Buechel vs. Streng. per se, a strong effort should be made to conserve the rights of all the parties; and an important question is, Can the noise by any reasonable means be so moderated as to accord with the degree of quietness the plaintiff has a right to enjoy; and, if it can, by what means?" A decree is directed to be entered in accordance with the foregoing opinion. Pickering vs. Taggart et al. Supersedeas Quashing Execution Appeal-Act of 1897 (P. L. 67), Sec. 4. On a petition to quash an execution, it was set forth that a judgment on an action of replevin in favor of intervening defendants was entered May 11, 1915, and on June 7, 1915, an appeal was taken to the Superior Court and bond approved and filed. That on June 18, 1915, the intervening defendant caused an execution to be issued for the amount of the judgment. Petitioner contended that as an appeal had been entered and approved se. curity given prior to the issuing of an execution, it operated as a supersedeas. Defendant contended that as the appeal had not been taken and bond filed within 21 days allowed for taking an appeal, the appeal did not act as a supersedeas. Held, Under section 4, of the Act of 1897 (P. L. 67), an appeal taken before execution issued acts as a supersedeas, as when the execution was issued the record was no longer within the control of the Court below, and rule absolute. Quashing of execution. No. 534 July Term, 1915. C. P. Allegheny County. J. T. Buchanan, for plaintiff. CARPENTER, J., July 13, 1915.-Plaintiff has filed a petition praying that an execution issued at No. 534 July Term, 1915, should be quashed and proceedings stayed in the meantime. The petition sets forth that an action of replevin was instituted at No. 142 February Term, 1908, which was tried and resulted in a verdict in favor of the intervening defendant for $145.00 together with $62.00 damages, making a total of $207.00; that judgment was entered May 11th, 1915, and on June 7th, 1915, an appeal was taken to the Superior Court and bond approved and filed; and further recites that on June 18th, 1915, the intervening defendant caused an execution to be issued for the amount of the judgment. A rule to show cause was granted and proceedings stayed pending the determination of the rule, etc. Petitioners' counsel contends that the appeal having been entered and approved security given as required by law prior to the issuing of the execution, it operates as a supersedeas and that proceedings on the execution should be stayed and the writ quashed. Counsel for the intervening defendant contend that inasmuch as more than 21 days had elapsed beforc the appeal was taken and bond filed, the appeal does not operate as a supersedeas. The contention raises but one question and the answer depends upon the meaning and effect of the provisions of the Acts of Assembly of 1895 and 1897 in so far as they refer to and regulate appeals. Prior to the passage of the Act of 1895 (P. L. 212) it was held that a writ of error perfected before actual levy operated as a supersedeas, if issued within the statutory period allowed for writs of error or appeal. Section 8, paragraph 7, of the Act of 1895, provides that: "No appeal shall be a supersedeas unless taken and perfected as hereinbefore required within three weeks from the entry of judgment, sentence, order or decree." Pickering vs. Taggart et al. Section 4 of the Act of 1897 (P. L. 67) provides that: "No appeal shall be allowed in any case unless taken within six calendar months from the entry of the sentence, order, judgment or decree appealed from, nor shall an appeal supersede an execution issued or distribution ordered unless taken and perfected and bail entered in the manner herein prescribed within three weeks from said entry." Section 22 of this Act (1897) repeals numerous acts and parts of acts relating to appeals, among them, paragraphs two, three, four, five, six and seven, of section 8 of the Act of 1895. It follows that in so far as the question at bar is involved, the Act of 1895 need not be further considered, except for the purpose of comparison with the phraseology of the Act of 1897 relating to the prerequisites to a valid appeal and supersedeas. This brings us to an examination of the provisions of Section 4 of the Act of 1897. What is the legal effect of the words, "nor shall an appeal supersede an execution issued or distribution ordered unless taken and perfected and bail entered in the manner herein prescribed within three weeks from such entry." The word "entry" of course refers to the entry of judgment, order, sentence or decree mentioned in the first part of this section. The Act of 1836 (P. L. 702) provided that if a writ of error was issued and served, bail entered within three weeks from the day on which judgment was entered, the writ of execution should be stayed. So far as we know the right to have the writ of execution stayed on compliance with the terms of the act, before actual levy, though more than three weeks had elapsed from the day on which judgment was entered, long since ceased to be an open question under that act. It is unnecessary to discuss the effect of the Act of 1897 upon a state of facts not presented by the record. The question is not: Does an appeal taken and entered and bail given and approved operate as a supersedeas to an execution issued but not actually levied, if not taken and perfected until after three weeks from the date of Judgment? but "Does an appeal taken and perfected by the giving of bail after 21 days and before execution issued operate as a supersedeas?" If it does, then no execution can issue. The record is no longer within the control of the Court below, although the judgment remains. It will be noted that the Act of 1895 was drastic in its terms. It required that the appeal be taken and perfected within three weeks, otherwise it did not operate as a supersedeas, but the Act of 1897 modifies this requirement