Volume 1 — Law Times (NS)

<p>The mere fact that a factory may he used for the making of useful or necessary articles of trade does not prevent its being such a nuisance as would entitle one to recover damages for injuries to adjoining property.</p> <p>If machinery used in a factory is of such character that in its use it so shakes the ground as to do actual physical damage to adjoining buildings, by shaking down or cracking plastering or walls, the parties doing such damage are liable therefor.</p> <p>The criterion of liability for a supposed private nuisance affecting bodily comfort is, whether the inconvenience should be considered as more than one of mere delicacy or fastidiousness, or an inconvenience materially interfering with the ordinary comfort of human existence.</p>

<p>A non-rosidont of the State is not entitled to the benefit of the Exemption Law of 1849.</p>

<p>Married women — Separate use — Trust.</p> <p>The gift of an estate for the separate use of a married Woman implies, ex vi termini, a trust, and it is immaterial that no trustee is appointed or that no active duties are imposed.</p>

The questions here involved grow out of a sale of the real estate of L. Schlesinger and the distribu'tion of the fund arising therefrom. It would seem Schle-' singer being a member of a Building Association borrowed a sum of money therefrom and to secure the payment of the same assigned his stock as collateral, also confessing judgment for the amount of the loan. Barrow & Co., a judgment creditor, issued an execution and sold the interest of Schlesinger in the stock assigned.

<p>Fibst. Papers offered in evidence upon the trial of a cause, which are not matters] of record, may he shown by witness present at that trial, to have been used for a certain purpose named. Boland, vs. Connolly, 23, P. F. Smith, followed.</p> <p>Secohd. Court will, in its discretion order such paper, or a copy thereof, filed among the records of the case, when it is alleged under affidavit that the same is for the purpose of identification in other matters pending between the same parties.</p>

<p>First — The plaintiff» presented their affidavit showing a violation of the injunction heretofore granted by the Court below and continued on appear by the Supreme Court as to certain matters therein -contained. The complainant’s affidavit was directed to he filed and tlereuprn the Court granted a rule to show cause why the several persons named in the affidavit of complainant should not be committed for contempt. The affidavit was not filed of record nor the rule based thereon, but copies thereof were made and served upon each of the parties alleged to be i.i contempt. Upon the coming in of the rule and the hearing thereon counsel for the defendants objected that the whole proceedings were irregular; that the original complaint should have been filed and the order for the rule the with, and a certified copy served upou each of the defandants. Held — That the proce s of attachment for contempt is a summary remedy and although in its nature partakes of a civii emel/ to enforce obedience to the decree of the Court, yet it is the duty of the party ptaying for the attachment to pursue the ordinary practice of filing all papers, connected with the case, of record, and 'when copies aie to he served to serve a certified copy.</p> <p>Second — The proceedings in this case set aside because of irregular'ty, but without prejudice to the plantifEs.</p>

This case grows cut of an attempt on the part of the defendant, a collector of taxes for Luzerne Comity, to compel payment of such taxes from the plaintiffs within the County of Lackawanna.

This case comes up lor decision upon exceptions to an auditor’s report, and a lull statement of the facts is contained in the

<p>Rule for a new trial.</p>

<p>To a member of the Bar the appointment of an auditor is treated as an estate in expectancy, and the amount of time devoted to the duties of the office is not necessarily a consideration in fixing the compensation.</p>

<p>Eibst — The enforcement of a city ordinance which is unconstitutional and void, and which seeks to impose a debt upon the city, may be enjoined by property owners and tax payers.</p> <p>Second — Equity will not enjoin the passage of an unconstitutional ordinance, nor will courts of equity inquire into the motives of members of the Council in passing an ordinance.</p> <p>Third — An injunction will be allowed to restrain the collection of city orders, while they are in the hands of the original payees, where such orders have been obtained by fraud or undue influence, and without adequate consideration</p>

<p>Fikst — Turnpike and Plank Road Companies may erect toll-gates, and the power to do so is a vested right.</p> <p>Second — Courts will not allow an in j unction to restrain the collection oí toll where it is a vested right.</p>

