Aldridge vs. Baltimore & Ohio Railroad Co.

action of the protection which they would have afforded. But one who has not beer misled cannot invoke this doctrine in his behalf. If the party who seeks protection by setting up an estoppel has not been misled he is not entitled to the benefit of the doctrine. The rule is that one shall be estopped from alleging the truth, only when his falsehood or his silence has induced action by the other party that would lead to loss except for the estoppel." Sensinger vs. Boyer, 153 Pa. 628. "It is essential to an estoppel that the party who asserts it has been misled." Garvey vs. Refractories Co., 213 Pa. 177. "Acts which do not amount to an unequivocal assertion of a fact inconsistent with the truth, and do not reasonably induce belief contrary to the truth, and consequent action based on that belief, cannot bind as an estoppel." Silliman vs. Whitmer & Sons, 11 Pa. Superior Ct. 243. "A waiver never occurs unless intended, or where the act relied on ought in equity to estop the party from denying it." Diehl vs. Adams County Mutual Insurance Company, 58 Pa. 443. This last statement of the law seems to us peculiarly applicable to the case now under consideration. It is not alleged that a waiver was intended, and the question then arises whether or not the defendant ought in equity to be estopped from denying that the deduction from Aldridge's wages constituted a waiver of the forfeiture of benefits. In the case last cited a policy of fire insurance on a building had been forfeited by alterations in the building in violation of the by-laws of the company. Afterwards the company passed a resolution directing an assessment on all policies in force at that time. The treasurer of the company assessed the forfeited policy and the assured paid the assessment. This was held not to be a waiver of the forfeiture, the court saying: "It is very evident that the action of the treasurer in including the plaintiff's note, as subject to assessment, was a mistake on his part. He had no authority to include it, for the directions to assess applied, expressly, only to such notes as were in force when the order was given. Some days prior to the direction to assess, the note had ceased to be obligatory or liable to any future assessments. The object was to establish a waiver of a breach of conditions. But this never occurs unless intended, or where the act relied on ought in equity to estop the party from denying it." In that case the payment of the assessment was made voluntarily by the plaintiff after he knew that his policy had been forfeited. In the present case the deduction was made from Aldridge's wages after he had been discharged and after he knew that his and his beneficiary's rights to benefits had been forfeited. But taking into consideration all the facts in each of the cases we think they were as strong in favor of an estoppel in the Diehl case as they are in the Aldridge case. The doctrine that a waiver of a breach of conditions never occurs unless intended, or where the act relied on ought in equity to estop the party from denying it, is reasserted in Dunn vs. Farmer's Fire Insurance Company, 34 Pa. Superior Ct. 245, and in Lapcevic vs. Lebanon Mutual Fire Insurance Company, 40 Pa. Superior Ct. 294.

There is no reason in equity why the defendant ought to be estopped from denying a waiver in this case. There was no continued series of deductions from Aldridge's wages. The deduction of the $2.25 did not induce any action of any kind on the part either of Aldridge or his wife. Neither of them in any way was misled. Neither of them knew prior to the death of Aldridge that the deduction had been made. Neither of them suffered any loss. The refund voucher and the pay check for the remainder of Aldridge's wages were delivered at the same time in an envelope to Reagan who turned them over to Mrs. Aldridge for her husband a day or two before Aldridge died, but the envelope was not opened until after Aldridge's death. Mrs. Aldridge says she never tried to get the refund voucher cashed. When the pay check was cashed, if ever, does not appear. If the $2.25 had not been deducted from Aldridge's wages it would have been included in his pay check.

Aldridge vs. Baltimore & Ohio Railroad Co.

Both the pay check and the refund voucher were made payable to Aldridge, inasmuch as they were issued prior to his death. There could be no trouble in securing payment of the refund voucher different from that in getting the money on the pay check. In each of the cases cited by plaintiff's counsel where a forfeiture was held to have been waived there was some action or conduct on the part of the defendant by which the holder of the membership certificate or policy of insurance was misled or through which he was induced to action inconsistent with forfeiture. In the White case all the facts were known to the superintendent of the relief department and dues were deducted from White's wages leading him to believe that he had a valid membership in the department. In the Kalinski case the defendant itself was at fault, and by the continued receipt of assessments and the ruling of the board of control Kalinski was led to believe that his certificate of membership had not been forfeited. In the Light case the action of the plaintiff clearly was induced by the secretary of the defendant company. In the Baranowski case the acceptance of weekly installments after proof of sickness led Baranowski to believe his benefit certificate continued to be valid. The deduction from Aldridge's wages was made erroneously, but it neither misled Aldridge or his wife nor induced them to action inconsistent with forfeiture. We are of opinion that the transaction was not one which ought in equity to estop the defendant from denying a waiver on its part of the forfeiture of death benefits.

