In re Incorporation of the Borough of Florin. behalf of the Bachman Chocolate Manufacturing Company and John A. Bachman:

"1. That the proposed incorporation of the Borough of Florin along the lines set forth in the petition presented for the incorporation of said borough would be prejudicial and injurious to the rights of the exceptants.

"2. That the petition for the incorporation of the Borough of Florin does not set forth nor allege that the proposed incorporation is for the public welfare nor for the good of the community affected by the said proceedings, and further that the proposed incorporation of said borough, as set forth in the said petition, is neither for the public welfare nor for the good of the community affected by said proceedings and embraced within the limits of the proposed borough.

"3. That the petition does not set forth the number of freeholders residing within the limits of the territory sought to be incorporated, and therefore does not show on its face that the said petition is signed by a majority of the freeholders in said territory.

"4. That the boundaries fixed in the application for the incorporation embrace lands exclusively used for the purpose of farming and not properly belonging to the natural limits of the proposed borough.

"5. That the boundaries fixed in the application for the incorporation of the said proposed borough embrace within their limits a large and thinly settled territory, including also lands of the Bachman Chocolate Manufacturing Company, which property is used for manufacturing purposes and does not properly belong to nor constitute a part of the natural and apparent territory of the proposed borough.

"6. That notice of the filing of the application for the incorporation of the said borough has not been given by advertisement in the Lancaster Examiner and Daily New Era for a period of not less than thirty days before the term to which the application is presented, beginning Monday, the 13th day of September, A. D. 1920, in accordance with the application for incorporation.

"7. That notice of the filing of the application for the incorporation of the said borough has not been given by advertisement in the Lancaster Law Review, the legal periodical in and for the County of Lancaster, for a period of thirty days immediately before the term to which the application was presented, beginning Monday, the 13th day of September, A. D. 1920, in accordance with the requirement of the Act of Assembly, approved April 5, 1917, P. L. 49, amending the Act of May 3, 1909, P. L. 424, providing that every notice or advertisement required to be published in one or more newspapers of general circulation shall also be published in the legal periodical of said county.

"8. That the lands of the exceptants form a distinct and separate part of the territory included within the limits and boundaries of the proposed borough, and a majority of the freeholders of said part of said territory have not acquiesced in the proposed incorporation, nor

In re Incorporation of the Borough of Florin.

have a majority of said freeholders signed the petition for the incorporation of the said borough.

"9. That the land of the exceptants is not a natural and geographical part of the Village of Florin as proposed to be incorporated as the Borough of Florin, but is a natural and geographical part of the Borough of Mount Joy, and is contiguous and adjacent to and a natural part of the said Borough of Mount Joy.

"10. That your exceptants being a majority of the freeholders of the certain distinct part of the territory embraced within the boundaries of the proposed Borough of Florin, object to being included within the limits of the said borough and desire that their lands be annexed to the present Borough of Mt. Joy.

"11. That your exceptants being a majority of the freeholders of the said territory adjacent to the Borough of Mt. Joy, which territory has been included in the limits and boundaries of the proposed Borough of Florin, petitioned, previous to the presentation of the petition for the incorporation of the Village of Florin, the Council of the Borough of Mt. Joy to annex the said territory to the Borough of Mt. Joy, which the said Council did by enacting an ordinance providing for such annexation.

"12. That the incorporation of the proposed Borough of Florin in accordance with the limits and boundaries set forth in said petition for incorporation would divide and separate the lands of one of your exceptants, the Bachman Chocolate Manufacturing Company, into two parts, of which one would be in the Borough of Mt. Joy, requiring a change of the dividing line between said boroughs in accordance with the provisions of Section 10 of Article 2, Chapter 3, of the Act of May 14, 1915, P. L. 312, so that the lands of said exceptants will lie solely within the Borough of Mt. Joy."

On November 13, 1920, the same exceptions were re-filed. At the same time, seven persons, to wit: J. A. Bachman, N. S. Gantz, T. K. Garihan, Elam Hostetter, H. L. Stoll, E. Sumpman, and Elias B. Helman, who alleged that they were inhabitants and freeholders in that part of the Township of East Donegal that was proposed to be included within the limits and boundaries of the Borough of Florin, joined in the above-recited exceptions and objected to the incorporation. March 21, 1921, sixty-two persons, some of whom signed the original petition for the incorporation and some of whom signed the exceptions, also asked to join therein.

By Section 1, Chapter 2, Article 1, of the Act of 1915, it is declared that "the Courts of Quarter Sessions may incorporate any town or village within their jurisdiction into a borough." Section 2 provides that "the application for incorporation shall be in writing, and shall be signed within three months immediately preceding its presentation to the Court by a majority of the freeholders residing within the limits of the proposed borough." Section 4 directs that, upon presentation

44

In re Incorporation of the Borough of Florin.

to the Court, the application shall be filed with the Clerk, and notice thereof shall be given in one newspaper of the county for a period of not less than thirty days immediately before the next regular Term following the filing thereof, during which time exceptions may be filed to the application by any person interested."

As has been above stated, on May 15, 1920, the petition was presented to the Court for the incorporation of the Borough of Florin. The next regular Term of the Court of Quarter Sessions began on September 13, 1920. No notice was given within thirty days before the September Sessions. But, on the 18th day of September, on motion of counsel for the petitioners, the petition was amended, so as to insert the words "The 15th day of November, A. D. 1920," in lieu of the words "The 13th day of September, A. D. 1920." Notice was then given within thirty days of the November Term. Did this action change the situation and make the notice given a compliance with the provisions of the law?