<p>First — H. was duly elected Superintendent of Public Schools for Scranton, a city of the third class. Objections were filed against the issuing of a certificate to him according to the provisions of the 8th and 13th Sections of the act of 1867, which objections were sustained by the School Department. At the election of Superintendent R. received the second highest number of votes, and under the provisions of the same act was commissioned as such, the commission bearing date November 22d, 1878, as school superintendent from the 20th day of September, 1878, until the first Monday of June, 1881.</p> <p>Heid — That the commission ought to commence from the beginning of the schooi year on the first Monday in June, and that R. is entitled to compensation from that time.</p> <p>Second — At common law a public officer chosen for a specified term cannot hold over, but where the statute provides for a specified term without any restrictive provisions such officer may continue to exercise the duties of his office after the expiration of the term named.</p>

<p>An injunction will fee dissolved wliere the answer fully disproves *lie allegations of fraud, and shows a bona fide debt, and full consideration, it not. ap“ pearing that the suits, though several in number, were vexatious or malicious*</p>

<p>First — ¡Silerce, upon the part of persons interested, when the law is otherwise iully complied with, will never he ground for setting aside a sheriff’s sale.</p> <p>Second —When title to property sold at a sheriffs sale is obtained by a trick or fraudulent practice, the title is iuvalicl.</p> <p>Third — Where the inadequacy of price is very gross the Court will take advantage of f ny irregularity ui the proceedings, however slight, to set aside a sheriff’s sale.</p>

<p>1. The lien of a fi. fa. against personal property, pending a rule to show cause why execution shall not be stayed, does not continue beyond the return day without previous levy; but if a levy has actually been made, its lien is preserved until the rule is disposed of, although no order to that effect is made.</p> <p>2. A levy may be made by virtue of a writ of fieri facias at any time before and on itB return day, but not afterwards.</p> <p>3. It is the duty of the court on Btaying executions to direct alevy to be made when not previously done, for the purpose of preserving liens.</p>

<p>Married woman — Minor—Mortgage—Magistrate’s certificate of acknowledgment.</p> <p>The certificate of an officer, competent to take acknowledgments, that a married woman was of full age at the time of executing amortgage,is not conclusive, and if she were a minor, she can only ratify such a mortnage after she becomes of age, by a separate acknowledgment under the Act of Assembly.</p>

<p>1. Nothing short of an agreement to give time, which binds the creditor,and prevents his bringing suit, will discharge a surety.</p> <p>2. Such an agreement cannot be inferred from declarations, made by a creditor to a surety, to the effect that he considered the debtor possessed of property sufficient to discharge the liability, that he either had given or would give him time, that the debtor would pay the debt, and that he did not want the surety any longer.</p> <p>3. The duty of determining the meaning of words used in conversation, and what the parties intended 10 expiess by thfm, devolves upon the jury and not upon the court.</p>

<p>First — The time for demanding the exemption is at the levy, or, at latest, before advertisement of the sale, unless absence or other good cause be shown to exouse the delay.</p> <p>Second — A waiver of exemption in favor of one creditor is not, ipso facto, a fraud on others; especially when the waiver is contained in the instrument creating the contract obligation of the debtor.</p> <p>Third — Among creditors having existing liens upon the same property, the law, and not the will of the debtor, regulates their priority.</p>

Monroe & Thompson were engaged in business in Philadelphia and Scranton. In Philadelphia, the firm name was John Monroe & Co.,.and in Scranton the name was Frank Thompson & Co. Monroe died, and his executor asks the court to appoint a receiver for the firm of Frank Thompson & Co. The facts alleged in the affidavits áre fully stated in the

<p>In a scire facias against heirs to show canse why execution should not be levied of their, lands, judgment cannot be taken for want of an affidavit of defense.</p>

<p>The deed of a Jot of land was made to A. Subsequently he mortgaged the property and the same was later sold at Sheriff’s sale. Possession was obtained by the purchasers and has been enjoyed for about two years. During this time A, and B, his wife, occupied the premises as tenants under thepur-chasers'lessees, and at the expiration of the term A and B, in right of the wife, applied tor an injunction to restrain the plaintiffs from disturbing'’her in her possession, it being alleged that the lot was bought and paid for, and the building erected by the wife. Held,</p> <p>First, That where equities are equal the legal title must prevail.</p> <p>Beeond. That a purchaser, or a mortgagee who is a purchaser with m the meaning of the recording acts, is not bound to look beyond the record in an examination of title#.</p> <p>Third, That the title to land being in the husband and not coming through the wife, and no notice being given that it was held in trust for her use, the-mortgagee is protected against a secret, unrecorded equity.</p>

In December, 1874, the plaintiff took from the defendant in exchange for horses the following note: $160.00. Clark’s OreeN, Pa., Nov. 2, 1874.

