which preceded it, relates altogether to the "courts of the commonwealth;" and that this expression includes only the higher courts, which are in every sense courts of record, and which exercise a common-law or equity jurisdiction, is apparent from the specifications of the statute. Thus the disobedience of "officers of such courts," and of "jurors," and contempts in "open court," are punishable, but none of these specifications belong to a justice's court, for in that there are neither officers nor jurors, nor any ceremony which makes it in the sense of the statute an 'open court." And this statute is restrictive. The legislature intended to define, with all possible precision, the cases in which these higher courts might exercise the power, and to restrain its exercise in all other cases. If they had intended to give it to justices of the peace, they would have said so, and would have limited it as they did in conferring it upon arbitrators.

It is, moreover, to be considered that justices derive all their judicial powers from legislation. They exercise no common-law powers. In virtue of their commissions, they are, as at their first institution, conservators of the public peace, but their judicial functions are such and only such as the legislature have made them, and no act has conferred the power of punishing contempts.

In McKinney's Justice, p. 116, it is said the nature of the office implies the power. There would be great force in this observation if the law afforded no other means of protecting a justice from insult and violence while performing his judicial duties, but it does. In Brooker v. Commonwealth, 12 Serg. & R. 175, it was decided by this court that indictment would lie for a contempt of a justice of the peace, which, though short of a breachi of the peace, amounted to an obstruction of his office, and it was suggested by Judge Gibson that the power to hold the offender to bail to answer upon indictment, and to be of good behavior meanwhile, and to commit him in default of bail, rendered it unnecessary to the administration of justice, that a justice of the peace should exercise the high power of punishing by attachment, which in the hands of many magistrates might become a public grievance. Similar views were expressed by Judge Hallowell, in Filter v. Probasco, 2 Browne, 142.

For more than a hundred and fifty years these remedies have proved adequate for the protection of this important branch of our judicial system, and if the power to punish contempts summarily (which like all irresponsible power is exceedingly liable to abuse) is now to be added, it must be done by legislation. Such

power, wherever claimed and exercised, needs a firmer basis to stand or than a judicial implication. If the higher courts have derived it from courts of equity, the legislature have defined and limited it; and if the legislature have not defined and limited it in the hands of justices of the peace, it is because they have not derived it from courts of equity or any other

source.

We are of opinion, therefore, that the court were wrong in deciding that the justice had jurisdiction to commit for contempt, but they canceled the error by admitting in evidence the circumstances out of which the alleged contempt grew. These were necessary to enable the jury to assess damages discreetly, and they were admissible because the justice had not jurisdiction to punish for contempt.

The only error in the record having been thus remedied, the judgment is affirmed.

JURISDICTION AND POWERS OF JUSTICES OF PEACE ARE DERIVED FROM STATUTORY PROVISIONS: Martin v. Fales, 36 Am. Dec. 693.

JURISDICTION OF JUSTICE OF PEACE MUST BE AFFIRMATIVELY SHOWN; nothing is presumed in favor of such jurisdiction: Spear v. Carter, 48 Am. Dec. 688; Piper v. Pearson, 61 Id. 438.

JUSTICE OF PEACE IS LIABLE AS TRESPASSER, if he goes beyond his jurisdiction: Adkins v. Brewer, 15 Am. Dec. 264; Kelly v. Rembert, 18 Id. 643; Clarke v. May, 61 Id. 470, and note 473; and see Kelly v. Bemis, 64 Id. 50, and extended note-51, on liability for acts done under unconstitutional statute.

COMMITMENT OF WITNESS FOR CONTEMPT BY JUSTICE in cause of which he has no jurisdiction is unauthorized and void, and renders him liable in damages: Piper v. Pearson, 61 Am. Dec. 438, and note to same 442.

CARSON v. GODLEY.

[26 PENNSYLVANIA STATE, 111.Į

GROSS NEGLECT IN CONSTRUCTING AND RENTING INSECURE BUILDING RENDERS OWNER LIABLE to a party whose goods are injured by its fall, if there is no negligence on the part either of tenants or of the party storing the goods.

ONE WHO BUILDS AND LEASES HOUSES IS BOUND BY LEGAL DUTY TO CON

STRUCT THEM IN PROPER MANNER and with good materials and competent workmen, and neither good faith nor even the best faith will relieve him from liability for injuries resulting from failure to do so.

MAXIM, SIC UTERE TUO UT ALIENUM NON LÆDAS, IS NOT LIMITED TO COMMON NUISANCES. It has a much more extensive application, and under it one cannot escape liability where he knowingly leases a building to be so used as to hurt another or his property.

EVIDENCE OF FALL OF OTHER STORES BUILT BY DEFENDANT in the same row is competent to show that the owner had notice of the insufficiency and unsafety of a store similarly constructed; but is not competent to establish his reputation or that of his mechanics as builders.

CASE. Godley built a storehouse five stories high, of granite and brick, in Philadelphia, superintending its erection himself; and when complete, he leased it to the United States government, knowing it was to be used for storage of heavy goods. Iron and hardware were put on the lower floor. While workmen were engaged in storing sugar on the second floor the building fell, destroying a large quantity of sugar belonging to plaintiffs, who seek to recover its value in this action. The jury found a verdict for plaintiffs, and defendant appealed The other facts and points made and relied upon in prosecuting the appeal sufficiently appear in the opinion.