There are other reasons assigned by the defendant why a recovery by the plaintiff should not be sustained, but holding as we do on the question already discussed it is not necessary to consider the other features of the A motion for a new trial was filed, but has not been pressed.

case.

And now, September 4, 1911, all the evidence taken upon the trial having been certified and filed so as to become part of the record, after argument by counsel and upon due consideration, and for the reasons set forth in the opinion herewith filed, the motion for a new trial is overruled and dismissed and a new trial is refused, and it is ordered that judgment be entered for the defendant non obstante veredicto upon the whole record.

Commonwealth vs. Adams.

Criminal law-Cruelty to animals- -Charge of Acquittal-Payment of. Costs Act of September 23rd, 1791.

A summary proceeding charging cruelty to a horse, brought under the Act of March 29th, 1869, P. L 22, is a crime within the meaning of the 13th section of the Act of September 23rd, 1791, relating to the payment of costs in certain criminal cases, and a defendant acquitted of such a charge is not liable for costs. They must be paid by the county.

Appeal from summary conviction. No. 242 September Sessions, 1911. Q. S. Fayette County.

Davis W. Henderson, district attorney, for Commonwealth.

McDonald & Cray, for defendant.

VAN SWEARINGEN, J., October 31, 1911.-The defendant was convicted of cruelty to animals before a justice of the peace in a summary proceeding. It was charged in the information that he did "wilfully and unlawfully illtreat and otherwise abuse a certain medium sized sorrel horse by driving, and allowing, causing and permitting to be driven, said horse while it was very lame in its off front foot," contrary to the Act of March 29, 1869, P. L. 22, and to the Act of May 6, 1909, P. L. 443. The prosecutor was an agent of the Pennsylvania Society for the Prevention of Cruelty to Animals, although he does not appear as such on the record. The defendant was sentenced by the justice to pay the costs of prosecution and a fine of $15, or to undergo an imprisonment of six months in the county jail. The defendant appealed to the Court of Quarter Sessions, and at the hearing there it developed that the prosecution against him was wholly unwarranted, that the horse was being treated by a veterinary surgeon for a sore foot and was being exercised by the defendant by advice and under direction of the veterinary, it being deemed better for the health and comfort of the horse that it have a proper amount of exercise than to be kept all the time in the stable. It was proved that the horse, which was a valuable one, was given special care and attention, and that extra precautions were taken for its welfare. At the conclusion of the hearing we made a verbal order discharging the defendant, stating that later we would file a written order to that cffect and dispose of the costs.

At common law the crown neither paid nor received costs in criminal cases. The prosecutor was not liable for costs in any case, because the prosecution was in the name of the crown. The defendant was liable for the costs even in case of acquittal, his only remedy being an action against the prosecutor for malicious prosecution. This was the law brought to the colony of Pennsylvania, and is the law here to-day in criminal cases except as changed or supplied by statute. Commonwealth vs. Curren, 2 Chest. Co. Reps., 393; Kirkendall vs. Luzerne County, 11 Phila., 575.

The matter of costs where a defendant is discharged on appeal from a summary conviction, as in the present case where the act charged against him is a crime, is governed now by section 13 of the Act of September 23, 1791, 3 Sm. L. 43, which provides: "Where any person shall be brought before a court, justice of the peace, or other magistrate of any city or county in this commonwealth, having jurisdiction in the case, on the charge of being a runaway servant or slave, or of having committed a crime, and such charge, upon examination, shall appear to be unfounded, no costs shall be paid by such innocent person, but the same shall be chargeable to and paid out of the county stock, by such city or county." This section is excepted from the repealing clause of the Act of March 31, 1860, P. L. 451, and still is in force in cases within its scope which have not been covered by later legislation. The word "crime" as used in this section means any

Commonwealth vs. Adams.