In, In re Incorporation of Borough of Castle Shannon, 75 Pa. Superior Ct. 162, it was held that, under this Act, the advertisement must be published not less than thirty days immediately before the next regular Term for which it is possible to give notice, and if the Court deems further investigation necessary, they may take such further time as may be required; that it is not error to enter an order on October 2 that notice should be given for thirty days before the first Monday of November, the beginning of the next Term, and to enter a final decree at the following December Term.

In Appeal of Upper Yoder Township et al., 74 Pa. Superior Ct. 291, where a similar objection was raised that the Court had no jurisdiction because the requirements of the Act as to publication of the notice had not been complied with, the Court, in its opinion, stated: "As was said in Edgewood Borough, 130 Pa. 354, in regard to a notice which was claimed to be informal, it is sufficient in the present instance, for the reason that notice has been actually taken, and all parties desiring to make objections are here in Court to be heard.' The appellants have lost no opportunity or advantage, therefore, and have been in no way prejudiced." In re Millbourne Borough (No. 1), 46 Pa. Superior Ct. 19, no objection was made to the sufficiency of the notice in the Court below, and all parties took notice of the proceeding and were present in Court. The objection was held to be too late.

However, in this case no notice of any kind was given thirty days immediately before the next regular Term of Court, so far as the record discloses. Only when that objection was raised by exception did the applicants obtain leave to extend the return day. I do not see how this cured the original defect. If the Act of Assembly as to notice is of any account, it must be followed substantially, and here it certainly was not. But even if this Court is wrong upon this point, I am of the opinion that, at this time, the Borough of Florin should not be incorporated. The original petition contained the names of one hundred and twenty-five persons who alleged that they were a majority of the

In re Incorporation of the Borough of Florin.

freeholders residing within the limits of the territory intended to be incorporated. It is true that some of the persons whose names are on the petition now oppose the incorporation, yet their apparent withdrawal does not affect the jurisdiction of this Court. See Mountville Borough, 31 Pa. Superior Ct. 18; Incorporation of Old Forge Borough, 12 Pa. Superior Ct. 359. Presumably, the petitioners are a majority of the freeholders residing within the limits of the proposed incorporation. There is nothing in the Act which requires the application to set forth the exact number. But it appears that the sentiment in favor of incorporation is not by any means overwhelming. Even if it was, it does not follow that the incorporation should be granted. The draft shows that the lines of the proposed borough contain four hundred and fifteen acres and fifty-two perches, of which sixty per cent is farming land. The east line runs through the land of T. K. Garihan and between his buildings. This in any event should not be permitted against his objection. The population is estimated, on the part of the petitioners, to be about one thousand; but other testimony fixes it at from six hundred to seven hundred and twenty, and no count seems to have been made. Florin is a prosperous village, but the assessment of the properties embraced therein has not been furnished, and it looks to me as if the incorporation would perhaps prove burdensome, by reason of the increased expenses rendered necessary thereby.

Then, too, I do not think it would be to the interests of the public to have a small borough running up against the lines of the larger Borough of Mount Joy and entirely stopping any progress of that borough on the west. Again, the state road between Lancaster and Harrisburg is the main street of Florin Village. This highway, according to the contention of the state authorities in similar cases, must be kept in repair by the borough, and it certainly will at some time need repairs. Every one knows that the thoroughfares in boroughs and most cities are the worst parts of the roads. It seems to me that it would be even better to have the two boroughs joined, so as to make one large borough, than to have two small ones adjoining each other, though I do not see that even this, at the present time, is desirable. The rights of the general public ought to be considered, as well as those of individuals who may perhaps not be unselfish in their motives.

I am of the opinion that the sixth exception should be sustained, but that, even without regarding the exception, the incorporation of this territory as a borough should be refused."

Exception sustained and incorporation refused, at the costs of the petitioners.

Court of Common Pleas of Lancaster County

John Barton Payne, Director General, etc., v. A. Rubin & Co.

Goods sold for freight-Balance due-Affidavit of defense.

In a suit for a balance due for freight, storage, etc., after goods refused by a consignee had been sold by the railroad company and the proceeds credited, an affidavit of defense is sufficient which denies that the defendants were owners or shippers thereof and names a third party as the owner, for whom the defendants were agents.

Rule for judgment for want of a sufficient affidavit of defense. March Term, 1921, No. 57.

Appel & Appel, for rule.

John M. Groff and J. E. Senft, contra.

July 2, 1921. Opinion by HASSLER, J.

The cause of action upon which the plaintiff seeks to recover in this case is set forth in his statement, as follows:

He was operating the Philadelphia & Reading Railroad in the year 1919. The defendants were the owners of 56,500 pounds of paper, which was at Woodbury, New Jersey, which they directed the army inspector of ordnance to ship to the Philadelphia Paper Manufacturing Company at Pencoyd, Pa. It was shipped June 13, 1919, and rejected by the consignee. It was thereupon sold after due notice to pay freight, storage, unloading costs, &c. The profits of such sale being credited on said charges leaves a balance due to the plaintiff of $1167.45. He further avers that the defendants were the shippers of said paper.

In their affidavit of defense, the defendants clearly and unequivocally deny that they were the owners of the paper, or that they ever directed its shipment, but that one C. M. Liphart was the owner of it. They deny that ehey ever directed or instructed the army inspector of ordnance at Woodbury, New Jersey, or at any other place, to ship said waste paper. In the seventh paragraph they again deny that they were the shippers of said paper, or the owners thereof.

We think that the affidavit of defense sets forth such facts which, if proven at the trial, will prevent plaintiff's recovery, and that they are set forth specifically and clearly, and are not conclusions either of fact or of law. This meets the objections made to the affidavit of defense by the plaintiff. In our opinion it is sufficient to prevent judg ment, and we discharge the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense.

SUPERIOR COURT OPINION.

July 14, 1921.

Mitsios v. Morios. Affirmed.