Pa. St., Page 25. The whole matter of the allowance of an appeal in such cases rests in the sound discretion of the court below: Commonwealth v. Hendley, 7 Pa. Sup. Ct., Page 356 (1898).

This proceeding is brought under the Act of April 14, 1905. The testimony taken in the case is full and voluminous. It appears the Commonwealth and defendants were represented by able counsel. All phases of the questions involved and the testimony relative thereto were fully presented before the alderman, and the record made up. The defendants were accorded every opportunity to fully and fairly present their defense. No oppression, corruption or disregard of law is alleged; the only question raised is that a doubtful legal question was involved.

The contention of the defendants is that the stream flowing through the land of Mrs. Sefing is a navigable stream; the burden of proving that the stream is such rests upon the defendants. The court's attention, however, has not been called to any act making or declaring it to be such prior to the passage of the Act of May 29th, 1901, P. L. 302, nor since, and the said act does not declare it to be a navigable stream. The case before us in the facts presented, and the questions of law involved falls within the decision of Commonwealth ex rel. v. Foster, 36 Pa. Sup. Ct., Page 433 (1908), wherein the Superior Court held that "if the owner of the bed of the creek duly posted it in compliance with the Act of April 14, 1905, P. L. 169, a person fishing therein, is liable to the penalty provided by the latter act."

Defendants further contend that the public had a prescriptive rights to fish the particular part of the stream in question. In Gibbs v. Sweet, 20 Pa. Sup. Ct., Page 275, (1902) we find the rule applicable to this feature of the case stated as follows:

"A prescriptive right to fish based upon periodical excursions to a pond or stream, in common with others for any number of years, cannot be acquired. If the owner of such pond or stream suffers the public to fish in it without objection, a user by an individual not distinct from that of the public will be considered permissive and not adverse, unless there is evidence that it is under claim

of right in himself, and that the owner knowing of the claim acquiesced in it."

Now June 4, 1917, rule for special allocatur discharged.

FLYTE v. STOVER.

Landlord and Tenant-Eviction -Act of April 3, 1830, P. L. 130-Justice of the Peace-Judgments.

A tenant for a more or less indeterminate period is subject to the provisions of the Act of April 3, 1830, P. L. 130, in a proceeding by the landlord to obtain possession of the premises.

If the justice had no jurisdiction of the subject matter or of the parties, a judgment entered by him could be attacked directly or collaterally.

For mere irregularities in the proceeding, however, the judgment must be attacked through an appeal. Defendant failing to appeal in such a case, the landlord cannot be held liable as a trespasser ab initio.

In the Court of Common Pleas of Lehigh County. Ada M. Flyte v. Ellen Stover. No. 37 June Term, 1916.

Warren K. Miller, for Plaintiff.

Thomas F. Diefenderfer, for Defendant.

Groman, P. J., June 18, 1917. The question most vital to the issue involved in the above suit is: was the defendant, the landlord of plaintiff, a trespasser ab initio in a proceeding for dispossession under the Act of Assemby of April 3, 1830, P. L. 130, Section 1.

The plaintiff contends that the act conferred no jurisdiction and that, therefore, defendant should respond in damages for an unlawful eviction; the defendant contends that the act authorized the proceeding had before the alderman, that the proceedings were regular, and that, therefore, there could be no recovery. Now then, what are the provisions of the Act of April 3, 1830? An examination of Section 1 of the act discloses the following provisions: "In case any lessee for a term of years, or at will, or otherwise, of a messuage, lands or tenements, upon the demise whereof any rents are or shall be reserved, where the lessee shall neglect or refuse to pay rent reserved as often as the same may grow due according to the terms of the contract, and where there are no goods on the premises adequate to pay the said rent so in

arrear, except such articles as are exempt from levy and sale by the laws of the commonwealth. ***."

The act thus provides that "any lessee for a term of years, or at will, or otherwise shall neglect or refuse to pay rent reserved" shall be subject to the provisions thereof for neglect or refusal to pay rent reserved. The above language seems to us to be wide enough to include the tenancy which existed between the plaintiff and defendant; the plaintiff admitting that the rental was to be $15.00 per month for a more or less indeterminate period. We, therefore, conclude the alderman had jurisdiction. Were the proceedings had before the alderman so irregular that a dispossession based upon the record made the defendant liable as a trespasser ab initio? An examination of the record of the proceedings had before the alderman convinces us the proceedings were regular and in accordance with the provisions of the act, and that the judgment entered by the alderman can be sustained by matters appearing of record.

If there had been no jurisdiction of the subject matter or of the parties, the judgment would be without effect in law, and could be attacked directly or collaterally: Camp v. Wood, 10 Watts, Page 118; Wall v. Wall, 123 Pa. St., Page 545.

