that they looked at the whole balcony and pronounced the latter safe. These persons having been called by the plaintiffs and denied having expressed a contrary opinion were, under objection from the defendant, allowed to be cross-examined on their previous statements and contradicted by witnesses to whom these statements were supposed to have been made. This, to be sure, was not evidence of the fact of the defectiveness of the balcony; nor was it so offered. Its possible effect, and the purpose for which it was offered, were to discredit the testimony of the masons as to the safe condition of the balcony, and this limitation of the purpose and effect ought to have been made clear to the jury in the charge. Not having been so explained, it may be that the jury at least in some measure took the testimony contradicting the masons as to what they had said as substantive evidence of the fact of the defectiveness of the balcony, or allowed themselves to be influenced by it in that direction. If so, it was given a potency which it ought not to have had. True the offer of the testimony in question and the ruling upon the same limited its lawful significance. But without further reference to and explanation concerning it in the charge, the jury could hardly be expected to apply the proper rule. In the light of the charge the admission of the testimony was error. And since

it cannot be declared with certainty that it did the defendant no harm, it follows that the verdict ought to be set aside and a retrial granted: R. R. Co. v. Bock, 93 Pa. 427, 434. If it be suggested that there was no specific request for an instruction on the subject, the obvious answer is that, after all, the object of every trial is to do justice: R. R. Co. v. Berry, 68 Pa. 272, 279; Lingenfelter v. C. & I. Co., 84 id. 328, 332; Henry v. Huff, 143 id. 548, 563; Waln v. Beaver, 161 id. 605, 610, and that it has long been the practice of this Court to be more liberal in granting retrials where the party's rights are not protected than where they are.

There is no direct evidence that if the balcony was defective that fact was known to the defendant or should have been ascertained by him in the exercise of due care. But the length of time during which it was defective, if at all, may, together with other circumstances, be sufficient in the minds of a jury to ground an inference that he did know or ought to have known of it and taken steps to correct it.

Whether the fall of the end of the balcony was due to any defect in the same cannot perhaps be determined with positive certainty from any direct evidence in the case. So far as the direct testimony goes, it may have been due to the force applied by the boy who was injured, for which the defendant might not perhaps be responsible under the doctrine of such cases as Gillespie v. McGowan, 100 Pa. 144, down at least to

McGinnis v. Peoples Bros., 249 id. 335. But as is well settled: see Trust Co. v. R. R. Co., 160 Pa. 590, 600, this issue, like the one referred to just above, would seem to be for the jury.

Whilst it results from what has been said that the verdict rendered by the jury for the plaintiffs cannot be sustained, it is equally clear that there can be no judgment for defendant non obstante veredicto. The various elements indicated as entering into the decision of the case and the weight to be given to opposing testimony call for the intervention of a jury. The rule for judgment n. o. v. is discharged, and the rule for a new trial is made absolute.

BENADE v. GEORGE.

In the Court of Common Pleas of Berks County in Equity.
No. 1253 Equity Docket, 1919.

Exceptions to findings of fact and conclusions of law.

Rothermel and Mauger for plaintiff.

Edward D. Trexler for defendant and exceptions.

Opinion by Wagner, J., November 1, 1920.-Defendant has filed twenty-three exceptions to the findings of fact and conclusions of law in our opinion filed July 17, 1920. Defendant's counsel at the argument admitted that he had nothing new to add to what was said at the original argument of the case.

We have examined these exceptions and do not find any merit in them except in the twenty-first, which relates to the third conclusion of law. There we consider that the conclusion with reference to the removing of the division fence was too sweeping. We, therefore, amend said third conclusion so as to read:

"The plaintiff is entitled to a permanent injunction enjoining and restraining the defendant, his servants, agents, and employees, from occupying any part of plaintiff's premises in the erection of his said building, and from attaching his said building to the house of the plaintiff."

AND NOW, to wit, November 1, 1920: The defendant's exceptions are dismissed, and counsel may prepare and submit the proper decree, sec. reg.

FOLK v. SCHOOL DISTRICT OF THE BOROUGH OF MT. PENN.

School Laws School Code of 1911, Sec. 554-Claim for Commission on Taxes Collected-Sufficiency of Declaration.

In an action by a school tax collector against a borough for a commission of 3 per cent. on the amount of taxes collected by him, a declaration is insufficient which does not aver that the rate of compensation was determined by the board of school directors in accordance with section 554 of the School, Code of 1911, P. L. 343.

In the Court of Common Pleas of Berks County.

No. 13 April Term, 1919.

Affidavit of defense in lieu of demurrer.

H. Robert Mays for plaintiff.

George Eves for defendant.

Opinion by Wagner, J., November 1, 1920. Plaintiff avers that in November, 1917, he was elected collector of taxes for the Borough of Mt. Penn. That on the first Monday of July, 1918, he received from the defendant a duplicate of the school taxes to be collected by him. That he is entitled to receive from the School District of the Borough of Mt. Penn, for the collection made of the sum of $6,359.55, a commission of three per cent., or $190.78, and that the defendant has failed to pay and refuses to pay to him the sum so due.