by providing that the appeal shall not supersede an execution issued, and this, in our opinion, means, an execution issued before the appeal is taken and perfected. The rule to show cause, etc., is made absolute. Counsel for intervening defendant, except to the order making rule absolute and at their request bill sealed. Commonwealth ex rel. Lieberum vs. Lewis. Contempt Equity-Habeas corpus Jurisdiction- -Bail. Where the Relator in an application for a writ of habeas corpus is held in custody for his contempt of the decree of a court of equity, the proceedings being regular and in conformity with law, the Court of Common Pleas is without power to either discharge the Relator or admit him to bail pending an appeal from the decision on the petition for the writ of habeas corpus. Writ of Habeas Corpus. No. 2 October Term, 1915. C. P. Allegheny County. Saul Schein, Andrew G. Smith and L. K. Porter, for relator. SWEARINGEN, J., July 21, 1915.-On July 3, 1915, at the instance of Christian Lieberum, a Writ of Habeas Corpus was issued, commanding the Warden of the Allegheny County Jail to produce said Christian Lieberum in Court, and requiring that notice be given to the attorneys for the complainants in the suit in equity, to which reference is hereinafter made. Notice was given and a hearing was had on July 7, 1915. As this is the third Writ for the purpose of releasing the Relator from imprisonment, it seems proper that a brief statement of the facts be made. At No. 35 January Term, 1912, a Bill in Equity was filed by Mary Schmidt, et al., against Christian Lieberum, and a preliminary injunction was thereupon awarded, restraining him from preventing the use by the complainants of a road running through his land, particularly by some eighteen children who had no other safe and passable way of reaching the public school, which they were obliged to attend. At the final hearing, it was found that said road had been in existence for over sixty-five years, that the complainants and others similarly situated had the lawful right to use it, that Mr. Lieberum had illegally erected his house within its limits, and that he had in fact stopped said children from going that way to school and had excluded all other persons from the road. A final decree was entered, making the injunction permanent and requiring Mr. Lieberum to remove his house irom within the limits of the road on or before September 1, 1912. He appealed to the Supreme Court, which in due course affirmed the Court of Common Pleas, and a Remittitur was filed on October 23, 1913. Later, an Order was made requiring Mr. Lieberum to remove his house on or before December 22, 1913. He refused to do so, and an Attachment was issued, which was finally heard on January 5, 1914. Upon that date, he was brought into the presence of the Court, and then and there again refused to comply with the decree and made known his intention to continue his refusal. Thereupon, he was adjudged guilty of contempt and was committed to the Jail of Allegheny County, there to remain until he had purged himself of the contempt. All of the foregoing appear in the record of said proceedings in equity, to which reference is hereby made. On July 30, 1914, at 742 October Term, 1914, a Petition was presented by the children of Christian Lieberum for his release, and a Writ of Habeas Corpus was issued. After hearing, the Court refused to discharge him. On April 26, 1915, at 609 July Term, 1915, the same children presented another l'etition, a Writ was issued, and after hearing his discharge was refused. At either of these hearings was it suggested that Mr. Lieberum, or any person in his behalf, had even attempted to comply with the decree of the Court. Finally, this Petition was presented by Mr. Lieberum himself. He therein set forth that he, "having failed or refused to obey" the decree of the Court, was adjudged guilty of contempt and has been imprisoned. He averred that there are alternative remedies for the enforcement of the decree, viz., it is the duty of the Supervisors of Versailles Township to abate said nuisance, and the Court could enforce its decree by a Writ of Assis Commonwealth ex rel. Lieberum vs. Lewis. tance; and that, where such other remedies exist, his disobedience is not an obstruction of justice, which vests the Court with power to imprison him. And he then averred (1) That the Court was without jurisdiction; (2) That he is deprived of his liberty "without due proces of law" and he is denied "the equal protection of the laws," in violation of the 14th Amendment of the Constitution of the United States; (3) That he is deprived of his liberty, in violation of the 8th Amendment of the Constitution of the United States, which forbids the infliction of "cruel and unusual punishment;" and in violation of Article 1, Section 13 of the Constitution of Pennsylvania, which likewise forbids the infliction of "cruel punishment." It will be observed that the Relator makes no suggestion that he is unable, for any reason, to comply with the decree of the Court, or that compliance therewith would even impose any hardship upon him. Neither does he assert that he has made any attempt to obey the decree, or that he has any intention of so doing. He simply passes by the decree as of no more importance than the demand of a private individual. It was stated by his counsel, in the argument, that the Relator's conscience would not permit him to comply with the decree. But it must be said that the Relator himself makes no such averment in his Petition, under the sanction of an oath. It is certainly a strain upon belief that he should interpose such a plea, when he himself is depriving his neighbors of their right of property in this road and is preventing their children from attending school at all proper times. Conscience is purely subjective. We know nothing of a man's conscience, except from what he himself may say or by inference from his