the claim." Maisch v. Order of Americus, 223 Pa. 199, 72 Atl. 528; Fletcher v. Gawanese Tribe, No. 281, 9 Pa. Super. Ct. 393.

[2] The act of April 28, 1876 (P. L. 53), "relieving members of beneficial societies from individual liability for lodge indebtedness," when it provides that "members shall not be individually liable for the payment of periodical or funeral benefits or other liabilities of the association, and the same shall be payable out of the treasury," by the words "other liabilities," means all liabilities properly chargeable to the treasury of the society, and contemplates obligations in addition to funeral expenses or death benefits. Pain et al. v. Sample, 158 Pa. 428, 27 Atl. 1107. If the defendant association were liable for appropriating the property of the plaintiffs to its own use, its treasury, and not the funds of the individual members, would have to respond in damages.

1. INJUNCTION (§ 85*)-SUBJECTS OF RELIEF -ENFORCEMENT OF ORDINANCE.

Equity may, by injunction, interfere with the enforcement by a municipality of an ordinance whose validity is in question, where there is a threat to take the employés of a street railway off its cars by arrest.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. § 85.*] 2. STREET RAILROADS (§ 65*)-REGULATION— MUNICIPAL ORDINANCES. incorporating the city of New Castle, Act May Neither Act Feb. 25, 1869 (P. L. 249), 16, 1901 (P. L. 224), amending Act May 23, 1889 (P. L. 277), as to cities of the third class, nor Act March 22, 1887 (P. L. 8), relattor power companies, confers on the city of ing to the incorporation and regulation of moNew Castle, a city of the third class, power to enact an ordinance requiring all companies operating street railway lines to equip every car with the latest, best, and most approved safety brakes, and specifying the kinds of brakes to be used, with provision for fine or imprisonment for violation of the ordinance, nor has the city any incidental or implied power to enact such an ordinance. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 144; Dec. Dig. § 65.*]

[3] But it is clear on the facts in this case that there was no such liability. When the forfeiture of the charter was declared, the state council of the Junior Order of United American Mechanics did not take over the property of the defendant council, and the reissue of the charter to the plaintiffs, after a lapse of more than six years, would not serve to vest in them, or in the lodge organ-3. ized by them, the property in question; nor would it give them any peculiar right of possession therein. The plaintiffs had no right of possession other than the joint right which they enjoyed in common with the other members of the defendant council, and their secession therefrom would not divest its property. State Council Junior Order of United American Mechanics v. Emery, 219 Pa. 461, 68 Atl. 1023, 15 L. R. A. (N. S.) 336, 12 Ann. Cas. 870.

STREET RAILROADS (§ 73*)-POLICE POWER.

In the absence of express authority of enactment, a penal ordinance regulating the safety devices to be adopted by a street railway, which undertakes to enforce a higher standard than that imposed by the common law, should not be sustained..

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 177, 178; Dec. Dig. § 73.*]

4. STREET RAILROADS (§ 67*)-REGULATIONPOWER OF MUNICIPALITY.

The judgment of the board of directors of a railroad company is supreme and exclusive in the absence of statutory provision in the operation of its road and in the running of its cars, since the public safety requires that there be no division of the responsibility with others, even municipalities, and the means of protecting the public is left to the company.

[Ed. Note.-For other cases, see Street Rail

roads, Cent. Dig. §§ 146, 147; Dec. Dig. 8 67.*]

Appeal from Court of Common Pleas, Lawrence County.

[4] The other ground for entering the nonsuit, namely, because the action was not brought in the name of the trustees of the plaintiffs' association, likewise seems to be well taken. The laws of the order to which that society belongs ordain that the trustees of a local lodge shall "take charge of and hold all the property of the council not otherwise provided for." This evidently contemplates more than a mere passive trust. "In cases of unincorporated associations * suits may be brought by some of the members in their own names on behalf of and as representing all" (Liederkranz Singing Society v. Germania Turn-Verein, 163 Pa, 265, 29 Atl. 918, 43 Am. St. Rep. Bill in equity to restrain the enforcement 798); but, where the suit is to protect prop- of and to declare invalid a municipal penal erty rights, and the legal estate in the prop-ordinance requiring a street railway comerty taken or injured is vested in trustees whose duty it is not only to hold the title but to take charge of the property, the action should be brought in the name of such trustees.

Bill in equity by the Mahoning & Shenango Railway & Light Company against the City From a decree of New Castle and others. dismissing the bill, plaintiff appeals. Reversed and remanded, with directions.

pany to use the latest, best, and most approved safety brakes, and specifically designating that certain brakes shall be used until some better one is devised.