H. J. Williams and C. E. Lex, for the plaintiff in error.

J. Fallon and Serrill, contra,

By Court, WOODWARD, J. In the case of Godley v. Hagerty, 20 Pa. St. 387 [59 Am. Dec. 731], we held the present defendant responsible for an injury occurring at the same time and resulting from the same causes as that of which the plaintiffs in this action complain. It was shown in that case, as in this, that Mr. Godley had rented his building in Granite street to the government of the United States for a public warehouse, and that the agents of the government were engaged in storing sugar when it fell down, killing two men, breaking the arm of Hagerty, and damaging the goods of the present plaintiffs. In two particulars only this case differs from Hagerty's. The plaintiffs here were importing merchants, and the injury was to their goods. Hagerty was a common laborer in the service of the government, and his injury was personal. But these diversities make no difference in the principles of law applicable to the two cases. If, as was urged in the argument, the government was bound to provide safe storage for the plaintiffs' goods whilst they were held in bond, it was equally due to Hagerty that he should not be set to work in an unsafe storehouse, to the peril of life and limb. If, therefore, the present plaintiffs, by reason of their relations to the government, were entitled to seek redress in that quarter, so was Hagerty. As the employee of the government, his relations were quite as direct and intimate with the public authorities-his privity quite as close-as any which the plaintiff's sustained, whilst the character of his injury gave him

a superior right to compensation. Nor did we decide that the government was not liable to Hagerty. We decided only that Godley was. Counsel do not, therefore, distinguish this case from Hagerty's when they prove that these plaintiffs might have sought redress from the government. Let it be granted that they might, does it follow that Godley is not liable to them? By no means. An injured party is often entitled to redress against more than one wrong-doer, and it is never an objection to his action that he has passed by the intermediate agents of the mischief, and charged the responsibility home upon the author of the evil.

This case, then, incapable of being distinguished in principle from Hagerty's, ought to be considered as ruled by it. All the material facts were identical in the two cases. Judge Bell, not more distinguished for his learning than for the care and ability with which he tried causes at nisi prius, stated the principles on which the former case rested; and his judgment, after a severe professional criticism, and full consideration in this court, received our deliberate and unanimous sanction. And in the three years that have elapsed since that decision was pronounced we have seen no occasion to question its principles, but experience and observation have tended rather to confirm them. Such is the eagerness of capitalists for large rewards, that when they undertake to build for the profits of rents, the temptation is strong to cheapen and slight the work. The safety of life and property is lost sight of in the dazzling prospect of a large rent from a small outlay. Foundations are put down and walls run up in such haste, and with such materials, as to be wholly inadequate for the purposes designed; the defects all the more pernicious and unpardonable because concealed; and now and then the community are appalled by some shocking catastrophe involving loss of lives and limbs and property. The cupidity which is at the bottom of the mischief, true to nothing but its own instinct, will of course seek to charge the consequences of its folly on the tenant, as if because he was deceived the original guilt was canceled. Where the tenant has been guilty of negligent or improper use of the building, he is undoubtedly liable to parties injured by its fall, and even where there has been no negligence on his part, we do not say he is exempt, for that case has not yet occurred; but where, as in the case before us, it is found, on abundant proof, there was no negligence, either in the tenants or the plaintiff, it is a salutary rule of law that holds the owner answerable for his gross neglect in con

structing and renting an insecure building. We have no thoughts of relaxing or qualifying a rule so obviously just and politic; but if we had, we would hardly do it in a case involving the very same circumstances to which we so recently applied it. It may be proper, however, on account of the vehemence with which the rule is assailed, to examine its foundations a little more minutely than was done in the former case, to see if it be not well grounded in accepted principles and authorities of law. The lease, in this case, contained no express covenant or condition that the building was of any particular capacity or quality, and none is to be implied. The government took it for what is called in the lease a "five-story store," and the only covenant which is to be implied is that for quiet enjoyment. There was a while that the English courts acted on the principle that it was an implied condition of every lease that the property was reasonably fit for the purpose for which it was let; as, that a dwelling-house was in such decent repair as to be fit for habitation: Salisbury v. Marshal, 4 Car. & P. 65, 19 Eng. Com. L. 409; that its walls were safe: Edwards v. Etherington, Ry. & M. 268, 21 Eng. Com. L. 435; that the premises should not become untenantable by the bursting of a privy: Cowie v. Goodwin, 9 Car. & P. 378, 38 Eng. Com. L. 162; that the house was not infested with bugs: Smith v. Marrable, 11 Mee. & W. 5; but they have receded from all this, and hold now that in a demise of land there is no implied obligation on the part of the lessor that it shall be fit for the purpose for which it was taken: Sutton v. Temple, 12 Id. 52; nor in the lease of a house, that it was at the time of the demise, or should be at the commencement of the term, in a reasonably fit state and condition for habitation.

In the case of Arden v. Putten, 10 Id. 321, the house became uninhabitable, and utterly useless to the tenant by reason of original defects in the foundations; and it was held that the tenant could not, in consequence thereof, throw up the house and refuse to pay rent. "The tenant ought," said Baron Alderson, "to examine the house before he takes it." If the present action rested on the ground of contract, express or implied, it could not be sustained. Counsel argued with great propriety that if an implied warranty of the quality of a house could be deduced from a lease of it for a term, it would arise, likewise, from a conveyance of the fee, and run with the land, which would restrain alienation. Some torts result from contracts; but that for which this action was brought has no such foundation. Its root is in the malfeasance of the defendant--in the