<p>Van Gorder was sentenced to pay costs and stand committed until the sentence be complied with. After more than thirty days imprisonment, application was made for his discharge, he being without property and unable to pay the costs Held,</p> <p>When the statute directs the prisoner to be discharged according to law, after having been in confinement for the period of thirty days, although the sentence is only to pay the costs of prosecution the prisoner is entitled to his discharge upon complying with the requirements of the insolvent debtor's act, after having remaiued in confinement under such sentence for the period of thirty days.</p>

<p> Boarding House Keeper’s Act. Printed schedules of rates need not he posted when a special contract has been made. Guest may waive the benefit of the Act. </p> <p>x. The object of the Act of 20th of April, 1876, entitled, “An act to prevent fraud and fraudulent practices upon or by hotel keepers, inn keepers and boavding house keepers/’ is to protect those who rely on the good faith of their entertainers and have taken no means to protect themselves; but it has no application to cases where the boarder, before occupying the room, has made a special contract of his own.</p> <p>2. Where a party makes his own contract, enters into possession under its terms, makes payments under its provisions, and makes no complaints as to the absence of the placards required by law, he thereby waives the benefit of the law, and is estopped from setting it up in defence of payment.</p>

The prisoner was arrested on view of the Chief of Police.of the City of Carbondale, and taken before an alderman where he was charged with cruelty to animals, in letting his team of horses stand in the street without feed or care for an unreasonable length of time.

<p>Where a count}'is divided under the Act of 17th April, 1878, exemplifications of mortgages, judgments, mechanics’ liens, verdicts and records from the old county are entered in the new under that act and not under the act of 1840; and an exemplification may still be entered in the new county although the mortgage, judgment, mechanic’s lien, verdict or record, be itself an exemplification from still another county.</p>

The proceedings in this case .are uuder the Act of May 22d, 1878, which is a supplement to the act entitled “au act to provide for the incorporation and regulation ot certain corporations,” prescribing the proceedings and penalties in case of failure to. keep turnpike and plank roads in repair.

1. After the death of William Nixon, the Odd Eel-lows’ Society paid his widow, Agnes Nixon, who was also administratrix, one hundred and fifty dollars, under the following sections ot the rules of the lodge: “8ee. 119. The great object of a fuueral benefit in the order is to extend immediate aid to the family of a deceased brother, at. a time and under circumstances which, more than at any other time or condition of things, requires sup]jprt and sympathy.

<p>CERTIORARI ON PART OP DEPENDANT-</p> <p>1. Although there might be no right of the plaintiff as stated upon the record to recover the defect is amendable even after judgment, and- the judgment should not be disturbed on that account.</p> <p>2. The acts of 1849, 1874 and 1878 may be harmonized into a system that will furnish a method to compel corporations coming within their provisions to comply with the same.</p>

<p>Rule for a new trial.</p>

Bur muster’s report and exceptions. Bill iu equity to postpone the lien of adjudgment, confessed bv Geo. W. to h. M. Greene and now held by Potter for value, to a mortgage given by Geo. W. Greene to plaintiff. The master reported the following facts: Peele held a mortgage lor $8,000, given by the two Greenes, on property iu Benton township, owned by them in common, to secure any indebtedness incurred to Peele by Geo.

1 of Allegheny county. Sci. fa. sur. mortgage by the Dollar Savings Bank against John Morrison and Hannah A. Morrison,his wife.