At the hearing the ordinance was deterThe assignments are overruled, and the mined to be valid, and the bill was dismissed. judgment is affirmed. It appears from the evidence and findings

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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street railway lines in the city of New Castle
(section 1) to "equip each and every car oper-
ated
with the latest, best and most
approved safety brakes"; (section 2) "until
some better or more practical brake or de-
vice is made for the purpose of braking or
locking cars *
* to equip each of their
respective cars with the kind of brake known
as the magnetic brake * * * the said
brake to be the same or similar to those
which were recently used by the Mahoning
& Shenango Railway & Light Company
* * * in said city, or an air brake similar
to those now in use on the interurban lines
now entering the city, the said brake or
brakes to be in addition to the hand brakes
with which each car shall be equipped," and
(section 3) that, upon conviction of any vio-

posed of not less than $10 or more than $100 and costs of suit, and upon refusal to pay, imprisonment not exceeding 30 days, with an allowance of execution process to collect fines and costs from corporations.

of the court below that the city of New Castle is a city of the third class; that the plaintiff company is a traction or motor power company incorporated under the act of March 22. 1887 (P. L. 8), running cars upon the streets of the defendant city, in which there are some steep grades; that the plaintiff operates 4 double-truck cars, 26 singletruck cars, and a number of trailers, the last mentioned having no motor or other power; that the weight of the single-truck cars is from 9 to 12 tons each; that the speed limit fixed by ordinance in said city is 8 miles per hour; that the plaintiff's cars are all equipped with a hand brake and a reverse of the usual pattern, and with a fender which increases the efficiency of the hand brakes; that the double-truck cars have in addition to the hand brake an air brake of the char-lation of the ordinance, a fine shall be imacter required by the ordinance in question; that it is impracticable to install in the single-truck cars the apparatus necessary for the operation of the air brake required by the ordinance; that the hand brake is the safety appliance in most common use and most generally approved for braking or stopping street railway cars; that the magnetic brake required by said ordinance can be used in connection with the hand brake, and adds to the safety of operating cars, but that the magnetic brake "cannot be said to be in general use"; that this latter brake is known as the "Westinghouse magnetic brake," and appears to be the only brake that can be used on single-truck cars in connection with the hand brake, "unless the reverse should be regarded as a power brake"; that the reverse is not as good as the magnetic brake; that the latter is a good additional safety brake in emergencies, in that it enables a car to stop more quickly, and, if in order, can be used to advantage in the wintertime and also in going down hills; that it is impracticable to install and operate either the magnetic or air brake on the trailer cars; that for about two years the plaintiff's cars were equipped with magnetic brakes in addition to the hand brakes, but in 1907 their use was discontinued as unsatisfactory, and since that time they have used only the hand brake and the reverse; that "since the magnetic brake has been removed fewer accidents have resulted from the operation of the cars."

Before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

C. H. Akens, for appellant. James A. Gardner, City Sol., for appellee.

The court below decided that the ordinance was valid excepting in so far as it required the trailer cars to be equipped with the brakes designated; that, if the plaintiff was affected, it had an adequate remedy at law; and that equity had no jurisdiction to grant the relief prayed for. A decree was entered dismissing the bill.

[1] It was the threat to take the employés of the plaintiff company off its cars by arrest which caused the filing of the bill. Had this threat been carried out, it would have meant the tying up of the plaintiff's lines

and a serious interference with the use of its

property. Under such circumstances, if the
ordinance was invalid, there was ample au-
thority to sustain equitable interference. In
Bryan v. Chester, 212 Pa. 259, 61 Atl. 894,
108 Am. St. Rep. 870, where the validity of a
police power ordinance was in question, it
was contended, upon practically all of the
grounds now urged, that equity had no juris-
diction, and should not interfere.
said, "There can be no doubt that this pro-
ceeding was properly instituted;" and we
sustained an injunction decree declaring the
ordinance invalid.

But we

[2] There is nothing in the act of February 25, 1869 (P. L. 249), incorporating the city of New Castle, in the act of May 16, 1901 (P. L. 224), to amend the act of May 23, 1889 (P. L. 277), as to cities of the third class, or in the act of March 22, 1887 (P. L. 8), for the incorporation and regulation of motor power com

city the express right to enact an ordinance in the terms of the one in this case; nor had the city any incidental or implied power which would enable it so to do.

MOSCHZISKER, J. This was a proceed-panies, which confers upon the defendant ing in equity for an injunction to restrain the defendants from arresting the motormen and conductors in charge of the plaintiff's cars or from in any other manner enforcing the provisions and penalties of a certain municipal ordinance.