indictable offense, either of felony or misdemeanor, and includes the case of a defendant charged with cruelty to animals. Lehigh County vs. Schock, 113 Pa., 373. Section 11 of the Act of 1791 contained a similar provision as to the payment of costs in cases of bills of indictment ignored by the grand jury. The disposition of costs now in all cases of misdemeanor in which bills are ignored by the grand jury, or in which defendants are acquitted by petit juries, or where defendants in surety of the peace cases are discharged by the court, is controlled by sections 62 and 64 of the Act of March 31, 1860, P. L. 445, extended to desertion cases by section 3 of the Act of April 13, 1867, P. L. 79, and to certain cases of felony by the Act of May 25, 1897, P. L. 89, permitting the grand jury to place the costs of prosecution on either the county or the prosecutor, and the petit jury or the court, as the case may be, to place the costs upon either the county, or the prosecutor, or the defendant, or to apportion them equally or unequally between the prosecutor and the defendant.

But section 13 of the Act of September 23, 1791, 3 Sm. L. 43, governs the matter of costs where a defendant is discharged upon an appeal from a summary conviction in a case where the act charged is a crime. It does not authorize the placing of the costs on the prosecutor, or the collection of them from him in any manner. It prohibits the collection of the costs from the defendant. But it contains the provision that the costs "shall be chargeable to and paid out of the county stock by such city or county." It is plain, therefore, that the costs in this case must be paid by the county. Doubtless they would be payable by the county commissioners without an order of court. Beaverson vs. York County, 1 Pa. C. C., 606; Kirkendall vs. Luzerne County, 11 Phila., 575. But to avoid any doubt in the matter we make the

ORDER.

And now, October 31, 1911, after hearing, the defendant is discharged, and it is ordered that the costs be paid by the County of Fayette.

Bradley's Estate.

Attorney's statutory fees-Payment to prothonotary-Liability for -Statute of limitations.

A prothonotary who receives the costs for a case entered in his office, which includes the statutory attorney's fee, holds the fee in his official capacity as prothonotary and not as an individual, although there is no specific legislation requiring him to receive such fees, and a trust relation is thereby created between him and the attorney entitled to the fee. The statute of limitations cannot be pleaded by the prothonotary or his heirs in a proceeding to recover such fee which the attorney had not attempted to collect from the prothonotary until more than six years after it had been paid him.

Decedent's Estate. No. 97 October Term, 1911. O. C. Allegheny County.

E. E. Cotton, for accountant.

Geo. J. Kambach, for beneficiaries.

Andrew S. Miller, for claimant.

Smith H. Shannon, as Executor of Henry A. Miller, deceased.

MILLER, J., November 22, 1911.-The preliminary question in this case is, whether the statute of limitations is a bar to claims presented for moneys alleged to have been received by the decedent while he was the Prothonotary of this county.

John Bradley, the decedent, was the duly elected Prothonotary of Allegheny County for three terms from January 1st, 1886, to January 1st, 1895, inclusive. During that period various costs including docket fees of attorneys in various cases, were paid to him as Prothonotary and so receipted for; he died September 15th, 1910. A limited number of instances are presented in which it appears that costs in the cases as shown were from time to time paid as marked upon the docket entries, and that the parties who are entitled thereto have not receipted therefor, thus raising the presumption that they were not turned over. Some of the claims presented are accompanied with offers to prove as a fact that the amounts have not actually been paid. To the payment of such claims, where actually proven objection is interposed, on the ground that they are barred by the statute of limitations, which statute is invoked by the decedent's heirs.

Section 76 of the Act of April 14, 1834, P. L. 355, provides, after setting forth the necessity of an oath and the giving of a bond, by Prothonotaries, inter alia, that they will "well and truly to account for and pay according to law all moneys which shall be received by them in their official capacity."

The duties of Prothonotaries are thus defined under the Act of 1834, viz: "I. To assign and affix the seal of the respective Court to all writs and process, and also to the exemplifications of all records and process therein. II. To take bail in civil actions, depending in the respective Court. III. To enter judgments, at the instance of plaintiffs, upon the confessions of defendants.

IV. To sign all judgments.

V. To take the acknowledgment of satisfaction of judgments or decrees entered on the record of the respective Court.

VI. To administer oaths and affirmations in conducting the business of their respective offices."

The taxing of costs in Allegheny County is under the Act of February 22, 1821, Section 2, Smith's Law, Volume 7, page 367, and provides as follows:

"And be it further enacted by the authority aforesaid, That the attorneys at law of the several Courts of this Commonwealth, shall be entitled to receive for issuing praecipe for the commencement of any suit, entering an appearance on the prothonotary's docket if the suit is ended on or be