conduct. At no time should conscience be confounded with obstinacy, which it very often is-sometimes with mere contrariness. It seems to us that the adjudicated rights of his neighbors and their children ought to appeal to the Relator, if he is a really conscientious man. Under all the circumstances disclosed, it is impossible to regard the conduct of the Relator otherwise than as contumacious. Whilst the rights of the complainants, as declared in the original decree of the Court, are to be highly regarded, yet the question now is whether or not the supremacy of the law is to be maintained. By its regularly constituted authorities the law has declared that the Relator shall remove this house. He, by his declarations and by his conduct, has answered :hat he will not do so. His proposition tends directly to the subversion of all law. We therefore have no alternative but to enforce the law. Otherwise we should be disregarding our solemn undertaking to administer it, as it is found. It is argued that the Court is without jurisdiction to commit the Relator, indefinitely, in order to compel compliance with the decree, because alternative remedies are provided. This proposition is based upon a misapprehension of the powers and duties of a Court of Equity, which generally proceeds in personam and not in rem. In equity, a party can be compelled to do what, in good conscience, he ought to do; he can be prevented from doing a theatened wrong, or he can be compelled to restore a status which he has illegally changed. Hence, the primary and usual mode of enforcing a decree commanding the performance of a duty, such as the Court entered against the Relator, is by proceedings as for contempt of lawfully constitututed authority. The purpose is, not to punish at all, as are the judgments in criminal law, but to compel obedience to what has been legally declared right and just. Of course, such a remedy is no longer available in Pennsylvania, where the only breach of duty consists in the mere violation of the obligations of a contract. But this decree was not for the payment of money, "nor was it even remotely connected with any contract, express Commonwealth ex rel. Lieberum vs. Lewis. cr implied; it was a decree commanding the performance of a specific act, and, as such, not within the provisions of the Act of July 12, 1842, P. L. 339.” Jack vs. Twyford, 10 Pa. Sup. Ct., 475. It is true that other remedies may be applied by Courts of Equity, as the circumstances of cases may require, but they are really cumulative to the primary mode of enforcing decrees in personam. That such so-called alternative remedies must be first exhausted is not the law. Tome's Appeal, 50 Pa., 285. But has the Relator suggested any adequate alternative remedy? He first avers that the Township Supervisors ought to abate this nuisance. It at once sounds strange that some other person should be required to correct the wrong, which the Relator himself committed and which he alone ought to correct. The answer is that the Township Supervisors cannot be compelled to remove this house. They are only required to keep public roads free and safe for travel. But this is not a public road at all. Of course, they would be mere trespassers if they should attempt to abate this nuisance. The Relator next suggests that the complainants ought to apply for a Writ of Assistance. This likewise is a novel plea to be urged by one for his own relief, who is wilfully depriving his neighbors of their rights. There is no doubt of the power to issue the Writ under proper circumstances, and we are not deciding that it cannot be issued here. We are not prepared to say that a Court of Equity may not require the removal of the house in question by means of such a Writ. Nothing short of the removal er destruction of the house will afford the complainants the relief which has been decreed them. But they object that this course would be attended with great additional expense and with grave danger; and this is true. The house belongs to the Relator. It is occupied by his family-his grown children. It is upon ground, to which the complainants are not entitled to exclusive possession; they have nothing but the right of free passage together with the Relator over the land. The removal or destruction of the house would mean the use of force against third persons; and this would surely involve further litigation. It is not surprising that the complainants hesitate before taking such steps. Why should they be required to incur this expense and risk, when the Relator himself has already been commanded to give them the road free? We cannot perceive that the Relator has been deprived of any right under the law. The decree was rendered after a protracted trial, in which he was fully heard. He was duly notified thereof and was given more than ample opportunity to comply with its requirements. It was only after his persistent refusal to submit, as a good citizen should, that the Court was obliged to order his commitment. He never was condemned without "due process of law," and he never has been denied "equal protection of the laws." No "cruel and unusual punishment" has been inflicted upon him. It is not cruelty, it is not unusual, to proceed in accordance with established law. Ellenbecker vs. Plymouth Co., 134 U. S. 31. McDonald vs. Massachusetts, 180 U. S. 311. In fact, the only punishment the Relator has suffered has been caused by his own wilful obstinacy. He has chosen to be incarcerated, rather than to obey a solemn decree of the Court, and that alone has caused his loss of liberty. He and he alone has rendered it impossible for the Court to grant him relief upon his Writ. If, as was suggested upon a former Writ, he would permit his adult children to remove this house, there would be reason for granting him relief. But even that suggestion has been scouted, and instead he is asking the Court, in effect, to violate its duty under the law. |