[3] In constructing and maintaining its streets a city is not bound to adopt the latest The ordinance was approved November 30, and best devices (Canavan v. Oil City, 183

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*

* What is attempted by the appellee in the present case? Having no voice in the operation of the appellant's road, it undertakes to do what the common law itself does not do. It assumes to declare how the railroad shall perform a public duty, and would substitute its judgment for that of the board of directors as to what kind of protection shall be afforded but with no corresponding responsibility resting upon it. * ** If it has the power to require the defendant to erect safety gates, it has the power to require the adoption from time to time of such other means as in its judgment ought to be adopted by the company for the protection of the public. * * The power for which it contends would be practically unlimited. The power which it would exercise may be a desirable one, but courts cannot recognize it unless it exists.

standard of public duty which the defendant demanding and requiring reasonable care. city attempts to set for the plaintiff company; and, more than this, by designating what the latter must use as the latest and best safety brakes, the ordinance assumes to declare how the company shall perform this duty. In the absence of express authority conferring the power of enactment, a penal ordinance such as the present, which undertakes to enforce a higher standard than that imposed by the principles of the common law, should not be sustained. If a new and different one is to be set, the Legislature should act. Aside from the strictly legal aspect, it is apparent that, if such minute regulation is to be attempted at all, it is far better that the matter shall be under state control; for if each municipal subdivision be permitted to prescribe the particular kind of safety brakes to be used by cars passing through its territory, since there is no guaranty that the judgment of the different authorities will accord, the important development of connecting trolley lines as competitors of the railroads, which has added so much to the comfort and convenience of the traveling public, will be seriously handicapped, if not practically brought to a stand-power and declared its action void. On prinstill.

*

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* *

* * *

After distinguishing the cases relied upon to support the municipal authority to pass the ordinance and determining that the general welfare clause was not a sufficient warrant for that purpose, we ruled that the borough had no such express or implied

ciple that case governs the present one.

The assignments of error are sustained, the decree is reversed, and the record is remitted to the court below with directions to reinstate the bill, and to grant the injunction prayed for at the cost of the appellee.

(233 Pa. 397) CURTIN v. PEOPLE'S NATURAL GAS CO. (Supreme Court of Pennsylvania. Jan. 2, 1912.) 1. SALES (§ 364*)-ACTION FOR PRICE-IN

STRUCTIONS.

In an action for the price of tools, a request to charge that, if the jury believe the evidence of the plaintiff, there was no contract to purchase the tools which plaintiff claims were hers on the 9th day of November, 1907, was properly refused, though the evidence was not sufficient to establish a contract completed on that date, since the requested charge might have been understood to refer to the ownership of the tools by the plaintiff on the day mentioned, and not to the making of the contract at that time.

[4] However, it is not necessary to theorize upon the subject in hand, for, no matter what the law may be in other jurisdictions, the controlling principles have been settled in this state. In Pennsylvania Railroad Company's Case, 213 Pa. 373, 62 Atl. 986, 3 L. R. A. (N. S.) 140, 5 Ann. Cas. 299, this court squarely ruled against the validity of an ordinance of the character of the one under consideration. We there said: "The question raised on this appeal is as to the power of the borough to pass an ordinance requiring the Pennsylvania Railroad to erect, maintain, and operate safety gates. A penalty is provided for a failure to comply with the requirements. In the operation of its road and in the running of its cars the judgment of the board of directors of a railroad company, in the absence of statutory provision, is supreme and exclusive. The public safety imperatively requires that there be no division of this great responsibility with others-not even with municipalitiesfor division of it would be the shifting of it in every case of accountability for failure to properly operate the road or run the cars. But, while this is true, corresponding duties of the highest order are imposed exclusively upon those having the control and management of railroads. One of these is to adopt and use suitable and adequate means to give notice [Ed. Note. For other cases, see Sunday, Cent. Dig. § 58; Dec. Dig. § 24.*] of approaching trains. * What particular means, however, shall be employed to 3. SALES (§ 364*)-ACTION FOR PRICE-INprotect the public is left to the Where a purchaser of machinery, apparcompany operating the road, the law merely ently for its own protection, agreed to use part For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

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[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 1065-1076; Dec. Dig. § 364.*] 2. SUNDAY (§ 24*)-VALIDITY OF CONTRACT— QUESTIONS FOR JURY.

Where there is evidence to sustain a find

ing that the negotiations for a contract of sale were commenced on Saturday and continued on Sunday, but not finally concluded until Monday, the contract cannot be declared void as a matter of law as a Sunday contract.

STRUCTIONS.

11. APPEAL AND ERROR (§ 741*) MENTS OF ERROR-SUFFICIENCY. In an action for the price of machinery, where the statement sets up that defendant of the refusal to grant a new trial, and sets An assignment of error which complains purchased the articles "as set forth in a sched-forth 11 particulars in which the court erred in ule hereto attached and made a part hereof," failing to make defendant's rule for new trial to which schedule plaintiff has attached the original cost price of each item, and that de-absolute, is improper in form, since it raises more than one definite question. fendant agreed to take them "at the original cost price," and the affidavit of defense does

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 279-283, 298; Dec. Dig. § 115.*] 6. APPEAL AND ERROR (§ 942*)-REVIEW-firmed. PRESUMPTIONS - BREACH OF RULES OF Court.

