The Cambria freeman. [volume] (Ebensburg, Pa.) 1867-1938, 1888-11-16
oprnion or the supreme Court.


Below we publish the opinion of the
Supreme Court In the Ebensburg borough
case.
In the Supreme Court OF Pennsylvania
Western District. No. 160 October Term,
Filed Oct. -. 1888. Appeal of T. Mason
Richards, Burgess OF Ebensburg borough.
From the Court CT Common Pleas of Cam
bria Co. Argued Oct. 1888. Clark, j.
A preliminary INDUCTION was awareed in
this case on the 30th of March. 1888. with
leave to the defendant to moYe to have it
dissolved on five days Dotice. A motion to
dissolve having been made, and notice
given, the parties met for argument or that
motion, 9th April, 1888, when a continuance
was had, at the instance OF the plaintiff. for
the purpose OF taking testimony TO be read
at the hearing, and q commissioners" or
examiners were appointed for that purpose.
On the Sth Of June, 1888, the report OF the
examiner was filed, and on the 2nd OF July,
1888. the opinion OF the court was filed and
the decree entered An answer would ap-
pear TO have been drawn, under oath on the
9Th of April, 1888, but It does not appear
when it was filed, whether before or after
the decree, or indeed, whether II was fled at
all.
The decree Is In the form Of a final de-
cree, but. as the testimony was taken and
the argument had on .he motion to dissolve
the preliminary Injunction, the action Of
the Court thereon was presumably intended
as an order for the continuance of the pre-
liminary Injunction until final hearing.
What is known as the borough Of Eoens-
burgb, was originally Incorporated by
special Act Of Assembly. 18th OF January,
1925. under the corporate name OF The Bur-
CESS and Town Council of the BOROUGH OF
Ebensburg. 1t Is alleged on part Of the
plaintiff. however, that upon proper appli-
cation Of the said Borough, to the Court OF
Quarter Sessions of Cambria county. in tbs
year 1851 The Burgess and Town Council Of
the Borough of Ebensburg" became by the
decree Of said court subject 70 the restric>
tions and possessed of the powers and
privileges conferred by the Act OF 3rd April.
1851, known as the General Borough Law,
but that the proceedings and decree of the
said court have been lost or destroyed.
At the bearing on a motion TO dissolve the
plaintiff attempted to show the execution
and loss OF this record. and by secondary
evidence to establish its contents. To this
it was objected that q lost record could not
In this way be established by paIol. that the
record should first be supplied under the
provisions of the Goth section Of the Act of
18th Of April. 1850 p. l.. 500; whilst DOUBT =
less this is the better practice where there Is
opportunity to pursue 1t. There can be no
question that after proof of the loss, its con-
tents may be proved. like any other docu>
ment, by any secondary evidence, where the
case does not from its nature disclose the
existence OF other and better evidence. 1st,
GTeenlief Evidence-Sec. 500 +; Adam VS..
Betz, 1st Watts-425; /; Harvey Us. Thomas
10 Watts-63; Loughrey vs.. Mccullough
1st Pa--503 Farmers Bank vs.. ellison, 6
Pa. 81 Mistimore VS.. Miltimore. 40 Pa 151 /;
Clark VS.. Trimble, 80 Penn. 492 1st Wharf
toms Evidence 135 and 136, and cases there
cited. In Miltimore VS. Miltimore, supra
Mr. Justice Thompson delivering the opinion
OF the court says: The existence Of the
power in the court to supply lost records
does not Interfere with the rule of evidence,
which admits proof of contents The loss
may not be discovered until the trial Is
| progressing there would be no time then to
file bill on the Chancery side of the court
to perpetuate the proof necessary for a
foundation from which to supply the record !;
the parties to delay the cause for such a
/ purpose"
But, assuming the power Of the court. in
this respect Is must be conceded that the
! evidence offered, was wholly Inadequate to
| the purpose. To Authorize memointer
proof of lost document or record. the
witness must have read IL, or otherwise
have actual knowledge OF it, and be able TO
speak at least to the substance OF the cen
tents. 1sr Wharton Evidence-I40; Cox Us.
England, 65 Penn.-2l2; the same kind and
measure OF proof is required as In the case
OF the law OF other documents.
We will not refer to the evidence In this
case or discuss it. We merely call attention
to the character and quality of the proof re-
quired. In order that the case may be
properly presented on final hearing. The
question, upon the construction OF the Act
of tie 3rd Of April, 1851. as to the duties
and powers OF the Burgess, under the evil
denee, Is not presented In this case. The
testimony taken by the examiner, treated as
Injunction affidavits Is wholly insufficient
We give no opinion upon the construction
OF tie Act Of 1851, until the question 1:
properly raised, for our consideration.
The decree is reversed and the prelimi-
rary injunction dissolved without prejudic;
TO the right of the plaintiff TO procsed upor
his bill BY final hearing and decree.