheny Plate Glass Company, were accommodation notes, from which defendant received no benefit. (c) When the said notes were made to and discounted by the Lincoln National Bank, the President and the Cashier of said Bank knew that the same were made and discounted for the benefit of said Allegheny Plate Glass Company, and also knew that the Board of Directors of defendant had not authorized the making and discounting of same. (d) Plaintiff is not the holder of said notes for value and in bringing suit it is merely the agent of the Lincoln National Bank. As to the first proposition (a) it is sufficient to say, that whilst it is true that the original notes may have been issued without authority from the Board of Directors, it is not averred that the renewal notes, the notes in suit, were not authorized. Assuming the facts to be as alleged in the second and third propositions (b and c) I am unable to discover wherein they show a good defense. If, as between the defendant and the Allegheny Plate Glass Company, the former was a mere accommodation maker, it does not follow that defendant is released from liability. It is admitted that the Lincoln National Bank discounted the notes and passed the proceeds to the credit of the defendant. The averments of the affidavit of defense indicate that the defendant was an accommodation-I might say accommodating-borrower. Section 29, Article II, of the Negotiable Instruments Act of 1901, P. L. 194, says: "Such a person (accommodation maker) is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party." Of course this does not touch the question of want of authority to make the notes, but, as above stated, the want of authority mentioned in the affidavit refers only to the original notes and makes no reference to the notes in suit, and it is a fair inference, that if the defendant had reason to believe that the renewal notes were issued without authority it would have said so. The fourth proposition (d) is, in effect, that plaintiff is not a bona fide holder for value, but is the agent of the Lincoln National Bank. Attention has been called to the fact that while averring that plaintiff is not a bona fide holder for value, defendant, in this connection, says that: "To the best of defendant's knowledge, informatoin and belief, the notes, of which the three notes in suit are renewals, were transferred by the Lincoln National Bank as security for the repayment of certain advances, whose total amount and exact nature is not known to the defendant company, made or to be made by the Peoples National Bank to or for the benefit of the Lincoln National Bank." In the face of this statement the allegation that the plaintiff is not the holder for value falls. If, then, plaintiff is a holder for value, before maturity, the fact that the executive officers of the Lincoln National Bank knew that the defendant was borrowing money for the Allegheny Plate Glass Company, cannot avail as a defense. It is not averred that plaintiff had any notice or knowledge of the alleged irregularities in issuing the original notes or the renewal notes. It may be true, and for the purposes of this case is assumed to be true, that defendant received no benefit from the transaction and it may also be true that it holds security for the money borrowed by it and loaned to defendant. It is vain to asseverate that the endorsee is not a holder for value of negotiable paper, if at the same time it is averred by defendant that the negotiable instrument was transferred as security for advances made to the endorser. The averment of "agency," Peoples National Bank vs. Glassmere Land Co. predicated on the proposition that under the facts stated the plaintiff is not a holder for value, avails nothing. There is no averment denying the general power of defendant to issue negotiable paper, hence, notes which, on their face, show no defect, are presumed to have been issued in due course and in the exercise of such power, and are not open to attack in the hands of an innocent holder for value. The law upon this subject is very fully and clearly stated by the late Mr. Justice Elkins in Cox & Sons vs. Northampton Brewing Co., 245 Pa., 418. See also Daniel on Negotiable Instruments, Vol. 1, page 486, Section 386. Defendant's contention that plaintiff holds other collaterals for the debt due from the Lincoln National Bank and, therefore, cannot recover on the notes in suit, is unsound. In Lord vs. Ocean Bank,' 20 Pa., 384, Mr. Chief Justice Black states the law on this subject as follows: "The affidavit further alleges, that there were other collateral securities for the same debt, more than sufficient, without this note, to cover it. If these other securities had been realized and the debt extinguished by them, the plaintiff could not recover. But the affidavit does not say that; and whatever is not said in an affidavit of defense is taken not to exist." See also opinion by Mr. Justice Mestrezat in Delaware County Trust Company vs. Haser, 199 Pa., 17. Additional authorities bearing upon the several questions raised might be cited, but it is deemed unnecessary. Rule absolute. Westerman vs. Pennsylvania Salt Manufacturing Company. Injunction -Mines- Coal Under Adjoining Properties—Laches-Doctrine of Balancing of Equities. A bill for an injunction to restrain defendant from carrying coal mined out of other properties through workings under plaintiff's land will be dismissed where it appears that plaintiff knew at the time he sold his coal that defendant owned coal under adjoining properties, and waited six years before filing his bill, knowing all that time that defendant was carrying other coal under his land, in that he was guilty of laches. The doctrine of balancing of equities should be applied, if that doctrine is ever applicable, where by granting an injunction the benefit to the plaintiff would be nothing at all and the loss to the defendant very great. The question as to the extent to which that principle is to be admitted in the Equity jurisprudence in this state not discussed. In Equity. No. 286 July Term, 1914. C. P. Allegheny County. McVicar, Hazlett & Gardner, for plaintiff. McKelvy & Wright and Dalzell, Fisher & Hawkins, for defendant. SHAFER, P. J., June 28, 1916.-The bill is for an injunction to restrain the defendant from carrying coal mined out of other properties, through workings under the plaintiff's land, and for an account. FINDINGS OF FACT. First. The defendant company operates a manufacturing plant in the County of Allegheny, and has done so for many years, using as power, coal of the Upper Freeport vein mined by it under lands near its works. Second. The plaintiff in 1897 was, and ever since has been the owner of a tract of land containing about eighty acres, in Fawn Township, and on December 4, 1897, sold and conveyed to the defendant all the coal lying |