Only in clear instances will the Supreme Court reverse a trial court for breach of its own rules.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3808; Dec. Dig. § 942.*] 7. TRIAL (§ 105*)-RECEPTION OF EVIDENCE-ule hereto attached and made part hereof,

plaintiff indebted

for the balance | schedule and the delivery of possession of of said mortgage debt, to wit, $1,252.34." the articles, which occurred on Monday, NoWherefore the plaintiff claims the sum total vember 18, 1907; and therefore the transof the items shown in the schedule amount-action would not be viewed as a Sunday coning to $3,239.98, with interest, etc. tract. Foreman v. Ahl, 55 Pa. 325; Common. wealth v. Kendig, 2 Pa. 448.

The affidavit of defense averred a defense to the whole of the plaintiff's claim. It de nies that the defendant had contracted with the plaintiff for the purchase of the articles as set out in the schedule attached to the statement of claim or any of them, or that such articles were taken possession of or used by the defendant company, or that it was under any obligation to pay the chattel mortgage referred to in the statement, or that it had ever directly or indirectly assumed such an obligation, and finally that it is in any manner or way indebted to the plaintiff.

A verdict was rendered for $2,699.52, the amount of plaintiff's claim, with interest less the $800 realized on the mortgage; and the defendant appeals from the judgment entered upon this verdict.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

Jas. E. Sayers and Christy Payne, for appellant. James J. Purman and Robinson F. Downey, for appellee.

MOSCHZISKER, J. [1] The first assignment complains that the court erred in refusing the following requests for instructions: "If the jury believe the evidence of the plaintiff, there was no contract made between the plaintiff and the defendant company to purchase the tools which plaintiff claims were hers on the 9th day of November, 1907." The evidence produced by the plaintiff, if believed, was sufficient to show that negotiations for the purchase of the tools were commenced on the date in question, but it was not sufficient to establish a contract completed on that day, and, had the point refused by the court been unequivocally to that effect, it would have been the duty of the trial judge to affirm it; but the request as drawn might well have been understood to refer to the ownership of the tools by the plaintiff on the day men tioned, and not to the making of the contract at that time; hence there was no error in its refusal.

*

*

[3] In the third assignment the defendant complains of the refusal to charge: "If the jury believe the evidence of the plaintiff that the defendant company promised and assumed to pay the chattel mortgage of the National Supply Company, then the defendant is indebted to the National Supply Company in the amount of the debt and interest of that mortgage, less $800 realized on the sale thereof, and the plaintiff cannot recover anything in this action unless she has shown that the cost price of the tools was in excess of the mortgage and its interest, and then only for the amount of such excess." For the court to have so charged would have been to treat the agreement between the plaintiff and the defendant as a novation of the indebtedness to the supply company, with the sequence of a release of the plaintiff and a substitution of the defendant as the debtor. "The essentials of a novation are the displacement and extinction of a prior contract, the substitution of a contract, a sufficient consideration therefor, and consent of the parties thereto." Wright v. Hanna, 210 Pa. 349, 59 Atl. 1097.

new

Al

though an employé of the National Supply Company assisted in making up the schedule, yet the evidence would not justify a finding that he was acting for his company at that time; on the contrary, all the testimony on the point is to the effect that he was acting as one of the representatives of the plaintiff. The essential elements of a novation were not present. The defendant company simply that, instead of paying the full purchase agreed, apparently for its own protection, price directly to the plaintiff, it would use part of the consideration to liquidate her debt to the supply company, and pay the balance directly to her. We see no error in the refusal of the point.

[4] The court admitted certain testimony which is complained of in the fourth assignment. The husband of the plaintiff testified that, when he and the representatives of the defendant company were negotiating the contract of purchase, his wife was in an adjoining room with the door open between, in [2] The trial judge declined to charge the such a position that she could hear. In the jury that the agreement of purchase set up course of his testimony he said, "I know by the plaintiff was void as a Sunday con- she could hear," and, when pressed on crosstract, and this constitutes the second assign- examination, stated that he knew that she ment. After reading the entire record, we did hear because she went into the room conclude that the evidence produced by the for that purpose. The witness might have plaintiff was sufficient to sustain a finding been confined to a mere description of the that the contract was not finally concluded surroundings and a statement that his wife on Sunday, November 10, 1907. The nego- was in the adjoining room during the contiations were commenced on Saturday, No- versation, but we are not convinced that vember 9, 1907, and continued on the follow- any prejudicial error was committed in pering Sunday, but the sale was not consum-mitting him to express the opinion that his mated until the date of the making of the wife could hear what was going on a fact