Section 12 of the act contains the following pro

vision:

"Whenever in the construction of such road or roads it shall be necessary to cross or intersect any established road or way, it shall be the duty of the president and directors of the said company so to consruct the said road across such established road or way as not to impede the passage or transportation of persons or property along the same."

The next general act was approved April 14th, 1868, and is entitled, "An Act to authorize the formation and regulation of railroad companies." Among some of the provisions of the act referred to are the following:

"A railroad corporation incorporated under its provisions shall be entitled to exercise all the rights, powers and privileges and be subject to all the restrictions and liabilities of the Act of February 19th, 1849, and supplements thereto."

Section 9 of the Act of 1868, further provides:

"That any company incorporated under this act shall be authorized to construct such branches from its main line as it may deem necessary to increase its business and accommodate the trade and travel of the public."

Section 12 of the same act provides as follows:

"This Act shall not be construed as to authorize the formation of street passenger railway companies to construct passenger railroads under or by virtue of its provisions in any city or borough of this Commonwealth, nor to authorize any corporation formed under this act to enter upon and occupy any street, lane or alley in any corporated city in this Commonwealth without the consent of the city first having been obtained."

The above cited legislation discloses the fact that under the Act of 1849, a railroad company was authorized to cross a road or roads when necessary and without the consent of the local authorities, subject only to the condition that the railroad shall be so constructed as not to impede the passage or transportation of persons or property along the road.

In the development of railroads further legislation was deemed necessary, and the Act of 1868 was passed. This act authorized the construction of branch lines, a

provision not contained in the Act of 1849, and also added a restriction that a railroad incorporated under the act could not enter upon or occupy any street, lane or alley in any incorporated city without the consent of the city having been first obtained. It will be observed that entering upon the streets of a borough or the roads of a township was not prohibited, nor was the consent of the local authorities required under either act. So that in so far as townships and boroughs were concerned the provisions of both acts were identical. The above acts are only referred to for the purpose of showing the trend of railroad legislation during this period. The decisive fact in this matter is found in the provisions of the charter incorporating the Bethlehem Railroad Company in Section 3 and Section 8 herein before referred to in the finding of facts.

Under these provisions the Court is of the view that the plaintiff company, being the successor to the Bethlehem Railroad Company, has the right to construct lateral roads not exceeding three miles in length, and has the right to cross roads.

The next question is-Must the railroad company first receive the consent of the borough authorities? The Bethlehem Railroad Company, being incorporated in 1861 by special act, was subject to the terms of the general railroad act of 1849, in so far as there was no conflict. Neither the general act of 1849, nor the special act of 1861 incorporating the railroad company, required the consent of the township or borough authorities, so that the Bethlehem Railroad Company had the right to cross the streets of the Borough of Bethlehem without the consent of the borough authorities first had.

Now, October 15th, 1914, the above case having been heard, it is ordered adjudged and decreed that the plaintiff's bill and prayer for an injunction be dismissed with costs.

LEITH vs. METZGAR.

Rule of Court-Discretion-Striking off Judgment.

The rule of court, requiring leave to enter judgment, based on affidavit, where the warrant of attorney is above ten years old, is not so rigid as to preclude all discretion by the court in its application.

In this case the judgment was not stricken off upon the petition of the plaintiff, but leave was granted to file the aforesaid affidavit nunc pro tunc.

In the Court of Common Pleas of Lehigh County. No. 273 April Term, 1910. Reuben B. Leith, now to the use of Lizzie Metzger vs. Lovina Metzgar.

Rule by use plaintiff to strike off her judgment because entered on a bond, more than twenty years after its date, without previous affidavit of amount due, etc., as required by Rule 22 of Court Rules.

George R. Booth and H. A. Cyphers, Esqs., for Rule.
Jas. L. Schaadt and C. W. Kaeppel, Esqs., Contra.

Opinion by Groman, J., Jan. 11, 1915: The defendant, Lovina Metzgar on November 30th, 1888, executed a bond and mortgage in favor of Reuben B. Leith, to secure the payment of the sum of one thousand dollars, with interest, one year after the date thereof; the bond being secured by a mortgage upon real estate situate in the Borough of Fountain Hill, County of Lehigh and State of Pennsylvania, and the mortgage entered of record in the Office for the Recording of Deeds for Lehigh County, in Mortgage Book, Vol. 48, Page 77; payments on account of the principal reduced the same to six hundred dollars.