<p>1. The statute of i Henry v. Chap v, is in force in this Commonwealth.</p> <p>2. In every original writ anti indictment additions shall be made to the name of the person or persons indicted, of their estate, degree or mystery, and if such additions are omitted the indictment will be' quashed.</p>

<p>Opening judgment on exemplification — Practice—New county act.</p> <p>i. Judgments entered in the county of Lackawanna on exemplification from Luzerne, are still subject to the jurisdiction of Luzerne county courts, and application to open such jugdments must be made where the judgment was originally obtained. The general practice in regard to exemplifications is not altered by the act of April 17th, 1878 (new county</p>

The following were the facts: — . Many years ago, Ann Sperry, at the age of 25, removed with her lather from Huntingdon Township, Luzerne County, to Davidson Township, Lycoming County. She was sound, in mind and-body,and for some years remained with her father, doing housework, without a contract of hiring, hope of. reward, or actual compensation beyond her board and clothing. ’ On this a claim of settlement in Davidson was subsequently tounded.

Rule to show cause why the officers elected should not be allowed to qualify, and the appointments made on the 10th of April, revoked.

<p>PRACTICE — Judgment in ejectment opened — WRIT oe RESTITUTION.</p> <p>When a judgment by confession has been entered in an ejectment, and plaintiff put in possession on an habere facias possessionem, upon the judgment being opéned and the is¿ue found for defendant, a writ of restitution will be awarded.</p>

<p>1. A horse is liable to fright, and those ¿laving charge of public highways should make reasonable provisions against accident from a cause so common, and so likely to occur.</p> <p>2. A precipice by the side of a narrow street requires fencing quite as much as the sides of a bridge.</p> <p>3. Where horses running away on the public highway fell over an ungarded precipice by</p> <p>the side of the road, held, the negligence of the borough authorities Was the proximate cause of the accident. • •>..</p>

A. J. Von Storeh was a butcher who kept a slaughter house, and also a shop where the meat was cut up and sold at-retail. He was assessed with a mercantile tax, from which he appealed, alleging that he was erroneously assessed.

<p>A candidate for a township office who received a majority of votes, is prima facia entitled to take the office, even though it be alleged that he is ineligible His right can only be tested by quo warranto.</p>

Motion to withdraw plea of guilty. Indictment tor robbery. Defendant having been arraigned, pleaded guilty, under advice of counsel. Subsequently, at the same session, he made application to withdraw this plea, and enter a plea of not guilty, on the g.round that his former plea was not entered upon lull consideration

The plaintiff in this cane, lit. Rev. ¥m. OTIara, Bishop of Sergnton, ms, at the commencement, of this suit, the owner in trust, for the Catholic Congregation of Hazleton, Pa., of several lots of land in said borough.. Upon one of said lots is erected a large frame dwelling house, known as St. Gabriels Ilall, and upon the other is also a frame building.

<p>NuNcupatiye will — 'Bequest—Life insurance policy'.</p> <p>A policy on the life of the deceased was made payable to his daughter, but was bequeathed to his wife. Held, that the right to the proceeds of the policy vested in the payee at the time of its execution, and that this right could not be divested or controlled by testamentary disposition.</p>

Pur exceptions to re-adjudication. The adjudication on the account of the executors ol Mary F. Lewis, the decedent, having been opened, by agreement of counsel, to allow a re-argument, a revised statement, of a claim (rejected on the first, audit) was presented by William M. Wright & Bro., plumbers, for work done and materials furnished by them for the separate estate of decedent, to the amount of $85.18.

The plaintiff in thin case brought an action of ejectment against the defendants, and obtained an award of arbitrators for the land described in the writ. Upon cause being shown a rule was grante l by the Court to set aside the award.

<p>RULE TO SII0W CAUSE WHY EXECUTION SHALL NOT ISSUE AGAINST THE MEMBERS OE THIS ASSOCIATION INDIVIDUALLY.</p> <p>The schedule called for under the Act of 1S76, when a limited partnership association is formed must be strictly in conformity with the Act of Assembly, otherwise each member will be treated as if he was a general partnei* and liable for the whole liabilities of tbe con-</p>

<p>1. It is lawful for a building association to lend money to members, reserving the premium and receiving interest on the sum nominally loaned. All contrary decisions refer to unincorporated associations, and to those prior to the Act of 1859.</p> <p>2. There is nothing either in the letter or the spirit of the law making it the duly of the association to inquire for what purpose the loans are obtained.</p> <p>3. A surety for a hoi rowing member, though not himself a member of the association, is liable to the same extent as his principal. ,</p>