The defendant has filed an affidavit of defense in lieu of demurrer, in which it claims that the plaintiff's statement is insufficient in that he does not aver facts upon which to base the conclusion that he is entitled to a commission of three per cent. on the amount of his collections.

Section 554. of the School Code of 1911, P. L. 343, pro

vides:

"In all school districts of the second, third, and fourth class, all school tax collectors shall be paid such commissions or compensation as may be determined by the boards of school directors."

From this it will be seen that the collector of taxes is to receive such compensation as is determined by the school board. It is therefore essential to plaintiff's claim to state, in order that he may receive a commission of three per cent. for the year 1918, that this rate of compensation was fixed by the school board for the year 1918. It is a very simple and easy matter for him to aver this essential fact, if correct. Instead of doing so, he avers that in the years 1916 and 1917, when he must have been a collector of taxes under a prior election, that he then received three per cent. The mere fact that he then received the three per cent. for those years, would not entitle him to that amount for 1918, unless it was fixed

by the school board. We must, consequently, sustain defendant's affidavit of defense on account of the insufficiency of plaintiff's statement in the particular indicated.

We will, however, give the plaintiff an opportunity to remedy this insufficiency in his statement. We, therefore, order that the plaintiff be given ten days' time within which to amend his statement by averring therein the per cent. of compensation fixed by the school board of the Borough of Mt. Penn for the year 1918. If not so amended within ten days' time, we direct that the Prothonotary thereupon enter a judgment for the defendant.

COM. ex rel. DICKINSON v. WANNER, County Controller. Mandamus Costs in Cases Discharged by Alderman-ConstableAct of 1791, 3 Sm. 43, Sec. 13-Act 27 June 1895, P. L. 403Insufficiency of Answer.

Mandamus will lie against a county controller by a constable for the payment of his costs in discharged cases in accordance with the provisions of Section 13, 3 Sm. 43, Act of 1791 and Section 8 of the Act 27 June 1895, P. L. 403.

In such a case an answer by the county controller admitting that the constable has served the warrants, commitments and subpoenas in the discharged cases, but contending that the alderman, in placing the costs on the county, acted in an arbitrary manner and that therefore the constable is not entitled to costs, is insufficient.

In the Court of Common Pleas of Berks County.

No. 146 June Term, 1920.

Mandamus.

Joseph R. Dickinson for plaintiff.

John P. Wanner for defendant.

Opinion by Wagner, J., November 1, 1920.-The plaintiff in his petition for a writ of mandamus states that he is the duly elected and qualified constable of the Eighth Ward of the city of Reading. That Clarence C. Dumm, Alderman of said ward, issued to him during the months of March, April, and May of 1920, three respective warrants of arrest for service thereof. The one was for the arrest of two persons on the charge of assault and battery, the other for the arrest of a person on the same charge, and the third for the arrest of a person upon the charge of having committed larceny. That pursuant to his duties as constable, he served the warrants and also the commitments and subpoenas in these respective cases. That upon the hearings before the alderman, the defendants were discharged. That accordingly, in accordance

with the provisions of Section 13, 3 Sm. 43, Act of 1791, under which he is entitled to be paid by the county for his costs in discharged cases, and in accordance with Section 8, Act of June 27, 1895, P. L. 403, which prescribes the procedure to obtain payment, he presented his claim to the County Controller for payment of his fees in these discharged cases. That the County Controller refused to certify to the County Commissioners that the sum so claimed and demanded was legally due and payable to the relator.

The County Controller in his answer admits these averments, but contends (1) that the alderman, in placing the costs upon the county, acted in an arbitrary manner, and that therefore this relator, the constable, is not entitled to costs; (2) that relator's remedy is not by mandamus.

There is no allegation that the cases were improperly discharged. Neither is it averred that the relator, the constable, in any manner was a party to the institution of these suits or that in connection therewith there was any wrong doing whatever on his part or that the services for which payment is asked were not performed. The allegation is the assertion that the alderman abused his discretion and acted arbitrarily in placing the costs upon the county. No facts are averred which show that the alderman abused his discretion or acted arbitrarily. The Act of September 23, 1791, Sec. 13, 3 Sm. 43, directs that in discharged cases the costs shall be chargeable to and paid by the county. Under the admitted facts, the relator is entitled to the remedy by mandamus for his costs in these three cases: Douglas v. McLean, 25 Pa. Superior Ct. 9; Breslin v. Earley, 36 Pa. Superior Ct. 49; Johnson v. State Board of Veterinary Medical Examiners, 46 Pa. Superior Ct. 279.

AND NOW, to wit, November 1, 1920, the Court upon the demurrer give judgment for plaintiff, the costs to be paid by the County of Berks, and order that a peremptory writ of mandamus issue in that behalf.

CULP v. CULP.

Divorce Practice, C. P.-Desertion-Reference to Master for Further Hearing.

Where in an action in divorce on the ground of desertion, the testimony taken before the Master fails to show the details of the alleged desertion, the cause will be referred back to the Master for further hearing.

In the Court of Common Pleas of Berks County.

No. 36 March Term, 1920.