On June 3rd, 1910, the mortgagee assigned the bond and mortgage to Lizzie Metzgar, who, on the following day entered judgment on the bond for six hundred dollars with interest from April 1st, 1910, as of No. 273 April Term, 1910, Court of Common Pleas of Lehigh County. The same day a Fi. Fa. issued, and on Sept. 9th, 1910, the sheriff sold the property at public sale to Lizzie Metzger, the use plaintiff, for four thousand and one dollars, ten per centum of which, amounting to four hundred dollars, was paid to the sheriff as required by the condition of sale.

On October 26th 1914, the use plaintiff presented a petition praying for a rule to show cause why the entry of the judgment should not be stricken off the record on the ground that the judgment was entered of record more than twenty-one years after the date of the bond and warrant without leave of Court and without first issuing a rule to be served on the defendant if found

within the county, as required by Court Rule 22, Section 4, reading as follows:

"If a warrant of attorney to enter judgment be above ten years old and under twenty, the Court, or a Judge thereof in vacation, must be moved for leave to enter judgment, which motion must be grounded on an affidavit that the warrant was duly executed, that the money is unpaid and the party living. Where the warrant is above twenty years old, there must be a rule to show cause served on the defendant, if he can be found within the county."

While this case has been before our courts in various aspects for a number of years, the only question now before us is whether or not the judgment should be stricken off upon the petition of the plaintiff. That a judgment may be stricken off by the Court in the exercise of its sound discretion, where the defendant is the petitioner, is well established: Herman vs. Rinker, 106 Pa. St., Page 121 (1884); Bates, Cashier, etc., vs. Cullum, 163 Pa. St., Page 234 (1894), where Mr. Justice Green, in the opinion, refers to a number of authorities.

Should the judgment be stricken off where the Court Rules require that when the warrant is above twenty years old a rule to show cause should first be served on the defendant if found in the county? In Emery vs. Smith, 2 District Report, Page 133 (1892), Judge Dreher, in disposing of a matter where a similar rule in Carbon County was in question, used the following language:

"The object of the rule is to prevent the annoyance and injustice to the party in the use of a warrant so old that there is some reason to suppose the debt may have been satisfied or that the purpose for which it was given has been accomplished or served; as for instance, in a case where it was given as collateral security or indemnity; but the rule is certainly not intended to work injustice to the creditor before requiring a judgment to be stricken from the record, though the affidavit was not made before the entry of the same where the execution of the warrant and existence of the debt was admitted and the parties are living. If we should strike the judgment off the plaintiff could immediately on motion have judgment entered upon filing the affidavit. This would be a little ceremony excepting that the effect might be to jeop

ardize the plaintiff's claim now secured by lien, and the discharge of the rule to strike off the judgment will work no injustice to the defendant who acknowledges the debt."

In the case just cited the defendant asked to have the judgment stricken off the record, he being the person most vitally interested and the rule being for his benefit and protection. In the matter before us the defendant is not asking to have the judgment stricken off, even though her real estate was sold during her life time on a Fi. Fa. issued by the use plaintiff and bought by the use plaintiff. It appears from the record that the use plaintiff has not yet fully complied with the conditions of the sheriff's sale by paying the balance of the purchase money, less possibly the amount of her judgment and interest, so that if this judgment were stricken off, even if we had the unquestioned authority to do so, the use plaintiff would be relieved from the payment of the amount still unpaid.

The use plaintiff further alleges that she was required to pay too much for this property at the sheriff's sale, and should now be relieved by the Court, and this without regard to other interests that may have since intervened and after a delay of over four years in making her application.

It is also urged that the entry of the judgment being irregular the execution was irregular, and that, therefore, the judgment should be stricken off and the whole proceeding set aside. This proposition would possibly be correct if the defendant in the execution asked to have the proceeding set aside, but the plaintiff is not in a position to take advantage of the irregularity, if the defendant fails to do so. The defendant failing to do so stands as consenting to the proceeding: Wilkinson's Appeal, 65 Pa. St., Page 189 (1870).

The use plaintiff further questions the title which she is to acquire by the sheriff's sale, claiming that it is defective because the judgment was not entered as provided for by the rule of Court. In order to relieve the use plaintiff of that doubt, the Court, under authority of Woods vs. Woods, 126 Pa. St., Page 396 (1889), allows the use plaintiff to file the affidavit required by the rules of Court, nunc pro tune.