It was argued that certain irregularities in the proceedings before the alderman vitiated the proceedings, and that defendant, therefore, became liable as a trespasser ab initio. A defect or irregularity in the proceedings should have been taken advantage of by the defendant by taking an appeal, this, however, was not done and the judgment remains valid until vacated or reversed: Sweeney v. Girolo, 154 Pa. St., Page 609; Ogle v. Baker, 137 Pa. St., Page 378.

Now June 18, 1917, motion to take off non-suit dismissed.

RICHEY v. HARFOSH.

Commissions on Sale of Real Estate-Principal and Agent. When a real estate broker opens negotiations with a prospective buyer of real estate, the owner cannot annul such negotiations, sell the property and refuse to pay commission to the broker.

In the Court of Common Pleas of Schuylkill County. Motion for New Trial. No. 386, March Term, 1916.

W. B. Durkin, for Plaintiff.

E. W. Shoemaker, for Defendant.

Koch, J., April 30, 1917. This case comes into court by appeal from a justice of the peace. The plaintiff's claim is, in effect, that the defendant entered into a contract with the plaintiff on or about the 6th of April, 1915, "whereby it was agreed that the plaintiff should sell the property of the defendant at No. 1 North Main street in the Boro. of Shenandoah, County of Schuylkill and State of Pennsylvania for the sum of $22,000. It was further agreed in said verbal contract that the plaintiff should receive for his services rendered for said defendant in the sale of his aforesaid property, as compensation therefor, a commission of one per cent. which the defendant then and there promised to pay." The plaintiff claims that he obtained two purchasers for the property and that the property was sold to them for the sum of $21,000 on or about the 16th of July, 1915. Hence he claimed a commission of $210.00, and the jury found a verdict for said amount. The verdict of the jury settles the question of an existing contract, and the evidence, under our system of jurisprudence, is sufficient to sustain the findings of the jury as to the making of the contract and performance of it on the part of the plaintiff.

It was indisputably shown upon the trial that the defendant had been offered $19,000 for the property some time prior to the engagement of the plaintiff to sell the property, and that the offer so made was by the same parties who bought it after the plaintiff was engaged to find a purchaser. After Richey was authorized to sell the property, he made ineffectual attempts but could get no offer of $22,000 and reported the fact to Harfosh. Harfosh then sent him to Nathan Sweet and Max Sweet, stating they had offered him $19,000 for it. Richey saw Sweets and they said the price was too high, that it would cost a thousand dollars to put a cellar under the building. Having reported this to Harfosh, Harfosh said to the plaintiff, "Go ahead, warm them up; tell them you got a lot of buyers on your hands; they no buy, somebody

else buy." Thereafter plaintiff saw Sweets and urged them to buy the property and told them of others who were considering this property. Seems he made no subsequent report to Harfosh but that Harfosh dealt direct with the Sweets and entered into a contract with them on the 16th day of July, 1915, to sell to them the property in six months, and in accordance with that contract, the property was deeded to the Sweets in January, 1916.

Now the defendant assigns as reasons for a new trial, as follows:

Third. It appearing from the evidence on the part of the plaintiff and from all the evidence in the case, that the purchasers of defendant's property were directly negotiating with, and had made an offer to him of $19,000 therefor, prior to the time plaintiff alleges his contract was made with defendant, to wit: April, 1915, the plaintff is only entitled to recover, if at all, at most a commission of one per cent on the purchase price in excess of said sum.

Fourth: Under all the evidence, the plaintiff is not entitled to recover commission on $19,000."

These points overlook the substance of the contract which was that the plaintiff should receive one per cent of the purchase price then fixed by the defendant at $22,000. If the property was sold through efforts of the plaintiff which entitled him to any commission at all, he was entitled to a commission upon the price paid and not upon the price that he was authorized to sell at. The property belonged to the vendor and he could change his mind and fix the price at any figure he pleased in order to suit customers brought to him through the efforts of the plaintiff, and if he saw fit to sell to such customers at a less price than he authorized the plaintiff to sell at, he had a legal right to sell at a less price but that does not free him from his liability to pay the plaintiff a percentage on the price received for the property. The law governing such sales is clearly stated in the cases of Gibson's Estate, 161 Pa., 177; Reed's Executors v. Reed, 82 Pa., 420; Keys v. Johnson, 68 Pa., 42; Earp v. Cummins, 54 Pa., 394; Peters v. Holmes, 45 Superior Court, 278 and Lloyd v. Thomas, 50 Pitts. L. J., 212.

The case of Macneir v. Wallace, 252 Pa., 323 which has been urged upon our attention does not control this