APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.

No. 57 July Term 1890, Sup. Ct.; court below, No. 35 December Term 1884, C. P. No. 4.

On April 16, 1885, the city of Philadelphia, to use of Owen McKenna, brought scire facias sur municipal claim against Frances L. Macpherson, owner, etc. The claim was filed on February 11, 1885, for paving, etc., against a lot of ground, etc., on Bowman street, 22d ward, and the material averments thereof were as follows :

“ For paving Bowman street, in the Twenty-fourth ward, etc., etc., amounting to the sum of $117.25, for which sum, with lawful interest from the above date, a lien is claimed against said premises, whoever may be the owner or owners thereof; the said paving having been duly petitioned for by a majority of the owners of property fronting upon the said Bowman street, within the space or distance so paved, which said petition was presented to the select and common councils of the said city, and thereupon the said paving was, under ordinance approved June 31, 1882, by the said councils ordered and directed to be done by the said chief commissioner of highways under contract, and the costs and expenses thereof are herein duly assessed and charged against the aforesaid premises, agreeably to the several acts of assembly of the commonwealth of Pennsylvania, relating to municipal claims for paving,” etc.

The defendant pleaded to the scire facias substantially as follows:

1. Nil debet,

2. That the lot charged was in a rural district, and was not by law subject to the special tax by this claim imposed.

3. That the bill presented was for macadamizing the roadway, at the rate of $2.49 per yard, which was an illegal rate, unauthorized by law.

4. That the alleged work was claimed to have been done under an ordinance of councils of June 21, 1882, which ordinance provided, among other things, that Bowman street should be dedicated or properly opened before the contract for paving was made; whereas Bowman street had not been dedicated or properly opened before the said contract was made.

5. That the said ordinance further provided that the chief commissioner of highways should first advertise for proposals, and should award the contract to the lowest bidder; whereas he had not so advertised and so awarded.

6. That the said ordinance had been passed pursuant to representation made to the select and common councils of the city of Philadelphia by divers persons, that they were a majority of the owners of property fronting on Bowman street, between Germantown railroad and Hancock street; whereas the said divers persons were not a majority of owners between the said points.

At the trial, on January 14, 1890, the plaintiff put in evidence the claim filed, and rested. Thereupon, the defendant put in evidence the ordinance of June 21, 1882, referred to in the claim; act of April 21, 1855, P. L. 264; act of April 1, 1864, P. L. 187; act of March 24, 1870, P. L. 546, and rested.

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