<p>A condition in a policy of insurance that it should be null and void “if without the written consent of the company first had and obtained the dwelling house (jir houses hereby insured become vacant by the removal of the owner or occupant, or cease to be occupied in the or-dinaiy and usual manner that dwelling houses are occupied,” is binding upon the insured.</p> <p>It appeared from the evidence that the dwelling house insured and destroyed by fire was vacated eight or nine days previous to the fire, and remained vacant and unoccupied up to the time of the fire; the consent of the company to such vacation had not been procured. Held, That evidence to show that the premises were occupied under a lease, and that plaintiff's tenant left the premises without his knowledge and consent, and that as soon as he discovered that fact he endeavored to procure a new one, was properly excluded.</p>

<p>PAY OR COUNCILMEN ROR COMMITTEE SERVICE.</p> <p>Councilmen in the City of Scranton are not entitled to pay for committee meetings. Aois and ordinances construed.</p>

Gentlemen of the Jury. — But a few short moments more, and the responsibilities of the result of this ease will be upon your shoulders. ¥e have no fears but that you fully comprehend the awful and terrible responsibility you have assumed in this ease. That you will do justice between Grod and man while disposing of this ease, no one that knows your antecedents need have any apprehension, not even the prisoner at the bar.

<p>Habeas CoRpus to Obtain Possession oe Child.</p> <p>The custody of the grandfather over a child preferred to that of the grandmother on the facts of the case.</p> <p>Ifthe merits, otherwise, weie with the defendants, yet when they have changed the juris, diction over the child to another court by force or artifice, the latter court will hesitate to decide the case on its merits. Courts will not encourage force in asserting alleged claims 1 when jtistice can be obtained through the forms of law.</p>

<p>In art ion on the case in which ihe plaintiff cleciaied for 1 o-h breach of warranty and du'ut, and a verdict for los; cha t >> .vas recovered, such verdict w mid carry costs.</p> <p>Rule to show cause wliy judgment should not he entered without costs.</p>

<p>An administrator who can clearly and satisfactorily purge himself of an alleged contempt of an order to pay as per decree, may be discharged from imprisonment.</p> <p>A discharge in the Commom Pleas under the insolvent laws will not entitle the party to his discharge in this court if in custody for contempt.</p>

<p>Rule eoR Injunction.</p> <p>x. Irregularities are to be expected, in the administration of the School laws under the present system of selecting directois. But when the irregularities are such asmen of ordinary capacity make m every day life, an Injunction ought not to be allowed ¿estramg the collection of Taxes levied for School purposes.</p> <p>2 The doctrine announced in the case of Blair et. al. vs. Boggs Township School District, 7 Casey 276, followed.</p>

Certiorar i, to the proceedings before a justice of the peace, by the defendant, Charles Graver, trustee. •The proceedings were commenced by Morgan W. Eehr against the said Graver to recover possession of certain premises from the defendant, who, as the plaintiff alleged, held them under him as his tenant by virtue of a lease in writing; during the progress of the case, both parties appeared several times before the justice.

<p>A judgment for want of an appearance in a case requiting the intervention of a jury to assess the damages is not such a judgment as can be removed to another county under the new county Act.</p> <p>On writ of inquiry to assess damages if defendant cannot be found notice must be put up in the Prothonotary’s office. ^</p>

The act authorizing the formation of loan associations, is a matter of special legislation in this, that it confers upon such corporations… Held: that the occupier of a building who negligently permits the building or the access to it to be in an unsafe condition is liable for an injury occasioned thereby to a person whom he, by an invitation, express or implied, induces to enter upon it. lie is liable, because it is negligence in him to invite a person to enter upon a…

<p>Rule to dissolve attachment.</p>

<p>The title of a trustee under a deed of trust is complete and irrevocable by the settler, although the transaction be purely voluntary. Nor does the‘fact that the grantor reserved an interest during life in the proceeds of the property, and gave a future benefit to other persons named, give an implied right of revocation. It controverts no rule or policy of law, but executes the intention of the grantor.</p> <p>Frederick’s Appeal, 2 P. F S. 3^,8, distinguished.</p>

<p>In Equity. Appeal from CommonPlqas of Lackawanna County, continuing preliminary inj unction.</p>